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[2005] NSWLEC 549
appellant. The appeal was upheld. Development application No 203/2005 was approved subject to Conditions 1 to 37 in Annexure A. Each party was ordered to pay its own costs ([60]).
The Court approved the proposed first-floor adult bookshop after assessing the actual layout, signage, access arrangements, operating controls, and surrounding land uses. The use being permitted in the zone did not itself decide the case. The Court found the evidence did not establish unacceptable impacts on children, nearby businesses, sensitive uses, the desired future character, or the public interest. The approval was subject to 37 conditions.
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2,175 words · generated 29/09/2026
Paul Monteleone appealed under s 97 of the Environmental Planning and Assessment Act 1979 against Ryde City Council’s deemed refusal of an application to use the first floor at 100 Blaxland Road, Ryde, as an adult bookshop. The application also included a fit-out and minor ground-floor works for a separate entrance. The proposed shop was in an existing two-storey commercial and retail building, formerly occupied by the Ryde Post Office. A restaurant would continue operating on the ground floor ([1], [5], [20]–[22]).
No linked legislation citations have been extracted yet.
The site was on the southwestern corner of Blaxland Road and Church Street in the Ryde Town Centre. Blaxland Road was an arterial road, and nearby properties had commercial, retail, residential and utility uses ([4]–[6]). The judgment identified nearby sensitive uses and places where children might congregate, including a bus stop, Ryde Public School and churches ([7], [32]).
The proposed shop was to operate during specified daytime and evening hours, with a maximum of one staff member at a time ([22]). The proposal included warning signage, no product displays in the entrance foyer, and CCTV allowing the door at the top of the stairs to be remotely locked to prevent entry by under-age people ([25]–[26]). The use would be restricted to people aged 18 and over, as described in the evidence and the Court’s reasons ([24], [46]).
Council refused the application, citing adverse social and economic impacts, conflict with the desired future character, proximity to sensitive land uses, and the public interest ([28]). It relied on evidence and submissions concerning the nearby bus stop, children, churches, the school, the site’s visibility, and possible effects on other businesses ([32], [36]–[40], [51]).
Commissioner Watts upheld the appeal. The Court approved the application subject to 37 conditions and ordered each party to pay its own costs ([57]–[60]). The judgment text says the decision was made on 5 October 2005. Its front matter also lists 10 May 2005 as the date of judgment, which conflicts with the body and with the recorded hearing date of 23 September 2005. The judgment body’s date is used here when describing the decision.
The Court undertook a merits assessment under s 79C of the Environmental Planning and Assessment Act 1979 ([3]). It accepted that adult bookshops were not separately defined under the RPSO, and that the use was permissible with consent as a shop in the relevant zone. But it adopted the respondent’s position that permissibility was a neutral consideration, not a reason by itself to approve the application ([8]–[9], [34]).
The Court considered the draft controls as well. Under the DLEP123, the proposed use was permissible with consent, and the Court recorded that there was no issue that the proposal would not comply with the existing RPSO and DLEP123 ([10]–[14]). It also considered the DDCP40’s aims and the stated character of the Mixed Use Commercial/Local Fringe area ([15]–[17]). These planning instruments formed part of the assessment, but the decision turned on the proposal’s likely effects in its particular location.
A central part of the reasoning was the physical separation and arrangement of the proposed use. The nearest bus shelter was about 10 metres from the entrance. The Court observed that people in the entrance foyer would not have a direct view of the shelters, and people waiting at the shelters would not be able to see the entry door ([45]). It also accepted that there would be no goods displayed near the entrance and that the first-floor use would not be obvious from the street ([46]). The Court distinguished Martyn v Hornsby Shire Council and Mortimer v Sutherland Shire Council on the facts, explaining that the access arrangements and relationship between uses differed in those cases ([46]).
The Court considered the evidence about children’s safety and the bus stop. It accepted that the stop was used by children and adolescents, but found no evidence that children waiting there were in danger. It applied the proposition it identified in Jim Marinos v Ashfield Municipal Council and Zhang v Ashfield Municipal Council that patrons’ behaviour should be treated as that of ordinary members of the community ([46]). The judgment does not treat the presence of children near a proposed use as automatically decisive. Instead, its reasoning depends on the evidence about the actual layout and likely interaction.
The Court also considered each nearby use. It accepted evidence that the school buildings and grounds did not have a direct line of sight to the proposed entrance, and that the relevant school facilities were at some distance ([46]). It considered the First Church of Christ Scientist, including the proposed Sunday opening time and the absence of a visual connection. It accepted that the other churches were sufficiently removed to avoid adverse social impact ([46]). It found no evidence that the adult bookshop would affect the restaurant’s profitability ([46]).
On desired future character, the Court accepted the applicant’s planning evidence. The restaurant would remain on the ground floor, and the adult bookshop would be a first-floor retail use. The Court found the proposal compatible with the identified character of Top Ryde and did not accept that this location had to be reserved for commercial activity accessible to every user ([46]–[47]).
Finally, the Court considered amenity and public interest. It noted authorities addressing the possibility that amenity can include residents’ subjective perceptions, but the weight of those perceptions depends on the circumstances ([53]–[55]). It was not persuaded that a significant section of the community would be offended in a way requiring refusal, and it was not satisfied that the council’s subjective fears and concerns had a rational basis ([46], [56]). On the evidence before it, the Court found that the application was not against the public interest ([56]).
The judgment did not purport to establish a comprehensive new rule for adult bookshops. Its reasoning applied existing planning considerations to a particular site and evidence. Before the decision, the relevant assessment already required consideration of the application’s likely impacts, planning controls, and the public interest under s 79C, as the judgment itself states ([3], [28], [32]).
The decision reinforces two points within that case-specific assessment. First, permissibility in a zone does not settle the merits: the Court expressly treated it as neutral ([9], [34]). Second, concerns about social impact, amenity and offence are assessed by reference to evidence and the actual circumstances, rather than assumption alone. The Court addressed the location of the entrance, sightlines, separation, nearby uses, signage, access controls and operating arrangements ([45]–[47]).
The judgment also considered the scope of amenity. In discussing Dixon v Burwood Council, Broad v Brisbane City Council and Perry Properties Pty Limited v Ashfield Council (No 2), it noted that amenity may extend beyond physical effects and can include subjective perceptions of the locality, with the weight of those perceptions remaining relevant ([53]–[55]). It then found that the concerns advanced in this case did not justify refusal ([56]). The decision therefore does not say subjective perceptions are never relevant. It shows that the Court assessed their weight against the evidence presented.
The judgment does not identify any subsequent change in legislation or state how later courts treated the decision. The supplied text therefore supports an account of the reasoning in this case, but not a claim about the law’s later development or the decision’s subsequent precedential influence.
At [9], the Court accepted that the use being permissible in the zone provided only “neutral evaluation” of the proposal. In plain English, zoning permissibility opened the door to consideration but did not itself mean the application deserved approval.
At [45], the Court recorded that the bus shelters were about 10 metres from the entrance and that there was no direct view between the entrance foyer and the shelters. This is important because the assessment was grounded in the site’s observed layout rather than distance alone.
At [46], the Court said the entrance would be “sufficiently discrete and discreet” and distinguished Martyn and Mortimer by reference to differences in how people entered and interacted with the proposed uses. In plain English, the Court considered the access design and the relationship between the shop and nearby places important to the impact assessment.
At [46], the Court stated: “There is no evidence that the unsupervised children waiting on the steps or at the bus stop are in danger.” This explains why the asserted risk to children did not persuade the Court in this case. The finding concerns the evidence before it, not a general conclusion about every adult-use business near children.
At [47], the Court summarised its findings: it did not consider the proposal too close to sensitive land uses, inconsistent with the desired future character, or likely to have an unacceptable social or economic impact. This paragraph provides the clearest statement of the Court’s conclusions on the principal planning issues.
At [56], the Court said it remained to be convinced that the council’s subjective fears and concerns had a rational basis. In plain English, the Court did not treat the concerns as irrelevant simply because they were subjective. Rather, it found them insufficiently substantiated to justify refusal in the circumstances.
The decision is most directly relevant to planning assessments involving a proposed adult bookshop or comparable restricted-use premises where the dispute concerns nearby children, public transport, schools, churches, visibility, community offence, or desired future character. It illustrates a fact-specific approach to those issues rather than a categorical rule about where such premises may be located.
Factors that mattered in this judgment included the use being on the first floor; a separate entrance; the distance and sightlines between the entrance and the bus shelters; no product display in the entry foyer; limited signage; access controls; and the continued operation of a ground-floor restaurant ([21]–[26], [45]–[46]). Evidence about how nearby children, school facilities and churches related spatially to the premises also mattered ([46]).
The decision may be less comparable where the proposed entrance is shared with another business, patrons and members of the public must use the same access area, products are visible from public areas, or there is evidence of a concrete impact on nearby uses. That observation follows from the Court’s stated distinctions between this case and Martyn and Mortimer, and should not be read as a rule deciding how any such different application would turn out ([46]).
The case also bears on objections founded principally on offence or fears about social effects. It shows the Court testing those concerns against objective features and evidence. It does not establish that community submissions are irrelevant: the Court considered the objections, petition and evidence, but found them insufficient on this record ([27], [46], [51]–[56]).
The supplied judgment contains no discussion of later decisions that applied, distinguished, followed, or overruled Monteleone. It was decided in October 2005, and the material provided does not include subsequent case law or a citator history. No claim about later judicial treatment can therefore be made from this source alone.
The judgment itself discusses earlier authorities. It distinguishes Martyn v Hornsby Shire Council and Mortimer v Sutherland Shire Council based on the access arrangements and physical relationship of the proposed uses ([46]). It refers to Jim Marinos v Ashfield Municipal Council and Zhang v Ashfield Municipal Council for the approach that patrons should be treated as ordinary members of the community ([46]). It also discusses authorities about amenity and subjective perception through Dixon, Broad and Perry Properties ([53]–[55]). These are the relationships stated in this decision, not evidence of how later courts treated Monteleone.
The judgment does not reproduce the 37 conditions attached to the consent. It says they were in Annexure A and notes that conditions could be inspected or obtained through the Court or council ([58]–[60], post-judgment note). Without them, the detail of the operational obligations imposed by the final consent cannot be assessed.
The judgment also does not resolve how its reasoning would apply to different layouts, different kinds of restricted premises, different access arrangements, or stronger evidence of actual impacts. Its findings depended on the site inspection and evidence concerning sightlines, distances, operation and nearby land uses ([45]–[47]).
The reasoning recognises that subjective perceptions may form part of amenity, while also requiring attention to the weight and evidentiary basis of those concerns ([53]–[56]). The decision does not provide a general test for when community offence or perception would be weighty enough to affect the outcome. It concludes only that the evidence in this case did not justify refusal.
Finally, the supplied text gives inconsistent judgment dates in its front matter and body. The body records 5 October 2005, while the case information lists 10 May 2005. The discrepancy cannot be resolved from the judgment text alone.
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CITATION : Paul Monteleone v Ryde City Council [2005] NSWLEC 549
APPLICANT: Paul Monteleone PARTIES : RESPONDENT: Ryde City Council
Development Application :- Social and economic impacts in the locality KEY ISSUES: Desired future character of the locality and proximity to sensitive land uses Public interest.
Ryde Planning Scheme Ordinance 1979, (RPSO) LEGISLATION CITED: Draft Ryde Local Environmental Plan No. 123, (DLEP123) and · Draft Ryde Development Control Plan No 40, (DDCP40)
Broad v Brisbane City Council (1986) 59 LGRA 296; Dixon v Burwood Council [2002] NSWLEC 190; Jim Marinos v Ashfield Municipal Council [2005] NSWLEC 2; Liu v Fairfield Council [1996] NSWLEC 272 ; Lonza v Fairfield City Council, (Unreported decision dated 9 December 1996); Markakis v Ashfield Municipal Council [2004] NSWLEC 383; CASES CITED: Martyn v Hornsby Shire Council [2004] NSWLEC 614; Mortimer v Sutherland Shire Council [2005] NSWLEC 349; New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62; Venus Enterprises Pty Limited v Parramatta City Council (1981) 43 LGRA 67; Zhang v Ashfield Municipal Council [2001] NSWCA 167
APPLICANT: Mr T G Howard, barrister SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr P Tomasetti, barrister instructed by Ms J A Walsh, solicitor SOLICITORS: Pike Pike and Fenwick
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10745 of 2005 - Paul Monteleone v Ryde City Council
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979; against the deemed refusal by Ryde City Council (the council) of a development application for an adult bookshop involving a shop fit out and change of use at No. 100 Blaxland Road, Ryde, being Lot 1, DP 776548. 2 I visited the land in company with the parties on the morning of the hearing. 3 I have concluded that the proposed change of use from a commercial use to adult bookshop should succeed on merit when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the southwestern corner of Blaxland Road and Church Street, Ryde, and has a frontage to Blaxland Road of about 27.155m and to Church St of about 8.405m, giving an area of some 288m2. 5 Erected on the land is a two-storey commercial/ retail building, formerly occupied by the Ryde Post Office. The ground floor is used as a restaurant, and presently, the first floor is vacant. There is a small parking area to the northwest of the building with vehicular access from Blaxland Road. The Telstra telephone exchange flanks the land on two sides. 6 The land is within the Ryde Town Centre, and land in the immediate vicinity is used for commercial, retail, residential and utility purposes. Blaxland Road is an arterial road, and Church St is a local road. 7 The First Church of Christ Scientist is located on Church Street, some 45m from the entry to the premises. St Anne's Church is located on the corner of Church Street and Victoria Road some 250m from the land beyond a rise in the road, out of the visual catchment of the premises. Other church buildings on the intersection with Gowrie Street are about 150m distant and Ryde Public School teacher's car park is located in Tucker St, about 85m distant and from the school grounds it is not possible to see the entry of the proposal. The nearest school building is located about 115m distant. Relevant planning controls Ryde Planning Scheme Ordinance 1979, (RPSO) 8 Under the provisions of the RPSO the land is zoned General Business 3(a) and shops are permissible with consent. Shops are defined in the RPSO as: 'shop' means a building or place used for the purpose of selling, exposing for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, or for a roadside stall. 9 Adult bookshops are not separately defined and I accept the respondent's submission that the fact that the use is permissible in the zone provides only for neutral evaluation of the proposal. Markakis v. Ashfeld Municipal Council [2004] NSWLEC 383 per Murrell C. at par 32. Draft Local Environmental Plan No 123, Top Ryde Urban Village, (DLEP123) 10 The DLEP123 has been certified under s 65 of the Environmental Planning and Assessment Act 1979, and has been publicly exhibited and the land is proposed to be zoned Business 3(UV) Business Special Urban Village and the proposed use is permissible with consent. The principles and objectives of the Urban Villages Study and Top Ryde Retail Precinct - Recommended Master Plan apply; to promote and identify precincts with Top Ryde that have special character and specific development requirements. 11 Without consent of the council under Col. 2 of the DLEP123, permissible uses within the Business (UV) zone are: Shops utilising floor space for which there is a current development consent permitting the floor space to be used for shops or commercial premises. 12 The proposed use would be permissible on any floor of an existing building, and would be required to comply with the relevant statutory provisions including the Crimes Act 1900 and the Classifications (Publications, Films and Computer Games) Enforcement Act 1995. 13 Within Precinct 3 - Local Mixed Use under DLEP123 the planning controls are: · local retail and/or commercial uses are to be located on ground floor; · residential use is restricted to the upper two storeys; and · four storeys are permissible.
14 Local Mixed Use is not defined. Permissible uses other than residential are permitted on the ground and first floors, as here. There was no issue that the proposal would not comply with the existing RPSO and the DLEP123. Draft Development Control Plan No 40, (DDCP40) 15 The aims of the DDCP40 are: · to maintain and enhance Top Ryde's role as a civic and cultural focus within the local government area (LGA) and beyond; · to retain its position within the retail hierarchy and continue to serve residents' needs and expectations; · to promote a healthy, vital centre; · to create an environment accessible to all users, especially pedestrians; · to create a safe environment with a high level of streetscape amenity; · to improve the appearance of Top Ryde; · to increase residential, commercial and retail options; · to guide development and redevelopment; · to improve the appearance of the Urban Village; and · to increase residential options. 16 In particular the DDCP40 aims: · to reduce vehicular domination; · to improve pedestrian amenity; · to increase public transport's priority; · to promote and integrate key activity generation, like retail, residential and commercial. 17 The character of the Mixed Use Commercial /Local Fringe locality is described in the DDCP40: · located on Blaxland Road and Church Street; · characterised by two-storey plus buildings, some dating from the 1920s, with awnings; · diverse architectural styles; · upper storey usage generally commercial with some residential; and · little landscaping or greenery.
The Classification (Publications, Films and Computer Games) Enforcement Act 1995, (C Act) 18 Section 49 of the C Act requires that premises where restricted literature and material is sold is signposted with the warning that "MEMBERS OF THE PUBLIC ARE WARNED THAT SOME MATERIAL DISPLAYED IN THIS AREA MAY CAUSE OFFENCE." 19 Under the C Act the circumstances in which minors are exposed to classified material is regulated in respect of: a. the sale or public exhibition of certain classified material to minors; b. the viewing of certain classified material in the presence of minors; c. the markings of material for sale of content and consumer advice; d. the advertising of certain material; and e. the entry of minors on premises that sell classified material. The proposal and its history 20 Development application No 203/2005 was lodged with the respondent council on 24 March 2005 for the use of the premises as an adult bookshop. 21 The proposal is described in drawings prepared by Calldart Pty Limited and involves: (a) Shop fitout and change of use of the first floor level of the premises for the purposes of an adult bookshop. (b) Minor works at ground level to provide a separate entry for access to the first floor. (c) The attachment of a 500mm x 500mm sign to the fascia at the front of the premises displaying the words "RYDE ADULT BOOKSHOP R".
22 The use would operate with a maximum of one staff member at any one time. The hours of operation, as amended, from that in the development application are: Monday - Wednesday & Friday - Saturday 10:00am. - 7:00pm. Thursday - 10:00am. - 9: 00pm. Sunday - 11:30am. - 6:00pm. 23 The applicant accepted that children might catch school buses at the bus stop near the premises in the morning, however, claimed that there is unlikely to be any conflict, as the proposed use would not open until 10:00am when the children would be at school. 24 Also, the applicant accepted that whilst the premises would be open in the afternoon when children might be on their way home from school, entry to the proposed use would be restricted to persons over the age of 18 years, thereby excluding most school children. 25 A warning sign is proposed at the Blaxland Road entry and additional signs are proposed at the top of the stairs. There would be no display of products or other advertising proposed in the entry foyer. The only indication of the proposed use would be a 500mm x 500mm pink coloured light box sign. This proposed under-awning sign would be fixed to the bulkhead above the splay-cornered entry to the premises. 26 The entry and stairway to the proposed adult bookshop would be controlled by closed circuit TV, (CCTV) operated from the counter. Thus the door at the top of the stairs could be remotely locked to prevent entry to under-aged persons. Notification 27 The application was notified to nearby owners and occupants on 5 April 2005 and the council received, during the statutory advertising period, six (6) submissions objecting to the proposal. At the hearing an undated petition with 52 names was presented, [Note: Exhibit 2]. This stated: We the undersigned strongly oppose the proposed adult bookstore at 110 Blaxland Road for reasons outlined below:
Particulars · The aims of Draft LEP 123 include "to promote the principles and objectives of the Urban Villages Study (1995) and Top Ryde Retail Precinct - Recommended Master Plan (1998)". These principles/objectives include enhancement of Top Ryde's roles as a civic and cultural focus, and improving the public domain. The proposal is inconsistent with these controls. · An objective of the Draft DCP No. 40 is to maintain and enhance Top Ryde's roles as a civic and cultural focus within the LGA and beyond. The proposal is inconsistent with this objective. (clause 1.5 Draft DCP No. 40). · A strategy to achieve the aims of the draft DCP No. 40, in regards to landuse, is 'to integrate mixed uses into the streetscape through good design that maximizes positive interactions and minimises negative impacts.' The proposal in its current location will not maximise positive interactions or minimise negative impacts. (clause 3.1.2). · Draft DCP No 40 contains objectives and controls aimed at improving the public domain (clause 3.1), in terms of enhancing attractiveness, accessibility and amenity levels throughout the area. The proposal is inconsistent with these controls.
5 Approval of the application is not in the public interest, having regard to the submissions received by members of the public.
Particulars. Issues raised by objectors: · The proposal is at an inappropriate location, having regard to the proposal's proximity to the busy bus stop, Ryde Public School and the First Church of Christ Scientist. · The proposal is in an inappropriate location, in that it is adjacent to an area (the bus stop) where unsupervised children and adolescents congregate. · The proposal is in an inappropriate location, having regard to the high visibility of the site. · The proposal may alienate customers from nearby businesses. · The positioning of the proposal may cause offence to members of Ryde's multicultural society.
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.
47 I prefer the evidence of Mr Blyth and consider the proposal would not be too close to sensitive land uses, be inconsistent with the desired future character of the locality or have an unacceptable social or economic impact. Public interest 48 Mr Howard submitted that the decision of his Honour Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 at paras 61-63 that "…subjective fears and concerns must have a rational basis and be amenable to objective assessment in order for any significant weight to be attached to them" is important. 49 Mr Howard submitted there is "…no substance to the concern [that people would be offended by the presence of the proposed use] which was never expressed clearly by Mr Young." Mr Young had required the Court to make an "…assumption that there is something bad about the knowledge of the premises." He submitted that the Court had "…quite properly asked of Mr Vincin what he was concerned about and he could not establish this in a reasonable way." He had referred to the presence of the CCTV near the entrance to the proposal and that "…people would know the [adult bookshop] was there." 50 Mr Howard also submitted that although Ms Burgess expressed her concerns that there would be some "…sexual focus by patrons of the premises", she had unfounded concerns about an overt display of sexual material. 51 Mr Tomasetti submitted, "the use is one that can cause offence to some people in the community and this was acknowledged by Messrs Blyth and Young." He submitted that Mr Vincin had endeavoured to articulate his concerns and that Ms Burgess gave evidence that some parents are concerned. He submitted, the petition should be given appropriate weight as, "…people took the trouble to sign [it] for reason of negative perception of location in relation to schools, churches, hotel, ASIC, summit business centre, concord RSL, bank." He also referred the Court to the views of the NSW Police and the manager of the Weekly Times who expressed concern as to the location of the proposal where children congregate. 52 Mr Blyth was of the opinion that "…there is no matter raised by the public submissions that is fatal to the proposed development." He considered that "…with …controls in place to control the operation of and access to the premises, as set out in the Plan of Management, …the use will operate with little potential to impact on the community and with little visual indication of its presence in the subject building." 53 In Dixon v Burwood Council [2002] NSWLEC 190 her Honour Pain J, referred with approval to de Jersey J (Connolly J agreeing) in Broad v Brisbane City Council (1986) 59 LGRA 296 at 305 that: There is no doubt that the concept of amenity is wide and flexible. In my view it may, in a particular case, embrace not only the effect of a place on the senses, but also the residents' subjective perception of this locality. Knowing the use to which a particular site is, or may be, put may affect one's perception of amenity. 54 Her Honour also referred to Perry Properties Pty Limited v Ashfield Council (No 2) [2001] NSWLEC 62 and Bignold J's statement at 317: It is clearly established …that the concept of "amenity" in a town-planning context (including one that does not include, as a potentially relevant consideration "social impact of the proposal in the locality") is a concept that transcends merely physical content. 55 Her Honour Pain J concluded at para 44: In my opinion these two cases (Broad and Perry No 2) stand for the proposition that the concept of amenity itself is wide and flexible and can include the subjective perception of residents in relation to the locality in question (subject to the question of weight). Furthermore, such matters will be relevant to determining the "likely impacts", most relevantly the social impact under s 79C of the Environmental Planning and Assessment Act 1979 . 56 On merit I would not refuse the application for this reason, as I am satisfied that it would not be against the public interest. I remain to be convinced that the subjective fears and concerns of the council have a rational basis and I accept the submissions of Mr Howard that "…the moral social or economic fabric of Top Ryde could not be undermined by a restricted premises that [people] cannot see. 57 For the above reasons, the appeal is upheld. Costs 58 No submissions were made in respect of costs. This is a case that is appropriate for each party to pay its own costs. I so order. Conditions 59 The conditions are those in Exhibit 8 as amended by the applicant's submissions in Exhibit E. Orders 60 My orders are:
The consequence of the Court's decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Paul Monteleone
Ryde City Council
The appeal was upheld. Development application No 203/2005 was approved subject to Conditions 1 to 37 in Annexure A. Each party was ordered to pay its own costs ([60]).