Land and Environment Court of New South Wales CITATION : Cresville Pty Ltd v Sutherland Shire Council [2005] NSWLEC 298 APPLICANT Cresville Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 11525 of 2004 CORAM: Hussey C KEY ISSUES: Appeal :- Sex shop - consistency with controls - proximity to sensitive land uses - signage - public interest Environmental Planning and Assessment Act LEGISLATION CITED: Sutherland Local Environmental Plan 2000 CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 06/04/2005 and 24/05/2005 - Final orders 29/06/2005 DATE OF JUDGMENT: 06/07/2005 APPLICANT Mr A Pickles, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr J Reilly, solicitor SOLICITORS Abbott Tout JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 7 June 2005 11525 of 2004 Cresville Pty Ltd v Sutherland Shire Council JUDGMENT Background 1 This appeal is against council's refusal of a sex shop at 356 Port Hacking Road, Caringbah. The subject premises are situated at first floor level and cover an area of approximately 268 sq m. Access is gained from a single doorway at Port Hacking Road, via stairs leading to a landing partway to the first floor. 2 The site is situated within the Caringbah commercial area. Adjacent to the north is a Chinese restaurant. Further to the north are other commercial uses on the ground floor with non-retail above. A mixed/commercial building is on the southeast corner of Port Hacking Road and Kingsway, some 30 m north. 3 To the south is a doctor's surgery and then other retail use premises on the ground floor with non-retail above. Across Port Hacking Road there are shops, a hotel, offices and a preschool. 4 There is a church across Port Hacking Road, approximately 110 m south of the subject site. The proposal 5 This application is for an internal fit out and use of the first floor as a retail store selling adult books and publications, novelties lingerie, clothing and marital aids. 6 Existing toilets and plant rooms are to be retained. All windows are to be finished with obscure materials to prevent visibility into the interior of the premises. 7 The proposed hours of operation are 9 am to 10 pm Sunday to Thursday and 9 am to 12 am on Fridays, Saturdays and public holidays. 8 Two full-time and two part-time staff will be employed at the premises. 9 A maximum of one delivery by small van will be made to the premises once per week. Delivery shall between 10 a.m. and 4 p.m. 10 Access to the restricted premises is to be controlled by a security door at the stairway landing, which has a video link to the counter area of the shop that enables the manager to control all entry to the premises. The issues 11 The issues identified for this appeal mainly concern the suitability of the location for this development, considering the social impacts on the area. Also: * its inconsistency with the prevailing controls, which may undermine the viability of business centre. * non-compliance with the Caringbah Centre Development Control Plan and Brothels and Sex Shop – Development Control Plan. * proximity to other sensitive land uses, including another sex shop. * advertising/signage. * public interest/objections. Planning controls Sutherland Shire Local Environmental Plan 2000 12 Under this LEP, the site is zoned 3(a) General Business. 13 The objectives of the 3(a) zone are: (a) Appropriately located land for the provision of a wide range of retail, business and professional activities. (b) Business centres with integrated public transport and pedestrian networks. (c) Viable business centres supported by appropriate forms of residential development . 14 Business that requires development consent includes business premises, sex shops, shops. 15 Clause 46 states - Can development within the business zone be limited? Regardless of the development control tables in this plan, a development control plan relating to land within a business zone may recommend restrictions on specific types development otherwise permitted on the land. Caringbah Centre Development Control Plan 16 This DCP contains guidelines for development within this commercial centre and contains the following Objective (ii): Development must contribute to an improvement in the social sustainability of the Centre by providing a high quality residential and shopper environment, contributing to the provision of community facilities and adding to the general vitality of the Centre. Brothels and Sex Shops - Development Control Plan 9.3/11. 17 This DCP came into effect on 14 April 2005. It contains the following restrictions for sex shops: Sex Shops 1) Siting and Location - Sex Shops Development for the purpose of a sex shop may be carried out only with development consent. A sex shop must not be located: i) within 50 m of any form of residential (excluding 9(a) Mixed Residential/Business zone), open space or special uses zone or land where the activity is identified as a sensitive land use. Sensitive land uses include, but are not limited to, place of public worship, churches, schools, transport nodes, residential dwellings, child care centres, family health centres, senior citizens centres, licensed premises (licensed under the Liquor Act 1982) and facilities and places typically frequented by families or children . ii) within 100 m of the boundary of an existing legally operating sex shop. iii) on the ground floor of retail or commercial premises. iv) within immediate proximity to the residential entrances of a mixed development. v) where it may conflict with the residential amenity of a mixed development. vi) on land owned by or under the care, control and management of the council. 2) Vehicular access and parking A minimum of one (1) parking space is to be provided for every 40 sq m of floor space. 3) Advertising and display All advertising must comply with council's requirements for the General Industrial, General Business and Mixed Residential/Business zones in the Development Control Plan for Advertising Structures and Signs. In addition to these council requirements, all brothels and sex shops must comply with the requirements of the Crimes Act 1900 Section 578(e) and Classification (Publications, Films and Computer Games) Enforcement Act 1995. Advertising Structures and Signs – Development Control Plan 9.3/05 The evidence 18 The parties agreed to Mr Juradowitch being the Court-appointed expert (CAE) for planning matters and he prepared detailed reports, which are Exhibits B and 10A. Other expert evidence was presented by Mr K Nash, a consulting town planner, on behalf of council. The detailed objections contained in Exhibit 7, the petition in Exhibit 9, together with the oral evidence of a number of objectors has also been considered. 19 Mr Juradowitch's initial assessment was undertaken in response to the issues identified, based on the prevailing controls. From this he concluded that the application merits conditional consent. 20 However after the close of the respective cases, leave was granted for council to reopen. This resulted in the Brothels and Sex Shops DCP 9.3/11 becoming a new exhibit. Consequently Mr Juradowitch reassessed the proposal on the basis of these controls and maintains his support for conditional consent of the proposal. In doing so, he addressed the relevant planning issues raised by the various objectors. 21 The first issue addressed by Mr Juradowitch concerns the matter of consistency with the planning controls. On his analysis, the first test of locational appropriateness comes from the Sutherland LEP 2000, which defines sex shops and prohibits them in all zones except the General Business 3(a) Zone and the Mixed Business 9(a) Zone. In effect, these LEP controls restrict sex shop development opportunities to the larger commercial centres in the Sutherland Shire and prohibits them in other areas such as the 3(b) Neighbourhood Business Zone and the industrial zones. 22 From this, Mr Juradowitch says there is an obvious planning intent to contain but allow sex shops in the larger business centres within the Shire, including the Caringbah Centre. Insofar as council raises the issue that this proposed sex shop is inconsistent with the zone objectives, Mr Juradowitch says that it seems incongruous that sex shops would be a permitted land use in this zone, where the absence of any other clauses, precludes approval of such a development. 23 Accordingly Mr Juradowitch concludes that having regard to the form and structure of the Sutherland LEP 2000, development for the purpose of sex shops is envisaged to occur in the larger commercial centres such as the Caringbah Centre. Further, such use is permissible in the 3(a) General Business Zone and is "in principle" consistent with the objectives of this zone, although any inconsistency would be subject to consideration of cl 46 provisions. 24 Insofar as, Mr Nash opposes the development, this is predominantly on the basis of his assessment of the character of the immediate neighbourhood, which includes a number of retail uses. As some of these businesses attract unsupervised teenagers and families, he considers the location of the sex shop is unsuitable. 25 Mr Nash sought to distinguish this strip of Port Hacking Road retail from the apparently more intensive uses adjacent to The Kingsway. However, it appears that shop usage in the centre is of a dynamic nature, which includes a variety of retail/commercial use. The significance of the distinction sought by Mr Nash does not seem to be made in the Caringbah Centre DCP. 26 Nevertheless in consideration of the cl 46 provisions, Mr Juradowitch assesses the effect of the Caringbah Centre DCP, which provides the strategic planning direction for the Centre. Even though sex shops are permissible, this DCP does not provide design or locational controls for them. It does however, refer to specialty or niche retailing, which Mr Juradowitch considers generally covers the proposal. 27 However, Mr Juradowitch is unable to ascertain any details in the controls which deal with sex shops undermining the viability of other retail uses. He acknowledges that some members of the public could find the use offensive and not shop in the Centre or at nearby retailers, which could result in some loss of expenditure. But on the other hand, he says there may be people in the community that currently do not visit this Centre, who might bring patronage to it. Furthermore, the consent would result in expenditure for the refurbishment and subsequent use of currently vacant premises, which is a positive element. 28 Mr Juradowitch also notes that there is an existing, similar sex shop nearby at 322 The Kingsway, which does not appear to have caused vacant shops in its vicinity. In the absence then of any economic data to support the view that viability of businesses within the centre, or similar commercial centres has been undermined, he does not consider this concern sufficient to warrant rejection of the application. Furthermore he says that if sex shops are seen as a threat to business viability within those identified business centres, it seems illogical to allow them as a permissible use, in the first place. 29 In respect of this issue, I rely on the position presented by Mr Juradowitch. It is apparent from a review of the planning evidence presented to the Court, that some consideration has been given to be permissibility and location of the sex shops within the Shire. The proposed location is one of the few permitted, and there is no substantive evidence in my assessment, which indicates inconsistency with the zone objectives or adverse effect on the viability of the Centre. 30 As Mr Juradowitch observed, the operation of 322 The Kingsway could have provided evidence of adverse viability, but this apparently is not the case. Interestingly, when requested, the council was unable to provide any details of the viability assessment it undertook for No. 322, prior to it granting development consent. It seems to me that the question of viability lends itself to some quantitative analysis, for which no objective assessment criteria has been presented to the Court. Therefore I rely Mr Juradowitch's opinion that this is not sufficient grounds to warrant rejection of the application on these grounds. 31 Notwithstanding this, other issues concerning social sustainability, character of development and amenity were also addressed. One of the principal concerns arose from the proposed "Sin City" signage at the entrance to the shop. However, the applicant amended this aspect to provide more discreet advertising, so as to avoid any perceptions of a " red light " district. With the amendment of the proposed signage, Mr Juradowitch considers the proposal satisfactory in terms of impact on the character of locality and I accept this can be covered by conditions of consent, which allows council to determine final signage. 32 Nevertheless, Mr Juradowitch recognises that some sections of the community consider that businesses of this type are offensive and would therefore consider the amenity of their visit to the Caringbah Centre diminished if they pass by such premises. However his view is that this impact more likely arises from the proposed signage, rather than the actual conduct of the shop, legally selling items of a sexual nature from the first floor of a commercial building. Therefore with the change in signage, the amenity impacts are within reasonable limits, subject to it operating within reasonable time limits. 33 Also in respect of this social impact issue, I note that the proposal was reported to council's IHAP, on the basis that the proposed use is considered to present a relatively discreet appearance from the street (subject to conditions regarding advertising signage) and it is unlikely that the community structure, character, values and beliefs would be adversely impacted as a result. 34 Insofar as Mr Juradowitch initially assessed the impact of the proposal in the absence of specific locational criteria, the late presentation of DCP 9.3/11 now provides some details, which he has further considered as a relevant matter under cl 46 of the LEP. But he notes that these DCP controls can only recommend restrictions, rather than prohibit locations for specific land uses and therefore some discretion can be exercised, depending on the merits of each application. 35 He acknowledges that it is generally recognised that sex shops should not be located in close proximity to locations where young persons congregate, e.g. a school, or where there is likely to be a concentration of persons who may be offended by the nature of such business. Another planning principle he acknowledges is that sex shops are generally not located at ground level in shopping centres and there should be an avoidance of signage which is likely to draw attention to the nature of the activity. Accordingly he has assessed this proposal on the basis of DCP 9.3/11 provisions. 36 Before considering this assessment, I think it relevant to consider the background to this DCP 9.3/11, considering its late presentation, to ascertain what discretion may be allowed and therefore what weight should be given to it. This is in line with the authority established by His Honour, the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, where he stated: Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Ply Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Ply Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are: * A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. * A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. * A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. * A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. * Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property. 37 Accordingly, the council provided some background details for the DCP, so that the Court could obtain a better understanding of the underlying rationale, particularly the stated separation distances of 50 m/100 m to residential properties and other "sensitive" land uses. 38 These details are contained in the council officer's report of 14/3/2005 (EHC 236-05), which provides the response to council on the results of the public exhibition of the Draft Development Control Plan. This report confirms council's previous resolution to prohibit brothels and sex shops in the Shire, was not supported by DIPNR and therefore due care was required in establishing controls which did not result in the prohibition of these type of uses. Insofar as council preferred a 200 m buffer to residential properties as applies to brothels, the report states: The 200 m control is only possible for brothels due to the large area of industrial zone. With the 200 m restriction the available land for brothels is also restricted as much is possible. Since the size and area of 3(a) and 9(a) land is small, 50 m restriction is as large as possible. The Department of Infrastructure Planning and Natural Resources has indicated in its Section 62 response that it favours severe restrictions as long as they do not combine to effectively prohibit permissible development. Increasing the buffer distance for sex shops in the 3(a) and 9(a) the zones would have this effect. 39 From this it is apparent that there is no particular objective criteria for the 50 m separation distances, other than being a convenient distance to maximise the restriction of this type of development. It does however create some inconsistencies because sex shops are permitted in the two, 9(a) zones in the Centre, which adjoin residential areas because this zone permits mixed commercial development (where sex shops could be located), above which shop top housing is allowed and encouraged. Therefore separation of sex shop patrons and residential dwellers would be quite difficult and apparently some mixing/interaction is envisaged. 40 Another aspect of the separation requirement, is the distance to other sensitive land uses. The report provides no objective details on the determination of sensitive land uses, but states that: Although the identified sensitive land uses is not a comprehensive list the addition of additional land uses will reduce ambiguity. It is proposed to amend Section 8 to identify facilities that serve alcohol (under licence), senior citizens centres and family health centres and sensitive land uses. 41 Furthermore there is no link established concerning adverse amenity impacts between premises that serve alcohol and sex shops. Nor does there appear to be any attempt to ascertain the restrictive effect of the application of these provisions, considering there are a number of licensed restaurants spread through the commercial centre. When this requirement is applied, it is likely to severely restrict, or prohibit sex shops, which could otherwise be allowed and this would be contrary to the role of the DCP, as outlined by the Chief Judge. 42 Accordingly, it appears to me that there is no apparent objective rationale for the separation distances, other than to provide an additional level of restrictions on these types of uses. There is no qualification in terms of relaxation of the distance if there is separation due to a main road, railway or other form of barrier. Under these circumstances, I consider that a reasonable level of discretion can be exercised in this case, in the application of these controls and therefore this DCP is only given limited and not determining weight. I also consider it reasonable to give diminished weight to this DCP, because of its late presentation, relative to the date of lodgement of this application. 43 Nevertheless Mr Juradowitch has assessed the proposal in terms of DCP 9.3/11. At the further hearing, evidence in the form of an objection was presented from the occupier of the adjoining residential dwelling, which is also situated at first floor level. This occupier apparently experienced unacceptable, antisocial behaviour in the vicinity of her property when the subject premises was previously used as an illegal brothel. However, it seems to me that the operation of an illegal brothel would likely have much different impacts. There was however no objection from the owner of this adjoining residential tenancy. 44 According to Mr Juradowitch 's evidence: The DCP controls in relation to separation distances from residential development are somewhat contradictory. The DCP controls appear to exempt the 50 metre separation distance to dwellings for any dwellings located within the 50 metre separation distance to dwellings for any dwellings located within the 9(a) Mixed Residential/Business zone, but do not provide such exemption for residential dwellings located within the Business zone. There appears to be no logic in the distinguishing between dwellings in a Residential/Business zone and those in other Business zone. 45 In his opinion, the essence of the 50 m separation distance in the DCP is focused on achieving adequate separation to dwellings within other residential zones and it is therefore inappropriate to require a 50 m separation distance to dwellings in the business zone, when no such separation distances are required in the Residential/Business Zone. 46 Even though this interpretation was challenged, I consider it reasonable in the circumstances of this case, where there will obviously be a different level of residential amenity expectation within the business zone, as compared to that expected in the predominantly residential areas/zones. 47 In assessing this objection and impact on the adjoining residential tenancy, I think that due consideration should be given to its particular entry arrangement. It is apparent from the view that the residential entry is readily distinguished from the proposed commercial entry because it has a recessed lobby from the street, before reaching its front security door. It also appears that this residence has alternative rear access from the carpark, which allows the residents to avoid any or all persons who use the Port Hacking Road, footpath adjacent to their entry door. When due regard is made for these characteristics, it supports Mr Juradowitch's opinion that the amenity impacts are reasonable, for a sex shop in the business zone that is most likely to have different impacts to a brothel. 48 As the sex shop is to have discrete directional signage and the independent doorways are separated, I do not consider that the proximity of the proposed sex shop to this neighbouring residential tenancy, in the business area, is sufficient to warrant rejection of this proposal, providing it operates in accordance with the conditions consent. In this regard, I note Mr Juradowitch qualifies his support for the proposal, by recommending a limited time consent of 12 months, to allow a trial period for the development, to ensure it can act as a reasonable neighbour in the current context. I accept this conclusion is reasonable, although I note that the applicant prefers a longer time period, if this type of condition is imposed. 49 Another concern regarding non-compliance with the DCP is that the Caringbah Inn, which is a licensed premise, is located approximately 33 m from the northeast corner of being proposed sex shop entry. However, Mr Juradowitch says that: I have not been able to identify the council's reasons for including licensed premises as a sensitive land use in relation to sex shops. Licensed premises are not locations where persons under 18 congregate in significant numbers, nor are they likely to be a location where persons who may be offended by sex shops are likely to congregate. There may be an implication that persons who consume alcohol could in some way be undesirably influenced by the proximity of the business selling sex-related material. I am not aware of any objective justification to include licensed premises as a sensitive land use in relation to proximity to sex shops. Whilst the proposed sex shop is located within 50 metres of licensed premises, namely the Caringbah Inn, I consider that such a locational characteristic is not determinative and does not warrant refusal of the proposal. 50 Insofar as there a number of other commercial facilities and places frequented by families or children, including the Take Away Food Bar to the north, Mr Juradowitch agrees that takeaway food shops probably includes a high percentage of children under 18 years old that would be attracted to this, along with many other forms of retailing. But he does not consider this land use is likely to attract concentrations of children, which is a normal use in a suburban shopping centre, where the controls otherwise allow the coexistence of a sex shop. 51 Taking into account the relatively discrete entry and upstairs location of the sex shop, I accept Mr Juradowitch's opinion that the neighbouring food shops and other nearby land uses are not such as to attract significant concentrations of children under 18 and therefore it is not necessary to refuse this application because of its proximity to other neighbouring uses. It seems to me that it could co-exist with other commercial premises, similar to No. 322 The Kingsway, which is the intention of LEP 2000. Public interest 52 As I noted, considerable public interest and objection has been expressed against this proposed sex shop. Some of this relates to the unacceptability to the concept of any sex shop in the Caringbah Centre, or for that matter in the Shire. However I consider the thrust of the planning issue objections from the residents has been fairly dealt with in Court-appointed expert- Mr Juradowitch in his detailed assessment. Accordingly I am satisfied to rely on his opinion that this proposal merits conditional consent, including a trial period of 12 months, during which any complaints, or impacts can be carefully monitored. Conclusions 53 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied that this application demonstrates reasonable compliance with the relevant planning controls to merit conditional consent. In particular, it satisfies the intent of LEP 2000 which provides very limited opportunities for such sex shops, but the subject location in the 3(a) Business Zone is one such location. 54 The application has then been assessed against the specific controls in DCP 9.3/11 and whilst, it is non compliant with some of the separate controls. In my opinion they are overly restrictive, particularly in the absence of any detailed, objective rationale being presented to the Court. It is apparent that no detailed surveys of land use have been applied to the formulation of this DCP, because the separation list of "sensitive land" uses quite likely unreasonably restricts sex shop opportunities, which LEP 2000 otherwise permits in the cl 3(a) General Business Zone. Therefore I give these controls diminished weight and do not accept the controls as determinative in this case, because of the inconsistencies identified with the primary control LEP 2000. 55 Insofar as there is considerable objection to the proposal, a significant part of this is against the concept of sex shops location and not directly relating to planning merits consideration. In any case, I am satisfied that Mr Juradowitch has adequately addressed these objections and I am satisfied to rely on his opinion that the proposal merits consent, which includes discrete, inoffensive identification signage. 56 In addition to Mr Juradowitch's assessment, I note that the application was assessed and considered by council's IHAP on the basis that: Context and Setting The development application submitted does not propose to display any material of an offensive nature to the public domain or surrounding locality and is controlled by Section 78E of the Crimes Act 1900. Penalties apply to any person who fails to operate premises contrary to this legislation. The existing door providing access to the first floor of this building does not exude a notable presence to the street. Subject to conditions regarding advertising signage, the use proposed is not incompatible with surrounding land uses. There are no visual or acoustic impacts associated with the use. 7- Public Interest The proposed use will provide a service to the general community. No comment is provided in response to the issues raised regarding community standards and morality in the submissions received. Whilst issues of morality and community standards are not matters for assessment in accordance with Section 79C of the Environmental Planning & Assessment Act 1979, the social effect of a land use is a relevant matter and is discussed under social impact. 57 Accordingly, the IHAP conclusion was that conditional consent be granted (including a 12 month trial period). This is consistent with Mr Juradowitch's conclusion, which I rely on in granting conditional development consent to this proposal, because I consider it demonstrates reasonable compliance with the relevant LEP 2000 controls. Court orders 58 Therefore the orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to DA 04/0924 for a sex shop on the first floor level of the existing premises at 356 Port Hacking Road, Caringbah, in accordance with the conditions in Annexure A. 3. Exhibits may be returned except for Exhibits 1, 10A, 11A, A, B and C. ________________________ R Hussey Commissioner of the Court rjs/ljr 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.