T Toth v Campbelltown City Council

[2004] NSWLEC 29

Land and Environment Court

of New South Wales

CITATION:

T Toth v Campbelltown City Council [2004] NSWLEC 29

PARTIES:

APPLICANT
T Toth

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10625 of 2003

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Restricted premises - Location - Draft LEP provisions - social impacts

LEGISLATION CITED:

Environmental Planning and Assessment Act
Campbelltown Local Environmental Plan 2003

CASES CITED:

DATES OF HEARING:

13, 14 October 2003, 11 and 14 November 2003

DATE OF JUDGMENT:

02/04/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McEwen, SC
SOLICITORS
Lansley Lawyers

RESPONDENT
Mr A Pickles, barrister
SOLICITORS
Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10625 of 2003

Hussey C

February 2004

T Toth
Applicant
v

Campbelltown City Council
Respondent

Judgment


Background

1 . This appeal is against council's refusal of development application for the construction of a first floor addition to an existing commercial building for use as Restricted Premises at 55 Queen Street, Campbelltown.

2 . At present the land is occupied by a single storey commercial building containing three adjoining shops. The restricted premises occupy unit 1 and currently operate on an unauthorised basis. A homebrew shop occupies unit 2 and the lawnmower repair shop occupies unit 3.

3 . The proposed first floor addition is to have a floor area of 193 sq m, which effectively doubles the retail floor area on the site. The first floor addition is to be accessed via an internal staircase on the northern side of the building. The design of the addition is of a contemporary style.

4 . The proposed hours of operation are from 10 am to 10 pm Monday to Saturday and 12 noon to 9.00 pm Sundays.

5 . This development application follows a previous application for the same use of unit 1. On appeal in that case, the application was refused on a number of grounds, including its unsatisfactory ground level location, bringing it into sight of pedestrians and motorists. Consequently the applicant has sought to address the matters of concern by construction of the first floor level to accommodate the restricted premises, with discreet side entry/exit arrangements.

6 . For the appeal, the following issues were identified:

(i) The proposal is contrary to the planning objectives for the land;
(ii) The proposal is contrary to the location requirements of DCP 122;
(iii) The proposal will have an adverse social impact on the locality.

Planning controls.

Campbelltown Local Environmental Plan 2002 (CLEP)

7 . The site is in the 10(a) Regional Comprehensive Centre Zone. This CLEP contains a number of general objectives of the plan, of which the following are relevant in this matter:

(b) To protect areas from inappropriate development, and
(c) To maintain and improve the opportunities for appropriate commercial and industrial development in those parts of the urban area of the City of Campbelltown identified as suitable for those purposes…

8 . Clause 28 lists the objectives of the 10(a) zone and requires the consent authority to be of the opinion that carrying out on the proposed development would be consistent with one or more objectives of the zone.

Draft Campbelltown (Urban Areas) LEP 2002 (Amendment No. 5)

9 . On 25 February 2003 Council resolved to place on exhibition this draft LEP. It proposes to amend CLEP so as to:

(a) to provide for the use of the building or part of the building for the purposes of a "restricted premises" or a "sex-on-premises establishment".
(b) to permit "restricted premises" and "sex-on-premises establishment" with council consent in zones 4 (a) - General Industry, 4 (b) - Industry B and 4 (c) - Industry C and to prohibit them elsewhere .

Development Control Plan No. 122 - Restricted Premises (DCP 122)
10 . This DCP came into force on 20 March 2002 and has subsequently been superseded by "Campbelltown Sex Industry Development Control Plan 2003". However it was the relevant Development Control Plan at the time the development was lodged and is therefore applicable to the subject development proposal.

11 . One of the aims of this DCP is to: "locate restricted premises so that they do not create adverse social or economic impacts and do not result in any adverse effects on the amenity of an area".

Campbelltown Sex Industry Development Control Plan 2003 ( DCP 85)

12 . This DCP came into effect on 18 March 2003.

Development Control Plan No 85 - Business and Comprehensive Centres Zones

13 . This DCP divides the Regional Comprehensive Centre into 8 functional areas and contains a number of aims, which relevantly include:

(f) guide the location of preferred uses identifying precincts in which these uses can be carried out.
14 . The subject site is in the North Queen Street area and its purpose includes:

(a) to facilitate the development of businesses fronting Queen Street that provide a service, including specialised retail development such as dry cleaners, restaurants, professional, health and medical services, and motor oriented uses …
15 . Under this DCP 85, the site is located within a "Business Precinct" and specific requirements are listed for development.


Development Control Plan No. 52 Off- Street Carparking Policy

16 . The objectives of council's carparking policy are to ensure the provision of off-street carparking facilities to satisfy the parking requirements generated by development and to provide guidelines for the design and layout of carparking areas.

The evidence

17 . Detailed evidence on behalf of council was presented by:

Mr S. Phillips, manager development services - Campbelltown City Council and his report is exhibit 1.
Dr J. Stubbs, social planning consultant and her report is exhibit 6.

18 . For the applicant, evidence was presented by:

Mr J. Boers, consultant planner and his report is exhibit A.
Mr S. Buchanan, consultant planner and his report is exhibit B.


Discussion of the evidence.

19 . The primary issue concerns the appropriateness of the restricted premises in this location. At present the prevailing control is LEP 2000, which permits with consent this form of development within the 10(a) Regional Comprehensive Zone. However this is qualified by the objectives, which are to protect areas from inappropriate development and to maintain and improve opportunities for appropriate commercial and industrial development.

20 . According to Mr Phillips evidence, the material sold in the premises falls under the provisions of the Classification (Publications, Films and Computer Games) Act 1995. As this material requires special treatment, by way of sale from restricted premises, he does not consider it is similar or compatible with other goods sold in a normal “shop” . Therefore he says the proposal is not consistent with the surrounding development and would be in conflict with orderly development requirements in the area.

21 . Against this, Mr Buchanan refers to the CLEP, Schedule 3 Dictionary where:
Shop means a building or place used for the selling, whether retail or auction, or hiring of or displaying the purpose of the selling or hiring of items (with goods or materials), but (in Part 2) does not include a building or place elsewhere specifically defined in this Schedule .

22 . Accordingly, he says that as the proposal can only be considered as a shop, it is not prohibited. Furthermore as there is no definition of Restricted Premises, which prevents the proposal and it complies with a number of the zone objectives, then this "shop" is not considered inappropriate development in this zone.

23 . Whilst I accept that a shop is permitted in this zone, further qualifications are contained in DCP 85, which relevantly states the aim to:
(b ) guide the location of preferred uses identifying precincts in which these uses can be carried out.
24 . DCP 85 divides the Business and Comprehensive Centre Zones into functional areas, which are separated into land use precincts. The subject site is located in the North Queen Street functional area and the relevant provisions are found in clause 43. The business precinct within the North Queen Street functional area is shown on map 3 of the DCP, with the site being designated as "Business" precinct. The Business precinct requirements are set out in clause 21 as follows:


(b) The main function of any activity within this precinct is to be commercial rather than retail oriented;

(c) Any retail functions that are not ancillary to other businesses located within this precinct are to be limited to the ground floor of the building only and are to consist only of retail functions which service the needs of occupants of adjoining business premises, such as chemist shop, hairdressers shop, newsagents shop, refreshment rooms, sandwich shops and the like .



25 . Insofar as this proposal can be classified as a "specialist retail development", its appropriateness is also subject to the provisions of clause 21(c). This requires that where retail functions are not associated with other businesses, they are to be limited to the ground floor and are to service the needs of adjoining occupants.

26 . Having considered the competing positions of the planners, the proposal obviously does not satisfy this DCP requirement for retail functions to be located at ground level. Furthermore, I do not consider there is any compelling evidence presented, which indicates a "servicing need" to other adjoining business premises. Whilst I accept the evidence that some other adjoining retailers may use the services, the proximity to these adjoining businesses does not seem critical. Therefore I accept Mr Pickles submission that this operation more likely services citywide clientele and accordingly fails to satisfy the requirements of DCP 85, in that it does not provide for retail functions servicing the needs of occupants of adjoining businesses. In reaching this conclusion, it seems reasonable that due consideration has to be given to the reference to "needs", which are more likely to be daily items of necessity, rather than restricted items.

27 . Therefore, I accept that the previous conclusion of Commissioner Brown is appropriate: i.e.

"In the context of limiting the retail activities, and relying on the types of uses in clause 21(2)(c) it would appear that council was attempting to allow a range of facilities that provided the day to day goods and services for the vast majority, if not all the occupants of the surrounding business area. I am not convinced the proposed shop would sit comfortably within this interpretation."

28 . Under these circumstances, I do not consider the proposal reasonably satisfies the DCP provisions of clauses 21 and 45.

29 . Other controls are contained in DCP 122, which came into effect on 20 March 2002 with the aims to:

(a) provide guidelines for the determination of applications for restricted premises;
(b) acknowledge that restricted premises are permitted in appropriate location within Campbelltown.

30 . It provides that restricted premises are not to be located at street level. Whilst this is in apparent conflict with the DCP 85 provisions, it seems that the intent is to allow restricted premises only in discrete locations. Accordingly it sets criteria limiting the location to "not being located within 150 m radius (as measured from any point (s) of client access and the egress at the building proposed to be so used) of childcare centres, churches, committee facilities, residences, hospitals, vehicle centres, schools, places readily frequented by children for recreational cultural activities, licensed premises and major transport nodes”.

31 . According to Mr Phillips, the proposal does not comply with this criteria because there are sensitive land uses in this radius. Also schoolchildren walk past the front of the subject properties in morning and afternoons to Campbelltown High School. However when cross-examined on the basis and reasonableness of this radius criteria, Mr Phillips was unable to explain its origin. Therefore I consider that some discretion can be applied to this control, depending on the locational circumstances.

32 . The associated issues of location and social impacts were addressed in more detail by Dr Stubbs and Mr Boers. Dr Stubbs undertook a social impact study and Mr Boers did other surveys. Both methodologies and conclusions were challenged and further conferencing by these experts fail to resolve fundamental differences in social impact principles and criteria, the relevant weighting given to different factors and sensitivity analysis, apparently due to the different backgrounds of these two witnesses.

33 . Under these circumstances then, I prefer the evidence of Dr Stubbs because of her extensive social impact assessment experience and specialist qualifications. Furthermore she has provided detailed information and references in her subsequent report (Exhibit 11), which seems to justify her approach Also, because of the more specific focus of her surveys within 150 m and 400 m radius of the subject site, to assess the impacts. It seems Mr Boers survey covers a much broader area of Campbelltown and is based on generalised questions, which in my opinion are not as reliable because of their lack of focus and impacts from this particular site.

34 . On this basis then, I note Dr Stubbs findings from her business survey are:
(a) the proposal is inappropriately located due to the adjoining retail uses and the thoroughfare for children,
(b) there will be an adverse impact on the atmosphere of the main street,
(c) unacceptable prominence of the first floor location, fronting the main street.

35 . Associated with this are following findings from the residential survey component:
(a) the location of the shop fronting the route for children going to and from school is a significant problem,
(b) there are feelings of discomfort or embarrassment in passing the shop,
(c) the unsatisfactory proximity of the shop to community and services.

36 . Insofar as I accept there is some discretion in the application of these findings to allow the restricted premises, in the ultimate I rely on Dr Stubb’s conclusion that this location is not a discrete one and therefore this is a negative aspect of the proposal.

Conclusions
37 . Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. Whilst restricted premises are currently permissible in the 10a (Regional Comprehensive Zone), nevertheless they are subject to associated layers of controls, which endeavour to restrict locations of such sensitive uses to appropriate locations, which are predominantly discrete.

38 . Even though the premises are to be located on the upper floor of the building, this position is still relatively prominent in the main street and not in my opinion a discrete location. In so far as there is some conflict between DCP 85 requiring retail functions being at ground level and DCP 122 providing for restricted premises not being at street level, I give greater weight in this case to the development the classified as specialist retail.
39 . That being the case, DCP 85 endeavours to limit such uses in this zone because the main function is to the commercial rather than retail. Furthermore retail functions are to be limited to ground floor locations, unless serving the needs of adjoining businesses and I do not consider this link was sufficiently established to allow a consent to issue.
40 . I also consider some weight (although not determinative) should be given to the provisions of Draft LEP (Amendment No 5), which intends that restricted premises be prohibited in this zone and that such uses be located in the industrial zones. I note Mr Pickles submissions that Amendment 5 has been exhibited and submitted to the Minister for making, on the basis that the Department has delegated the preparation of the s 69 report to the council. Under these circumstances, I consider there is a reasonable degree of certainty that this LEP will be made, although the timing is uncertain. In this regard Mr Buchanan acknowledged that the approval of the restricted premises in this location appeared contrary to council’s current directions and I therefore do not consider its approval in this location is in the public interest.
41 . In the ultimate then, I note the evidence that there are no other restricted premises in the 10 (a) zones and also that the approval of this application is contrary to the proposed draft controls. Furthermore it does not in my assessment, demonstrate reasonable compliance with the DCP 85 and DCP 122 locational controls to demonstrate that this is an appropriate location for this sensitive use. On balance, I also consider that the evidence indicates that the negative social impacts outweigh any positive impacts in this location.
Court orders
1 The appeal is dismissed.
2 Development Application number F 1019/2002 for the first floor addition and use as a restricted premise at No 55 Queen Street, Campbelltown, is refused.
3 The exhibits may be returned except for exhibit 1, 6, A, B and F.

_________________
R Hussey
Commissioner of the Court
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