Mann and City Of Rockingham
[2007] WASAT 37
•12 FEBRUARY 2007
MANN and CITY OF ROCKINGHAM [2007] WASAT 37
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 37 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:268/2006 | 12 OCTOBER 2006 FURTHER SUBISSIONS TO BE FILED BY 21 NOVEMBER 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 11/02/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed The application for planning approval to develop two video viewing booths and two private dance viewing booths is refused | ||
| B | |||
| PDF Version |
| Parties: | KEVIN ROBERT MANN CITY OF ROCKINGHAM |
Catchwords: | Town planning Development Refusal Application for two video viewing booths and two private dance viewing booths Booths to be in combination with adult shop Booths at first floor level Booths located in Waterfront Village zone Local government has adopted Rockingham Beach Waterfront Village Policy Impact on local amenity Objectives of Precinct 2B of policy area Development in precinct to be mixed use to attract people and encourage interaction |
Legislation: | Censorship Act 1996 (WA) City of Rockingham Statement of Planning Policy No. 8.2 "Rockingham Beach Waterfront Village", cl 4.2.2, cl 4.2.3, cl 4.2.4, cl 4.2.4(viii), s 2 City of Rockingham Town Planning Scheme No 1 City of Rockingham Town Planning Scheme No 2, cl 3.2, cl 3.2.4, cl 4.4.1, cl 4.4.7(a), cl 6.6 Classification (Publications, Films and Computer Games) Act 1995 (Cth) Planning and Development Act 2005 (WA), s 214(2) Town Planning and Development Act 1928 (WA), s 10(2) |
Case References: | Kevin Robert Mann and City of Rockingham [2004] WATPAT 143 Mann and City of Rockingham [2005] WASAT 284 Mann and City of Rockingham [2006] WASAT 115 Nil |
Orders | On the application heard before Member James Jordan on 12 October 2006, it is ordered that:,1. The application for review is dismissed.,2. The application for planning approval to develop two video viewing booths and two private dance viewing booths is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MANN and CITY OF ROCKINGHAM [2007] WASAT 37 MEMBER : MR J JORDAN (MEMBER) HEARD : 12 OCTOBER 2006
- FURTHER SUBISSIONS TO BE FILED BY 21 NOVEMBER 2006
- Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning - Development - Refusal - Application for two video viewing booths and two private dance viewing booths - Booths to be in combination with adult shop - Booths at first floor level - Booths located in Waterfront Village zone - Local government has adopted Rockingham Beach Waterfront Village Policy - Impact on local amenity - Objectives of Precinct 2B of policy area - Development in precinct to be mixed use to attract people and encourage interaction
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Legislation:
Censorship Act 1996 (WA)
City of Rockingham Statement of Planning Policy No. 8.2 "Rockingham Beach Waterfront Village", cl 4.2.2, cl 4.2.3, cl 4.2.4, cl 4.2.4(viii), s 2
City of Rockingham Town Planning Scheme No 1
City of Rockingham Town Planning Scheme No 2, cl 3.2, cl 3.2.4, cl 4.4.1, cl 4.4.7(a), cl 6.6
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Planning and Development Act 2005 (WA), s 214(2)
Town Planning and Development Act 1928 (WA), s 10(2)
Result:
The application for review is dismissed
The application for planning approval to develop two video viewing booths and two private dance viewing booths is refused
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr S Allerding (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Kevin Robert Mann and City of Rockingham [2004] WATPAT 143
Mann and City of Rockingham [2005] WASAT 284
Mann and City of Rockingham [2006] WASAT 115
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Summary of Tribunal's decision
1 The City of Rockingham refused an application by Mr Kevin Mann to operate two private dance booths and two video viewing booths in combination with his adult shop on the first floor of No 13 Railway Terrace, Rockingham.
2 The City of Rockingham refused the application because it considered that the booths would be incompatible with the local amenity and with the City of Rockingham's Rockingham Beach Waterfront Village Policy. The objective set out in the policy was to create mixed use developments which attracted people to the area and encouraged them to interact.
3 The Tribunal found that the proposed development would be incompatible with the policy objectives and refused the application.
Introduction
4 The City of Rockingham (respondent) refused a development application lodged by Mr Robert Mann (applicant) for two video viewing booths and two private dance viewing booths on the first floor of No 13 (Lot 77) Railway Terrace, Rockingham. The applicant operates an adult shop on the first floor, which comprises Unit 2 and Unit 4 (subject site). The four booths would be run by the applicant in combination with his adult shop. The subject site is within the Waterfront Village zone of the respondent's Town Planning Scheme No 2 (TPS 2).
Background
5 In August 2004, the applicant was granted planning approval by the then Town Planning Appeal Tribunal to use Unit 4 for the sale of "a range of adult products, some of which were marital aids, toys and novelties, lingerie and shoes and restricted publications": Kevin Robert Mann and City of Rockingham [2004] WATPAT 143. Under the then City of Rockingham Town Planning Scheme No 1 (TPS 1), the use fell within the "shop" use class.
6 In April 2005, the respondent served on the applicant a notice under s 10(2) of the Town Planning and Development Act 1928 (WA) (now s 214(2) Planning and Development Act 2005 (WA)) requiring that the applicant cease the use "private dance booths and peep shows" that had commenced operating within the premises. An application to the
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- State Administrative Tribunal (Tribunal) to have the order set aside was dismissed because the dance booth use was not consistent with the approved "shop" use: Mann and City of Rockingham [2005] WASAT 284.
7 In November 2005, the applicant lodged a further application for development approval to expand the adult shop use from Unit 4 into adjoining Unit 2. The expanded adult shop use was to include two private dance viewing booths and two video viewing booths. An application for review of a deemed refusal was filed with the Tribunal. An adult shop was a use which fell within the use class "restricted premises" as defined under TPS 2 which had, by that date, been gazetted. The principle issue for the Tribunal was whether the dance viewing booths and video viewing booths satisfied the definition of "restricted premises" in TPS 2.
8 The Tribunal determined that the dance viewing booths were not "restricted premises" as defined. This was because the primary use would be as a place of erotic performance, rather than for the exhibition or display of articles used primarily in connection with sexual behaviour or activity, as required under the definition for such premises. The Tribunal also determined that the video viewing booths could not be approved as "restricted premises" as defined, as videos were not "restricted publications" as defined in the Classification (Publications, Films and Computer Games) Act 1995 (Cth) read in conjunction with the Censorship Act 1996 (WA). The Tribunal therefore made orders granting development approval for both units of the premises to be used as an adult shop, but not for the erection, installation or use of private dance viewing booths, dance or performance areas or video booths as part of that use: Mann and City of Rockingham [2006] WASAT 115.
The proposed development
9 The development application refused by the respondent and now before the Tribunal was for planning approval for two private dance viewing booths and associated performance area and two video viewing booths (proposed development). The proposed development would operate in combination with the adult shop on the subject site.
10 The entrance to the subject site is via a stairway at the rear of the building. On a landing at the top of the stairs, a door to the right is to a reception area beyond which are display areas, an office, a storage area and a lavatory. A door straight ahead from the landing opens into a display area with a counter. To one side of the display area would be the two video viewing booths, each with a door, and to the two private dance
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- viewing booths, again each with a door and with an associated common performance area. The booths would be 1.0 metre wide and 1.2 metres deep, and made of wooden panels about 2.0 metres high and a door.
11 The applicant described that in the privacy of the closed video viewing booths, a coin would be inserted into a viewing machine, a video selected, and when two minutes had elapsed, another coin would have to be inserted if the occupant wished to continue viewing the video. In respect of the dance booths, a person would pay a fee, enter the booth and close the door. A curtain would be drawn open across a glass panel and an erotic dance performance would proceed for approximately 10 minutes in a performance area visible from both booths. When the dance was finished, the curtain would be closed. The applicant stressed that the booths could not be visited without a person passing through the adult shop where an employee would be in attendance.
Characterisation of the proposed use
12 Number 13 Railway Terrace, Rockingham is within the Waterfront Village zone of TPS 2. Unit 2 and Unit 4 are together used as an adult shop, a use which falls within the use class of "restricted premises" under the zoning table of TPS 2. To note is that in Mann, the Tribunal found that the proposed booth uses would not be within the range of activities allowed within the adult shop use. The booths applied for would be a use in addition to, and used in combination with, the adult shop use.
13 TPS 2 includes the following definition:
"Cinema/Theatre: means premises where the public may view a motion picture or theatrical production."
14 The applicant argued that the proposed development should be characterised as within the use class "cinema/theatre" of the zoning table, on the basis that films could be viewed in the video viewing booths, and the dance performance put on for the occupants of the two dance viewing booths was a theatrical performance. He said the censorship rating of the films on the video machines was irrelevant, as was the opinion of Council officers of the standard of the dance performance.
15 Mr Stephen Allerding, a planner acting as agent for the respondent, said a theatrical production needed to have all or some of dialogue, a plot, scripts, humour, drama and quality of performance, and submitted the proposed dance activity, or erotic performance as it was also described,
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- had none of these. He submitted that watching an "R" rated video in a booth did not make the use a cinema.
16 The Tribunal is of the view that the emphasis should be on the premises required by the definition, rather than the artistic merit of the performance or the classification of the video to be viewed. In TPS 2 "Premises" is defined to mean "land or buildings". The Tribunal is inclined to the view that, to make sense of the cinema/theatre definition, the ordinary concept of a cinema must be contemplated, and this would include a screen of varying size and an auditorium. That is, a specific area in which the public, in varying numbers depending on floor space, may attend as an audience to together view the motion picture. An enclosed booth, or two such booths, each of 1.2 square metres suitable only for one person, is considered to be too distinctive a use to constitute either premises in itself or the auditorium part of a premise.
17 Having a dedicated area on which there is a performance to be viewed by the paying public might arguably be part of a theatre, but when that audience sits in individual booths and there are only two such booths and intermittent performances depending upon the booths being occupied, the Tribunal is not persuaded that, at this scale, and in this configuration, any threshold is crossed that would cause the use to become a theatre. The Tribunal considers that the proposed development cannot be characterised as a cinema/theatre and nor do the booths together render that part of the building a cinema/theatre.
18 In the alternative, the applicant argued that the booths should be characterised as "public amusement". The use class "public amusement" is defined in TPS 2 as " … premises used for the amusement or entertainment of the public, with or without charge" and the applicant submitted that members of the public choosing to attend would be amused or entertained. The concern of the Tribunal is the difficulty with a booth being necessarily being identified as a premise and the proposed use not being one where members of the public might gather to be entertained. An individual in a booth to the exclusion of all others is considered to be essentially a private form of entertainment as opposed to what would ordinarily be understood as public entertainment.
19 Mr Allerding submitted that the development was properly characterised as a use "not specifically mentioned" as it did not fit into any use class in the zoning table of TPS 2. Insofar as it is contested by the applicant and the respondent, the Tribunal has formed the opinion that the
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- proposed development is most properly characterised as a use "not specifically mentioned".
20 The Tribunal is also of the view that, however it is classified, the same considerations must come to bear on the merit of the proposed use. That is, essentially, the proposed use is to be tested against the objectives and purpose of the zone which find expression in the Scheme provisions and adopted policy.
21 If the Tribunal is not correct and the proposed development can be classified as either cinema/theatre or a public amusement in the zoning table of TPS 2, these uses have the symbol "D" for the Waterfront Village zone. A "D" use is not permitted unless the local government has exercised its discretion by granting planning approval.
22 Clause 6.6 of TPS 2 sets out matters to be considered when considering an application for planning approval. These include:
"(a) The objectives and provisions of the scheme and any other relevant Town Planning Scheme(s) operating within the scheme area, including the metropolitan regions schemes;
…
(f) Any planning policy, strategy or plan adopted by the Council under the provisions of clause 8.9, any heritage policy statement for a designated heritage area adopted under clause 5.4, and any other plan or guideline adopted by the Council under the scheme;
…
(i) The compatibility of the use or development with its settings;
…
(o) The preservation of the amenity of the locality;"
23 If, as the Tribunal considers, the proposed development is a use "not specifically mentioned" in the zoning table, cl 3.2 states:
"If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be
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- determined as falling within the interpretation of one of the Use Classes, the Council may:-
(a) determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted;
(b) determine that the proposed use may be consistent with the objectives and purposes of the particular zone and thereafter follow the advertising procedures of clause 6.3 in considering an application for planning approval; or
(c) determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted."
24 It can be seen that both of cl 6.6 and cl 3.2 refer to the objectives of TPS 2. For the Waterfront Village zone, cl 4.4.1 of TPS 2 states that the objective is:
"To contribute to the development of integrated tourist and recreation-related retail, District Centre retail, office, commercial, residential, civic and cultural facilities generally in accordance with the objectives and principles outlined in the Rockingham Beach Waterfront Village Policy and supported by any other Plan or Policy that the Council and the Commission may adopt from time to time as a guide to future development within the Zone."
25 Clause 4.4.7(a) of TPS 2 states that:
"In assessing applications for planning approval … the Council shall take into account the objective of the Waterfront Village Zone and the principles and policies as set out in the Rockingham Beach Waterfront Village Policy."
26 The Rockingham Beach Waterfront Village Policy (Policy) mentioned in both clauses is the respondent's Statement of Planning Policy No 8.2 as adopted in 2004.
The Waterfront Village Policy
27 The policy area extends about 750 metres from Val Street eastward to Wanliss Street and from Cockburn Sound south about 750 metres to near the Patterson Road/Read Street junction. The policy area includes
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- the Waterfront Village zone and is divided into precincts. Precinct 2A is a 600 metre long section of the parks and recreation reserve between the shore of Cockburn Sound and parallel Rockingham Beach Road. It includes Churchill Park and Bell Park. Precinct 2B is a 60 metre deep strip of properties fronting Rockingham Beach Road overlooking the park toward Cockburn Sound. This precinct also includes, at its western end, the northern end of Railway Terrace on which the subject site is located. Railway Terrace is perpendicular to Cockburn Sound.
28 Precinct 2C, which comprises most of the policy area, is south of Precinct 2B. Kent Street, the main commercial street of the policy area, is near the northern edge of the precinct which extends about 450 metres south into areas of recreation and residential use. At the western end of Kent Street, Precinct 2C includes commercial buildings fronting Railway Terrace adjoining the subject site. Precinct 2D is some distance to the south-east of the subject site.
29 Section 2 of the Policy sets out the objectives. Among these are:
"• To seek the development of an attractive and vibrant urban village which offers a social and lifestyle alternative to the more familiar pattern of suburban development that has occurred outside of the Regional Centre planning envelope.
• To complement the development of the Strategic Regional Centre by retaining and enhancing Rockingham's traditional identity as a beachfront town.
• To ensure that the village is accessible to a wide cross section of local residents and visitors.
• To achieve a contemporary mixed use development pattern to encourage interaction and to provide opportunities for people to live, work and recreate within easy walking distance.
• To secure a mix of commercial activities which complement the attractive beach and waterfront park aspect and which can contribute to an enlivened streetscape environment.
• To encourage infill development, with appropriately scaled buildings and landscape planting, to provide a
- greater sense of structure to village streets and public spaces.
- • To establish an environment which will provide an acceptable degree of amenity and interest on a year round basis."
30 Clause 4.2.2 of the Policy says of Precinct 2B, where the subject site is located:
"The Precinct should aim to achieve a lively, mixed use character with an emphasis on landuses (sic) which will generate interest and pedestrian activity along the streetfront promenade."
31 Clause 4.2.4 sets out development requirements within Precinct 2B, which include:
"(i) The Precinct is to be developed as a quality, mixed use area conforming to a high standard, waterfront townscape discipline.
…
(viii) Buildings shall be designed to achieve an appropriate use profile with an active, ground floor street frontage incorporating festive, convenience or recreation related retail, entertainment, cafes, restaurants and similar uses. Short-stay accommodation, multiple dwellings, offices, function rooms, etc are the preferred upper floor uses."
32 Clause 4.2.3 lists preferred uses in Precinct 2B as: tourist and water recreation related retailing; entertainment; eating and drinking places; short-stay accommodation; residential; offices and commercial; recreation; multiple dwellings.
The refusal
33 The respondent's refusal of the application stated:
"The presence of the booths:
- are (sic) not in keeping with the amenity that has been, and will continue to be, established within the Rockingham Beach precinct; and
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- - are (sic) incompatible with other uses that are existing and promoted within the area under Planning Policy No. 8.2 Rockingham Beach Waterfront Village."
34 The respondent is seen to have two concerns. One is the proposed development relative to the existing amenity and existing uses, and the other is compatibility of the proposed development with future uses to be promoted under the Policy and future amenity of the precinct.
Existing uses and established local amenity
35 TPS 2 defines amenity to mean " … all those factors which combine to form the character of an area and include the present and likely future amenity". The respondent's refusal referred first to the amenity that "has been established".
36 Railway Terrace is 40 metres wide with two carriageways divided in the middle by a parking area. The applicant referred to his adult shop and a second adult shop on the ground floor of the next door building. He also pointed to the strip club, which included erotic dancing, that had been over the road for 10 years, and the nightclub above it, which had been there for 26 years. Other uses identified in the immediate locality were a fish and chip shop and a real estate agent on the ground floor of 13 Railway Terrace, other fast food shops, cafes, a tattoo parlour, a liquor store and offices. It was the applicant's submission that the proposed use would have no impact on the established amenity of the locality and was consistent with existing uses, particularly the adult only uses.
37 Councillor Richard Smith appeared as a witness for the respondent. Councillor Smith acknowledged the existing range of uses but said, in his view, the use, if allowed, added nothing to the range of activities traditionally enjoyed at Rockingham Beach and would affect the existing amenity of the locality for the wider community.
38 Mr Peter Ricci, a town planner of the respondent, pointed out that the neighbouring adult shop, strip club, nightclub and tattoo parlour were in Precinct 2C, not Precinct 2B, of the subject site. He said the presence of those uses should be discounted as there was a different emphasis on the character of each precinct.
39 The Tribunal noted that in Railway Terrace in the vicinity of the subject site, buildings of the two precincts are neighbours facing the same street, and so all buildings and uses together form the existing local character. It is considered the presence of the precinct boundary does not
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- influence the existing character that would be experienced by people visiting the street. Presence of the precinct boundary might well have an influence on future character because of the different emphasis in the objectives for Precinct 2B and Precinct 2C, but this has not yet occurred.
40 The proposed development would be entirely within the existing walls and so there would be no change to the external appearance of the building. As there would only be four booths and a limited clientele, changes to pedestrian movement would be difficult to detect. There was little evidence other than supposition, but it would appear that those with no knowledge of the use would be unlikely to perceive any change in the local character were this use allowed to proceed. Those who knew of the booths and had an adverse opinion of them might perceive a negative shift in local character.
41 Given the character established by existing nearby uses, the absence of any change in the outward appearance of the building and the limited number of people that would be attracted to or have knowledge of the use, the Tribunal has concluded that the impact the proposed use would have on the existing amenity and established uses, if any at all, would be so limited as to be acceptable.
42 That conclusion alone, however, is not determinative of the matter. It is also necessary to test the proposal against the future character and amenity the objectives of TPS 2 and the Policy seek to create.
Planning objectives and the future character of the policy area
43 At cl 4.4.1 of TPS 2 cited above, the objective of the Waterfront Village zone is to achieve development generally in accordance with the objectives and principles of the Policy. Future character will be established by the extent that those planning goals are achieved.
44 The applicant argued that Railway Terrace and the subject site were at the western edge of Precinct 2B and should be treated differently from Rockingham Beach Road. The respondent submitted that the precinct should be treated as a whole. The Tribunal noted that Railway Terrace is a direct route from beyond the policy area to the foreshore for pedestrians. Pedestrian movement from car parks to the rear of subject site to the foreshore parks and the beach are, in part, along this section of Railway Terrace. From the submissions, it can be concluded that Railway Terrace will, over time, be integral to the future character of Precinct 2B rather than simply peripheral to it.
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45 Both Mr Ricci and Cr Smith submitted that the Policy measures for Precinct 2B encouraged mixed uses that would cater for short-stay and multiple dwelling residents and attract pedestrians from a broad crosssection of the community by creating a lively and attractive environment which would encourage browsing, shopping, food and drink consumption, and general interaction. Mr Ricci said the proposed use was not considered to integrate well into the range of uses anticipated in the zone because it would not be attractive to the wider community and local residents, and would not help generate the interaction being sought. Councillor Smith expressed his view that uses should cater to the community as a whole, and particularly the extended families that in the past visited Rockingham Beach for entertainment and leisure.
46 The Tribunal considers that uses accessible to "a wide cross section of local residents and visitors" does not mean that all uses should be required to cater to all members of the community. Particular uses will necessarily be directed to particular sectors of the community, some licensed premises for example being for adults only and some retail outlets directed at a particular demographic. Uses for different groups within the community could still conceivably together contribute to an enlivened mixed use environment.
47 The applicant said that he was the largest lessee of property in the vicinity and had no redevelopment plans. He would continue to operate the strip club and nightclub for the 12 years of his leases and the adult shop for another seven years. He argued that the character of this section of Railway Terrace would remain constant at least for this period, and his proposed use would be consistent with that character.
48 Mr Allerding said the planning for the Precinct was long-term. There was no agreement between the parties on what constituted mediumterm and long-term and what planning period should influence decisions made on planning applications. The Tribunal noted that the Policy has been adopted, and whether it takes seven years or 12 years or longer to implement, it is the document to be seriously considered in determining development applications.
49 To achieve the planning objectives of TPS 2 and the Policy, orderly planning suggests that development commencing now, not development that might commence at some time in the future, be directed to achieving those goals. The applicant said that developments consistent with Policy objectives that were occurring were mostly multiple storey residential developments with mixed use ground floor use, and the closest of these
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- was 200 metres away. The scale of the development should not bear greatly on the issue. Whether large scale mixed use developments in Rockingham Beach Road or smaller developments in Railway Terrace, all applications should bear the same degree of scrutiny in respect to the planning goals for the Precinct.
50 Clause 4.2.4(viii) of the Policy refers to buildings being designed to achieve "an appropriate use profile". No building is being designed in this matter, but that subclause and the preceding cl 4.2.3 which lists preferred uses, provide some guide to the type of uses that might advance the objectives for Precinct 2B.
51 The proposed development is at first floor level where uses cannot generate direct interaction with the street. When asked about this, Mr Ricci referred to the desirability of first floor uses generating interest and providing passive surveillance of the street. He said upper floor uses should attract pedestrians who will interact with and use other facilities. He described the proposed development as unacceptable as it provided neither of these.
52 From the evidence, the Tribunal has found that Precinct 2B has been planned to have a future character of mixed uses that would be attractive to the community, either as a whole or in part. The uses desired for Precinct 2B under the Policy are identified as those that would be an attraction to persons who would, as a group or as individuals, attend and, if they chose to do so, interact with others participating in the use.
53 The question then is whether the proposed use would be consistent with achieving the planning objectives for the zone as required by TPS 2.
Conclusion
54 As set out above, the proposed booths would be so located that there would be no change to the external appearance of the building. The Tribunal considers that, were the proposed development to proceed, there would no readily discernible impact on the existing character or amenity of the locality.
55 TPS 2 requires, however, particularly at cl 4.4.1 and cl 4.4.7(a), that applications for planning approval specifically take into account the objectives of the Waterfront Village zone and the Policy. As submitted by the applicant, a policy is not prescriptive but the Tribunal considers the Policy is to be given considerable weight in this matter because TPS 2 specifically identifies the Policy as a consideration when considering
(Page 15)
- planning applications in the Waterfront Village zone. No special circumstances were identified that would require less weight being afforded the Policy.
56 The proposed use and the adult shop co-locating would not create a new "hybrid" use. They would remain separate uses under TPS 2. The development applied for must therefore be considered on its own merits as a separate use. The test is whether the proposed use is compatible with achieving the desired future character of Precinct 2B as identified in the Policy. That character is generally described as one of mixed uses that are vibrant and attractive to the whole or part of the community. The uses desired by the Policy appear to be those that would attract groups of persons or individuals seeking to interact with or be among others similarly taking advantage of the local environment being created.
57 The proposed use comprises two video viewing booths and two private dance viewing booths. By design these are strictly for individuals to the exclusion of all others. They are directed to adults only, but not to adults as a group, simply as individuals. If a section of the floor space of the adult shop is to be changed to a different use, it is considered the new use should be more compatible with the objectives of the precinct rather than less, as would occur with the proposed development. The Tribunal, having been required by TPS 2 to weigh the proposed development against the objectives of the Waterfront Village zone and Precinct 2B, has formed the view that the use proposed would be inconsistent with orderly planning, as it would not be compatible with achieving those objectives.
58 It has therefore been decided to dismiss the application for review and refuse the application for planning approval of two video viewing booths and two private dance viewing booths.
Orders
1. The application for review is dismissed.
2. The application for planning approval to develop two video viewing booths and two private dance viewing booths is refused.
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- I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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