KEY ISSUES - swan.wa.gov.au€¦ · • Fabrication, assembly and maintenance of shop fittings for adult products. The proposed sale of adult goods from the subject unit would represent

Ordinary Meeting of Council 17 December 2014

3.1 PROPOSED CHANGE OF USE FROM SHOWROOM TO INDUSTRY-LIGHT - LOT 1 (UNIT 6/NO.1904) BEACH ROAD, MALAGA (DA731-14)

Ward: (Ballajura Ward) (Statutory Planning)

Disclosure of Interest: Nil

Authorised Officer: (Executive Manager Planning)

KEY ISSUES

• The applicant seeks planning approval for a Change of Use of an existing vacant Showroom unit to ‘Industry–Light’. The premises is intended to be principally used as a central receiving point of adult goods, which are to be assembled into packages, wrapped, boxed and labelled before transferral to the owners of four other “Everyman Stores” within the Perth Metropolitan area. Fabrication of shop fit-out material for these other stores will also be undertaken from these premises.

• The premises is intended to have a shop front of approximately 60m2 which will sell a quantity of the adult goods received (approximately 20%).

• The subject lot is zoned 'Highway Service' under the City’s Local Planning Scheme No.17 (LPS17).

• The central issue in the assessment of this application is whether, on the details provided, it is properly classified as 'Restricted Premises' – which is a use not permitted in this zone, or 'Industry–Light' which is a discretionary 'D' use in the zone.

• The application was advertised to other businesses within the complex – 4 submissions were received, 3 being objections opposed to the nature of the business, the clientele it will attract and its potential impact on children.

• Weighing up all the details, and noting that the proposed use will have no adverse impact on the amenity of the locality (moral opinions set aside) it is considered to be properly classified as 'Industry-Light'

• The proposed use does not conflict with the objectives of the Highway Service zone and the development complies with relevant City Policies including car parking and signage.

It is recommended that Council approve the application for a Change of Use of Unit 6 on Lot 1 (No.1904) Beach Road, Malaga from 'Showroom' to 'Industry-Light' subject to standard conditions.

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AUTHORITY/DISCRETION

Council has discretion in accordance with Clause 10.3 of Local Planning Scheme No.17 to approve (with or without conditions) or refuse to approve the application. If the applicant is aggrieved with the decision of Council, a right of appeal may exist in accordance with Part 3 of the State Administrative Act and Part 14 of the Planning and Development Act 2005.

BACKGROUND

Applicant: Samec Planning Owner: Agostino Nominees (Directors: Emilia Testi, Natalina

Agostino, Pietro Luigi Testi) Zoning: TPS - Highway Service MRS - Industrial Strategy/Policy: POL-TP-129 Vehicle Parking Standards Development Scheme: Nil Existing Land Use: Vacant Showroom Lot Size: 10526m2 Lot Area: 173m2 Use Class: Industry–Light ‘D’

DETAILS OF THE PROPOSAL

The applicant seeks approval for a change of use of an existing vacant Showroom to ‘Industry–Light’ to enable the bulk receival, storage, processing, re-distribution and incidental retailing of adult goods. Signage on the façade is also included in the application for approval.

The floor area of the unit is proposed to be used as follows:

• Industry-Light processing area = 85.00m2 • Male & female toilets + screened areas = 18.67m2 • Incidental selling of adult goods by retail = 59.52m2

Total ‘Industry–Light’ GLA = 173m2 GLA

Refer to Attachment – Floor Plan

It is proposed to create a loading bay inside the unit accessible via the existing roller door to provide for greater security for loading and unloading goods from delivery vans.

The processing component of the 'Industry-Light' includes the following activities for a total of 5 adult shops throughout the Perth region:

• Colour brochure, label and gift voucher printing. • Brochure cutting to size by electric guillotine and folding by electric paper folder. • Plastic wrapping of adult publications by a shrink wrapping machine which applies

heat to seal and shrink wrap the plastic. Page 2


• Cutting by the shrink wrapping machine to suit the shrink wrapping of different sized publications.

• Assembly of 2 or more adult goods to create ‘multi packs’. • Assembly of DVDs into plastic boxes and insertion of colour sleeves. • Fixing of labels on classified and restricted adult goods. • Boxing of adult goods ready for distribution to the applicant’s 4 adult shops in

Perth. • Fabrication, assembly and maintenance of shop fittings for adult products.

The proposed sale of adult goods from the subject unit would represent a ratio of about 1/5 or 20% of the adult goods processed there for a total of 5 adult shops (including Unit 6).

'The Everyman Store’ standard signage and branding used throughout other Perth stores is proposed for the façade. Refer Attachment – Front Elevation. Opaque window treatments are proposed.

DESCRIPTION OF SITE

The subject site is a vacant ground floor unit within an existing commercial/industrial premises located approximately 100m west of the intersection of Crocker Drive and Beach Road. Refer to Attachment – Location Plan.

SITE HISTORY/PREVIOUS APPROVALS

The existing commercial/industrial development that contains the subject unit was constructed in approximately 1988. The subject unit was previously approved for ‘Showroom’.

The City has granted approval to several Change of Use planning applications for premises on the subject land since the original approval.

The subject land is affected by Additional Use No.8, initially introduced into Town Planning Scheme No.9, and gazetted on 8 November 1991. This facilitates Offices and is restricted to the first floor units only.

In December 2013 the City received a request from this same applicant to amend the abovementioned Additional Use to include a new permitted use of ‘Restricted Premises’ for the subject unit. If approved the Scheme Amendment would have enabled the City to consider a development application for an ‘adult shop’.

The request was referred to the Ordinary Council meeting of 20 August 2014 where City staff recommended refusal, refer Item 3.2. Council deferred the matter “….to provide the opportunity for the applicant, Councillors and City officers to meet and discuss the proposed Scheme Amendment.”

The applicant subsequently withdrew the Scheme Amendment request and submitted this development application with precise details as to the nature of the proposed use of the premises.

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OTHER RELEVANT PREVIOUS DECISIONS OF COUNCIL

Nil

APPLICANT'S SUBMISSION

The applicant's submission is summarised as follows:

• The proposed use falls into the Use Class of 'Industry-Light' as it consists of a predominant industry use and an incidental retail use consistent with the definition.

• The processes carried out are consistent with the amenity of the area as they are vibration free, virtually silent and will not produce waste except shrink wrap and paper off cuts. Goods are delivered in a delivery van. The machinery used operates from the existing power outlets and there is no need to upgrade the services. Hence the use will not impose an undue load on existing or proposed services in accordance with the 'Industry-Light' definition.

• The retail sale of adult goods will be incidental to the main use of the premises as a distribution and processing centre for 5 stores throughout Perth. Retail sales from the subject unit would therefore comprise approximately 20% of the sales from 100% of the goods processed at the unit.

• The incidental sale of adult goods by retail should not be classified as a separate use, but should be considered as part of the use constituting the predominant use. This planning principle has been established in State Administrative Tribunal (SAT) cases. As such no part of the proposal should be classified as ‘Restricted Premises’.

• The objections received from nearby businesses cannot be substantiated and are not valid planning reasons for refusal.

• There is sufficient car parking on site to meet the demands of the change of use.

• The signage of ‘The Everyman Store’ avoids stereotypical adult store signage and imagery. The proposed signage at the subject unit will present with no more or no less signage than other existing commercial premises on Beach Rd.

• Approval of this proposal in an industrial area is consistent with a decision made by the SAT when approving ‘The Everyman Store’ in the Canning Vale industrial area.

• It is concluded that the proposed 'Industry-Light' and incidental retail use is appropriately located on planning grounds.

PUBLIC CONSULTATION

The application was advertised to all tenants within the subject land and to the adjoining landowners. A total of 4 submissions were received from surrounding businesses, consisting of 3 objections and 1 non-objection.

The objections are summarised as follows:

• This use is inappropriate adjacent to family friendly/oriented businesses and in particular next to a pet shop frequented by children.

• Children frequent our offices on a daily basis.

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• Professional businesses who are promoting respectable first impressions will be stigmatized by this type of store; it reflects poorly on the businesses and will damage our reputation.

• Standards and morals are slipping. An adult store means a downwards spiral for the complex.

• Will attract a percentage of unsavoury patronage to the area. • Could affect our sales as a result of customers avoiding the complex due to this

unsavoury element. • Our female staff feel uncomfortable about the proposal, and are worried about their

safety with the type of customers this store will attract. • Hope that common sense and morality prevails. These issues will be addressed further in the report.

DETAILS

Zoning, classification and permissibility of use.

The subject lot is zoned Highway Service under the City’s Local Planning Scheme No.17.

In the classification of the proposed use of the premises it is necessary to consider the facts stated in the application.

The goods that 'The Everyman Store' trades in may be commonly described in the parlance as 'Adult’ goods – being printed and film material that is restricted in nature and other goods that have a sexual connotation.

The City’s Scheme has a use class that pertains to such goods, this being “Restricted Premises” that is defined as follows:

“Restricted Premises” means premises used for the sale by retail or wholesale, or the offer for hire, loan or exchange, or the exhibition, display or delivery of —

(a) publications that are classified as restricted under the Censorship Act 1996;

(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;

The development application submitted makes it clear that the use of the premises will be as a central receiving point for quantities of 'adult' goods. Approximately 80% of the quantity of these goods will then be delivered to the four other Everyman Stores in the Perth Metropolitan Region. Certainly the mere fact that the goods are to be delivered from these premises to the other stores is not considered to exclude this application from falling into this use class.

It is the view of City staff that the key consideration in the classification of this application is the activity that is proposed to occur on the premises prior to the delivery of the adult goods to the other stores and which occurs at other times. The application states that the goods will be assembled into packages – inclusive of the addition of brochures, vouchers and covers, wrapped, boxed and labelled before being redistributed to the other four Everyman Stores. The brochures, vouchers and labels are produced onsite.

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In addition, fabrication of shop fit-out material for these four other stores and ongoing maintenance of such fittings will also be undertaken from the premises.

By contrast only 20% of the total stock of goods proposed to be received and processed from the premises will be actually sold from the premises.

On this basis it appears quite reasonable to conclude that the action of sorting the products into packages and their wrapping, labelling and boxing, in conjunction with the production of brochures, vouchers and labels and the design, manufacture and maintenance of shop fit out material is the predominant activity. The retailing activity from the premises would therefore be the ancillary activity.

As noted, the 'Restricted Premises' definition clearly encapsulates the sale of these types of goods and extends to include premises from which these types of goods are delivered. The definition however doesn’t make direct reference to the assembly of the publications or materials, including the manufacture of component parts (labels and brochures), nor the manufacture of other materials -shop fittings - which City staff are satisfied is the predominant activity that is to occur.

Having so concluded the nature of the predominant activity proposed under this application, and considered deficiencies in the application of the 'Restricted Premises' use class to it, an alternative classification needs to be considered.

The Scheme has a range of industrial use classes which are aided in definition by an overarching definition of 'Industry' as follows:

“Industry” means premises used for the manufacture, dismantling, processing, assembly, treating, testing, servicing, maintenance or repairing of goods, products, articles, materials or substances and includes the use of premises on the same land used for —

(a) the storage of goods;

(b) the work of administration or accounting;

(c) the selling of goods by wholesale or retail; or

(d) the provision of amenities for employees;

incidental to any of those industrial operations.

The activity of sorting the 'Adult' goods into packages and putting them through a process of wrapping, labelling and boxing and the manufacture and maintenance of shop fittings for the other stores appears to be encompassed by direct reference in the above definition. The definition also encompasses retail activity where it is incidental to the primary activities listed.

The Scheme has eight types of industry use class – "Industry-Cottage”, “Industry– Extractive”, “Industry-General”, ‘Industry-Light”, “Industry-Mining”, “Industry-Noxious”, “Industry-Rural” and “Industry–Service”.

In brief, the use class of “Industry-Cottage” applies to a small scale activity of the production of arts and crafts goods, whilst “Industry – Extractive”, “Industry-General”, “Industry-Mining”, “Industry-Noxious” and “Industry-Rural” relate variously to mining and quarrying, large scale activities that produce emissions and production of rural goods.

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'Industry – Service' is defined under the Scheme as:

“Industry – Service” means an industry –

(a) an industry-light carried out from premises which may have a retail shop front and from which goods manufactured on the premises may be sold; or

(b) premises having a retail shop front and used as a depot for receiving goods to be serviced.

'Industry-Light' is defined under the Scheme as:

“Industry - Light” means an industry —

(a) in which the processes carried on, the machinery used, and the goods and commodities carried to and from the premises do not cause any injury to or adversely affect the amenity of the locality; and

(b) the establishment or conduct of which does not, or will not, impose an undue load on any existing or proposed service for the supply or provision of essential services;

Applying the 'Industry-Service' classification to the application is considered inappropriate because the 'adult goods' are not actually being manufactured on the premises. Whilst shop fittings are to be manufactured on the premises they are not goods that are being sold and neither is that component activity of itself the predominant activity. Neither are there any goods being received to be serviced or repaired.

That leaves the 'Industry-Light' class.

In order to be satisfied that the industry activities proposed under the application are Light industry activities, the activities and the goods need to not cause injury or adversely affect the amenity of the locality.

It is quite clear from the plans included with the application that the external appearance of the premises will present no different to any other commercial or industrial unit in this, or other surrounding complexes. Opaque window treatments and interior partitioning will screen views to the inside. Concerns expressed in public submissions that children patronising adjoining premises will be affected by sexual images are therefore allayed.

The views expressed with respect to the nature of clientele that will frequent the premises and opinions on the morality of the business are simply not valid planning considerations. Accordingly they are not pertinent to the assessment of this application.

The processes proposed to be carried on within the unit are likely not to produce any emissions. The only external impacts would be delivery movements to and from the premises which are not expected to be greater than delivery movements to any other surrounding businesses.

It is considered then that the proposed use will not have an adverse impact on the amenity of the locality and so fulfils this requirement of the definition of 'Industry-Light'.

On balance for the reasons outlined, City staff consider that the proposed use of the premises should be classified as 'Industry-Light' pursuant to the City’s Local Planning Scheme No.17.

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'Industry-Light' is a 'D' use within the Highway Service zone.

The application then needs to be considered against the relevant objectives of the Highway Service zone, which are:

(a) Secure the development of low intensity commercial uses along selected major arterial roads outside the Strategic Regional Centre which can benefit from the high exposure offered by the major traffic thoroughfares; and car based comparison shopping for bulky goods;

(b) Ensure commercial activity within the zone is complimentary to development in

other commercial zones and does not detract from the viability or integrity of development in either the Strategic Regional Centre or the Commercial Zones.

The Highway Service zone is principally, but not exclusively, a zone for Showrooms that retail the types of high order goods that are purchased infrequently. The retailing that will occur from the premises may be considered of low intensity but it is not of goods that are bulky or purchased by a means of comparative shopping. The type of light industry proposed to be carried out here is not considered to detract from the viability or integrity of distinctly retail focused activities that are intended to occur in other commercial zones. The application is considered to be partially consistent with the first objective and consistent with the second objective. Car Parking

The application has been assessed against POL-TP-129 Vehicle Parking Standards and found to be compliant. The existing approved use is ‘Showroom’ and has 7 bays designated for that use. According to the above Policy the 'Industry-Light' use is calculated at requiring 6 bays, and accordingly 1 car bay in excess of the requirement is provided.

Signage

The application has been assessed against POL-C-70 Advertising Signs within Commercial Industrial zones and found to be compliant. The Policy provides that an unnecessary proliferation of signage shall be avoided, and safety considerations for passing motorists. The signage meets all the provisions of this Policy.

As the application proposes a discretionary use considered consistent with the objectives of the zone and the relevant development standards under the Scheme, approval is recommended.

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OPTIONS AND IMPLICATIONS

Option 1: Council may resolve to approve the application for a Change of Use from 'Showroom' to 'Industry–Light' of Unit 6 on Lot 1 (No.1904) Beach Road, Malaga subject to standard conditions.

Implications: The objectors will be aggrieved by Council’s decision, however there is no third party appeal rights in WA.

This is the recommended option.

Option 2: Council may resolve to refuse the application for the proposed Change of Use of Unit 6 on Lot 1 (No.1904) Beach Road, Malaga because it considers that the application constitutes a 'Restricted Premises' for the purposes of the City’s Local Planning Scheme No.17 and such use is a use not permitted in the Highway Service zone applicable to the land.

Implications: The applicant may exercise his right of a request for a review by the State Administrative Tribunal.

This is not the recommended option.

CONCLUSION

The applicant seeks planning approval for a Change of Use of an existing vacant Showroom unit to ‘Industry–Light’. The premises is intended to be principally used as a central receiving point of adult goods, which are to be assembled into packages, wrapped, boxed and labelled before transferral to the owners four other “Everyman Stores” within the Perth Metropolitan area. Fabrication of shop fit-out material for these other stores will also be undertaken from these premises.

The premises is intended to have a shop front of approximately 60m2 which will sell a quantity of the adult goods received (approximately 20%).

The subject lot is zoned Highway Service under the City’s Local Planning Scheme No.17.

The central issue in the assessment of this application is whether, on the details provided, it is properly classified as 'Restricted premises' – which is a use not permitted in this zone, or 'Industry–light' which is a discretionary 'D' use in the zone.

The application was advertised to other businesses within the complex – 4 submissions were received, 3 being objections opposed to the nature of the business, the clientele it will attract and its potential impact on children.

Weighing up all the details, and noting that the proposed use will have no adverse impact on the amenity of the locality (moral opinions set aside) it is considered to be properly classified as 'Industry-Light'

The proposed use does not conflict with the objectives of the Highway Service zone and the development complies with relevant City Policies including car parking and signage.

It is recommended that Council approve the application for a change of use of Unit 6 on Lot 1 (No.1904) Beach Road, Malaga from 'Showroom' to 'Industry-Light' subject to standard conditions.

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ATTACHMENTS

Floor Plan

Front Elevation

Location Plan

Applicant's Response to Objections

STRATEGIC IMPLICATIONS

Nil

STATUTORY IMPLICATIONS

Local Planning Scheme No.17

FINANCIAL IMPLICATIONS

Nil

VOTING REQUIREMENTS

Simple majority

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RECOMMENDATION

That the Council resolve to:

1) Grant approval to the application for a Change of Use of Unit 6 on Lot 1 (No.1904) Beach Road, Malaga from 'Showroom' to 'Industry-Light' subject to the following conditions:

1. This approval is for ‘Industry-Light (With Incidental Retail Sale of Adult Goods) and Signage’ as illustrated on the submitted plans received by the City of Swan.

2. No products, materials or other goods whatsoever are to be stored outside of the building, unless in a designated area approved by the City for that purpose.

3. Any additional development, which is not in accordance with the application ( the subject of this approval) or any condition of approval, will require further approval from the City.

ADVICE NOTES: Standard advice notes apply

2) Advise the applicant/owner of the resolution of Council and relevant advice notes pertaining to the approval.

3) Advise all those who lodged submissions of Council’s decision accordingly.

CARRIED

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Documents

KEY ISSUES - swan.wa.gov.au€¦ · • Fabrication, assembly and maintenance of shop fittings for adult products. The proposed sale of adult goods from the subject unit would represent