Oliver v Lithgow City Council

[2007] NSWLEC 216

Land and Environment Court

of New South Wales

CITATION:

Oliver v Lithgow City Council [2007] NSWLEC 216

PARTIES:

Jeff Oliver v Lithgow City Council

FILE NUMBER(S):

11064 of 2006

CORAM:

Bly C

KEY ISSUES:

Development Application :- use of single storey former shop for the purpose of restricted premises, signage, location, planning controls.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Classification (Publications, Films and Computer Games) Enforcement Act 1995 No. 63
Lithgow Local Environmental Plan 1994
Draft Lithgow Local Environmental Plan 1994 (Amendment No. 12)

DATES OF HEARING:

12/03/2007

 
DATE OF JUDGMENT: 

23 April 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms D Holm, solicitor
of McKees legal solutions

RESPONDENT
Mr S. Griffiths, solicitor
of Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

23 April 2007

11064 of 2006 Jeff Oliver v Lithgow City Council

JUDGMENT

Introduction

1 This appeal relates to the deemed refusal of Development Application DA 297/06, which is for the use of the existing single storey former shop building at 183 Main Street Lithgow for the purpose of restricted premises (“the application”).

2 The applicant proposes to sell by retail, adult products, including restricted publications. Blinds and screens are to be provided so that passers-by will not be able to see into the premises thus screening the merchandise from view. Signage is to be limited to a front window sign and an under-awning sign advertising the name of the premises – “flirt adult store” - and the shop's internet site. Hours of operation are proposed to be: Monday to Sunday 10 am to 9 pm. The premises will be closed on public holidays. The applicant proposes to operate the premises in accordance with a management plan.

3 The site is located towards the western end of the Lithgow town centre and is surrounded by other commercial premises including shops and offices. It backs onto an existing public car park although there will be no direct public access available from this car park to the premises.

4 The site and surrounding lands are included in ZoneNo. 3 Business (“the Business Zone”) under Lithgow Local Environmental Plan 1994 ("the LEP"). In this zone the proposal is permissible with development consent. The objectives of the Business Zone comprise:

a) To encourage a range of retail and commercial uses within the central business district,
b) To encourage high-density residential development in conjunction with business development, and
c) To accommodate retail, commercial and allied services within the city.

Draft Lithgow Local Environmental Plan 1994

5 Also relevant to the application is draft Lithgow Local Environmental Plan 1994 (Amendment No. 12) ("the draft LEP"). The draft LEP has been forwarded to the Department of Planning ("the Department") for finalization and in this regard I understand that a submission to the Minister for Planning has not yet been finalised. Notwithstanding that the Department has not indicated that it has any concerns in relation to the draft LEP, the fact that it has not been considered by the Minister, it's gazettal cannot be said to be imminent or certain.

6 The draft LEP incorporates various amendments to the LEP, many of which are not relevant to this application. Of relevance however are the proposed controls for restricted premises in the Business Zone. Whilst restricted premises continue to be permissible with development consent, proposed cl 45 (1) provides that consent must not be granted within the Core Business District unless the premises are at basement level or on the first or subsequent floors of the building. Access to the premises is restricted to a doorway entrance only. The map associated with the draft LEP shows the Core Business District extending along most of both sides of Main Street, Lithgow including the subject site.

7 It is of some relevance that 45(2) of the draft LEP facilitates the establishment of restricted premises outside the Core Business District in the Business Zone (and Zone No. 2(v) and Zone No. 4) provided that they do not adjoin an arterial road and are located at least 80 metres away from a school, place of worship, child-care centre or recreational facility. There is no requirement here that such premises be established on the first or subsequent floors or basement with access from the street being restricted to a doorway entrance only.

8 Being a provision of a Draft Local Environmental Plan, cl 45(1) does not result in the proposal being prohibited. Nevertheless, because the proposal is inconsistent with this requirement, this is a matter that must be taken into consideration pursuant to s79C of the Environmental Planning and Assessment Act 1979.

Requirements for Restricted Premises Policy

9 Also relevant is council's Policy 7.10 - Requirements for Restricted Premises ("the policy") that was adopted by the council on 4 December 2006. Relevantly the policy was publicly notified on 21 August 2006 (with no resulting objections), the subject development application having been lodged with the council on 25 August 2006.

10 The policy contains a number of relevant provisions, the most important of which reflect the above-mentioned provisions of the draft LEP in relation to restricted premises being limited to basement or first floor levels within the Core Business District and with access being restricted to a doorway entrance only. Outside the Core Business District, these provisions also require that restricted premises not be located within 80 metres of another restricted premises, school, church, child-care centre or recreational facility. Other provisions of the policy involve scale and character, amenity and signage.

11 In my view the draft LEP and the policy are complimentary planning controls (notwithstanding that the policy is not a development control plan) and taking into account their particular circumstances they should be given weight as such.

12 The application was advertised and some and 18 objections plus a petition were received from residents, business owners and community groups including schools and churches. Concerns expressed in these objections include:

• The restricted premises will attract a clientele having an inappropriate character.
• Restricted premises should be located in industrial areas.
• Restricted premises are inappropriate in the conservative, morally decent Lithgow.
• The products sold in restricted premises can be obtained in nearby towns.
• Numerous school children utilise in this part of Main Street, including going to music lessons and to various shops.
• Restricted premises are difficult to police and will impact adversely on the town's social character and image.
• Economic loss to nearby businesses and Main Street generally.
• There are schools, churches and public parks nearby.
• The products available in restricted premises can lead to crimes of a sexual nature and a threat to the stability of marriage and the erosion of the sanctity of family life.

13 When the hearing began on site, ten of the objectors explained these concerns in detail.

14 The amended statement of issues raises the following issues:

1. The proposed development is unsuitable in this location and will have unacceptable social and economic impact in the locality.
2. The proposed development is located on the street level.
3. The finishes on the building being blocked out windows will draw attention to the premises.
4. The proposed hours of operation of 10 a.m. - 9 p.m. Monday to Sunday are unacceptable.
5. The proposed development does not provide adequate disabled access to the toilet.
6. The proposed development may result in safety and security issues particularly due to the extended hours and use of the car park after hours.
7. The proposed development may increase pressure on police to maintain safety and crime prevention in the locality.
8. The proposed illuminated signage under the warning on Main Street is unacceptable and there is no need for signage at the rear of the site as the rear door is not for customer access.
9. The issues raised by the objectors.

The evidence

15 To assist the Court in dealing with the principal issues in the case, expert town planning evidence in the form of a joint report was provided by Mr N Kennan on behalf of the applicant and Mr J. Nichols on behalf of the council.

16 Additional evidence was provided by Mr M. Relf, an access consultant.

Court's consideration

17 The site, being located towards the western end of the Lithgow town centre is within the Lithgow central business district and objectives (a) and (c) of the Business Zone are applicable. Plainly, as contended by Mr Kennan, the proposed restricted premises being a retail facility, would not be inconsistent with these objectives, particularly in relation to providing a range of retail and commercial uses within the central business district.

18 Whilst there are no provisions of the LEP that deal specifically with restricted premises (other than making them permissible with development consent), as already noted the provisions of the draft LEP and the policy are applicable and it is important to note that these provisions do not seek to prevent restricted premises from being established in the central business district or Core Business District. Instead they simply seek to limit the establishment of such premises to locations in buildings other than at ground floor or street level. Hence, in the context of these provisions the flaw in the proposal is that it is located at street level. Given that this is a single storey building, there is no opportunity for the premises to be established at first floor level.

19 The requirement of the draft LEP that restricted premises not occur at ground floor level is not a prohibition and is instead, a matter for consideration in the determination of the application. Whilst this requirement must attract some weight, the question of whether it attracts determinative weight requires consideration of its underlying purpose. This purpose cannot be ascertained from the aims of the plan, which relevantly simply seek to control the location of, inter alia, restricted premises in the Lithgow Local Government Area.

20 Clause 45 of the draft LEP does not contain any aims or objectives although subclause (2) seeks to ensure that, outside the Core Business District, restricted premises are located well away from schools, places of public worship and child-care centres. But there is no explanation of why this is important or why the requirement doesn't apply in the Core Business District where the proposed restricted premises is to be located.

21 The policy in dealing with restricted premises, is highly prescriptive in relation to the provision of information with a development application, public notification, referrals, size and character, hours of operation and the like. However, it does not contain any aims or objectives to assist in understanding why restricted premises are permissible in the Core Business District but not at ground floor level.

22 The Core Business District can perhaps be distinguished from the other areas where restricted premises are permissible pursuant to the planning controls because of the pedestrian traffic that businesses attract. Indeed this part of Main Street is frequented not only by adults but also by school children visiting various retail premises including bicycle shops and attending music lessons. Hence one can accept that one purpose or objective of the planning controls insofar as they apply to the Business Zone, is to minimise the exposure of restricted premises themselves to passing pedestrian traffic. Although, again, one must ask why is this of concern here and not elsewhere?

23 The significance of such an objective can be considered in the light of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 No. 63 ("the Classification Enforcement Act") which in s 49 sets out requirements for the display of restricted publications. In particular, premises where such publications are displayed must be so constructed that the interior of the premises is not visible to persons outside the premises. Appropriate doors are to be provided as well as a notice restricting entry for persons over 18 years of age and warning that the displayed material may cause offence. Also relevant is the Crimes Act 1900 No. 40 ("the Crimes Act") which in s 578E prohibits the display of products associated with sexual behavior in such a manner that members of the public can see them from outside the premises.

24 Plainly the proposal must comply with the requirements of the Classification Enforcement Act and the Crimes Act that provide for the protection of the public at large so that passers-by are not offended by the products sold in restricted premises. In this context, such compliance must be indicative of meeting the requirements of the State. Moreover it is relevant to note that the sale of these products is not prohibited by this legislation. Hence the question as to the morality of reading the publications or using the products sold in restricted premises is not one for the determination of the consent authority and is instead a matter for the individual purchaser.

25 Whilst there is a park, school and church within 150 m of the premises and notwithstanding that cl 45(2) of the draft LEP does not apply I do not accept that these are sufficiently close-by to be a factor in determining this application especially as the premises would not be visible from them. Nor have I been persuaded that the nearby recruitment agency and opportunity shop would be adversely affected by this proposal. Plainly many people including adults, and young adults and children will walk past these restricted premises from time to time. However given the constraints on the display of adult products, publications and signage, notwithstanding that some people find these products to be highly offensive, this cannot be determinative. Nor can Mr Nichols' suggestion that a large proportion of the community would be unlikely to use the premises be of any significance.

26 The written objections and the heartfelt oral objections of the Lithgow residents are plainly matters that can be taken into account. However to the extent that these objections simply oppose the establishment of restricted premises in Lithgow essentially on moral grounds they cannot attract any weight, particularly taking into account the applicable legislation including council's own planning controls that make such premises permissible.

27 Mr Nichols suggested that the restricted premises would adversely affect local businesses and would discourage residential and commercial redevelopment. However I cannot accept the anecdotal evidence that he relies upon because it could not, in the context of the proceedings, be tested. Moreover this contention must attract little weight given that restricted premises are not, nor will they be, when the draft LEP is gazetted, prohibited. Similarly I do not accept that the proposed restricted premises would be inconsistent with objective (b) of the Business Zone that seeks to encourage high-density residential development.

28 Mr Nichols also suggested that the premises would result in the congregation of children and young adults in the locality because of the hours of operation and that public mischief would result. Mr Kennan disagreed, explaining that such an outcome is no more likely than would be the case for licenced premises and the like. In this context I accept the evidence of Mr Kennan, bearing in mind that there is no evidence that criminal activity is likely to increase as a result of the opening of the proposed restricted premises.

29 Whilst not specifically identified as an issue it was submitted on behalf of the council that the very nature of the shop front of the restricted premises would be inappropriate in the Core Business District because it would "enervate (weaken) Main Street". This is because, by utilising the necessary blinds, curtains or screens to obscure the glazed shopfront any opportunity for an interrelationship between the premises and passers-by will be denied. Instead, if the premises were to be located at first floor level and accessed via a door and a stairway as required by the planning controls, the impact would, as argued by Mr Nichols, be significantly reduced. Moreover access via a stair makes the premises less accessible and less visible thus having less impact.

30 During the site inspection I observed a number of office premises that utilise floorspace immediately behind shopfronts and that these premises were screened from passers-by by utilising blinds and the like in a manner not dissimilar to what is proposed by this application. Whilst I can accept that there is a need to enliven the frontages of buildings in the Core Business District I accept that not all of the frontages in Main Street must do this. Hence, taking also into account that there is no requirement for this in the planning controls this is not an argument that supports the refusal of the application.

31 In relation to the proposed signage it was suggested that the reference to the restricted premises' internet site would be inappropriate because young people might go to this site and view inappropriate material. This may be so but I do not see this as being a reason to refuse the application or to require modification of the sign. I expect that the same access to the applicant's Internet site would be readily achieved by utilising a search engine and the restricted premises' name.

32 Finally, Mr M. Relf prepared an accessibility assessment report that, in relation to internal access and circulation including access from the street into the shop, concludes that the requirements of the Building Code of Australia can be readily satisfied. In relation to the toilet it was his opinion that there is no requirement under the BCA to require that this be made accessible. Subject to the detailing of several doors at construction certificate stage appropriate access for people with disabilities will be available.

33 Whilst it would be desirable to require that the toilet be made accessible, in the circumstances of the existing configuration of this building I do not accept that it is necessary. To convert the existing relatively small toilet so as to make it accessible would be unreasonable given the extent of modification required. Moreover the premises are in the form of a shop and have been used in the past in a manner not dissimilar in principle to what is now proposed.

Court's decision and orders

34 Having considered all of the evidence in the light of the planning controls and the applicable legislation and notwithstanding the concerns expressed by the resident objectors, I have not been persuaded that that there would be any adverse impacts resulting from the proposed restricted premises that would warrant refusal of the development application. The appeal is thus upheld and development consent granted subject to the amended conditions.

35 The orders of the Court are therefore:

1. The appeal is upheld

2. Development Application DA 297/06 for the use of the existing single storey shop building at 183 Main Street Lithgow for the purpose of restricted premises is determined by the granting of development consent subject to the conditions in Annexure A hereto.

3. The exhibits are returned.

___________________

T A Bly
Commissioner of the Court
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