[2006] VCAT 925

1 The application for review is disallowed. The decision of the Responsible Authority dated 12 October 2005 is affirmed. A permit is granted for the development and use of a brothel in accordance with endorsed plans at 45 Apollo Drive, Shepparton.

2 The Responsible Authority is directed pursuant to Section 85 (b) (ii) Planning and Environment Act 1987 to grant a permit for the development and use of a brothel in accordance with endorsed plans at 45 Apollo Drive, Shepparton in accordance with the Notice of Decision to Grant a Permit dated 12 October 2005.

For Applicants Glen Cox, Sam Green, Katrina Mohamed, Mark Rumble, Craig Kelly, Joanne Atkinson, Andrew Fox, Sondrae Johnson and Dallas Terlich

Mr R Watson-Jones, Solicitor, Lewis Holdway Solicitors

1 Mr Cahill, Mr Cox and others are seeking a review of the decision of the Responsible Authority to issue on 12 October 2005 a Notice of Decision to Grant a Permit to Robert Russell to allow land at 45 Apollo Drive Shepparton to be developed and used as a brothel.

2 Sondrae Johnson and Dallas Terlich were originally listed amongst a group of applicants seeking review of the decision of the Responsible Authority. By letter dated 2 February 2006 from their solicitors Lewis Holdway Ms Johnson and Mr Terlich indicated they wished to withdraw from the application for review. Their names were deleted from the group application.

3 At the commencement of the hearing the Tribunal granted leave for Ms Johnson and Mr Terlich to once again become applicants for review.

4 Mr Cahill one of the applicants for review sought to call as witnesses three representatives of the Responsible Authority: Councillor Bruce Wilson, Mr Brayden Aitken, the planning officer who prepared the report to the Council and Mr Peter Harriott who at the time of the making of its decision was the Acting Chief Executive and Director of Planning for the Greater Shepparton City Council.

5 Correspondence by Mr Cahill to Cr Wilson indicated the matters upon which Mr Cahill sought to call the witness related to comments made by Cr Wilson at a Council meeting at the time of the discussion of the permit application. Similarly Mr Cahill indicated he intended to question Mr Harriott and Mr Aitken regarding the process undertaken by the Responsible Authority in considering the application for a planning permit.

6 All three witness sought the summonses be set aside.

7 Some time was spent in explaining to Mr Cahill that the matters upon which he wished to question the witnesses were not matters the Tribunal could consider under the applications for review. The Tribunal is given power to review a decision of the Responsible Authority but is not given power to review how the Responsible Authority arrived at its decision.

8 In an application for review the Tribunal is said to 'stand in the shoes of the Responsible Authority' and hear the application afresh. Whether it is a Notice of Decision to Grant a Permit which gives rise to an application for review by persons who have objected to the permit application or whether it is a refusal which gives rise to an application for review by the permit applicant the Tribunal hears the matter as though it was a fresh application for a permit. In doing this the Tribunal takes into account various matters and may have put before it more information on which to make its decision than was put before the Responsible Authority at the time of making its decision.

9 At no time is the Tribunal made aware of the thoughts of the Responsible Authority in reaching its decision to grant a permit it is only provided with a copy of the officer's report that is usually provided to the Responsible Authority to aid them in making a decision. The only time the Tribunal is aware of the reasons for making a decision by the Responsible Authority is when the Responsible Authority refuses an application and in this respect it is required to provide grounds of refusal which are often couched in very general terms.

10 Whilst we understand Mr Cahill has looked at the whole process and wishes to question the witnesses with regard to matters leading up to the decision of the Responsible Authority such matters have no bearing on what the Tribunal has to decide.

11 Mr Cahill referred to section 87 Planning and Environment Act 1987 (the Act) in support of his contention that the witnesses should be called. This section of the Act relates specifically to a request to cancel or amend a permit. To invoke the provisions of section 87 there must be in existence a permit.

12 There is in this instance no permit as yet in existence, there is only a document issued by the Responsible Authority indicating it is intending to issue a permit. Where there are objectors to an application for a permit and the Responsible Authority decides a permit should be granted it is not permitted to issue a permit but rather is required to issue a Notice of Decision to Grant a Permit. This process gives all parties, particularly persons who have objected, notice of the decision and the objectors are given a period of time, 21 days, in which to lodge an application to review the decision. If no application for review is lodged the Responsible Authority can then issue a permit.

13 In the present case an application for review has been lodged therefore no permit can issue. The matter then comes under the jurisdiction of the Tribunal and it is only the Tribunal who can decide whether a permit should or should not issue. If the Tribunal does decide a permit should issue then the Responsible Authority issues a permit on the direction of the Tribunal.

14 Whilst the provisions of section 87 of the Act highlight a number of instances which could be considered to be relevant in the mind of the applicant for review such as 'a material mistake in the grant of the permit' these are matters that must be proved to substantiate cancellation of a permit that has been issued by a Responsible Authority. They are not matters that go to a consideration of an intention to issue a permit.

15 The summonses to witness are set aside on the basis that the evidence sort to be adduced from the witnesses is not relevant to the matters for which the Tribunal is required to consider but rather are considered to fall within what could only be termed a 'fishing' exercise[1].

16 The subject site is located at the northern end of Apollo Drive in a court bowl. The site is vacant. It has an area of approximately 2020m² with a frontage to Apollo Drive of 20m. The site is part of an industrial estate.

17 Immediately to the west is a transport and container facility, and to the east the lot is used for the storage of liquid waste. There are some vacant sites and other sites used as a cabinet makers and joinery works as well as for storage.

18 To the east is the Shepparton/Dookie rail line and to the north is an orchard. Further to the west of the site is a residential area.

19 It is proposed to build a two storey building with a maximum wall height of 7m. The building is to be set back 12m from Apollo Drive, 1.5m from the eastern boundary, 8.95m from the western boundary and 6.5m from the rear boundary.

20 The main rooms being six service rooms, a reception area, two client introduction lounges, two personal client introduction rooms, three offices and a service provider's zone including a lounge, kitchen and change rooms are to be accommodated at ground level. The upper level is to contain only a manager's office and boardroom. Customer entry to the building is at the front and staff entry is via the rear adjacent to a staff car park.

21 Two storage sheds are to be located on the north western and north eastern boundaries. 14 car spaces are to be provided at the front of the site for customers. 6 car spaces are to be provided behind a security gate along the eastern boundary for the use of employees.

22 With regard to the operation of the business the respondent Robert Russell holds a Prostitution Services Providers Licence. Mr Russell currently operates the 'Four Seasons Escorts' in Shepparton. It is understood that if a permit is granted for the brothel he will divest any interest in his existing business[2].

23 The business is proposed to operate 7 days per week, 24 hours a day. No alcohol is to be sold, supplied or consumed on the premises. 2 to 10 sexual service providers are expected to be on site at any one time as well as other staff which will include an administrative assistant and either a licence holder or licensed brothel manager.

24 The subject site is located within the Industrial 1 zone under the provisions of the Greater Shepparton Planning Scheme. Clause 19.04 which is part of the State Planning Policy Framework in the planning scheme deals in particular with brothels and states as its objective 'to provide consistent planning controls for the establishment and expansion of brothels throughout Victoria coordinated with the provisions of the Prostitution Control Act 1994'.

25 Clause 19.04-2 indicates Responsible Authorities should consider before deciding an application to use or develop land for a brothel the matters set out in section 73 of the Prostitution Control Act 1994 (PC Act). Responsible Authorities should refuse a permit to use or develop land for a brothel in accordance with the restrictions contained in section 74 of the PC Act, unless section 76(2) applies.

26 Section 73 PC Act provides relevant to this application :

Without out limiting section 60 of the Planning and Environment Act 1987, before deciding on an application for a permit for a use or development of land for the purposes of the operation of a brothel, the responsible authority must consider -

(a)

any other brothel in the neighbourhood;

(b)

the effect of the operation of a brothel on children in the neighbourhood;

(c)

... whether the land is within 200 metres of a place of worship, hospital, school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreational or cultural activities and, if so, the effect on the community of a brothel located within that distance of that facility or place;

(d)

other land use within the neighbourhood involving similar hours of operation and creating similar amounts of noise or traffic (including pedestrian traffic);

(e)

any guidelines about the size or location of brothels issued by the Minister administering the Planning and Environment Act 1987;

(f)

the amenity of the neighbourhood;

(g)

the provision of off-street parking;

(h)

landscaping of the site;

(i)

access to the site;

(j)

the proposed size of the brothel and the number of people that it is proposed will be working in it;

(k)

the proposed method and hours of operation of the brothel.

27 Section 74 PC Act provides relevant to this application:

(1)

the responsible authority must refuse to grant a permit for a use or development of land for the purposes of the operation of a brothel if -

a.

the land is within an area that is zoned by a planning scheme as being primarily for residential use; or

b.

the land is within 100 metres or, ...

c.

... the land is within 200 metres of a place of worship, hospital, school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreational or cultural activities; or

d.

Unless there exists special circumstances as set out in guidelines issued by the Minister administering the Planning and Environment Act 1987, more than 6 rooms in the proposed brothel are to be used for prostitution.

(2)

For the purposes of sub-section (1) distances are to be measured according to any route which reasonably may be used in travelling.

(3)

...

28 Mr Watson-Jones who appeared for the group of applicants for review lead by Mr Cox relied upon an amended statement of grounds provided under cover of a letter dated 20 February 2006. The grounds are as follows:

1

That there has been a breakdown in the co-regulatory scheme between the Planning and Environment Act 1987 and the Prostitution Control Act 1994 such that a permit should not be granted.

2

That the failings of the Prostitution Control Act 1994 warrant refusal of the permit application.

3

That the objective of securing a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria (Planning and Environment Act 1987 s.4 (1) (c)) will be frustrated to an unacceptable extent if the permit is granted.

4

To grant a permit would undermine the social economic and environmental viability and sustainability of the municipal district.

5

Granting a permit will militate against the majority of the express objectives of the Prostitution Control Act 1994.

6

That the proposal does not produce acceptable outcomes with respect to the State Planning Policy Framework and the Local Policy Framework including the Municipal Strategic Statement and local planning policies.

29 In considering an application for a planning permit to allow land to be developed and used as a brothel the Responsible Authority and in turn the Tribunal is directed to two pieces of legislation in the form of the Planning and Environment Act 1987(PE Act) and the Prostitution Control Act 1994 (PC Act).

30 The Responsible Authority is directed under section 60 PE Act and the Tribunal under section 84B PE Act as to the matters required to be considered before deciding an application including 'the relevant planning scheme'. Neither sections of the PE Act refer to a requirement to take into account another piece of legislation or specifically the PC Act rather it is within the relevant planning scheme a subordinate piece of legislation to the PE Act at clause 19.04 that reference is made to the PC Act and more specifically to sections contained in Part 4 of the PC Act namely sections 73 and 74.

31 Part 4 of the PC Act refers to 'Planning Controls on Brothels' and is divided into four divisions: definitions, permits, application of PE Act and a miscellaneous division which refers to regulations. Definitions in Part 4 have the same meaning as the PE Act.

32 A reference to consideration of 'any relevant matter' under both sections 60 and 84B does not in the Tribunal's view expand the matters to be considered to a review of all aspects of the PC Act. 'Any relevant matter' relates to the use and development of the land and the likely impacts on the surrounding area in which the development occurs and the use is conducted. It is not considered this extends to a consideration of issues that could be said to relate more particularly to moral or religious views or to criminal behaviour. The relevant matters in relation to the use and development of land for a brothel are the matters set out in Part 4 PC Act and in particular sections 73 and 74. W e agree with the statement made by the Tribunal in Jago v Mildura City Council[3] that the role of the Tribunal is to assess the planning merits of the application and 'to consider the relevant town planning considerations such as amenity of the area, impact on pedestrians, land use conflicts arising from brothels being located near other commercial/industrial uses, car parking, traffic and the like'.

33 Parliament has sought in the form of the PC Act to distinguish between the operation of a brothel and the land use of a brothel. The PC Act seeks to control prostitution by means of a regulatory system controlled by the Business Licensing Authority which deals with the licensing aspects of persons wishing to either operate or work in a brothel. One aspect of this regulatory system is a requirement that a brothel must have an approved town planning permit and this aspect is controlled by Responsible Authorities.

34 In considering the land use aspect it is the Council acting as the Responsible Authority under the PE Act which is required to make a decision under that Act. In this role the Responsible Authority is a separate and distinct entity from the Council acting under the provisions of the Local Government Act 1989 and the roles of the two should not be intertwined. The Tribunal 'standing in the shoes' of the Responsible Authority has jurisdiction to consider the matter under the enabling enactment, the PE Act.

35 When considering an application for a planning permit for a brothel it is Part 4 that the Responsible Authority and the Tribunal are directed to and not the wider context of the PC Act as submitted by Mr Watson-Jones. It is not the Responsible Authority's role to question whether there has been a breakdown in the co-regulatory scheme between the PE Act and the PC Act and nor is it the Tribunal's role. Mr Watson-Jones put forward a number of submissions suggesting there was such a breakdown but whether the Tribunal is in agreement or not, and the evidence provided was not conclusive, it is a matter for the regulators not the Tribunal to reach this conclusion and if so reached correct it in whatever manner they consider appropriate.

36 Whether the PC Act has failed is a matter of ones view or perspective. It was certainly not clear to the Tribunal that the PC Act had failed, was failing or was likely to fail. It might be so and the views expressed by Mr Watson-Jones on behalf of the applicants for review may be correct, but the Tribunal is not in a position to pass judgment one way or another on whether this Act has failed, is failing or is likely to fail. If for example it was submitted the PE Act was failing and therefore all permit applications should be refused the Tribunal would come to the same conclusion, that is that it is not the role of the Tribunal to pass judgement upon an Act itself, rather it is the role of the Tribunal as directed to apply the relevant provisions of the relevant Act when exercising its discretion to grant or refuse a permit application. It is for the legislators in the form of parliament to reach a conclusion that a piece of legislation it has passed is failing or has failed and to take steps is they so wish to rectify such a situation.

37 Mr Watson-Jones submitted the Tribunal should go through an exercise of weighing up whether the PC Act was operating to the extent it was intended and if we came to the conclusion it was not then we should also reach the conclusion that no permit should issue. Even if the Tribunal came to the same conclusion as the applicants for review and it refused the permit application on this basis alone then it is not fulfilling its role to exercise its discretion by balancing all relevant provisions of the relevant Acts and planning scheme. It must consider all parts of the application and give appropriate weight to each aspect.

38 Mr Watson-Jones referred to the express objectives of the PC Act[4]. In this respect there are two objectives of relevance to the Tribunal's consideration and not the majority of the objectives. The relevant two objectives are embodied in the provisions of Part 4 of the PC Act that is to seek to ensure that brothels are not located in residential areas or in areas frequented by children; to seek to ensure that no one person has at any one time an interest in more than one brothel licence or permit although with this latter objective it arises in the context of section 75 PC Act and the Responsible Authority not granting a permit that would result in this section being breached.

39 Section 60 (1A) (a) PE Act requires that a Responsible Authority, if the circumstances appear to require consider before deciding an application:

(a) any significant social and economic effects of the use or development for which the application is made.

40 Several witnesses called by Mr Watson-Jones who were employed by several Youth and Community Services groups referred to what could be described as underlying social issues within the Shepparton community relating to homeless and disadvantaged youth, youth unemployment, youth education and unmarried mothers. It was submitted these issues related in particular to the indigenous population, although reference was also made to some members of the population from the poorer socio-economic group within the general community. It was suggested that already young people from these disadvanted groups practiced illegal activities such as prostitution. It was further submitted that to approve the use of land within the Shepparton community for a brothel would send a message to these young people that such activities were legitimate.

41 As in S Johnson & Others v Greater Shepparton CC and HGC Administrative Services Pty Ltd[5] the question for the Tribunal is whether we consider the brothel will cause net adverse social (or economic) effects on the community. We accept the evidence of Mr Rumble, Mr Terlich and Ms Atkinson that there are a number of pressing issues relating to some sectors of the youth of the community and acknowledge there is a large indigenous population within the Shepparton municipality which brings with it its own set of issues. The general issues raised by the witnesses we consider are not specific to the Shepparton community. One only has to read local newspapers to confirm that these issues are to be found within numerous communities.

42 In relation more specifically to prostitution there are a number of issues that arise and these have been well documented in various reports the majority of which deal with illegal prostitution as well as exploitation of young people as sexual service providers[6]. Whilst the applicants for review submitted allowing a brothel to operate legally within Shepparton would result in the highlighted worst cases found in a number of the reports we are unable to reach this conclusion. Already there exists in Shepparton an escort agency operated by the permit applicant Mr Russell that provides home visits by girls. We do not see that a brothel that requires the customer to come to it rather than the service provider going to an individual's home is any different. We were not presented with any evidence that the operation of this escort agency has had any significant net adverse social effect on the Shepparton community and are unable to reach the conclusion that the brothel will have a net adverse social (or economic) effect on Shepparton. It was submitted to us that the approval of a brothel would contribute to increased illegal prostitution in the community by creating an environment of acceptance of prostitution. There was however no evidence presented to us to link illegal prostitution occurring within the community to the use of an approved brothel. We believe such views relate more to a moral viewpoint rather than to a sociological viewpoint.

43 According to the Municipal Strategic Statement Shepparton has the fifth largest population of the municipalities containing major provincial centres in Victoria. It provides a wide range of community services and facilities and is a strategic transport hub. At clause 21.04 emphasis is placed on 'Civic pride - Retain and enhance the level of amenity within towns and throughout rural areas in terms of the quality of design and appearance of buildings, the landscaping of public and private areas and the maintenance of public areas. Build a sense of community and of belonging within the municipality, in order to foster a sense of civic pride associated with being part of the City of Greater Shepparton'.

44 The Municipal Strategic Statement recognises that Shepparton is not currently a very significant visitor destination, although there are a number of tourist-retail projects, including the new Ardmona development and the renovated visitor centre and café at SPC, which will improve visitation to Shepparton.

45 The subject land located at the rear of a court bowl in an industrial estate well to the north of the business district and also well away from the recognised tourist attractions is not in a prominent location, nor is it immediately visible to persons travelling along the New Dookie Road or to persons entering the industrial estate. The proposed building on the site will be in many respects similar to the other industrial buildings within the area. We therefore do not consider that the brothel will have an impact upon visitors to Shepparton or upon the residents of Shepparton that would lead one to conclude that the provisions of section 4(1) (c) PE Act will be in anyway frustrated if a permit were to issue for this proposal.

46 Mr Cahill submitted it was inappropriate to use this land within the area zoned Industrial for a use that could not be described as an industrial type use.

47 In November 2004 an independent Panel was appointed to consider submissions in relation to Amendment C34 regarding the rezoning of land for the Freight Logistics Centre to Special Use. In response to submissions that the land should be zoned Industrial rather than Special Use, the Panel stated:

The Council advised that since 1994 it has sifted through all land areas potentially suitable for industrial use in the region. These sites have been evaluated and a strategy developed to select the most suitable sites for inclusion in the Scheme, and by corollary to eliminate the least preferred sites so they can be considered for other suitable uses.

The Council submitted that as a result of this process, adequate land has been set aside for industrial use in the region.

48 The Panel reached the conclusion that it had 'no reason to question the process by which the Council arrived at the configuration of industrial land that has been included in the MSS and the Scheme'.

49 The Greater Shepparton 2030 Strategy Plan indicates there are approximately 100 hectares of vacant land zoned for industrial use and that there is no evidence of a shortage in demand due to slow take up of areas already zoned for industrial use. In this respect the Responsible Authority submitted that within the designated industrial zoned land there were still large pieces of land that had not as yet been subdivided suggesting there was not by any means a lack of industrial land that would warrant this proposal being refused on that basis. The Responsible Authority also observed that a number of lots within this industrial area are vacant.

50 We accept that there is not a scarcity of industrial land within the Greater Shepparton area and the objective of clause 17.03-1is being met 'to ensure availability of land for industry and to facilitate the sustainable development and operation of industry and research and development activity'.

51 Clause 17.03-2 indicates that 'industrial activity in industrial zones should be protected from the encroachment of unplanned commercial, residential and other sensitive uses which would adversely affect industry viability'. We do not consider that in this context a brothel could be classed as a sensitive use that will have any impact upon the viability of the industries located in the area. We do not consider this type of land use to be sufficiently sensitive as say a residential use would be that it would result in complaints regarding noise emanating from the industrial activities or in relation to the impact of large trucks or traffic moving in and out of the area.

52 Nor do we consider that allowing the establishment of this non-industrial land use within this zone will prejudice the availability of land for future industrial requirements. The operation of the brothel takes place within the proposed building on the land and to this extent the proposed activity has no impact on any external activities operating on adjoining or nearby land. Vehicles coming to and going from the property will be the only evident sign of activity occurring on the site and in this respect the peak period expected in terms of vehicle movements is said to occur in the evening and outside the time in which other activities are occurring on other sites within the industrial area.

53 Mr Cahill submitted that such a land use as a brothel instead of being in the industrial area would be better located within the commercial area. In this respect we note that in the Greater Shepparton 2030 Strategy Plan one strategy for revitalising the CBD of Shepparton is opposing adult entertainment venues in the central mixed use activities area of the Shepparton CBD. The location of a brothel within a commercial area raises a number of issues not least that such an area is more likely to be frequented by children, parking could also be an issue. We do not consider that a commercial area which could have a residential aspect to it is an appropriate location for a brothel rather within the confines of an urban area the nature of activities generally conducted within an industrial area could be said to be more robust and unlikely to be impacted upon by such an activity. An Industrial zone is also a location where brothels can best satisfy the limitations placed on the establishment of a brothel in section 73 PC Act.

54 Unlike the specific Industrial Development Policy at clause 21.05-3 in the Casey Planning Scheme referred to in Craddock v Casey City Council[7] the Greater Shepparton Planning Scheme does not have a specific policy in relation to either industrial development or for that matter brothels. Reference to Industrial Development is found in the Municipal Strategic Statement at clause 21.05-3 with an objective to 'ensure that there is an adequate supply of industrial land of all types to satisfy demand over the next 15 years'. We consider with the indicated supply of industrial land and what we would observe as a relatively slow take up that this objective will continue to be met even if this site is allowed to be used for a non-industrial use.

55 Amendment C69 proposes incorporation into the Greater Shepparton Planning Scheme of the Greater Shepparton 2030 Strategy Plan. It is proposed to incorporate into the Scheme amongst other things the 2030 Residential Framework Plan and the 2030 Industrial Framework Plan.

56 Mr Cahill referred us to the residential plan submitting it indicated residential development is proposed on the land directly to the north of the site. Mr Kalms a planning officer with the Responsible Authority informed us the Residential Framework Plan did indicate the potential for residential development but this was further to the north and in line with the existing residential development that is located to the west of this industrial area. He also indicated that on the Industrial Framework Plan the old packing shed located on the land immediately to the north of the site is highlighted for special investigation whilst the rest of the site on which the packing shed is located, currently used as an orchard and within the Rural zone is not highlighted.

57 We accept that these plans are indicative only and that if the land is not highlighted on the Industrial Framework Plan for industrial use this does not mean that at some time in the future it could be so used nor does it mean that it is an indication the land will be used for residential purposes as suggested by Mr Cahill.

58 The land to the west of the site which is linked to Apollo Drive by Gemini Crescent is within the Industrial zone abutting this land to the west is existing residential land. It appears from plans provided titled New Dookie Road Shepparton Drainage Reticulation Construction that a large area of land where Gemini Crescent is proposed to extend into this area is to be used as a retardation basin and pump station. There is no access from the residential area to the west to the industrial zoned land and the construction of the retardation basin and pump station in its proposed location would limit any future connection from Gemini Crescent. There is located along the interface a tree reserve. We note there is in existence a permit for land to the south of the subject site on the corner of Apollo Drive and New Dookie Road within the Industrial 1 zone that could have an interface with the residential land to the west. A condition of this permit requires the planting of trees within the reserve and along the northern boundary of three lots to in effect screen this interface.

59 All zones allow for a consideration of non specified uses within the zone. There is nothing within the policy context of the planning scheme that leads us to conclude that this site could not be used for a brothel in this designated industrial area.

60 There is an indoor sports and recreational facility located in McGill Street to the east of the site. This is within 200m of the site 'as the crow flies'. To proceed directly to the indoor sports facility from the site it would be necessary to cross private land, scale fences and cross the Shepparton/Dookie rail line.

61 In accordance with section 74(2) PC Act the reasonable route to travel from the site would be down Apollo Drive along New Dookie Road and along McGill Street approximately 1.5km.

62 The indoor sports and recreational facility in McGill Street is therefore not land that is within 200m of the proposed brothel.

63 It was submitted that the nature of the industrial area in which the proposed brothel is to be located could be frequented by children. Mr Cahill suggested that children could readily attend the nearby site where caravans were parked when a parent was collecting the stored caravan.

64 It was also suggested that apprentices could be employed in one of the factories and that the age of an apprentice was often under 18 years and could be classed as a child.

65 It is possible that apprentices may be employed at one of the sites in the area it is also possible that children could be brought into the area by a parent. None of the activities conducted within the industrial area can however be classed as falling within a place regularly frequented by children that is persons under the age of 18 years. We do not therefore consider the possibility of children coming into the area is a bar to our consideration as to whether the brothel should be permitted.

66 Section 74(1) (d) PC Act indicates that a Responsible Authority must refuse to grant a permit if more than 6 rooms in the proposed brothel are to be used for prostitution unless there are guidelines by the Minister for Planning allowing more than 6 rooms to be used[8]. There are no Ministerial guidelines.

67 The proposal indicates that there is to be only six service rooms which falls within the requirements of section 74(1) (d) PC Act.

68 It is proposed to operate the brothel 24 hours a day 7 days a week. The other activities on adjoining lots in this area will tend to operate 5 or 6 days a week. It is possible one or two may operate 7 days but even so we do not expect that any of the other activities will operate on a 24 hour a day basis.

69 It is therefore unlikely that the operating hours of the proposed brothel will have an impact on the industrial area. From the evidence provided to us of the way the business operates and from our own understanding of a brothels operation we expect that what could be termed the busier operating time will occur in the evenings and not during the day.

70 It is submitted that the likely impact would be as a result of traffic going to and from the site. If as we have concluded the busier time for the operation of the brothel will occur in the evening there is unlikely to be little if any impact in terms of vehicles on the adjoining activities which we do not expect will be operating during the evening period.

71 In terms of the way the brothel is proposed to operate Mr Albon indicated a customer would enter the lobby area and is then shown to an introduction lounge by the Duty Manager. The client pays the Duty Manager a room rental fee and pays the service provider a service fee. At the conclusion of each booking the service provider escorts the client to the internal security door.

72 Mr Watson-Jones called Ms Isis to give evidence of her experiences as a sexual service provider. Ms Isis indicated she had worked in approximately 17 brothels over the past two years. She highlighted some problems that arise including the attitude of some customers to the service providers, the lack often of a means to resolve work place disputes, the lack in some brothels of panic buttons to ensure the safety of the service provider and a lack of knowledge by some service providers of the health requirements.

73 Ms Elias who is a receptionist at the escort agency currently operating in Shepparton indicated medical checks were required to be taken by all service providers and the business also provided information packages regarding health requirements. She indicated the agency had a system of ensuring their workers were protected when working with the provision of a security guard and the business often provided additional assistance to workers in times of need.

74 Information regarding how the business is to operate is we consider important to ensure that the activity conducted on the land will not result in an impact on the amenity of the surrounding area. We do not consider it is the role of the Tribunal in determining a planning permit application to consider whether persons who are to be employed by the business have proper health and safety checks or the amount they are paid and who pays them, such employment issues as well as the state of the premises are governed by other areas. In determining to grant a permit for a factory use we do not question whether workers at the factory are to be given particular rights rather it is the way the factory is operated to ensure there is no adverse impact to adjoining properties that is given consideration and this is usually in terms of the likely noise to emanate from the premises and traffic impacts. In this respect we consider that there is unlikely to be any adverse impacts to adjoining properties as a result of the operation of the brothel, all business being conducted internally within the building.

75 Ms Isis may be able to paint graphic pictures of some of her experiences but in terms of considering whether this type of use should be permitted on this land we think such information is of little relevance.

76 The neighbourhood in which this brothel is to be located generates a certain level of noise from trucks going to and from different activities as well as a level of noise generated by various types of machinery used on a number of sites.

77 Apart from the noise of vehicles going to and from the site the activities of the brothel are contained within the building and are not expected to generate any noise that is likely to have an impact on the amenity of the area.

78 If the busiest time for the brothel is during the evening period then the noise of vehicles going to and from the site will have no impact on the other sites as they will not be operating at that time. Vehicles going to and from the site during the day will have no more impact than vehicles going to and from the other sites within the industrial area.

79 Under the particular car parking provision at clause 52.06 of the Greater Shepparton Planning Scheme as the use is not specified an adequate number of spaces must be provided to the satisfaction of the Responsible Authority. It is proposed to provide 14 car spaces on site at the front of the building for customers and 6 car spaces to the east of the building for employees.

80 We consider that in this location the provision of 14 car spaces provided on site for customers is adequate. Whilst on street parking can occur it is preferable that within an industrial area where there are larger vehicles parking at the rear of a court bowl is discouraged, particularly during the day when the other industrial uses are operating. We consider that the provision of 14 car spaces will adequately accommodate customers attending the brothel during the day and when the brothel is likely to be at its busiest time in the evening there are no other industrial activities occurring that will result in a conflict if some on street parking does occur.

81 There is a potential from the information provided to have up to 12 employees on site at the one time although we consider that this may only occur during a change in shift times. We do not expect that all employees will drive to the site and were advised that most of the sexual service providers did not drive themselves therefore the provision of 6 car spaces for employees is considered adequate.

82 We also consider that the location of the employee car park in a secure area and away from the customer car park is appropriate.

83 Provision is shown on the plan for areas where landscaping can occur although there has not been a detailed landscape plan provided.

84 The areas for landscaping shown on the plan are generally around the perimeter of the site and at the front to the court bowl of Apollo Drive which faces south.

85 The entry to the building is positioned half way along the western side of the building and away from the front of the site. We consider that there is sufficient area to allow for a reasonable amount of landscaping that will screen to a certain extent the customer car park and entry to the building and apart from the use of the north western and north eastern corners of the site for storage areas the whole perimeter of the site can be adequately screen by landscaping.

86 The Responsible Authority placed twenty nine conditions on its Notice of Decision to Grant a Permit. Mr Watson-Jones submitted the permit applicant should be required to provide a management plan. We consider this is unnecessary in the circumstances of this type of business where we are unable to conclude there will be any impact on adjoining properties. We note that condition 26 places some additional operational requirements upon the permit holder which have not been objected to and in this respect we consider these requirements go to ensuring the operation is appropriately conducted.

87 Mr Cahill expressed concern regarding waste disposal of certain used items. We note that condition 21 requires an area to be set aside for the storage and collection of waste. We consider this condition deals appropriately with this issue.

88 In reaching a conclusion that the decision of the Responsible Authority should be affirmed we have not adopted as suggested by the applicants for review the 'tick - box' assessment of the proposal in terms of section 73 PC Act rather we have considered the matters we have been directed to consider under the PE Act, PC Act and the Greater Shepparton Planning Scheme. As a result we see no planning reason why this permit should not be granted.

[1] Equuscorp Pty Ltd v Malcolm & Ors [2001] VSC 66 (22 March 2001); Botany Bay Instrumentation & Control Pty Ltd & Anor v Stewart & Anor (1984) 3 NSWLR 98; Hulls v Department of Treasury & Finance & Ors [1998] VCAT 555 (15 January 1999)

[2] Section 75(1) Prostitution Control Act 1994

[3] [1999] VCAT 105

[4] Section 4 Prostitution Control Act 1994

[5] [2005] VCAT 1432

[6] Attorney- General's Street Prostitution Advisory Group - Final Report - 2002; Official Committee Hansard, Joint Committee on the Australian Crime Commission, Reference: Trafficking in women for sexual servitude, Tuesday 18 November 2003: 'Youth for Sale' ECPAT Australia's National Inquiry into the Commercial Sexual Exploitation of children and Young People in Australia, ECPAT Australia Inc 1998

[7] [2005] VCAT 408

[8] Holyoak v Maribyrnong CC [2001] VCAT 1960