[2005] VCAT 408

The order of the Tribunal is that the decision of the Responsible Authority is affirmed.

The Tribunal directs that a permit must not be granted.

Mr A Finanzio; barrister for Atkar (PR and ML Grimshaw), instructed by Mr C Taylor, The Partners Business and Property Advisory.

Mr J F Larkins, barrister, for Messrs Lion, Gillingham and Tregenza (Super Group Pty Ltd).

Mr Mark Lindquist for Linds Rehabilitation Equipment.

1 This is an application under Section 77 of the Planning and Environment Act 1987 ("the Act") against the refusal by Casey City Council ("the Council") to issue a planning permit in permit application P530/04 to use and develop the land for a brothel. We note that Council's officers recommended the grant of a permit in a report on the permit application.

2 A Notice of Refusal was issued by the Council on 12 October 2004 on the following grounds:

1. The proposal is contrary to the Municipal Strategic Statement contained in the Casey Planning Scheme which seeks to encourage a positive image of Casey as a desirable place to live and overcome factors that create a negative image of the municipality.

2. The proposal is contrary to Clause 22.09 - Industrial Development Policy contained in the Casey Planning Scheme, where it is policy that commercial and non-industrial uses be excluded from Industrial zones, except for those uses which:

•

Are complementary to industrial uses;

•

Are ancillary to industrial uses;

•

Form part of an integrated development that is predominantly industrial in nature.

3. The proposal would be located in close proximity to other land uses that have cause to attract children.

4. The proposal could create an enclave of adult themed land uses in the area which is undesirable from a planning perspective.

3 At the hearing, the Tribunal received written and oral submissions and a number of photographs of the site and its locality. Documents tabled during the course of the hearing have been retained on the Tribunal's file. We have made a joint inspection of the site and surrounds. We also undertook a kerbside inspection of an existing brothel in Rimfire Drive, known as "The Penthouse", located about 1.6km to the south-east of the review site.

4 We have adopted the description of the site and its locality provided in the Council officer's report as suitable.

The subject site has an area of 3,980sq.m and is located on the northern side of Abbott Road, about 90m east of Carl Court. Other features of the site are as follows:

•

The site is currently vacant.

•

The site slopes noticeably down from the northeast corner to the south west corner.

The surrounding area can be characterised as developed for industrial uses, with the majority of buildings used for either warehouse or factory purposes. Land immediately to the east provides access to a self storage facility located behind the subject site. Land to the west is occupied by 'Super Groups' involved in the sale, service and hire of machinery / equipment. Land to the south, on the other side of Abbott Road, is developed by 'Ready Meals' a catering company. The Hallam Hotel is located to the north east approximately 280m away in a straight line. Hallam South Road is located approximately 260m to the east and provides the most direct route to the site.

5 Overhead powerlines and an associated 12m wide easement run across the full width of the site's frontage within the site itself.

6 Abbott Road is a collector road into the industrial estate and provides access between Hallam South Road and Wedgewood Road to the west, the latter which is also a collector road linking with the Princes Highway to the north.

7 We provide a summary of the proposed use and development:

•

The brothel is to be a large, purpose built building containing 6 client service rooms with associated staff amenities and reception area.

•

The proposed hours of operation are 24 hours a day, 7 days a week, with between 6 and 10 sexual service providers on the site at any one time.

•

The building has an area of 546 square metres, is to be single storey and industrial in character with a flat roof and concrete tilt-slab construction.

•

Excluding a parapet element over the main entry which is designated for signage, the wall panels are to be 4.2m in height.

•

The building is to be cut into the site but given the topography of the land, it will be elevated up to 2.5m above street level at its western end.

•

High front and side fences are proposed including a 2.4m high concrete block fence along the frontage and 2.4m high security controlled iron gates across the driveway entry.

•

Proposed building setbacks are 25m from the frontage, 7.5m from the eastern boundary and 13.5m from the western boundary.

•

A total of 29 car spaces are proposed, with 19 spaces for customers at the front and the balance along the western side of the building for staff.

•

Two-way vehicle access is proposed along the east side of the site.

•

Landscaping within a strip of about 4.5m is proposed across the front of the site.

•

The proposed development would occupy about two-thirds of the site, leaving an undeveloped area to the rear constituting about 35% of the overall site.

8 The land and surrounding land is included in an Industrial 1 Zone ("IN1 zone"). No overlay controls affect the site.

9 The purposes of the IN1 zone are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities.

10 A permit is required to use land for a brothel in the IN1 zone.

11 Pursuant to Clause 33.01-4, a permit is required for buildings and works.

12 Clause 52.06 (Car Parking) sets out requirements for carparking associated with particular uses. A brothel is not a use identified in the table to Clause 52.06-5.

13 Clause 52.06-1 states that where a use is not specified in the table to Clause 52.06-5, an adequate number of car parking spaces must be provided to the satisfaction of the responsible authority (or the Tribunal on review).

14 Clause 65 sets out decision guidelines that must be considered, as appropriate, when considering any application for permit under the scheme. Of relevance to the issues in this case are the matters set out in Section 60 of the Act, the State and Local planning policy provisions described below, the purpose of the zone and other relevant controls, the orderly planning of the area and any effect on the amenity of the area.

15 Of relevance also, as provided for at Section 60 of the Act, is the Metropolitan Strategy, Melbourne 2030, it being a strategic plan adopted by the minister.

16 State planning policies and controls that were identified by the parties as being particularly relevant to this application include Clauses 14 (Settlement), 17.03 (Industry) and 19.04 (Brothels).

17 In relation to Clause 17.03, the objective is:

To ensure availability of land for industry and to facilitate the sustainable development and operation of industry and research and development activity.

18 Statements of general implementation include, inter alia:

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.

Responsible authorities should not approve non-industrial land uses which will prejudice the availability of land for future industrial requirements in industrial zones.

To provide consistent planning controls for the establishment and expansion of brothels throughout Victoria co-ordinated with the provisions of the Prostitution Control Act 1994.

20 The statement of general implementation at Clause 19.04-2 of relevance to this application includes:

Responsible authorities should consider the matters set out in section 73 of the Prostitution Control Act 1994 before deciding an application to use or develop land for a brothel. 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 Prostitution Control Act 1994, unless section 76(2) of that Act applies.

21 The local policy framework identifies the importance of building a positive image for Casey as a desirable place to live so as to attract business investment and the creation of employment opportunities (Clause 21.12 - Image).

22 Clauses 21.05-2 (The Built Up Area) and 21.11-2 (Employment) both highlight the importance of retaining industrially zoned land primarily for industrial purposes.

23 Amongst other things, the implementation of this strategy is to occur by applying the Industrial Development Policy ("the IDP") at Clause 22.09.

24 The objectives of the IDP (Clause 22.09-2) are:

•

To develop industrial areas as local employment centres.

•

To ensure that there is an adequate supply of industrial zoned land in suitable locations throughout the municipality.

•

To ensure that remaining stocks of industrial land are used primarily for industry and related uses.

•

To ensure that land use conflict does not arise between industry and sensitive uses in surrounding areas.

•

To encourage industrial development with high standards of visual amenity.

•

A supply of industrial zoned land sufficient to meet the foreseeable needs of industry be provided in strategic locations throughout the municipality.

•

A range of lot sizes be provided to meet the diverse needs of industry.

•

Larger lots along main roads be provided or retained to meet the needs of major industrial firms that require good road access, a large site and prominent exposure.

•

All lots be provided with services including reticulated underground electricity and roads that are suitable for use by industrial traffic.

•

Commercial and other non-industrial uses be excluded from industrial zones except for those uses which:

s

serve the convenience needs of industrial uses;

s

are ancillary to industrial uses;

s

form part of an integrated development that is predominantly industrial in nature.

•

Each development be landscaped to enhance the built environment and to screen unsightly areas from public view.

•

Industrial buildings which are visible from main roads and railways lines incorporate good design principles which enhance the visual appeal of the surrounding area.

•

Sufficient areas be provided on each lot for car parking, goods loading and vehicle manoeuvring.

26 Decision guidelines at Clause 22.09-4, are as follows:

•

The location and siting of the use is appropriate, having regard to surrounding land uses.

•

The use and development will contribute positively to the area, with respect to the design of the building, traffic, car parking, access and overall site layout.

•

The use and development must locate on appropriately designed roads.

•

The development is designed and sited to complement the style and character of the overall streetscape.

27 A detailed discussion about this policy is provided below.

The Prostitution Control Act 1994

28 Section 74(1) of the Prostitution Control Act 1994 ("the PC Act") sets out the circumstances where the grant of a planning permit is restricted:

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, in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, 50 metres of a dwelling other than a caretaker's house; or

(c) except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, 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.

29 It was common ground that the proposal complies with the prescriptive criteria set out under Clause 74 of the PC Act.

30 Having taken into account the provisions of the planning scheme, submissions and other material presented to us at the hearing and the observations from our site inspections, we consider that there are essentially four key issues for consideration. They are whether:

i

This proposal is contrary to the intentions of the various state and local strategies and policies relating to the protection of opportunities for industrial development in the City.

ii

The proposed use would have an undesirable effect on children who visit premises in the area.

iii

A brothel would be detrimental to the image of the City of Casey.

iv

The proposal will lead to the creation of an enclave of adult-themed uses.

31 Before turning to these issues, we think it is necessary to comment on submissions based on moral or religious grounds which we have no doubt reflect sincerely held views. However we must affirm that, as was succinctly stated by Mr Finanzio, "the use of the land for the purpose of a 'brothel' is considered in our legal system as a legitimate use".

32 Thus, our consideration of the issues in this case must be confined to those matters within the relevant legislative framework including the Planning Scheme controls and policies and various Acts which we have described above.

Is the proposal contrary to the planning policy framework?

33 The submissions by Mr Montebello, Mr Finanzio and Mr Larkins relied heavily on the content and application of the policy framework to varying degrees, in support of Council's second ground of refusal.

34 In Mr Finanzio's submission, which we accept, "the planning policy framework is to be given great weight", "a brothel is both a commercial and non-industrial use of land" and is therefore not the type of use supported by Clause 22.09 for the industrial zone and "the proposed use is entirely inconsistent with the most relevant policy intended to guide the exercise of discretion in this case".

35 Mr Crawford sought to dismiss the policy argument by setting up, and then countering, a simplified outline of this logic:

•

Brothels may only be established in industrial zones

•

The land is within an industrial zone

•

The IDP applies to all industrially zoned land within the municipality

•

The IDP provides for the establishment of only industrial land uses or specified commercial or other non-industrial land uses

•

A proposal for a brothel within the City of Casey must be refused.

36 To this we would suggest a further point to Mr Crawford's paraphrasing of the opposing argument: there is no other extenuating circumstance which would justify setting the policy aside in relation to this particular use, site or industrial area.

37 Mr Montebello drew on the findings of Deputy President Gibson and Member Naylor in Doncaster Road Property Partnership v Manningham City Council [2004] VCAT 2445 (the Doncaster Road Property Partnership case) which provides an instructive analysis as to the application of policy.

38 We agree with the analysis in that case which relevantly includes the following:

[55] If a policy is included in a planning scheme, the Tribunal should be cautious before finding that the policy is not capable of implementation or is not a pragmatic policy and therefore should be disregarded. The Tribunal must seek to implement the planning scheme objectives and apply policy where relevant even if this leads to outcomes that the Tribunal, applicants, objectors or even the council do not like or agree with. The consequences of a proper application of policy rest with the planning authority. It is always open to the planning authority to change a policy that is not working, that is producing unwanted or undesirable outcomes or where the needs of the community change. Indeed, these are matters that each council should consider when it undertakes its three-yearly review of the MSS.

39 In this decision, the Tribunal then set out various circumstances where, having considered the relevant policy framework, there may be situations where a departure from the application of policy may well be warranted. These circumstances may variously be categorised under three main headings, namely in situations where:

•

there are competing policies to be balanced as set out in Clause 11.01[1] of the Victoria Planning Provisions;

•

the policy may be ambiguous, unintelligible or produce an absurd outcome;

•

the Tribunal finds that a policy is not relevant or applicable to the facts before it. In these situations, a decision about whether a policy is applicable or relevant will always turn on the facts and circumstances of the case.[2]

40 We agree with the tests identified by the Tribunal in that case and find them relevant to a proper consideration of the policies which are presently before us.

41 The Tribunal then went on to say that:

[60] However, presuming that a policy is relevant, it makes sense and there are no competing policies or any overriding community interest to the contrary, we consider the Tribunal should seek to implement that policy. This may mean refusing a permit on the grounds that it constitutes an underdevelopment of a site, which would undermine or prejudice the long-term achievement of the policy objectives. It is important though to bear in mind that it is the role of the Tribunal in each case to consider and determine if in fact the policy is relevant, if it makes sense, whether there are competing policies (and if so how they should be balanced) and ultimately if there is any overriding community interest to the contrary.

42 In forming our view as to whether we should depart from relevant policies, the following analysis considers the tests set out in the Doncaster Road Property Partnership case.

43 This is a situation where there is a very clear policy at Clause 22.09 which seeks to preserve the use of industrially zoned land for industrial purposes and an absence of competing policies.

44 However, it is acknowledged that at both Clauses 21.05-2 (The Built Up Area) and 21.11-2 (Employment), each contain the same Strategy which states:

Encourage the retention of industrial land primarily for industrial purposes. Exceptions can be made for non-industrial uses that complement industrial zones, such as takeaway food premises or uses that do not prejudice the use of nearby land for industrial purposes. (Emphasis added).

45 We think that the proposal does comply with one part of the Strategy, namely, that it would "not prejudice the use of nearby land for industrial purposes". This therefore might be seen as weighing in favour of this non-industrial use.

46 However, there is an important distinction to be made here, that is, the Strategy cannot and should not be regarded as the policy or for that matter a competing policy. Rather the Strategy serves to provide the strategic context for the policy.

47 Amongst other things, this (and other relevant) strategies in Clauses 21.05-2 and 21.11-2 are to be implemented by the application of the IDP, hence:

Using Industrial Development Policy to facilitate high quality development and appropriate uses located on Casey's industrially zoned land (Clause 22.09).

48 The IDP at Clause 22.09 must therefore have primacy over the strategy. That is, the policy seeks to implement the strategy.

49 Thus, even if one was to regard "uses that do not prejudice the use of nearby land for industrial purposes" as lending some degree of strategic support for the proposed brothel, the more relevant test is that to be found within the IDP itself at Clause 22.09.

50 Turning to Clause 22.09, it is acknowledged that this, or indeed any other policy, cannot purport to prohibit the proposed use. There is however a clear policy direction that non-industrial uses ought not locate in industrial zones. The policy basis states that:

There is a need to halt, and if necessary, to reverse this process to ensure that there is sufficient industrial land in the right locations for continued business investment in the municipality. The inefficient use of industrial land will be to the detriment of Casey's long term competitiveness.

51 Amongst other things, policy objectives at Clause 22.09-2 state:

To ensure that there is an adequate supply of industrial zoned land in suitable locations throughout the municipality

To ensure that remaining stocks of industrial land are used primarily for industry and related uses. (emphasis added)

52 Like the MSS strategy, it is apparent from the use of the word 'primarily', that the policy envisages that non-industrial uses may be located in industrial zones. This of course is not surprising given the strategy. The use of the word 'primarily' in the policy is however qualified by the words "for industry and related uses". Elaboration of this qualification can be found at Clause 22.09-3 (Policy) which states:

Commercial and other non-industrial uses be excluded from industrial zones except for those uses which:

•

Serve the convenience needs of industrial uses;

•

Are ancillary to industrial uses;

•

Form part of an integrated development that is predominantly industrial in nature.

53 In our view, the proposed brothel does not meet any of these specific qualifications in the policy itself, but importantly nor is it likely to prejudice the nearby use of land for industrial purposes.

54 However, for the reasons we have previously explained, although the strategy exemption of 'non-prejudicial use of nearby land' may weigh in favour of the proposed use, more weight ought to be given to the qualifications within the IDP itself as the primary policy implementing the strategy. The proposal does not comply with the policy.

55 There are no competing policies, such as for example, a policy on brothels and only very limited specific policies on other particular uses in the LPPF. The absence of a specific policy on brothels, in our view, should not be regarded as a situation that lends greater weight to the proposed use. Rather, it goes to the 'policy neutral' status of the use, outside of the IDP.

Is the policy ambiguous, unintelligible or will it produce an absurd outcome?

56 Clause 22.09 is clearly drafted and sets a very specific direction for the use of industrially zoned land within the City of Casey.

57 This policy would only produce an absurd outcome if it were to be applied slavishly without consideration of the specific circumstances and facts of this and indeed any permissible non-industrial use in the IN1 zone.

58 Whether complying with the exemptions in Clause 22.09-3 or not, it is true that the refusal of a different non-industrial use may be based on grounds relating to the availability of other more suitable zones for such uses. However, this is only one of many possible grounds that will depend on the particular circumstances and facts of the application under consideration.

59 It is also true that many a brothel is to be found within an Industrial zone. However, as pointed out by Mr Finanzio, this is simply the location where brothels can best satisfy the stringent limitations established by the PC Act. We agree with this view.

60 Mr Crawford submitted that this situation where "strict statutory requirements dictate, and limit the opportunity for the location of new brothels" in fact lends support for the location of brothels in industrial zones, including this proposal, despite the existence of the IDP.

61 We also agree with this proposition, but only insofar as this situation is only one of many considerations to be balanced. Importantly, we must acknowledge that not every industrially zoned parcel of land will be a suitable candidate for a brothel.

62 Like any Section 2 use in a zone, Clause 31 (Operation of zones) makes it clear that:

Because a use is in Section 2 does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the State Planning Policy Framework, the Local Planning Policy Framework, the purpose and decision guidelines of the zone and any of the other decision guidelines in

63 In the same way that, just because the use is in Section 2 of the zone does not mean that a permit should or will be granted, it would be wrong to suggest that the policy would effectively result in the absurd outcome of prohibiting all brothels within the City of Casey simply because:

•

Brothels are commonly found in industrial zones, and

•

This use is caught up in what might otherwise be regarded as the wide net of the IDP.

64 In considering this further aspect of policy, we refer again to the Doncaster Road Property Partnership case, where the Tribunal stated that (para 55) it should comply with policy unless there were situations where the policy would produce an absurd outcome. We conclude that slavish adherence to Council's industrial policies in relation to the siting of brothels could produce an absurd outcome. We have discussed the basis of our conclusion in this matter below.

65 As Mr. Crawford pointed out, the policy applies to all industrial zoned land in the City (all industrial land in the City of Casey is in the Industrial 1 Zone). Brothels are permissible in only a few of the standard urban zones: the business zones (other than Business 5 Zone) and the industrial zones (it is also not prohibited in such specialised zones as the Special Use Zone, but these are zones that must be designed for specific situations).

66 We believe that there is different basis on which this proposal falls outside the policy. That can best be outlined by referring to the effect that approval of this use would have in terms of setting a precedent. Mr. Finanzio, in fact, submitted that approval of this proposal would "render the policy ineffective in relation to all other land uses that do not meet the criteria of Clause 22.09 but are otherwise 'policy neutral'. In other words, the grant of a permit in this case will defeat the policy in this and most other cases, whether they be applications for brothels or not".

67 However, we note the following points of difference between a brothel and most other permissible (i.e. section 2) uses in an industrial zone. As was common ground between the parties, Council has no policy for the location of brothels. Brothels are not permitted in any zones and are permissible in only a few of the common urban zones.

68 The parties appeared to agree that industrial zones are those where proponents of brothels are most likely to find a suitable site that does not contravene the criteria of the Prostitution Control Act 1994, as the typical location of business zones is such that sites within them are more likely to be within 100m of a dwelling or within 200m of "a .... school, kindergarten, children's services centre or of any other facility or place regularly frequented by children for recreation or cultural activities." Consequently, it seems to us (even without any evidence being presented on this matter) that it would be very difficult for a proponent to find a suitable site for a brothel in the City of Casey outside an industrial zone. With the Clause 22.09 policy applying to all industrial zones in the City, the stringent application of this policy, as proposed by Mr. Finanzio, could in combination with the other factors outlined above have the possible consequence of excluding brothels from the whole City of Casey.

69 The other characteristic of brothels (this observation is based on our own experience) which we consider relevant is that they are relatively few in number compared to most other uses and cannot, because of the criteria of the Prostitution Control Act 1994, be allowed to cluster in the one location. Consequently, approval of one brothel will itself guarantee that it will not be followed by applications for others nearby.

70 On the other hand, many of the other uses that are permissible in, and which might more commonly be expected to seek a location in, an industrial zone (e.g. office, lighting shop, party supplies, restricted retail shop) are uses which are permissible (i.e. Section 1 uses) in some other zones which do exist in the City of Casey) and are permissible in a number of others. Furthermore, these types of use are relatively numerous, do tend to cluster and, if a precedent were to be created by allowing one such use into an industrial zone, it would be very difficult to exclude others.

71 Consequently, we consider that it is appropriate to differentiate, in policy terms, between the two classes of use:

s

Brothels, which occur relatively rarely, are disadvantage in practical terms in the availability of suitable sites outside the industrial zones and for which Council has no strategies or policies and

s

Other permissible uses that might seek locations in an industrial zone but for which there is usually a wide range of more preferred locations and which are usually the subject of articulated strategies and policies.

72 In making this assessment, we also refer to the Planning & Environment Act 1987, section 4(1)(a), which sets out the objectives of planning as including "fair, orderly, economic ......... use, and development of land". While it is not usual to refer to the objectives of planning in the context of a Tribunal decision, it seems to us that in this case our decision is supported by the need for fairness.

73 For the above reasons, we conclude that it would be reasonable, all other criteria being satisfied, to grant a permit for a brothel, notwithstanding that such a decision would appear contrary to Council's policy, although within the bounds of the strategic objectives. However, as we discuss below, we have concluded that not all other criteria have been satisfied in this case.

74 We are satisfied that there are no competing policies and that the policy is not unintelligible, ambiguous and nor, if considered properly, will it produce absurd outcomes. The differences that we have drawn between brothels and other non-industrial uses relate to significant differences between them. We now turn to the particular facts and circumstances of this application.

75 Is the policy applicable or relevant having regard to the particular facts and circumstances of this application?

76 There are a number of dimensions to the consideration of the facts and circumstances of this application which can be categorised under the following headings:

•

Features of the site, its physical setting and the characteristics of the proposal; and

•

The nature of surrounding land uses.

77 It is useful to consider the decision guidelines at Clause 22.09-4 of the IDP which include, inter alia:

The location and siting of the use is appropriate, having regard to surrounding land uses.

78 All the parties agree that the proposal meets the tests set out for prescribed distances under s.74 of the PC Act. However, as the Tribunal noted in Liang XL v Darebin CC and ors (2000/17646 unreported):

Whilst the subject land meets the mandatory location requirements set out in Section 74 of the Prostitution Control Act 1994 and its zoning under the planning scheme is such that discretion exists for a permit to be issued, compliance with these mandatory requirements is not in itself demonstrative of the land's suitability for a brothel. These requirements are simply the first hurdle that must be passed.

79 What is notable about this review site is its elevated location on the north side of Abbott Road. The land has a total area of just under one acre and slopes down toward the site frontage (north-east to south-west) with a fall of 8.29m. Abbott Road has a substantial carriageway width and is a collector road into the estate. The site is located within a relatively new, high quality industrial estate.

80 Whilst the building may take the form of other buildings in the area, signage, although not part of this application, will inevitably be required and will serve to draw attention to its prominent position. Interestingly, in Pedigree Sports v Casey City Council (1995/34998, 1995/35085, 1995/38713), the Tribunal made the following observations about the prominence of that site, which was located to the west of this review site in Carl Court:

Mr Pitt submitted that the brothel site was excessively prominent because it was on land which was clearly visible from Abbott Road and was higher than Abbott Road. The brothel if constructed would remain clearly visible until the corner site was built on after which the degree of visibility would be diminished.

The Tribunal agrees that the brothel on this site would be clearly visible to a person travelling along Abbott Road, but this does not mean that the brothel is prominent in the sense used as a planning consideration for the location of brothels. A brothel sited on one of the corners in Camberwell Junction with neon signs clearly advertising its presence and its use would be prominent, the proposed brothel is an anonymous building located on a site in a cul-de-sac in the heart of a remote industrial estate, it is not prominent in the planning sense applied to the consideration of brothels.

81 While the review site does not have the prominence of a Camberwell Junction location, nor could it be described as enjoying a discrete location. By way of contrast, the Carl Court site referred to in the Pedigree Sports decision was some 55m away from its intersection with Abbott Road, and would ultimately be largely obscured from Abbott Road when redevelopment of a nearby lot occurred.

82 The review site can also be distinguished from the Rimfire Drive brothel site, given that this latter site:

•

Is discretely located on a local access street within the estate;

•

Sits close to the level of the street;

•

Is significantly smaller in area and dimensions.

83 The review site is prominently located on a large site and is highly visible in both directions along Abbott Road. The industrial estate within which it is located enjoys relatively high levels of amenity, having regard to the siting and design of buildings, landscaping arrangements, the road layout and the nature of uses operating in the area. One gains a positive impression of the area when passing through the estate along Abbott Road.

84 The characteristics of the proposal are such that the proposed building, while to be cut in at its eastern end, will be elevated some 2.5m above Abbott Road at its western end. At this end, the carpark will also be elevated 1.5m above the street. A substantial client carpark for 19 vehicles and hard stand areas occupy the frontage and a further 10 staff car spaces are proposed on the west side of the building. When combined with the building, the development will occupy about two-thirds of the site. While provision is made for landscaping across the frontage, this will be limited given the presence of overhead powerlines within and across the full width of the site's frontage.

85 The proposed operational characteristics of the brothel are such that between 6 and 10 sexual service providers may be on the site at any one time, 24 hours a day, 7 days a week.

86 In short, the proposal is for a large brothel, in a prominent location, on a large site of just under one acre, with a substantial carpark in the front setback area.

87 We consider that when combined, these features mitigate against the grant of a permit, being mindful of orderly planning considerations under s.65 of the Planning Scheme, together with the matters for consideration under s.73 of the PC Act the latter which include:

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.

88 We acknowledge that the building will have very much an industrial character and, to the uninitiated, would probably appear like many other industrial buildings. However, given the building's large size and visibility, we would expect that most regular visitors to the estate would become well aware of its function. Given the sensitivity of many people to this use, we consider that this combination of prominence and size is undesirable.

89 One aspect of policy that we have not addressed relates to the inefficient use of land. Mr. Montebello submitted that the proposal, using such a large proportion of this large site would be an inefficient use of industrial land. This was not a matter that was the subject of detailed submissions or any evidence and we do not consider that we have an adequate basis for reaching a considered conclusion about it. However, we do believe that any proposal for a brothel in an industrial zone would have to address this aspect of Council's industrial policy in a substantive way.

90 Although we find that the proposed site is not suitable for the foregoing reasons, we consider that a site with features comparable to the Rimfire Drive brothel may be suited to accommodate the particular operational and physical characteristics of the current proposal.

•

Abuttal to the north and east is a furniture removalist and storage business ("Hermons Rainbow") at No. 22 Abbott Road. This lot is a battle-axe configuration, with the "axe-handle" abutting the east boundary of the review site. The officer report indicates that a live-in caretaker lives on the premises about 100m from the review site's north boundary.

•

Further east, separated only by the access shaft is a business which manufactures and sells home care aids and equipment ("Engrit") at 18-20 Abbott Road.

•

Abutting the site to the west is a business which sells and hires earth moving equipment such as mini-excavators, ride on mowers as well as carrying out trade supplies ("SuperGroups").

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On the opposite side of Abbott Road is a catering company.

92 Other land uses nearby include a number of businesses which are frequented by children for educational or recreational purposes. These include (in order of distance from the review site):

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Atkar at 17-19 David Lee Road (approximately 270m to the south) which provides a regular work placement program for secondary students of Glenvale College.

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JJ Richards - a materials recovery centre at 10-18 David Lee Road (approximately 450m to the south), Hallam. It includes an educational facility which attracts regular school excursions of mainly primary school age students.

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Further to the south-east at 2/14 Star Crescent (about 770m away) is a dance studio for children and adults ranging in age from 3 years to 30 years with classes from Monday to Friday 4pm until 9pm.

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Opposite the dance studio is a children's playtime centre, which Mr Montebello's submission described as being a venue "... for children's parties, functions and the like. This is a recreational facility".

93 As previously mentioned, there are no uses within 200m of the site which would result in the site falling foul of the prescriptive requirements under s.74 of PC Act. However, one of the objects of the PC Act (s.4) is:

To seek to ensure that brothels are not located in residential areas or areas frequented by children.

94 Section 73(b) and (c) of the PC Act also provides that the responsible authority must consider, inter alia:

(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 being located within that distance of that facility or place;

95 As the Tribunal observed in the Pedigree Sports case:

Sections 4(d), 73(b) & (c) and 74(1)(c) all deal with the effects of brothels on children, or the specification of separation distances between brothels and various children related activities. The Tribunal is of the opinion that the Act represents a public policy that brothels and children related activities be strictly separated. This policy is independent of the existence of any significant risk that there will be any real interaction between the two uses.

96 The nature of immediately surrounding land uses is such that whilst they cannot all be specifically regarded as "children related activities", the site is located near a number of uses which do attract family groups, and school children, whether accompanied or unaccompanied by adults.

97 Submissions were made that the nature of the "Supergroups" business is such, that when making a large purchase for the family home, (for example a ride-on mower), all family members are often in attendance when deciding on and purchasing the particular item.

98 Family based visits are said to occur in relation to the purchase of home aid equipment from "Engrit" and to access stored goods from the adjoining "Hermons" business.

99 We think that these three businesses, like most, involve the possibility that customers will include family groups or children. Although adjoining or within 20m of the site, the nature of these businesses are such that we would reasonably expect children to be accompanied by adults. The types of services and products offered for sale at these premises are also aimed at adults rather than children.

100 Therefore we do not think refusal of the application on grounds related to the proximity of these businesses is justified.

101 Similarly, in relation to the JJ Richards recycling facility, school excursions to this facility would be supervised by staff (and possibly parents) with travel most likely occurring by bus.

102 The dance school and children's playtime centre are located more than 700m away from the site, situated in Star Crescent, one of the more minor roads within the estate and with no direct connection with Abbott Road. We agree with the Tribunal's findings in the Pedigree case that the degree of separation is acceptable. We drove past the dance school during our site inspections and found that the nature of the road network is such that there would be no need for visitors to the dance studio to travel past the review site.

103 In relation to Atkar, Mr Nye (campus director from the Glenvale School) made submissions outlining the work placement program offered by the school as part of a Business Administration course. The program, which involves pre-vocational education and training is auspiced through Box Hill Tafe and is conducted in partnership with local businesses. Atkar is one of 3 participating businesses within the region, which commenced their involvement in the program in February 2004. Approximately 2 to 3 Year 11 students (girls and boys) attend the site one day per month. Mr Nye spoke about the difficulty in sourcing suitable businesses for the program, having regard to Occupational Health and Safety requirements, public liability cover and the need for staff of participating businesses to be subjected to police checks when hosting children under 16 years of age.

104 Mr Nye submitted that students have cause to catch public transport to Atkar, either by the bus service along Hallam South Road or from the Hallam railway station to the south. Those using the bus service would, taking the most direct route to their workplace in David Lee Road, walk from the bus stop on the corner of Abbott Road and Hallam South Road past the review site.

105 Together with the prominent location of the site, its proximity to Atkar (245m), the large size of the brothel and the reasonable expectation that children participating in the work placement program will not be accompanied by adults if walking to and from the bus stop, we find that the location of the brothel is unacceptable. We say this having regard to the objects of the PC Act which seeks to ensure that brothels are not located in areas frequented by children, the pre-existing nature and regularity of this program, and the community benefit obtained from such programs offering employment and training opportunities to children in the area.

106 In summary, we think the particular considerations of proximity to activities in which children partake are to be given more weight than the fact that we have elsewhere concluded that it would be reasonable to except a brothel to depart from the directives of Council's industrial policy. We appreciate that the presence of children in the area is not something that could have been readily discerned by the permit applicant. However, the applicants must take the site and surrounding area as they find it and in this instance, we find that the particular circumstances mitigate against the grant of a permit.

107 For the above reasons, we find that on balance a permit should not be granted. However, we have also made it clear that the Council's industrial policy should not be applied as a blunt instrument serving to prohibit brothels in the City of Casey. We conclude that there may well be situations where the grant of a permit for a brothel in an industrial zone will produce an acceptable outcome, but this will ultimately turn on the particular facts and circumstances of each application under consideration.

Would the brothel be detrimental to the image of the City of Casey?

108 Council's first ground of refusal concerns the perception that a brothel is a use that would be contrary to Council's MSS, (particularly under Clause 21.12), which seeks to encourage a positive image of Casey as a desirable place to live and overcome factors that create a negative image of the municipality.

109 The objectives of Clause 21.12 include:

To build a positive image of Casey as a desirable place to live in order to attract business investment, to create employment opportunities, to attract future residents and to instil community pride in existing residents.

110 The focus of these image objectives is the prominent areas in Casey which are highly visible to visitors and residents. At Clause 21.12-1 these prominent areas which "require special attention as they are influential in shaping images of the municipality" are described as:

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the gateways to the municipality (see Framework Plan);

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the main travel corridors and the areas through which they pass (see Transportation Corridors Plan);

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the two regional centres at Cranbourne and Fountain Gate - Narre Warren.

111 For the purposes of Clause 21.12, it is apparent that the site is not located within any of these areas. We find that the objectives of this policy are focused on these highly visible areas along the municipality's major thoroughfares. These locational attributes are to be distinguished from sites such as the review site the latter which is an individual site (albeit an acre) on a collector road away from these areas. Therefore we find that we must give less weight to Clause 21.12 than we might otherwise if it included locations with the characteristics of the review site.

112 This is not to say that quality built form outcomes are not expected on sites outside of these areas. We note, for example that the IDP is also an implementation tool under Clause 21.12-2. But rather, in terms of shaping the image and perceptions of the municipality as a whole, the impact of "getting it wrong" would potentially have significant implications in these highly exposed locations.

113 In terms of a brothel use conveying a negative image about the municipality, we find that municipalities typically contain a number of uses that they usually do not promote but which are required to service various community needs - funeral parlours, waste transfer stations and the like. Concerns based on a brothel use per se, do from the submissions made appear to be based largely on moral considerations. As we have already stated we cannot put any weight on this issue.

114 In any event, if the establishment of a second brothel in the municipality was so detrimental to one's perception of Casey as a desirable place to live, visit or attract business investment, the damage would have presumably have already been done by the presence of the first. We seriously doubt that this is the case. Certainly, no evidence was brought or substantive argument provided in submissions.

Will the proposal lead to the creation of an enclave of adult-themed uses?

115 We heard submissions that in combination with the Rimfire Drive brothel and an adult sex book shop (the latter which is located to the north-east of Abbott Road in Melverton Drive), that approval of this brothel would create an enclave of adult-themed uses.

116 One of the matters requiring consideration under s. 73 of the PC Act is:

117 The Rimfire Drive brothel is located about 1.6km away, within a different industrial estate on the east side of Hallam South Road. As we have previously stated, this brothel is in a fairly discrete location and is also separated from the review site by a main road and railway line.

118 In relation to the adult sex book shop, it is located about 400m away also on the east side of Hallam South Road.

119 Given the nature of Hallam South Road and separation distances between these existing uses and the review site, we do not share submitters' concerns that approval of this brothel would create an enclave of adult themed uses.

120 One may well conclude that taken in isolation, the policy framework and particular circumstances of this application could not be regarded as fatal to this application.

121 Conversely, taking all the circumstances together, they could not be regarded as representing "an overriding community interest" such that departure from the IDP is warranted.

122 When considered in the context of the IDP, a very specific policy, from which we found no sound reason to depart, together with relevant decision guidelines in the Planning Scheme and under s.73 of the PC Act, these factors combined weigh against the grant of a planning permit. We therefore concluded that we should affirm the Council's decision and direct that no permit be granted.

[1] Clause 11.01 - decision makers should endeavour to "integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development".

[2] See Glen Eira City Council v Gory [2001] VSC 306 where Justice Balmford said with respect to the obligation to consider policy as appropriate': "To consider is not necessarily to adopt or to follow."