Raabe and Town Of Victoria Park
[2007] WASAT 248
•25 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RAABE and TOWN OF VICTORIA PARK [2007] WASAT 248
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 SEPTEMBER 2007
FILE NO/S: DR 220 of 2007
BETWEEN: ALLYSON RAABE
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Town planning - Development application - Refusal - District centre zone - Change of use - Office to restricted premises - Discretionary use - Intent of district centre zone - Streetscape - Interaction with street - Precedent - Improvement of public domain
Legislation:
Town of Victoria Park Town Planning Scheme No 1, cl 15, cl 36(5)
Planning and Development Act 2005 (WA), s 252(1)
Result:
Application for review allowed
Decision of the respondent is set aside and approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr K Parker
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Butcher Paull & Calder
Respondent: Allerding & Associates (Town Planners)
Case(s) referred to in decision(s):
Mann and City of Rockingham [2007] WASAT 37
Mann v City of Rockingham [2004] WATPAT 143
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mrs Raabe sought review of the refusal of the Town of Victoria Park to approve the development of a restricted premises use (adult sex shop) on Albany Highway in the district centre of East Victoria Park.
The issue was whether the proposed use would be consistent with the intent of the district centre zoning which was to enhance the integration of retail, civic, community and recreational facilities by providing an interaction between the proposed use and the public domain.
The Tribunal determined that the proposed use in this locality would be consistent with the planning objectives for the zone. The respondent's decision was set aside and conditional planning approval was granted for the development.
Introduction
This is an application by Mrs Allyson Raabe (applicant) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Town of Victoria Park (respondent or Council) not to grant development approval for a restricted premises use in a vacant tenancy (the premises) in the building at Nos 822‑824 Albany Highway, East Victoria Park.
The premises and the locality
The premises and the immediate locality were viewed by the Tribunal in company with representatives of the parties.
The premises is one of two ground floor tenancies in a two‑storey commercial building on the eastern side of Albany Highway. Between the two tenancies is a door to a staircase to the first floor. The premises is to the north of the central stairway, the tenancy to the south is occupied by a used clothing and household goods shop operated by a charity. The first floor is occupied, at least in part, by a dental centre. Each tenancy has a plate glass frontage about 5 metres wide with a central clear glass doorway.
The front door of the premises opens onto a 120 square metre open floor area, with a section behind a partition at the rear. A brick wall at the end of this part of the premises opens into a storage area with what appears to be an emergency stair down from the first floor. Doors from the storage area open onto a loading dock which can be closed off from the rear carpark by a roller door. The lavatories are in the area of the loading dock.
To the west, on the opposite side of Albany Highway are raised flower beds at the street boundary of an extensive carpark beyond which is the "Park Centre", a "big box" shopping centre that includes a discount department store and a supermarket.
Next door to the charity clothing shop to the south is an optician on the corner of Albany Highway and Mint Street. This intersection is light‑controlled with the western road being an access into the shopping centre carpark. The lights contain a pedestrian phase for pedestrians to cross the road.
To the north of the premises are, in turn, a second shop selling recycled clothing operated by a charity, a tax accountant, skin clinic, loan and insurance office, Chinese restaurant, take‑away food shop and a tool shop. The commercial premises beyond this point were not specifically identified.
To the south, across Mint Street, the uses include a community police centre. On the other side of the road, in addition to the shopping centre and its carpark, the parties identified a pharmacy at the northern end of the carpark on the Albany Highway frontage.
Planning framework
The building in which the premises is located is in the District Centre zone of the respondent's Town Planning Scheme No 1 (TPS 1).
Under the interpretation section of TPS 1, a "restricted premises" use is defined as follows:
"'restricted premises' means any premises used or designed 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 publications pursuant to the Indecent Publications and Articles Act 1902; or
(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 proposed use is essentially a shop, but unlike a shop, which is a "P", or permitted, use under the zoning table of TPS 1, restricted premises is an "AA" use within the district centre zone. Clause 15 of TPS 1 states that a use with this designation "... is not permitted unless the Council has granted planning approval".
Under cl 36(5) of TPS 1, when considering an application for planning approval, it is required that regard be had to matters including:
"(a)the provisions of this Scheme ... ;
(b)any relevant planning policy;
(c)any relevant precinct plan;
...
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
..."
The premises is located within "Precinct Plan 11 - Albany Highway Precinct" (precinct plan 11). The Statement of Intent for the district centre zone in precinct plan 11 is:
"The area shall be consolidated as a centre containing retail, civic, community and recreational facilities. New development shall enhance the integration of these activities in the one general area, as well as providing various facilities to improve the public domain."
The respondent's Policy 4.9: Street Frontage Design Guidelines ‑ District Centres and Commercial Areas Along Albany Highway (street frontage design guidelines) sets out the respondent's approach to dealing with shop frontages. The street frontage design guidelines, at cl 4.9.5, include as objectives:
"a)to recognise the needs of business operators to function effectively and to balance these needs with those of the community and users of the public domain.
b)to create a comfortable pedestrian environment within visually attractive, interesting and welcoming streetscapes that are representative of the locality and community, as fits these important suburban centres.
c)to ensure that all buildings will contribute in a positive manner to the area as a safe, secure and pleasant place to be at all times.
...
e)to foster window shopping as a major activity, at least until midnight.
..."
The street frontage design guidelines provide at cl 4.9.6.6 that:
"a) Explanation
...
In addition it is important that glazing itself, by tinting or reflection does not obscure views into buildings from a street level, thus contributing to an environment that is indifferent even hostile to the pedestrian.
b)Policy
i.at least 60% of the total length of the facade along the footpath should be transparent. The continuity of glazing should be broken to provide interest by solid (opaque) vertical panels, framework and/or strong visual displays."
The proposed use
The site was most recently used as an office dealing in "cash loans and insurance" and is currently vacant.
The applicant is seeking planning approval for a restricted premises use, colloquially referred to as an adult sex shop. The submission included a list of items the applicant would want to sell, many of which can readily be identified as being primarily for use in sexual behaviour or activity and so coming within subsection (b) of the restricted premises definition in TPS 1. Other items listed, including shoes, lingerie, costumes, swings and wigs are shown allocated space on the floor layout sketch and presumably would be used in connection with such behaviour. The partitioned area at the rear would be used for staff purposes with the storeroom and loading dock retaining their existing use. The floor plan and the elevation sketch show enclosed window display areas visible from the footpath and a partition which would restrict viewing through the front doors into the body of the shop.
The respondent expressed concerned that the application had stated that, as part of the use, there would be "some services offered" and that other "services" might be introduced. The applicant responded by withdrawing any reference to "services", stating that "… such services will no longer be contemplated as forming part of the use".
The refusal
The respondent refused the application of planning approval for the reason that:
"The proposed use would set a precedent for the establishment of similar uses along Albany Highway which may lead to a proliferation of such uses in the District Centre and Commercial zones in the P11‑Albany Highway Precinct, which would be inconsistent with the conservation and existing amenity of the locality."
The issues
The Tribunal considers that the issues in this matter are:
1)Whether the proposed use is consistent with orderly and proper planning; and
2)What weight should be given to objections?
Whether the proposed use is consistent with orderly and proper planning
The respondent submitted that the proposed development would conflict with intent of the district centre zoning in precinct plan 11 and with the policy on the development of shopfronts and so would not be consistent with the orderly and proper planning of the locality.
The respondent argued that development in the district centre zone should generate pedestrian activity and engage with the street to achieve the desired "lively, family‑focussed, mixed‑use character". The proposed use, however, would have no visible access into the store so goods sold would not be on public display and there would be no opportunity for casual surveillance of, or human engagement with, the street. This lack of interaction between the premises and the street would not improve the public domain. The respondent referred to neighbouring uses which were said to provide a view into the shop and so made a contribution to enlivening the public domain. It was this interaction which was said to establish the amenity of the area.
The applicant pointed out, correctly, that the word "family" does not appear in the planning instruments relevant to the district centre zone. The applicant further submitted that the proposed use would contribute to the variety and range of retail shops in the area, would have lively colours on the façade, would have interesting window displays and would provide an informative and interesting shopping experience. The proposed use, it was said, would therefore enhance the public domain. The applicant was of the view that, although shoppers would not be able to see beyond the window displays, this did not preclude interaction with the streetscape.
The applicant also made the submission that the proposed use would make a contribution to the public domain because, in addition to the general adult population, the use would be of particular interest to patients of sex therapists and there would be available to all visiting the premises brochures on family planning and safe sexual practices. The Tribunal is not persuaded these aspects of the proposed use constitute a contribution to the public domain. Such activity would be incidental, with the provision of pamphlets at the whim of the management and available only to those who might enter the shop. The use is not considered to include a systematic, comprehensive service run by professionals, such as the pharmacy over the road to which it was compared by the applicant.
Comment
The intent of the district centre zoning of precinct plan 11 refers to new development "providing various facilities to improve the public domain". The public domain is not defined, but in this immediate locality can only mean the street in front of the shops.
It is apparent from the photographs of other commercial uses in the vicinity supplied by the parties that providing various facilities does not mean providing physical infrastructure in the public domain, such as public seating which might be an example, because none is evident.
From the view conducted with the parties the Tribunal would comment that this section of Albany Highway does not have the appearance of a locality developed by the Council as one where people are to be encouraged to linger and relax, particularly as a family.
The respondent's submissions place considerable emphasis on the contribution to the public domain resulting from the mainly visual interaction from inside premises to the outside and from the outside in. The Tribunal accepts that a window display would make a contribution to the streetscape and it is considered that a view between people inside and outside the shop should not of itself be sufficient to reject a proposal when the use has other characteristics of retail use.
The respondent pointed out that the proportion of frontage did not meet the 60% display of the street frontage design guidelines. It is agreed with the applicant that this could be a matter of conditions.
The intent for the zone also includes the statement that new development is required to enhance the integration of a centre of retail, civic, community and recreational facilities. It is not clear from the submissions how a single commercial use, such as the proposed use or an optician, a tool shop or the used clothing store, for example, can achieve this.
In support of the proposed adult sex shop, the applicant referred to Mann and City of Rockingham [2007] WASAT 37 (Mann [2007]) in which the Tribunal stated at [46]:
"Particular uses will necessarily be directed to particular sectors of the community, some licenced premises for example being for adults only and some retail outlets at a particular demographic. Uses for different groups within the community could still conceivably together contribute to an enlivened mixed use environment."
This, the applicant argued, supports the submission that the proposed use is not in conflict with the respondent's desired future character for the district centre of mixed uses that generate pedestrian activity and engage the streetscape.
The Tribunal has noted that Mann [2007] was for approval of private dance booths and video viewing booths, ultimately refused by the Tribunal, in addition to an already operating adult sex shop. However, the point made, that uses of different types catering to various groups of the population contribute to the mixed use character of a district centre was relevant to the adult sex shop and the current proposal.
The Tribunal accepts certain uses, if grouped at sufficient concentration or of a long frontage, can present a real or imagined divide that interrupts the objective of having an integrated district centre. The applicant provided photographs that illustrate that the two other individual adult sex shops, one at 895 Albany Highway and another at 267 Albany Highway, have the appearance of being integrated into the respective shopping areas, rather than providing a dividing point which prevents integration of the mix of uses into a whole.
The respondent raised as a concern that any approval would set a precedent for similar uses which together would have an adverse impact on the character and amenity of the locality. The Tribunal accepts that a row of adult sex shops would change the character and amenity of the immediate locality and would therefore be in conflict with the intent of the zone. If a further adult shop is applied for adjacent to the proposed use, the Council can address that in terms of the planning framework. The comment can be made that a surfeit of single use types, such as tool shops or restaurants would also change the character, although the Tribunal acknowledges that an adult‑only orientated locality would have a particular impact that would serve to generally discourage visits by a significant sector of the population. The Tribunal notes, however, that the two other adult sex shops mentioned haven't given rise to such an outcome. The number of shops of a single type that would have an undesirable planning effect would be a matter of fact and degree.
The Tribunal has formed the view that the proposed use would add to the mix of uses and would not interfere with the area being consolidated as a centre of retail, civic, community and recreational facilities. It would therefore be consistent with the orderly and proper planning of the locality.
What weight should be given to the letter of objection?
The respondent received one letter of objection to the proposed use from an adjoining owner. The writer made two points in support of why it was considered the use would not be appropriate in this locality. The first was a concern that this part of Albany Highway would become like "James Street in Northbridge" where there was "anti‑social [sic] behaviour attracted to nightclubs and adult sex shops".
The applicant pointed out that there was no evidence provided to support a relationship between antisocial behaviour and adult sex shops. The applicant referred to Mann v City of Rockingham [2004] WATPAT 143 at [26] in which the Tribunal made a reference to a ground floor adult sex shop in Railway Terrace, which had been there since 1987 and had not been the source of any known complaints or responsible for any crime or antisocial behaviour in the area. The point was also made by the applicant that there was no evidence that the two other restricted premises on Albany Highway in Victoria Park had been the cause of complaints or responsible for antisocial behaviour. Photographs were provided of an outdoor café next to one. It was submitted that there was no activity causing a nuisance either in a lay or a legal sense, and so this could not be the basis for refusing the proposal.
The letter of objection also said that the writer wanted to see the commercial neighbourhood maintain its family orientated atmosphere, the locality now being frequented by families and children going shopping at the Park Centre and along Albany Highway. Although not stated, it is assumed the writer believes it would follow that the proposed use would discourage this, although it is not stated how or why.
The respondent's comment in respect of the letter of objection was that it was obliged to have regard to it under TPS 1 and the letter provided an accurate view of the current amenity of the area, which the Council's intention was to maintain.
The Tribunal acknowledges that an inquiry as to the character of an area can be informed by lay people: Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [21]. The Tribunal notes, however, there is just this one letter. The letter of objection is therefore considered not to demand any greater weight than as the personal opinion of the writer. Although it is not doubted that the opinion is genuinely held and reflects the respondent's view, it does not constitute a body of opinion of lay people from which a conclusion on the amenity of the locality could be drawn.
Conclusion
The proposed use is not available to the public at large because it is directed at a sector of the adult population with particular interests. The Tribunal is of the view, however, that in a district centre the proposed use would be an addition to the mixture of retail outlets already available and would not interfere with the intent of the district centre zoning of precinct plan 11, which is the integration of retail, civic, community and recreational facilities. It is considered that the proposed use makes a contribution to the public domain not much different from that of other office and retail uses in the vicinity.
The Tribunal has concluded that the proposed use will be consistent with the orderly and proper planning of the locality and with appropriate conditions can be allowed.
Conditions
At the order of the Tribunal, the respondent, without prejudice to its position in the matter, filed a Schedule of Conditions it would want imposed should the Tribunal approve the application. The applicant objected to draft condition 1, which reads:
"Materials, products and advertising of a sexual nature are not to be displayed within the window display area and shall not be visible from Albany Highway."
The applicant submitted that the condition is repressive in that most of the materials, products and advertising are of a sexual nature. The applicant's suggested alternative was that the materials, products and advertising in the window display area contain "items of an uncontroversial, tasteful and interesting nature" and that displays feature "a stylish arrangement of lingerie, costumes and books". It was also suggested that the window displays be directly comparable to the window displays of an adult bookshop elsewhere on Albany Highway.
The Tribunal considers the applicant's suggested alternatives for the conditions to be too subjective to be enforceable. The Tribunal also considers that the respondent's draft condition is required to be more particular and this can be achieved by the condition being amended to require that nothing of an "explicit" sexual nature be included in the window display or be visible from Albany Highway.
Another condition the respondent requested be imposed included the following restriction:
"This approval is for the use of the premises as Restricted Premises by the applicant, Allyson Raabe, only."
The Tribunal considers that the identity of an applicant for planning approval is not relevant to a planning assessment of a proposed development. A planning assessment is an objective exercise undertaken on the basis of the relevant planning considerations. This assessment may include consideration of previous uses made of the premises and the impact of similar uses in the locality to determine if the proposed use is reasonably capable of operating consistent with the planning objectives of the zone. As the Tribunal has formed the view that the proposed use is acceptable in this location, a condition restricting the approval to an identified person is not required and has not been imposed.
The respondent included a further condition that required "Compliance with Council's Building, Environmental Health and Technical Services requirements." What these requirements are was not stated and so it is not in an appropriate form to be imposed as a condition. In any event, this is advice to the applicant on what other controls she must comply with and is not required as, or can be imposed, as a planning condition.
The Tribunal also believes that additional conditions are required to more clearly identify the use to be made of the premises and to tie the approval to the sketch provided to the Town and filed with the Tribunal.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent, made on 22 May 2007, to refuse the application for approval to commence development of a restricted premises use at Nos 822‑824 Albany Highway, East Victoria Park is set aside and approval is granted for the proposed use subject to the following conditions:
"1.The development approval is only for that part of the use applied for where it concerns fabrications, materials, compounds, preparations or articles that comply with the definition of the use Restricted Premises. No additional goods are to be displayed, hired, exchanged or sold, and no services inconsistent with the definition of Restricted Premises are to be offered. The use of the premises for any other purpose will require a new application for planning approval.
2.The internal layout of the proposed use is to be generally consistent with that shown on the sketch date‑stamped 'received 22 February 2007'.
3.Materials, products and advertising of an explicit sexual nature are not to be displayed within the window display area and shall not be visible from Albany Highway.
4.No enclosure or installation of security screening including bollards, roller shutters/doors and the like to be provided externally on any window or door of the proposed development excluding the service/loading bay.
5.External colours, finishes and materials to be used in the alteration of the building are to be in accordance with the Town of Victoria Park Policy 4.9, Street Frontage Design Guidelines.
6.External fixtures, including but not restricted to air‑conditioning units, satellite dishes and non‑standard television aerials, are to be located such that they are not visible from the primary street or secondary street.
7.Any modification to the internal layout or external appearance of the building to be the subject of a separate application for planning approval.
8.This approval does not relate to signage. Signage shall be the subject of a separate application for approval.
9.This approval is valid for a period of twenty four months only. If development is not commenced within this period, a fresh approval must be obtained before commencing or continuing the development."
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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