Wemyss and City of Canning - [2012] WASAT 64

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WEMYSS and CITY OF CANNING [2012] WASAT 64

MEMBER: MR J JORDAN (MEMBER)

HEARD: 23 NOVEMBER 2011 AND 5 DECEMBER 2011

DELIVERED : 29 MARCH 2012

FILE NO/S: DR 239 of 2011

BETWEEN: ANDREW WEMYSS
Applicant
AND
CITY OF CANNING
Respondent

Catchwords:

Town planning Development Restricted premises use Application for retrospective planning approval Located in Industrial Service Zone under local planning scheme Purpose and intent of zone Impact on amenity of neighbouring uses and locality Relevance of past management of premises Significance of submissions for 'SA' use

Legislation:

City of Canning Town Planning Scheme No 40, cl 2.2.1, cl 2.2.3(a), cl 2.3.7, cl 2.3.7.1, cl 2.3.7.1(a), cl 2.3.7.1(c), cl 2.3.7.2, cl 2.3.8.1, cl 2.3.8.1(b), cl 2.3.8.2, cl 2.3.8.2(e), cl 2.3.8.3, cl 2.3.8.4, cl 2.5.5, cl 7.2, cl 7.3, cl 7.3.4, Appendix 1, Pt 7, Table 2, Table 3
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA)
Indecent Publications and Articles Act 1902 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application for review upheld
Conditional planning approval granted for the proposed 'Restricted Premises' use

Category: B

Representation:

Counsel:

Applicant: Mr E Samec
Respondent: Mr D McLeod

Solicitors:

Applicant: Samec Legal
Respondent: McLeod & Co

Case(s) referred to in decision(s):

Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156
Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79; [2005] WASAT 272
GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353
West Savoy Theatres Pty Ltd v City of Perth (1993) 9 SR (WA) 58

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal of the City of Canning to grant retrospective planning approval for a 'restricted premises' use, known as an 'adult shop', in a tenancy in the commerce centre servicing the industrial area at Canning Vale.
The City of Canning refused the application because it considered the use would not be consistent with the purpose of the zoning, which was to provide for uses that gave commercial support and services for the industrial workforce of the industrial area. The City of Canning also considered these uses would have an adverse impact on the local amenity and would be in conflict with the orderly and proper planning of the locality.
The Tribunal found that the proposed use would be consistent with the purpose and intent of the zone, would not have an impact on the local amenity sufficient to warrant refusal and would be consistent with orderly and proper planning.
The Tribunal decided to uphold the application for review and grant conditional planning approval for the 'restricted premises' use.

Introduction

These proceedings involve an application brought by Mr Andrew Wemyss (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal of the City of Canning (City or respondent) to grant planning approval for the use 'restricted premises' at Unit 5B in the strata titled Canning Vale Commerce Centre at Nos 64 66 Bannister Road, Canning Vale (site).
The Tribunal viewed the site accompanied by the applicant, counsel for the parties and the planning witnesses.

Site and locality

On the corner of Bannister Road and Canvale Road, Canning Vale is a Caltex service station. The site, which has an area of about 1 hectare, 'wraps around' the service station lot and has a frontage of about 72 metres to Bannister Road at the northeastern boundary, a frontage of about 71 metres to Canvale Road at the southeastern boundary, and a frontage of about 82 metres to Bannick Court at the southwestern boundary.
On the site is the Canning Vale Commerce Centre (commerce centre) which comprises some 28 tenancies in strata titled units arranged around the margins of the site. At the centre of the site is a vehicle accessway, with crossovers from Bannister Road and Canvale Road. In the central space between the units and adjacent to the accessway are some 157 parking bays.
The commerce centre buildings are single storey brick, with each strata unit having windows and an entry door onto a covered veranda adjacent to the central car park. The units adjacent to the southwestern boundary also have a door facing Bannick Court.
Tenants of the units in the commerce centre are listed in the discussion of the issues below. Unit 5B has an area of 124 square metres and is the second unit from the Bannister Road end of the building at the western side of the site. Unit 5B is between a lunch bar facing Bannister Road and a sign making business.
The site is within the Canning Vale industrial area, which is extensively developed with industrial and warehouse uses set back from road frontages, with parking and some landscaping in the front setbacks. Bannister Road is a major traffic connection between regional roads Ranford Road to the west and Nicholson Road to the east.

Planning framework

The site and the lot on the south side of Bannick Court are zoned Industrial Service under the City of Canning Town Planning Scheme No 40 (TPS 40). Adjacent is a lot zoned Service Station and the surrounding area is zoned General Industry. The locality is zoned Industrial under the Metropolitan Region Scheme (MRS). The use the applicant is seeking to have approved for Unit 5B falls within the use class 'restricted premises' under TPS 40. Appendix 1 of TPS 40 includes the following definition:
restricted premises means any premises, part or parts thereof, used or designed to be used primarily for the sale by retail or wholesale, or the offer for hire, loan or exchange, or for 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.
To note is that the Indecent Publications and Articles Act 1902 (WA) has been repealed and enacted is the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). This Western Australian act must be read in conjunction with the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
'Table 3 Zoning Table' of TPS 40 shows that the use class 'restricted premises' is an 'SA' use within the Industrial Service zone. Clause 2.2.3(a) of TPS 40 provides that an 'SA' use is not permitted unless approval is granted by the Council, and the Council has followed the procedures required by cl 2.3.7.1. The 'SA' symbol against a use in the zoning table of TPS 40 is distinguished in cl 2.2.3(a) from an 'AA' use, which requires the exercise of discretion to allow, and a 'P' use, which is permitted by TPS 40.
Clause 2.3.7.1(a) of TPS 40 requires that a proposed 'SA' use must be advertised in a locality circulating newspaper, and cl 2.3.7.1(c) requires that notice must be given to '... ratepayers and/or occupiers likely to be affected by the granting of the approval …'.
Clause 2.3.7.2 of TPS 40 provides that a decision to approve a development involving an 'SA' use should not be made until after consideration has been given to each submission lodged in accordance with the notice of the development given to ratepayers or occupiers likely to be affected.
Clause 2.3.8.1 of TPS 40 states:
The Council when considering an application for Development Approval shall[,] where its discretionary power permits[,] have due regard to the following:
(a)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
(b)any relevant submissions by the applicant; and
(c)any planning policy adopted in accordance with Clause 2.7.12.
To note is that the City has adopted no policies relevant to the site or in relation to the use class 'restricted premises'.
Clause 2.3.8.2(e) of TPS 40 provides that when considering an application for development approval, regard may be had to:
the comments or wishes of any objectors to or supporters of the application[.]
Clause 2.3.8.3 of TPS 40 provides that when considering whether or not to approve an 'AA' use and an 'SA' use, regard shall be had to:
(a)the nature of the proposed use and its relationship to the use of other land within the locality;
and
(e)any relevant submissions received by the Council[.]
Clause 2.3.8.4 of TPS 40 provides that, for uses not within the scope of cl 2.3.7, Council may advertise a proposal in accordance with the procedures of cl 2.3.7.
Part 7 of TPS 40 is concerned with commercial development in commercial zones. Table 2 at cl 2.2.1 of TPS 40 lists commercial zones as 'Shopping', 'Commercial', 'Highway Commercial', 'Industrial Service' and 'Service Station'. Clause 7.2 of TPS 40 states that the general objectives for commercial development are:
(a)to provide for a variety of other commercial centres within the City which are appropriate to the needs of the community and so located as to afford efficient and convenient distribution of goods and services; and
(b)to ensure that the development of commercial uses takes into account minimisation of conflict with traffic, provision of safe convenient pedestrian access and provision for adequate parking on the site, and generally seeks to establish a high standard of safety convenience and amenity for all members of the community.
Clause 7.3 of TPS 40 sets out the purpose and intent of various commercial zones. Clause 7.3.4 of TPS 40 is headed 'Industrial Service Zone' and states:
The purpose and intent of the Industrial Service zone is to provide for the development of uses which provide commercial support and servicing facilities predominantly for the industrial workforce within established industrial areas.
The uses that can be considered for planning approval in the industrial service zone are set out at 'Table 3 Zoning Table' of TPS 40. These include:

'P' uses	public utility, showroom, warehouse and service industry
'AA' uses	community purpose, public amusement, club premises, office, health centre, shop, restaurant, take-away food outlet, lunch bar, 'special facilities', trade display, open air display, milk depot, car park, 'occasional uses', plant nursery, vehicle sales premises
'SA' uses	market, restricted premises, mechanical repair station, telecommunications infrastructure

The use

The application to the respondent was for retrospective planning approval to use Unit 5B as 'restricted premises', a use colloquially known as an 'adult shop'. The expression 'adult shop' is generally a euphemism for a shop selling products associated with sexual activity and pornography, consistent with the legislation referred to in the definition of 'restricted premises' in TPS 40. The shop would sell, hire and exchange adult books, magazines, DVDs, toys and clothing. The use was established without planning approval in April 2011.
The plan dated 12 December 2011 shows Unit 5B to be a rectangle of about 123.5 square metres, being 14.7 metres deep and 8.4 metres wide. The interior of Unit 5B would comprise a single display area of shelves and racks with a counter for sales adjacent to the front door, and a privacy screen between the front door and the interior of the shop. An existing wall enclosing a storeroom at the rear northwest corner would be removed, and the space added to the display area. Not included in the display area would be, at the rear, an existing toilet with an antechamber including a basin, and beyond that, a room with a sink used for staff and storage purposes totalling about 18 square metres.
The viewing of the site revealed that the interior of Unit 5B, as now proposed on the plan dated 12 December 2011, was laid out with shelves and racks displaying products for sale and hire. The exception was that the wall to the storeroom at the rear northwest corner had not been removed.
Unit 5B has windows each side of a front door. Currently there is signage on the front windows advertising the sale and hire of books and DVDs. There is no sign above the awning, and vertical blinds across the windows screen the interior of the shop. The applicant gave evidence that his preference was to have window displays of products that could legally be revealed to the public, such as clothing items.
The application to the City was for opening hours of 9 am to 6 pm every day of the week. At the hearing, the applicant said that he would want to be able to open until 9 pm on Thursdays.

The refusal

The City refused the application for the following reasons:
(i)The proposal would detract from the intended function of the Industrial Services zone.
(ii)The proposal does not meet the requirements of clause 2.3.8.1 of the City of Canning Town Planning Scheme No 40 as the proposal will conflict with orderly and proper planning of the locality and will have an adverse impact on the amenity of the locality.

Issues

From the respective statements of issues, facts and contentions provided by the parties, the Tribunal has identified the following issues:
1)Whether the proposed use would be consistent with the purpose and intent of the zone and appropriate in the particular locality.
2)Whether the interests of orderly and proper planning and the preservation of the amenity of the locality would be served by the proposed development.

Discussion

Issue 1 whether the proposed use would be consistent with the purpose and intent of the zone and appropriate in the particular locality

The tenancies in the commerce centre on the site include:
•five lunch bars;
•two hair salons;
•labour hire business;
•sign maker;
•environmental consultant;
•two financial service providers;
•real estate agent;
•lighting consultant;
•travel agent;
•union office;
•Catholic book and gift shop;
•pilot training school;
•clothes shop;
•two accountants;
•medical supply business;
•legal practice;
•marketing consultant; and
•insurance assessor.
Unit 5B is situated between the sign making business and a lunch bar.
The Tribunal would comment that most of these uses, as defined in TPS 40, can be characterised as fitting within one of the use classes set out in the above table of uses that might be considered for approval in the industrial service zone.
Mr Peter Goff, a practising town planner who appeared as a witness for the respondent, was of the opinion that most of the uses in the commerce centre were consistent with the intent of the industrial service zone because they provided a service for the workforce in the surrounding industrial area. He said the uses particularly served the intent of the industrial service zone if 'workforce' was interpreted to include the management of the businesses within the broader industrial area.
Mr Goff said that to be consistent with the purpose of the industrial service zone, a use had to support and service the workforce in its capacity as an industrial workforce. Mr Goff was of the view that, while the proposed adult shop might provide a service to some workers, it was for those workers in their capacity as individuals, not as workers in the industrial workforce.
The Tribunal considers cl 7.3.4 of TPS 40 is to be interpreted more broadly than the narrow interpretation advanced by Mr Goff to determine whether approval might be granted for a discretionary use in the industrial service zone.
The evidence of Dr Paul Maginn, a qualified planner and academic who appeared for the applicant, was that Canning Vale, at 570 hectares, was the third largest industrial estate in the metropolitan area, with a work force of over 8,400.
The significant workforce of the Canning Vale industrial area requires commercial support and servicing facilities. The Tribunal would comment that it is, clearly, orderly planning that services and support be found within or close to the industrial area. TPS 40 scheme map 9 shows the industrial service zone is located within the Canning Vale industrial area. Having an industrial service zone within the industrial area ensures that members of the workforce can have access to services and commercial support without having to travel beyond the industrial zone.
The Tribunal is of the view that the planning witnesses were generous in their interpretation that many of the uses in the commerce centre serviced the industrial workforce in their capacity as industrial workers. For example, industrial workers need lunch, not because they are industrial workers, but because they have to eat.
The Tribunal is of the view that the only existing uses in the commerce centre to satisfy the narrow interpretation pursued by the respondent are the union office and labour hiring business. The legal practice, depending on the area of expertise, might be a direct service for the industrial workers. Uses such as financial services and accountants are relevant to people who have an income, which would include industrial workers, but not necessarily because they are industrial workers. It would appear that uses such as travel agents, real estate agents and hair salons are located in the commerce centre because they can provide commercial support and services to the individuals who are in the industrial workforce.
The witnesses for the respondent referred to the people who attended or made use of their businesses. The people particularly referred to were 'professionals', 'business people', 'children of customers', 'church-goers', 'Catholic schools', 'retirees' and the 'elderly'. Witnesses said a 'growing proportion' and a 'significant number' of customers were from the industrial workforce, and in one instance, 'approximately 50 per cent'.
It is apparent from the evidence that a number of the objectors have a customer base extending beyond the industrial workforce. The respondent referred to the applicant's letters advising the neighbours of the proposed use that included the comment that there would be a reliance on passing trade from Bannister Road, a significant through road. This would not only be employees of the Canning Vale industrial area, but people from outside of the industrial area using Bannister Road. In this regard, the Tribunal does not view the proposed use attempting to reach an extended customer base to be distinctly different from the other uses in the commerce centre.
It appears to the Tribunal, from the evidence, that it is a convenience to the industrial workforce that the industrial service zone was created, and that they have access to the various uses located in the commerce centre, but these uses mostly serve the workers as individuals, not especially as industrial workers.
Under TPS 40, a 'restricted premises' is a use for which an application can be made and planning approval sought in the industrial service zone. If the respondent had wanted to prohibit such a use in this zone, it has had the opportunity to do so since TPS 40 was gazetted in 1994.
The Tribunal considers that it follows from this that it is, therefore, necessary to determine if discretion is to be exercised and approval granted for the proposed use. That is, there must be circumstances in which an adult shop might be allowed in the commerce centre, as consistent with the purpose of the zone of providing a service to the workforce and if there are no amenity impacts that would warrant a refusal.

The respondent argued that the proposed use would not provide commercial support and servicing facilities for the industrial workforce within the surrounding broader industrial area.
Both Dr Maginn and Dr Merriman, a specialist in sexuality and relationships who was called as a witness by the applicant, gave evidence of research that the people who view sexually explicit material and use adult products are 'average men and women' with a diversity in age, occupation, religious views and sexual orientation.
Dr Maginn's witness statement referred to a survey by Roy Morgan Research that found that in Western Australia 31% of Western Australians had consumed sexually explicit material via videos, DVDs, magazines or on the internet in the 12 months before the survey.
It might be that a discretionary use was so particular that it would not provide a service or commercial support to the people in the industrial workforce. It is arguable that such a use should not be approved within the industrial service zone. The Tribunal has no reason to believe that most of the industrial workforce is not comprised of 'ordinary men and women', and is prepared to assume that a similar proportion of them consume the products of adult shops as found in the research.
The Tribunal has therefore formed the view that the adult shop would be consistent with the intent and purpose of the industrial service zone of providing commercial support and service facilities for the industrial workforce in the surrounding area.

Issue 2 whether the interests of orderly and proper planning and the preservation of the amenity of the locality would be served by the proposed development

'Amenity' is defined at Appendix 1 of TPS 40 to mean:
… the quality and the conditions and characteristics of the locality which contribute to its pleasantness and harmony and its better enjoyment.
The Tribunal in Canning Mews Pty Ltd v City of South Perth (2005) 41 SR (WA) 79; [2005] WASAT 272 at [48] recognised that:
… The qualities and characteristics which constitute and create residential 'amenity' are to be determined objectively. However, in undertaking this objective enquiry a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well placed to identify the particular qualities and characteristics which contribute to their residential amenity. ...
In this matter it is not residential amenity under consideration, but the amenity of the commerce centre, which is in an Industrial Service zone. This zoning is for uses providing commercial support and servicing facilities predominantly for an industrial workforce in an industrial area.
His Worship, the Mayor of the City of Canning, Cr Giuseppe Delle Donne, appeared as a witness for the respondent. Mayor Delle Donne, in his witness statement said:
The restricted premises use was given an 'SA' classification because it was thought to be a use that may not fit comfortably in some locations, and which could be detrimental to amenity. It was because of that reason that the 'SA' classification ensured that any proposal to establish a restricted premises use would be subject to the advertising or public notice process so as to provide an opportunity for affected persons to make their submissions to the Council.
As stated above, cl 2.3.7.2 of TPS 40 provides that a decision to approve a development involving an 'SA' use should not be made until after consideration has been given to each submission lodged in accordance with the notice of the development given to ratepayers or occupiers likely to be affected. The proposed use attracted 17 objections from neighbouring owners and tenants within the commerce centre and five of the objectors were called as witnesses at the hearing. Seven nonobjections were sent to the Council from the industrial services zoned premises south of Bannick Court.
The respondent emphasised the 'SA' designation of the proposed use in the zoning table of TPS 40, differentiating it from an 'AA' or a 'P' designation, and said that weight should be given to the fact there were submissions from the neighbouring tenants and landowners generated as a consequence of the 'SA' designation. The respondent argued that in West Savoy Theatres Pty Ltd v City of Perth (1993) 9 SR (WA) 58, the views on amenity of commercial and retail neighbours were considered relevant. In that case it was considered that the absence of opposition from the neighbours that had been asked was a relevant consideration to assessing amenity impact. The respondent argued that in the current matter there is the converse, and the existence of opposition should be regarded as relevant to determining the development application.
The Tribunal would comment that weighing the relevance of submissions is not a matter of arithmetic. The Tribunal has noted that a significant proportion of neighbours in the commerce centre were motivated to make a submission when invited to do so, but ultimately, it is the content of the submissions that is relevant.
The Tribunal's position is that the content of the submissions made in respect of the proposed use should not be given a special status merely because they were received because of an invitation under the 'SA' process. The 'SA' process is to ensure that submissions are invited for particular uses. It can be seen at cl 2.3.8.4 of TPS 40 that the respondent can require that a proposed 'AA' use be advertised if it is considered necessary that views of neighbours are known.
The Tribunal considers that submissions formally made on a development proposal under TPS 40, once received, should be considered and given weight according to their content, notwithstanding that a different clause of TPS 40 might have been used to invite the submissions. Submissions that are grounded in proper town planning considerations are to be given weight in the assessment of a development proposal.
The applicant pointed out that cl 2.3.8.1(b) of TPS 40 required consideration of submissions by the applicant. The applicant said that while regard must be had to the submissions of neighbours, the objections to the proposed use on the basis of amenity were 'thin' and essentially were disguised moral objections, and it was unlawful to use these as a basis for refusal.
The respondent said it did not contend that the proposed adult shop should be dealt with on moral grounds. The Tribunal would comment that, in any event, it would have adopted, with respect, the position that development applications are not usually to be determined on moral issues: Barwell Nominees Pty Ltd and City of Wanneroo [2007] WASAT 156 at [77].
It was common ground between the parties that the proposed use did not give rise to amenity impacts from traffic generation, parking demand, noise or dust.
The neighbours of the proposed use considered the commerce centre to be a 'professional' and a 'quality business' location. The submissions of the neighbours showed concern about the presence of an adult shop in the commerce centre, about what they understood to be available for purchase and hire, and about what activities might eventually be offered inside Unit 5B. The objectors also expressed concern about how the use might be operated, given its existing management record and associations, and how this would impact on the amenity of their businesses and the commerce centre. The respondent said the submissions by the neighbours who objected to the proposed use were reasonably expressed and go to proper planning considerations.
The respondent said the use had been conducted without an approval since about April 2011, which was in conflict with orderly and proper planning. The applicant's management style since then was said to have resulted in the use having an adverse impact on the amenity of the locality. The respondent referred to:
•the premises originally being signed prominently as 'swinger shop';
•the premises prominently offering synthetic cannabinoids for sale;
•police visiting the premises in connection with cannabinoid sales;
•opening hours previously being advertised as 9 am to 6 pm, then 'open late Thursday', then a more general 'open 9 am til late', against a background of neighbours being assured by the applicant there was no intention of trading after 6 pm;
•the use being conducted without planning approval since approximately 1 April 2011; and
•advertising the proposed use in combined advertisements for related premises owned and operated by the applicant. Advertisements for the related premises referred to 'swinger shop', 'glory hole', 'couples booths' and 'dirty movie booths'.
The officer's report in the minutes of the ordinary Council meeting of 28 June 2011 included a table summarising the objections made in the submissions. The table, and the five witness statements of the neighbours who appeared at the hearing, included the comments made in the list above and also included, in summary, that the adult store use was quite different from the image of the predominantly professional type businesses operating in the commerce centre, was incompatible with the neighbouring family run businesses, was incompatible with the families and professional and business people who frequented the centre, and that existing businesses were being judged poorly by the fact that they were located in a centre that contained such a use.
It was the respondent's submission that these circumstances go to the lack of 'neighbourliness' of the use, and consequently its impact on amenity. These concerns were said to be real, and not purely speculative, because the use had been operating and the advertisements published since April 2011.
Mr Goff said that the submissions made by neighbours included concerns relevant to a proper assessment of amenity. Mr Goff said that in the locality there were no other restricted premises or likely associated uses, such as an entertainment use. Therefore, the proposed use did not satisfy the amenity consideration of being consistent with the conditions and characteristics of a locality. The fact that most of the neighbours in the commerce centre had objected illustrated that they considered the pleasantness and harmony of their locality was affected.
Mr Goff said that 'restricted premises' has been created as a separate use class because it was a use that had the potential to lower the tone of a locality. Mr Goff characterised the commerce centre as being of largely professional users, and was of the view that the proposed use would introduce what the objectors called 'an element of sleaze' which had not previously existed. This would make the locality 'tawdry'. He considered the proposed use would not be in harmony with, and, in fact, would be incompatible with neighbouring uses, and emphasised the neighbours' objections were based on their experience with the use as it has operated to date.
Mr Goff said TPS 40 did not require approval for site specific advertising and, while the existing advertising on the premises was relevantly discreet, that could alter at any time and a change to the more suggestive 'swinger shop' would further impact on amenity. Mr Goff went further to say that the links between newspaper and internet advertisements for Unit 5B and other premises owned by the applicant exacerbated the 'down market' image identified by the objectors, and that this was an amenity issue. Of concern also was the problem of window displays. If these were banned, then the blanked out shop windows would not embrace the 'quality and conditions and characteristics of the locality' or 'contribute to its pleasantness and harmony and its better enjoyment'.
Mr Goff was of the opinion that if the use in Unit 5B was removed, then the amenity of the locality would improve. The fact that neighbouring uses continued to operate should not be used to define their opinion of the impact of the use on the amenity. A more accurate impact might well be a turnover in tenancies.
Dr Maginn had regard to a broader locality when forming a judgment on local amenity. He characterised local amenity as affected by a mixture of large warehouses, factory buildings, office complexes, wholesalers and retailers and associated parking and landscaping. He described the diverse mix of businesses, size of buildings and signage as creating an amenity that was chaotic and relatively low quality, as might be expected in an industrial area. Dr Maginn saw as effectively indistinguishable the standard of amenity between the Industrial zoned land and the Industrial Service zoned land. He pointed out the site was dominated by cars and parking with little formal landscaping, and expressed the opinion that the proposed use would not be incompatible with the locality.
In respect of management of the premises, the applicant said there were no controls under TPS 40 over radio, newspaper and internet advertising. The advertising, in any event, was designed to attract attention, and the various activities in the advertisements listed by the respondent, such as 'booths' and 'glory hole', were not part of the application, and so their presence in premises elsewhere was irrelevant.
The Tribunal, in noticing the respondent's submission that the applicant's past management practises reveal the use to be 'unneighbourly' and leads to a lack of confidence that there will be compliance with any requirements imposed, must say that such past behaviour cannot be endorsed. The Tribunal, however, has concluded that it is appropriate to adopt, with respect, the position of the Tribunal in GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 353. At [67] [69] the Tribunal states:
Planning law 'is concerned with the use of land not with the identity of the user': per Cripps J in Moslem Alaway [sic] Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. Furthermore, where an applicant for development approval has undertaken unlawful development on a site, it is open to the responsible authority to take appropriate compliance action.
The identity of an applicant for development approval and its previous conduct in relation to development, including use of a site, is irrelevant in relation to a planning assessment of a proposed development of the site. As Mr McGowan submits, the planning assessment of a proposed development is to be undertaken objectively on the basis of the relevant planning considerations. However, this objective enquiry may be informed by evidence of previous development, including use, of the site and its consequences. For example, in objectively assessing a development application for approval to an extension of trading hours or an increase in the number of patrons permitted at licensed premises, evidence of the prior operation of the development and its impacts on the locality is likely to be relevant and important. What is relevant and important in such circumstances is not the identity of the operator or its conduct, but rather[,] the manner in which the use has taken place in the past and its environmental planning impacts. This evidence may demonstrate that the proposed use is not likely to be reasonably capable of operating in accordance with planning controls or in an acceptable manner.
In this case, GMF's alleged failure to comply with an existing approval and its attitude to a request to cease allegedly unlawful use of the site and to carry out rehabilitation is irrelevant to the planning assessment as to whether the DA should be approved and, if so, subject to what conditions.
In considering how the proposed use might be operated, the Tribunal notes from the evidence of the applicant, and of Detective First Class Constable Benjamin John Procopis, who was called by the respondent, that since the Police visits of August 2011 to search for banned synthetic cannabinoids, there have been no further Police visits to Unit 5B.
The banner proclaiming 'swinger shop' was replaced in about May 2011, and Mr Goff described the current window advertising as relatively discreet. This was found to be the case in the site viewing by the Tribunal.
When questioned, Mr Goff agreed that the interior of the shop could not be seen from outside and, therefore, the interior does not affect the amenity of the area. Other witnesses called by the respondent said they had not been inside Unit 5B to view the use. Mr Goff also said that the restricted publications on display inside the service station next door to the site cannot be seen from outside, and, in his opinion, did not affect the local amenity. He accepted that this was not a locality likely to be frequented by children.
The evidence of Dr Merriman, as stated above, was that people who visited 'adult shops' were 'ordinary people' and are not distinguishable from any other person. It would not be possible to identify a customer of the 'adult shop' in the car park on the site. This evidence was borne out by the crossexamination of witnesses revealing that customers of the use, before seen entering Unit 5B, could not be readily distinguished from customers of other businesses in the commerce centre.
The respondent provided examples of, and made reference to, the content of newspaper advertisements over some six months, together with an advertisement from a site on the internet that referred to the proposed use and to the two premises in Victoria Park owned by the applicant. The respondent, and its witnesses, said the advertisements illustrate what is considered the management style, sleaze and tawdriness associated with the use.
The Tribunal would make the comment that to find these advertisements, it was necessary to specifically go to and search the personal columns of the newspapers. In respect of the internet, the Tribunal is of the view that to see the advertisement, a person would have to deliberately seek out the website of pornographic material on which it is accommodated.
Undertaking such searches and drawing a conclusion from the advertisements on how others might perceive the impact of the use on the Commerce Centre appears, to the Tribunal, to be removed from the evidence, with one exception, of any current direct impact on the commerce centre from the management of the adult store or from the behaviour of any of its customers. The obvious exception from the management of the use, as first outlined by the applicant, has been the varied hours of opening, particularly after normal business hours. Hours of opening can be a condition of planning approval.
In respect to the respondent's concerns about advertisements that might appear on the exterior of Unit 5B, the Tribunal notes that the use 'restricted premises' has been in TPS 40 since 1994. It appears that not at any time since then has the Council been sufficiently concerned about what advertisements might appear on an adult shop to include in TPS 40 a specific control for such advertising. To choose not to have a specific control for advertisements for such a use, and then use the absence of a control as a reason why the use should not be allowed, is considered by the Tribunal not to be orderly and proper planning.
The witnesses for the respondent emphasised what they considered to be the adverse effect of the use on the people who attended or made use of their businesses. It is assumed this is a result of comments made by those people. As stated above, the people particularly referred to were 'professionals', 'business people', 'children of customers', 'church-goers', 'Catholic schools', 'retirees' and the 'elderly'. There was no evidence of the opinions directly attributable to members of the industrial workforce on the proposed use.
The industrial service zone is for uses 'predominantly for the industrial workforce'. Under Issue 1 above, the Tribunal formed the view that the proposed use is one appropriate for the zoning. It is apparent from the evidence, however, that the objectors have a customer base extending beyond the industrial workforce. The Tribunal is inclined to the view that people attracted to a use in a commerce centre in an industrial service zone can reasonably be expected to find uses that are consistent with the purpose and intent of the zone. The perception that some sectors of the customer base of businesses in the commerce centre might have about the proposed use is not, of itself, sufficient to refuse the proposed use. In this respect, the Tribunal has formed the view that the proposed use can be considered consistent with the conditions and characteristics of the locality.

The Tribunal considers that while there is concern by objectors about the impact of the proposed use, the evidence reveals that the actual impact on amenity from how the use currently appears is not sufficient to warrant refusal. This conclusion, together with the conclusion reached in Issue 1, has led the Tribunal to conclude that the use as proposed and subject to appropriate conditions would be consistent with orderly and proper planning.

Conclusion

In respect to Issue 1, the Tribunal has found that the proposed use would be consistent with the purpose and intent of the industrial service zone. The uses currently existing in the commerce centre are consistent with providing commercial support and service that might be required by industrial workers, and the evidence was that the proposed use would, as equally, provide a service to the workforce.
In respect of Issue 2, the Tribunal has found that the use as proposed would not have an impact on the local amenity sufficient to warrant refusal. The Tribunal, having also found the use to be consistent with the intent of the zoning, concluded that the proposed use would be consistent with orderly and proper planning.
The Tribunal has decided to uphold the application for review and grant conditional planning approval for the 'restricted premises' use.

Conditions

The respondent provided a schedule of the conditions it would want imposed were the application to be allowed. The applicant questioned certain of these conditions. Recommended condition 3 stated:
Advertising on or in the vicinity of the premises is restricted to signage not exceeding 1 square metre and limited to the name of 'Bannister Road Adult Book and DVD Store', including in that area signage notifying that admission of persons under 18 years of age is not permitted.
The applicant considered this to be unreasonable. The applicant would want to be allowed to have signs similar to other premises in the commerce centre. In addition, the façade on the building has particular dimensions which would dictate the shape of signs.
The respondent was of the view that, because this was a 'restricted use' and subject to the 'SA' requirements of TPS 40, the signs should be restricted. This would allow a single sign of 1 metre by 1 metre, or two signs of 1 metre by 0.5 of a metre. This was considered adequate for this type of use.
The viewing of the site revealed that there was, what appeared to be, uniformity in sign size on the façade of each tenancy above the awning. The Tribunal considers that if this use were allowed then Unit 5B might be allowed such a sign consistent with that allowed for other premises. In respect of the façade of the building below the veranda awning, the Tribunal agrees that, again, signs of 1 square metre on each of the windows would be consistent with the character of the locality. The Tribunal considers words suggested by the respondent which are those currently on the windows appear to adequately identify the purpose of the use and to have these included in the approval would ensure the current impact of the use be maintained. The condition could be reworded accordingly.
Recommended condition 4 reads:
There are to be no window displays and windows are to be covered by curtains or blinds and not painted out.
The respondent said that painted windows would be undesirable, but it did not want a display of the products sold. The applicant said that the condition was unreasonable and an active window display was preferable. The display in the window would have to comply with the law, and so no restricted items but only items from the stock that were acceptable could be displayed. The applicant said that if signage was restricted to a nonwindow area then display would be necessary.
The Tribunal notes that restricted premises have been identified in TPS 40 as a particular use that warrants an exercise of discretion. To maintain a neutral impact, the window displays could be avoided, but with up to 1 square metre of advertising being included on the window. This is a commercial use in an industrial service zone, and creating a vibrant interaction between people in the car park or on the veranda and the interior of shops is not considered critical, as it would be, for example, in a shopping street. The Tribunal considers the condition could be amended to include the existing advertising on the windows.
The respondent recommended that the development comply with a particular plan so that the use would not vary from the use viewed during the site viewing. The applicant had no objection and, subsequent to the hearing, filed the plan dated 12 December 2011 and the respondent commented on it.
The Tribunal considers that additional conditions are appropriate to ensure that the use applied for is what occurs. Any change from the form of restricted premises approved might have a different amenity impact, and, therefore, the change should be the subject of a fresh application for planning approval.

Orders

1.The application for review is upheld.
2.The refusal of the City of Canning of 27 September 2011 is set aside and planning approval is granted for the proposed restricted premises use at Unit 5B Nos 64 - 66 Bannister Road, Canning Vale, subject to the following conditions:
a.the development is to comply with the submitted plan titled 'Bannister Road Adult Book and DVD Store' by Urbanize Architect dated 12 December 2011 as amended by the following conditions if required;
b.the storeroom wall shown on the approved plan as being removed is to be removed and the floor area added to the open display area within two months of the date of this approval;
c.no viewing booths are to be constructed and the only enclosed areas in the premises are to be as shown on the approved plan at the rear of the premises and these respectively are to be used only as a toilet and a room for use by staff for storage and staff facilities;
d.the premises are not to be open and business is not to be carried out on the premises outside of the hours of 9 am to 6 pm on any day of the week except Thursday when the premises may be open and business carried out between 9 am and 9 pm;
e.there is to be no activity at the site, including no viewing by customers of DVDs, internet materials or live displays, other than the selling or renting of:
•books;
•DVDs;
•adult clothing; and
•sex toys and sex aides,

for use elsewhere other than on the premises;
f.external signage on the premises is restricted to three signs, one sign to be on each of the two windows of the premises, each no more than 1 square metre, and one sign on the façade above the veranda canopy, with the size of the above canopy sign to be no greater than 700 millimetres by 5,500 millimetres with each sign to display only the words 'Bannister Road Adult Book and DVD Store'.
The partition inside the door is to obscure the view of the interior of the premises from outside and is to have placed on it a prominent sign notifying that admission of persons under 18 years of age are not permitted;
g.the windows are not to be painted out but are to be covered by curtains or blinds to completely obstruct the view of the interior of the premises and there are to be no displays in the windows; and
h.the use and development permitted by this approval must not be altered or modified (for any reason) except with the prior written consent of the City of Canning.

I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER