Siotis v Hurstville City Council

[2012] NSWLEC 1338

Land and Environment Court

New South Wales

Medium Neutral Citation:

Siotis v Hurstville City Council [2012] NSWLEC 1338

Hearing dates:

19 November 2012

Decision date:

19 November 2012

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is upheld.

2. Development application No. 2012/DA-0057 for the fit out and use of an existing shop for tattoo use at 359 Stoney Creek Road Kingsgrove is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 2 and D.

Catchwords:

DEVELOPMENT APPLICATION: use of an existing shop for tattoo use

Legislation Cited:

Environmental Planning and Assessment Act 1979
Tattoo Parlours Act 2012

Category:

Principal judgment

Parties:

George Siotis (Applicant)
Hurstville City Council (Respondent)

Representation:

Mr C Stomo, barrister (Applicant)
Mr P Rigg, solicitor (Respondent)
Solicitors
George Siotis (Applicant)
- (Respondent)

File Number(s):

10805 of 2012

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Hurstville City Council of Development Application No. 2012/DA-0057 for the fit out and use of an existing shop for tattoo use at 359 Stoney Creek Road Kingsgrove (the site).

1. The proposed use will involve the relocation of an existing business from Carlton, fit out and refurbishment of the existing shop and specifically:

1. a reception desk area with seating at the front of the shop;

2. four wall partitions with four tiled treatment areas with a separate bed, bench top, cabinets and hand basins; and

3. three separate rooms separated by a curtain with a single massage bed.

1. The numbers of staff proposed are 3 to 4 employees with the hours of operation from Tuesday to Friday from 11 am to 7 pm and Saturday from 9 am to 5 pm, by appointment only.

1. The site is an irregular shaped allotment. It has a frontage of 7.4 m to Stoney Creek Road and a lane is located at the rear with vehicular access via a shared right-of-carriageway from Patrick Street. The site area is approximately 260 sq m. On-site parking is available for two vehicles at the rear of the shop from the right-of-carriageway. The site is part of a grouping of shops/commercial uses on both sides of Stoney Creek Road.

1. The contentions raised by the council relate to:

1. the detrimental impact on the amenity and social environment of the locality,

2. the site is unsuitable, as is not sympathetic or supportive of the adjoining commercial area, and

3. an undesirable precedent.

1. The application was recommended for approval by council staff although refused by the elected representatives of the council.

Relevant planning controls

1. The site is zoned 3(c)(Business Centre Zone) under Hurstville Local Environmental Plan 1994. The proposed use is permissible with consent in this zone. Clause 9(3) provides that consent may only be granted if the proposed development is consistent with the zone objectives. The relevant zone objective is:

(a) to maintain a commercial and retail focus for larger sale commercial precincts.

1. Hurstville City Council Development Control Plan No 1 applies to the site although the requirements are not relevant to the contentions raised by the council.

Amenity/social environment/impact on adjoining commercial area

1. Mr Rigg, for the council, submits that the concerns expressed by the elected members of the council in their refusal of the development application centre on the potential undesirable persons that may operate the premises and that the premises may be frequented by people who may unacceptably impact on the amenity and social environment of the area. As I understand, the concerns of the council were based on recent reports of associations between tattoo parlours and motor cycle gangs and criminal activities.

1. Mr Rigg further submits that these concerns have been significantly addressed through the enactment of the Tattoo Parlours Act 2012 on 29 October 2012. In general terms, the Tattoo Parlours Act 2012 now requires body art tattooing businesses to be licensed and without a license, body art tattooing businesses may not operate. Employed body art tattooists also need to be licensed. The licensing system is rigorous and may require finger printing and palm printing and may also involve reference to the Commissioner of Police. Of importance, according to Mr Rigg, is that the land use approval cannot now simply be transferred to another person, as can occur with most other land uses under the planning system, given the licensing requirements in the Tattoo Parlours Act 2012.

1. Expert town planning evidence on behalf of the applicant was provided by Mr Aaron Sutherland although he was not required for cross examination. He states that (without reference to the Tattoo Parlours Act 2012) that the proposal is acceptable when considered on its merits, as:

1. the proposed use is to be transferred from the existing premises in Carlton where there has been no record of any complaint;

2. the proposed development has attracted no objections when it was advertised, and in fact a petition supporting the application was provided to the council;

3. the proposed use has no external impacts given the proposed hours and operating conditions;

4. there is no evidence that the premises will be attended by "undesirable clients";

5. the New South Wales Police have not raised any objections after being requested to respond to the application by the council,

6. the applicant have no "disclosable court outcomes" or outstanding matters based on the National Police Certificate dated 9 May 2012, and

7. the application creates no unacceptable impacts and as such, precedent is not a valid concern.

1. I accept the unchallenged evidence of Mr Sutherland on the merits of the application. Pursuant to cl 9(3), I am also satisfied that the proposal is consistent with the relevant zone objective.

1. The orders of the Court are:

1. The appeal is upheld.

2. Development application No. 2012/DA-0057 for the fit out and use of an existing shop for tattoo use at 359 Stoney Creek Road Kingsgrove is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 2 and D.

______________

G T Brown

Commissioner of the Court

Decision last updated: 10 December 2012