Beretta's Langwarrin Pty Ltd v Frankston CC

Beretta's Langwarrin Pty Ltd v Frankston CC - [2009] VCAT 74 - VCAT 2009 case summary — Zoe

[16]

The land at 220 Cranbourne-Frankston Road in Langwarrin features the Langwarrin Hotel. The hotel is situated on a large site of about 2.6 hectares that, apart from the main hotel building, features a large car parking area with associated landscaping and a drive through bottle shop in its north-western corner. The hotel is a large operation which features a main/sports bar and TAB, indoor and outdoor dining areas with a total dining capacity of around 450 patrons, four lounge areas, a children's playground, together with an existing gaming area with 44 existing electronic gaming machines.
It is common ground that this hotel has operated for many years on the site, and has recently had the benefit of a major refurbishment apparently costing $8 million. Hence it was accepted by all parties at the hearing of this matter that the hotel is now an upmarket and attractive venue that performs a significant social function within Langwarrin, and which is well run and operated. The Tribunal has inspected the hotel and endorses this assessment.
The hotel is situated to the southwest of the main shopping centre in the township. On the opposite side of Cranbourne-Frankston Road to the north is Lloyd Park. To the west and south of the site are open space areas, with the former featuring a creek/drainage reserve and a retirement village further west again. The land to the east (on the other side of Union Road) is a medical centre and a vacant site. We were told at the hearing of this matter that the Applicant is in the process of purchasing this vacant land, with the intention of building a motel facility at a future stage.
The Applicant proposes to increase the number of electronic gaming machines ("EGMs") by an additional 16 EGMs, taking the total number from 44 to 60 and increasing the relevant floor area for EGMs from 155.4 to 200 square metres. Ms Brennan indicated at the hearing that gaming machines have existed at the hotel for 10 years or so. The application plans show that there is a "lounge" area available for conversion so as to allow the 16 additional EGMs to be installed, involving only minor internal alterations. The Applicant has indicated that if it receives planning approval for the proposal, it will make a $40,000 additional annual contribution (above and beyond the $40,000 annual community contribution it is already making) to a local community project fund and that it intends to then proceed with building the new motel on the vacant land.
By way of context, the Applicant has obtained gaming approval for the 16 new EGMs from the Victorian Commission for Gaming Regulation in its decision dated 12 August 2008. Council had appeal rights against this approval but chose not to initiate any such appeal.
In now seeking planning approval for the proposal, the Applicant has sought the Tribunal's review of the Council's failure to make a decision regarding the planning permit application within the statutory 60 day period.
The hearing of this matter came before us on 27 October 2008. There were no objectors involved in the hearing. During the hearing we received expert planning evidence from Mr Daniel Soussan of Ratio Consultants who was called by the Applicant. At the hearing Council took the position of opposing the proposal. In particular, Council argued that to justify planning approval for the proposal, the Applicant would need to establish that a "net community benefit" would be created. Council submitted that no such net community benefit will arise, due to community opposition to the proposal, the Langwarrin Hotel being an inappropriate location for 16 additional EGMs, and the municipality of Frankston already experiencing high levels of gaming by metropolitan standards.
After the hearing the Tribunal conducted an inspection of the hotel premises and also walked from the hotel to the nearest entrance of the Langwarrin Shopping Centre, taking note of the interface between the two activities.
To our knowledge this is the first situation where an applicant has obtained approval for the proposed new EGMs under the gaming legislation without that gaming approval being appealed by Council, but where this Tribunal has then been required to consider the planning merits of the new EGMs including taking into account the relatively new Clause 52.28[1] of the Planning Scheme. Accordingly, while we have carefully considered the previous decisions on point, this review has turned on its own facts and been strongly influenced by the relevant provisions of Clause 52.28.
With respect to the contents of the balance of this decision, in the first sections we summarise the key findings of the Gaming Commission decision, clarify the scope of our decision making role, and explain why we have proceeded on the basis that the standard to be met by the proposal is a "net community benefit" pursuant to Clause 11 of the Planning Scheme.
In then dealing with the planning issues, we see four key questions which need to be addressed, being:
- does the appeal site form part of the Langwarrin Shopping Centre?;
- what are the merits of the proposal when assessed against Clause 52.28 of the Planning Scheme?;
- if the proposal is assessed favourably against clause 52.28, are there any significant identified problems with the proposal that need to be counter-balanced? We are thinking here notably of the results of a community telephone survey initiated by Council, plus Council's concern whether any new EGMs would be better located in Frankston CAD; and
- will the proposal ultimately achieve a net community benefit?.
In summary, we have found that a strong case exists for the planning approval of the proposal under Clause 52.28. In particular, we see the positive features of the proposal as including the significant buffer area between the hotel and the other nearby uses, the high standard of the fitout and day to day operation of the hotel, the strong evidence as to the high level of public usage of the hotel and demand for additional EGMs, together with the demographic evidence presented to us which indicates that Langwarrin's local community features relatively low levels of social disadvantage.
We have given careful consideration to the community survey information provided by Council at the hearing, but have concluded that this information carries less weight than the strong credentials of the proposal under Clause 52.28. With respect to Council's concern whether any EGMs should be better located in the Frankston CAD, we are struggling to see any real force to this argument where:
- there is no specific local gaming policy in the Planning Scheme to this effect; and
- the evidence presented to us at the hearing indicates that at peak times there is currently a shortage of EGMs in the hotel, and that the Langwarrin has a relatively low level of social disadvantage.
In the final result, we see the proposal as achieving a net community benefit, so as to be deserving of the 16 additional EGMs being given planning approval. We have however endorsed the two step process discussed at the hearing, whereby our approval will initially allow for 8 additional EGMs. The permit conditions will include a condition providing that the other 8 approved EGMs will only be allowed to be installed once the anticipated new motel facility to the east has been constructed by the Applicant to Council's satisfaction.

[28]

The Commission in the following pages then considers certain community surveys which were carried out by Frankston City Council in relation to the proposal for the 16 additional EGMs. In particular, a telephone survey was carried out, with participants being randomly selected from the electronic white pages telephone directory by using the postcode area 3910 which is the postcode for Langwarrin. The Council then collated the results. The opening question in the telephone survey was "Do you support the approval of an additional 16 poker machines being installed at the Langwarrin Hotel". There were also various subsequent questions.
Paragraphs 45 and 46, the Commission comments as follows regarding the results of this telephone survey, with particular reference to the first question.
1. A problem with a survey of this kind, is that respondents were only presented with part of the picture. They were informed the application by the applicant for additional egms, but they were not informed of other matters surrounding the application. In this case we would have thought that the most relevant matters were the applicant's statement, which was emphasised through Mr Beretta's and other witness statements, that if the application was granted and a motel with conference (function facilities) would be built across the road from the hotel. We would have thought also that the offer of the applicant to make the furthest significant contribution to the Langwarrin Community Project might have been mentioned.
2. The telephone survey produced a response showing that a significant majority of respondents answered no to the first question. We are of the view, given the lack of any additional information in the question, that this is not surprising.
However, as per the Court of Appeal's findings in the Romsey decision, the Commission nevertheless stated at the end of paragraph 47 that "We are of the view that a person's belief as to the benefits which may flow from the introduction of any egms is a relevant matter notwithstanding whether that person supports or does not support additional egms"
In moving on to the issue of whether the additional 16 EGMs will create additional gaming expenditure, the Commission indicated at paragraph 59 that it was satisfied with an estimate of $1.05m increase expenditure as being reasonable in terms of the additional gaming generated by the proposal. The Commission also accepted that 54% of this $1.05m additional gaming figure would be transferred from other gaming venues already operating within the City of Frankston.
The Commission then at paragraphs 70-78 focused on the advantages and disadvantages associated with the proposal - we have set out these paragraphs at Appendix B to this decision. In overview, the Commission accepted that there is a strong case that there is an inadequate number of EGMs presently at the hotel. The Commission saw the Applicant's offer to make a significant annual contribution to a local community project as a positive feature of the proposal, and also gave weight to the Applicant's stated intent to build a new motel on the vacant site to the west if the new EGMs are approved.
The Commission took note of the unfavourable survey results presented by Council but regarded these results as carrying limited weight. Rather, the Commission's main reservation about the proposal was the existing level of gaming expenditure across the whole of the Frankston municipality, which is 8% above the metropolitan average. However the Commission ultimately saw the "strongly positive features" of the proposal as deserving approval.
The final paragraphs include clarification at paragraphs 79 and 80 that the Commission is approving the 16 additional EGMs on the basis that the second round of 8 additional EGMs will only be available once the proposed motel facilities have been constructed and are ready for occupation.

[40]

The important point for our purposes is that pursuant to Clause 11, where a planning permit applicant puts forward its case as to the planning merits of a proposal, it must do more than demonstrate that the proposal will not cause any net planning detriment. Similarly, it is not enough for the applicant to demonstrate that the proposal will maintain a "break even" situation in terms of its net community impacts. Rather, it is clear under Clause 11 that an applicant must demonstrate that the proposal will go beyond "break even" to create a net community benefit ie a positive planning outcome. If one was using an old fashioned set of scales to balance on one side the potential negative impacts of the proposal and on the other side the potential positive impacts, the proposal must tip the scales at least 1% towards a positive net community benefit.
This can be contrasted to the less onerous benchmark set under the Gambling Regulation Act 2003 which we have already set out above, where Section 3.3.7(1) requires the Commission to at least find that the proposal will not cause any net community detriment. The same test applies in relation to any amendment to any existing venue operator's gaming licence under Section 3.4.20(1)(c) of the 2003 Act.
Both the Applicant's advocate Ms Brennan and its planning witness Mr Soussan put forward the view that Clause 11.02 is not applicable to this proceeding, due to the absence of any specific gaming policy in the State Planning Policy Framework ("SPPF"). Following this line of thinking, the benchmark for assessing whether the proposal before us deserves planning approval is the same one used by the Gaming Commission ie we must find the absence of any net community detriment. This line of thinking was contested by Mr Rantino, who argued that Clause 11 applies in the usual way, and on this basis the Applicant must establish a net community benefit on the planning merits.
To the extent that this debate regarding the role of Clause 11 is a legal issue, the Tribunal's findings are by Member Martin alone as the Legal Member.
The Tribunal's conclusion on this issue is that Clause 11 is applicable, and the Applicant must demonstrate more than the absence of any net community detriment. The Applicant must go beyond break even situation to demonstrate that the proposal will lead to a net community benefit as required by Clause 11. Our conclusions here are consistent with the approach taken in the Tribunal in Walker Corporation & Ors v Wyndham City Council [2007] VCAT 1396.
Whilst it is true that the SPPF does not include any specific gaming policy, nevertheless in the Tribunal's view it still contains certain policies relevant to the proposal. For example, at Clause 12.01-2 (under the heading "A more compact city") there are various strategies set out for the development of activity centres, at least some of which are relevant to the proposal. See for instance (with the Tribunal's emphasis) the strategy in the first bullet point of developing a network of activity centres that (amongst other things) "...Is a focus for business, shopping, working, leisure and community facilities". Similarly, Clause 17 of the Planning Scheme dealing with Economic Development includes Clause 17.01 regarding Activity centres. Under Clause 17.01-2 the implementation of activity centre policy should include (amongst other measures) incorporating and integrating "...a variety of land uses, including retail, office, education, human services, community facilities, recreation, entertainment and residential uses where appropriate" (with the Tribunal's highlighting).

[41]

The site already has the benefit of many previous planning permits associated with the hotel operation - to avoid duplication, we endorse the summary of these permits set out at page 6 of the Council written submission.
The appeal site is located within a Business 5 zone. Although they play no role in our decision, the site is also affected by the following overlay controls - a Development Plan Overlay Schedule 1, an Environmental Significance Overlay Schedule 1 and a Special Building Overlay. Langwarrin is designated as a "community centre" in the activity centre hierarchy within the Frankston municipality - see Clause 21.05 of the Planning Scheme.
Although there are sections of metropolitan Melbourne where the Victorian Government since 18 October 2006 has introduced regional capped areas for gaming machines, the appeal site does not fall in one of these areas.
We have already indicated that the only permit trigger for this proposal is Clause 52.28 dealing with gaming. We have quoted the objectives of this clause above.
Clauses 52.28-3 and 52.28-4 prohibit the installation or use of a gaming machine in a shopping complex or strip shopping centre if same is specified in the Schedule to Clause 52.28. Langwarrin Shopping Centre is one of these specified shopping areas under the Schedule - see our discussion of this issue below..
Clause 52.28-6 sets out the following decision guidelines in relation to gaming proposals considered under the clause:
- The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
- The compatibility of the proposal with adjoining and nearby land uses.
- The capability of the site to accommodate the proposal.
- Whether the gaming premises provides a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons.
The relevant state policies include Clauses 11, 12 and 17, with particular reference to those provisions setting out activity centre policy. There is no state policy in relation to gaming.
With respect to Council's Municipal Strategic Statement and local policies, there is a general statement of Council's land use planning visions at Clause 21.03. Paragraphs 47 and 48 of the Council written submission relevantly state as follows.

[53]

The first objective of Clause 52.28 requires us to consider whether the proposed EGMs are "... situated in appropriate locations and premises". Hence a critical aspect of our review is the merits and suitability of the Langwarrin Hotel itself, as a venue for 16 additional EGMs. It also needs to be understood that this issue is not about the suitability of the hotel for gaming per se (44 EGMs already exist) but its suitability for 16 additional EGMs.
In this regard, Mr Rantino conceded from the outset of the hearing that Council accepts that the Langwarrin Hotel is a very upmarket, attractive and well run establishment, bearing in mind the recent substantial refurbishment of the building. This was confirmed by the Tribunal's inspection of the hotel premises. In particular:
- The hotel provides a full range of services. Hence even with the installation of the 16 new EGMs, the whole gaming area will still constitute only part of the overall hotel floor area and the range of facilities available. We note that at paragraph 16 of its decision, the Gaming Commission stated that "It must be said that gaming plays a relatively minor role in the operations of this hotel, and this will not change greatly if the application is granted".
- The hotel has a busy/strong dining aspect, apparently serving in the order of 3500-4000 meals per week, where we were told by the Applicant that it is a common pattern for some evening diners to wish to use the EGMs for entertainment after having their meal.
- The 16 additional EGMs can be readily accommodated by freeing up the existing lounge area next to the existing EGMs, with only minimal internal alterations involved. This would still leave other lounge areas available to patrons.
- In terms of the type of patron that the hotel is pitching itself to, with the recent refurbishment and upmarket fitout and appearance, there seems little doubt that the hotel is aiming to boost its patronage to include more affluent patrons.
In addition, other suitable features of the Langwarrin Hotel are that it already operates a significant number of gaming machines (ie the 16 new EGMs will not be a brand new activity) and there is strong evidence of a current unmet demand for additional EGMs.
In particular, we accept the planning evidence of Mr Soussan (who presented to us in a helpful and credible manner) that the available information indicates that:
- the refurbishment of the hotel has boosted its patronage, in particular with diners; and
- with this increased patronage, a tension has arisen in the form of peak periods where the 44 existing EGMs are inadequate to comfortably meet the patron demand for gaming machines.
We refer here to the detailed survey information included at the back of the written report of Mr Soussan, which highlighted those periods (typically in the evening, and notably on a Thursday, Friday and Saturday evening) where there is an over-demand for the 44 existing gaming machines. In this regard, we note Mr Soussan's explanation that during these peak periods it is not so much that every single machine is automatically being used, but more that particular patrons may prefer a particular type of and/or example of a EGM. The Tribunal's inspection highlighted that there are different types of EGMS available to use, including one cent, two cent, five cent and one dollar machines. Mr Soussan commented that certain patrons simply have a favourite machine and are prepared to wait if someone else is already using it.
Mr Soussan indicated that the practical result is that in peak periods most EGMs are being used plus there can be queuing for the more popular machines.
In summary, we are satisfied that the Langwarrin Hotel is very suitable and appropriate hotel premises for 16 additional EGMs to be installed. In making this finding, we rely on the equivalent conclusion reached by the Gaming Commission in its decision[2].

[55]

The second objective of Clause 52.28 is "To ensure the social and economic impacts of the location of gaming machines are considered".
Having already considered the merits of the Langwarrin Hotel, we see this second objective as turning on the extent of any expected social and/or economic impacts on the Langwarrin local community arising from the 16 additional EGMs, bearing in mind the demographic features of this locality.
At page 22 of Mr Soussan's expert report he confirms that the estimated additional non-transferred gaming expenditure that would arise from the 16 new EGMs would be about $484,000 per annum. In addition, there would be another half of million dollars or so annually of gaming expenditure which represents patrons who will switch to the new EGMs rather than using other gaming venues within Frankston municipality.
There was no evidence called by Council at the hearing regarding the likely social and economic impacts of this additional gaming expenditure on the local community. For example, no evidence was called regarding the extent to which the proposal will exacerbate any existing level of problem gambling in Langwarrin.
The Applicant did call expert planning evidence from Mr Soussan, whose evidence was to the effect that there will be no significant social or economic negative impacts on the Langwarrin local community if the 16 additional EGMs are installed. That is, the Langwarrin local community has some particular demographic features which are favourable in terms of the potential installation of 16 additional EGMs, such as:
- In relation to the SEIFA Index of Disadvantage, Langwarrin (taking its postcode area) sits within the 25% of least disadvantaged postcode areas in Victoria.
- Unemployment in Langwarrin is substantially lower than the average figure for Melbourne and Victoria.
- Household income levels in Langwarrin are more likely to be in the "middle income" category rather than the "lower income" category when compared to the MSD and Victoria.
- Other statistics at the top of page 21 demonstrate that typical income levels in Langwarrin compare favourably to average income levels in the MSD and Victoria.
In summary, we are satisfied that this second objective is met here, given these particular (favourable) demographical characteristics of Langwarrin. This is consistent with the comments of Justice Morris in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation [2005] VCAT 2606, where His Honour at paragraph 33 expresses support for the theory that problem gambling is less likely to result when additional gaming machines are provided in more affluent areas.
This finding is also consistent with the conclusion of the Gaming Commission in relation to the characteristics of Langwarrin that:

[58]

We have set out below the three relevant decision guidelines and our comments in relation to each one.
- The compatibility of the proposal with adjoining and nearby land uses.
One of the concerns put forward by Council at the hearing was what Council regards as the close proximity between the Langwarrin Hotel and the Langwarrin Shopping Centre located to the north-east of the hotel.
The first point here is that whilst any EGMs are prohibited in the Langwarrin Shopping Centre as per the Schedule to Clause 52.28, we have found that the hotel does not form part of the shopping centre.
Hence the issue here is not so much any direct breach of the requirements of Clause 52.28, but more whether a negative factor on the planning merits is the proximity of the hotel to the shopping centre, and whether this proximity might indirectly promote shoppers to gamble at the hotel contrary to what Clauses 52.28-3 and 52.28-4 are trying to achieve.
With the benefit of the Tribunal having inspected this interface, the Tribunal is satisfied that the buffer distance and sightlines between the shopping centre and the hotel is adequate for our purposes here. The available sightlines from the nearest shopping centre entrance across to the hotel are quite constrained, due to the screening effect created by the various intervening landscaping and (when the car park is busy) the cars themselves. In addition, the hotel's external signage promoting its gaming facilities is relatively discreet.
We otherwise see it as a positive feature of the proposal that the hotel is located on a large site with plenty of surrounding car parking, plus the additional buffer of Union Road to the east, the creek/drainage reserve to the west and the open area to the south of the appeal site. This is hardly a case where the venue for the new EGMs is crammed hard against other sensitive uses.
It also does not assist Council's position on this issue that it has no local policy in the Planning Scheme dealing with gaming, that might provide some statutory guidance regarding Council's preferred position for gaming machines.
- The capability of the site to accommodate the proposal
We see this guideline as being comfortably achieved - the hotel site itself is clearly very well placed to accommodate the 16 additional EGMs. There is abundant on site car parking, an existing lounge area that can easily be converted to provide space for the additional EGMs, and (even with the expanded gaming facilities) the gaming aspect will still only constitute part of the overall range of services provided by the hotel.
- Whether the gaming premises provides a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons
Clearly the Langwarrin Hotel meets and will continue to meet this guideline. At page 25 of his written report Mr Soussan indicates that apart from lounge, dining, bottle shop and gaming services, the hotel also offers over the course of a week a bingo night and live music on the outdoor deck. The Tribunal's inspection indicated that one of the indoor lounges is set up for a band and dancing.

[64]

The question then arises how a planning review of a gaming proposal should receive and consider evidence as to the local community's views regarding the proposal. To the degree that this raises legal issues, the findings below are by Member Martin alone.
As a starting point, with this being a planning rather than a gaming review, the Tribunal considers the findings of the Court of Appeal in the Romsey Hotel decision turn on its own facts rather than being binding in the circumstances here. That is, the Tribunal in a planning review such as this has a discretion rather than being bound to consider evidence as to the local community's views regarding the proposal. This is reinforced by Section 60(1A)(a) of the Planning and Environment Act 1987, which provides that in deciding on a planning application, the decision maker may (if the circumstances appear to so require) consider amongst other things "any significant social and economic effects of the use or development of which the application is made".
On this basis, we have taken into account the relevant community surveys referred to by Mr Rantino, notably the results of the recent telephone survey regarding the proposal before us. Clearly these results are not favourable to the proposal. However we ultimately consider that this survey information can only be given limited weight because:
- it is only one of many planning issues and factors which have been raised by the parties;
- we share the reservations of the Commission whether inadequate information was provided to the participants in the telephone survey, such that these persons only understood part of the overall nature of the proposal; and
- whilst Section 60(1A)(a) certainly authorises our consideration of evidence regarding local community views regarding the proposal, there is nothing in this provision indicating that the social and economic implications of the proposal should be elevated above the other relevant planning issues.
In summary, we do not see the relevant community survey information as outweighing the strong merits of the proposal under Clause 52.28 of the Planning Scheme.
Whilst it is more a secondary consideration, our finding here is reinforced by the Applicant's willingness to accept a permit condition requiring a new Section 173 Agreement which locks in both the existing and the new $40,000 annual contribution to a local community project(s) ie $80,000 in all. This Section 173 Agreement must be prepared and registered prior to the new EGMs being installed, and the amount payable can be adjusted over time on a pro rata basis. The useful comparative table provided by the Applicant during in the hearing, showing information regarding similar financial contributions as part of other approvals of EGMs, indicates that the annual $40,000 contribution offered here is at the generous end of the range.
However we consider that caution needs to be exercised in terms of how much "planning merits credit" an applicant can gain by offering a significant annual financial contribution to a local community project as part of proposed new EGMs, lest a community perception begin to develop that the assessment of the application is becoming overly dollar-driven. Whilst we respect the Commission's views where the Commission also gave weight to the intent of the Applicant to build a motel on the adjoining vacant site if the 16 new EGMs are approved, our thoughts are that only modest weight should be given here on the planning merits. With any planning approval of the 16 new EGMs, there would be no binding obligation on the Applicant to build the motel and even well intentioned planning applicants can have plans which change over time.

[81]

We now turn to consideration of the positive and negative features of this application.
In this case, the evidence as to the inadequate numbers of egms at the subject venue is, perhaps, stronger than in any application which has come before the Commission. It is plain that there is a small number of egms relative to the number of patrons who frequent the various parts of the hotel, and particularly the bistro. It must not be overlooked that the legitimate interests of patrons of an entertainment venue who may frequent that venue because of the variety of matters which it provides for entertainment, must be considered. Here, we are absolutely satisfied that there is a smaller number of egms than would be justified by the number of people wishing to use them.
In some of the comments which were included in the survey conducted on behalf of Tabcorp as to the hotel's performance, there were references to the refurbishment of the hotel since 2005 and the improvements which have been effected. It is plain that this applicant has made appropriate decisions as to this hotel. It is well run and appears to the Commission to provide a valuable service, particularly for its local residents. This enables us to say with greater confidence that if the applicant does proceed to the erection of a motel and conference facility across the road from the subject venue, it is likely to be well conducted and to be of considerable benefit to the community. We think that the points which were made in evidence about the undesirability of persons travelling a long distance after attending local functions, are well made. For patrons to drive even to the hotels and other accommodations in the centre of Frankston is undesirable if it can be avoided. We suspect that there will be a very high demand for the function facilities and that many of those who stay in the residential accommodation will be attending a function in the premises. We also suspect that it will have considerable value to commercial interests during the week.
We also note the applicant's offer of a significant additional payment to the Langwarrin Community Project. This applicant deserves credit for the manner in which it has supported a local, community based organisation which we have no doubt confers considerable value upon the community.
Another positive feature of the application is that the subject hotel is situated in the part of the Frankston municipality in which there are fewer disadvantaged people. In fact, the SEIFA index for Langwarrin is extremely high. It is true, however, that the hotel does attract a proportion of its patronage from areas in Frankston which are much more disadvantaged.
As to the disadvantages, we believe that the most important is the level of gaming expenditure within the City of Frankston. It is already over the Melbourne metropolitan average by some eight percent, and will be increased by a very small percentage if this application is granted.
We have considered the evidence of community opinion. Apart from the limitations of the telephone survey to which we have referred, we note also that there was an extremely small response rate when the Council advertised the survey in the local papers. Only one person requested a copy of the survey. In a number of the matters coming before the Commission, community involvement surrounding an application has been so significant that following such newspaper advertisements there has been a clamour from persons wishing to be involved.
The fact that there was not, is not perhaps so surprising. The situation at Romsey, for example, was very different from that which is affecting the residents of Langwarrin. In Romsey their only hotel was faced with the prospect of gaining egms and thus, in the opinion of residents, changing its character altogether. In the current case, the subject hotel already has gaming and the incremental effect of this proposal upon the community will, we suspect, be quite small.
Having weighed up the advantages and disadvantages associated with the proposal, we are of the view that the evidence is sufficient to enable us to be satisfied that the net economic and social impact of this proposal will not be detrimental. In reaching this conclusion we are much affected by the proposal for the motel. Whilst we consider that the evidence certainly establishes that the subject hotel has a need for additional egms at the present time, the fact that there is greater than average egm expenditure within Frankston would cause us to hesitate were if not for the strongly positive features of this application.

At a glance

Court

Decision date

Source

Judgment (83 paragraphs)

Beretta's Langwarrin Pty Ltd v Frankston CC (includes Summary) (Red Dot) [2009] VCAT 74 (16 January 2009)

Parties

Legislation Cited (1)