"To provide for the orderly and proper development of a range of manufacturing and associated industrial activities in areas which because of their close proximity to residential areas required that all proposed development be subject to planning control as a means of ensuring the amenity of the area is not adversely affected by such activities.

To provide that development takes place in an orderly manner having regard to vehicular and pedestrian movement and the accommodation of stationary vehicles.

To encourage well designed buildings complemented by attractive and easily maintained landscaping."

Clauses 24 and 25 of the Mildura Planning Scheme address matters to be considered when dealing with planning permit applications.

4.3 Section 4.3 Prostitution Control Act 1994

Mr. Jemmeson outlined the relevant context of the Prostitution Control Act in this matter:

"Within this Industrial zone the use of a brothel is permitted subject to strict compliance with the Prostitution Control Act 1994. This act commenced operation on the 14 June 1995 and includes the following relevant provisions to be addressed when considering an application for a planning permit for a brothel:

Section 72 - Restriction on certain permit applications (whereby a planning application can only be made by a person who is an existing licensee).

Section 73 - Matters to be considered by the responsible authority before deciding on an application for a brothel.

Section 74 - Restriction on granting of permits (outlines reasons why a brothel must be refused by the responsible authority)."

5. At the review hearing, all parties tabled and read submissions. The Tribunal was provided with plans of the proposal, details of its operation, photographs of the subject site and surrounding areas, and locality plans. A petition was also tabled. The Tribunal inspected the site twice following the review hearing on 12 and 13 April 1999. All of the witnesses were available for cross-examination. The Tribunal considered the Application for Review should be rejected, and the responsible authority's decision upheld with modifications to conditions listed on the Notice of Decision to Grant a Permit. The reasons for the decision are provided in the following paragraphs.

The responsible authority and therefore the Tribunal's role in this application is to assess the planning merits, or otherwise, of the application. The Tribunal is concerned about relevant town planning considerations such as amenity of the area, impact on pedestrians, land use conflicts arising from brothels being located near other commercial/industrial uses, car parking, traffic and the like. Moral and health matters are not matters applicable for consideration in this Application for Review. Many of the objections raised were moral considerations, some were health considerations and others were thinly disguised moral issues which, whilst in themselves important to the objectors, are not matters which could be considered by the Tribunal as relevant in this case.

A substantial amount of evidence was weighted towards demonstrating to the Tribunal that this area was a place where children regularly congregated and/or used the street as a thoroughfare between residential uses and the shopping facilities in the main part of Mildura City. The Prostitution Control Act 1994 exists to regulate prostitution within the State, the objects of the Act are:

"(a) to seek to protect children from sexual exploitation and coercion;

(b) to lessen the impact on the community amenities of the carrying on of prostitution-related activities;

(c) to seek to ensure that criminals are not involved in the prostitution industry;

(d) to seek to ensure that brothels are not located in residential areas or in areas frequented by children;

(e) to maximise the protection of prostitutes and their clients from health risks;

(f) to maximise the protection of prostitutes from violence and exploitation;

(g) to ensure that brothels are accessible to law enforcement officers, health workers and other social service providers;

(h) to promote the welfare and occupational health and safety of prostitutes."

Section 73 of the Prostitution Control Act 1994 provides that the responsible authority must consider:

(b) the effect of the operation of a brothel on children in the neighbourhood;

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

(d) other land use within the neighbourhood involving similar hours of operation and creating similar amounts of noise or traffic (including pedestrian traffic);

(e) any guidelines about the size or location of brothels issued by the Minister administering the Planning and Environment Act 1987;

The Tribunal, during its inspection, made particular note of land uses in the area, the nature of how these uses conducted themselves, and took particular time to examine whether children frequented this area and/or regularly used Ninth Avenue as a thoroughfare. The Tribunal saw no evidence to sustain this argument. The Tribunal considers the area to be of a conventional industrial area as could be found in any large town or city in Victoria. During the Tribunal's inspection it noted a considerable number of vehicles either parked or waiting to be repaired in the street, and trucks and semi trailers loading and unloading. The Tribunal also noted the Cooke's pool and spa business, and considered this to be both visually and physically separated from the proposed use. Whilst there may be an occasional child attending one or a number of the businesses concerned with this Application for Review, such case are most likely to be done in the company of a parent. The Tribunal draws a clear distinction between a child occasionally visiting a business with its parent and a place which is normally a congregating area for children such as a school, scout or guide hall, community hall, public swimming pool or the like. The Tribunal also made efforts to examine the likely pedestrian route taken by children or mothers with children. Whilst there may be some pedestrian movement, as claimed by the applicant for review and its witnesses, the Tribunal saw no clear evidence of this. In fact the Tribunal would be somewhat surprised to see young children walking unsupervised along railway tracks in this location.

The applicant for review raised concerns about the impact of the proposed brothel on the operations of adjoining and nearby businesses including the panel beating, engineering workshop, the swimming pool sales and distribution business, and the taxi business. No evidence was produced to sustain the perception that the area would be adversely affected by the proposed use. The Tribunal considers that the use is a satisfactory use in this location. It does, however believe that details of advertising signage and external lighting need to be more carefully addressed. The Tribunal considers that only one modest sign should be allowed on the premises, and such sign should only depict the business name and street number of the premises. Also, the operator must desist from placing bright, colourful, flashing or intermittent lighting on or around the premises (other than for security purposes). In this regard Condition 12 will be reworded to address this matter.

The proposed layout of the car park is considered satisfactory in terms of the numbers of spaces provided and the car parking layout. Having noted that car parking arrangements for the existing businesses near the subject site, it would be in the best interest of the applicant to encourage patrons to park within the car parking spaces provided.

The proposed layout provides the opportunity for generous landscaping. The Tribunal considers that a detailed landscaping plan is warranted and that the landscaping should be introduced prior to the use commencing. This landscaping area must be maintained to the satisfaction of the responsible authority.

The Tribunal sees no reason to oppose 24 hours of operation in this locality. It is noted that the likely peak operating time will be after the usual operating time of businesses adjoining the subject site.

Ms. De Graaf raised a suggestion in evidence about limiting the life of the permit to three months. This would be an onerous and cumbersome requirement on the use such as this. It is noted the applicant not only will be using the site but will also be developing a building at considerable cost. The Tribunal is satisfied that the provisions of Sections 87, 114 and 126 of the Planning and Environment Act 1987, will provide sufficient legal avenues to the responsible authority to ensure the use operates in compliance with its permit. No doubt if there is any substantial failure to comply in any regard with the conditions on the permit, the responsible authority is obliged to take action under the various provisions of the Act. Therefore the Tribunal is satisfied that there is scope under existing legislation to ensure compliance with the permit.

The Tribunal is satisfied that general social and economic matters have been addressed under the Prostitution Control Act Provision. Further that general references to such is also addressed in paragraphs 7 and 8 of this decision.

Some unsubstantiated evidence was given about the potential for prostitutes to be on drugs. The Tribunal was not convinced about this allegation. However the Tribunal will impose a condition that bans the sale, consumption or storage of drugs and alcohol on the premises.

The order of the Tribunal is the Application for Review is rejected. Pursuant to Section 85(1)(b) of the Planning and Environment Act 1987, the responsible authority is directed to issue a permit for use and development of land for a brothel at 11 - 13 Ninth Street, Mildura, in accordance with the endorsed plans and subject to 28 conditions (Conditions 1 to 11 inclusive and 13 to 27 inclusive) as outlined in the Notice of Decision to Grant a Permit dated 4 February 1999 but with the following changes:

A. Condition 12 shall be replaced with the following:

"12. Prior to commencement of the use, the applicant shall provide a signage and lighting schedule/plans to the satisfaction of the responsible authority for approval. The signage and lighting shall be limited to:

a) One sign (not greater than 1.5 square metres in area) depicting the business name and street number of the premises;

b) One sign (not greater than 0.5 metres) providing directional advice to the car parking area;

c) Details of lighting (including security lighting) shall be shown on the plan/schedule. Such lighting shall not be brightly coloured, flashing or intermittent. No floodlights shall allow light to escape the premises.

Such signage and lighting shall be to the satisfaction of the responsible authority. When approved, such signage plan schedule shall form part of the permit and shall not be altered without the consent of the responsible authority."

B. A new Condition 28 shall be included which states:

"28. No alcohol or drugs shall be served, stored or consumed on the premises at any time."