MANN and CITY OF ROCKINGHAM
[2006] WASAT 115
•10 MAY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MANN and CITY OF ROCKINGHAM [2006] WASAT 115
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 4 MAY 2006
DELIVERED : 10 MAY 2006
FILE NO/S: DR 51 of 2006
BETWEEN: KEVIN ROBERT MANN
Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Town planning – Development application – Change of use – Adult shop with two private dance viewing booths and two video viewing booths – Characterisation – Whether private dance viewing booths and video viewing booths are "restricted premises" – Whether private dance viewing booths used primarily for the exhibition or display of articles which are used or intended to be used primarily in or connection with any form of sexual behaviour or activity – Whether video viewing booths used primarily for the exhibition or display of restricted publications – Conditions – Whether condition which requires compliance with planning scheme, specified legislation and "all other relevant Acts, Regulations and By-Laws" is certain and appropriate – Words and phrases: "display", "exhibition", "restricted premises"
Legislation:
Censorship Act 1996 (WA), s 3
City of Rockingham Town Planning Scheme No 2, cl 1.10.1(b), cl 6.8(b), cl 6.10, cl 6.10.1, Sch 1
Classification (Publications, Films and Computer Games) Act 1995 (Cth), s 5
Planning and Development Act 2005 (WA), s 238(3), s 238(4), s 252(1)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
Application for review upheld in part
Development approval granted for adult shop
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr R Smith (as agent)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
City of Unley v Claude Neon Ltd & Anor (1983) 32 SASR 329
Hasan v Moreland City Council [2005] VCAT 1931
Mann and City of Rockingham [2005] WASAT 284
Mann v City of Rockingham [2004] WATPAT 143
Randall and Town of Vincent [2005] WASAT 147
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Mr Mann sought review of the deemed refusal of a development application for the expansion of an adult shop and the installation and use of private dance viewing booths and video viewing booths. The principal issue was whether the dance booths and video booths satisfied the definition of "restricted premises" in the relevant scheme.
The Tribunal determined that the dance booths were not "restricted premises" as the primary use of the relevant part of the premises would be as a place of erotic performance, rather than for the exhibition or display of articles which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity. The Tribunal determined that the video booths were not "restricted premises" as videos were not restricted "publications".
The Tribunal also considered that a proposed condition of approval, which required compliance with identified and unidentified legislature provisions, could not be lawfully imposed and should not be imposed.
Development approval for the adult shop was granted subject to conditions.
Introduction
These proceedings involve an application brought by Mr Kevin Mann pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (see now Planning and Development Act 2005 (WA) (PD Act) s 252(1)) and cl 6.10 of the City of Rockingham Town Planning Scheme No 2 (TPS 2) for review of the City of Rockingham's deemed refusal of a development application. The development application is for approval to a change of use of Unit 3, Lot 77 (No 13) Railway Terrace, Rockingham to restricted premises and the installation and use of two private dance viewing booths and two video viewing booths in Unit 4. Units 3 and 4 adjoin one another and are located on the first floor of the building.
Development approval for the use of Unit 4 as an adult shop selling a range of adult products including marital aids, toys and novelties, lingerie, shoes and restricted publications was granted by the Town Planning Appeal Tribunal in August 2004: see Mann v City of Rockingham [2004] WATPAT 143. Mr Mann commenced the approved use as an adult shop in November 2004 under the name "Zeldas Adult Shop". The current development application proposes expansion of the adult shop to occupy the whole of the first floor of the building as well as the other elements referred to.
Mr Mann lodged the development application with the City on 2 November 2005. On 20 December 2005, the City resolved to defer consideration of the application until after the determination by the Magistrates Court of charges that Mr Mann has carried out development, namely private dance viewing booths, in Unit 4, without prior development approval. Pursuant to cl 6.10.1 of TPS 2, the development application was deemed to have been refused by the City on 2 January 2006. Mr Mann subsequently sought review of the deemed refusal.
Although, in its Statement of Issues, Facts and Contentions, the City contended that the application for review should be adjourned until the determination of the Magistrates Court proceedings, at the hearing, Cr Richard Smith, who represented the City, indicated that the City sought a prompt determination from the Tribunal as to whether the proposed dance viewing booths and video viewing booths constitute "restricted premises" within the meaning of TPS 2. Councillor Smith indicated that the City does not contest the application to expand the adult shop and does not wish to raise any merit issue in relation to any part of the proposed development. In particular, the City accepts that, in light of the findings made by the Town Planning Appeal Tribunal, the site is suitable for use as an adult shop and that use is acceptable in the context of the locality, subject to conditions in relation to hours of operation.
As the proceedings involve a development application to commence a development of a value of less than $250 000, s 238(3) of the PD Act requires that the Tribunal is to be constituted by an ordinary member sitting alone. However, s 238(3) does not apply in this case as the President has formed the opinion under s 238(4) that the application is likely to raise complex or significant planning issues. The final hearing of the proceedings was, therefore, listed before myself.
Details of proposed development
The development application contains only limited details of the proposed dance and video booths. A rough sketch floor plan which forms part of the application shows the location of two video booths and two private dance booths in Unit 4.
In the course of dismissing Mr Mann's application for review of a direction given to him in April 2005 by the City, which alleged that he had carried out development, namely "private dance booths and peep shows", in Unit 4, without having obtained prior development approval under TPS 2, and which required him to stop and not recommence the development (see Mann and City of Rockingham [2005] WASAT 284), the Tribunal summarised the evidence in relation to observations of activities at the premises, at [9], as follows:
"In February 2005, two officers attended the premises and saw two booths, each with a door and on the opposite wall a curtained window. They paid the required fee, each entered an individual booth and closed the door behind them. The curtain on the window was then drawn to reveal a small performance area visible to both of them, on which was a couch. A female then put on an erotic performance involving movement in which she disrobed and made use of a sex aid. The performance lasted about fifteen minutes after which the curtain was drawn. The officers then opened the doors of their respective booths, emerged and left the premises."
When I referred Mr Mann to this description of activities at the premises, he did not contest that this accurately describes the proposed dance booths component of the development. He said that the proposal does not involve "striptease booths", although "the girl will be making a display of a sexual nature" and "the show would be and could be seen as erotic".
During the course of the hearing, Mr Mann explained that the proposed video booths would be coin-operated and would offer a selection of approximately 400 videos which he indicated are publications that are classified as restricted under the Censorship Act 1996 (WA) (Censorship Act).
Issue for determination
The principal issue for determination is whether the private dance booths and video viewing booths satisfy the definition of the term "restricted premises" in TPS 2. Mr Mann contends that these elements of the proposed development fall within the words of the definition, and that they do not fall within the meaning of any other land use contemplated by TPS 2 which is capable of development approval in the subject "Waterfront Village" zone under that instrument.
The hearing proceeded on the common basis that, if the Tribunal characterises the whole of the proposed development as "restricted premises", development approval should be granted subject to conditions, and that, if the Tribunal considers that part of the proposed development does not constitute "restricted premises", development approval should be granted subject to conditions, including a condition excluding that element or elements from the approval. Clause 6.8(b) of TPS 2 expressly provides that planning approval may be granted for a use or development for which approval is sought "except for a specified part or aspect of that use or development".
The term "restricted premises" is defined by cl 1.10.1(b) and Sch 1 of TPS 2 to mean:
"Any premises, part or parts thereof, used or designed to be used primarily for the sale by retail or wholesale, or the offer for hire, loan or exchange, or the exhibition, display or delivery of:
(a)publications that are classified as restricted under the Censorship Act 1996;
(b)materials, compounds, preparations or articles which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity."
The parties' contentions
Mr Mann contends that the proposed dance viewing booths fall within the definition of the term "restricted premises", "as they are specifically designed for the exhibition of materials and articles associated with any form of sexual behaviour". He submits that, as the garments the performer would wear and as the sexual aids she would use are available for sale in the adult shop, the dance booths and associated performance area would constitute "any premises … or parts thereof, used or designed to be used primarily for … the exhibition [or] display … of … articles which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity".
Mr Mann submits that the video booths would be premises "used or designed to be used primarily for … the exhibition … of … publications that are classified as restricted under the Censorship Act 1996".
Councillor Smith contends that the proposed dance booth use involves "a performance" or "erotic dancing". In his submission, the proposed use is "clearly more than a display of lingerie".
Having heard Mr Mann's description of the operation of the video booths, Cr Smith conceded that this aspect of the development would constitute "the exhibition … of … publications that are classified as restricted" and, therefore, "restricted premises".
Do the private dance viewing booths and the video viewing booths constitute "restricted premises"?
The noun "exhibition" is relevantly defined in The Macquarie Dictionary (Macquarie, 4th Edition, 2005) as "an exhibiting, showing, or presenting to view" and "a public show or display": at page 495. The verb "display" is relevantly defined as "to show; exhibit; make visible", "to show ostentatiously" and "the act of displaying; exhibition; show": at 413.
The proposed dance viewing booths and associated performance area would be used for the "exhibiting, showing, or presenting to view" and for "a public show or display" of articles, namely lingerie, shoes and adult products, which are used or intended to be used primarily in or in connection with any form of sexual behaviour or activity.
However, it could not reasonably be said that the dance booths and associated performance area would be used primarily for the exhibition or display of these articles. The primary use of the relevant part of the premises would be as a place of erotic performance. The exhibition or display of clothes and adult products would be, at its highest, a secondary use of that part of the premises, and would arguably be merely incidental or ancillary to the primary use as a place of erotic performance.
Councillor Smith's concession that the video booths satisfy the definition of "restricted premises" in TPS 2 was made on the understanding that videos are relevantly "publications" that are classified as restricted under the Censorship Act. The video booths would certainly be used as the "exhibiting, showing, or presenting to view" of videos. However, the term "publication" is defined in s 3 of the Censorship Act as having the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 (Cth), namely, "any written or pictorial matter, but does not include … a film … ", and the term "film" is defined to include a "video tape and video disc": s 5. Therefore, videos are not "publications that are classified as restricted" under the Censorship Act.
It follows that neither the dance booths nor the video booths constitute "restricted premises".
Conclusion
The Tribunal has determined that the proposed private dance viewing booths and associated performance area do not constitute "restricted premises" within the meaning of TPS 2. Although this element of the proposed development would be used for the exhibition or display of articles used or intended to be used primarily in or in connection with sexual behaviour or activity, it could not be reasonably said that it would be "used primarily" for that purpose. Rather, the primary use of the dance booths and performance area would be as a place of erotic performance.
The Tribunal has determined that the proposed video booths do not fall within the definition of "restricted premises" as they do not involve the exhibition of restricted "publications".
As the City does not contest the appropriateness of the expansion of the adult shop to occupy the whole of the first floor of the building, it follows that the application for review should be upheld in part and development approval granted subject to any appropriate conditions, including a condition which excludes dance booths, dance or performance areas, and video booths from the consent.
Conditions
The City seeks the imposition of the following condition which Cr Smith indicates is a "standard condition" imposed by the City:
"Compliance with the provisions of the City of Rockingham's Town Planning Scheme No. 2, Health Regulations, Building Regulations 1989, and Fire & Emergency Services Authority of WA Regulations and all other relevant Acts, Regulations and By-Laws. (NB. This Planning Approval does not confer Building or Health Approval which may require separate application(s) and approval(s). It is the responsibility of the landowner(s) to make separate application as required)."
The proposed condition cannot be lawfully imposed, as its meaning, scope and effect is uncertain. What particular provision or provisions of TPS 2 and the named Regulations must be complied with? What are the "other relevant Acts, Regulations and ByLaws"? How is relevance determined? As Wells J held in City of Unley v Claude Neon Ltd & Anor (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68:
"A condition … annexed [to a development approval] ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect." (Applied by the Tribunal in Randall and Town of Vincent [2005] WASAT 147 at [16].)
Moreover, as the Tribunal observed in Randall and Town of Vincent at [19], "given that use of land otherwise than in compliance with any condition imposed on the grant of development approval constitutes a criminal offence … it is essential that conditions of development approval are stated with particularity so that those who act on them do not inadvertently commit an offence".
Even if the condition were to specify the particular provision or provisions with which it requires compliance, its imposition would be inappropriate for several reasons.
First, insofar as it refers to TPS 2, the consent authority must be satisfied that the proposed development is capable of approval and is appropriately the subject of approval under the applicable planning instrument before the grant of consent.
Second, to adapt the words of Morris J, the President of the Victorian Civil and Administrative Tribunal, and Rae M in Hasan v Moreland City Council [2005] VCAT 1931 at [20], "if the planning system is to be used to impose the same requirements as those imposed by the [health, building and fire] control [systems], one may ask: what is the point?". It is generally inappropriate to impose conditions which have no utility. Insofar as the condition seeks to impose a requirement of compliance with otherwiseapplicable legislative provisions, it appears to have no utility.
Third, it is generally inappropriate to convert a non-compliance with an otherwiseapplicable legislative obligation into a breach of planning law. To do so might well involve altering the penalty which was considered appropriate by the legislature.
Fourth, it appears from the words in parentheses that the intent of the condition is to advise the developer that separate health and building approvals may be required. It is generally inappropriate for conditions to be imposed which are merely declaratory or advisory of other legal obligations.
In responding to the City's draft conditions, Mr Mann proposed a condition that trading hours be permitted from 9 am to 9 pm Monday to Saturday. This involves an extension of trading hours from those approved by the Town Planning Appeal Tribunal, namely, 9 am to 6 pm Monday, Tuesday, Wednesday, Friday and Saturday and 9 am to 9 pm Thursday.
Mr Mann submits that an increase in trading hours is appropriate given that trading on Thursday to 9 pm has not given rise to any complaint over the previous 18 months. Although the City acknowledges that there has not been any complaint in relation to the operation of the premises since the grant of development approval, Cr Smith notes that the extension of hours might have detrimental town planning implications in consequence of the operation of two nightclubs across the road from 8 pm. He also notes that the other adult shop in the vicinity of the site has approved trading hours which correspond to the existing approved trading hours of Mr Mann's shop.
The development application does not specify the proposed hours of operation. The proposal to increase hours was only raised in a week before the hearing and the City has not had an opportunity to properly address this issue. I accept that there might be town planning implications associated with the interrelation between two nearby nightclubs and the proposed development. I am unable, on the evidence, to come to the correct and preferable decision in relation to this issue. Furthermore, although trading on Thursday to 9 pm over the past 18 months has not given rise to any complaint, the proposed development involves an increase in floor space. It will be open to the applicant to make an application to the City, with the benefit of experience in relation to the operation of the proposed development, for an extension of its hours. This will enable the City to properly consider the implications of the increased hours.
Orders
The Tribunal makes the following orders:
1.The application for review is upheld in part.
2.Development approval for an adult shop selling adult products including marital aids, toys and novelties, lingerie, shoes and restricted publications at Units 3 and 4, first floor, Lot 77 (No 13) Railway Terrace, Rockingham is approved subject to the following conditions:
(i)Operating hours are limited to 9 am to 6 pm on Monday, Tuesday, Wednesday, Friday and Saturday, and 9 am to 9 pm on Thursday, with no trading on Sunday.
(ii)This approval does not include signage visible from outside the building.
(iii)This approval does not include the erection, installation or use of private dance viewing booths, dance or performance areas, or video booths.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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