[2005] VCAT 1432

The decision of the Responsible Authority in permit application no. 2004-331 is affirmed. A permit is granted and is directed to be issued. The permit relates to the land at No. 2-4 Carroll Road, Shepparton East. The permit will allow buildings and works in a Business 4 Zone and Land Subject to Inundation Overlay for two buildings, the use and development of one building for the purpose of an adult sex bookshop with associated signage and a reduction in parking, in accordance with the endorsed plans and subject to the conditions set out in the Notice of Decision dated 8 December 2004 with the following variations:

o Part (g) is deleted and replaced with the following - The pole sign centrally located along the Midland Highway is deleted and the pole sign located on the corner of the Midland Highway and Carroll Road is to be re-oriented to be perpendicular to the Highway. Either side of the pole sign is to show one panel measuring 1.5 x 1.5 metres for the adult sex bookshop and a second panel of the same size for the occupant of the second building.

o A new part (h) is added as follows - The location of internet booths and DVD/Video preview booths.

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Condition 4 is deleted.

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Parts (a) to (j) in the former Condition 4 are included as Conditions 4 - 13 inclusive.

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Condition 5 - 28 are re-numbered as 13 - 36 inclusive.

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In Condition 15 (being the former Condition 7):

o The last sentence in part (a) is deleted.

o Part (c) is deleted and replaced with the following - Goods, products and advertisement material of a sexually explicit nature (including materials, words or figures of a sexually explicit nature) must not be displayed so that their sexually explicit nature is visible from any public road, thoroughfare or accessway to the satisfaction of the Responsible Authority.

o Part (f) is deleted and replaced with the following - No video or audio recorded material of a hard core sexually explicit nature is to be played or transmitted outside the internet and DVD/video preview booths to the satisfaction of the Responsible Authority.

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In Condition 19 (the former Condition 10), the permitted hours of operation are amended to allow a commencement time of 9am on all days.

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In Condition 34 (the former Condition 25), the words "and the premises must at all times be kept in a discrete [sic] manner" in the third line are deleted.

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A new Condition 35 replaces the former Condition 26 as follows: Goods, products and advertisement material of a sexually explicit nature (including materials, words or figures of a sexually explicit nature) must not be displayed so that their sexually explicit nature is visible from any public road, thoroughfare or accessway to the satisfaction of the Responsible Authority.

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Condition 29 is deleted.

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Conditions 30 - 32 are re-numbered as 39 - 41 inclusive.

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Condition 33 is deleted.

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A new Condition 42 replaces the former Condition 34 as follows -Drainage to the development and land must be to the satisfaction of the Responsible Authority.

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Conditions 35 - 44 inclusive are renumbered as 43 - 52 inclusive.

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Condition 44 is deleted.

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Conditions 45 - 49 inclusive are renumbered as 53 - 62 inclusive.

Ms S Moore of counsel instructed by Mr Watson-Jones of Lewis Holdway for S Johnson, G and J Cox, A Fox, M Rumble and K Mohamed. Mrs R Grose and Mr B Hooper in person.

Mr E Stokans, solicitor of Russell Kennedy. Mr S Nield, drainage engineer with Goulburn Murray Water and Mr K Jones, Manager Design Services with the City of Greater Shepparton were called to address several contested permit conditions.

Mr A Finanzio of counsel, instructed by Mr Walker of Hunt & Hunt solicitors. Evidence was called from Mr P Jewell, town planner.

1 These proceedings address a proposal to locate an adult sex bookshop on land toward the eastern edge of Shepparton. The first proceeding is brought by objectors and seeks to review a decision by the Greater Shepparton City Council ("the council") to grant a permit for an adult sex bookshop on land at No. 2-4 Carroll Street, Shepparton East. This application primarily canvasses the social and economic effects of an additional adult sex bookshop in Shepparton. The second proceeding is brought by the permit applicant and seeks to review 14 conditions proposed by the council.

2 The site, which is located on the north-east corner of the Midland Highway and Carroll Road, east of Doyles Road, is relatively flat and has an area of approximately 2,000 square metres. It is zoned Business 4 under the provisions of the Greater Shepparton Planning Scheme ("the scheme"). Land to the north contains two dwellings within the Business 4 Zone. A car sales and service premises is located on the opposite corner of Carroll Road, with its service section to the rear. The closest residential zone is 270 metres to the east, where a low density residential project is under construction. Land further to the north and west of the business area is zoned Industrial 1. Land on the opposite side of the Midland Highway comprises a range of business premises including a car yard. This area is also zoned Business 4. The Midland Highway is a major arterial road serving as the main eastern approach to Shepparton. It is zoned Road 1 and there is a service road on the south side.

3 There are two existing adult sex bookshops in Shepparton, one close to the mall near to a bowling alley and cinema and another in a local retail centre. We inspected these premises, the subject land and two other businesses where sexually explicit products or activities were said to be available.

4 The permit applicant seeks approval to develop the land with two attached buildings, one of which would be used for an adult sex bookshop as part of the "Club X" chain. That building would have an area of 580m2; while a second building, for which no use is proposed as part of this permit application, would be 240m2. The buildings would be single storey, with 33 car spaces presenting to both street frontages. Landscaping is proposed. Business identification signage associated with the adult sex bookshop would comprise two pole signs, a window sign and a sign above the entry.

5 The relevant permit requirements and applicable provisions of the scheme can be summarised as follows. A planning permit is required to develop the land for two buildings and to use the land for an adult sex bookshop pursuant to the provisions of the Business 4 Zone. A Land Subject to Inundation Overlay applies to the land and a permit is required for buildings and works. A number of other clauses are relevant to the consideration of this application including clauses 11, 14, 15, 17.02, 18.02, 19.03, 21, 22.06 (streetscape, landscaping and urban design local policy), 22.07 (building lines policy), 22.08 (advertising signs local policy), 52.06 (car parking), 52.07 (loading), 52.29, 52.34 and 65 (general decision guidelines).

6 The scheme includes a list of land use terms and defines these terms. The term "adult sex bookshop" is defined to mean:

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

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

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

7 Although the applicant objectors raised a number of matters in support of their application for review, the main focus was upon the adverse social effects that were said to result from the grant of a permit for the adult sex bookshop. The objectors also relied upon economic effects related to the social effects that were said to arise.

8 The objectors relied upon section 60(1A)(a) of the Planning and Environment Act, which provides:

60(1A) Before deciding on an application, the responsible authority, if the circumstances appear to so require, may consider -

(a) any significant social and economic effects of the use or development for which the application is made.

In Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council [1998] 2 VR 406 the Court of Appeal of the Supreme Court of Victoria considered this provision[1] and made it clear that, where the circumstances appear to require, the Tribunal must consider significant social or economic effects. In the present circumstances, we are satisfied that the social and economic effects of the proposed adult sex bookshop should be considered.

9 Although no burden or onus of proof in the curial sense exists in proceedings involving the exercise of the Tribunal's review jurisdiction[2], it is necessary for the Tribunal to be satisfied that a particular effect is sufficiently probable to be significant.[3] Whether a particular effect is sufficiently probable will depend not just on the probability of the effect occurring, but also upon the consequences of the effect if it occurs and the utility of the use or development which gives rise to the effect. Further, any adverse effect must be weighed against any relevant positive effect. Hence a question we propose to answer in this case is whether we are satisfied that the proposed adult sex bookshop will cause net adverse social (or economic) effects on the community.

10 In Tabcorp Holdings Pty Ltd v Moreland City Council [2004] VCAT 693 the President was required to consider whether a condition prohibiting signage advertising a betting shop should be refused because of the adverse social effects of gaming. The President was not satisfied that the circumstances in that case required consideration of such social effects, in the first place because no permit was required for the use of the land as a betting agency. It is unnecessary to dwell upon the second reason, which related to the nature of the controls then under consideration. But the President provided a third reason why the case did not require consideration of significant social effects.

No evidence has been put before me to support the notion that the imposition of these conditions would have any impact whatsoever in relation to the social effects that might result from the use. The social effects of gaming is a difficult issue. It is notorious that gaming does have some adverse social effect, but it is equally true that gaming is a recreational activity for many people. The complexity of the social effects of gaming, including wagering, can be contrasted with the simplicity of the policy positions that different members of the community may adopt in relation to such activity, which are often black and white in nature. This is because attitudes to gaming are primarily determined, not so much by detailed sociological or economic evidence as to the impact of gaming, but by philosophical or moral values, sometimes even religious values. When it comes to exercising powers pursuant to the Planning and Environment Act in relation to social effects, I do not believe that it is appropriate to simply apply philosophical or moral or religious values. Rather it is necessary to make such decisions on the basis of a true empirical understanding of the facts of the situation. No empirical information has been put before me in this case to support the notion that the proposed access arrangements or signage would have any significant adverse social effect.

We think these comments apply with equal force in the context of the social (and economic) effects of a shop selling pornography.

11 In a comprehensive submission Ms Moore, for the objectors, emphasised that her case was not based upon moral or religious values. Hence, she said, the long string of cases stressing that moral values were not relevant in considering applications for adult sex bookshops[4] was no barrier to her case. Rather, she relied upon the following social effects, which she contended would be likely if the proposed use was permitted:

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There would be a dramatic increase in the potential level or risk of exposure of underage (under 18) persons and to adults who will use pornographic material inappropriately.

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The use would create an avenue for [the permit applicant] to pursue its agenda on sex into the community without collaboration with schools, parents and family organisations.

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The use would have a related negative impact on men's sexual and non-sexual behaviour towards women.

In support of her contentions Ms Moore relied heavily upon a publication by The Australia Institute "Youth and Pornography in Australia: Evidence of the Extent of Exposure and Likely Effects" ("the Australia Institute report").[5] She also referred the Tribunal to extracts from the Greater Shepparton Council Plan 2004-2008, the Goulburn Valley Primary Care Partnership Health Profile, March 2005 and the Greater Shepparton Public Health Plan 2002-2004. She said that these documents showed that the Shepparton region was disadvantaged, had significant pockets of Koori and Middle Eastern communities, and had a relatively high crime rate. Ms Moore also referred the Tribunal to a "compact" dated 4 September 2003 which outlines a plan of collaboration between the Koori community and various government agencies. Ms Moore's basic thesis was that the proposed use would make pornography more readily available in the Shepparton community; and that this increased availability would have negative social effects, particularly as the community was relatively disadvantaged.

12 Has it been shown that the type of pornography that is generally available in adult sex bookshops causes harm? We think that the most that can be said is that this may be the case. Indeed, this is the conclusion of the Australian Institute report:

In short, a wide range of studies indicates that exposure to pornography, and particularly representations of sexual violence, may contribute to the formation of unhealthy attitudes to sex and sexuality which may in turn inhibit the formation of healthy intimate relationships.[6] [Our emphasis.]

A close reading of the Australia Institute report shows that the authors place particular emphasis on the harm that may be caused by representations of violence - which may or may not involve a sexual element - and identify that a broad consensus exists only for the disapproval and condemnation of pornography showing representations of sexual coercion.[7] The authors make a distinction "between 'mainstream' pornography (in commercially available X-rated videos) and the proliferation of violent and extreme material on the internet."[8] The authors do not make the case that the viewing of non-violent sexual acts between consenting adults gives rise to unhealthy attitudes to sex and sexuality; and, even if they did, this would involve a value judgment, which not all the community would share, as to what was or was not an "unhealthy" attitude.

13 Further, even if we assume that pornography can cause harm in some circumstances, any such harm would need to be assessed in the context of positive factors associated with the sale of pornography. One such factor is that many adults, of their own will, choose to purchase such material for private use. In a free society this factor ought to carry considerable weight. The permit applicant identified another factor. It may be that, in at least some circumstances, pornographic material will actually provide a benefit to the user or users, without harming other persons. No doubt this second factor is difficult to prove or measure; but this is equally so of the supposed harm that pornography is said to cause.

14 Next, it is important to observe that pornography is already available to the Shepparton community. There are two existing adult sex bookshops in Shepparton. Anyone who wishes to purchase a pornographic magazine or video in Shepparton can easily do so. Indeed one of the existing outlets is adjacent to a substantial shopping area and near to youth related uses, such as a cinema and a bowling alley. Further, Shepparton is not an island. Many residents of the Shepparton region would regularly travel to Melbourne or other centres where pornography can be purchased and brought back to Shepparton. We also stress the increasing trend for pornography to be accessible via the internet. Indeed, the Australia Institute report emphasises the importance of the internet, not just because it is available in many homes, but for two other important reasons. First, unlike material sold in an adult sex bookshop, the internet is available to all persons, not just those over 18 years. Second, extreme forms of pornography are more likely to be available on the internet than in an adult sex bookshop.[9] Having regard to these factors, we conclude that, although the proposed shop will increase access to pornography in Shepparton, the effect will be marginal and will not permit direct access to those under 18 years.

15 We acknowledge that the socio-economic make-up of the Shepparton community is different to the Victorian community as a whole; but we think that the differences are marginal and unimportant. There are other places in Victoria (where adult sex bookshops exist) where there are a relatively high proportion of people from the Middle East. And there are other towns with a relatively high population of Koori people. Moreover the crime rate in Shepparton, although slightly higher than average, is not significantly different. More relevantly, we are not persuaded that these socio-economic factors are determinative. The Police have not objected to the proposed use and there is no basis to conclude that the proposal will significantly affect the overall crime rate. Crime has many causes; and we would suggest that alcohol, drugs, gambling and poverty would all be far, far more important than the availability of pornography. Further, there is no evidence that any harm caused by pornography is related to socio-economic status. We cannot see why there should be such a relationship: for example, the suggestion that this is the case for domestic violence was debased by Dr Jocelynne Scutt in her book "Even in the Best of Homes: Violence in the Family".[10]

16 One of the major contentions raised by the objectors concerns the availability of pornography to minors. It is true that an adult sex bookshop may sell a product that is then "left around" and can be accessed by a minor. But, in year 2005 and beyond, this type of access to pornography is likely to be much less significant than access via the internet. Pornography is readily and freely available on the internet, with just a few clicks; and minors might be thought to better understand the internet than many adults. Indeed it is pornography on the internet that is the real focus of the Australia Institute report. This is made clear by the opening paragraph of the Summary - surely the place where the key case is to be made - where the authors state:

Children have always sought out sexually explicit material but doing so today is easier, quicker, cheaper and more anonymous. While the system of video classification is designed to exclude those under 18 from viewing pornography, there are virtually no age-related barriers to pornography on the Internet. Children can spend hours wandering online through a vast array of free images and movie clips much of which would be prohibited on video. They can been [sic] drawn or coerced into viewing material they have no desire to see through 'pop-ups', 'mousetrapping', spam emails and manipulation of search engines. Yet despite the scale and possible consequences of this social problem, it has received almost no public attention.

In the light of these factors, we are not satisfied that the proposed adult sex bookshop will cause harm to the community by increasing the availability of pornography to minors.

17 Nor do we uphold the contention that the proposed shop would cause adverse social effects because it would create an avenue for the permit applicant to pursue its agenda on sex into the community without collaboration with schools, parents and family organisations. Obviously the operator of the proposed shop will pursue the agenda of seeking to make a profit from the sale of pornography. This is a lawful activity. It is not made any less lawful by reason of the fact that pornography is sold to individuals, and is not presented in the context of some school, parental or family agenda. We must remember that, in assessing social effects in the context of town planning, we live in a society where certain activities are regulated by laws of general application. It is unlikely that the Parliament intended that such laws might be negated by the exercise of planning discretion in the absence of some particular spatial consideration that warranted some different outcome.

18 Thus we do not accept the contention advanced by the objectors that the proposed use would cause significant net adverse social effects. Given this, we also reject the suggestion that the use would cause significant adverse economic effects, as the alleged effects were related to the same social effects upon which the objectors relied.

19 Ms Moore submitted that the subject land is not a suitable location for the proposed adult sex bookshop. Her submissions were on the basis that it would jeopardise the achievement of the primary purpose of the Business 4 Zone as it does not involve the provision of trade-related services, or goods serving or ancillary to industry and agriculture, as sought by the local policy at clause 21.05-2. She also submitted that the land is on the eastern entrance to the city and, being a gateway location with significant passing traffic, the proposed adult sex bookshop would be prominent causing a detrimental impact on the entrance to Shepparton. Concern was also expressed about the extent to which pedestrians in the vicinity of the subject land would be exposed to the premises.

20 The subject land is located in an area intended for peripheral sales premises, which are often large and boxy in style. We accept that the proposed adult sex bookshop is not specifically intended to service agriculture or industry and is a use that is not typical of the peripheral sales activities specifically sought in this location. However all parties agreed that the use would be better located away from the main retail core where there is a much higher level of pedestrian activity; and it is relevant that there are only a few zones where an adult sex bookshop can be considered and such uses must not be close to residential zones. Although the review site is in a location where there is some pedestrian activity, this is confined to immediate property owners. The location is not one where there is a high level of pedestrian activities or multiple sensitive uses. We are satisfied that the location proposed is acceptable.

21 The policies of the scheme do not nominate gateway locations; but we accept that the Midland Highway is an important entry to Shepparton. There is presently limited development around the review site but that will change as development ensues. In time the proposed adult sex bookshop will be seen in the context of other commercial buildings. As a location designated for peripheral sales, which are usually not particularly attractive buildings in their own right, the proposal adopts a similar rectangular design. We do not find that the proposal would offend the built form objectives for this precinct.

22 Ms Moore placed some emphasis on the role served by the Midland Highway providing access to two "satellite" retail centres a kilometre or so east of the main retail core. The catchment for premises in those satellite centres may well include persons travelling westwards along the Midland Highway past the subject land; but we are unable to reach a conclusion that the presence of the adult sex bookshop on the opposite side of the highway is inappropriate from this perspective. The point of key significance is that the retail centres will not generate significant pedestrian traffic past the subject land.

23 It follows from the above that we find that the proposal would produce an acceptable outcome in terms of the purpose of the Business 4 Zone and applicable policies of the scheme.

Impact on Adjacent Properties, Activities and Businesses

24 Ms Moore submitted that the adult sex bookshop would have a negative impact on the amenity of the area, notably those attending the car service centre north along Carroll Road. While people attending nearby premises may have an aversion to the proposed adult sex bookshop, conditions imposed on a permit can prevent sexually explicit material being displayed so as to be visible outside the premises. Even though people may have such an aversion, they would not be exposed to the sexually explicit material by driving past the site. The mere presence of the shop should not be a reason for its refusal at this location.

25 Two houses are located to the north of the subject land but within the Business 4 Zone. No party sought to contend that the proposal should be rejected for reasons relating to the proximity of the proposed bookshop to these houses. Given the zoning of the land, we do not think that any such contention would be reasonable.

26 It follows from the above that we find that the proposal would not produce an unacceptable outcome in terms of the amenity of the area.

27 Ms Moore submitted that there was insufficient information available to the council to enable a proper evaluation of the proposal. Details about the potential for internet/DVD/video preview booths were not included with the permit application, but the remainder of the information required by the council was provided. We have proceeded on the basis that some booths may be provided within the building; the precise location within the building is not important. We are satisfied that there has been sufficient material presented through the comprehensive submissions of all parties to enable us to make an informed decision as to the merits of the permit application.

28 The permit applicant sought review of 14 conditions included on the Notice of Decision. These were discussed at the hearing and many were resolved by agreement between the parties. There is no need for our comment on those. However, several were not resolved and require the Tribunal to make findings. We summarise our findings as follows:

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Condition 4 requires a range of matters to be secured through a section 173 agreement. We are not persuaded that is necessary. All of the matters are essentially seeking to ensure that landscaping, the exterior treatment of the building, car parking areas and signage are all completed in accordance with the endorsed plans and then maintained in accordance with the endorsed plans. Other than parts (k) and (l), that are not appropriate to include as a permit condition as they relate to insurance and ownership matters, the remainder can be included as conditions. There would be an ongoing obligation to comply with these matters as the permit is for the use of the land in addition to development.

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Condition 7(f) seeks to prevent sexually explicit graphic, video and audio recordings being played on the premises other than in booths intended for that purpose. We agree that the showing of hard core pornography in these areas would be inappropriate, but there can be no objection to soft core material being shown. Some minor re-wording of the condition is required.

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Condition 7(i) requires an amenity plan dealing with patron management on the premises. Mr Finanzio stated that the specified requirements of the plan would be undertaken anyway by his client. Being mindful of that, and the sense of security that Mr Stokans said such a plan may provide to nearby property owners, we accept the council's submission that the condition should remain.

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Condition 26 requires all windows within the adult sex bookshop to be obscured. We are not persuaded to accept this condition. Blanking out all windows raises the potential that the use is seen as seedy or sleazy. The window display would be set back from Carroll Road by some 12.9 metres and a larger distance to the highway. We think it is acceptable to display items in the window, provided that sexually explicit items and material are not visible from outside the premises.

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Condition 33 requires additional car spaces to be provided should a need arise. In addition to the condition being so uncertain so as to be unreasonable, we are satisfied that adequate parking has been provided for the proposed adult sex bookshop.

29 For the above reasons, we conclude that the decision made by the Responsible Authority should be affirmed, but some of the conditions included on the Notice of Decision should be deleted or varied. We will make the necessary orders.

[1] The relevant sub-section has since been renumbered since the Court of Appeal decision, but the substance of the provision has not changed.

[2] Golem v Transport Accident Commission (No 1) [2002] VCAT 319; (2002) 19 VAR 265.

[3] Australian Conservation Foundation v International Power Hazelwood [2004] VCAT 2029 at [41]. For a discussion of the same principle in other contexts, see X v Commonwealth (1999) 200 CLR 177, 190-192, per McHugh J (negligence law) and Hay v Dubbeld [2005] VCAT 642, at [6] (anti-discrimination law).

[4] Recent examples of cases to this effect are HGC Administrative Services v City of Greater Dandenong (1996) 17 AATR 153, HGC Administrative Services Pty Ltd v Greater Dandenong City Council [2003] VCAT 406, Peran v City of Wyndham (Appeal No 1997/49552), Foote v Hobsons Bay City Council [2002] VCAT 1554 and Mayfair Chain Pty Ltd v Hume City Council [2001] VCAT 1470. The principle that town planning is not concerned with moral values in relation to pornography has been applied in Victoria and elsewhere for many years; see, for example, Venus Enterprises Pty Ltd v Sydney City Council (1972) 25 LGRA 358.

[5] The Australia Institute, Discussion Paper Number 52, February 2003, by Michael Flood, Centre for Women's Studies, Australian National University and Clive Hamilton, Executive Director, The Australia Institute.

[7] At page 52. See also page x, where the authors identify a cluster of studies which have examined correlations between the use of pornography in everyday life and aggressive attitudes or behaviours. An analysis of these studies found that there is not a significant, reliable relationship between the amount of pornography use and attitudes supporting sexual aggression.

[9] The Australia Institute report was informed by a Newspoll survey held in September 2002. We think that internet usage and availability has increased significantly since that time; which would tend to reinforce our conclusion about the significance of the internet as a vehicle for the delivery of pornography.