Victorian Civil and Administrative Tribunal|2012-05-22

Bacceney Pty Ltd v Ballarat CC (Correction) [2012] VCAT 544 (22 May 2012)

Bacceney Pty Ltd v Ballarat CC (Correction) [2012] VCAT 544

Pursuant to Section 119 of the Victorian Civil and Administrative Tribunal Act , the Tribunal's Order in Application 2133/2011 dated 30 April 2011 is corrected as follows:

The gaming room must only operate between the following hours:

(a) Mondays to Wednesdays 9.00am to 1.00am the following day;

(b) Thursdays to Saturdays 9.00am to 3.00am the following day

(including the mornings of Good Friday and Anzac Day);

(b) The date of the original hearing is corrected to 11 April 2012. The date of the original order is corrected to 30 April 2012.

By order dated 30 April 2012, the Tribunal granted a permit to use land at 221 Main Road Golden Point for the purpose of installing 9 gaming machines.
By letter dated 10 May 2012, Bazzani Scully Brand acting for the permit applicant drew the Tribunal's attention to what they suggested was an error within the Tribunal's order, and submitted that the Order should be corrected. The error is in Condition 2 (b) which specifies a 1.00am closing time instead of 3.00am. We also note that the date of hearing and date of order on the cover page of the decision incorrectly referred to the year 2011 rather than 2012.
Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:

a clerical mistake; 2. an error arising from an accidental slip or omission;

a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or

a defect of form.
We are satisfied that a mistake or error has occurred here, comprising a clerical mistake, and find it appropriate to authorise a correction of the order.

By order dated 30 April 2012, the Tribunal granted a permit to use land at 221 Main Road Golden Point for the purpose of installing 9 gaming machines.
By letter dated 10 May 2012, Bazzani Scully Brand acting for the permit applicant drew the Tribunal's attention to what they suggested was an error within the Tribunal's order, and submitted that the Order should be corrected. The error is in Condition 2 (b) which specifies a 1.00am closing time instead of 3.00am. We also note that the date of hearing and date of order on the cover page of the decision incorrectly referred to the year 2011 rather than 2012.
Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal may correct an order made by it if the order contains:
1. a clerical mistake;
2. an error arising from an accidental slip or omission;
3. a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
4. a defect of form.
We are satisfied that a mistake or error has occurred here, comprising a clerical mistake, and find it appropriate to authorise a correction of the order.

Section 77 of the Planning & Environment Act 1987; Ballarat Planning Scheme;

Additional electronic gaming machines (EGM's) - existing premises, - social and economic impacts, - site's location, - adopted Council policy.

Bacceney Pty Ltd v Ballarat CC [2012] VCAT 544

Pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998:
- (a) The application for permit is amended to include a request for a permit for the installation and use of 54 electronic gaming machines (existing and proposed).
The decision of the responsible authority in relation to permit application no. PLP/2010/871is set aside.
Insert order as follows:

A permit is granted in relation to land at 221 Main Road, Golden Point. The permit will allow

the installation and use of 54 electronic gaming machines (existing and proposed).

generally in accordance with the endorsed plans and subject to the following conditions:-

The layout of the use on the endorsed plans must not be altered without the written consent of the responsible authority.

The gaming room must only operate between the following hours:

Mondays to Wednesdays 9.00am to 1.00am the following day;
Thursdays to Saturdays 9.00am to 1.00am the following day

(including the mornings of Good Friday and Anzac Day);

At all times during the operation of the use, there must be present on the premises a person over the age of 18 years who is responsible for ensuring that the activities on the premises and the conduct of persons attending the premises do not have a detrimental impact on the amenity of the locality to the satisfaction of the responsible authority (referred to in the permit as 'the manager').

The manager must be authorised by the operator under this permit to make statements at any time on his/her behalf to any officer of the responsible authority and of the Victoria Police and/or of the Victorian Commission for Gambling and Liquor Regulation authorised under section 129 of the Liquor Control Reform Act 1998; and to take action on his/her behalf in accordance with a direction from such officer.

Unless the additional 9 machines allowed by this permit are installed and used within two years of the date of this permit or any extension of such period which the responsible authority may grant in writing within three months of the prescribed expiry date, this permit will lapse.

Ms Susan Brennan, barrister, instructed by Bazzani Scully Brand lawyers.

Ms Sophie Jordan, town planner of Sophie Jordan Consulting Pty Ltd

It is proposed to install and use nine additional electronic gaming machines (EGM's) in the existing gaming room of the Red Lion Hotel, Golden Point. If approved, this would increase the number of EGM's from 45 to 54.

Application under Section 77 of the Planning and Environment Act 1987.

The site and surrounding land are in the Residential 1 Zone. Main Road, Golden Point is in a Road Zone Category 1.

Clause 52.28-2 to install and use electronic gaming machines (EGM's).

Clauses 10.02, 11.01, 11.05, 17.01, 19.02, 21.03, 21.04, 21.05, 22.0, 52.28 and 65.

The Red Lion Hotel is a long established venue comprising a hotel, motel and conference centre with at grade car parking.

The hotel building contains a restaurant, café and bar, sports bar with TAB, function room, gaming room and enclosed children's playground.

The motel has 49 rooms, 5 self-contained apartments/cottages and a range of recreational facilities.

The conference centre provides facilities for groups numbering between 20 and 100.

There have been electronic gaming machines at the venue since 1992, with the current number of 45 machines being in place since 2004.

Rennie v Darebin CC [2010] VCAT 1719

Bright Newbay Pty Ltd v Bayside CC [2010] VCAT 1347

Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364

Richmond Football Club Ktd v Knox CC [2010] VCAT 1913

Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors (includes Summary) (Red Dot) [2009] VCAT 2616.

In June 2011, the Ballarat City Council determined to refuse to grant a permit for the installation and use of 9 additional electronic gaming machines at the Red Lion Hotel. The permit applicant has sought a review of this decision.
The key issues for determination are:
- Is the Red Lion Hotel in an appropriate location for these additional EGM's on socio-economic grounds?
- Is the Red Lion Hotel an appropriate premises for these additional EGM's?
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Ballarat Planning Scheme, we have decided to grant a permit. Our reasons follow.

Is the Red Lion Hotel in an appropriate location for these additional EGM's on socio-economic grounds?

The purposes of clause 52.28 are relevantly:
- To ensure that gaming machines are situated in appropriate locations and premises; and
- To ensure the social and economic impacts of the location of gaming machines are considered.
The Council contends that the Red Lion Hotel is in a locality that shows considerable signs of socio-economic disadvantage as over half the suburbs located within 5km distance are amongst the 20% of most socio-economically disadvantaged suburbs in Victoria (based on the SEIFA index of Relative Socio-Economic Disadvantage).
Council submits that levels of expenditure from electronic gaming machines in the Ballarat municipality is significantly higher than the State average and that the locality of Golden Point provides 27% of all expenditure in the municipality.
Council refers to the decision of the Tribunal in Rennie v Darebin CC [2010] VCAT 1719 where the number of venues with electronic gaming machines within 5km of the proposed site was a relevant consideration.
Council acknowledges that approximately 40% of gaming revenue of the Red Lion Hotel is generated from outside the Ballarat municipal district, (which was consistent with the hotel's role in providing motel accommodation and conference facilities). However, it submits that the remaining 60% of expenditure, which comes from within the municipality, is significant on its own.
The Council also contends that, as such, the proposal is contrary to its Gaming Machine Community Policy which has informed Council's decision on the permit application.
We were advised that the Council had adopted this policy in November 2010. It states at Policy 4 that:

The City of Ballarat will limit the accessibility of EGMs by:

Ensuring the number of EGMs does not exceed the current Regional Cap for the City of Ballarat of 663 EGMs.

Assessing applications taking into consideration: the location of the venue, harm minimisation measures adopted by the venue, and the likely impact on the community.

Further developing a framework that clearly defines the suitability or otherwise of proposed EGM venue locations to be detailed in a schedule to the Gaming Policy.

Under the heading 'Accessibility', the policy describes that 82% of residents of the City of Ballarat live within 2.5 kilometres of a gaming venue and that gaming venues should not be located in areas with a low score on the SEIFA index rather the policy encourages the provision of EGMs in the Ballarat CBD and tourism precincts.
The policy formed the basis for further work, being the Ballarat Gaming Policy Framework (November 2011) which, in turn, is the basis for Amendment C154 to the Ballarat Planning Scheme. This Amendment was exhibited in March 2012.
The Council also contends that the proposal is contrary to the policy's objective that gaming venues should not be located near uses associated with people's day to day activities as it is located within 200 metres of the Salvation Army's Ballarat Community Church.
When questioned, Council's advocate acknowledged that the Victorian Commission for Gambling Regulation (VCGR) November 2011decision to allow this proposal on the basis that: a further nine additional EGMs at the venue will result in either a neutral or positive impact on the community [paragraph 58] is relevant to our deliberations.
We will address these submissions in turn.
We are not persuaded that the level of socio-economic disadvantage within 5 kilometres of the Red Lion Hotel is such that an additional 9 EGMs should be refused. Submissions were made on behalf of the permit applicant that evidence provided at the VCGR hearing that only a small proportion within the local catchment live in a disadvantaged area and that this catchment is less disadvantaged than the areas around most Ballarat venues.
This proposal can be distinguished from the circumstances in the Rennie decision in that the density of gaming machines in the 5 kilometre distance is substantially less, the proposal is for a small number of additional EGMs and a significant proportion of revenue is generated from tourists and visitors.
In terms of the Council's Gaming Machine Community Policy, we note that it is an adopted policy of the Council although is not part of the Ballarat Planning Scheme. We acknowledge that Council is progressing a gaming policy through Amendment C154 to the Scheme, however, this Amendment has not been reviewed by an Independent Planning Panel or approved by the Minister for Planning. Accordingly, we give this policy limited weight.
The policy provides support for gaming at the Red Lion Hotel. The policy acknowledges gaming's role in tourism and it is clear that the Hotel provides tourist facilities and that much of the gaming expenditure is from this clientele. The Red Lion Hotel is located in a tourist precinct.
We acknowledge that the Salvation Army church is nearby yet note that it, like the Red Lion Hotel, is a stand alone use located on Main Road. We think the church is a destination in itself rather than a use associated with people's day to day activities envisaged by Council's policy.
Most importantly, the finding of the VCGR is particularly relevant. Council's advocate agreed that the submissions made on socio-economic issues had been thoroughly canvassed at the VCGR hearing. The VCGR also had the benefit of extensive expert evidence both for and against the proposal. Further to this, the evidence considered by the VCGR referred specifically to the characteristics of the Red Lion Hotel's location rather than being municipal-wide.
We place great weight on the VCGR's decision and agree the proposal will have either a neutral or a positive impact on the community in terms of socio-economic impacts.

Is the Red Lion Hotel an appropriate premises for these additional EGM's?

It was common ground that the proposal does not seek to change the current operation of the Red Lion Hotel and that there are no adverse amenity impacts associated with the hours of operation or car parking associated with the venue.
The Council contends that during the late evening and early morning hours, the gaming room is the dominant use in the Hotel and as such, the venue does not provide a full range of facilities.
We do not accept this contention. We consider that the Red Lion Hotel has a wide range of facilities available to patrons. In addition to the gaming room, there are two dining areas, a children's playground, a sports bar, a function room, a conference facility, a motel and cottages/apartments. Within the context, the gaming room is not a dominant use but part of a larger complex. It is common in such facilities for gaming rooms to be open into the evening and early morning without this constituting a dominant use.
Evidence was also presented to the effect that the busiest time in the gaming room was early on Friday evenings, when patronage in the dining rooms and bars was high. This indicates the gaming room is an integral part of the venue, not a dominant use.

We have decided that the proposal is satisfactory. The decision of the responsible authority will be set aside and a permit is granted.

[1] We have considered all submissions presented by the parties although we do not recite all of the contents in these reasons.

Environment Act 1987

Control Reform Act 1998

Bacceney Pty Ltd v Ballarat CC

At a glance

Court

Decision date

Source

Judgment (55 paragraphs)

Bacceney Pty Ltd v Ballarat CC (Correction) [2012] VCAT 544 (22 May 2012)

Parties

Legislation Cited (2)