*The "Appellant" is now technically referred to as Applicant for Review but because of the confusion that expression creates as that party is not necessarily the applicant for the planning permit giving rise to this preceding, the traditional titles of parties in planning appeals (which applied until 1 July 1998) have been retained.

Application under S.77 of the Planning and Environment Act 1987 (the Act)

for review of a decision to refuse to grant a permit.

District Business and Residential `A' Zone under the Greater Geelong Planning Scheme.

"1. The proposal is inappropriate to the existing area and the use is incompatible with the area's character and quality.

2. The proposal does not conform with the specified purpose of the use controls for Hotel.

3. The approval of the proposal would be contrary to the existing use provisions of both the state and local sections of the Greater Geelong Planning Scheme.

4. The proposed hours of operation will detrimentally affect the amenity of the surrounding residential area.

5. The proposal is an overdevelopment of the site which provides an insufficient buffer such as landscaping and/or noise abatement fencing between the car park and the adjacent residential area.

6. The proposal will attract an excessive amount of traffic to and from the site which will have an adverse impact on the street network in the immediate area.

7. The use will have adverse social and economic impacts at a community level.

8. The proposed use is not in the public interests.

9. The proposal is contrary to sound town planning principles and the orderly development of the neighbourhood.

10. The proposal is contrary to proper planning for the area."

2. There is no proper town planning basis for opposing the gaming use.

(a) the existing conditions and character of the area;

5. Council's grounds of refusal are principally and erroneously based upon its opposition to gaming rather than a proper and objective analysis of the details of the proposal."

Mr Terry Montebello and Ms Sarah Carlisle, Solicitors of the firm of Maddock Lonie & Chisholm, Solicitors, appeared for the Responsible Authority. Each presented a written submission together with oral argument.

Mr Stuart Morris QC appeared on the instructions of the firm of Williams, Winter & Higgs, Solicitors for the Appellant/Applicant. He called Andrew John Rodda, Town Planner as a witness. Mr Rodda presented an illustrative document with summary submissions in addition to his oral evidence.

Mr D Rolfe, objector, appeared in person and made oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence in documentary form, together with the written submissions, have been retained on the file of the Tribunal.

Since the hearing an inspection of the site, its surrounds, the High Street Belmont Shopping Centre and the locality has been conducted.

1. This case concerns a proposal in relation to the Belmont Hotel located on the south eastern corner of the intersection of High Street, Belmont with Mt Pleasant Road. The Belmont Hotel is a two-storey brick structure which has traded as an hotel over many decades. It appears as if it originally traded as a local hotel forming part of the High Street, Belmont Strip Shopping Centre and serving the Belmont locality. It is probable that a proportion of customers would have walked to the hotel. However, High Street is a main road leading south from Geelong and the Barwon River to other towns and destinations. It has traditionally carried through traffic and, owing to its prominent position on that road, the Belmont Hotel has been in a position to attract some of that through trade.

2. The site fronting High Street and Mt Pleasant Road is in a District Business Zone under the Planning Scheme. It is near the middle of a zone that extends along High Street for approximately a kilometre. The southern end of this zone is based around the five-way intersection where High Street intersects with Roslyn Road and Corio Street. From that point it stretches along both sides of High Street as it runs north to Mt Pleasant Road. After Regent Street the District Business Zone extends out from either side of High Street approximately for the depth of single properties fronting High Street. Beyond that, on either side, are residential zones. Moving north from the Mt Pleasant Road intersection the District Business Zone is confined to the eastern side of High Street. It continues along that side downhill towards the Barwon River until it intersects with Barwon Heads Road. That corner is the northern extremity of the District Business Zone.

3. On the western side of High Street to the north of Mt Pleasant Road the Residential Zone comes forward right to the street frontage. There is a public open space reservation along the northern 40% (approximately) of this western frontage to High Street.

4. The High Street Belmont Strip Shopping Centre is generally coextensive with the District Business Zone we have described and land uses in the zone conform generally with the zoning.

5. So far as the Belmont Hotel site is concerned, the original site was probably entirely within what is now the District Business Zone. However, the Applicant controls a larger area than the actual site of the original hotel. There is a more modern office building on the High Street frontage beside the hotel and a larger area confined by Mt Pleasant Road to the north and Herd Road to the east behind these buildings. This area falls noticeably from west to east and has been cleared of its original buildings. There is a detached bottle shop forming part of the hotel business. It fronts the south side of Mt Pleasant Road a short distance east of the main hotel building. Apart from that this area behind the main buildings is vacant and used as an informal carpark. This area is in a Residential Zone and adjoins residential properties fronting Wyuna Parade and Herd Road to its south.

6. Thus a substantial site containing both District Business Zone and Residential Zone land has been assembled and consolidated.

7. The proposal is to continue the use of the Belmont Hotel as an hotel, but to expand its activities onto the office site and to include a gaming venue where entertainment including electronic gaming machines would be offered.

8. During the first three days of hearing permission for such a proposal could be granted and the appeal hearing was conducted on that basis. However, on the 19 December 1997 Amendment S69 to the State Section of all Planning Schemes in Victoria was gazetted. Prior to that amendment Clause 8-4.4 of the State Section of the Planning Scheme had prohibited the use of land for gaming and the installation and use of gaming machines on any building on certain specified land. The lands specified were a large number of "free-standing" shopping centres of the drive-in variety. However, that prohibition did not extend to so called "strip shopping centres" and strip shopping centres were not specified in the table listing the lands to which the clause 8-4.4 prohibition applied.

9. Amendment S69 came into operation after the initial hearings but before a determination of the appeal was given. It changed the legal situation in relation to "strip shopping centres" by extending the clause 8-4.4 ban to them. It inserted a new clause 8-4.5 headed "Gaming machines - prohibited in strip shopping centres". This clause provided that "No gaming machine may be used or installed in any building in a strip shopping centre".

10. The result was that, if the Belmont Hotel site was to be regarded as supporting buildings in a strip shopping centre, then the gaming aspect of the proposal became prohibited on the 19 December 1997.

11. The potential effect of this amendment was drawn to the attention of the parties and a directions hearing was conducted on the 11 February 1998 to decide how the ramifications of the amendment should be dealt with. The result of the directions hearing was to appoint a further hearing which was originally to be confined to the question of the amendment, its impact and evidence relevant thereto. However, Mr Mark Naughton, solicitor of Maddock Lonie & Chisholm, who appeared for the Responsible Authority at the directions hearing, sought to establish the opportunity to present further evidence and submissions in relation to the social and economic impacts of gaming. This was not to be a general re-opening of the appeal, but was limited to certain specified research reports which had not been published at the time of the earlier hearing. The possibility of receiving such further evidence and submissions was kept open and two days commencing on the 5 May 1998 were appointed for such further hearing. (It had been hoped to accommodate the hearing in March but a misunderstanding rendered this impractical and the hearing did proceed on the 5 May 1998).

12. The essential question to be considered at that hearing was whether the appeal site and the buildings on it are indeed within a strip shopping centre within the meaning of clause 8-4.5. That provision contains three exemptions (or four if one has regard to the last line which also excludes the central city development area specified in the Melbourne Planning Scheme). However, none of these exemptions apply in the current case. That was common ground at the hearing.

13. The second part of clause 8-4.5 contains a definition of strip shopping centre for the purpose of the clause where it says:-

"For the purpose of this clause, a strip shopping centre is an area:

(b) consisting of at least two separate buildings on at least two separate and adjoining lots, and

(c) in which a significant proportion of the buildings are shops, and

(d) in which a significant proportion of the lots abut a road accessible to the public generally,".

14. It is plain enough that requirements (a), (b) and (d) are satisfied in relation to this appeal site. Indeed that was common ground. The controversy was as to (c) in other words whether we were dealing with "any building" in an area "in which a significant proportion of the buildings are shops". Mr Morris, who was concerned on behalf of his client to argue that this site and its buildings are not within such a strip shopping centre, submitted that there were three critical words to be considered in assessing the applicability of this definition namely "area", "significant" and "shops".

15. Perhaps "area" is the most important of these in that determining the limits of the area being considered for the purpose of applying the definition is likely to determine the whole question. There is no question but that the southern section of the High Street District Business Zone around the Roslyn Road/High Street intersection and stretching north from there to somewhere beyond Regent Street is a strip shopping centre within the definition. Fronting both sides of High Street along that part of its length there are many ordinary retail shops, indeed many small retail shops, indispersed with some other land uses commonly found in shopping centres such as banks, consulting rooms, offices, etc. It is common ground that this section of High Street is a strip shopping centre for the purposes of the clause. Mr Morris and Mr Rodda have sought to persuade us that the whole of the District Business Centre zone based on High Street should be regarded as devisable into three sections, that the central section should be considered in isolation from the other two and that it should be assessed as an area where there is not a significant proportion of shops amongst the buildings.

16. Mr Rodda described these three areas as precincts. Precinct 1, the southern section, he described as a traditional pedestrian based convenience retailing area including banks, bakeries, greengrocers, clothing shops, fabric stores, shopfront offices, news agencies and a community library. He noted that the built form was continuous and built to the street frontage with small parcels of land and narrow shop fronts. He gave further descriptions of other features in this area. He contrasted it with Precinct 2, the central section containing the hotel, which he describes as comprising retail facilities selling bulky goods such as hardware stores, tilers (otherwise described as tile shop), furniture stores, a hotel, offices, a wide range of food outlets including Pizza Hut, Kentucky Fried Chicken, Hungary Jack's and McDonald's and premises retailing automotive goods. We have varied some of the expressions he used somewhat thinking that our terms are a little more accurately descriptive of the actual situation. He claims that this central precinct is not so attractively developed for pedestrian use. He refers to lack of weather protection, the steeper slope of the land, and more frequent interruptions to footpaths by vehicle crossings to off-street parking areas. Evidence was also produced to suggest that pedestrian movements between premises along High Street in this precinct are notably less than is the case in the more intense retailing area of Precinct 1.

17. We accept all this, and we regard the reference to diminish pedestrian activity as a legitimate argument, but we nevertheless consider that the area still retains a significant retail element and that retail outlets along here should still be regarded as shops, even if a number of them are bigger than those in Precinct 1.

18. Mr Rodda's Precinct 2 starts somewhere along High Street between Regent Street and Glenara Court and continues downhill to the north past the hotel and Mt Pleasant Road, (but only on the eastern side of High Street after Mt Pleasant Road) for something in the order of one quarter or one-third of the total distance between Mt Pleasant Road and Barwon Heads Road. Thereafter, the northern Precinct 3 takes over. This northern precinct is on a triangle of land between High Street and Barwon Heads Road north of the so called Precinct 2. It represents fairly modern and recent retail development in the shape of a supermarket, a discount department store, and quite a number of specialty shops. The retail facilities are on the southern part of the precinct so that they maintain contact and some integration with the balance of the retailing in the High Street Belmont Shopping Centre running further south along High Street. There is a substantial off-street parking area serving these new facilities. It occupies the northern part of the third precinct.

19. We think it is true, as Mr Rodda points out, that this District Business Zone stretching for approximately 1 kilometre along High Street is not uniform in its topography, lot sizes and types of development. We do not seek to quarrel very much with his description or his discerning within it of three precincts, but we do think that these are three parts of one whole. We think that each and all of them are part of the High Street Belmont Shopping Centre and that they constitute one strip shopping centre. In this connection we agree with the observation made by Mr Rolfe in the course of his submissions when he said that the person in the street at Belmont would think that the whole area was a strip shopping centre. He later added that the Belmont centre is a centre though it has differing parts. We agree, and we think that his hypothetical person, and Mr Rolfe himself, are right in this assessment and this description. We do so on the basis of our assessment of all the evidence and of inspection of the area.

20. Although we can accept that the reduced pedestrian activity in the centre section is a relevant consideration, it is not decisive and does not persuade us from the conclusion we have reached.

21. We agree with Mr Morris that the "area" need not necessarily extend to all the land zoned for business purposes and we agree with him that it is necessary to make an evaluation as to the extent of the strip shopping centre which, as he said, may or may not be coextensive with the zone. That is perfectly true, but having made our evaluation, we come to the conclusion that it is coextensive in this particular case. At any rate, the Belmont hotel is in the midst of the area that we find to be a strip shopping centre. We do not think that the incidence of some family restaurants or some larger showroom type shops or premises of a larger sort that planners might describe peripheral sales premises, contradict this conclusion. Some of these would, in ordinary usage, be simply regarded as large shops.

22. In his discussion of the word "shops" Mr Morris pointed to three options namely that the word could be interpreted in terms of its natural or ordinary English meaning, in accordance with the definition in the Local Section of the Planning Scheme or in accordance with the definition in the State Section. We agree with him that the Local Section definition is the least appropriate of these inasmuch as we are interpreting here a State Section provision that is applicable throughout the State and its proper application is not meant to vary according to the vagaries of shop definitions in particular situations. We think he is probably correct in suggesting that the natural or ordinary English meaning is to be preferred but whether that or the State Section meaning is adopted we are satisfied that there are many shops, not only in Precinct 1, but also in Precinct 2 and Precinct 3 (as described by Mr Rodda) and certainly in the strip shopping centre as a whole.

23. There was some debate about what this meant by "significant" and whether shops needed to constitute a majority or some specified percentage of the area. We would certainly disagree with the proposition that "a significant proportion" needs to be a majority of the buildings. We would think that "significant" in this context is to be contrasted with its antithesis namely "insignificant". We suppose that there must be a hazy line to be drawn somewhere with cases trembling between "a significant proportion" and "an insignificant proportion". We do not need to agonise over that in this case. Here it is clear that there is certainly a significant proportion of the buildings that are shops.

24. We do not need to refer to the Explanatory Report in relation to Amendment S69 to determine this question, but by the way we note this paragraph on page 3 of that report under the subheading "What the amendment does" the following appears:-

"'Strip shopping centre' is defined for the purposes of the clause. It is defined broadly and is intended to apply to a wide variety of centres, other than the central area of Melbourne."

25. It is clear that we find that definition covers this centre and that this centre includes both sides of High Street from Roslyn Road to Mt Pleasant Road and the east side of High Street from Mt Pleasant Road to Barwon Heads Road. It is basically the District Centre Zone in this locality.

26. There was some speculation as to the purposes of the amendment and some acknowledgement of difficulties in discerning the purpose inasmuch as the purpose is not specifically spelt out in the amendment itself or elsewhere. Whilst recognising these difficulties and acknowledging the arguments put in relation to this question, we do not find it necessary to deal with it for the purposes of this case inasmuch as we think it is all plain enough on the basis of the definition and the character and features of the High Street area.

27. All this would have led us to the view that the proposal was prohibited and that it was not necessary to further consider its merits. However, since Amendment S69, and since the hearing in May 1998, there has been a further amendment to the Planning Scheme. This further amendment is S70.

28. As a matter of fact Amendment S69 foreshadowed the possibility of further amendments. At that stage Responsible Authorities were called upon to nominate strip shopping centres or parts of strip shopping centres within their municipal districts which they considered should be specified for the purpose of prohibiting gaming machines in like manner to the prohibition of clause 8-4.4 relating to free standing centres. They were asked to provide such specifications by early February 1998 and no doubt it was anticipated that it would be possible to bring in a further more specific provision during the first half of this current year. To some extent Amendment S69 was viewed as an interim provision with its final form to be clarified by the foreshadowed later amendment.

29. At the time of the hearing in May the Applicant had been waiting for such further amendment, or possibly for a second interim amendment that might afford it some opportunity to continue this current proposal on the basis of it being of a transitionary nature. Mr Morris indicated that consideration had been given to whether a further adjournment should be sought in anticipation of such clarification because an adverse finding on the strip shopping centre point based on Amendment S69 alone would be fatal to the project. He said that it had been decided to press ahead with the hearing. His client was in a difficult dilemma in the circumstances, because there could be no confidence as to whether a further amendment, or a further interim amendment would be forthcoming, or whether it would afford the relief hoped for or when it would come into being. The view was apparently taken that if the current proposal cannot proceed the Applicant would at least have certainty and be able to consider other development options for the site. There may have been a shade of ambivalence about how quickly a determination was sought inasmuch as there was the possibility of a further amendment before a determination was forthcoming.

30. Such has proved to be the case. Although the ruling on the strip shopping centre point based on Amendment S69 is adverse to the Applicant, Amendment S70 has come into operation on the 19 June 1998 so as to maintain some prospects for the Applicant in spite of that ruling.

31. It is not necessary or appropriate to expound at length on Amendment S70 at this stage. However, it does make some alterations to the Planning Scheme of some importance. It may keep alive the prospect of this application, or some modified version of it. We are obliged to determine the appeal on the basis of the planning scheme as it stands at the time of the determination which now means the planning scheme as modified by Amendment S70. However, its provisions contained some constraints which may involve limitations based on the area of the existing hotel as it stood on the 16 June 1998.

32. At any event, it is appropriate now to afford the parties an opportunity to consider the possibilities and implications of Amendment S70. Rather than determining the appeal at this stage, it should be further adjourned to give the parties an opportunity to consider the amendment and to apply, if thought appropriate, for a further hearing to consider issues arising in relation to that amendment. Any further hearing would be confined to matters related to the amendment. There would be no general re-opening of the appeal.

33. We therefore propose to further adjourn this appeal to a date to be fixed and direct that the parties should advise the Registrar within 21 days as to whether a further hearing or directions hearing is sought.

34. We note that copies of Amendment S70 are in the possession of the Responsible Authority and can be inspected at its offices.

1. This appeal is further adjourned to a date to be fixed.

2. Parties are directed to advise the Registrar in writing within 21 days of the date of this interim determination as to whether they seek a further hearing or a directions hearing to consider and give directions as to the future conduct of the appeal.