33 The following emerged as the salient issues:
· Social and economic impacts in the locality.
· Desired future character of the locality, and proximity to sensitive land uses.
· Public interest.
The evidence and findings
Social and economic impacts in the locality; desired future character of the locality and proximity to sensitive land uses
34 Mr Tomasetti counsel for the respondent council, accepted that the proposed use is permitted in the zone and submitted that zoning is a 'neutral consideration'. More importantly, he submitted, "…the use is one that can cause offence to sections of people in the community." [Note: Martyn v Hornsby Shire Council [2004] NSWLEC 614 at [18]].
35 Mr Tomasetti also submitted:
· it is not part of the council's case, "…that a sex shop is likely to give rise to anti-social behaviour, criminal activity or the like."
· the Court has recognised that most people believe that exposure of impressionable groups like children and adolescents to the existence of brothels is undesirable. Martyn v. Hornsby Shire Council [18]. Mr Tomasetti also submitted that "…brothels, sex shops and strip clubs are a common genus of use," and adult bookshops might also be included in this genus of use, [Note: Mortimer v Sutherland Shire Council [2005] NSWLEC 349 at [48] - [51]].
· "…a sex shop is a place that needs to be 'appropriately located'." [Note: Mortimer, at [49]]. He submitted, "…therefore the location of a sex shop is one, which should be discrete and sensitive to community reaction." He added that such a discrete location could be within the Ryde Town Centre, but not at the subject premises, which is a 'landmark' in Top Ryde and the site of the former Post Office.
· the present case does not turn on moral judgments, and issues of taste and morality are to be put aside in the determination of development applications. [Note: Venus Enterprises Pty. Ltd. v. Parramatta City Council (1981) 43 LGRA 67 per Cripps J]. Murrell AJ in Liu v Fairfield Council [1996] NSWLEC 272 reiterated this and considered that morals should not influence the decision of this Court. Also, her Honour in Lonza v Fairfield City Council, (Unreported decision of Murrell AJ, dated 9 December 1996) stated that community "…standards and views on the morality of brothels are not relevant under s90(1) head of consideration". Section 90 is the forerunner to s 79C of the Environmental Planning and Assessment Act 1979, under which the Court is considering the present application.
· the proposal is inappropriately located and:
a. The front entrance to the premises is not discrete but is a virtual meeting place for young people before and more particularly after school. Children sits on the steps to the front entrance and talk and socialise.
b. The corner on which the building is erected is prominent and on the main crossroad of the Top Ryde centre. It is a landmark site being the former PO site that people readily relate to.
c. The entrances of the restaurant and the sex shop are too close together.
d. It is located near a busy bus stop frequented by children and adolescents.
e. Many of the children waiting on the steps and at the bus stop are unsupervised by adults.
f. The site is close to the Public School, two churches and residential properties including the higher density residential zone.
g. The site is above a family restaurant "The Mantra" and the use could affect the profitability of that business as a family restaurant.
h. The site is adjacent the entrance to the Top Ryde Shopping Centre also a centre frequented by young people.
i. Being a prominent building and being restricted premises only open to 18 year olds and older is undesirable in this location. The site should be used for purposes that foster commercial activity accessible to all users in Top Ryde.
j. A section of the community will be offended by the use and it should be therefore located in a position where it is likely to offend as few people as possible.
k. The proposal is inconsistent with the desired future character of the area that is with ground floor retail floor space and up to 3 levels of residential apartments on top.
36 Mr Vincin gave evidence on behalf of the respondent council on-site, that he did not have any objection to a 'sex shop', per se, if discreet. However, he considered the proposed location would be too prominent and too close to where children congregate at the bus stop. He said, Blaxland Road is the main thoroughfare in Top Ryde and people refer to the building as the 'Old Post Office'. He did not object to the proposal's signage and seemed to suggest that the thought of the adult bookshop might cause offence to some and as a result would have an adverse impact on the amenity of the area.
37 Ms Burgess told the Court that about 20% of the children attending her school would travel by public transport. She agreed that not all who use public transport would be likely to use the bus stop outside the subject premises. However, she was concerned that people going in an out of the adult bookshop might have the literature in their hands, and for those standing nearby, this literature might be seen by those waiting for the bus and cause offence. Also, she was concerned that people near the premises, who had an undesirable interest in children, might present an unacceptable risk. She said that there is a perception amongst parents of children, who attend her school that this proposed use might attract those with an undesirable interest in children. She pointed to the fact that recently, drunks had come into the school, and had posed a risk to the school community.
38 In a letter from the NSW Police Service - Gladesville Local Area Command stated, [Note: Exhibit 5 Tab 2 p 40]:
The issue for police is that the shop will be right outside a public bus stop that is frequented daily by children, whether going to or from school or going out. In the interests of the community, the police will not endorse this type of business at this location. At any other location, where it is not so frequented by children/youths/ young persons, police have no issue.
39 Photographs taken of the premises on a number of days in September 2005 were tendered in the council's case, showing young people in school uniform sitting on the steps of the proposal, [Note: Exhibit 3]. Some school-uniform-wearing children were shown leaning against the wall facing Blaxland Road, and some were sitting on an overturned shopping trolley near the entrance of the proposal.
40 Mr Young, town planner, for the respondent council, assessed the proposal against the planning principle included in Martyn v Hornsby Shire Council [2004] NSWLEC 614 and concluded that it would be "…unacceptable in terms of social and economic impact." He said that it would be located near a major bus stop used by children and the elderly. He was also critical of the fact that it would be near the First Church of Christ Scientist, Ryde; Ryde Uniting Church; St Anne's Church and worshippers might visit shops at Top Ryde and be confronted by the proposed adult bookshop. He considered the proposal to be unacceptable under s 79C of the Environmental Planning and Assessment Act 1979.
41 Mr Blyth for the applicant was of the opinion that "…the proposed change of use is not antipathetic to any of the objectives or planning provisions of the DDCP40."
42 He was satisfied that within the proposed hours of operation and with the proposed access and operational restrictions set out in the Management Plan in place, there would be no unacceptable social impacts.
43 Mr Blyth supported the proposal and considered it would meet the requirements of cll 3.1.2 and 3.2 of the DDCP40 and would be likely to increase the diversity of land use in the centre, including:
· To integrate mixed uses into the streetscape through good design that maximises positive interactions and minimises negative impacts.
· To provide a mix of uses so the community can walk to the shops, to work, to the dentist etc.
· To establish a well-used public domain through a diversity of land uses, services and facilities within the centre.
44 He was not aware of any study, evidence or information to suggest establishment of adult bookshops would have a negative impact on the economic viability of a locality.
45 On the site inspection, I observed that three bus shelters, with a combined length of 16m, are located outside the northeastern elevation of the premises on Blaxland Road with the closest shelter being 10m distant from the corner entry of the proposal. These bus shelters, located on the footpath, are oriented towards the roadway. Persons standing in the ground floor foyer, and elevated above the footpath, would not have a direct view of the bus shelters and people standing in the bus shelters would not be able to see the entry door of the proposal.
46 Addressing each of the concerns raised by Mr Tomasetti counsel for the respondent council:
· I am satisfied that the front entrance to the premises would be sufficiently discrete and discreet as the closest bus shelter in Blaxland Road is around 10m distant. As a result the entry is dissimilar to those in Martyn and Mortimer and I distinguish the present case. In Martyn those entering and leaving the beauty school shared the entry ramp leading to the proposed brothel. In Mortimer the proposed entry to the adult bookshop was to be shared with the surf and ski shop, and was located in the same street entrance alcove. There would be no goods on display near the entrance of the proposed use. Mr Blyth pointed out that there would be no windows overlooking Church Street and the side windows are to be treated to prevent viewing to and from the opposite side of Blaxland Road. In Mr Blyth's opinion, the adult publications use of the premises would not be obvious. As I understand the council's case no issue is taken that the physical form of the proposal. I accept Mr Blyth's evidence that the proposed use would be inoffensive and should not be refused for this reason.
· The fact that the corner on which the premises is erected is 'prominent' and on the main crossroad of Top Ryde and a former PO 'landmark' that people readily relate to, is no reason to refuse the present application. Mr Young stated that the site is unsuitable for the proposal, as it would occupy the Old Ryde Post Office, a 'landmark' well known to the community. Mr Blyth accepted that the building in which the proposal would be located is on a corner and is visible from a number of locations. However, he argued that the proposed use to be located on the first floor "…would not be prominent at all." I accept Mr Blyth's evidence.
· The entrances of the restaurant and the adult bookshop are about 6m apart and sufficiently distant for there to be little interaction between the two.
· I accept that the proposed adult bookshop would be located near a busy bus stop frequented by children and adolescents. The closest bus shelter was measured at about 10m from the entrance to the proposal and Mr Blyth was satisfied that once the proposal was operating, people would be unlikely to sit on the steps or congregate on the footpath near the entrance to the proposal. He was of the opinion that the proposed use at the first floor, being inside the shop, would not be exposed to view. He pointed to the fact that the first floor use would not be abutting sensitive premises; patrons would not cross each other's paths to gain access. Mr Blyth was satisfied that the proposed use would be sufficiently remote from the bus stop to not create any significant impact on amenity of the area. I accept Mr Blyth's evidence and that there is sufficient separation to reduce any adverse interaction.
· There is no evidence that the unsupervised children waiting on the steps or at the bus stop are in danger. As accepted by myself in Jim Marinos v Ashfield Municipal Council [2005] NSWLEC 2, and Bly C in Zhang v Ashfield Municipal Council [2001] NSWCA 167, the behaviour of patrons should be accepted as that of ordinary members of the community.
· The premise is across Blaxland Road from the Ryde Public School. Mr Blyth pointed out that Ryde Public School teacher's car park in Tucker St, is located about 85m from the proposal and from the school grounds it is not possible to see the entry. The nearest school building is located about 115m away and there is no direct line of sight between the two. Mr Blyth was of the opinion that the primary focus of the school is towards the northeast over playing fields near the intersection of Tucker and Pope Streets near the main entry to the school. He added that this point is about 300m from the proposal and not within view.
Mr Blyth agreed that The First Church of Christ Scientist is located some 45m from the entry to the premises on Church Street and there is no visual connection between it and the proposal. His evidence was that there would be "…little potential for adverse interaction as it is now proposed that the subject premises remain closed until 11:30am on Sundays." Thus the adult bookshop would not operate of a Sunday until 1 hour after the Sunday church service had ended. Given the lack of visual connection between the church and the proposal, the first floor location of the adult bookshop, the operational controls in the Management Plan, Mr Blyth was of the opinion that "…no adverse social impact would be apparent to the church."
Mr Blyth told the Court that "…St Anne's Church is located on the corner of Church Street and Victoria Road some 250m from the site beyond a rise in the road, well out of the visual catchment of the subject site." Other church buildings on the intersection with Gowrie St are about 150m distant. I accept Mr Blyth's evidence that the proposal would be far enough removed to ensure there would be no adverse social impact on these sensitive uses.
· There is no evidence to suggest that the adult bookshop use could affect the profitability of 'The Mantra' a family oriented restaurant with its entrance up Church Street around 6m distant.
· The premise would be opposite the Blaxland Road main entrance to the Top Ryde Shopping Centre and about 60m distant. Although young people frequent this centre, I would not refuse the application for reason of this proximity.
· The fact that the proposed adult bookshop is in a prominent building and restricted only to 18-year olds and older does not make this an undesirable location for the proposed use. The restaurant use that conforms to the requirements of the DCP for an active street front would remain, on the ground floor. The proposed use is permissible within Top Ryde on the first floor and there is no requirement for the premises to be used to "foster commercial activity accessible to all users in Top Ryde".
· There was insufficient evidence to convince me that a significant section of the community would be offended by the use such that it should be located in another location.
· I do not accept that the proposal is inconsistent with the desired future character of the area that is with ground floor retail floor space and up to 3 levels of residential apartments on top. It is a retail use that is permissible in the zone. Mr Blyth was of the opinion that the proposal would meet the identified character of Top Ryde. I accept that evidence.