The order of the Tribunal is that the decision of the Responsible Authority is set aside. A permit is granted for an adult sex book shop and associated advertising signs at

Shop 13/108-120 Young Street, Frankston, generally in accordance with the endorsed plans and subject to the following conditions:-

1. The permitted adult sex book shop must not open to the public until amended plans are submitted to the Responsible Authority, generally in accordance with the application plans but modified to show amendments tothe design and colours of the proposed signs to reduce the visual prominence of the permitted use and to more closely relate to the colours used for signs on the Frankston Business Centre building, to the satisfaction of the Responsible Authority. An endorsed copy of these plans shall form part of this permit.

2. The layout of the site, the layout of the Adult Sex Bookshop and the advertising signs, shown on the endorsed plan must not be altered or modified (whether or not to comply with any statute, statutory rule or by-law or for any other reason) without the consent of the Responsible Authority.

3. No new buildings or works shall be erected or constructed and no existing buildings shall be enlarged, rebuilt, or extended (whether or not in order to comply with any statute, statutory rule or by-law or for any other reason) without the consent of the Responsible Authority.

4. There must be no view of the interior of the shop premises from the public footpath, to the satisfaction of the Responsible Authority.

5. Prior to any external wall of the Adult Sex Bookshop being painted, a schedule of the proposed paint colour and building treatment shall be submitted to the satisfaction of the Responsible Authority.

6. External lighting shall be provided and suitable baffles located in accordance with requirements of and to the satisfaction of the Responsible Authority. The external lighting shall not include any flashing lights.

7. (a) Except where no permit is required under the provisions of Clause 52.05 of the Frankston Planning Scheme Ordinance or as provided in Condition 7(b) no sign shall be constructed or displayed without the consent of the Responsible Authority.

(b) External signage associated with the use shall not contain any sexually implicit, explicit or lewd content whether in a written or pictorial form.

8. Without further written consent from the Responsible Authority, the Adult Sex Bookshop hereby permitted shall only operate during the following times:

(a) 10.00am to 12.00 midnight, Sunday to Wednesday inclusive.

(b) 10.00am to 3.00am the following day, Thursday to Saturday inclusive.

9. No person under the age of eighteen (18) years shall be permitted within the Adult Sex Bookshop.

10. The external appearance of the Adult Sex Bookshop shall at all times be kept in a neat and tidy condition.

11. The two video viewing booths, the change room and the staff amenities room at the rear of the Adult Sex Bookshop as shown on the endorsed plan shall only be used for the viewing of videos, for customers to try on lingerie prior to purchase and for a staff amenities room respectively, and for no other use.

12. No live sexual act shall take place within the Adult Sex Bookshop.

13. This permit will expire if the use is not started within two years of the date of this permit. The responsible authority may extend this period if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this order under the provisions of Section 85(1)(b) of the Planning and Environment Act 1987.

Mr Matthew Cameron, Town Planner, appeared on behalf of the Responsible Authority.

Mr David Crowder, Town Planner, appeared on behalf of the Body Corporate of the Frankston Business Centre, a Respondent/Objector.

The following Respondent/Objectors appeared on their own behalf:

Mr Stephen Jones, Barrister, appeared on behalf of the Permit Applicant and Applicant for Review. Mr Jones called Mr Peter Small, Town Planner, as a witness in support of his submissions.

1. This is an application to review the decision of the Responsible Authority to refuse permission for an Adult Sex Bookshop in an existing shop premises in Young Street, Frankston. The Responsible Authority issued a notice of refusal to grant a permit for the following reasons:

1. "The proposal is inconsistent with Council's efforts to upgrade Young Street, which is adjacent to a regional transport node and is a major entry point to the central activities district.

2. The proposed use is lower amenity use in a prominent location and conflicts with Council's strategy to revitalize the southern end of the Central Activity District.

3. The subject site is located in close proximity to a range of public transport facilities, businesses and services that are heavily patronized by young people. The proposed use is a lower amenity use and conflicts with the primary use of the complex for professional office suites.

4. The size and colours of the proposed advertising signage is inconsistent with the appearance and image of the Frankston Business Centre and does not complement existing business identification signage on the building."

2. The parties and the witness at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal. The Tribunal inspected the subject site and its locality, and inspected two other Adult Sex Bookshops within the Frankston CAD, "Mystic" in Playne Street, and "World Adult Books" in Steibel Place.

3. The subject premises is a vacant shop within an existing two storey building known as the Frankston Business Centre. The Business Centre contains a number of tenancies primarily used for office purposes and most of whom are accessed via a central arcade. The subject premises fronts onto Young Street itself, north of the arcade entrance, access is directly from Young Street. The shop premises has no display windows or public access onto the arcade.. The proposal is to use the existing shop premises as an Adult Sex Bookshop, and includes signs above window, and painted onto the window. The window signs also serve the purpose of screening views of the interior of the shop.

4. Young Street is located on the south eastern periphery of the core retail area of the Frankston CAD. The Frankston Transport Interchange is located a short distance north east of the subject site. Land uses in Young Street, other than the business centre include a restaurant, take away food premises, a video library, real estate agents etc. The retail and commercial uses in this part of Young Street are somewhat peripheral in character.

5. Having considered the submissions and inspected the site it is our view that the significant issues in this application for review are:

* The effect of the proposed premises on children;

* The appearance of the proposed adult sex bookshop.

6. It was agreed that adult sex bookshops are discretionary uses, because they raise locational considerations in relation to the amenity of the shopping precinct which are not important for most other types of shops. It was agreed that adult sex bookshops should generally be located in peripheral locations away from core retailing areas in shopping centres. The dispute in this case was whether or not Young Street is sufficiently peripheral. We are satisfied on the basis of our inspection that Young Street is indeed a relatively peripheral retail and commercial environment, in the context of the broader Frankston CAD.

7. While we have found that Young Street is in actuality a peripheral location in the shopping centre, it is true that under the existing planning policy framework Young Street is within, albeit at the edge of, the core retailing precinct. The policy framework recognises that the southern edge of the core retailing precinct was in need of rejuvenation, however, it also recognises that Young Street, among some other streets, was a suitable location for uses other than primary retail uses.

8. In addition to the policy framework set out in the planning scheme itself, the municipality has invested considerable effort in developing an urban design framework for the Frankston CAD, the framework plan being entitled The Frankston Project. In its present form this plan proposes significant improvements to the environment within Young Street. The Frankston Project is a very long term redevelopment proposal, and its ultimate expression is uncertain.

9. We are of the view that the important question is in relation to the planning policy framework, and The Frankston Project, is the issue of whether or not the proposed adult sex bookshop would compromise the implementation of these proposals. We are of the view that provided that the adult sex bookshop is reasonably discreet, then we think it is highly unlikely that the implementation of the planning policy framework, or The Frankston Project would be compromised by the existence of this shop.

10. In relation to the amenity of the business centre, we have concluded on the basis of our inspection that notwithstanding the location of the shop, adjacent to the entry to the arcade servicing most businesses within the building, it is clearly a separate premises fronting directly onto Young Street, having no direct relationship to the arcade itself. In this context we are satisfied that provided the premises are reasonably discreet, they will not affect the amenity of the business centre generally.

11. It was argued that because the shop premises is located only a short distance from the Frankston Transport Interchange, and because Young Street forms a link between Wells Street, the interchange, and the civic and arts facilities further to the south, it is an area in which children and families congregate, and that therefore this is inimical to the establishment of an adult sex bookshop in this part of Frankston. Mr Small's office on two separate occasions counted pedestrian movements at the site, including the presence of children. These counts do not support the contention that this is an area frequented by children, or that large numbers of children will pass the site. Persons under 18 years of age are not permitted within adult sex bookshops. We do not think that the contention that this adult sex bookshop would be harmful to families and children is made out.

12. The exterior of the proposed shop is not physically altered, and therefore the appearance of the proposed shop is dictated by the advertising signs forming part of the application. The proposed signage incorporates a wall sign to be constructed immediately above the shop windows, and as is common for this type of views to the interior of the shop premises are screened by painting signs on the existing glazed area. The proposed sign colours include red, yellow and black. During the course of the hearing there was some discussion about the somewhat garish character of the proposed signage, and the area of the proposed signage, and whether or not it would be better to require the creation of a shop front display as part of the conditions of permission.

13. Having inspected the site and two nearby adult sex book shops, we have concluded that it is not necessary in the context of Young Street, for there to be a shop front display. Indeed, if there is a shop front display there is the risk that the window display itself could become contentious or offensive. Existing signage along the Young Street facade of the building has a somewhat jumbled character, but nevertheless demonstrates a reasonable degree of consistency in the use of colour. We believe that it would be advantageous to modify the proposed signs to moderate the prominence of the proposed Adult Sex Bookshop. In our view this can be primarily achieved by adopting a colour scheme more respectful of that of other signs on the Young Street facade of the Frankston Business Centre. However, in making this observation we do not wish to imply that the signs should have no visual impact at all or that the colours used for the signs should be limited to light green on a cream background.

14. For all the above reasons it is our conclusion that a permit should be granted to the proposed Adult Sex Bookshop, subject to conditions requiring a reduction in the visual prominence of the proposed signage.