HGC Admin Services PL v Greater Dandenong CC [2003] VCAT 406

Victorian Civil and Administrative Tribunal|2003-04-09

A permit is granted and directed to be issued under Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 1-5 Cheltenham Road, Dandenong which allows:

The use of the land for the purpose of an Adult Sex Bookshop in accordance with the endorsed plans.

1. The endorsed plans are those tendered at the hearing of Application for Review No. P2269/2002, being plans prepared by Green Gates Drafting dated January 2003, save that the "theatrette" shown on the plans is not approved by this permit and reference to it shall be deleted.

2. The layout of the premises as shown on the endorsed plans must not be altered without the further written consent of the Responsible Authority.

3. Once the use has started, it must be continued and completed all to the satisfaction of the Responsible Authority.

4. The use of the premises must only operate in accordance with the following:

unless with the further written consent of the Responsible Authority.

5. Goods, materials, equipment and the like associated with the use of the land must not be displayed or stored outside the building(s), without the further written consent of the Responsible Authority.

6. The existing car parking on the site must be made available for the use at all times the use is in operation, to the satisfaction of the Responsible Authority.

7. The use when established must at all times comply with the definition of "Adult Sex Bookshop" which at the date of this permit is defined as follows:

"Land used to sell or hire sexually explicit material, including:

a) Publications classified as restricted under the Classification (Publications, Films, and Computer Games) (Enforcement) Act 1995; and

b) Materials and devices (other than contraceptives and medical treatments) used in conjunction with sexual behaviour)."

8. Sexually explicit advertisement may only be displayed within the building in such a manner that it must not be observable from outside the building, and the premises must at all times be kept in a discreet manner, all to the satisfaction of the Responsible Authority.

9. No live sexually explicit entertainment shall be carried out on the premises at any time.

10. The amenity of the area must not be detrimentally affected by the use or development on the land, through the:

10.1 Transport of materials, goods or commodities to or from the land,

10.2 Appearance of any building, works or materials,

10.3 emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

All to the satisfaction of the Responsible Authority.

11. Bins or other receptacles for any form of rubbish or refuse must not be placed or allowed to remain in the view of the public, and smell must not be emitted from any such receptacle.

12. The site shall be kept in a neat and tidy condition at all times, all to the satisfaction of the Responsible Authority.

13. No further advertising shall be displayed outside the premises without first obtaining a further permit.

14. The external appearance of the premises must at all times be to the satisfaction of the Responsible Authority.

15.1 The use does not start within two (2) years of the date of this permit, or

15.2 The use is discontinued for a period of two (2) years.

Before the permit expires or within three (3) months afterwards the owner or occupier of the land may in writing request the Responsible Authority to extend the expiry date.

Mr Terry Montebello, Solicitor of Maddocks, represented the Responsible Authority.

Mr Stuart Morris QC, instructed by Henty Jepson & Kelly, Solicitors, appeared for the Applicant for Review/Applicant for Permit. He called Mr Andrew Carr, traffic engineer, to give expert evidence. He also called Ms Tania Vos, the Manager of the business on the subject site, to give evidence.

The written submission of Mr Montebello, Mr Carr's report, together with numerous photographs, and other material tendered at the hearing, have been retained on the Tribunal's file.

1. This is an application under Section 79 of the Planning and Environment Act 1987 to review the failure of the City of Greater Dandenong to refuse to grant a permit within the prescribed time (in Application No PLN 02/0171) for the land at 1-5 Cheltenham Road, Dandenong to be used for the purpose of an Adult Sex Bookshop.

2. The subject site is located on the south west edge of the Dandenong Activity Centre. It is approximately 350m east of the Dandenong Railway Station and is in close proximity to the railway bridge over Cheltenham Road.

3. The site has a 59m frontage to the west side of Cheltenham Road and to the north abuts Greenland Place, a right-of-way which provides access to numerous properties facing Foster Street. The site has an irregular shape and an area of around 1800m2.

4. The site is developed with a two storey building which has around 1000m2 of floor space. There are 14 car spaces configured at 90 degrees along the northern boundary with access gained from Cheltenham Road. There are concrete "New Jersey barriers" between the site and Greenland Place. There is a separate loading dock area on the western side of the building.

5. The surrounding land is developed with a mix of retail, commercial and industrial land uses. "Dandy Glass Works" is on the site abutting to the west. A variety of Foster Street commercial and retail uses back onto Greenland Place. On the opposite side of Cheltenham Road there is motorcycle sales and service centre.

6. The subject site is currently used for the purpose of an Adult Sex Bookshop ("Club X"). Permit No. 2001/0082 was issued on 28 November 2001 following an order of the Tribunal in Application for Review No. 2001/P50670. Member Quirk ordered that a permit be granted subject to conditions, including:

6. The use when established must at all times comply with the

definition of "Adult Sex Bookshop" which at the date of this permit is defined as follows:

"Land used to sell or hire sexually explicit material, including:

a) publications classified as restricted under Classification

(Publications, Films, and Computer Games) (Enforcement) Act

b) materials and devices (other than contraceptives and medical

treatments) used in conjunction with sexual behaviour."

8. No sexually explicit entertainment including cybersex internet booth

shows or the like, shall be carried out on the premises at any time.

7. The stamped, approved plans (dated 28 November 2001) annotate the majority of the ground floor as "retail area". Staff toilets in the north west corner and a storage area in the south west corner are also indicated. The whole of the first floor is annotated as "display area". The plans appear to show fifteen car spaces at right angles to Greenland Place and a further five car spaces adjacent to a driveway off Cheltenham Road.

8. The applicant seeks a new permit for an existing Adult Sex Bookshop with conditions identical to the existing permit save that Condition 8 be modified so as not to expressly prohibit "cybersex internet booth shows and the like" and read as follows:

No live sexually explicit entertainment shall be carried out on the premises at any time.

9. Mr Morris tendered a plan of the existing internal layout of the premises. It shows six proposed internet booths in the south west corner.

10. The plan also shows seven video booths between the main retail area and the store and loading bay on the west side. Six booths currently exist. The applicant is also seeking to clarify that the video booths are permitted.

11. The plan also depicts a "theatrette" at the southern end of the premises. I understand from the evidence of Ms Vos that this has been part of the business. Approximately 50 chairs are provided and continuous pornographic movies are shown. I was advised that that aspect of the use (described as a cinema), together with a request to remove any regulation on trading hours, are the subject of a separate application to the Council. The parties agreed that they are not part of the proposal before me.

12. No additional signage is proposed as part of this application. It is, however, included, in the separate application regarding the cinema.

13. Under the Greater Dandenong Planning Scheme the subject site is zoned Business 1. It is not affected by any overlay controls. The adjacent road is within a Road Category 1.

14. Pursuant to Clause 34.01-1 Retail premises other than those nominated are a Section 2 Use. A permit is required for an Adult Sex Bookshop. Any unspecified uses are also Section 2 uses.

15. Clause 34.01-2 relates to the use of land. A use must not detrimentally affect the amenity of the neighbourhood, including through certain specified ways set out in that clause. The decision guidelines include:

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

* The effect of traffic to be generated on roads.

16. In relation to car parking Clause 52.06 is relevant.

17. Mr Montebello submitted that there is nothing in the Municipal Strategic Statement ("MSS") or the local policies that directly relate to the proposal. He highlighted that much of the policy framework relates to urban design and the need to improve the image of Dandenong by way of a different approach to the design of new buildings. That is not applicable in this case.

18. Following the giving of notice of the application no objections were received. Although it was not highlighted by Mr Montebello I note that the planning officer's report on the application stated that comments were received from the Dandenong Traders' Association including the following:

....our members are opposed to any sexually explicit entertainment , with the exception of cybersex internet booth shows.

When the original permit was presented we were opposed to that but following a meeting with Club X executives we withdrew the objection after being guaranteed that there would be no live sex shows or sexually explicit entertainment.

In the July 9 letter from Peter Jewell....he explains that the Internet booths are nowadays a feature of similar premises.

That being the case we are not opposed to Internet booths, but opposed to any other form of sexually explicit entertainment.

19. The Application for Review against failure was lodged on 29 August 2002.

20. The planning officer subsequently recommended that the application be refused. At its meeting on 9 December 2002 the Council determined to refuse the application on the officer's recommended grounds:

1. The proposal would be inconsistent with the condition imposed by the Victorian Civil and Administrative Tribunal; and

2. Inadequate car parking has been proposed for the change of use of the site, having regard that this part of the use would be a Place of Assembly under the Greater Dandenong Planning Scheme, and no additional car parking has or is to be provided.

21. The relevant issues in this Application for Review are whether the two types of booths are an acceptable part of the existing use, what impact their inclusion would have on the perception of the premises, whether there would be any detrimental effect on the image of the Dandenong commercial centre and whether adequate car parking is provided.

22. Before considering those issues I note that Mr Montebello submitted that the first ground of Council's refusal is a short hand way of stating that the proposed use is unacceptable for reasons which were put to and accepted by the Tribunal in Application for Review No. P50670/2002. In that case Member Quirk had stated:

In relation to Mr Pridgeon's concern about cyber sex machines in booths, Mr Jewell said that it was not his client's intention to have such. In any event I believe they would be most inappropriate as they would change the use of the site.

[Mr Pridgeon appeared for the Objectors, including the proprietor of a nearby, small Adult Sex Bookshop].

23. It is unfortunate that the issue of booths was not more fully discussed in Member Quirk's reasons. No reference was made to video booths. There appears to be some uncertainty about what Member Quirk understood "cyber sex" booths to be. They are referred to as "cyber sex machines in booths" in his reasons and "cybersex internet booth shows or the like" in the condition he imposed. That seems to be unusual language. It is not clear that Member Quirk was considering the booths as I understand them.

24. Mr Montebello suggested that there must have been further discussion at the hearing. It was also suggested that as Mr Jewell had apparently indicated there was no intention to have booths Member Quirk formulated a permit condition to prohibit them in order to address the Objector's concerns. However, it appears that the condition was not discussed at the hearing. Given this uncertainty I do not feel constrained by any comment made by Member Quirk. It is necessary to consider the proposal in the light of material now before me.

25. I appreciate that Mr Montebello and Mr Morris spoke frankly so that there is no uncertainty about the precise nature of existing and proposed activities. There is a tendency to use euphemisms when talking about sexual matters but this is not helpful in a realistic assessment of the issues before me.

26. The evidence of Ms Vos was also of assistance in providing an appreciation of the nature of the activities for which permission is sought. Ms Vos has worked for around two and a half years at "Club X" premises. She has been the Manager of the Dandenong business since it commenced operation in May 2002.

27. There are six video booths currently provided within the premises. Ms Vos explained that customers select a video from the retail area that may interest them. The video is played from the area behind the counter and viewed in a booth at a cost of $2 per 10 minutes. Customers typically watch a video for

10-20 minutes. They can pay to watch a complete video. They may or may not be previewing a video for the purpose of hiring or buying. Customers may view three videos and then buy or hire an item or none. The only "rules" are that one person occupies the booth at a time and the door is closed. Security cameras allow staff to monitor who goes to the booths. Staff cannot see inside the booths.

28. There is more uncertainty about the proposed "Internet booths". Mr Montebello suggested that the nature of "cybersex booths" was not explained with the application. He assumed, however, that they would operate in a similar way to the video booths except that material would come from the Internet. Mr Montebello suggested that customers would be able to view explicit Internet pornography and engage in "virtual sex" or "cyber sex" in the privacy of a booth. He assumed that the viewing of pornography would provide arousal and result in stimulation and climax. He also noted the prospect of customers gaining access to "chat rooms".

29. I agree with Mr Montebello that the material supplied by the applicant to the Council failed to address the nature of the proposed Internet booths. That material (reproduced in Mr Montebello's written submission) simply stated that such booths are now a feature of other similar uses. In relation to Condition 8 of the current permit it stated:

The condition assumes that cybersex internet booths are a form of explicit sexual entertainment. In our view no such link can be drawn. Furthermore the condition is so ambiguous that it prohibits all customer internet access.

30. It is a nonsense to suggest that there is no link between the proposed booths and "explicit sexual entertainment". Mr Morris stated that it could be assumed that the booths will be used for sexual purposes : viewing pornography of any type available. However, Mr Morris also suggested that the booths are unlikely to be used to gain access to "chat rooms" (whereby a customer is linked via the Internet to another person in order to talk about sexually explicit matters and perhaps be aroused). Mr Morris summarised the proposed use of the booths as the provision of a computer that allows access to the Internet in a private situation.

31. The nature of the proposed booths was clarified by the evidence of Ms Vos. Such booths are available at the Traralgon and Lilydale stores where she has worked. It can be expected that the proposed booths will be used similarly. Customers pay $2 for 8 minutes of access to a computer in a booth. They put money into a slot machine in the booth. The computer is set up for Internet access. Some "hot links" or "favourite sites" are suggested but customers essentially direct themselves. Customers typically stay in a booth for around half an hour. There are no restrictions on access to the material. The staff do not see the nature of the material or what customers do in response to it. The rules are the same as for the video booths.

32. The case of HGC Administrative Services v City Of Greater Dandenong & Ors (Application for Review No. 95/586) offers little assistance. It involved an application for an "Adult sex bookshop and entertainment facility" at 270 Lonsdale Street, Dandenong. Ultimately the Tribunal decided on locational grounds that the proposal was inappropriate and should not be supported. Lonsdale Street is in the heart of the Dandenong commercial centre.

33. In that case the Tribunal was called on to define a "peep show". It considered that the provision of a "stage area" (for performances by erotic dancers) surrounded by viewing booths was not part and parcel of an Adult Sex Bookshop. However, it considered that video booths may be part and parcel of retail activity in that they afforded the opportunity to preview material available for hire or sale. The Tribunal stated:

We have little difficulty in accepting that the previewing of videos or the watching of video trailers by customers prior to their purchase or hire is indeed a convenient adjunct to the retail function of video hire or sale, as is the modelling of the lingerie for sale in the shop.

34. On the other hand, the Tribunal stated that it was not satisfied that the "provision of quite large rooms which could accommodate large numbers of patrons - whether or not they are used for customers to view videos in their entirety - amounts to an ancillary service to the retail function". The Tribunal noted that evidence had been presented that "it would be possible for patrons to come to partake of the peep show facilities without any requirement to purchase goods". The Tribunal also stated "we were finally also not persuaded by the assertion that persons sexually aroused are likely to want to go shopping - even for sex aids".

35. As noted earlier, the decision in HGC was based on locational grounds. Any comments concerning the booths are no more than dicta. I also note that the Lonsdale Street premises were much smaller than the subject site and the proposed booths were to occupy a much larger proportion of the floor space than in the current proposal.

36. Mr Montebello submitted that a critical distinction arises from the fact that the booths offer entertainment on the premises. He argued that this changes the nature of the use from a place where customers come to buy or hire to one where they come to be entertained.

37. I accept that that distinction is relevant. There can be no doubt that sexually explicit and sexually stimulating material would be available in both types of booths. It is a form of entertainment. Patrons may reach sexual climax and this could not be precluded. According to Ms Vos there are signs in the public areas warning about the relevant offence of masturbating in public. However, there are no rules regarding what customers do in the private booths. Ms Vos advised that staff clean the booths. There are no tissues but there are bins in the video booths to cope with urinating customers. There is no way of knowing but I accept that some customers may be stimulated to climax.

38. The current definition of Adult Sex Bookshop (as described above in Condition 6 of the current permit) does not expressly provide for "entertainment". The definition focuses on the sale and hiring of sexually explicit material. Nevertheless, my principal finding is that the two types of booths sought are ancillary uses for an Adult Sex Bookshop.

39. I consider that there is a strong connection between the principal use and the video booths. Ms Vos noted that a customer cannot be forced to hire or buy a video that they have watched. However, she noted that customers may be previewing one or more videos. I consider that to be an obvious and legitimate use of the booths. As noted earlier it was a use accepted by the Tribunal in HGC as "a convenient adjunct to the retail function of video hire or sale".

40. Mr Morris conceded that the connection between the principal use and Internet booths is not as strong. The use of the Internet does not represent a situation of "try before you buy", or rent. Mr Morris argued, however, that the Internet offers an array of material which could encourage retail activity. Mr Morris also argued that the use of the booths is ancillary in terms of the material on offer and the overall purpose for which customers are at the store. Mr Morris also highlighted that the percentage of the total floor area devoted to the booths is small. He estimated it to be around 15% for both types of booths.

41. I accept the observation of the Tribunal in HGC that sexually aroused persons are unlikely to want to go shopping, even for sex aids. Nevertheless, I accept the validity of Mr Morris's other arguments about the ancillary nature of the use. While Mr Montebello correctly highlighted that the number of booths and proportion of floor area should not be determinative in all cases, I consider that in this case those features suggest an ancillary use. I note, however, Mr Montebello's suggestion that the addition of a "theatrette" would mean that the percentage of the total floor area available to "entertainment" would be significant.

42. I have also been persuaded by Mr Morris' rhetorical question : if Internet booths are not to be within an Adult Sex Bookshop where else should they be? I agree that they would not be appropriate in a standard "Internet café" or as a stand alone use. I understand that the customers of Internet booths are paying for privacy so that they can have access to material that they would not wish to view in a public situation (such as an Internet café or library), at work or even in the relative privacy of their homes. A location within an Adult Sex Bookshop seems most appropriate in that respect.

43. Mr Montebello made a number of submissions regarding the evolving use of the premises and the piecemeal approach to approvals. He submitted that the Council is concerned that piecemeal applications are transforming the use into a large scale adult entertainment venue. He also noted that the use of the upper floor as a "display area", approved by Permit 2001/0082, has not yet commenced. Mr Montebello argued that I should consider where the business is going and ask whether what is sought is an Adult Sex Bookshop or something different.

44. With respect to the direction of the business at the subject site Mr Montebello submitted that I should have regard to the permit granted, the activities conducted, the permission now sought and other permissions in the pipeline. In particular Mr Montebello highlighted that video booths have been operational and an adult cinema has been established despite no reference to them at the earlier hearing. Mr Montebello submitted that the cinema has been widely advertised. One newspaper advertisement regarding 3 "Club X" venues describes it as "Victoria's Newest Sex Cinema" with "Explicit Hardcore Porn Movies on the Big Screen!!!".

45. Mr Montebello also submitted that some idea of the direction the business is heading can be gleaned from the manner in which "Club X" conducts its other businesses. He highlighted that in another advertisement about the subject site and one other "Club X" venue various activities are described without differentiating between locations. These include "hardcore film festival", "explicit live peep shows", "private peep shows", "erotic cinema", "internet erotica café" and "Adult Bookshop".

46. Mr Montebello submitted that the current application is a further and necessary step in the direction towards establishing a different land use such as an "Adult Fun Centre" with a full range of facilities and activities. He argued that instead of providing just sex products, literature and videos the patrons would be encouraged to stimulate themselves with explicit videos or Internet material. Mr Montebello argued that it would no longer be an Adult Sex Bookshop; it would be something like an adult entertainment facility. Mr Montebello submitted that Condition 8 is what differentiates an Adult Sex Bookshop from another type of use.

47. Mr Montebello also represented the Council in HGC. At that hearing he submitted that the proposal would amount to an innominate use comprising various activities including an adult sex bookshop, place of assembly and brothel. He submitted that the use could be referred to as a "mixed use entertainment facility". Mr Montebello also submitted that if the use was classified in that manner, and a permit granted, it would be difficult to ensure the use did not become increasingly based on the entertainment type uses. Mr Montebello argued that similar considerations apply to the case before me, especially given the separate application for a cinema and the unused upper floor.

48. I note that in HGC the Tribunal considered that there was merit in Mr Montebello's argument. However, the Tribunal did not find it necessary to further determine the nature of the appropriate classification given its rejection of the proposal on locational grounds.

49. I do not consider that the uses as approved and currently proposed represent an innominate use with the consequences suggested by Mr Montebello. Such considerations may, however, be more pertinent when the cinema is considered. I consider the booths to be ancillary to the principal use. They are a small aspect of the overall business. They could be limited to the extent depicted on the plan. While a wide range of services and facilities are provided by the applicant's business (as indicated in the advertisement) they are not all intended at the subject site. Most significantly, the applicant is prepared to accept a permit condition prohibiting any "live sexually explicit entertainment". Any desire to have cubicle sex, peep shows or the like on the ground floor or upper floor would need a new permit. Such uses would not be permitted by the proposed permit changes.

50. Ultimately the critical issue is the distinction between live entertainment and non-live (in this case, screen-based) entertainment. In other words, the issue is not the nature of the material, or whether customers are aroused and climax, but the format of the entertainment and where it is provided. That distinction seems to have been recognised by the Dandenong Traders' Association when they expressed their opposition to the provision of sexually explicit entertainment, with the exception of Internet booths.

51. I consider that the facilitation of the viewing of unrestricted, sexually explicit material on computer or television screens is acceptable provided it occurs in the absolute privacy of booths.

52. I acknowledge that Member Quirk commented that "cyber sex machines in booths" would change the use and be "most inappropriate". Nevertheless, in the light of the submissions made and evidence before me I consider that the private booths are an acceptable part of the existing Adult Sex Bookshop.

53. Mr Montebello referred to the efforts of the Council, by the use of planning tools and other "corporate type tools", to change the image of the municipality "from a poorer second cousin in terms of activity centres". He acknowledged that there is nothing in the policy framework relating to image but argued that pursuant to the general amenity provision at Clause 34.01-2 there is a requirement to consider "more diffuse amenity issues - such as image".

54. Mr Montebello submitted that in addition to the building being large and prominent it is located at one of the main gateways to the Dandenong Activity Centre. He also highlighted that cars stop outside the subject site due to traffic lights.

55. It was acknowledged by Mr Montebello that Adult Sex Bookshops may be increasingly regarded as part of normal retailing. However, he noted that because of real negative perceptions about such uses the Planning Scheme endeavours to locate them "more discreetly".

56. Mr Montebello acknowledged that in his reasons for the decision in Application for Review No. 2001/P50670 Member Quirk noted that the proponent (also the current applicant) is the largest operator of adult sex bookshops in Australia. He also noted that the Tribunal appears to have accepted the submissions of Mr Jewell (a consultant town planner who appeared for the applicant) that the proponent had no policing problems with clients. Member Quirk stated:

It seems from past Tribunal decisions that adult sex bookshops are a rather benign form of retailing that do not attract great numbers of clientele at the one time.

57. Nevertheless, Mr Montebello argued that if the use on the subject site evolves from a simple adult sex bookshop to an "adult entertainment venue or the like" it will "tarnish the image, reputation and amenity" of the Centre. He submitted that it is "a quantum leap" to find that where entertainment is provided, with associated signage, it remains "benign".

58. It is apparent that Member Quirk did not just consider the use in general terms to be "benign." He commented on the use at the particular site as follows:

In 1996 I issued a permit for an amusement parlour on this site having gone through extensive hearing with the police and other witnesses and submitters. I consider that this proposal is a more benign use than an amusement parlour. I also consider that it will assist in the reduction of social problems within the immediate area, preserve the building and therefore raise its standards in relation to the adjoining premises. This should also reduce vandalism and other problems associated with a vacant site.

59. Those predictions seem to have been correct. Mr Morris tendered a Statutory Declaration from Margaret Cartechini, a director of the glass works business to the west. She attested to the various improvements to the site and the immediate area since the "Club X" business opened, including fewer problems with drugs, new lighting, a clean and well kept environment and adequate car parking. She also stated that neither she nor her staff have experienced any problems with customers of the business.

60. Before and after photographs tendered by Mr Morris also indicate that the works associated with the use have greatly improved the appearance of the site. I accept Mr Morris' submission that the "Club X" premises are the most attractive in the area.

61. I consider that the uses for which the applicant seeks permission are likely to have no perceptible impact on surrounding land uses or detrimentally affect the amenity of the neighbourhood. There were no objections to the proposal from the owners of nearby properties.

62. I do not accept Mr Montebello's submission that the booths represent the "thin edge of the wedge" or are critical in terms of the image of the premises. A full range of activities and services, including live entertainment, is not proposed. While the booths provide "entertainment", that aspect is not a key part of the enterprise. It is not necessary to speculate on any future additional facilities sought or their impact on the "image". As noted earlier, I consider that screen based entertainment is different from live entertainment. The booths are an appropriate part of an Adult Sex Bookshop.

63. Nor do I accept Mr Montebello's submission that given the existing adult sex bookshops in the vicinity there is a danger of creating a type of "district". Member Quirk had noted the existence of two bookshops in close proximity that had been operating since the 1980s. That situation had not influenced his decision to allow the current use. Approval of the booths would not change the existing number of similar uses in the area.

64. With respect to the overall perception of the facility I note that no changes to outside of the premises are currently proposed. Any additional advertising signs would require further permission.

65. In relation to the perception of the type of facility, Mr Morris submitted that the premises have been designed in an "extremely tasteful" manner. He argued that an inviting rather than intimidating environment has been created, at least partly to make women feel at ease. He described the premises as "a new breed of sex shop". He tendered photographs showing the layout, lighting and décor (including a fountain and reproduction classical statuary in the foyer). Ms Vos' evidence was that 60-70% of customers of the retail area are males. While I find those figures surprising I have no reason to query them.

66. My finding is that the image of the site and the broader Dandenong business centre is not likely to be affected by the changes to the existing use. The premises are at a location which is likely to cause a minimum of embarrassment or inconvenience to anyone.

67. Lastly, I note that Mr Morris invoked the benefits to the users of the services. He argued that it is legitimate to encourage facilities that service the needs of customers. Mr Morris characterised the premises as "serving peoples' needs in a civilised way".

68. The range of "adult entertainment" has expanded in recent years. Pornography is not yet mainstream entertainment. However, it is widely available on the Internet, cable and satellite television, and hotel video channels to an extent not envisaged 30 years ago when there was mainly the underground distribution of "girlie magazines". In that context I am satisfied that the ability to access sexually explicit material within private booths in an Adult Sex Bookshop is acceptable.

69. Mr Montebello highlighted that in ordering the issue of the existing permit Member Quirk assumed that 24 car spaces were available. At that time no cinema was mooted and "cybersex booths" were precluded. Mr Montebello argued that the car parking "dispensation" was allowed on the basis that there seemed to be ample on street parking in the area and on the basis of the representations made by Mr Carr that the level of usage was expected to be quite low. Member Quirk stated that he "accept[ed] Mr Carr's evidence that the parking provided on site is adequate for the purpose".

70. Despite those findings the endorsed plan of the permit shows only 19 spaces. Furthermore, since that time the spaces have been reconfigured. Concrete barriers have been placed adjacent to Greenland Place and steel posts prevent access to the car spaces in the undercroft adjacent to the entry to the premises. According to the evidence of Mr Carr, this results in 14 car spaces being available. Contrary to Member Quirk's understanding of the parking arrangement there is also now direct access to Cheltenham Road.

71. Ms Vos advised that the concrete barriers had been installed in order to remove access from the lane and thus reduce the prospect of others using the car park. The steel posts have apparently been installed to prohibit parking and thus expose the entry to the premises.

72. I do not consider that those changes are critical. Member Quirk commented on the adequacy of the car parking situation rather than making any finding on the absolute number of spaces required. I also note that the Council has not sought to enforce the car parking requirements of the existing permit. There is, however, a need to assess whether the parking is adequate for the uses sought.

73. Mr Carr conducted surveys on Friday and Saturday nights of the use of the 14 on-site car spaces and on-street spaces within approximately 200m of the subject site. He concluded that the on-site spaces would satisfy even the peak demand (13 spaces at 6pm Friday) and noted that many additional spaces would be available in the surrounding area.

74. The applicant also relied on the evidence of Ms Vos. She advised that the peak use of the premises is at 7pm on weekdays. As she does not usually work on the weekends she could not verify the peak at that time. It was her evidence that at busy times there could be 20 customers in the display area but the average is 4-5 customers. She noted that there are 6 video booths now operating. They may all be used at a peak time but that is rare. Ms Vos stated that the car park may have been fully utilised once or twice but usually there are spaces available.

75. There are problems with Mr Carr's evidence. He had apparently been instructed to assess the demands associated with a cinema and Internet booths. He had not expressly considered the video booths. I note, however, that Mr Carr considered that existing car parking provision was adequate for the use of a cinema as well.

76. With respect to methodology Mr Montebello highlighted that Mr Carr did not assess the additional uses for which permission is sought in terms of the requirements of the Planning Scheme or an empirical assessment. He simply assumed a low level of demand for the booths and the cinema based on the current demand.

77. While it is probably unreasonable to assume all 15 booths would be occupied at any one time I am not convinced that the current level of use necessarily reflects future demand. As noted by Mr Montebello, the availability of the booths is likely to be heavily marketed and the business will build up over time. I also agree with Mr Montebello that it is difficult to rely on current demand as the upstairs area is approved for retail use but not yet used.

78. Nevertheless, I accept Mr Morris' submission that the surveys of demand generated by the existing use gives some indication of the likely generation associated with the uses now proposed (that is, if there were two types of booths rather than the existing video booths and a theatrette). A full assessment of demand associated with the proposed "cinema" should be required as part of that permit application.

79. Mr Montebello submitted that the extent of reliance on on-street parking is unacceptable. He noted that the supply identified by Mr Carr is potentially quite some distance from the site. Mr Montebello also argued that it is unacceptable to rely on the railway car park which is intended to provide spaces for commuters and which should be retained for that purpose.

80. I am not persuaded by those submissions. Mr Carr identified the availability of spaces at the railway car park. However, they were not relied upon in his conclusion that there are adequate on-street car spaces in the vicinity. I appreciate that there are no on-street spaces in Cheltenham Road. However, I am satisfied that the on-street spaces identified by Mr Carr are within a convenient distance of the premises (around a 3 minute walk according to Mr Carr).

81. The Council has produced no evidence of parking problems in the area. Essentially the proposal is a retail use in a business area which is well served by public transport.

82. My finding is that the provision of on-site car spaces, together with the availability of on-street car spaces in the vicinity at peak times, is acceptable for the uses currently proposed. The demand associated with the use is likely to be largely accommodated on the site without relying on the ample on-street spaces available. I also note that Mr Morris highlighted that the subject site is one of the few sites in the Business District where there is any on-site parking provision.

83. In summary I have found that a permit with modified conditions should be issued. Alteration to the permit conditions would not, as asserted by Mr Montebello, dramatically alter the use of the site. It would, however, allow for legitimate ancillary uses. The use would remain as an Adult Sex Bookshop.

84. In this location the use would have an acceptable presentation to surrounding roadways and businesses and would not be detrimental to amenity or the "image" of Dandenong. Adequate car parking spaces are available for likely demand.

85. Accordingly I will allow the Application for Review and make the appropriate order.

86. The conditions I intend to impose are based on those in the existing permit. They are modified to allow the two types of booths but expressly prohibit any live sexually explicit entertainment.

Environment Act 1987

(Publications, Films, and Computer Games) (Enforcement) Act 1995

At a glance

Court

Decision date

Source

Judgment (141 paragraphs)

Parties

Legislation Cited (2)