Popular Pastimes Pty Ltd v Melbourne City Council
[2007] VSCA 188
•11 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5658 of 2006
| POPULAR PASTIMES PTY LTD | |
| Appellant | |
| v. | |
| MELBOURNE CITY COUNCIL | First Respondent |
| NORTH AND WEST MELBOURNE ASSOCIATION INC | Second Respondent |
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JUDGES: | WARREN CJ, NEAVE JA and OSBORN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 June 2007 | |
DATE OF JUDGMENT: | 11 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 188 | |
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PLANNING APPEAL from Victorian Civil and Administrative Tribunal decision to Trial division of Supreme Court allowed – subsequent appeal to Court of Appeal – existing use rights – brothel – question of law as to whether section 74(1) of the Prostitution Control Act 1994 applies to permit application for building and works to make additions to existing brothel – held as a matter of interpretation it does – permit prohibited – appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M.A. Dreyfus Q.C with Mr A.J. Ritchie | R.J Lewis |
| For the First Respondent | Mr C.J Canavan Q.C with Mr A Finanzio | Maddocks |
| For the Second Respondent | No appearance |
WARREN CJ:
I have had the benefit of reading the judgment of Osborn AJA and I agree with his Honour that the appeal should be dismissed. The issue in this case is whether the respondent is prohibited from granting the appellant a permit for an extension to an existing brothel by reason of s 74(1) of the Prostitution Control Act 1994 (‘the Act’). The context of that provision has been set out in the primary judgment of Osborn AJA. The section itself states:
74. Restriction on granting of permits
(1) The responsible authority must refuse to grant a permit for a use or
development of land for the purposes of the operation of a brothel if-
(a) the land is within an area that is zoned by a planning scheme as being primarily for residential use; or
(b) the land is within 100 metres or, in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and La Trobe Streets, 50 metres of a dwelling other than a caretaker's house; or
(c) except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, 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; or
(d) unless there exists special circumstances as set out in guidelines is sued by the Minister administering the Planning and Environment Act 1987, more than 6 rooms in the proposed brothel are to be used for prostitution.
More specifically, the issue is whether the proposed extension of the brothel by the appellants constitutes a ‘development’ for the purposes of the above section. Clearly, the ordinary and plain meaning of the word ‘development,’ taken by itself, is apt to encompass an extension of an existing building as well as the construction of a new building. However, there are two aspects to s 74(1), so the appellant submits, which make the interpretation of ‘development’ ambiguous.
First, when the word ‘development’ is considered in its wider context, ‘use or development of land for the purposes of the operation of a brothel,’ it may be argued that the word does not apply to pre-existing brothels. Inherent in this argument is the following reasoning: to say that land is ‘develop[ed]…for the purposes of the operation of a brothel’, is to presuppose that land is not already being used for the purposes of the operation of a brothel. This presupposition is based on the premise that land is not developed for a purpose which it already fulfils. This is a dubious assertion: as a matter of ordinary language, land is often ‘developed’ in order to augment the level of an activity already being lawfully carried out on that land. If the word ‘development’ is to be read together with the word ‘use’ as the one phrase, the premise is lent some weight: for it would be illogical to talk of an application for the ‘use…of land for the purposes of the operation of a brothel’ if such land is already lawfully being used as brothel; that is to say, a permit would not be required.
A second ambiguity is created by s 74(1)(d) in its reference to ‘the proposed brothel’: if s 74(1)(d) applies to ‘proposed brothels’ then, ex hypothesi, the section does not apply to brothels already in existence. It is unclear as a matter of construction whether this qualification to the concept of a brothel in s 74(1)(d) should, be held to qualify the concept of ‘development’ as expressed in the opening words of the section.
That is what I took to be the essence of the appellant’s submission on this point. At best, these points render the reading of ‘development’ in the context of the opening sentence ambiguous. These ambiguities should be resolved by reference to s 4(b) of the Act which stipulates that one of the objects of the Act is ‘to lessen the impact on the community and community amenities of the carrying on of prostitution-related activities’.[1] An extension to a brothel runs counter to this express legislative imperative. This leads me to resolve both ambiguities in favour of a construction that impedes the extension of existing brothels. Accordingly, the term ‘development’ should be interpreted to encompass both the construction and the
extension of brothels. For this reason, the appeal should be dismissed.
[1]See Interpretation of Legislation Act 1984, s 35(a); see also Mills v Meeking (1990) 169 CLR 214, 235.
I would also note that the extrinsic material relied upon by the appellant was of limited assistance in this case.[2] Clearly, the Attorney-General’s Second Reading Speech is focussed predominantly on restricting the location of brothels. Further, the Speech also indicates an intention to prohibit the establishment of brothels with more than six rooms. As is illustrated by the Second Reading Speech, the reason for the use of the term ‘the proposed brothel’ in s 74(1)(d) was probably to effectuate the legislative policy that already-established brothels should not be rendered illegal in their operation should they contain more than six rooms. However, none of these things allows for the legislature to be imputed with the positive intention to allow the extension of existing brothels. In light of the express statutory intention in s 4(b) and a plain reading of s 74(1), this would be the least required.
NEAVE, JA:
[2]There appears to be some controversy as to whether there must be some ambiguity before a court may, under s 35 of the Interpretation of Legislation Act 1984, resort to extrinsic materials: see D C Pearce and R Geddes, Statutory Interpretation in Australia (6th ed, 2006), 89-92. I make no incursion into that debate, except to say that, even if it is allowable to refer to extrinsic materials in this instance, then it is of little assistance.
For the reasons given by Osborn AJA, I agree that the appeal should be dismissed.
OSBORN AJA:
This is an appeal from a decision of Gillard J with respect to a question of law, brought before him on appeal from a decision of the Victorian Civil and Administrative Tribunal (the “Tribunal”) pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998.
The question in issue is whether the grant of a planning permit for a proposed addition to a brothel building located in Dudley Street, West Melbourne, is prohibited by the terms of s.74(1) of the Prostitution Control Act 1994 ( the “PC Act”).
More particularly the question is whether constraints imposed by s.74(1) of the PC Act upon the circumstances in which a permit may be granted with respect to a use or development for the purposes of the operation of a brothel, are intended to apply to permit applications in respect of proposed changes to an existing brothel operation.
Although the appeal is fundamentally concerned with the construction of s.74(1) of the PC Act, it is useful first to go to the relevant planning controls both in order to understand the genesis of the dispute and to understand the framework of various arguments put as to the consequences of competing constructions of s.74(1).
The Planning Controls
The premises are subject to the provisions of the Melbourne Planning Scheme (“the scheme”).
They are located within a Mixed Use Zone, and are also subject to a Heritage Overlay and a Design and Development Overlay.
As a result a planning permit for development is potentially required both pursuant to the zone controls and the overlay controls.
Development and building are relevantly defined by the Planning & Environment Act 1987 (the “P&E Act”) s.3:
“development” includes –
(a)the construction or exterior alteration or exterior decoration of a building; and
(b)the demolition or removal of a building or works; and
(c)the construction or carrying out of works; …
“building” includes -
(a)a structure and part of a building or a structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building;….
It follows that additions to an existing building will constitute development because they will comprise construction of part of a building.
For completeness it may be noted “use” is defined by the P&E Act as follows:
“use” in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed;
Clause 61.05 of the scheme provides:
Effect of this scheme
Land may be used or developed only in accordance with this scheme.
Land must not be developed unless the land as developed can be used in accordance with this scheme.
If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.
It follows that the right to develop is contingent in part upon the right to use land, but may also be subject to controls independent of use, as is the case with respect to the overlays affecting the subject land.
This scheme is further complicated by cl.62.02 of the Scheme, which provides that any requirement in the Scheme relating to the construction of a building or to the construction of or carrying out of works, does not apply to a long list of subject matters.[3] These include incidental structures and works such as street furniture, gardening works, and domestic rainwater tanks. More significantly perhaps they also include:
The internal rearrangement of a building or works provided the gross floor area of the building, or the size of the works, is not increased.
Repairs and routine maintenance to an existing building or works are also exempted.
[3]Unless the scheme itself specifically requires a permit with respect to such individual matters.
I return then to the use controls relevant in the present case and by reference to which the primary development controls pursuant to cl.61.05 are to be applied. Within the Mixed Use Zone, brothel is a s.3 (prohibited) use.
Brothel is defined by cl.74 of the Scheme as:
Land made available for prostitution by a person carrying on the business of providing prostitution services at the business’s premises.
The definition is taken from s.3 of the PC Act.
In the present case, however, the appellant has existing use rights, enabling the land to be used for the purpose of a brothel.
The basis of such rights is to be found firstly in s.6(3) and (4) of the P&E Act, which relevantly provide:
6. What can a planning scheme provide for?
…
(3)Subject to sub-sections (4) and (4A), nothing in any planning scheme or amendment shall—
(a)prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b)prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or
(c)prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d)prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e)require the removal or alteration of any lawfully constructed building or works.
(4) Sub-section (3) does not apply to a use of land—
(a)which has stopped for a continuous period of two years; or
(b)which has stopped for two or more periods which together total two years in any period of three years; or
(c)in the case of a use which is seasonal in nature, if the use does not take place for two years in succession.
It may be observed the existing use rights created by s.6(3) are formulated by reference to the existing state of development of the land, whether vacant, or the subject of buildings or works either complete or under construction.
In turn cl.63 of the scheme provides for existing uses relevantly as follows:
63.01 Extent of existing use rights
An existing use right is established in relation to use of land under this scheme if any of the following apply:
· The use was lawfully carried out immediately before the approval date. …
63.02 Characterisation of use
If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.
63.03 Effect of definitions on existing use rights
The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.
…
63.05 Sections 2 and 3 uses
A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:
· No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
· Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
· The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
63.06 Expiration of existing use rights
An existing use right expires if either:
· The use has stopped for a continuous period of 2 years, or has stopped for two or more periods which together total 2 years in any period of 3 years.
· In the case of a use which is seasonal in nature, the use does not take place for 2 years in succession.
It is to be noted existing use rights are to be formulated by reference to the actual continuing use and not the planning scheme definition.[4]
[4]Cf Shire of Perth v O’Keefe (1964) 110 CLR 529 (Kitto J at 535).
Further, cl.63.05 constrains both use and development. The right to continue the existing use is contingent upon permission for new buildings and works. Buildings or works developed without a permit do not simply constitute unlawful development but result in a breach of the existing use right.
In the present case it appears to be common ground that at the date of approval of the Scheme the land was lawfully used for the purposes of a brothel.
The circumstances giving rise to this right are summarised at paragraphs [3]-[6] of the decision of Gillard J.
Right to operate a brothel
On 24 March 1977, the Authority issued two permits under the relevant planning schemes permitting the occupier of the premises to operate a massage parlour at the premises. The endorsed plan at the time showed three massage rooms and various facilities, such as a lounge, billiards room, kitchen and bathrooms.
On 14 November 1984, an amendment to the Melbourne Metropolitan Planning Scheme (“M.M.P. Scheme”) was gazetted and it introduced a new sub-clause 25(a)(A), which provided ‑
“Notwithstanding anything to the contrary in this ordinance, land … which was on the second day of July 1984 lawfully used for the purpose of Massage Parlour pursuant to a permit under the Planning Scheme may … be used for the purpose of a Brothel.”
Clause 15-4 of the Melbourne Metropolitan Planning Scheme provided:
“Land used for a massage parlour under a permit on 2 July 1984 may after that date be used for a brothel.”
It was not in dispute that the premises were used for a massage parlour under the permits issued in 1977, and that on 2 July 1984, they were so used. Consequently, by reason of the amendment to the M.M.P. Scheme, the subject land was being lawfully used as a massage parlour and was permitted to be used thereafter as a brothel. It was used as a brothel. The right applies to the whole of the land upon which the existing building is located.
It follows that as at the date this matter came before the Tribunal a permit was required for “building or works” pursuant to cl.63.05.
On 23 July 2004 the appellant sought a permit for “building and works (addition to existing building)”. The existing use of the land was described as “brothel”.
The application for planning permit included an explanatory letter from a planning consultant to the head of the City of Melbourne (the “Council”) Planning Department. This commenced in the following terms:
We act on behalf of Popular Pastimes P/L, the owner of the above site. Our client wishes to carry out buildings and works to upgrade and refurbish the existing building in order to continue the successful brothel operation.
The existing brothel use of the land will continue. (My emphasis)
There followed an amplification of the nature of the proposed works, together with relevant enclosures including plans and elevations of the proposal, and a summary of the relevant planning controls and policies.
By notice dated 26 May 2005 the Council as responsible authority refused the application on two grounds:
·The proposed development is prohibited pursuant to s.74(1) of the PC Act.
·The proposal is an intensification of a prohibited use in a Mixed Use Zone.
On appeal the Tribunal ruled firstly by the decision of a legally qualified senior member, that the proposed development was not prohibited and secondly by the decision of a two member division, that it was appropriate on its planning merits.
The Council then appealed by leave to a single Judge of this Court. Gillard J in turn upheld the submission on appeal that the proposed development is prohibited by s.74(1) of the PC Act.
The appellant now seeks to appeal that decision.
The PC Act
Section 1 of the PC Act states that the main purpose of the Act is “to seek to control prostitution in Victoria.” The aspirational nature of this purpose is presumably explained by the historical difficulty which has been experienced in achieving such control.
Section 4 of the PC Act sets out the objects of the Act:
(a) to seek to protect children from sexual exploitation and coercion;
(b)to lessen the impact on the community and 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;
(da)to seek to ensure that no one person has at any one time an interest in more than one brothel licence or permit;
(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 inspectors, law enforcement officers, health workers and other social service providers;
(h)to promote the welfare and occupational health and safety of prostitutes.
It can be seen that the objects are directed to four relevant kinds of considerations. First, (d) is directed to the location of brothels. Secondly, (b) is directed at least in part to the amenity impacts of brothels. Thirdly, (c) and (da) are directed to regulating the persons involved with operating brothels (souteneur or bludgers to use the term in its original Australian sense). Fourthly, the balance of the objects are directed towards the social and health risks and impacts of brothels.
Part 4 of the PC Act provides for planning controls on brothels. Section 71 provides that words and expressions in this part of the PC Act have the same meanings as they have in the P&E Act. It follows from this provision that controls on the power of a responsible authority to grant a permit “for a use or development of land” are to be understood to use the terms “use or development of land” in the same sense as they are used in the P&E Act. Accordingly development of land will include additions to a building.
Section 72 provides for restrictions on the persons who may make application for planning permits in respect of the use or development of land for the purposes of the operation of a brothel.
Section 73 sets out matters to be considered by a responsible authority before exercising any discretion with respect to an application for a permit for use or development of land for the purposes of the operation of a brothel.
Section 74 relevantly provides:
74. Restriction on granting of permits
(1)The responsible authority must refuse to grant a permit for a use or development of land for the purposes of the operation of a brothel if—
(a)the land is within an area that is zoned by a planning scheme as being primarily for residential use; or
(b)the land is within 100 metres or, in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, 50 metres of a dwelling other than a caretaker's house; or
(c)except in the case of land within the area of the City of Melbourne bounded by Spring, Flinders, Spencer and LaTrobe Streets, 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; or
(d)unless there exists special circumstances as set out in guidelines issued by the Minister administering the Planning and Environment Act 1987, more than 6 rooms in the proposed brothel are to be used for prostitution.
…
(3)Despite section 71, in this section “development” does not include—
(a)the exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works.
In the present case the proposed additions to the building do not fall within the provisos stated by s.74(3). The development proposed goes beyond the exterior alteration or decoration of a building and the demolition or removal of a building or works.
The critical question is thus whether the development for which a permit is sought falls within the terms of s.74(1).
On its face the permit sought falls within the plain meaning of s.74(1). It is a permit for the development of land for the purposes of the operation of a brothel in circumstances where the land is within 100 metres of a dwelling other than a caretaker’s house.
The ordinary meaning of the words “for the purposes of the operation of a brothel” is reflected in the express terms in which the permit application was made, namely:
Buildings and works to upgrade and refurbish the existing building in order to continue the successful brothel operation.
Nevertheless, it can be seen that the combination of introductory words used in s.74(1) coupled with (a), (b) and (c) may be read as intended to give effect to the locational object stated in s.4 of the PC Act, namely “to seek to ensure that brothels are not located in residential areas or in areas frequented by children.” If they are so read then they will not sensibly apply to permits for a use or development in respect of an existing brothel. Such permits will not have the effect of locating a brothel in the areas proscribed. They will have the effect only of altering and potentially expanding the relevant use or development. These are matters, it is submitted by the appellant, appropriate to regulation by the permit process.
It is the appellant’s contention that s.74(1)(b) should be so construed as not applying to an existing brothel operation.
Principles of Interpretation
In Project Blue Sky Inc v ABA,[5] McHugh, Gummow, Kirby and Hayne JJ emphasised the need for consistency in the construction of statutory provisions:
[69]The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70]A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71]Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.[6]
[5](1998) 194 CLR 355.
[6]At 381, 382.
Their Honours went on to emphasise the distinction between literal meaning and the legal meaning of words read in context:
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[7]
[7]At 384.
In CIC Insurance Ltd v Bankstown Football Club Ltd[8] Brennan CJ, Dawson, Toohey and Gummow JJ stated:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous … [I]f the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.[9]
[8](1997) 187 CLR 384.
[9]At 408.
Section 35(a) of the Interpretation of Legislation Act 1984 further provides that in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object.
Section 35(b) provides that consideration may be given to any matter or document that is relevant including but not limited to –
(i)all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)reports of proceedings in any House of the Parliament.
Contextual Matters
In the present case the appellant draws attention to the Second Reading Speech with respect to the bill which introduced the PC Act.[10] The Attorney-General commenced that speech in the following terms:
[10]21 October 1994 House of Assembly.
This bill is intended to replace the Prostitution Regulation Act 1986. The Prostitution Regulation Act has never been fully proclaimed. When the Labor government attempted to rush the legislation through Parliament in 1986, the coalition parties put forward amendments that were passed by both houses.
The Labor government ignored the wishes of the elected representatives of the Victorian people. It refused to proclaim much of the act.
We have been left with piecemeal regulation of the prostitution industry in Victoria.
The police are not satisfied that their enforcement powers in respect of brothels are adequate. They are concerned about the effects of organised crime. Planning authorities are unhappy that they must consider the criminal histories of applicants for brothel planning permits, as it is the function of planning authorities to consider land use, not the character of land users. Since 1986 escort agencies have multiplied, so that most prostitutes in Victoria now work through escort agencies.
In December 1992 I set up a working party to examine the effectiveness of the Prostitution Regulation Act. There was at that time a great deal of community concern over the location of brothels.
In March 1993 this government responded to community concern by placing a moratorium on the granting of planning permits for brothels. The moratorium has remained in place through the review of the Prostitution Regulation Act and will be lifted when this legislation is proclaimed.
The working party recommended changes to the existing act. Those recommendations form the basis of this bill, although not all the recommendations of the working party are reflected in the bill.
The fact that the government is introducing legislation to control prostitution does not imply government support for prostitution. On the contrary, this government is opposed to prostitution in all its forms.
At the same time we cannot fool ourselves that an attempt to completely suppress prostitution through criminal sanctions will ever succeed.
Most Victorians recognise that prostitution will continue, whatever the law, as long as there is a demand for commercial sexual services.
The solution is a strict system of regulation. With a tough set of controls, we can raise a barrier against organised crime. We can protect our communities against the uncontrolled spread of brothels. We can afford some level of protection for those who have resorted to prostitution. Most importantly, we can guard our children from the effects of prostitution.
This introduction emphasises the political background to the PC Act. It describes the broad context in which the Government sought to control brothels. It specifically envisages a “tough set of controls”. It further specifically envisages protection of Victorian communities “against the uncontrolled spread of brothels”. This locational objective is accompanied by others, however, including objectives with respect to barriers to organised crime, protection of those working as prostitutes and protection of children from the effects of prostitution.
The Attorney went on to deal specifically with the question of planning controls in the following terms:
The planning controls on the location of brothels contained in the existing Act are inadequate. In this bill, the government is recognising community demands for strictly defined limitations on the location of brothels.
At present, planning authorities are required only to take into account the proximity of dwellings, churches, hospitals or other community facilities to proposed brothels. There are no fixed restrictions on the proximity of brothels to these kinds of premises. This bill removes the uncertainty in the law that has caused great concern to many in the community.
The planning controls in the bill will ensure that brothels are not established within 100 metres of dwellings or within 200 metres of places of worship, hospitals, schools and other places frequented by children for recreational and cultural activities. Clearly defined, but slightly less restrictive controls will apply within the central City of Melbourne, as land use in the city is more intense, with less obvious impact by brothels. However, no such business in the city will be established in proximity to dwellings, places of worship, child-care centres and places frequented by children for recreational and cultural activities.
Provisions in the existing act allow councils to prohibit brothels as a use in their localities. The normal power for the planning minister to approve, disapprove or vary blanket bans on a land use in a municipality is restricted. The provisions have not been proclaimed.
The government recognises that the provisions allowing total prohibition of brothels in individual municipalities could result in prohibitions throughout Victoria, thus rendering the legislation ineffective. The amendments were moved by the coalition parties in 1986 because the Labor government was rushing through ill-considered legislation. When concerned Victorians looked at that legislation, they could not see clear restrictions that guaranteed brothels would not be located close to their homes, hospitals, churches, and facilities used by children. With such uncertainty in the legislation, there was community demand for councils to have the power to ban brothels entirely.
The present bill sets out clear restrictions. This government is confident that, with the improved planning restrictions on the location of brothels, it is safe for normal planning practice to apply.
Current planning guidelines issued by the Minister for Planning provide that brothels should be prohibited in rural and farming zones, and prohibition has been permitted in small towns of approximately 20 to 25 000 persons or less. The establishment of a brothel will clearly have a far greater impact in areas of small population than it does in metropolitan areas. The government intends to maintain its policy in respect of rural and farming areas and smaller towns.
From the proclamation of the act onwards, a brothel will not be able to operate with more than six rooms used for prostitution. Any exception to that limit must be specified in guidelines issued by the Minister for Planning. Apart from existing brothels with more than six rooms, there may well be no such exceptions. A person may not have an interest in more than one planning permit for a brothel.
It can be seen that the primary policy thrust of the proposed planning controls was strict limitation upon the location of brothels. As a corollary the Government expressed confidence that with improved restrictions on the location of brothels, “it is safe for normal planning practice to apply”.
Significantly, however, the intent of the change effected by the legislation with respect to planning controls went beyond locational matters. As the paragraph last quoted above indicates, it was also intended to regulate the size of brothels and ownership of brothels by way of threshold prohibitions.
The policy objectives identified by the Attorney are comprehended by the main purpose identified in s.1 of the PC Act and respectively reflected in the different categories of objects set out in s.4, to which I have already made reference.
I turn then to the submissions made on behalf of the appellant.
The Terminology of Section 74(1)
It is submitted first that the expression “for the purpose of the operation of a brothel” is an odd expression and difficult of application. I do not agree. It is apt to describe circumstances in which a permit is sought or held nominally for another use such as massage parlour, but the real and substantial use of the land is that of a brothel. It is also apt to describe cases where there is another real and substantial use of the land such as a strip club or hotel, but a brothel is operated incidentally to such use.
Having said this, I accept that the phrase “the purpose of the operation of a brothel” originated from use controls under the Town & Country Planning Act 1961, and not development controls, but as I have endeavoured to explain, the development controls with which we are concerned are entwined with use controls dependent upon characterisation of use. Moreover this distinction is in my view of no real assistance in any event when s.74(1) regulates both use and development.
The concept of purpose found in the phrase “for the purpose of the operation of a brothel”, requires the real and substantial purpose of activity or development to be identified, in accordance with the distinction accepted in planning law between the cataloguing of actual uses and the identification of their underlying purpose. As Kitto J stated in Shire of Perth v O’Keefe.[11]
The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date.
[11]At 535. See also the discussion of the purposive definition of brothel in Samuels v Bosch (1972) 127 CLR 517.
The provisions of s.74(1) regulate the use and development of land by reference to considerations first of location and secondly of size. Section 74(1) refers to three categories of land in respect of which a permit for use or development for the purpose of the operation of a brothel is prohibited. It then contains a prohibition by reference to intensity of use.
This last prohibition is expressed by reference to “the proposed brothel”, it being the only prohibition by reference to characteristics of the brothel operation and not by reference to characteristics of the relevant land.
The first three prohibitions give effect to the objects stated at s.4(d) of the PC ACT, while the fourth gives effect to other objects.
It is difficult to gain much as to the proper construction of s.74(1)(a), (b) and (c) simply from the use of the words “the proposed brothel” in (d), because it is concerned with a different object. Sub-section (1)(d) is concerned with control of the scale of use of the brothel operation which will result from the grant of the permit application in issue. It reflects the intention expressed in the Second Reading Speech to strictly limit the number of rooms in brothels save in exceptional circumstances.
This is not to say however that s.74(1)(d) does not assist in interpreting s.74(1) as a whole. It cannot have been the intention of Parliament to limit the application of s.74(1)(d) to the establishment of new brothels. If it were so limited, then it would remain open to a brothel operator to evade the prohibition upon more than six rooms, by making sequential permit applications for components each of less than six rooms. Thus, in the present instance if s.74(1)(d) related only to new brothel operations, it would have been open to the owner to include within the additions to the existing brothel building extra rooms taking the total above six. This would defeat not only the background statement of intention contained in the Second Reading Speech, but achieve a result which is contrary to the apparent intent of the section itself.
If, however, the opening words of s.74(1) do introduce a control pursuant to s.74(1)(d) which applies to additions to existing brothel uses then they cannot be read as doing otherwise with respect to s.74(1)(a), (b) and (c). The introductory words of s.74(1) cannot mean one thing with respect to s.74(1)(a), (b) and (c), which follow, and another thing with respect to s.74(1)(d) which also follows.
In my view this is the determinative consideration in this case. If s.74(1) were restricted to locational criteria only and directed solely to the spread of brothels in accordance with the primary concern expressed in the Second Reading Speech, I would be prepared to read it in the manner for which the appellant contends. The fundamental difficulty confronting the appellant is that s.74(1) is not so limited. It extends to the pursuit of objects other than locational objects and does so by way of a limitation upon brothel operation size. It is clear that this element of s.74(1) is intended to apply to alterations to existing brothel operations and this being so, s.74(1) as a whole must be interpreted as having this scope.
The introductory words of Section 74(1) must be given a consistent meaning in accordance with the passages first quoted above from the Project Blue Sky case, so that they have the same meaning with respect to each of the four subparagraphs which follow.
Section 73
The matters specified in s.73 as matters to be considered before deciding on an application for a permit for a use or development of land for the purpose of the operation of a brothel, include two which are expressed as follows:
(j)the proposed size of the brothel and the number of people that it is proposed will be working in it;
(k) the proposed method and hours of operation of the brothel.
Unlike s.74(1)(d) neither of these matters refers in terms to the “proposed brothel”. What is referred to are proposed characteristics of the brothel operation. In my view these references do not assist in the interpretation of s.74(1). They are the natural way to describe components of a permit application.
Other Considerations
It was submitted on behalf of the appellant that to construe s.74(1) so as to apply to additions to existing brothels would have absurd and unreasonable results.
There are three answers to this proposition. First, s.74(3) demonstrates Parliament addressed this issue and expressly excluded categories of development, in respect of which, in its view s.74(1) might occasion hardship. In these circumstances there is no room to derive an implication s.74(1) should be further read down to minimise such hardship. Secondly, insofar as it is legitimate to construe the Act by considering its relationship with the Scheme (which may be doubted) cl.62.02 of the Scheme provides a series of exemptions to development controls, which provide substantial relief from the hardship that would otherwise result from a total prohibition of future development.[12] It thereby demonstrates the “hardship” complained of is a function both of the PC Act and the detailed provisions of the Scheme. It is not a necessary consequence of the PC Act. Thirdly, the restriction of the application of s.74(1)(d) to applications for the establishment of new brothels would as I have said, itself produce absurd results.
[12]By reason of cl.62.02 internal reconfiguration to provide for a new waiting room or wash room, does not require a permit. Nor in most cases would tree removal require a permit. Further, if tree removal of protected vegetation were required for safety reasons, it is doubtful the permit would be “for the purpose of the operation of a brothel” in any event. The above examples of alleged prohibition of new waiting room and wash room development, and potential prohibition of tree removal were ones advanced on behalf of the appellant as demonstrating absurdity. They demonstrate rather that the scheme addresses these issues.
It was further submitted s.74(1) of the PC Act should be read down so as not to interfere with vested property rights. Section 74(1) does not in my view interfere with existing property rights, rather as Gillard J observed, it imposes constraints on potential proposed use and development. More precisely it precludes some applications for permits for use or development for the purposes of a brothel operation. In so doing it is fundamentally no different from many planning controls which prohibit new use and development for some purposes but allow new use and development for other purposes.
Conclusion
For the above reasons the decision of Gillard J should be upheld and the appeal should be dismissed.
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