Land and Environment Court New South Wales Medium Neutral Citation: Kim v City of Ryde Council [2020] NSWLEC 1340 Hearing dates: 20 July 2020 Date of orders: 03 August 2020 Decision date: 03 August 2020 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. LDA2019/78 seeking consent for the change of use of part of the ground floor of the building to a 'business premises' to accommodate a tattoo parlour at 31 Cobham Avenue, Melrose Park subject to the conditions in Annexure A. (3) All Exhibits are returned except for Exhibit A. Catchwords: DEVELOPMENT APPLICATION – change of use – suitability of the site for the development – objectives of the B1 Neighbourhood Centre zone – weight given to resident submissions Legislation Cited: Environmental Planning and Assessment Act 1979 Roads Act 1993 Ryde Local Environmental Plan 2014 Cases Cited: New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) LEP Practice Note 'Preparing LEPs using the Standard Instrument: standard zones' NSW Department of Urban Affairs and Planning, Crime prevention and the assessment of development applications: Guidelines under section 79C of the Environmental Planning and Assessment Act 1979, (April 2001) NSW Fair Trading, "Licensing information for tattooists and operators", <https://www.fairtrading.nsw.gov.au/trades-and-businesses/business-essentials/information-for-specific-industries/tattoo-parlours> accessed 21 July 2020 W G Jennings, B H Fox, D P Farrington, "Inked into Crime? An Examination of the Causal Relationship between Tattoos and Life-Course Offending among Males from the Cambridge Study in Delinquent Development" (2014) 42(1) Journal of Criminal Justice 77 Category: Principal judgment Parties: Peter Kim (Applicant) City of Ryde Council (Respondent) Representation: Counsel: P Holland (Solicitor) (Applicant) Dr S Berveling (Respondent) Solicitors: McCullough Robertson Lawyers (Applicant) City of Ryde Council (Respondent) File Number(s): 2019/363734 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the refusal by the City of Ryde Council of Development Application No. LDA2019/78 seeking consent for the change of use of part of the ground floor of the building to a 'business premises' to accommodate a tattoo parlour at 31 Cobham Avenue, Melrose Park and otherwise known as Lot 162 in DP 15965 (the site). 2. The application proposes the following works: * Change of use of part of the ground floor of the building to a 'business premises' for the purpose of a tattoo parlour. * Proposed hours of operation 9.00am – 6.00pm Monday to Friday, and 9.00am – 4.00pm Saturday and Sunday. * Provision of 4 staff members. * Provision of two tattoo beds. * Business premises floor area of 29.6m2. * Deletion of the door from the commercial WC that leads to the residential laundry. 1. The facts and background to the dispute are set out in the Statement of Facts and Contentions, marked Exhibit 1. In essence, the issue for the Court to determine is whether the proposed development is suitable or unsuitable for the site when having regard to the objectives of the B1 Neighbourhood Centre. 2. The Court was assisted by town planning experts Mr Mark Boutros for the Applicant and Mr Ben Tesoriero for the Respondent. Their joint expert report is marked Exhibit 3. The site and its context 1. The site is located on the north-western corner of Cobham Avenue and Andrew Street in Melrose Park, as part of a small strip of single and two-storey shops zoned B1 Neighbourhood Centre, as identified in the Ryde Local Environmental Plan 2014 (RLEP). 2. While the site addresses Cobham Avenue, Andrew Street and Andrew Lane, the proposed change of use applies to the Andrew Street/Cobham Street frontage as the rear of the site addressing Andrew Lane consists of a dwelling and on site car parking. 3. The immediate area is predominantly characterised by low density residential accommodation, mainly consisting of single and two-storey dwellings zoned R2 Low Density Residential. 4. Figure 1 in the joint expert report identifies an area of around 800m in walking distance from the subject site, encompassing industrial land, housing and private and public recreational space. Public submissions 1. On 18 December 2019, the matter was listed for hearing commencing on 20 July 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court's website. 2. Consistent with the Pandemic Policy, the parties consented to the hearing proceeding by MS Teams, and for public submissions to be provided in writing prior to the hearing. 3. However, in addition to written submissions, the following objectors initially sought leave to provide oral submissions to the Court at the commencement of proceedings: * Danielle Davis (Exhibit 2, folio 53). * Andrew Goodyer (Exhibit 2, folio 54-56). * Mark Edwards (Exhibit 2, folio 57-63). * Pam Smith (Exhibit 2, folio 65-66). * Jerome Laxale (Exhibit 2, folio 67). 1. At the commencement of the hearing, the Respondent advised that the residents at [11] preferred to rely upon the written submissions which I consider in more detail at [40]-[68]. 2. The Applicant submits that a number of public submissions in support of the proposed development are also a relevant consideration. The objectives of the B1 Neighbourhood Centre 1. The objectives of the B1 Neighbourhood Centre contained in the RLEP are in the following terms: 1 Objectives of zone • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To encourage employment opportunities in accessible locations. 1. It is common ground between the parties that a tattoo parlour is a type of business premises, which is permissible in the B1 zone with consent. 2. The parties are agreed that the proposed development would, if consent is granted, encourage employment in the area and so the proposal can be said to be consistent with the second objective as it is set out in the RLEP. 3. Likewise, the parties are agreed that it is the 'first objective' of the zone with which the proposed development is said to be inconsistent and to which I must have regard when determining a development application in respect of land within the zone, pursuant to cl 2.3 of the RLEP. 4. In essence, the Respondent submits that a tattoo parlour does not serve the needs of people who live or work in the surrounding neighbourhood. In support of this view, Mr Tesoriero considers it necessary to consider how the term 'surrounding neighbourhood' may be best defined. 5. To this end, Mr Tesoriero relies on the LEP Practice Note 'Preparing LEPs using the Standard Instrument: standard zones' (LEP Practice Note), published by the NSW Department of Planning (Ref No. PN11-002) issued on March 2011 (Exhibit 2, folio 41-48). 6. Mr Tesoriero considers the overview of the intended purpose of the B1 Neighbourhood zone in Attachment A 'Overview on the General Purpose of Each Zone' (Exhibit 2, folio 44-49) to be of particular assistance. The overview provides, relevantly: "B1 Neighbourhood Centre The zone is for neighbourhood centres that include small-scale convenience retail premises ('neighbourhood shops'), 'business premises,' 'medical centres' and community uses that serve the day-to-day needs of residents in easy walking distance...This zone should not be used for single 'neighbourhood shops,' as these can generally be permitted within the residential zones. In areas where there is increasing housing density and demand for local retail and business services, a B2 or B4 zone should be considered instead of a B1 zone to cater for expansion." 1. Mr Tesoriero is of the view that the effect of the LEP Practice Note is to clarify that the words 'surrounding neighbourhood' contained in the objective may be considered to be within 'easy walking distance'. 2. Next, Mr Tesoriero applies a widely held 'rule of thumb' to overlay a distance of 800m from the site on the wider locality (Exhibit 3, Figure 1) to identify a 'catchment' of people who live or work in the area within 'easy walking distance' of the proposed development. 3. Having then assessed the range of uses in the catchment, Mr Tesoriero opines that a tattoo parlour would not serve the 'day-to-day' needs of those who live or work in the catchment. Instead, the proposed development would only serve a specific clientele who, in his oral evidence, Mr Tesoriero defines as people who seek a tattoo. 4. Furthermore, the high number of objections to the proposed development from residents in the local area are a further indication that the needs of the community are not met by a tattoo parlour that would be better suited to a B3 Commercial Core zone. 5. In the alternative, the Applicant submits that the proper test to be applied to the proposed development is not whether it serves the 'day-to-day' needs of residents within 'easy walking distance', but whether it is consistent with the objective set out in the RLEP for small-scale business uses that serve the needs of people who live or work in the surrounding neighbourhood. 6. When considering consistency with the zone objectives, it is not necessary to show that the proposed development is compatible with the zone objectives for it to be considered to be generally consistent so long as it is not antipathetic to them as shown by Pearlman J in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21. 7. Furthermore, most businesses permissible within a B1 zone will attract specific clientele, as is the case with a podiatrist, dietician, medical specialist, interior designer or the like. 8. Furthermore, the objective does not stipulate that a business should serve the needs of the surrounding neighbourhood exclusively, or predominantly. If this was the intent of businesses within the B1 zone, Mr Boutros considers it reasonable that business premises, which attract commuting workers, would be prohibited and the Respondent presses no contentions in relation to traffic or carparking impacts or amenity impacts and there is a bus stop located at the shops. 9. According to Mr Boutros, the proposed development satisfies the objective because it is: * small-scale; * a business; and * likely to serve the needs of the surrounding neighbourhood. 1. In support of the needs of the surrounding neighbourhood, Mr Boutros relies on a Community Survey undertaken by the Applicant (Exhibit 3, Annexure A) that attracted 73 respondents – including one participant identified as being resident at the subject site. 2. The Community Survey asked a number of questions in respect of the survey participant's attitude and interest in tattoos, tattoo parlours and awareness of tattoo artists. According to Mr Boutros, the results of the survey indicates there are people who live or work within the Ryde Local Government Area (LGA) who are interested in tattoos and may intend to get a tattoo in the future. 3. In the alternative, Mr Tesoriero is of the view that participants in the Community Survey reside outside the Ryde LGA, and as the survey was promoted on the Applicant's social media account, the participants are self-selecting with a predisposition to tattoos. This is in contrast to the 48 objections received by Council in response to public notification of the proposed development. 4. Issues identified in the public submissions objecting to the proposed development are summarised by the Respondent in par 8, Exhibit 1 as follows: "(a) A tattoo parlour is not in character with the area and the use is not suitable for a residential area. (b) The proposed use would have a significant adverse impact on neighbourhood amenity and drastically lower the tone of the neighbourhood. (c) There is no car parking available, and this will impact street parking which is already limited due to the bus zone and zebra crossing. (d) The approval of a tattoo parlour will increase noise levels and attract persons of bad character. (e) The impact on children who walk past the shop to go to local schools. (f) West Ryde already has a tattoo parlour there is no need for another one in Melrose Park. (g) The proposal will devalue neighbouring property and may impact securing future tenants." 1. A summary of matters raised in submissions in support of the proposed development is also prepared by the Respondent in par 8, Exhibit 1 as follows: "(a) Tattoos are not associated with drugs or criminal activity and the opening of the parlour will not put kids at risk or ruin the family oriented neighbourhood (b) The site is not on a quiet residential street. (c) Most people who get tattoos take public transport and the use will not result in an influx of parking issues. (d) You don't have to be part of a gang to own a business. Opening a tattoo parlour is no different to opening a corner shop. (e) As long as the operators respect the local community and operate to the regulations, I don't see why it would not work for the area." Consideration 1. The wording of cl 2.3 of the RLEP requires that I "must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". 2. The parties are agreed that the test to be applied in respect of the objective the subject of the contention does not require me to find that the proposed development complies with the zone objectives. 3. In considering the zone objective in question, the Respondent's town planning expert suggests that the Court place weight on the LEP Practice Note in order to fully comprehend the meaning of the objective. For the following reasons I find that while the LEP Practice Note is a guide, it should not carry weight in considering the zone objective: 1. Firstly, the objective, while broadly phrased, is not, in my view, ambiguous. It can be understood on its plain meaning. By contrast, the text of the LEP Practice Note, at [20], when applied to remedy what the Respondent considers to be an ambiguity, results in what I consider to be both conflict and ambiguity; 2. The text of the objective supports small-scale businesses to serve the needs of people who live or work in the surrounding neighbourhood (emphasis added). However, the LEP Practice Note appears to redefine those whose needs are to be served as "the needs of residents in easy walking distance" (emphasis added). In doing so, the LEP Practice Note appears to deduct the needs of those who work in the surrounding neighbourhood, as stated clearly in the objective itself. Therein lies the conflict; 3. Secondly, while it is now almost universally accepted that walkable neighbourhoods are desirable for reasons of human health and sustainability, 'walking' is not an explicit or implicit element in the zone objective. Furthermore, while the expression 'easy walking distance' may be a familiar one in conversation, its meaning varies based on factors such as, but not limited to, the fitness and mobility of the individual, terrain of the path to be travelled, the frequency of, or time available in which it is to be undertaken. Consequently, the term lacks the specificity required to clarify or resolve a dispute as to the precise borders of the 'surrounding neighbourhood'; and 4. Thirdly, the LEP Practice Note appears to define the needs of those to be served by the businesses in the B1 zone as 'day to day', whereas the zone objective itself is agnostic as to the frequency or regularity of the needs to be served. Herein lies the ambiguity. While the experts were led into an acute exegesis of this territory, in my view the intent of the LEP Practice Note cannot be to impose an additional test on the regularity of needs served beyond the test that appears in the zone objective. 1. Absent any weight from the LEP Practice Note, I consider the objective to which I should have regard to be that re-produced at [14], as it appears in the RLEP. In my view the zone objective, as it appears in the RLEP, is able to be understood on its face and an over-articulation of the component parts within the objective does not result in further clarity on its intent. 2. The proposed development answers the description of a small-scale business, comprising just two tattoo beds in an area of 29.6m2. The services provided by it are likely, in my view, to find people who live or work in the surrounding neighbourhood, as well as others who may consider the business to be a 'destination' for which they would travel. Public submissions are considered 1. In considering the public submissions in this matter, I am conscious that I hold in balance the concerns of the residents in the area, as expressed in their written objections, with the evidence before the Court in these proceedings. 2. A high number of resident submissions are included in the Respondent's bundle at Exhibit 2. The submissions inform the expert evidence of Mr Tesoriero in Exhibit 3 as summarised at [24]. 3. As shown by Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, at [61]: "… [a] consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area [quoting Pain J in Dixon v Burwood Council [2002] NSWLEC 190 at [66]] (Dixon at [53])." 1. Later at [61], his Honour provides guidance on the weight that is appropriate to give to resident concerns where those concerns are supported by objective or observable consequences of a proposed development. "…whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use." 1. I propose to assess the concerns of residents against the evidence before the Court in the relevant Exhibits, and in the evidence of the experts and, where relevant, by reference to published and accepted guidelines before deciding on the weight that should be given to those resident concerns. 2. In reading each of the submissions contained in Exhibit 2, I note that 24 of the objections are distilled to a single statement of objection, without providing grounds for the objection. I note these submissions but give them no weight as it is unclear on what basis to consider the objection in the context of the proceedings. 3. That said, a number of the objections do provide the grounds on which the objection is based. These are, in my view, adequately summarised by the Respondent at [33]-[34]. 4. Three submissions are particularly deserving of attention as they cite evidence sources that have the potential to contain "objective, specific, concrete, observable likely consequences". 5. Firstly, in her submission, Ms Roslyn Wagstaff (Exhibit 2, folio 189), states that 'it is well known that tattoo parlours draw gangs and bikies – so much so that the NSW Government introduced specific legislation in an effort to control unsavoury and/or violent behaviour in tattoo parlours". 6. In support of which, Ms Wagstaff includes reference to information that appears on the website of the Office of Fair Trading at: https://www.fairtrading.nsw.gov.au/trades-and-businesses/business-essentials/information-for-specific-industries/tattoo-parlours. 7. While not assisted by submissions on this particular issue, I note that the website to which Ms Wagstaff draws the Court's attention includes particulars on the conditions on which a licence may be granted to a tattooist, including, relevantly: "To apply for either a tattooist or operator licence you must: • be at least 18 years of age and an Australian citizen or resident • not be a controlled member of a declared organisation • consent to a National Police Check • provide certified copies of three types of approved identification • lodge the completed licence application form and pay the prescribed fee • attend a police station to have your finger and palm prints taken, when requested. You must also provide details of your previous, current, existing or upcoming employment as a body art tattooist, including any employment as an apprentice. In addition to the above criteria, operator licence applicants must also: • provide a declaration about all close associates, including: • if a close associate is an entity or organisation, you must consider whether the individuals involved in the entity are also close associates. If they are, you must ensure you list those individuals in your declaration as well. • provide, or have your individual close associates provide, certified copies of 3 forms of identification directly to Fair Trading • ensure all individual close associates sign a Close Associate Consent form and consent to a National Police Check. If an organisation has nominated you to be the premises' manager, your application form must detail the entity and the individuals involved, and include a letter which nominates you as the premises' manager." 1. I also note from the website that where a licence is granted, the following conditions apply: "… Operators must also: • make business financial records available for inspection by an authorised officer when asked by written request • notify Fair Trading of any changes in relation to their staff members, close associates or any other licence details, including if a licence has been lost, stolen or destroyed • display the certificate of licence at the licensed premises in a visible location • include their licence number in any advertising • keep a log book of all procedures performed on the premises. The log book must include the: • date/s when the procedure was performed • full name and licence number of the tattooist who performed the procedure • amount charged, method of payment and receipt number (if any). • keep all records in English at the licensed premises at all times, which must be readily accessible by an authorised officer upon written notice. The maximum penalty for not complying with a licence condition is $2,200." 1. What I understand from the link provided by Ms Wagstaff is that tattoo artists are a licenced industry, with strict reporting requirements and penalties for failing in this regard. 2. Next, in their submission, Mr Andrew and Ms Marianne Goodyer (the Goodyer's) (Exhibit 2, folios 55-56) cite the following texts to support an objection on the basis that the demographic profile of Melrose Park is unlikely to need a local tattoo service: * Australian Bureau of Statistics, 2016 Census QuickStats for Melrose Park (Code SSC12563 (SSC)). * Grulich AE, de Visser RO, Smith AMA, Rissel CE, Richters J. Sex in Australia: Injecting and sexual risk behaviour in a representative sample of adults. Aust N Z J Public Health. 2003;27:242– 250. * Heywood W, Patrick K, Smith AMA, Simpson JM, Pitts MK, Richters J, Shelley JM. Who Gets Tattoos? Demographic and Behavioral Correlates of Ever Being Tattooed in a Representative Sample of Men and Women. Ann Epidemiol. 2012 Jan;22(1):51-6. * Makkai T, McAllister I. Prevalence of tattooing and body piercing in the Australian community. Commun Dis Intell. 2001;25:67–72. 1. In essence, the Goodyer's submission is that only a small proportion of the Australian community have a tattoo. Of those that do, most are in the 20-39 year age group, and are least represented in ages below 20, or over 40. As it is put by the Goodyer's, the age profile of residents of Melrose Park is "almost the exact opposite of this pattern". As a consequence, the tattoo parlour would not provide a "'direct and ongoing service' as intended by the zoning". 2. The reference to 'direct and ongoing service' appears to originate from a finding of the Ryde Local Planning Panel (Exhibit 2, folio 70). My reading of this finding is that the Panel appears to be describing a view of services that would be 'more aligned' with the B1 zone such as a newsagency, hairdresser or bakery. 3. In doing so, the Panel is not describing the objective of the zone. However, I choose to read into the Goodyer's submission the correct phrasing of the zone objective and understand their submission to be that the evidence is, in effect, that the needs of people who live in the surrounding neighbourhood would not be served by a tattoo parlour as they would by other business premises. 4. As stated at [37(2)], the zone objective to which the Court must have particular regard requires the needs of those who live or work in the surrounding neighbourhood to be served. The proposed development is for a tattoo parlour, not a newsagency, hairdresser or bakery. 5. In this matter, consistency with the zone objective is not a contest of interests competing for desirability but is an assessment of conformity against the objective by this application. Where the former is the aim, it is not uncommon for Council's to devise retail attraction and activation strategies where shopfronts lie dormant and this work may be underway in the Ryde LGA to enliven the Andrew Street/Cobham Avenue shops with a newsagency, hairdresser and bakery. 6. Finally, Mr William Jones provided a link in his submission (Exhibit 2, folio 227) to a paper entitled "Inked into Crime? An Examination of the Causal Relationship between Tattoos and Life-Course Offending among Males from the Cambridge Study in Delinquent Development". 7. While the link was not able to be accessed by the Court due to online registration requirements, an article of the same name was accessible via Journal of Criminal Justice, Volume 42, Issue 1, January–February 2014, Pages 77-84. 8. As I understand the study, a longitudinal study of more than 400 British males sought to determine if a link between tattoos and crime may in fact be causal. 9. As I understand the results, the study found that tattoos are better considered to be a symptom of other risk factors and personality traits that may overlap with tattooing and being involved in crime, rather than being a causal factor for predicting crime in an individual's life. Put another way, the connection between tattoo's and crime is likely correlational, not causal. 10. In summary, a majority of the public submissions state that a tattoo parlour would not serve their needs, and that its presence would represent a risk to school children and be out of character with a family-oriented neighbourhood. 11. From all the evidence before me, I cannot make a finding that the proposed development is such a risk. The industry is regulated. Tattoo artists are required to be licenced, with strict reporting requirements. 12. The Ryde Police Area Command set out, at Exhibit 2, Tab 8, an assessment of the proposed development against the Crime Prevention Through Environmental Design (CPTED) principles and conclude that, with the addition of CCTV cameras and certain external lighting, the proposed development is acceptable. 13. In respect of the needs to be served in the B1 zone, from the evidence before me, I am unable to conclude that the needs of those who live or work in the surrounding neighbourhood would not be served by the proposed development. I do not read the text of the zone objective to require the needs to served with any regularity or frequency, and I consider the term 'surrounding neighbourhood' to be a term of such broad generality as it is not sought to be defined in the dictionary of the RLEP. 14. I do not accept the concerns found in the public submissions that a business that is limited, by virtue of the 2 tattoo beds proposed within an area of 29.6m2, to service a maximum of two clients at a time, is likely to result in such demand as to cause nuisance or excessive demand for car parking in the area. 15. As I consider the proposed development to be consistent with the zone objective, and I find nothing in the public submissions that is likely to result in adverse environmental, social or economic impacts on the local area, I conclude that the proposed development warrants the grant of consent in accordance with s 4.16(1)(a) of the EPA Act. The conditions are disputed 1. The Applicant disputes the need for Condition 39 as set out in the Respondent's without prejudice draft conditions of consent at Exhibit 4. The Condition as proposed by the Respondent is in the following terms: "Long Service Levy. Documentary evidence of payment of the Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 is to be submitted to the Principal Certifying Authority prior to the issuing of the Construction Certificate." 1. In summary, the Applicant considers the Condition irrelevant as the application is for a change of use, for which a Construction Certificate is not required. 2. According to the Respondent, in the event a Construction Certificate is not required, then the Condition is not enlivened. In the event that a Construction Certificate is required, a Levy amounting to a sum of between $16-$18 will be owed. 3. I agree with the Respondent that the Condition is self-executing and I find no purpose in its removal. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. LDA2019/78 seeking consent for the change of use of part of the ground floor of the building to a 'business premises' to accommodate a tattoo parlour at 31 Cobham Avenue, Melrose Park subject to the conditions in Annexure A. 3. All Exhibits are returned except for Exhibit A. ……………… T Horton Commissioner of the Court Annexure A (169539, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2020