Shytot Pty Ltd v Marrickville Council

[2004] NSWLEC 318

Land and Environment Court

of New South Wales

CITATION:	Shytot Pty Ltd v Marrickville Council [2004] NSWLEC 318
PARTIES:	APPLICANT Shytot Pty Ltd RESPONDENT Marrickville Council
FILE NUMBER(S):	10058 of 2004
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Restricted Premises - appropriate location - disabled access - public interest
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2001
CASES CITED:
DATES OF HEARING:	25/05/04-26/05/04
DATE OF JUDGMENT:	07/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wilson, barrister Bray Jackson & Company RESPONDENT Ms S Duggan, barrister Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

1 July 2004

10058 of 2004 Shytot Pty Ltd v Marrickville Council

JUDGMENT

Background

1 This matter involves an appeal against council's refusal of a development application for alterations and refurbishment of an existing commercial building at 251 King Street, Newtown, for subsequent use as a Restricted Bookshop/Sex on the Premises establishment.

2 Insofar as the number of issues were initially raised, those remaining for the appeal concern:

- location suitability, with regard to the proximity to other sensitive land uses,


- disabled access,

- public interest.

The site

3 This site is located on the western side of King Street approximately 30 m south of the intersection with Church Street. It is described as Lot 4, DP 84319, and is regular in shape with 6.5 m frontage to King Street and extending through to a rear lane. The site has a total area of 189.7 sq m.

4 There is a three-storey brick, commercial building erected on the site. The ground floor is occupied by a clothing store known as "Moda Enigma". From King Street there is a small entry lobby to stairs accessing the first floor, from which further stairs lead to the attic roof space.

5 This property is generally located in the middle of Newtown shopping centre, which contains several restaurants, food stores and other mixed retail shops.

6 To the north of the site, there is a public carpark for 55 vehicles accessed via the laneway at the rear of the site of Church Street and via Lennox Street. Further to the north there is the Newtown Baptist Church, St. Stephens Church and cemetery and North Newtown residential precinct.

The proposal

7 The proposed development involves alterations and additions to the ground floor entrance and the first and second floors of the premises. It includes signage at the ground floor entry and comprises:

ground floor: upgrade entry including installation of a 260 Stannah stair lift; install new 120/30 paint grade fire door.
first floor: restricted premises for adult bookshop, retail area and video booths; cleaners store.
second-floor: restricted premises (adult lounge area), private booths and video lounge for 8 persons. The use of this area includes "sex on premises" (SoP), which involves the payment of an entrance and/or membership fee for the use of the premises for consensual sex between patrons. In this case it is proposed to allow only men entry to the venue on the second-floor.

8 Approval is also sought for an under awning light box sign and a top hamper sign above the entrance doorway. The signage details are:

- one under awning internal eliminated sign bearing the company name "Pleasure Chest" and logo, with dimensions of 2.4 m long x 300 mm high, and
- one top hamper sign above the entry doorway (300 mm x 300 mm) bearing the company name "Pleasure Chest" and logo.

9 The proposed trading hours for the restricted premises are 9 AM to 3 AM, seven days a week. Operation of the development involves employment of 2 staff members.

Planning controls

Marrickville Local Environmental Plan 2001.

10 Under this LEP, the site is zoned 3 (a) General Business. Clause 13 (2) of the LEP provides the following objectives for this 3 (a) zone:

(a) to identify areas suitable for business and commercial activities, and,
(b) to permit a variety of ancillary and complementary land uses, and,
(c) to facilitate residential development in conjunction with another permissible uses in the zone.

11 The proposed use of the first and second-floors of the subject premises as "restricted premises" is permissible with consent.

"Restricted premises" is defined in Schedule 1 of the LEP as:

restricted premises means premises (other than a newsagency or pharmacy) where:

(a) publications classified Category 1 restricted, Category 2 restricted or RC under the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth are shown, exhibited, displayed, sold or otherwise made accessible or available to the public, or

(b) a business which section 578E (Offences relating to advertising or displaying products associated with sexual behaviour) of the Crimes Act 1900 applies is conducted.

Marrickville Development Control Plan No 19 -Parking Strategy

Marrickville Development Control Plan No 31-Access and Mobility

12 Detailed evidence on behalf of council was presented by:

• Mr B. Threlfo – consulting town planner (Exhibit 7),
• Detective Inspector I. Lynch – area police commander.
• Oral objections were made by a number of residents, which were considered, along with the written objections in exhibit 5.

13 For the applicant evidence was presented by:

• Mr K. Nash – consulting town planner (Exhibit C),
• Mr M. Albert – managing director of Shytot.

14 The primary issue in this matter concerns the suitability of this site for "restricted premises" due to:

- existing character of the neighbourhood,
- existence and proximity of other similar uses, and
- the proposed trading hours.

15 According to Mr Threlfo, the site is located in the centre of the Newtown shopping strip. This shopping strip generally comprises retail shops at street level, which have direct access to the footpath. Most of the surrounding buildings in this strip are two-storey, where the first level is used for a variety of office and commercial activities.

16 This shopping strip accommodates a wide range of retail premises including clothing retailers, restaurants, cafes and takeaway food shops. In the vicinity of the site there are also a number of hotels and some specialised entertainment facilities, including the Dendy Cinema at 261 King Street.

17 Accordingly, Mr. Threlfo says that the number of hotels and restaurants means that strip has a significant entertainment role, but this entertainment role is not the dominant characteristic of the centre. Instead, he considers the strip is essentially a large neighbourhood shopping centre, focused on the local community. This is partly due to the limited parking opportunities, which restricts external visitors.

18 In support of his position, he identified the following sensitive land uses in nearby proximity:

- Newtown Baptist Church, on the corner of Church and Lennox Street,
- St Stephens Church and church hall, in Church Street, adjacent to the Baptist Church,
- Newtown Mission Church, on the corner of King Street and Erskineville Road,
- The Dendy Cinema complex at 261 King Street.

19 These are shown on Attachment “1”.

20 However, King Street is a busy arterial road carrying traffic to and from the City, Sydney University and other nearby attractions. As such, the centre-line of this road forms the local government boundary between Marrickville and the former South Sydney Council (now City of Sydney). Notwithstanding this, the shopping strip presents as one commercial precinct and accordingly, Mr Threlfo identified and described the following 4 other restricted premises within close proximity of the subject site:

• 196 King Street (180 m from the subject site): "Tool shed and Signal", a restricted premises and sex-on-premises facilities. Both activities were approved by the former South Sydney Council. The approved hours are 9 AM - 1 AM Sunday - Thursday and 9 AM - 3 AM Friday and Saturday.
• 264 King Street (20 m from the subject site): "Adult World", a restricted premises. It had been approved by the former South Sydney Council, with operating hours of 10 AM - 12 midnight Monday to Wednesday, 9 AM - 12 midnight Thursday - Saturday and 10 AM - 10 PM Sunday.
• 304 King Street (150 m from subject site): "Basement", restricted premises, which was approved by the former South Sydney Council, with trading hours of 7 AM - 12 midnight hourly. A sex-on-premises facility continues to operate on these premises, despite being refused by South Sydney Council.
• 320 King Street (210 m subject site): "Fantasy Lane", a restricted premises facility approved by South Sydney Council, with operating hours of 8 AM - 12 midnight Monday to Saturday and 10 AM - 3 PM Sun. A sex-on-premises facility was apparently refused by the former South Sydney Council, but has continued to operate.

21 Mr Threlfo identifies these existing developments because he is concerned about adverse impacts due to the cumulative effect of clustering these restricted premises. In the absence of specific controls for these uses in Marrickville, he refers to the former South Sydney Council Sex Industry Policy, which states:

Cumulative Impact
A fundamental planning principle in this policy is to control the cumulative impact of sex industry premises by controlling their clustering, in order to prevent the formation of perceived "red light districts". Council acknowledges the existence of sex industry premises in South Sydney, but this policy in part is to prevent the intensification, and control their adverse community impacts upon nearby residential areas and sensitive land uses.

22 From this, he notes the policy requires council to consider the proximity of other sex industry premises, both within and outside the local government area and that the minimum separation distance between sex industry premises is generally to be in the order of 75 m. Even though this policy does not apply in Marrickville, Mr Threlfo says this anti clustering policy is an appropriate form of planning control. By application of this form of control, he concludes that the proposed development is within the 75 m separation distance and is therefore not appropriate.

23 Against this, Mr Nash acknowledges the proximity of other sensitive land uses to the proposal. But he says that the Baptist and St.Stephens Churchs are separated by approximately 130 m and 230 m respectively from the site and as there is no visual or physical linkages between two churches, then the proposed use is satisfactory.

24 With respect to the Dendy Cinema, which is 50 m to the south of the site, he says it is a multi cinema complex, which presents an array of films across all classifications from "G" to "R". Because of this diversity in programming, he does not consider that any patrons attending the cinema complex will experience any inadvertent offence from the proposed "restricted premises", as they are located on the first and second floors of the subject premises, physically and visually separated from the footpath.

25 Regarding the Mission Church, which is diagonally opposite the proposal and approximately 80 m away, he says that the busy nature of King Street as a traffic arterial, too together with the proximity of 24 hours licensed premises on the same side of King Street and 304 King Street, then the proposed development will not cause any detrimental impact nor inadvertent offence to the congregation of the Mission Church.

26 In response to the proximity of the other restricted premises on the eastern side of King Street, he says that a review of the property files does not indicate any complaints or objections to these uses. Furthermore he says that in terms of any adverse impact on the character of King Street, the operation of the existing restricted premises has had no impact on the economic viability of other uses in the vicinity of the subject premises, particularly at the street level. On the contrary he says that from his observations "there has been and continues to be a substantial refurbishment of shopfront and retailing along the City of Sydney Council area of King Street."

27 From his inquiries, he concludes that the operation of the proposed restricted premises on the first and second floors at 251 King Street will not have a detrimental impact on the character of King Street or on its economic viability and diversity of ground floor retail uses.

28 Notwithstanding this, the proposed development attracted significant public interest, including both oral and written objections, which are summarised as follows:

• proposal will change the character of King Street, allowing it to become another red light district,
• inappropriate location relative to churches and other sensitive land uses,
• impact on pedestrian zone,
• concern about sexualisation of Newtown,
• adverse impact on existing retail activities,
• unsatisfactory appearance of premises,
• impact on business zone due to after-hours operation, including reduced window shopping,
• offensive signage.

29 The matter was also referred to the New South Wales Police Service, who made submissions along the following lines :

- Safety concerns: about the narrow staircase to upper and lower floors, sufficiency of evacuation and effectiveness of the egress doors towards the street.
- Location: concerns about the close proximity to a family entertainment precinct that includes Cinema, restaurants, cafes, bookshops and supermarket, which are in use day and night by the general public,
- Precedent: acknowledgement of community concerns about the potential exemplary effective of the development, if approved may have other proprietors within the industry.
- Noise: concern about sound reverberation onto the pedestrian walkways.
- Parking: availability of adequate parking for patrons.
- Prostitution: concern about recent reports of prostitution taking place in one of the adult bookshops within the command, with reasonable apprehension these activities may be undertaken in this new development.

30 These general objections were also supported by Detective Inspector Lynch. However in cross-examination he acknowledged that when comparisons of these uses are made with Kings Cross and Oxford Street, a completely different set of demographics applies. He also said that he was not aware of any complaints regarding other Pleasure Chest operations or associated criminal activities.

Discussion of the evidence

31 Considering the extent of public interest in this adult bookshop/sex on premises development proposal, it is somewhat surprising that there are no specific controls for this type of use in Marrickville. Particularly taking into account the 4 other similar businesses, which have apparently been operating for some time along this shopping strip.

32 Notwithstanding this, the LEP permits this type of restricted premises in the 3A Zone. However due to the planning vacuum in detailed development controls, the planners were directed to confer on appropriate principles that might apply to the location of this type of sex industry, restricted premises. Initially, Mr Threlfo said that some form of separation policy was appropriate. But Mr Nash disagreed, saying that no separation policy was required and that each application should be treated on its merits.

33 From the planners conference, it was agreed that the proposal is a different classification to a brothel and the following locational principles were suggested:

(i) Zoning: allow in established commercial zones and other mixed use/non-residential zones, depending on:
- safety considerations, including isolated locations such as industrial areas,
- retailing mix allowed in non-commercial zones or where restricted premises are prohibited,
- access to public streets should be available.
Do not allow in residential zones or the residential part of mixed use building.

ii) Public place frontage (including arcade): should be for access purposes only. No display of goods to the public domain.

iii) Proximity to sensitive land uses: particularly places frequented by children. Proximity concerns; (a) visual connection and (b) connections by movement patterns of pedestrians.

Proximity is modified by separating factors, such as:
- street width, high traffic volumes, screening by landscaping or other means.
iv) Proximity to like premises: no agreement on a specific distance for separation or a range. An appropriate separating distance is dependent on a number of variables including but not restricted to:
a) The existing and future character of the street, e.g. an established entertainment precinct may accommodate a higher density of such premises.
b) Opportunity for visual connection between premises,
c) Likely pedestrian movement patterns and likelihood of persons walking past more than one such premises,
d) Street width to the extent that it provides separation between premises,
e) Traffic density, in terms of traffic volumes, which determine the extent of use of the road and any associated barrier for separation affects,
f) Street presentation.

v) Accessibility to and from the site in terms of:

i. access to public transport,
ii. availability of off-street parking,
iii. availability of on-street and public parking,
iv. servicing.

34 From my assessment of the evidence put before the Court by both the planners and residents, I am satisfied that this type of development is a sensitive use, which requires care to ensure that public amenity is not unreasonably compromised. In this regard, I accept the fundamental planning principle that the cumulative impact of sex industry premises should be controlled by appropriate separation requirements to prevent intensification, which results in unsatisfactory character impact on the neighbourhood.

35 By definition, the sex industry premises have restrictions on entry and I consider this can reasonably be extended to consider the impact of a number of entry points to similar nearby premises. Therefore, I consider that a degree of coordination is warranted, rather than Mr Nash's approach that each case is assessed on its merits. In my opinion, this systematic evaluation should be within the overall planning framework for the area.

36 Accordingly, the evidence indicates that the following evaluation criteria for restricted premises/sex on premises can be derived in this case:

1. Zoning/planning controls : consider any zoning restrictions, if any, of the particular type of land use in the area. This includes considerations of any extraordinary impact of adult bookshops and/or associated activities.
2. Streetscape presentation : assess the impact of any product displays, signage and entry arrangements from the immediate public domain.
3. Proximity to sensitive land uses : consider the proximity to churches, community uses, etc. and areas frequented by children on the basis of visual connection and passing pedestrian movements.
4. Clustering/amenity impacts on neighbourhood : consider the existing/desired future character of the immediate neighbourhood and likely cumulative effect of similar restricted premises. Allow for any reasonable separation distances required for visual separation. Consider characterisation of the public domain i.e. intensity of use, any effects of adjacent road and associated amenity impacts.
5. Scale/intensity of use: evaluate the impact of the scale of the various components of the use, on the basis that generally a larger area permits more patrons, which could generate extraordinary access/exit impacts.
6. Access: what carparking demands are generated by the development and can be satisfied on-site or in the public domain. Availability/proximity to public transport. Necessity to provide disabled access.
7. Safety: suitability of the premises for the proposed scale of use and ability to comply with B.C.A. and other local building controls. Also consider the need for any extraordinary security arrangements and time of operations.

37 My assessment of the proposal in terms of this evaluation criteria is:

1. The LEP permits this form of development and there are no other or detailed development controls that specifically refer to, or restrict this mix of activities, including sex on premises.
2. The entry to the development is via an existing doorway to the entrance lobby from King Street, which is to incorporate a chair lift to the first floor. The directional signage includes the under-awning sign and street identification. In my assessment, this entry is satisfactory and unlikely to attract extraordinary attention, so as to cause undue disamenity. Insofar as some objection is made to the type of signage, I note that the applicant has agreed that the Pleasure Chest logo can be deleted and on this basis, I consider the entry provisions satisfactory. This is also conditional on the satisfactory operation of the entry video screening monitor.
3. There are a number of other sensitive land uses including churches, in proximity to the proposal. However I do not consider there is any compelling evidence presented, which indicates that the operation of the restricted premises will adversely impact on them. The closest is the Mission Church, on the opposite side of King Street. From this, Mr E. Davis (Pastoral Assistant) expressed concern about the changing character and "sexualisation " of Newtown. He also expressed some concern about possible impact on the churches homeless men program.
But there is a separation distance of some 80 m diagonally across busy King Street, which should effectively limit any direct impacts on this church/congregation. Furthermore, considering the relationship the other 4 existing restricted premises within the shopping strip, which have apparently co-existed for sometime, I do not consider that the operation of this individual, restricted premises on the western side of King Street, is likely to cause undue impacts on surrounding sensitive land uses.
4. With regards to clustering impacts, there are 4 other identified restricted premises on the opposite side of King Street, but none on the western side (Marrickville). The closest one is the "Adult World", which is opposite and whose sign could be detected from the subject site, but which I do not consider results in excessive focus or awareness of restricted premises. Then considering the heavy traffic volumes in King Street, which effectively forms a barrier for direct linkage and the other intervening visual opportunities, I do not consider that this development causes unacceptable amenity impacts, due to its proximity to the other restricted premises, in the neighbouring local government area.
5. Presumably there are a number of impacts that can arise, depending on the scale and intensity of the various components. In this case, the proposal incorporates both the adult bookshops/video area of the first floor and the common lounge and individual booths for sex on the premises, on the second floor. Insofar as the second floor can accommodate probably 20 - 30 people, there is no substantive evidence to indicate that the overall level of intensity will likely cause unacceptable amenity impacts to the neighbourhood.
6. It appears from the planners evidence that the access arrangements to the first floor, including disabled access via the chair lift, is satisfactory. However there is a concern about further disabled access to the second floor, which the applicant says can be provided. Considering that it may not be feasible or necessary to provide disabled access to all parts of new developments, I do not think there is sufficient evidence to warrant rejection of this application , on the basis of unsatisfactory access.
7. It is apparent that appropriate conditions of consent can be imposed, requiring compliance with the relevant standards, including the B.C.A. and on this basis I consider the premises, when upgraded suitable for the proposed use.
However, another aspect raised in this regard, concerns the security of patrons and the general public in the vicinity of the premises. This arises because of some community perceptions of the nature of activities, which may generate antisocial behaviour. However, there is no substantive evidence to confirm this and therefore reasonably justify the imposition of Councils draft condition that security guards are required to protect the premises.
Notwithstanding this, I accept that this is a sensitive use, which requires careful management to ensure impacts from the operation are acceptable to the community. Therefore, I consider it reasonable to impose the condition requiring a trial period of one year, to ensure that effective management practices are put into place, including implementation of the Plan of Management. In my assessment, this will provide an opportunity to review the operation of this form of restricted premises.
I also consider it reasonable that Councils condition requiring three staff members be imposed for this trial period to ensure high level of control of the development, so as to minimise any external disamenity. On this basis, I consider that the proposed hours of operation until 3 AM reasonable.

Conclusions.

38 Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent, including a trial period for 1 year. Insofar as considerable public interest has been expressed against this development, nevertheless the prevailing controls allow restricted premises in this 3(a) zone and I consider the proposal demonstrates reasonable compliance with the one objectives.

39 Furthermore, there are no specific development controls for restricted premises, including those allowing sex on the premises. In the absence of these planning controls, I accept Mr Wilson’s submission that council has apparently not considered it necessary to adopt controls which require assessment of these proposals in a consistent manner. This is despite the presence of the 4 existing restricted premises on the eastern side of King Street. However, I consider it appropriate that some systematic evaluation process is utilised to assess these developments. Therefore on the basis of the evidence presented by the expert planners and the objectors, it appears to me that the aforementioned evaluation criteria is appropriate and reasonable in the circumstances of this case.

40 Accordingly, approval of the proposal on the basis of that criteria, will result in the establishment of the only restricted premises on the western side of King Street. Whilst there is some limited association in terms of visual impacts and pedestrian linkages to the existing restricted premises in the neighbouring local government area, I do not consider this individual development will generate unreasonable clustering impacts, so as to warrant its rejection.

41 I have also carefully considered the residents evidence that the Newtown shopping strip is predominantly a family oriented centre, which includes a wide range of retailing opportunities. But this shopping centre comprises both sides of King Street and the 4 existing restricted premises on the eastern side are part of this character. The various objectors stated that the image and character of Newtown has progressively been upgraded, but again this includes the existing restricted premises. In light of this evolution of the shopping strip, and the absence of specific controls for this type of restricted premises use, I do not consider there is sufficient substantive evidence to reject this application on the grounds of adverse public interest impacts.

42 With respect to the Police submission, it appears they are of a generalised nature, most of which can be covered by conditions of consent. Furthermore, there is no substantive evidence to indicate that this development will present a threat to the general community, providing it is properly managed.

43 Therefore I am satisfied this location is suitable for the proposal, based on the current controls providing it operates in accordance with the specific conditions of consent. However, further clarification and detailing of the proposed conditions is required to ensure there is a satisfactory community outcome.

_______________________________
R Hussey
Commissioner of the Court
Mp/rjs