Posted 31/3/06

Extract:  Justice Stuart Morris' Arguments About Why Romsey Isn't A Strip Shopping Centre

"26 The application of clause 52.28-4 requires the identification of an area; or, more accurately, requires consideration of whether a proposed gaming venue will be an identified area. In this respect I also note that the word "area" is defined in the Planning and Environment Act 1987 to include two or more areas of land that are not adjoining. Hence the fact that allotments immediately to the north of the subject land, which consists of various council offices and related uses, are zoned Public Use Zone 6 does not seem to be of any moment.

27 In identifying the area of a strip shopping centre a key consideration will often be the proportion of buildings in the area which are shops. This is because an essential requirement of an area that is a strip shopping centre is that it is an area in which a "significant" proportion of the buildings are shops. What is "significant" will need to be determined by reference to the purpose of the provision, a matter I shall return to.

28 When is a building a shop? In my opinion, this will depend on both the building and the use of the building. For example a building designed to be used as a shop, but currently vacant, would ordinarily be regarded as a shop. On the other hand the same building would not be regarded as a shop if it had been permanently converted to residential use. It may be more difficult to decide whether a building is a shop if it was built as a dwelling but is now used for retail purposes. This is a nice question, but it is not necessary for me to determine it. However I should add that I would not regard a building to be a shop if it is used as a restaurant; although I would regard it as a shop if it was a building used to sell take-away food. It is to be noted that the definition of the land use term "shop"5 does not determine this question, because the clause is concerned with the proportion of buildings that are shops rather than land use as such.

29 Clause 52.28-4 has its origins in 1998 when there was public concern about shoppers being seduced into gaming venues whilst undergoing their retail activities. The theory which underpinned the prohibition was that persons who wished to engage in gaming should make a conscious decision to that effect and that gaming outlets should not be permitted to tempt shoppers carrying out everyday activities. However in inserting the prohibition into planning schemes there was a recognition that hotels and clubs (in which gaming must occur) are properly to be found in business areas, particularly in rural towns. Hence the reference to a "significant" proportion of the buildings being shops was designed to prohibit new gaming opportunities, not in business areas, but in those parts of business areas where shoppers congregate and where there is a significant degree of pedestrian traffic. Indeed, the importance of pedestrian activity was recognised as a relevant factor in Crestline Architects Pty Ltd v Greater Geelong City Council.6

30 In my opinion, an area will be one in which a "significant" proportion of the buildings are shops if the proportion of buildings in the area which are shops is significant having regard to the underlying policy objective. In this respect, foot traffic is important; because it is the possible temptation placed in the path of a pedestrian undertaking shopping activity that the provision is directed towards. Thus in determining an area which is a strip shopping centre it will be relevant to consider the number, proportion and nature of the shops in the area. However I think it is unhelpful to define "significant" by contrasting it with "insignificant".7

31 Further, in my opinion, it is difficult to determine the issue of whether an area is one in which a significant proportion of the buildings are shops in isolation from identifying the area itself. The two are interrelated. It might be that by adjusting the area it becomes one in which a significant proportion of the buildings are shops; or by expanding the area it no longer becomes one in which a significant proportion of the buildings are shops. Hence, ultimately, in finding as a fact whether an area is a strip shopping centre – or whether a proposed gaming venue is within such an area – it will be necessary to exercise some kind of judgment in relation to the area that is regarded as a strip shopping centre.

32 I find that the proposed gaming venue will not be in an area that is a strip shopping centre within the meaning of clause 58.28-4 of the planning scheme. This finding is also made in relation to the previous planning scheme provision.

33 One way of illustrating the basis of this finding is to consider the uses which are closest to the proposed venue.

34 Immediately to the north of the subject land is a municipal complex, consisting of offices, other community services and a car park; and these are (in large part) in a Public Use Zone, not a business zone. To the north of the council complex, there is a shop building which has two uses: a fast food outlet and a real estate agency. Further to the north there is an office style building which is used by an agricultural business. Yet further to the north is a dwelling, used as an accountant’s office. And then, a building which is used as a saddlery. And to its north, there is a vacant lot; and then a brick commercial building, used as an estate agent’s office, which also fronts the side road Stawell Street. I cannot find that the area on the east side of the main road, between Stawell Street and Woodend Wallan Road, is, or is part of, an area that is a strip shopping centre. In this area there is not a significant proportion of buildings that are shops. And, if this area was included in a wider area, there would not be a significant proportion of buildings that were shops in the wider area.

35 When I consider other buildings near the subject land, this reinforces my findings. To the south of the land, on the other side of Woodend Wallan Road, is a service station. Opposite the subject land, on the west side of the main road, is a Catholic church on a very large allotment.

36 The proposed venue is certainly part of the business centre of Romsey; but, in my opinion, it is farfetched to identify it as part of a strip shopping centre in the defined sense.

37 Indeed, if one looks at the land uses within the area which the council submitted was a strip shopping centre it becomes apparent that the proportion of buildings which are shops is not dominant. It may be that some portions of the area identified by the council as a strip shopping centre might be a strip shopping centre as defined; for example the portion in which the butcher is located and the portion where the supermarket and newsagency is located. But in identifying the relevant area, the planning control is not intended to be applied as a blunt instrument,8 but in an intelligent and informed manner. Adopting such an approach it is quite unrealistic to conclude that the proposed venue is in an area in which a significant proportion of the buildings are shops. It is quite apparent from the spatial distribution of land uses that there is relatively little pedestrian traffic passing the proposed venue when passing from shop to shop."

Note:  Emphasis added by MRRA