Markakis v Ashfied Municipal Council

[2004] NSWLEC 383

Land and Environment Court

of New South Wales

CITATION:	Markakis v Ashfied Municipal Council [2004] NSWLEC 383 revised - 20/08/2004
PARTIES:	APPLICANT John Markakis RESPONDENT Ashfied Municipal Council
FILE NUMBER(S):	11313 of 2003
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Adult book store Social impact management trial period
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ashfield Local Environmental Plan Ashfield Development Control Plan Crimes Act 1900 s578 Classification (Publications, Films and Computer Games) Enforcement Act 1995
CASES CITED:	Zhang v Canterbury City Council [2001] NSWCA
DATES OF HEARING:	03/03/2004
EX TEMPORE JUDGMENT DATE :	05/19/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M E McMahon, solicitor SOLICITORS M E McMahon & Associates RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

19 May 2004

11313 of 2003 John Markakis v Ashfield Municipal Council

JUDGMENT

1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Ashfield Council’s refusal of a development application for an adult book store at the premises known as No. 255A Liverpool Road, Ashfield. The subject premises are located within the Ashfield shopping centre.

2 The Ashfield shopping centre is a large, busy town centre for the local government area. It also provides facilities for the neighbourhood shopping of the residents as well as many sub-regional functions. There are a number of schools, not within immediate proximity, but there are a number of schools and other community facilities located within the Ashfield town centre. The subject premises is in a busy section of the area, and there are of passing pedestrians large numbers. Under the subject premises there is an Asian supermarket at the ground level. The area is one that can be described as a multi-cultural centre, as I said offering many commercial and community facilities and activities within relative close proximity.

3 The council refused the development application and the issues in the proceedings are:


1. whether the proposed use is compatible with surrounding uses given its location within an established shopping centre;
2. whether the location is acceptable in terms of it being in the vicinity of an area frequented by schoolchildren;
3. the proximity of the proposal in terms of churches, schools within walking distance, it was agreed that the nearest school is some 300 m away;
4. whether sufficient information has been provided to demonstrate the proposed premises can be adequately managed in terms of anti-social behaviour;
5. whether access to the premises by persons with a disability is in accordance with the Ashfield DCP
6. whether the proposed use meets the aims and objectives of the town centre and council’s long-term future aims for the area;
7. adequate on-site parking;
8. loading facilities, inadequacy thereof;
9. the disposal of material and waste; and circumstances of location issues raised by the objectors.

4 The matter commenced on-site where most of the evidence was heard. A number of people took the opportunity of appearing before the Court.

5 Evidence was given to the Court by Sergeant Hayes who is in the local area command for the New South Wales Police. He was concerned that the proposal was in a busy location where there is a transport hub, and he was concerned about the use not being appropriate in view of the numbers of underage children that frequent the area.

6 Mr Geoff Hockey is a youth worker in the area. He is concerned about the additional stress placed on families with the location of such a use within the Ashfield town centre.

7 Reverend Peter Hastie, who is a Presbyterian minister, is concerned about the anti-social impact, the type of material being available on the premises, and the link with pornographic material to other anti-social behaviour in terms of sexual offenders. He stated that there is a brothel that has been approved on the corner of Parramatta Road and Bland Street, and was concerned about the concentration of uses such as adult book stores and brothels et cetera.

8 Mr Don Sherman had moved from the eastern suburbs, he is a resident of Ashfield, he is concerned about the fact that the proposal would not be appropriate. He has teenage sons. He said that the signage would not stop people, in particular underage teenagers, coming up the stairs out of curiosity to investigate what is available on the site.

9 Miss Susan Butler also represented the Ashfield Boys’ High P&C, and she considered that the restricted premises would be a challenge to boys and that it would not be an impediment by saying people under eighteen are not admitted. She said many of the senior pupils appear or look older than what their uniforms would indicate, and nonetheless they can also change into plain clothes.

10 Ms Daisy Kalakas is the principal of Ashfield High. She said that this is an impressionable age for teenage boys who need guidance, and she was concerned about the highly sensitive material that would be available. There are Internet cafes in the area and many of the students have flexible timetables and do visit the town centre from time to time during the day and at all hours. She is also concerned about the age limit and the lack of effective supervision for underage students to enter the subject premises.

11 Dr Steven Sceltenrych was considering, or is considering, setting up a general practitioner’s surgery in the locality. However, if the proposed development proceeds he would not do this because in his opinion they attract addictive personalities and there would be related problems if the adult book store were to be approved.

12 Mr Milton Wild is the principal of Ashfield school, and he said the school is some 300 m, and the community also used the school, and he did not consider it was appropriate for the sex shop adult book store in terms of the school endeavouring to provide good role models for its pupils.

13 The Court also heard expert evidence from two town planners Mr Adrian Minnaard appeared on behalf of the applicant, and on behalf of the Council Mr Peter Chapman a consultant town planner gave evidence to the Court.

14 The proposal is a change of use for the upstairs premises to a business involving the retailing of restricted publications, videos, and games and toys, and also the hours of operation would be Monday to Thursday 8.00 to 9.00 pm, Friday and Saturday 8.00 to 10.00 pm, and Sunday 10.00 to 6.00 pm.

15 It is proposed that the premises have signage on the outside, in the form of a blade sign under the awning, which would say that it was restricted premises and an adult book store. This would only be lit whilst the premises were in operation, that is, its hours of operation.

16 I will deal first of all with the issues of loading and unloading. It was demonstrated to the Court that the lift at the back of the premises could be utilised for the purpose of loading and unloading. It is also recognised that with smaller deliveries that this would probably not occur and the Court recognises that, although the evidence of the applicant is that deliveries are usually only a couple of times a week and just involve small parcels or cartons of material, publications, to be taken up to the premises. In the Court’s assessment of the application, the loading and unloading is not ideal for the site and the lift at the back of the premises may in fact not be practicable, but it is not a matter that would warrant refusal of the application, and given that the applicant is prepared to accept a twelve-month consent this is a matter that could be monitored during that time period.

17 With respect to the issue of disabled facilities, it is noted that these are existing premises and I have also had regard to the Ashfield Development Control Plan which seeks to provide access to the centre in terms of all persons, having regard to differences in mobility. I am also conscious of the need to wherever possible provide for disabled access. Under certain circumstances where disabled access cannot be provided, and these are existing premises, the Court has been mindful of this factor, and once again the twelve-month time limited consent would allow for the further assessment of the premises in terms of if there are complaints from disabled persons that cannot access the premises, or if there are no alternatives available.

18 With respect to the issue of the schoolchildren in the area, it is noted that schoolchildren would walk past the premises from time to time, and the social impacts of locating an adult book store in a town centre is one that I must have regard to. I am satisfied in terms of the location of the premises, that is, within a busy centre in an upstairs location, that the subject premises could be suitable for the proposed development. But nonetheless as I stated earlier the twelve-month consent would allow for any monitoring of problems that may occur in terms of the access of underage people.

19 In this regard, I must be aware of the practicalities of the development application. It is noted that the applicant has proposed a management plan, and the council has indicated that it would need to be amended, and in its current state is not appropriate. It is one thing to have a management plan, it is another thing to impose conditions which can be readily enforceable and it is another thing to have regard to the practicalities.

20 I am allowing a twelve-month time limited consent for the subject premises only on the basis that there be a door installed at the top of the stairs which is locked, and persons would need to be buzzed in, in terms of someone meeting and greeting them, or in other words this would have the safety valve in terms of underage access to the subject premises. The community concerns were quite clear to the Court in this regard, and I consider it a most reasonable condition. If it is not one that the applicant is prepared to enforce, that will be demonstrated during the twelve-month time limited consent.

21 Furthermore, whilst I must assume that people will abide by the law, there is no fence between laws in terms of my planning decision is not made in a vacuum. I must have regard to s 79C in terms of social impact, and I must have regard to the relevant legislation under which such publications can be sold, and I must also, whilst it is not a matter within the province of this Court as such it does not mean that I should not, be apprised of the Crimes Act (1900) in particular Pt 16, the miscellaneous enactments, which is s 578(E). 578(E) relates to offences related to advertising or displaying products associated with sexual behaviour. Sub-clause (2) states:

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.”



22 It was submitted on behalf of the applicant that the above Crimes Act section would not warrant refusal of the application and I agree. Nonetheless I agree with the respondent’s case that it is a management issue, also and it is reasonable for the Court to have regard to other acts that cover activities where planning consent is required.

23 In this regard, I agree with the respondent that there could be no reasonable comfort in terms of management of the premises unless a door that is locked at the top of the stairs is installed in the subject premises. I say this in terms of it being a necessary requirement in terms of my assessment under s 79C without the necessity of relying on the Crimes Act .

24 A door at the top of the stairs to be locked would be an ameliorative measure in terms of 79C (1)(b) - social impact, having regard to the potential social impact and concerns of the community that were expressed to the Court. In particular in terms of the Classification Act on the restriction of persons underage entering premises. Clearly this is in a busy intersection, or busy commercial strip of the centre of Ashfield and underage persons could walk up the stairs, and I am not satisfied on the basis of the management plan or the evidence of the applicant that there would be necessarily be screening of patrons to the subject premises. In my assessment, patrons to the premises could still enter discretely at the street and walk up the stairs, and not be in clear view of the public while waiting momentarily on the upstairs landing for access to the restricted premises by a door that needs to be opened by an employee. In my assessment of the application this is the only way that one could have some reasonable comfort in the management of persons that are admitted to the premises to ensure no underage persons gain unauthorized entry

25 I will say by way of comment it was somewhat disturbing to the Court that the persons proposing the application, even though they conduct a significant number of these premises within New South Wales, were unaware of their obligations under the Crimes Act and that is of great concern to me. If the principals of the business do not know what their legal responsibilities are, there is a more than likely chance their staff would also be unaware of same. I do note that council’s condition for an amended management plan requires that the provisions of the Crimes Act also be incorporated into the management plan, and obviously all employees of the premises would need to be aware of the management plan, and there should also be at the top of the stairs a permanently fixed sign to advise or remind people of their obligations in terms of the Crimes Act and the act controlling restricted publication material.

26 In terms of the large size of the upstairs premises and proposed staff numbers, it is both impracticable and not feasible for employees that are attending other patrons in the premises to leave those people as soon as someone else enters the premises to check their age and or seek their consent to viewing items on display unless there is a locked door to restrict entry to the premises.

27 The twelve-month trial, this at the end of the proceedings was not opposed to by the applicant and it is only on the basis of the twelve-month trial that the Court would allow the use. The judgment of Zhang v Canterbury City Council (2001) NSWCA is relevant here in terms of Spigelman CJ in the judgment stating at par 85 that:

where the full implications of the development are not known or cannot be stated with sufficient certainty, in any such case, the likely impact or suitability will never be capable of complete assessment. Indeed, that is the very purpose of the probationary or trial period. The scope and purpose of the Act is better served by permitting experimentation, at least in circumstances where adverse effects will cease if the development consent were not, in the event, extended. The focus is then on the likely impact during the probationary period.



28 Where social impacts are not clearly known then a twelve-month consent is appropriate, and in these circumstances I agree with the respondent in this regard. As I said, at the end of the day the applicant did not oppose same.

29 It is important for establishments such as adult book stores to be able to co-exist in a commercial centre environment and a general business zone is clearly an appropriate zone for such establishments. But nonetheless it is important that they are managed in a manner that is responsible and the management cannot be left to good luck when there is a high probability in my assessment that unless one had a locked door at the top of the stairs that there would be underage persons entering such premises. Management with a door at the top of the stairs to be opened by an employer will in fact allow for age checks to be carried out and facilitate appropriate management of the premises, and staff will be most conscious of their responsibilities in terms of the various acts. I have not assessed this application on the basis that the law will be broken but at the same time the operation and management provided for in the conditions are imposed to mitigate likely adverse impacts that can be monitored during the trial period.

30 There was evidence to the Court by the respondent that there had been previous instances the conditions of consent not been adhered to by the applicant . However, I must assess this application on its own merits, and once again I must assume that the law will not be broken, and that the applicant will comply with the conditions of consent. In this regard conditions must be capable of effective implentation.

31 The respondent referred to an application in Bankstown where the requirements of the development consent had not been met, which is of concern. In the matter before the Court these premises must operate in a discrete manner to coexist without adverse impacts. The signage is as shown in Exhibit D, which is for black writing on a mustard coloured background, the sign to be only lit whilst the premises are open, no flashing lights are to be provided around the entry, no additional advertising of what products are available upstairs are to be written around the doorway of the premises the conditions are for the use to operate and in a discrete manner.

32 I recognise that adult book stores are lawful and the use is permissible in the zone, but permissibility only provides for neutral consideration of a development application. The twelve-month consent will be provided for the applicant to be able to demonstrate thatthe proposed use can coexist in a manner that does not unduly offend other members of the community. I recognise that some people in this community are offended by such premises, and it is not a matter for the Court to make a moral judgment in these matters, but in my assessment I must have regard to the fact that I heard from a number of concerned persons in the community, including those representing local schools in the area, and I am satisfied that a twelve-month consent should only be allowed with the requirement for a locked door at the top of the premises.

33 The warning to potential customers of ‘restricted premises’ needs to be clearly shown, and it would appear that the best way to achieve this is for the second entry door from the street to be fitted with a self closing device (but remain unlocked) with the restricted premises sign visible with the appropriate advice. This means customers would come through the open door at the street frontage adjacent to the footpath to see a closed unlocked door with writing to advise “Restricted premises, persons under 18 not admitted...”, then walk up the stairs to a locked door to be met by a member of staff for entry into the restricted premise. In the Court’s assessment of the application this would be a discrete way to conduct premises and it would also allow the patrons to enter the premises in a discrete way as well.

34 On the basis of my assessment, having regard to all the evidence to the Court, the formal orders of the Court are:

1. The appeal in respect of the property known as 255A Liverpool Road, Ashfield, is upheld in part.

2. The development application submitted to Ashfield Council, and as amended, is approved for a twelve month trial period and subject to the conditions contained in Annexure ‘A’.

3. The exhibits except for 5 and D are returned.

Nmc/rjs/ljr