Jim Marinos v Ashfield Municipal Council

[2005] NSWLEC 2

Land and Environment Court

of New South Wales

CITATION:	Jim Marinos v Ashfield Municipal Council [2005] NSWLEC 2
PARTIES:	APPLICANT: Jim Marinos RESPONDENT: Ashfield Municipal Council
FILE NUMBER(S):	10973 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Economic and social impact of adult bookshop - affect the residential amenity - cumulative impact of the proposed premises and existing sex industry-related uses - access for loading/unloading.
LEGISLATION CITED:	Ashfield Local Environmental Plan 1985, (ALEP) - State Environmental Planning Policy No 64 - advertising and signage, (SEPP64) - Crimes Act 1900 - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Markakis v Ashfield Municipal Council [2004] NSWLEC 383 - Zhang v Ashfield Municipal Council [2001] NSWCA 167 - New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 - Lonza v Fairfield City Council, (Unreported decision dated 9 December 1996)
DATES OF HEARING:	17/12/2004
DATE OF JUDGMENT:	01/18/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Howard, barrister instructed by Mr J Marinos c/ The Turnbull Group SOLICITORS: N/A RESPONDENT: Mr P M Jackson, solicitor SOLICITORS: Pike Pike and Fenwick

JUDGMENT:

Appeal No: 10973 of 2004

16

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

18 January 2005

10973 of 2004 - Jim Marinos v Ashfield Municipal Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ashfield Municipal Council (the council) of a development application to use as an adult book shop or restricted premises, the first floor area of an existing commercial building at No 217A Liverpool Road, Ashfield.
2 I visited the land in company with the parties on the first day of the hearing and a group of residents and business people gave evidence of their concerns.
3 I have concluded that the application should succeed when considered under s79C of the Environmental Planning and Assessment Act 1979.

The land
4 The land is situated at the eastern end of the Ashfield Town Centre on the northeastern corner of Liverpool Road and Brown Street, Ashfield. An existing two-storey commercial building is located on the land. Ray White Real Estate Agency presently uses the ground floor shop within the same building and the first floor area is vacant.
5 Nearby is the former State Bank Building to the west on the northwestern corner of Liverpool Road and Brown Street. A Meriton apartment residential/ retail development is located to the north and the rear of the land with access off a laneway behind the premises. There are other shops and some first floor commercial/ residential uses immediately to the east on Liverpool Road. The Ashfield Hotel is located immediately opposite the land on the southeastern corner of Liverpool Road and Holden Street. Existing retail and commercial premises some with first floor dwellings are located to the west of the land further along Liverpool Road.
6 There are schools and churches in the area. It was accepted that many school children walk past the premises in the mornings and afternoons on their way to and from Ashfield Station to the north of the land.

Relevant planning controls

Ashfield Local Environmental Plan 1985, (ALEP)
7 The land is zoned General Business 3(a) under the provisions of ALEP and the proposal is permissible with consent.
8 The premises on the land are near heritage items at Nos 201-207 Liverpool Road. The Ashfield Hotel, opposite, is also a heritage item.

State Environmental Planning Policy No 64 - advertising and signage, (SEPP64)
9 SEPP64 applies to the land and relates to advertising and signage.
10 The following Development Control Plans apply:
a) Access, adaptability, and mobility.
b) Ashfield Town Centre.
c) Control of advertisements and advertising structures.

The proposal and its history
11 Development application No 189/2004 was lodged with the respondent council on 24 June 2004 to use as an adult book shop or restricted premises, the first floor of an existing commercial building at the land.
12 It is now proposed to fit out the first floor area with fixed shelving and freestanding displays for the retail use as depicted on Drawing No.040608A1a, Issue 3. The rear section of the first floor area would be used for an office and storeroom. There is also and existing kitchen and bathroom on this floor. It is no longer proposed to use part of the ground floor as was shown in the original application.
13 The amended proposal also would involve an under-awning illuminated box sign of dimensions 2.5m x 0.5m and 0.05m thick as depicted on Drawing No.040608A1b, Issue 2.
14 On a site inspection, while in company with representatives of each side the applicant advised Mr Kennan, the Court-appointed expert, that only one (1) person would be employed in the business. This was contrary to the information given with the development application, which states that two (2) employees would be present at any one time. However, he prepared his statement of evidence on the basis that two (2) employees would be engaged at any one time. Notwithstanding this, he lent his support to the application.

Notification
15 The application was notified to nearby owners and occupants from 1 July 2004 until 4 August 2004 and the council received eighty-one (81) submissions and 4 petitions containing 201 signatures. The main points of objection were:
· The premises being located too close to schools and to two churches, would cause some school children to pass the site on their way to and from school.
· The signage for the proposal would be excessive. The amended plans show only one sign.
· The proposal would detrimentally affect existing businesses in Liverpool Road.
· The use would be located too close to existing residential developments, and
· The proposal is morally wrong and not a suitable use within the Ashfield Town Centre.

The council’s decision
16 By notice dated 24 August 2004 the council refused the application for the following reasons:
1 The subject premises is located on a prominent intersection within the Ashfield Town Centre and its position is likely to adversely impact on the use of this section of Liverpool Road, Brown Street and Holden Street by pedestrians, particularly school children and patrons of the nearby Uniting Church.
2 The proposed signage does not comply with the aims and objectives of Council's Development Control Plan for Advertisements and Advertising Structures in that the amount of signage is excessive and will unnecessarily draw attention to the existence of the proposed use and will adversely affect the architecture of the existing building, the streetscape and nearby heritage items.
3 The proposed use and the submitted plan of management for the premises does not satisfactorily address the provisions of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 and Section 578E of the Crimes Act 1900.
4 The premises will have unacceptable social and economic impacts on the Ashfield Town Centre and the existing retail premises, commercial premises, schools, church and residential development in the vicinity of the site.
5 The proposed use will adversely affect the residential amenity of the adjoining residential apartment complex to the north of the subject site.
6 The cumulative impact of the proposed premises and existing sex industry-related and amusement industry-related premises within the vicinity of the site in Liverpool Road is likely to adversely affect the economic viability and continued sense of place and community that Council wishes to encourage within the Ashfield Town Centre.
7 The proposal, as submitted, including the plan of management does not adequately address the requirements under the legislation referred to in point 3 above regarding the disposal of restricted items.
8 The subject site does not have sufficient access for loading/unloading of goods and parking of customer vehicles, particularly in view of the size of the premises and the lack of available on street parking and/or loading facilities in the vicinity of the site.
9 The submitted plan of management does not satisfactorily address the procedures to be employed in the ensuring the safety of staff and customers on the premises in the event of anti social and/or criminal behaviour occurring on the premises.
10 The proposed access arrangements for the premises will not enable staff working on the premises to satisfactorily ensure that persons under the age of 18 are not permitted into the restricted premises.
11 The fire exit arrangements to the rear of the ground floor section of the building do not comply with the Building Code of Australia.
12 The proposal is not in the public interest.

The hearing
17 The appeal was filed on 13 August 2004 and is a deemed refusal as the council has failed to determine the matter within the prescribed period of 40 days.
18 At the hearing the Court-appointed expert Mr N R Kennan, consultant town planner, gave evidence.
19 Ms N McDonnell, Manager, Development Assessment, Ashfield Municipal Council prepared the statement of basic facts.
20 Evidence on behalf of the respondent council, which reiterated the concerns expressed in written objections, was taken on-site from:
· Mr G Kang, volunteer for the Council of the Aging, Chinese Australian, Service Society, Senior Social Group for Ashfield Council, Police representative and resident of No 21/7-9 Loftus Street, Ashfield;
· Ms B Chung, real estate agent of No 217A Liverpool Road, Ashfield; [Note there was some confusion as to the address of the subject premises and the real estate agency on the ground floor of the building. It appears that the real estate agency should be numbered other than 217A which is the address given for the proposal.]
· Mr A Graniero, real estate agent of No 217A Liverpool Road, Ashfield;
· Mr F Bellero, real estate agent of No 217A Liverpool Road, Ashfield;
· Ms D Salouros, property manager of No 217A Liverpool Road, Ashfield;
· Ms J Nelmida, property manager of No 217A Liverpool Road, Ashfield;
· Ms B Stagg of LDH managing agents for No 1 Brown Street, Ashfield;
· Mr H Vi-Tran, business owner of shop premises at No 217 Liverpool Road, Ashfield;
· resident of undisclosed address, and
· Mr P C Chapman, town planner of No 14 Cross Street, Port Macquarie.

The issues
21 On 21 October 2004 the council filed a statement of issues.
1. The premises will have unacceptable social and economic impacts on the Ashfield Town Centre and the existing retail premises, commercial premises, schools, church and residential development in the vicinity of the site.
2. The proposed use will adversely affect the residential amenity of the adjoining residential apartment complex to the north of the subject site.
3. The cumulative impact of the proposed premises and existing sex industry-related uses within the vicinity of the site in Liverpool Road is likely to adversely affect the economic viability and continued sense of place and community that Council wishes to encourage within the Ashfield Town Centre.
4. The subject site does not have sufficient access for loading/unloading of goods and parking of customer vehicles, particularly in view of the size of the premises and the lack of available on-street parking and/or loading facilities in the vicinity of the site.
5. The proposed access arrangements for the premises will not enable staff working on the premises to satisfactorily ensure that persons under the age of 18 are not permitted into the restricted premises.
6. Issues raised by resident objectors.

22 The following emerged as the salient issues:
· unacceptable social and economic impacts;
· affect the residential amenity;
· cumulative impact of the proposed premises and existing sex industry-related uses, and
· access for loading/unloading.

23 Mr Kennan came to the view that the key issues before the Court “…essentially relate to the economic and social impact the proposed development may have in the vicinity of the site.” He dealt deal with them as one. I will do the same.

The evidence and findings

Unacceptable social and economic impacts
24 Mr Kennan prepared a comprehensive planning assessment of the development application and concluded that the proposal, as amended, and suitably conditioned to ensure that the measures proposed in the amended ‘Plan of Management’ are implemented, is such that any impacts associated with the proposed bookshop would be acceptable.
25 Mr Kennan stated that he was not qualified to undertake an assessment of the economic impact of the proposal on the viability of the existing or likely future commercial uses in Ashfield Town Centre.
26 He noted the volume of submissions received by the council concerning social impacts of the proposal. He discounted those submissions as being based largely on moral grounds and he quoted with approval the statement made by the Council's Manager Development Assessments at p 51 of the Council Bundle of documents in Exhibit 1.

The morality or otherwise of the proposed use is not a relevant consideration under the Environmental Planning and Assessment Act 1979 and it is acknowledged that the proposal is permissible with the Council's consent under the current zoning that applies to the site.

27 The applicant’s advocate referred to 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. This echoes the views of her Honour Murrell AJ in Lonza v Fairfield City Council, (Unreported decision dated 9 December 1996). Her Honour 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 that sets out the heads of consideration for development applications.
28 Mr Kennan also quoted extensively from the decision by Commissioner Murrell in the matter of Markakis v Ashfield Municipal Council [2004] NSWLEC 383 concerning an appeal against the refusal of the council of a development application for an adult bookshop at No 255A Liverpool Road, Ashfield. In her judgment, the Commissioner placed stress on the need of a suitable Plan of Management and in granting consent imposed a time limit to permit monitoring of the use.
29 Commissioner Murrell accepted that some knowledge of the impact of Crimes Act 1900 is important to bear in mind when assessing applications before the Court. In particular, she referred to Pt 16, s 578(E)(2) of the Crimes Act 1900 that relates to advertising or displaying products associated with sexual behaviour and which states in respect of restricted goods:
Any person who carries on, or who is engaged in, the business of selling or disposing of products to which this section applies must not:
(a) advertise, or cause another person to advertise, in any manner the nature of that business, or
b) exhibit or display any such products:

(i) to a person who has not consented to or requested the exhibition or display, or
(ii) in a manner so that they can be seen from outside the premises of the business by members of the public.

30 Keeping restricted goods out of sight is a management issue and is appropriately dealt with by a Plan of Management. The development plan also shows the retail area of the proposal on the first floor and screened from view from the street.
31 Mr Kennan asked the council for a report on the social impact of the adult bookshop use of No 255A Liverpool Road and by letter dated 6 December 2004, the council’s solicitor responded:
We are instructed that Council has been monitoring the existing restricted premises in the near vicinity, which was recently approved by Commissioner Murrell of the Land and Environment Court. To date, Council has not received any complaints in respect of the use of that premises. However, we are instructed that one problem that Council has encountered with the use of the existing restricted premises relates to the front door of that premises being left open with results in the "Restricted Premises" sign not being directly visible from the street. The owners/ occupiers have therefore been requested to ensure that the door remains closed at all times.

32 Mr Kennan concluded from this response, that the approved adult bookshop was thus far, not affecting the social fabric of the Ashfield Town Centre as was originally perceived.
33 He supported, in the present case, the imposition of a condition requiring an Plan of Management, dated amended around 6 December 2004 and its stated objectives:
(a) To ensure compliance with the legislative requirements which apply to the operation of the Adult Book Shop, particularly:
(i) the provisions of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ; and
(ii) section 578E of the Crimes Act 1900 .
(b) To ensure the safety and security of staff and customers;
(c) To ensure that the operation of the Adult Bookshop does not cause any unacceptable impacts upon the amenity of the nearby residents; and
(d) To ensure that the operation of the Adult Bookshop does not cause any unacceptable social and/or economic impacts on the users of the Ashfield Town Centre.

34 Mr Kennan pointed out that the amended Plan of Management also provides, that the premises will be configured to meet:
(i) the requirements of Section 578E of the Crimes Act 1900 and
(ii) the Classification (Publications, Films and Computer Games) Enforcement Act 1995 .

35 In order to restrict access to the premises by those under the age of 18 years the Plan of Management states:
Access to Premises
The premises are restricted premises to which persons under the age of 18 years are not permitted entry.
A vestibule is to be constructed in accordance with the approved drawings providing a controlled entry point in to the premises in order to prevent entry of persons under the age of 18 years.
If staff are uncertain as to the age of persons they shall request that identification be produced within the vestibule area prior to allowing entry.
Minors will not be permitted entry to the premises. Persons who are unable to provide satisfactory identification when asked will not be permitted entry.
Exclusive entry to the premises for the public will be from the stairwell at the front of the premises on Ashfield Road.
There will be no public access to the premises from the rear of the property.
There will be no public access to the first floor office and storeroom, kitchen or either of the toilets.

36 With the amended Plan of Management in place he was content that “…the premises can be operated to limit any potential social impact.” He suggested a condition of consent be imposed confirming the operation of the Plan of Management.
37 He quoted with approval, Commissioner Bly in Zhang v Ashfield Municipal Council , [2001] NSWCA 167 dealing with a brothel:
Insofar as the behaviour of brothel patrons might affect the amenity of the area ... patrons should be considered as ordinary members of the community. Hence any concerns about safety and security cannot be justified by assertions that brothel patrons are, in this regard, different to the rest of the community.

38 He was of the view that the potential social impact of the proposal had not been sufficiently demonstrated by either the council or the objectors to the proposed development to warrant refusal of the application.
39 I too am satisfied that the management issues can be dealt with under a Plan of Management. I would not refuse the application for reason of adverse social impact.

40 During the course of the hearing the applicant agreed to submit to a condition (Condition B(d)) as outlined in Exhibit E:
The applicant is to install an electronic locking device such that the entry door at the top of the stairs can be locked and unlocked remotely by the on-site manager from any location inside the premises.

41 The purpose of this condition was to restrict access to the premises, by those under the age of 18 years of age and to facilitate control of customer access by one employee who would be within the premises at any one time. With this condition in place I am satisfied that one employee could supervise and control the operation of the adult bookshop.

Affect on the residential amenity
42 Mr Kennan considered the impact of the proposal on the amenity of the occupants of the Meriton residential apartments to the north and 34m distant from the premises. He determined on a site inspection, prior to the hearing, that the main first floor display of the subject premises would be behind a window that would be visible from the neighbouring building. He suggested that this window be frosted and the applicant has agreed to this and a condition was proposed to protect the amenity of nearby residents.
43 He was satisfied with that modification to the plans that there would be “…little likelihood that any direct contact… between the customers of the proposed development and the residents of the development to the north, other than on the Council footpath.”
44 On the site inspection, I noted the first floor window, which is to be frosted, and the distance between it and the Meriton apartments. I accept the evidence of Mr Kennan and I would not refuse the application for reasons of privacy or residential amenity.

Cumulative impact of the proposed premises and existing sex industry-related uses
45 Given there is no expert evidence of any adverse impact of the proposal or of the recently approved brothel I would not refuse the application for reason of cumulative impact.

Access for loading/unloading
46 Two (2) car parking spaces at the rear of the land are proposed with access from the rear lane. The two spaces are aligned in a tandem or stacked formation and are for use of staff, and no public/ customer parking is proposed.
47 The applicant's agent sought particulars from the council on this matter and asked:

Does the Council allege that, with respect to the provisions for loading and unloading of goods, or parking, there is any non-compliance with any provisions of any environmental planning instrument or a development control plan? If so, please provide full particulars.

48 The council’s solicitor responded on 11 October 2004:
No, Council does no allege this. Council factually contents [sic] that there is no on-site loading facilities on the subject site freely available for the proposed use of the premises.

49 The Ashfield Town Centre Development Strategy and the accompanying Development Control Plan with regard to on-site car parking for commercial development, (p 24) states:
New car parking provisions will not be required for existing floor space in order to:
· encourage full utilization of existing buildings;
· maintain a healthy business environment; and
· encourage retention of existing businesses and buildings, new carparking provisions will not be required in respect to existing floor space.
Council will not require additional carparking where development involves only a change of use.

50 By letter dated 6 December 2004, the council's solicitor stated:
The site is within the Ashfield Town Centre and no car parking is required for a change of use.

51 The Town Centre Development Control Plan is silent with regard to loading and unloading facilities and the applicant intends to deliver goods with a small vehicle that would be the same vehicle used by the employee(s) of the bookshop.
52 Mr Kennan was of the view that a condition of consent should be attached to any consent requiring all loading and unloading of goods to be undertaken from the car parking area at the rear of the land and that no loading or unloading of goods is to take place at the Liverpool Road frontage.
53 Deliveries would be few and could be adequately dealt with in the vehicles used by the employees.
54 Hence it appears there is no issue remaining between the parties with regard to car parking for the proposal, and I am satisfied that loading/ unloading would be a reason for refusal of the application.

Other matters
55 The residents and business people who gave evidence on-site were concerned about possible anti-social and criminal behaviour of patrons to the proposed adult bookshop. Mr Chapman, town planner for the respondent council, gave evidence that there would be little to distinguish the patrons of the premises and those in Ashfield Town Centre. He accepted the proposition that patrons of the proposed premises would be “…like ordinary members of the community and would represent a cross-section of the community”.
56 He reiterated the residents’ fear that were the proposal to operate it would “…not be the same as a retail shop and regulated by legislation”. He considered the proposal to be incompatible with those existing uses and that “…over time if more come along to change the character and nature of the area, people’s enjoyment of the area would be impacted and a social impact would result”.
57 Despite this town planning evidence there was no expert sociological evidence to suggest that this adult bookshop or restricted premises would be a catalyst for anti-social or criminal behaviour and I have given this aspect little weight.
58 To the extent that anti-social and or criminal behaviour presently exists there was no evidence that the proposal would exacerbate that. To the contrary the adult bookshop operating nearby has not encouraged any person to object in the six months that it has been operating. There is no reason to believe that the present proposal would operate other than in accordance with its consent and within the law.
59 Another concern of the business owners and operators was that their businesses might suffer economically were the proposal carried into effect. The proposed use is permissible with consent in the Ashfield Town Centre. Although under s 5 of the Environmental Planning and Assessment Act 1979, the social and economic impact of development is to be taken into account, that object applies to both Part 3 and Part 4 of the Act. It might be assumed that the council in making adult bookshops or restricted premises permissible uses in the Business zone, the economic impacts, if any, have been taken into account at the plan-making stage under Part 3 of the Act.
60 However, under Part 4 of the Act, were one to apply the economic object to the specific development application in this case, there was no persuasive evidence to suggest that the proposal would have such an adverse economic impact on nearby businesses that it should be refused. Mr Chapman, who is a town planner, was of the opinion to the effect that were the proposal to operate:

This could have an economic impact in changing the nature of the area. It is a fine line, and that could discourage economic investment in the area and narrow the uses in the area if there were a perception of a Kings Cross being formed. That would have an economic impact.
61 I remain to be convinced that the proposal would operate other than in the manner of other retail and commercial uses in Ashfield Town Centre and I would not refuse the application for this reason.
62 For the above reasons, the appeal is upheld.

Conditions
63 The conditions are those in Exhibit 3 as amended during the hearing by the condition in Exhibit E, to include an electronic locking device. This was included in Condition B(d).

An electronic locking device is to be installed, by the applicant, such that the entry door at the top of the stairs can be locked and unlocked remotely by the on-site manager from any location inside the premises.

64 I have deleted the time limit on the consent in Condition A2, as I have been persuaded by the applicant’s advocate that none of the considerations that applied in the Zhang v Canterbury City Council case, are found here. Here the applicant is willing to conform to the requirements of the Plan of Management and to operate within the requirements of the Crimes Act 1900 . I am satisfied that the evidence has not indicated any adverse impacts that would warrant further consideration by the council at the end of twelve months of operation. Thus I have deleted Condition A2. In coming to that conclusion, I am mindful of the fact that the council has not received any complaint about the operation of the adult bookshop that was approved by the Court and operating since July 2004.
65 One employee is expected to be present when the adult bookshop or restricted premises is open. The Plan of Management stipulates this. The business is small and the expense of having two staff present at all times would be unfair. As a result I have modified Condition A4 to reflect this. The electronic locking device in Condition B(d) would also assist the single manager or employee to monitor the operation.
66 I have maintained Condition A7 that requires a surveillance system, is to be installed which includes a closed circuit television (CCTV surveillance cameras). This was required under the Plan of Management. However, rather than siting the control panels in the Manager’s office I have amended the condition to require it to be installed at the main desk within the retail area so that it may be monitored by a single manager or employee. The applicant also agreed to install an audible monitor to alert the operator to the presence of someone in the stairwell.
67 I have deleted Condition A11, which would be a prohibition on sale or consumption on the premises of alcohol, food or other drinks, as under the Plan of Management it would be expected that the applicant would operate lawfully. There was no evidence that patrons or the occupiers would behave differently to those involved with other businesses in Ashfield Town Centre.
68 I have amended Condition A12 to exclude references to nude entertainment, sexual activity. The applicant accepts that no enclosed video booths shall be provided within the premises.
69 I have deleted Condition A13 as I consider the maintenance of an incident register would be unnecessary and unfair. There is no evidence before me to suggest that the patrons of an adult bookshop would have a greater propensity for anti-social or criminal behaviour than others frequenting the Ashfield Town Centre.
70 I have maintained in Condition B(a) the requirement for a checkpoint/ vestibule area at the top of the entry stairs supervised by one member of staff during the hours of operation. This condition would operate in concert with the requirement to install an audible monitor to alert the manager or employee to the presence of someone in the stairwell and the electronic locking device. A CCTV is to be installed in the stair so that the operator is able to observe those in the stairs and to restrict access to persons under the age of 18. There is no need for the staff to be multi-lingual, so I have deleted Condition B(b).
71 I have amended Condition C1, to require only standard locks on the entry door as would be required for any commercial use in Ashfield Town Centre. I am satisfied that the electronic locking device at the top of the stairs and the CCTV in the stair that the manager/ employee would have sufficient control over access to the premises.
72 I have deleted Condition G12 requiring to under awning sign to be turned off at a certain time. I accept the applicant’s submission and there was no evidence to the contrary that other businesses in Ashfield Town Centre have similar conditions imposed. The sign is relatively small and I am satisfied that such a condition would be unfair and unreasonable.

Orders
73 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 189/2004 lodged with the respondent council on 24 June 2004 to use the first floor of an existing commercial building at No 217A Liverpool Road, Ashfield, as an adult bookshop or restricted premises is approved subject to Conditions A1 to G13 in Annexure A.

3. The exhibits with the exception of Exhibits A, B, E, 2 and 3 are returned.

S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

Jim Marinos v Ashfield Municipal Council

Premises: No 217A Liverpool Road Ashfield

A. GENERAL CONDITIONS
(1) Approved plans stamped by Council

The development must be carried out only in accordance with the plans and specifications set out on drawings prepared by J.A. Anzini Drafting and Building Services Pty Ltd No 040608A1a No 1 issue 3 and 040608A1b No 2 issue 2 and any supporting documentation received with the application, except as amended by the conditions specified hereunder.

(2) Time limited consent

Deleted.

(3) Plan of Management

The operation of the premises is to be in accordance with the document entitled “Management Plan for proposed adult bookshop” attached and marked “A” and with the conditions of consent.

(4) Employees

A minimum of one employee as required by the Plan of Management must be present during all hours of operation. The maximum number of employees present on the premises is not to exceed 6 at any time the premises is in operation.

(5) Hours of Operation

The hours of operation are limited to the following:

Monday to Saturday: 9:00am to 9:00pm
Sunday: 11:00am to 7:00pm

(6) External Appearance

The entrance, exits and external appearance of the premises should be well lit but not to the extent where they become a prominent feature in the streetscape. Further the paint finishes on the external walls of the building must not be such that the building becomes a prominent feature in the streetscape (for example, fluorescent or bright colours). The mural paint finish fronting Brown Street is not to be altered.

The following windows are to be permanently obscured by an applied film or by having obscure glass-

(a) Windows at rear upper level facing Brown Street apartment complex to north
(b) Windows at upper level facing Brown Street and Liverpool Road

(7) Surveillance system

A surveillance system, is to be installed which includes the following:

· a closed circuit television (CCTV surveillance cameras); and
· the operator’s main desk having the relevant control panels.

Details to be shown on the construction certificate.

(8) No product displays be visible from street

No objects, products or goods related to the restricted premises are to be visible from outside the premises.

(9) Warning sign at ground level entry

A warning sign complying with section 49 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 is to be installed at the ground level entry to the premises.

(10) Under awning sign

The under awning sign lighting is to be of standard intensity and is not to contain any animated or blinking sequence of movement.

(11) Alcohol prohibited

Deleted.

(12) Nature of use

No enclosed video booths shall be provided within the premises.

(13) Incident Register

Deleted.

B. REQUIREMENTS FOR THE CHECKPOINT/VESTIBULE AREA

(a) The checkpoint / vestibule area at the top of the entry stairs shall be supervised by one member of staff during all hours of operation.
(b) Deleted.

(c) None of the store’s merchandise is to be in view of potential customers at this checkpoint / vestibule area.
(d) An electronic locking device is to be installed, by the applicant, such that the entry door at the top of the stairs can be locked and unlocked remotely by the on-site manager from any location inside the premises.

C. CONDITIONS THAT MUST BE SATISFIED PRIOR TO ISSUING/RELEASING A CONSTRUCTION CERTIFICATE

(1) Security devices/measures

In order to achieve satisfactory levels of surveillance and ongoing security on the site:


(a) The ground floor Liverpool Road entrance shall be fitted with a standard lock in compliance with the Building Code of Australia; and

(b) first floor level windows shall have fitted security-locks, which comply with the relevant Australian Standard.

(2) Long service levy

Compliance with Section 109F of the Environmental Planning and Assessment Act 1979 ; payment of the long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy). - All building works in excess of $25,000 are subject to the payment of a Long Service Levy.

D. CONDITIONS THAT MUST BE COMPLIED WITH BEFORE WORK COMMENCES

(1) Requirement for a Construction Certificate

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 the erection of a building and/or construction works must not commence until:


(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:

(i) Council; or
(ii) an accredited certifier; and

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

(c) at least two days notice, in writing, has been given to Council of the intention to commence work.

The documentation required under this condition shall show that the proposal complies with all development consent conditions and the Building Code of Australia.

Note: If the principal certifying authority is the Council, the appointment will be subject to the payment of a fee for the service to cover the cost of undertaking building work and / or civil engineering inspections.


WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is a criminal offence that attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

D006 Inspections required by Principal Certifying Authority

If Council is selected as the Principal Certifying Authority (PCA) inspections will be required and must be paid for in accordance with the following fees:


(i) Commencement of building works $151.00

(ii) Prior to covering any framework (floor, wall, or roof) $151.00

(iii) After building work has been completed and prior to occupation $151.00

(2) Garbage skips on Council land - Council approval

Bulk refuse bins or garbage skips shall not be placed on grass verge, footpath or roadway without Council permission. Application forms and details of applicable fees are available from Council’s One Stop Shop on telephone [phone].

E. CONDITIONS THAT MUST BE COMPLIED WITH DURING CONSTRUCTION

(1) Plans to be available on site

The stamped approved plans and Construction Certificate shall be held on site to be produced unobliterated to Council’s officer at any time when required.


(2) Materials and colour schemes

Materials of construction are to be as specified in the schedule of finishes submitted with the development application and on the approved plans, except where amended by the conditions hereunder.

Demolition, excavation and construction work, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7.00am to 6.00pm, Monday to Saturday inclusive. Work is prohibited on Sundays, and on public holidays.

F. CONDITIONS THAT MUST BE COMPLIED WITH BEFORE INSTALLATION OF SERVICES

(1) Mechanical ventilation details –existing structure

Full written specifications, plans, etc complying with relevant Australian Standards shall be submitted to the Principal Certifying Authority before installation of any mechanical ventilation occurs, in relation to all modifications to any part of the existing structure of the building, including all details of ducting, pipe work, fixtures, etc.

G. CONDITIONS THAT MUST BE COMPLIED WITH BEFORE THE BUILDING IS OCCUPIED

(1) Trade waste/disposal

Arrangements for the proper storage and disposal of any trade waste to be made prior to the occupation of the premises. Waste bins must be stored within the building and not externally.

(2) Approval to use/occupy building

The building or any part thereof must not be used or occupied until an Occupation Certificate has been issued for the class 2-9 buildings, or a completion inspection, has been satisfactorily carried out for class 1&10 structures.

(3) Lining materials/materials of construction requirements - spread of fire - BCA

Lining materials and materials of construction used in the premises shall comply with the spread-of-flame and smoke-developed indices of Specification C1.10 of the Building Code of Australia . Details, including relevant certificates, shall be submitted to the Principal Certifying Authority prior to occupation of the building.

(4) Lighting overspill – amenity

No security or other lighting shall cause light overspill to adjoining property owners occupiers or residents.

(5) Materials to be stored in approved areas

No materials or trade goods of any kind are to be stored externally to the building.

(6) Incineration of waste prohibited

The burning of waste of any kind is prohibited under the Protection of the Environment Operations Act 1997. All waste materials shall be stored in suitable containers, located in a suitably constructed screened area/room. All waste material arising from the premises shall be removed regularly, or as frequently as directed by the Principal Certifying Authority.

(7) Public address systems prohibited

A public address system or sound amplifying equipment shall not be installed in or upon the premises.

(8) Air conditioners - noise control - Protection of the Environment Operations Act 1997

Any air conditioners as approved by this consent shall be installed and operated at all times so as not to cause “Offensive Noise” as defined by the Protection of the Environment Operations Act 1997 that will adversely affect the amenity of the premises in close proximity to the property.

(9) Deliveries on site

All deliveries must be conducted with rear lane access and under no circumstances from delivery vehicles standing kerbside on Liverpool Road, Ashfield.

(10) Loading/unloading on site

All loading and unloading are to be conducted within the site at all times. Any designated loading bay/dock area is to remain available for loading/unloading purposes at all times. No storage of goods or parking of cars is to be carried out in these areas.

(11) Proof of Age / Identification Requested

Proof of age must be requested of younger clients. Access is to be denied to persons under the age of 18 years.

(12) Under Awning Sign Light to be turned off

Deleted.

(13) Fire safety measures/fire certificate

Pursuant to Clause 168 of the Environmental Planning and Assessment Regulations 2000 the following is a schedule of proposed Fire Safety Measures required to be installed in the building, and the minimum standard to which these measures shall be designed and maintained.

On completion of the building works and prior to occupation of the building the owner of the building shall furnish to Council a Fire Safety Certificate for each fire safety measure in the building.

The owner of the building shall then furnish Council with a Fire Safety Statement annually for each Fire Safety Measure in the building.

PROPOSED FIRE SAFETY MEASURES

Fire Safety Measure (FSM)	Design and/or Installation Standard	Maintenance Standard
Portable Fire Extinguisher	Clause E1.6	AS 1851, Part 1-1989
Emergency Lighting to stairway	Clause E4.4 AS 2293, Part 1-1987	AS 2293, Part 2-1987
Exit Signs	Clause E4.8, AS 2293, Part 1-1987	AS 2293, Part 2-1987


AS = Australian Standard

S J Watts
Commissioner of the Court

H. ADVISORY NOTES

(1) Other approvals

This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, including:

· an Application for Approval under Section 68 of the Local Government Act 1993 for any proposed activity under that Act, including any erection of a hoarding. All such applications must comply with the Building Code of Australia . · an Application for Approval under Section 68 of the Local Government Act 1993 for a Place of Public Entertainment if proposed. Further building work may also be required for this use in order to comply with the Building Code of Australia. If there is any doubt as to what constitutes “Public Entertainment” do not hesitate to contact Council’s Fire Officer. · an application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979 .
Note: An application for an Occupation Certificate may be lodged with Council if the applicant has nominated Council as the Principal Certifying Authority.

· an Application for a Subdivision Certificate under Section 109(C)(1)(d) of the Environmental Planning and Assessment Act 1979 if land (including stratum) subdivision of the development site is proposed. · an Application for Strata Title Subdivision under the Strata Schemes (Freehold Development) Act 1973, if strata title subdivision of the development is proposed.

· a development application for demolition approval under the Environmental Planning and Assessment Act 1979 if consent for demolition is not granted by this consent.

(2) Modifications to your consent - prior approval required

Works or activities other than those authorised by the approval including changes to building configuration or use will require the submission and approval of an application to modify the consent under Section 96 of the Environmental Planning & Assessment Act 1979 . You are advised to contact Council immediately if you wish to alter your approved plans or if you cannot comply with other requirements of your consent to confirm whether a Section 96 modification is required.

Warning: There are substantial penalties prescribed under the Environmental Planning and Assessment Act 1979 for breaches involving unauthorised works or activities.

(3) Compliance with the Disability Discrimination Act - liability

This decision does not ensure compliance with the Disability Discrimination Act. The owner, lessee, operator and/or manager of the premises is advised that under the Disability Discrimination Act 1992 , it is illegal to discriminate against a person with a disability by means of restricting access to or within the building. If access is restricted the owner, lessee, operator and/or manager of the premises may be liable for prosecution and/or a successful appeal to the Human Rights and Equal Opportunities Commission. You should therefore investigate your liability under that Act. Australian Standard 1428 - Design for Access and Mobility, Parts 2, 3 and 4 may assist in determining compliance with the Disability Discrimination Act 1992 .

END