Mann and City Of Rockingham
[2005] WASAT 284
•27 OCTOBER 2005
MANN and CITY OF ROCKINGHAM [2005] WASAT 284
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 284 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:440/2005 | 27 JULY 2005 | |
| Coram: | MR J JORDAN (MEMBER) | 27/10/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application to have set aside the order issued by the City of Rockingham under s 10(2) of the Town Planning and Development Act 1928 (WA) is dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEVIN ROBERT MANN CITY OF ROCKINGHAM |
Catchwords: | Section 10(2) notice Approved adult shop Additional use of private dance booths Additional use not mentioned in original approval Use approved as shop "Restricted premises" use not in Town Planning Scheme No 1 Additional use not an extension of approved use Application for approval required for the additional use |
Legislation: | Censorship Act 1966 (WA) Town Planning and Development Act 1928 (WA), s 10(2) Town Planning Regulations 1967 |
Case References: | Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 Kevin Robert Mann and City of Rockingham [2004] WATPAT 143 West Savoy Theatres v City of Perth [9 SR (WA) 1993] Nil |
Orders | The application to have set aside the order issued by the City of Rockingham under s 10(2) of the Town Planning and Development Act 1928 (WA) is dismissed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MANN and CITY OF ROCKINGHAM [2005] WASAT 284 MEMBER : MR J JORDAN (MEMBER) HEARD : 27 JULY 2005 DELIVERED : 27 OCTOBER 2005 FILE NO/S : DR 440 of 2005 BETWEEN : KEVIN ROBERT MANN
- Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Section 10(2) notice Approved adult shop Additional use of private dance booths Additional use not mentioned in original approval Use approved as shop "Restricted premises" use not in Town Planning Scheme No 1 Additional use not an extension of approved use Application for approval required for the additional use
Legislation:
Censorship Act 1966 (WA)
Town Planning and Development Act 1928 (WA), s 10(2)
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Town Planning Regulations 1967
Result:
The application to have set aside the order issued by the City of Rockingham under s 10(2) of the Town Planning and Development Act 1928 (WA) is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr Kevin Robert Mann
Respondent : Mr Craig Slarke
Solicitors:
Applicant : Self-represented
Respondent : McLeods
Case(s) referred to in decision(s):
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Kevin Robert Mann and City of Rockingham [2004] WATPAT 143
West Savoy Theatres v City of Perth [9 SR (WA) 1993]
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 In August 2004, the former Town Planning Appeal Tribunal approved on appeal an application by Mr Kevin Mann for an adult shop in Unit 4 upstairs at No 13 Railway Terrace, Rockingham. The approved use involves the selling of a range of products including marital aids, toys and novelties, lingerie, shoes and restricted publications.
2 The matter was considered as a "shop" because the City of Rockingham Town Planning Scheme No 1 (TPS 1) in place at that time did not include the use class "Restricted Premises".
3 It came to the Council's attention that "private dance booths" were operating on the premises. The Council then served on Mr Mann a notice under s 10(2) of the Town Planning and Development Act 2004 (WA) (Act) ordering that the activity cease as it was in conflict with the planning approval that had been issued and so was in conflict with Town Planning Scheme No 2 (TPS 2), now in place.
4 Mr Mann argued that private dance booths are usually associated with an adult shop and it should have been expected by the Council and the Tribunal that such an activity would take place. Mr Mann also argued that under TPS 2 now in place, an adult shop would be classed as "Restricted Premises", so uses allowed in this use class, which he says includes private dance booths, can be allowed in his adult shop. He believes his private dance booths are not, therefore, in contravention of TPS 2 and should be allowed to continue.
5 This Tribunal has found that private dance booths are not an inherent part of a shop approved as an adult shop. It has also found that, simply because the approved use would fit within the use class "Restricted Premises" were it applied for today, all the other uses that might fit within this use class should not be allowed on the premises as a matter of course.
6 The Tribunal concluded that "private dance booths" require planning approval and this has not been obtained. The finding of the Tribunal is that the order issued by the respondent to cease the use should stand.
Background
7 In August 2003, Kevin Robert Mann (applicant) applied to the City of Rockingham (respondent) for planning approval to use Unit 4, upstairs at No 13 Railway Terrace, Rockingham (premises) as an adult shop. For
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- sale would be "a range of adult products, some of which will include marital aids, toys and novelties, lingerie and shoes and restricted publications". Restricted publications are those sold in accordance with the requirements of the Censorship Act 1996 (WA). Also said in the applicant's covering letter of 19 August 2003 was "I require premises where I can also store stock as I intend to continue wholesaling from the premises." The respondent advertised the proposed use as "proposed Restricted Premises (adult shop)" and subsequently refused the application.
8 The applicant appealed to the then Town Planning Appeal Tribunal (TPAT) against the refusal: Kevin Robert Mann and City of Rockingham [2004] WATPAT 143. In his decision of 10 August 2004, the Tribunal member found that under the respondent's Town Planning Scheme No 1 (TPS 1), which was in force at that time, the land was zoned "Business Local" and that a "shop" was a "P" (permitted) use in that zone. He found that TPS 1 made no reference to the use class "Restricted Premises" and determined that the development was a "shop" as defined in the Town Planning Regulations 1967 (regulations), which were to be read in conjunction with TPS 1. The member then examined the planning effect of a "shop" operating as an adult shop and found that it could reasonably coexist with other uses in the area and that there was nothing to suggest that approval would be contrary to orderly and proper planning. The appeal was allowed subject to conditions associated with operating hours and signage.
9 In late 2004, it was brought to the respondent's attention that "private dance booths" were being advertised for the premises. 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.
The notice served by the respondent
10 On 13 April 2005, the respondent served on the applicant a notice under s 10(2) of the Act. The notice set out that the use of the land for "private dance booths and peep shows" had been:
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- " … carried out without the approval of the City of Rockingham pursuant to TPS2 having first been sought and obtained and is thereby in contravention of section 6.1 of TPS2."
11 The notice continued:
"You are hereby immediately required to stop and not recommence the development."
12 The application for review is against this order.
Planning controls
13 The respondent's TPS 2 was gazetted on 19 November 2004. Under cl 1.7 of TPS 2, the City's TPS 1 was repealed. In the zoning table of TPS 2, there is included the use class "Restricted Premises" which is defined as:
"means 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."
14 Also defined in TPS 2 is the use class "shop" which is defined as:
"means premises used to sell goods by retail, hire goods, or provide services of a personal nature (including a hairdresser or beauty therapist) but does not include a showroom or fast food outlet."
15 The land on which the premises is located is zoned "Waterfront Village" in TPS 2. "Shop" and "Restricted Premises" have a "D" designation in the zoning table, which means that the use is not permitted unless the local government exercises its discretion and grants planning consent.
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16 The definition of "shop" in TPS 2 is identical to that which was incorporated into TPS 1 by reference to the regulations.
17 Clause 6.1.1 of TPS 2 reads:
"In order to give full effect to the provisions and objectives of this Scheme, all development including a change in use of land, except as otherwise provided, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this part."
18 The TPD Act at s 10(2) states:
"If a development, or any part of a development, is undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the scheme."
19 Section 10AA of the TPD Act states:
"A person to whom a direction is given under section 10 may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the decision to give the direction."
Discussion
20 There is no dispute between the parties that two private dance booths had been in use in the premises. There is no dispute that the activity the subject of the order was not "a service of a personal nature", as included in the definition of "shop", because the form of the booths means there can be no contact of any type between the persons in the booths and the staff member.
21 There was no dispute that the shop use approved was an adult shop, which is colloquially referred to as a "sex shop". The applicant produced his letter of 19 August 2003 to the respondent, which accompanied the initial application, arguing that the description of the proposed use did not exclude any of the activities found in adult shops not actually mentioned in the letter. The applicant went on argue that private dance booths are an inherent part of an adult shop and both the former Tribunal and the
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- respondent should have known that the approved adult shop would, at some point, include private dance booths. In support of this, the respondent said that at least seven adult shops in Perth and Northbridge included private dance booths. The circumstances of the approval of these other premises were not provided.
22 In West Savoy Theatres v City of Perth[9 SR (WA) 1993] the then Town Planning Appeal Tribunal had before it an application for a use described as a "peepshow" but what was essentially the same as the proposed development, in that it entailed private viewing booths and a common performance area where erotic acts were performed. The merits of the peepshow use were considered separate from an adult bookshop and an adult cinema, not merely as an extension of these uses, which had been operated by the same operator in the premises with lawful approvals since about 1980.
23 In the subject review, this Tribunal has formed the view that the proposed development must also be treated as a use separate from a shop used as an adult shop. The applicant has pointed out that both the approved and proposed uses in the premises are associated with sexual activity. While it might make good commercial sense to have these two activities occurring in the same premises, this does not, in the Tribunal's view, make one use simply an extension of the other. This Tribunal is of the view that if a "private dance booth" use were to be in premises of its own, this would not be a shop use.
24 In Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 Full Court of the Supreme Court of Western Australia, Steytler J said:
"56 There was no objection to the classification of the 'shop' area as such and nor was there any objection to the classification of the service station area as such if the fast food sales area was not lumped in with it. Moreover there could not, I think, have been any objection to the fast foods sales area being classified as giving rise to a 'shop' use if it had operated from separate, but adjacent premises. The sole problem consequently centred around the fact that the fast food outlet shared a room and cashier's desk with the area used to operate the service station. That fact cannot, in my opinion, have the result that the fast food sales use which, had it been carried out from separate premises,
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- would have been classified as a 'shop' use should no longer be classified as such. Nor can it have the result that the service station use has been so altered as to mean that it should no longer be categorised as such. The fact that the fast food outlet and service station share a cashier does nothing to alter the character of the fast food outlet as that of a shop or that of the service station as a service station. Nor does the fact that fast food is sold from a site used also for a service station alter the character of either the fast food outlet or the service station. There remain, in my opinion, two distinct uses, each maintaining its essential characteristics and neither of which subserves the other (cf Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217).
- 57 Also, the fact that the definition of a shop excludes a service station has only the purpose of narrowing the very wide definition of a 'shop' and was not intended to preclude that use being conducted as such on the same site as a service station where no hybrid and distinct use results."
25 Introducing private dance booths into premises used as a shop, albeit an adult shop, does not change the character of this additional use. Put another way, the introduction of the proposed use into the "shop" approved under TPS 1, will result in the two uses coexisting in the same premises. That is, an adult shop and "private dance booths", as was considered to be the situation in West Savoy Theatres v City of Perth (supra). The introduction of the new use is therefore considered to require an application for planning approval under cl 6.1.1 of TPS 2.
26 The applicant had a further argument in support of allowing the proposed use to continue. This arises from there being no dispute between the parties that, were the adult shop use approved by the former Tribunal applied for today, it would fall within the use class "Restricted Premises".
27 The respondent pointed to his letter of 19 August 2003 which mentioned wholesaling, and to the application sketch which included a "showroom", both of which are relevant to Restricted Premises. He also pointed to the respondent identifying the use proposed as "Restricted Premises" when it processed the application in November 2003.
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28 It is the applicant's submission that given the use he actually intended, the respondent’s initial characterisation of it and the way it would today be characterised, there should be allowed on the premises all those things that are done in Restricted Premises. In his view, the use must be interpreted widely and not be constrained by the definition of "shop" in TPS 1.
29 The applicant further argued that the private dance booths are consistent with the definition of "Restricted Premises", as the performance witnessed from the dance booths was an exhibition of items for sale in the premises. He said there is no regulation that prevented charging for this form of display and exhibition of goods.
30 It was the evidence of the respondent that when the officers attended the premises, no demonstration of goods was asked for and there was no information given that the goods in the "dance" witnessed from the private booths were available for purchase.
31 On examining the evidence, the Tribunal is persuaded by the submission of Mr Slarke that it is disingenuous to argue that the performance witnessed from the booths is merely an exhibition of the materials, compounds, preparations or articles for sale in the approved shop.
32 The Tribunal does not accept that every use that would fit within the use class "Restricted Premises" must be allowed to commence as a matter of course. At cl 3.2.3 of TPS 2 it states:
"Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from any other Use Class which by its more general terms might otherwise include such a particular use."
33 A use approved as a "shop" under TPS 1 cannot now look to other use classes under TPS 2 and "borrow" uses from that other class simply because the two use classes have in common the retailing of goods, albeit they might be similar goods.
34 It might be that "private dance booths" is a use the respondent might choose to characterise as fitting within the use class "Restricted Premises" under TPS 2 were an application for planning approval submitted. It also might be that such a use alone might otherwise be characterised under TPS 2 as a separate use which is entertainmentbased. The Tribunal was
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- not required to consider this point and did not, in any event, have evidence from which a conclusion could be drawn.
Conclusion
35 As submitted by the respondent, the only issue before this Tribunal is whether the use approved by the former Tribunal authorises the private dance booth use that was conducted and which the applicant wishes to have continue. This is not a consideration of the merits of the use.
36 This Tribunal has concluded that private dance booths are not an inherent part of a "shop" approved as an adult shop and does not accept that private dance booths should have been in the contemplation of the Tribunal when the adult shop was approved.
37 It is also not accepted that, simply because the approved use would fit within the use class "Restricted Premises" were it the subject of an application today, all the other uses that might today similarly fit within the use class "Restricted Premises" should be allowed on the premises as a matter of course.
38 The Tribunal concludes that the use "private dance booths" on its own is a use that requires an application for approval to commence development under cl 6.1.1 of TPS 2. That application has not been made and planning approval has not been obtained.
39 The Tribunal therefore finds that the order issued by the respondent under s 10(2) of the TPD Act should stand.
Order
40 The application to have set aside the order issued by the City of Rockingham under s 10(2) of the Town Planning and Development Act 1928 (WA) is dismissed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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