Gowans v Casey CC [2008] VCAT 1689

The decision of the Responsible Authority is affirmed. In permit application P706/07 no permit is granted.

Mr William Chow, town planning consultant of Zoneworks

Mr M Harris; Mr S Smith with Mr W Mansfield; Mr D Fysh.

(Given orally at the end of the hearing but subsequently revised and amplified)

1. Scott Gowans has lodged an application for review against the Casey City Council's decision to refuse a permit for an adult sex bookshop and signage at 28 Enterprise Avenue Berwick. The council refused the permit application on the following grounds:
   1. The proposal is contrary to the public policy principle that Adult bookshops and children related activities should be separated.
   2. The proposed use is incompatible with and will be to the detriment of existing land uses and business and located in close to the subject site.
2. A number of objectors operating businesses near the site support the council's decision, essentially on the basis that the proposed use is inappropriate for this site and the industrial area within which it lies and would have an adverse impact on their businesses. The objectors request that we affirm the council's decision.
3. Mr Gowans asserts that the proposal would not have any adverse impacts on children who would most likely be accompanied by adults when visiting various premises in the industrial estate. He contended that the proposal would comply with the locational conditions set out in the Planning Scheme and being restricted premises, children would be unable to go into the shop. Nor would any sexually explicit material be displayed so as to be visible from outside the premises. He submitted that the presence of the shop would therefore be limited to signage identifying the business and this would be no worse than other advertising messages found on billboards, in the print media or conveyed through television and radio advertisements.
4. Mr Gowans requests the council's decision be set aside and that the tribunal direct the issue of a permit.
5. The site is located on the north side of Enterprise Avenue, near Intrepid Street. It comprises a vacant factory unit measuring about 300 square metres that is one of a pair similarly sized factory units with the other factory used as a base for a campervans and motor home rental business[1]. The pair of factories share a car park located in setback area between the street and the building facades.
6. Contextually, surrounding land uses are comprised of those that could reasonably be expected within an industrial area including manufacturing and service industries. However, there area also a range of other uses in the immediate area including a children's gym, known as "Funtastic Gymnastics", a church, dance school and scout hall.
7. Of these, the children's gym is the most proximate, located about 20-30 metres away, immediately to the west of the Campervan and Motor home rental business, and within 'eye-shot' of the site. The gym is also located in an industrial building that has a similar setback to Enterprise Drive as the building on the site. The setback is also used for parking. Although a separate car park, there are no barriers that impede access between the car park serving the site and the gym.
8. According to the operator, Mr Smith, the gym provides services directed at children, mainly between the ages of 4 to 12. Mr Smith said that there are somewhere in the order of 490 children enrolled for gym activities which can occur during school hours, after school hours up to around 8.30 pm in the evening and on weekends.
9. It is proposed to use the factory unit for an adult sex bookshop. It is proposed that the adult sex book shop be open 7 days week; between the hours of 9am until midnight Sundays to Thursdays and 9am to 1am the following day on Fridays and Saturdays. One or two staff members would be present at any one time.
10. A full range of adult products goods will be sold at the bookshop including explicit literature, videos, lingerie and other sex related aides and associated products. However, ancillary facilities provided in some adult bookshops such as internet booths are not proposed.
11. A spot lit advertising sign, 6.8m long by 1.3m high, on the front façade is also proposed, displaying the name of the premises "Sextastic Adult Variety Store".
12. Under the Casey Planning Scheme, the site is zoned Industrial 1. An adult sex bookshop is a "permit required" use provided that, amongst other things, the site is located at least 200 metres from a residential zone, a primary and secondary school. The proposal meets these requirements.
13. A planning permit is required for the advertising sign. The relevant controls are those under Category 2 at Clause 52.05.
14. A permit is required under Clause 52.06 to reduce the number of car parking spaces associated with a shop use. Applying the standard planning scheme rate of 8 spaces per 100 square metres, 23 spaces are required. Only 6 car spaces in front of the building are available.
15. Decision guidelines at Clause 65 require consideration to be given to a range of matters including planning policy, the zone purpose, orderly planning and the impact on amenity.
16. There is a raft of planning policies and these were comprehensively set out in the submissions presented by the Council and the permit applicant. In short, the most relevant policies are at Clauses 17.02, 17.03 and 22.09.
17. Having set out the background, we begin our consideration of the merits by making some general observations about proposals for adult sex bookshops.
18. First, in principle, we do not have any difficulty with this type of use being in an industrial zone. This is despite the use being fundamentally retail in nature and that it does not particularly advance the purpose of the zone. However, the Industrial 1 zone is one of the few zones where an adult sex bookshop is not prohibited. Further, the establishment of this use in industrial zones has been found to be acceptable by the tribunal on many occasions. In this regard we refer to the views of the tribunal in Mayfair Chain Pty Ltd v Wyndham CC_[2]_ when it commented:
    1. The proposed adult sex bookshop does not particularly serve the needs of the industrial area, but neither is it incompatible with the area and the planning scheme, to some extent, recognises this zone as a possible appropriate place for such a use. Shops are prohibited in the zone save for several particular exceptions including an adult sex bookshop. That contemplates the possibility of such a facility in this zone, subject to the location being suitable from other points of view.
19. Second, we do not have any concerns about the proposed signage. The level of signage is not excessive and appropriately located on the front parapet. The provision of clear signage that enables the premises to be easily identified is an important consideration so as to avoid the confusion with other business. Although Mr Smith is concerned that the name of his business, "Funtastic Gymnastics" might inadvertently be confused with the "Sextastic" bookshop, we consider this to be unlikely.
20. Third, the council did not raise any concerns about car parking. While the amount of spaces to be provided is well below the standard rate under Clause 52.06, from our own experience we are able to conclude that small retail outlets in general tend to generate far less than the standard rate. Further, we doubt that this type of retail outlet would generate the same type of peak demands as other retail uses. Overall, we are satisfied that the proposed shop would generate modest car parking demand that can be accommodated on site and if necessary, in the nearby streets.
21. All of the above observations would favour the grant of the permit.
22. It is appropriate that we also say something about the matters raised by Mr Fysh and in particular, the issue of the aversion that some people in the community may have towards this particular use.
23. While we understand that some members of the community may be offended by the nature of this retail use, for moral or religious reasons, the reality is that it has legitimate standing under the planning scheme. It is not a prohibited use nor is it unlawful with a permit. Parliament has passed laws that allow a permit to be granted for this use subject to appropriate criteria being met. Our role is not to impose our own religious or moral values; rather, we are required to apply the planning laws that are in place, including the approved planning scheme. Accordingly, we are required to consider the merits of the proposal having regard to the matters set out in the planning scheme, including the orderly planning of the area and the impact on amenity, but cannot refuse proposals like this simply because they may cause offence to some persons.
24. The proposal meets the separation distance thresholds as the site is located more than 200 metres away from a Residential 1 zone and primary or secondary schools. These are relevant matters that we have taken into account. This does not, however, mean that a permit should be granted as a matter of course. If it was intended that a permit be granted if the distance to residential properties and schools is met, then the planning scheme's provisions would reflect this. The scheme's provisions do not say this. Meeting the threshold distances simply opens the door or provides the discretion for the merits of the proposal to be considered. Rather, the provisions of Clauses 31.02 and 65 in the planning scheme make it clear that because a permit can be granted this does not imply that a permit should or will be granted.
25. There are other factors that we must take into account in exercising discretion as to whether a permit should be granted. These include the proposal's consistency with planning policy, the purpose of the zone [which we have already discussed] and the notion of orderly planning for the area.
26. On reviewing the policy frameworks, we find that the policies in the scheme provide limited guidance in this case. We acknowledge Council's Industrial Development Policy at Clause 22.09 includes an objective stating:
    • To ensure that remaining stocks of industrial land are used primarily for industry and related uses.
27. We have already said that this use is not related to industry or a purpose related to manufacturing. It is a retail use, one of the very few for which discretion to grant a permit is available in this zone. While we accept that the proposed use would not necessarily advance the purpose of the zone, at the same time, we do no consider that in principle, it would prevent such purpose being achieved in a broader sense. There are many cases where adult sex book shops exist in industrial areas and nothing as presented to show that there has been difficulty in the purpose of those zoned being achieved.
28. While we understand the apprehension that some people have about this type of use, nothing was presented to us at the hearing to persuade us that the establishment of the proposed use would adversely impact upon other businesses that are of an industrial or manufacturing nature.
29. However, in the Mayfair Chain case, the tribunal also acknowledged that while this type of use can be contemplated in industrial zones, there may be some circumstances where "......such a use may certainly be inappropriate in some locations".[3] Further, the establishment of such use in industrial zones "......is subject to the location being suitable from other points of view.[4]
30. We find that the review site in the present case is an example of an inappropriate location.
31. In deciding whether the use is an acceptable, consideration needs to be given to the context and relationship/juxtaposition with other uses. For example, in concluding that an adult book shop was inappropriate within a core retail area, the former AAT in Peran v Wyndham CC[5] found:

The subject land in this instance is not in a fringe location. It is situated in a core part of the shopping centre. It is located in an area that has been deliberately developed by the Responsible Authority with a view to encouraging shoppers to linger and relax. If the presence of the Post Office was a negative factor in the Yates appeal, then the Tribunal believes that the presence of the Railway Station similarly acts as a deterrent in the present case. Both the Post Office and Railway Station are community facilities to which the public, regardless of age, should be able to resort without hesitation or qualm. It would be, in the Tribunal's view, contrary to the orderly and proper planning of the shopping centre to allow an adult sex book shop to be established in this core location.

1. There has also been an acceptance that such uses should be located in more peripheral or discrete locations, not areas heavily trafficked by pedestrians. In this regard, we note the tribunal comments in the Mayfair Chain case when it observed at paragraph 6:

This review site is fairly discreetly tucked away, even from Old Geelong Road. It is quite a suitable site for an adult sex bookshop and is likely to cause a minimum of embarrassment or inconvenience to anyone.

1. The circumstances of this case are that this site is not discretely located. It is located in full view of and within 20-30 metres of the children's gymnasium, a facility that is frequented by a large number of children. The gymnasium has existed for many years, and from what we understand, has been so successful that Mr Smith has acquired a second property nearby which also provides for children's activities.
2. This use is, in our view, a sensitive one insofar as its relationship with an adult sex book shop is concerned. It is a use whose activities are primarily directed at providing services for children aged between 4 and 12 years of age. In addition to the 490 children enrolled at the gymnasium - a number we regard as quite substantial in its own right - it is reasonable to expect that children attending the gymnasium would often be in the company of parents and other siblings. Mr Smith estimates that 750-1200 people visit the gymnasium on a weekly basis. It is a use that attracts large numbers of people.
3. Whilst it is true that the planning scheme does not seek to restrict locating the proposed use proximate to this specific use, we nonetheless think that the "public policy principle" that the Council refers to in its grounds of refusal is reflected in legislation. This can be seen by the inclusion of the "separation distance" condition that must be met with respect to residential areas and schools, places that are effectively frequented by children.
4. Although the proposal does not involve a brothel, support fro the proposition that there should be separation between businesses related to the sex industry is found in the Prostitution Control Act 1994[6] which prescribes a 200m separation distance between brothels and sensitive uses in locations generally outside the Melbourne CBD including:

... 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; [Tribunal emphasis]

1. The inclusion of separation distances between uses of the kind proposed and sensitive uses is supported by the principle of orderly planning which discourages, amongst other things, the establishment of incompatible uses near each other.
2. The circumstances of this case can be contrasted with those in Boneham & Anor v Casey CC & Ors[7] where the applicants were successful in gaining approval from the tribunal[8] for an adult bookshop in an industrial zone at Hallam which is in the same municipality. In that case a permit was granted despite the existence of a Christian Centre nearby. The contextual relationship between the two sites was a relevant matter taken into account and commented on as follows:
   1. In any event I consider that there is sufficient separation between the Christian Centre in Melverton Drive and the proposed adult sex bookshop. The factory unit to be used for the adult sex bookshop and the Christian Centre have their "sense of address" to different roads, they are not in direct view of each other and each has its own parking area. I find that the subject land and the church two locations [sic.] are sufficiently separate to avoid any potential conflict between the persons visiting either site.
3. In the present case, we are unable to come to the conclusion that sufficient separation exist between the site and the gymnasium. Unlike the circumstances in Boneham, the site and the gymnasium are very close to each other. They front the same street. The car parking areas in front of the respective buildings "blend" and allow for movement in between them. They are within direct view of each other.
4. The proposed use is simply sited too close to the children's gymnasium. It would not be consistent with the principle of orderly planning and would not produce an acceptable planning outcome.
5. We will therefore affirm the council decision and direct that a permit must not be issued.

[1] We have based this on the photographs tabled at the hearing.

[2] [2000] VCAT 1247 (31 May 2000)

[3] [2000] VCAT 1247 (31 May 2000) paragraph 8.

[4] [2000] VCAT 1247 (31 May 2000) paragraph 5.

[5] (1997/49552) [1997] VICCAT 862 (30 October 1997)

[6] Section 74(1)(c). There are other circumstances under Section 74(1) where the location of brothels is restricted.

[7] [2002] VCAT 849

[8] The tribunal was comprised of Member Cimino, the presiding member in this case.