Ronin Indelible Aesthetics Pty Ltd and Town Of Cottesloe
[2012] WASAT 195
•26 APRIL 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: RONIN INDELIBLE AESTHETICS PTY LTD and TOWN OF COTTESLOE [2012] WASAT 195
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 APRIL 2012
PUBLISHED : 27 AUGUST 2012
FILE NO/S: DR 359 of 2011
BETWEEN: RONIN INDELIBLE AESTHETICS PTY LTD
Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning Enforcement proceedings Notices and directions Direction to cease use of premises as a tattoo parlour Whether existing development approval for 'shop' authorised use of premises as tattoo parlour Approval given by local government as delegate under Metropolitan Region Scheme Ordinarily shop use denoting sale of retail goods Whether approved use includes some personal services Definition of 'shop' in planning law context Personal services businesses such as hairdressers and beauty therapists included in some definitions of 'shop' Tribunal held that tattoo parlour could be a shop use Review allowed and direction set aside Words and phrases: 'tattoo parlour'; 'shop'
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214, s 214(2)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town Planning (Building) Uniform Bylaws 1989 (WA), reg 20, reg 20(3)(a)
Town Planning Regulations 1967 (WA), Appendix B
Town of Cottesloe Town Planning Scheme No 2
Result:
Application for review allowed
Direction set aside
Category: B
Representation:
Counsel:
Applicant: Mr MJ Ayoub
Respondent: Mr JCW Skinner
Solicitors:
Applicant: Malcolm J Ayoub Barrister & Solicitor
Respondent: Jackson McDonald
Case(s) referred to in decision(s):
City of Nedlands Aged Persons Home Trust Inc and City of Nedlands [2012] WASAT 75
Formstar Holdings Pty Ltd and Top Notch Roofing Pty Ltd [2007] WASAT 208; (2007) 56 SR (WA) 1
Owens v Ink Wizard Tattoos 533 SE 2d 722 (Ga 2000)
Sunkar and City of Canning [2010] WASAT 162
United States v Swanson 341 F 3d 524 (6th cir 2003)
United States v Woolley 123 F 3d 627 (7th cir 1997)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ronin Indelible Aesthetics Pty Ltd applied to the Tribunal for a review of a direction notice issued by the Town of Cottesloe. The direction required the applicant to cease using certain business premises on Stirling Highway, Cottesloe as a 'tattoo parlour'. The question before the Tribunal was whether the existing development approval, which dated from 1981, for use of the premises as a 'shop' could also authorise the use of the premises as a tattoo parlour.
The Tribunal decided that it could. Consequently the Tribunal set aside the direction.
The Tribunal looked at the ordinary definitions of the terms 'shop' and 'parlour', as well as references to 'shops', in the planning framework. In considering whether a tattoo parlour could be classified as a 'shop', the Tribunal noted that some of the definitions and references examined had included analogous nonretail personal services businesses, such as hairdressers and beauty therapists, in the use classification of 'shop'.
The Tribunal determined that the definition of a 'shop' use could, from a planning point of view, comfortably accommodate a use as a tattoo parlour.
The Tribunal therefore allowed the application for review.
The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Introduction
On or about 12 September 2011, Ronin Indelible Aesthetics Pty Ltd (Ronin), the applicant in this proceeding, was served with a direction issued on behalf of the Town of Cottesloe (Town), the respondent, directing the cessation of certain allegedly unauthorised development (direction).
Although not stated on the face of the instrument, the direction must be taken to have been issued under s 214(2) of the Planning and Development Act 2005 (WA) (PD Act), as it requires the immediate cessation of the alleged development or use of land which it was alleged had been undertaken 'in contravention of a planning scheme'.
Section 214(2) of the PD Act provides as follows:
If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, 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 planning scheme, interim development order or planning control area requirements.
The only other possibly relevant subsection of s 214 of the PD Act deals with the duty to do certain acts and things in connection with allegedly unauthorised development, and that is not how the direction is drafted. In any case, Ronin does not take issue with either the form or service of the notice.
Ronin sought a review of the direction in the Tribunal by way of an application lodged on 21 October 2011. At the first directions hearing on 11 November 2011, Judge Parry, sitting as a Deputy President of this Tribunal, noted that the sole issue raised by the parties in the proceedings was:
[w]hether the existing development approval for use of the premises as a shop authorises the current use of the premises as a tattoo parlour.
His Honour ordered that the matter be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). Final documents and submissions were received in January 2012.
The use of the premises as a tattoo parlour
The alleged unauthorised development relates to the use of Unit 4, No 569 Stirling Highway, Cottesloe (subject land) as a tattoo business. This business would be more commonly referred to in the community, and even by specialists, as a 'tattoo parlour'.
The activities carried out by Ronin on the subject land primarily relate to the application of special permanent ink to the skin of paying customers, in order to decorate or apply designs to the customers' skin. The definition of 'tattoo' in The Macquarie Dictionary Online (2012) is as follows:
1.the act or practice of marking the skin with indelible patterns, pictures, legends, etc., by making punctures in it and inserting pigments.
While some jewellery and cosmetic products are also sold to customers of the tattoo parlour, Ronin is mainly engaged in supplying this personal service of permanent skin markings to its customers.
The planning context
The essential facts and the content of the planning framework have both been largely agreed between the parties. It is common ground that the use of the subject land is governed by the Metropolitan Region Scheme (MRS), and that a direction can be issued under s 214 of the PD Act to enforce that planning scheme.
The subject land is reserved under the MRS for use as 'Primary Regional Roads', but the land is not yet vested in any public authority. Development, or use of such land, is regulated by approvals given by the delegate of the Western Australian Planning Commission which, in this case, is the Town.
Pursuant to such arrangements, use of the subject land as a 'shop' was approved by the Town back in 1981. This is evident from the plans referred to in the MRS instrument of approval issued by the delegate. It appears that the subject land was thereafter continuously used as a retail shop, for the most part selling jewellery, it seems, until Ronin commenced its business in or about August 2011.
Thus, without any necessary reference to a defined use class as a 'shop' derived from any planning scheme or other instrument, the extant 1981 approval appeared to contemplate a retail shop, given some of the surrounding circumstances. However, as will appear, this is only the starting point, and a deeper examination is required of relevant planning concepts when use as a 'shop' is authorised.
The definition of a 'shop' in planning law
It has long been understood in planning law and practice, and in other areas of the law, that land use designated for the purposes of a shop connotes, at the minimum - as has already been suggested - the retail sale of goods. Thus, at common law, the following general definition from the Encyclopaedic Australian Legal Dictionary seems apposite:
A building or structure permanent in its location from which the occupier can exclude persons at will and in which the occupier stores, displays, offers for sale and sells over the counter goods to persons on a retail basis: Plummer v Needham (1954) 56 WALR 1. [The learned editors then go on to cite some planning cases in relation to the difference between a store and a shop.]
This focus on the sale of goods as opposed to the supply of services, is conceptually related to other areas of the law and is illustrated in, for example, Formstar Holdings Pty Ltd and Top Notch Roofing Pty Ltd [2007] WASAT 208; (2007) 56 SR (WA) 1 (Formstar). Formstar looked at whether an automotive repair business was a retail shop within the meaning of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CT Act). The supply of goods in that case was as a consequence of the provision of the service. It was held that, as the business leased premises wholly or predominately for the purposes of supplying automotive repair services (and did, in fact, do so), it could not be in a dispute in relation to a retail shop, and therefore the Tribunal lacked jurisdiction under the CT Act.
However, the extended definition under the regulations of the CT Act that seek to apply that Act to certain services, such as hairdressing and beauty therapy (that is, businesses offering personal services), was noted in Formstar, at [17] [18].
The term 'shop' is similarly dealt with in the Town Planning Building Uniform General Bylaws 1989 (WA). There, reg 20 deals with the obligation to provide access to certain classes of building for the purpose of rubbish removal. However, at reg 20(3)(a) the obligation is held not to apply to:
… banks, boot repair shops, pharmacies, dry cleaning depots, jewellers' shops, newsagencies, hairdressing shops, watchmakers' shops or professional chambers …
Thus, we see again, for apparently historical and practical reasons, a certain blurring of the concept of the word 'shop' to include certain activities which are primarily service-based. In particular, it is to be noted that the regulation above includes a reference to shoe repairs and hairdressing.
The 'extended' definition of 'shop' is also to be found in the Oxford English Dictionary's definition of 'parlour' (3rd ed, 2005). As already indicated, in this review we are dealing with what would commonly be known, and is indeed referred to in planning circles, as a tattoo parlour. Thus, the definition given at '4.a' in the entry for 'parlour' in the Oxford English Dictionary reads as follows:
orig. U.S. (in commercial use). A shop or business premises (originally one comfortably or lavishly furnished and decorated) which provides a particular service or commodity. Usu. with a distinguishing word, as beauty, beer, funeral, ice-cream, pizza parlour, etc.
One quote given in that dictionary illustrating contemporary usage is from a local English newspaper in 1986, which refers to court proceedings where a witness gave evidence about knowing somebody 'through a tattoo parlour that a postal worker [operated] in ... Carlisle'.
Against this background, it should come as no real surprise that the Model Scheme Text (MST) in Appendix B of the Town Planning Regulations 1967 (WA) pursues the same extended notion of what constitutes a 'shop'. The definition section of the MST contains the following definition:
shop 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[.] (Emphasis added)
It was disappointing that the MST was not cited by counsel for either party.
Can a tattoo parlour be classified as a 'shop'?
As has been noticed, according to the Oxford English Dictionary, a beauty parlour can be considered as a form of shop. It therefore seems that, conceptually, for town planning purposes, a tattoo parlour could comfortably (and could do so even at the time that the extant approval commenced, which was 1981) fall within the land use criteria describing or limiting the use as a 'shop'.
Accordingly, it is unnecessary to consider whether the existing use rights, if any, which attach to the land (and which require, generally speaking, a liberal reading of such rights: cf City of Nedlands Aged Persons Home Trust Inc and City of Nedlands [2012] WASAT 75) would 'extend' this position in any relevant way.
Assuming, without deciding, that the definition of 'shop' set out in the Town of Cottesloe Town Planning Scheme No 2 (TPS 2) is at least relevant to the question before the Tribunal in these proceedings, as was contended for by the Town's counsel, Mr JCW Skinner, it may be observed that the term 'shop' is defined therein to expressly include a number of nonretail businesses, such as hairdressing and beauty therapy.
It is true that 'tattoo parlour' is not so included in TPS 2 but, as that definition, in the Tribunal's view, does not control the outcome of this review, it is preferable to rely upon the general planning position referred to above by reference to dictionaries and the MST. In any case, the MST, which was not in force when the original approval was given in 1981, picks up concepts found, for example, in the 'shop' definition in TPS 2 (and similar town planning schemes) so as to extend, for planning purposes, the notion of what ordinarily constitutes a shop.
That beauty therapists can also undertake the application of cosmetic tattoos, or permanent makeup, as part of their trade a point alluded to by Mr MJ Ayoub, counsel for the applicant, in his written submissions strengthens, I think, the conceptual association between a tattoo parlour and a shop.
I mention for the sake of completeness that US cases in various jurisdictions use the expressions 'tattoo shop' or 'tattoo parlour' more or less interchangeably: see, for example, Owens v Ink Wizard Tattoos 533 SE 2d 722 (Ga 2000) ('tattoo shop' in headnote; 'tattoo studio' in court's opinion); and United States v Swanson 341 F 3d 524 (6th cir 2003) ('shop' and 'tattoo parlour' used interchangeably); United States v Woolley 123 F 3d 627 (7th cir 1997) ('owned a tattoo shop').
Sunkar's case
It only remains to remark that, although this Tribunal, in passing, accepted that a tattoo parlour could not be a shop in Sunkar and City of Canning [2010] WASAT 162 (Sunkar), there is no reasoning associated with that conclusion other than the learned Tribunal member agreeing generally with the views of both legal counsel in the matter, and not agreeing with the opposite opinion held by the two town planners in that case. None of the material discussed above was before the Tribunal in Sunkar and, accordingly, that case should not be followed on this point. In any event, the material that has been referred to perhaps helps explain the correctness of the planners' joint opinion reached in that matter, whose view was also advanced as correct by Mr Ayoub.
Conclusion
For these reasons, the Tribunal will allow the review, set aside the direction under review and substitute a decision not to issue a direction, and dissolve the stay of the direction, noting that the direction has ceased to have effect.
Orders
The Tribunal makes the following orders:
1.For the reasons given the application for review is allowed.
2.The decision to issue the direction under review is set aside and in lieu thereof there will be a decision not to issue the said direction.
3.Consequently, the notice of direction ceases to have effect and the stay of the direction is dissolved.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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