1 Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must be generally in accordance with the plans submitted with the application (identified as Drg No. HGC - 03/5, Nos. 1 to 4 of 4, dated October 2003, prepared by Green Gates Drafting) but modified to show:

i The existing first floor area of the building cantilevered over the ground floor car parking area.

ii Details of a garbage storage area screened from view from public areas.

When approved, the plans will be endorsed and form part of this Permit.

2 The layout of the use(s) as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

3 This permit will expire if the use is not started within two (2) years from the date of this permit.

The Responsible Authority may extend the time referred to if a request is made in writing before this permit expires or within three (3) months after the expiry date.

4 The use may operate only between the hours of 9am to 1am seven (7) days a week.

5 The amenity of the area must not be adversely affected by the use or development as a result of the:

a Transport of materials, goods or commodities to or from the land; and/or

b Appearance of any building, works, stored goods or materials; and/or

c Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; and/or

and/or in any other way, to the satisfaction of the Responsible Authority.

6 Before the commencement of the use, any external light on the land must be provided with a suitable baffle so that direct light is not emitted outside the land to the satisfaction of the Responsible Authority.

7 All outdoor lighting must be designed, baffled and/or located to ensure that no loss of amenity is caused to adjoining and nearby land to the satisfaction of the Responsible Authority.

8 Provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

All bins and receptacles used for the storage and collection of garbage, bottles and other solid wastes must be kept in a storage area screened from view, to the satisfaction of the Responsible Authority.

All bins and receptacles must be maintained in a clean and tidy condition and free from offensive odour, to the satisfaction of the Responsible Authority.

No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building(s) without the prior written consent of the Responsible Authority.

9 (a) No exterior plant or equipment shall be placed so as to be visible from a public road, to the satisfaction of the Responsible Authority.

(b) Any window display offering goods for sale must be conducted to the satisfaction of the Responsible Authority.

10 No goods, equipment, packaging material, or any other material/object must be stored, or left exposed, outside a building so as to be visible from any public road or thoroughfare, to the satisfaction of the Responsible Authority.

11 The loading and unloading of goods from vehicles must only be carried out on the subject land and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land or on abutting streets.

12 The loading and unloading of goods from vehicles must only be carried out on the subject land and must be conducted in a manner which does not cause any interference with the circulation and parking of vehicles on the land or on abutting streets.

13 The loading and car parking areas must not be used for any purpose other than loading and unloading of vehicles and the parking of cars.

14 Before the use starts areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

b Properly formed to such levels that they can be used in accordance with the plans;

e Line-marked to indicate each car space and all access lanes; and

f Clearly marked to show the direction of traffic along the access lanes and driveways

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

Mr C. Townshend of Counsel, instructed by Henty, Jepson & Kelly, Solicitors.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision to refuse to grant a permit.

1 The applicant seeks a permit to establish an Adult Sex Book Shop within an existing two level building situated at No. 104 Bell Street, Preston. The site has an area of 744m2 and the building itself comprises a floor area of approximately 650m2. The site is bounded on one side by a factory occupied in the repair/replacement of car mufflers and accessories, and on the other by a company known as Prestige Pianos and Organs. The latter organisation is a retail sales outlet for musical instruments. The site, and all surrounding land, is situated within the Industrial 3 Zone.

2 The applicant proposes to use the ground floor level as an open retail area, and the upper floor for the sale of DVDs, videos and for storage. An existing carpark provides 10 spaces, two to be used by staff and the remainder by patrons.

3 Notice of the application was given and seven objections were received. These the Responsible Authority summarised as follows:-

1. Undesirable patronage compromising neighbouring business.

4 On 9 March 2004 the Council's Planning Committee considered the application, the objections and a report from its Town Planning Officers recommending that a permit be granted. The Committee resolved to refuse the application on the following grounds:-

The proposal is not consistent with the intent of Clause 33.03-01 of the Darebin Planning Scheme because of the existence of the Music School within 200 metres of the Adult Sex Book Shop.

5 The applicant now seeks a review of that decision.

6 On the hearing all parties save for Mr Wells tabled written submissions which they summarised. Mr Wells made oral submissions. Mr Townshend called evidence from Mr Peter Jewell, a Town Planning Consultant, who spoke to a written statement of evidence which had been circulated to the parties prior to the hearing. It is unnecessary to summarise all that material. Given, as Mr Glossop conceded, that the local planning controls are silent on applications of this kind, it is necessary to determine this application having regard to more general planning principles.

7 It is noteworthy that Mr Glossop did not suggest the proposal was prohibited by virtue of the Section 2 condition in the Table of Uses which reads as follows:-

Must be at least (measured by the shortest route reasonable accessible on foot) from a residential zone or Business 5 zone, land used for a hospital, primary school, or secondary school or land in Public Acquisition Overlay to be acquired for a hospital, primary school or secondary school.

8 Rather, Mr Glossop submitted, the existence of a "Music School" on the adjoining property was contrary to the intent of the planning controls and was a relevant matter for the Tribunal to consider when exercising the discretion available to it.

9 The Tribunal questioned Mr Wells regarding the manner in which his premises operate, and elicited the following information:-

* clients purchasing a musical instrument from his premises are given as many free lessons as they need in order to learn how to play it;

* many of the "pupils" are children, ranging in age from 8 years to 16 years;

* some lessons are given and paid for by pupils or their families;

* some free lessons are also given in relation to the sale of sheet music.

10 Mr Wells expressed the belief that parents delivering and collecting their children from his premises would be more reluctant to attend if a permit was granted for an adult sex bookshop nearby. He also expressed concern regarding the visibility of goods displayed in the shop front window, a concern echoed by Mr Snipe who owns (but leases) the premises on the opposite side, which are operated by Mr Muffler. Mr Snipe suggested that there was a fine line between "moral objections" on the one hand, and a legitimate parental concern that children should not be exposed to the seamier side of life prematurely. Both Mr Wells and Mr Snipe believe that their business interests will be detrimentally affected by the existence of the proposed use on the premises.

11 When considering the application, the Council's Committee had before it a report from its town planning staff and that report contained the following passages:-

Whilst it is recognised that the neighbouring Music Shop provides tuition to students of all ages, the Scheme requirements are quite specific in defining the type of school that must be buffered from the proposed use, that being a primary or secondary school.

In trying to determine whether the location of the Adult Sex Bookshop next to an establishment where children may congregate, the following information may provide some assistance in interpreting the Planning Scheme requirements.

When considering an Application for a Brothel, the Responsible Authority must consider whether the land is within 200 metres of a school, kindergarten, children's services centre or 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.

The above underlined section is absent in the requirement for determining the location of Adult Sex Bookshop. By its absence, we can interpret that for an Adult Sex Bookshop, the restriction is quite specific in relation to primary and secondary schools, not simply areas where children frequent.

In addition, it should be noted that there is a difference between a premises that offers tuition to students and a primary and secondary school in terms of levels of supervision while other children are attending the premises. When children of primary school age attend classes at the Music Shop, they will usually be in a class until picked up by a parent or guardian. The situation is different in schools, particularly secondary schools.

12 The Tribunal believes the above analysis to be both perceptive and accurate. The "classes" conducted on Mr Wells' premises are occasional and generally of a nature where a parent delivers and collects his or her child. That situation is quite different to that applying to a traditional school. In his written submission, Mr Townshend was at pains to emphasise that distinction. The Tribunal agrees with those submissions.

13 There was no suggestion that a planning permit exists for the teaching activities carried out on Mr Wells' premises. It seems apparent that the activity is an ancillary component of the primary business, that being the sale of music and musical instruments. On the other hand, this is an Industrial 3 Zone and the use of the premises for an adult sex bookshop is consistent with the condition attaching to this Section 2 use. The Tribunal rejects the notion that the existence of Mr Wells' teaching facility represents a sufficient ground, in itself, for refusing to grant a permit.

14 The objections by Mr Wells and Mr Snipe were no doubt coloured by the unfortunate image often associated with adult sex bookshops, that of furtive males in grubby gaberdine overcoats. Today's reality is that a high percentage of the clientele attracted to such premises are females and that the lingerie displays in the windows are no more revealing than those found in Bourke Street department stores. In this regard, the Tribunal accepts the evidence of Mr Jewell.

15 In relation to window displays, the Tribunal understands that the operator under this permit would be prohibited by law from displaying certain ranges of goods. In any event, the permit applicant does not oppose a condition to the effect that sexually explicit material displayed in the front window must be to the satisfaction of the Responsible Authority. This would seem to offer a reasonable degree of protection from the display of overtly offensive material. The Tribunal notes that the front setback between the building and the road frontage is almost 20m, and any person wishing to have a close examination of the material must traverse that distance in order to do so.

16 No application has yet been made for external advertising which would no doubt be displayed on the premises. The Tribunal accepts that this question is a legitimate area of concern for the objectors. However, some comfort can be gained from Mr Townshend's undertaking that the applicant is concerned to ensure that signage will be "of a subtle nature". One would hope that this is so. In any event, an application must be made and review rights will apply.

17 The Tribunal accepts that uses of this kind suffer from an image problem, and that the sort of concerns expressed by the objectors are widely held within the community. However, there are few if any complaints about similar operations elsewhere, and it is open to the inference that, once established, the use settles down and becomes part of a normal commercial centre. The Tribunal does not believe that the amenity of either property will be affected by the proposed use, nor does it consider that the legitimate commercial interests of either Mr Wells or Mr Snipe will suffer as a result of this proposal.

18 Accordingly the Tribunal holds that the grounds of refusal and objection have not been sustained. It will therefore order that a permit be granted subject to conditions.