Victorian Civil and Administrative Tribunal|2008-08-21

Sextastic Pty Ltd v Frankston CC [2008] VCAT 1709 (21 August 2008)

Adult Sex Bookshop, Frankston Planning Scheme, Window Display, Hours of Operation, Section 79

Sextastic Pty Ltd v Frankston CC [2008] VCAT 1709

Use and Development of an Adult sex bookshop, including one floodlit sign to face Lathams Road, external painting and minor works to an existing factory / showroom to convert an existing building for the use and reduced parking provision. Floor area of shop is approximately 300sqm with a warehouse retained to the rear of 270sqm. An upstairs office and boardroom is to be used as a central office for this and other Sextastic franchises. This office has a floor area of approximately 96sqm.

1/35 Lathams Road has been developed for a factory showroom. This is currently vacant with permit approval for use as factory, showroom and upstairs office.

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

Gowans v Cardinia SC [2006] VCAT 2326 (14 November 2006)

This review derives from a failure of Frankston City Council to determine an application for an Adult sex bookshop at 1/35 Lathams Road, Carrum Downs. The application also provides for a floodlit sign and a reduction in car parking to the site.
No objections were received to the application.
Ms Francis advised at the commencement of the hearing that had Council made a decision regarding the proposal it would have issued a permit subject to conditions she outlined at the hearing.
Mr Gowans advised he supported the position of Council but disputed three conditions proposed by Council.
The proposed location is approximately 500m from the nearest residential zone and located adjacent to a Category 1 road in an Industrial 1 zone. I find the site to be suitable location for the proposed use. I also agree with Council's submission that a reduced parking requirement is acceptable as the likely main times of trade are weekends and evenings when nearby industrial uses will be closed. There is sufficient on site parking to accommodate general trade. Mr and Mrs Gowans also submitted that much of the trade for the use would be via party trips that where groups would arrive by bus or shared car.
As there were no objectors or other issues of contention about the establishment of the use I consequently gave an oral decision to issue a permit subject to conditions.

Mr Gowans requested the tribunal to amend three of the proposed conditions submitted by Council. These were:

To include an additional condition 1j) to provide for amended plans to include provision for a spray tanning booth as an ancillary use to the facility. 2. Change to the proposed hours of operation detailed in Condition 3 proposed by Council to enable trading on a Sunday evening to 11pm rather than 8pm as proposed by Council.

Alter the proposed condition 5 regarding requirements for window display. Mr Francis submitted the intention of Council was to prohibit any form of advertising or display in windows. Mr Gowans submitted the condition should enable some for of display, provided it was not of a sexually explicit nature.

Mr Gowans submitted the business sought to provide spray tanning an ancillary use to the facility. Ms Francis indicated Council had no objection to the use provided it was ancillary to the principal use. She submitted this could be confirmed through use of amended plans.
I accept spray tanning can form an ancillary use to the facility, provided it is limited in floor area and not separately leased or accessed via separate entry. I have included the need to detail the use as part of amended plans to ensure the use is ancillary in scale, location and operation.

Mr Gowans submitted the proposed use would generally operate on weekends during day periods, however, sought an 11pm closing time on Sundays to accommodate evening group functions. He submitted much of the particular business operated by Sextastic Pty Ltd was directed to "hens nights" and similar female parties. He also submitted the nature of the business was such that evenings were the main trading period. He submitted that generally on a Sunday trading would cease before 10pm, however, would prefer the permit to allow trading to 11pm to accommodate occasional later functions or busy periods (e.g. prior to Valentines day).
Ms Francis submitted Council would prefer an 8pm closing time on Sundays as this was the quietest time of the week. She submitted Council was concerned that the site was currently somewhat isolated and therefore there may be safety concerns with opening the premises late at night. She did indicate that Council could "live with" a 10pm closing, but did not accept 11pm.
Having viewed the site[1], I acknowledge it is currently relatively isolated, however, see this isolation would not vary much between a Sunday evening or Monday evening when Council has accepted an 11pm closing. Lathams Road is a Category 1 road and is a feeder road to Eastlink. The industrial area is developing and I consider is likely to develop more substantially over the coming five years, making the site somewhat less isolated. I find 11pm on a Sunday night not excessively late and note that other similar premises approved both by the Tribunal[2] and Council have later trading hours. I therefore have included condition that the trading hours for a Sunday cease at 11pm.

Ms Francis submitted draft conditions that included:
1. Sexually explicit advertisements, materials and goods may only be displayed within the building in such a manner that it must not be observable from outside the building, to the satisfaction of the responsible authority.
Mr Gowans submitted he did not object to the use of this condition per say, however, submitted the business intended to include some window display, although not of a sexually explicit nature. Ms Francis indicated that the intent of the condition was that no window display would occur, thereby requiring windows to be blanked out with paint or curtains.
I stated at the hearing that my interpretation of the condition would be that some form of window display would be possible, provided it was not sexually explicit. Mr Gowans also referred to other permits he knew of with similar condition that enabled extensive window display and limited views into the premises, provided the views were not of sexually explicit material. He tabled a number of photographs of similar shops with limited window display. He indicated this was the preferred model of trading as it reduced security issues with staff and clients being unable to see out of the store and reduced the premises from being viewed as clandestine or subversive. He indicated this was particularly important to attract the female, party night, group market sought by Sextastic Pty Ltd..
Whilst I acknowledge there is concern regarding what may be seen in such a premises, I do find that simply blanking out windows would reduce safety for patrons and staff of the premises. Provided displays are not of a sexually explicit nature displays are unlikely to viewed very differently to a lingerie shop or party hire shop (or combination of the two). At the hearing I did make reference to another recent decision of the tribunal[3] where a similar, but slightly clearer condition was used. I stated that I would include a condition similar to the Wangaratta decision to clarify that limited window display is possible provided it is not of a sexually explicit nature. I also noted other conditions in the Wangaratta decision regarding use of panels to restrict views through any open door to the premises and notice that the use was restricted from people under the age of 18 would be useful to the permit and could condition these. Both Mr Gowans and Ms Francis acknowledged these conditions would be useful.
I therefore determined to issue a permit subject to conditions as discussed at the hearing and now outlined in Appendix A.

Before the use and development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to be 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 the plans submitted with the application that are described as "prepared by Urban Solutions, Job No. 2932 TP1 - Revision B, but modified to show: -

The upper level office layout and floor area. 2. Deletion of the reference to "Showroom".

Deletion of reference within the title block, to "Proposed Factory Development at Lot 1 Lathams Road, Carrum Downs" and replace this with reference to "Proposed Adult Sex Bookshop at 1/35 Lathams Road, Carrum Downs".

Deletion of any reference to "Factory 1" and "Factory 2". 2. Notation that "Factory 2 does not form part of this planning application". 3. The correct areas for each of the different components of the use. 4. Modifications to the layout at the front of the shop component to demonstrate compliance with Condition 6 of this permit. 5. The lighting requirements outlined in Conditions 10-11 of this permit. 6. A safety management strategy plan for the premises, staff and patrons of the facility that is to the satisfaction of the responsible authority and shall be endorsed to form part of the planning permit. 7. Details of the size, location and access to any area to be used for a spray tanning booth as ancillary to the principal use. 8. Details of the locations of any window displays.

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;

Elevations that show a warning sign that persons under the age of 18 must not enter the premises;

The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Without further written consent form the responsible authority, the use hereby permitted shall only operate during the following times:

No live sexual act shall take place within the Adult Sex Bookshop premises.
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 outside the building to the building, to the satisfaction of the responsible authority.
Except with the further consent of the responsible authority, no sexually explicit entertainment including cybersex internet booth shows or the like, shall be carried out on the premises at any time.

The amenity of the area must not be detrimentally affected by the development and/or use through the:

Transport of materials, goods or commodities to or from the land; 2. Appearance of any building, works or materials;

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

Presence of vermin; 2. Others as appropriate; or 3. In any other way.
Goods, materials, equipment and the like associated with the use of the land must not be displayed or stored outside the building, without the further written consent 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 external appearance of the Adult Sex bookshop shall at all times be kept in a neat and tidy condition.

Exterior lights must be installed in such positions to effectively illuminate all pathways, car parks and other public areas to the satisfaction of the Responsible Authority.
Outdoor lighting must be provided, designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on neighbouring land.

The location and details of the signage as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.
The signage must not be animated and no flashing or intermittent light(s) may be displayed.
The external signage lighting must be designed, baffled and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land.

This permit will expire if one of the following circumstances applies:
1. The development is not completed within two years of the date of this permit.
2. The use has not commenced within two years of the date of this permit.
3. The part of the permit that relates to advertising signs expires 15 years from the date of this permit.

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] I viewed the site prior to the hearing on 17 August 2008

[2] Gowans v Cardinia SC [2006] VCAT 2326 (14 November 2006)

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

Sextastic Pty Ltd v Frankston CC [2008] VCAT 1709

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Sextastic Pty Ltd v Frankston CC [2008] VCAT 1709 (21 August 2008)

Parties