Victorian Civil and Administrative Tribunal|2008-07-23

The applicant Mr Craig Patrick, tendered receipts for his purchase of three R-rated magazines with accompanying DVDs from the local APCO service station, titled Celebrity Sleuth, High Street Honeys and Voluptuous Teen Angels '18 and Eager'. He also advised that 142 R-rated moving films could be hired at Wangaratta's Video-Ezy, and 52 R-rated moving films were for sale.
The Tribunal observed similar magazines in a mainstream newsagent in Wangaratta's main Ryley Street and in other petrol stations in the town.
Mr O'Brien stressed that purchasers could travel to Wodonga or Shepparton to buy from their Adult sex bookshops.
The fact is that pornography comprising sealed and screened R-rated moving images and Category 1 printed media is presently available in mainstream Wangaratta retail outlets. This same media will be sold at the proposed Adult Sex bookshop together with Category 2 publications and sex toys.

The following detailed description of the proposal comes from the Council planning officer report:

The applicant seeks approval for the use to operate seven days a week between 10.00am and 6.00pm Sundays to Thursdays and 10.00am to 11.00pm on Fridays and Saturdays. There will be one fulltime and one casual staff in the bookshop.

At the hearing we were advised by the applicant that the name Slap'n'Tickle was not available, that a more innocuous name such as Adult Shop Australia would be used. The applicant's counsel, Mr David O'Brien stressed his client's desire to keep the use discreet.
Signage was discussed. The one page letter accompanying the formal planning application and plan states:

We propose to place a sign 1.5 m high and 2.0 m wide in the place of the existing "Showbag Factory" sign as shown in photo no. 1.

In view of the Showbag factory continuing to operate from the main warehouse building, we find it perplexing that the new sign should replace the existing Showbag Factory sign.
We continue to describe the proposal from the Council planning officer report:

The subject land ... has an area of approximately 4,918 square metres. The land is currently occupied by a factory/warehouse known as the 'Showbag Factory'. This is an application to use part of the existing Showbag Factory premises as an adult sex bookshop.

The adult sex bookshop will be located in an additional room that is proposed underneath the existing skillion awning, which will enable the existing building to be split into two tenancies. It is noted that this modification to the building is being dealt with in a separate planning permit application. Should a permit be granted for the new use, it will need to be conditional upon the building modifications gaining a planning permit and then being constructed in accordance with that permit before the new use could commence.

The adult sex bookshop will be 70 square metres in floor area. The front façade of the building currently has one entry, and it is proposed that entry to the adult sex bookshop will be via a different entry on the northern elevation of the building, with the other remaining as the sole entry to the Showbag Factory.

We discovered some inconsistencies in the application material which we clarified with the parties at the commencement of the hearing.
1. Firstly, why would the signage be 'in the place of the existing "Showbag Factory" sign' if they were two independent uses?
2. Secondly, why does council's planner say:

The front façade of the building currently has one entry, and it is proposed that entry to the adult sex bookshop will be via a different entry on the northern elevation of the building

but the plan accompanying the application shows (in addition to a new entry into the sex shop) two entries into the warehouse from the sex shop in addition to what was supposed to be the existing and sole entry to the warehouse.

Thirdly, why was the development component of the application (the construction of the new blue coloured retail premises) dealt with in piecemeal fashion in a separate permit application? If, as council's planner foreshadows, the use permission needs to be conditional upon the development permit, which council had already issued on 17 March 2008[5], then there is an inconsistency between the development permit and the use permission we are asked to grant.

It was for that reason that we had the parties clarify at the commencement of the hearing that the adult sex bookshop was only proposed for the new blue coloured retail building and not for the SHOWBAG warehouse.
Council calculated parking on the basis of a 70m2 retail area as follows:

In this case, the existing warehouse covers an area of approximately 1095m2 and would therefore require 16 car spaces (1,095/100m2x1.5 = 16.4). The adult sex bookshop would require 8 car spaces per 100m2 gross floor area, therefore 6 car spaces (70/100m2x8 = 5.6) are required. The proposal makes provision for 23 car parking spaces which is adequate for these two uses combined.

Council supported the use because it is a legitimate business enterprise recognised as such in law and in the planning scheme, because it is suitable in this type of industrial zone, because its location is discreet, and because it is less sensitive to nearby industrial uses.

R-rated pornographic material is available for retail sale in the centre of Wangaratta.
A warehouse, which is an automatically permitted use in an industrial zone, is defined as land used to store or display goods. It may include the distribution and the wholesale selling of the goods.
Therefore the abutting warehouse can be used to display, package and distribute sexually explicit material to be sold by others. Mr Patrick offered to accept a condition that no persons under the age of eighteen work in the warehouse.

The principal issue for consideration while based on social, moral and religious grounds, was also based upon maintaining Wangaratta as a desired place to live and upholding its present image.
The planning scheme describes its region as promoting world class wineries, gourmet food, spectacular scenery, historic legends, cultural heritage and access to numerous State and National Parks. Cycling, bushwalking and fishing are some of the favourite leisure activities where people can reap the benefits of a perfect location.
Despite the objectors' fears that the shop would tarnish this image by introducing pornographic materials into the local community, Mr Patrick, Mr O'Brien and Ms Patten stressed that the same R-rated material that was anyway available in Wangaratta (plus the addition of Category 2 publications and sex toys) would occur on the subject site.

Mr Moore collected a petition of well over 1,000 signatures against this sex shop, but 1,000 signatories came from the Wangaratta Township. This petition represents a small proportion of the 18,000 residents of Wangaratta Township and 26,000 residents of the whole municipality. He submitted that this was evidence of community opposition to the proposal and that it should be considered in the same light as community polling undertaken in the Romsey Hotel case (see below).
In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor[6] the Court of Appeal held:

In our view the Tribunal erred in law when it disregarded the evidence of community opposition to the proposed introduction of gaming machines. For reasons set out below, community opposition was a relevant consideration, that is, a matter which the Tribunal was bound to take into account having regard to the statutory scheme.

The Romsey poll was a plebiscite directed at residents of Romsey which asked the question:

"Do you support the installation of electronic gaming machines in Romsey?"

The evidence was that there was a 69% return rate of the survey forms. Further, of the returned survey forms, 20% supported the provision of gaming machines in Romsey; but 79% did not support the installation of gaming machines in Romsey[7].
The petition collected by Mr Moore stands on a different footing altogether to the Romsey plebiscite, and cannot be compared with that collected by Council in Romsey. Not every adult was polled in Wangaratta.
While we do not dispute the contents of the petition, we must stress that the Gaming Regulation Act 2003 is entirely different to planning legislation, where the same onus of proof is not present. Although significant social considerations are relevant to planning law, they are not determinative.
A poll was also undertaken by the Wangaratta Chronicle which, although a small sample, suggested a small majority support for the proposed adult bookshop. As with the petition presented by Mr Moore it is on a different footing to the Romsey plebiscite. Although the two Wangaratta surveys provide some sense of community feeling, we do not know how representative they are of community views given that neither was undertaken in the manner of the Romsey poll and we have, for that reason, not given either of them any weight in our assessment of the proposal.

A small number of women interviewed for this Report[8] volunteered that pornography contributed to the problems they experienced from their partners. We do not see a sex shop causing this consequence, which can occur anyway. Like gambling and alcohol consumption, extreme behaviours can occur for a wide variety of reasons.

We were advised that although this Report[9] advocated enforcement of existing liquor and pornography laws and community education, the government has prohibited pornography in these indigenous communities and we should adopt the same approach.
All we can say is that there is no comparison between the two communities, Wangaratta and the disadvantaged indigenous.
Concerns about children finding printed, moving image or internet pornographic material at home is the same as children accessing alcohol or cigarettes. Planning laws and policy do not enter the private domain - this realm must be managed by the parent, either by software filters, education or other means.

All parties stressed that enforcement is the key to containing the sale or screening of illegal pornographic material.
Dr Michael Flood and Mr Clive Hamilton, the authors of Youth and Pornography in Australia[10], are concerned with enforcement of the existing classification system nationally and with ubiquitous pornographic material over the internet. This report was referred to in Johnson v Greater Shepparton CC[11] and relied upon by Mr O'Brien.
Wangaratta as a community was described as more conservative than urban centres. This was also our observation when we inspected the town. It appears a low key, modest, conservative and discreet town with no sexually explicit advertising or imagery, unlike some urban centres.
This is where planning performs a role - not to interfere with government policy on pornography, but to ensure that these uses are sensitively located in communities and controlled by conditions so that minimal offence occurs and the community, rather than being defined by sexual activity, still promotes its core values which we described above.
To that end, we have decided to impose a number of conditions, both to implement the permit applicant's offers and representations and to make enforcement manageable.

It is trite planning law that piecemeal applications are contrary to planning law and all aspects of use and development pertaining to a site should be considered and dealt with in the one application. Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[12] followed. We distinguish Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited[13] on the facts.
That is why we are at a loss to understand why council dealt separately with the buildings and works side of this adult sex bookshop application, even though we acknowledge that third parties enjoy no review rights in the Industrial 1 zone against development applications.
The consequence of this is that council has issued a permit for extensions to two warehouses as well as this proposed retail extension on the whole of the land. This permit allows two doors from the retail outlet into one of the warehouses, so that this development will be at odds with the permit we intend to grant. We do not wish to create a situation of ambiguity or inconsistency between two permits for the same purpose, because one deals with use for that same purpose and one deals with development for that same purpose.

Having heard the fears of the applicants for review and the representations by the permit applicant that he wished to keep the use discreet, we repeat the sentiments expressed by Justice Morris in Romsey[14], swapping his reference to 'gaming machines' with 'sex shop' instead:

It is also important to stress that statutory decision making takes place in a context. Not only are particular provisions laid down by the Parliament which must be taken into account, but also decisions must be made in the context that the Parliament has made the installation and use of gaming machines in Victoria a lawful activity. Thus it is not lawful for the tribunal to reject gaming applications on the basis that it believes gaming to be immoral or socially harmful in all circumstances. Rather the tribunal is required to make its decisions in the context that gaming is lawful in Victoria.

This is clearly correct, but we need to remember what is lawful in Victoria, and that is the sale of R-rated sexually explicit images, not X-rated. We are entitled to acknowledge social concerns and sensibilities associated with X-rated pornography. And we are entitled to take judicial notice of the fact that X-rated images are available on film, disc and on the Internet and acknowledge the difficulties with law enforcement.
Therefore, based on the representation of the permit applicant, we propose permitting the use as an Adult Sex Bookshop but prohibiting internet and DVD/video preview booths in this sex shop, which could play or transmit video or audio recorded material of an X-rated sexually explicit nature. We also propose prohibiting any advertising signage whatsoever other than the desired business identification sign measuring 1.5 by 2.0 metres.
It is the conditions to which the use will be subject that will both contain its impacts and ensure Mr Patrick's representations.

We acknowledge the distress that a sex shop will have for some of Wangaratta's residents. We acknowledge that Wangaratta projects a modest and wholesome country image innocent of sex shops. We acknowledge that Wangaratta wishes to maintain that image and does not want to promote a sexual image. But it is not innocent altogether from R-rated and Category 1 pornography, which is already being exhibited in a discreet manner.
To that end, we think the modest size and location of the facility together with modest signage is reasonable, taking into account all the factors we have weighed above.
We propose to issue an Interim Order, permitting the proposed use subject to conditions, once the development permission is consistent with our proposed use permission. The interim order will explain how that can be achieved. Our proposed order once a situation of consistency is achieved is set out in Appendix 1.
We point out that this is not an opportunity for objectors to review any development permission, as third parties are exempt from buildings and works permission in the Industrial 1 zone, and the Responsible Authority has already decided to give such permission in Permit No. 07-244 issued on 17 March 2008.

The decision of the responsible authority is varied. A permit is granted and directed to be issued by the responsible authority under the provisions of section 85(1)(b) of the Planning and Environment Act 1987 which allows use and development of the shop notated 'new retail outlet' and coloured blue on the plan by nrg systems pl Dwg Reference 871-Show-A-PL-01.rvt at Lot 1 on Plan of Subdivision No. PS 546721R Certificate of Title Volume 11075 Folio 420 Sandford Road, Wangaratta for the purpose of an adult sex bookshop. The Tribunal directs that the permit must be subject to the following conditions:

Before the use can commence, amended plans to the satisfaction of the responsible authority must be submitted to and approved by the responsible authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with those submitted but modified to show:
- (i) Deletion of any and all doors, windows and other openings between the adult sex bookshop and the existing warehouse;
- (ii) That the sole advertising signage permitted for this use consists of one business identification sign measuring 1.5 by 2.0 metres located on the west face of the new building extension;
- (iii) Elevations that show a warning sign that persons under the age of 18 must not enter the premises;
- (iv) A suitable partition or screen inside the entrance to the shop that will prevent restricted material from being seen by passers by when the front door is open;
- (v) A plan notation that 'no flashing or intermittent signs or pole signs will be erected'.
The use and development permitted by this permit as shown on the endorsed plan(s) and/or described in the endorsed documents must not be altered or modified (for any reason) except with the prior written consent of the responsible authority.
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 nearby property, public road, thoroughfare or access way to the satisfaction of the responsible authority.
With exception of the warning sign referred to in condition 1 (iii), the only signage associated with the permitted use must be the single 1.5 metre by 2 metre business identification sign to be located on the subject shop and it must not include sexually explicit images/materials to the satisfaction of the responsible authority.
The owner of the land and the operator of the use hereby permitted must ensure that no persons under the age of 18 years enter or remain on the premises where restricted material is offered for sale.
The owner of the land and the operator of the use hereby permitted must ensure that no material restricted by State or Commonwealth Statute from sale or exhibit to persons under the age of 18 years is displayed where it is visible to such persons.
No customer access is permitted to internet materials and no viewing booths must be constructed or permitted on the site.
No sexually explicit entertainment of whatever Rating including cybersex internet booth shows or peepshows or the like, may be carried out on the subject premises at any time.
Except with the prior written consent of the responsible authority, the use hereby permitted may only operate between the hours of:
- Sunday to Thursday 10.00 to 6.00pm
- Friday to Saturday 10.00am to 11.00pm
This permit will expire if one of the following applies:
- the use is not started within two years of the date of this permit;
- the use is discontinued for a period of two years.

The responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] For example, amenity, site suitability, built form, bulk, overlooking,parking and traffic.

[2] Women's Health Goulburn North East Wangaratta

[4] Mainstream retail outlets such as newsagents, petrol stations, convenience stores and the like.

[5] Permit No. 07-244 for 'extension to existing warehouse'

[6] [2008] VSCA 45 (19 March 2008)

[7] Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation (Occupational and Business Regulation) [2007] VCAT 1 @ para.15.

[8] Raped by a Partner: A research report, Women's Health Goulburn North East, Wangaratta

[9] Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse 2007.

[10] Youth and Pornography in Australia: Evidence On the Extent of Exposure and Likely Effects

[13] [1997] VSC 29 (3 July 1997)

[14] Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation (Occupational and Business Regulation) [2007] VCAT 1 @ 5.

Rowe v Wangaratta Rural CC [2008] VCAT 1472 (23 July 2008)

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor [2008] VSCA 45 (19 March 2008).

Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation (Occupational and Business Regulation) [2007] VCAT 1 @ 5.

Johnson v Greater Shepparton CC [2005] VCAT 1432.

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council; [1980] HCA 1; (1980) 44 LGRA 346; [1980] 145 CLR 485 (6 February 1980); [1980] HCA 1.

Rowe v Wangaratta Rural CC [2008] VCAT 1472

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Parties

Cases Cited (5)

Rowe v Wangaratta Rural CC [2008] VCAT 1472 (23 July 2008)