DSL Securities v Cardinia SC [2011] VCAT 1842

DSL Securities v Cardinia SC [2011] VCAT 1842 | Case summary | Zoe

[33]

There are two applications for review as part of this proceeding. One concerns a subdivision of the subject land and the other concerns the establishment of an hotel and the installation and use of gaming machines on one of the lots created by the subdivision.
The overall proposal has had a long gestation period. The permit application for the hotel was originally lodged with council in mid 2009. The delay has been beneficial because we consider that both proposals have improved considerably as a result of the consultation and review process.
Both proposals have been contentious. The subdivision was originally refused by the council on the basis of adverse implications, which the location of the connector road through the subdivision would have on the future strategic planning for the Officer area. Through a private mediation involving the Growth Areas Authority, these concerns have been resolved and there is now no contention regarding the layout of the subdivision proposal.
The contention surrounding the hotel proposal centres on the installation and use of gaming machines. A significant number of objections were received by the council opposing this aspect of the proposal. Because there is a Development Plan Overlay applying to the land, third parties have no rights of review. Nevertheless, the Tribunal has previously made a series of orders giving certain persons, including community groups, an opportunity to be heard in respect of this application.
A consideration of the hotel proposal falls into two categories:
- The use of the land for gaming machines.
- The planning merits of the proposed buildings and works.
We have concluded that this is a suitable site for an hotel of the type proposed and also that it is a suitable location for gaming machines. We consider that the hotel will provide an attractive and a popular facility for the present and future population of this growth area. Whilst there is a strong core of community opposition to the introduction of gaming machines, they are a lawful use of land and we consider this is a suitable location for them. There are no good planning reasons why the application for the installation and use of gaming should be refused.
We will now deal with these issues in more detail.

[39]

At the hearing before us, the council maintained its opposition to the gaming machines on the basis that the location is inappropriate having regard to the following factors:
- It will provide an inappropriate level of convenience, and be attractive to, visitors to the Kindergarten and Community Centre nearby;
- It is not located in or adjacent to an activity centre; and
- It is within a residential area within walking distance of a number of residential properties.
Mr Milner's evidence on behalf of the council was that the merits of granting a permit for 60 gaming machines is secondary to the question of whether an hotel should be allowed. He considered that this was an inappropriate location for an hotel. However, we disagree for reasons that we discuss in greater detail later.
The only issue about location explicitly relating to gaming machines is the issue about whether its location will provide an inappropriate level of convenience and attraction to problem gamblers. The need to avoid such situations underlies the provision in the planning scheme in clause 52.28 that prohibits gaming machines in specified shopping complexes and strip shopping centres.
Ms Colleen Peterson gave evidence on behalf of the applicant about the social and economic impacts of the proposal and other matters contained within clause 52.28 of the planning scheme. She was satisfied that the location of the hotel is a suitable location for gaming as required under clause 52.28 because it is:
- Located in an area that shows few signs of social and/or economic disadvantage;
- Located in a municipality where the expenditure and density of gaming machines is well below the State and metropolitan averages;
- Located in an area that has not been identified by Council's gaming policy as being unsuitable for gaming;
- Located in an area that generally has access to gaming, with venues in Berwick and Pakenham;
- Located within a venue that provides a complete entertainment offer, and will provide best practice for the provision of responsible gaming;
- Separated from community facilities to the west. The absence of existing or likely future 'ant trails' will limit risk associated with potentially vulnerable people attending these venues also using the gaming machines; and
- Located approximately 100 metres from the western edge of the proposed Officer Neighbourhood Activity Centre and 450 metres from its core, separated by a residential allotments as proposed under the Draft Officer Precinct Structure Plan.
We accept Ms Peterson's evidence. In colloquial terms, the hotel might be described as being within a 'Goldilocks' location. It is close to but not within the proposed Whiteside Road Neighbourhood Activity Centre under the Officer Precinct Structure Plan. Its proximity to the activity centre is not too close nor yet too far. It is just right. People will need to travel purposefully to the venue to engage in gaming. They will not pass the venue incidentally in the course of their shopping or undertaking other activities within the activity centre. The venue will offer other attractive facilities for eating, drinking and socialising. It will not be a venue devoted solely or primarily to gaming. There is already access to gaming machines within the municipality and we accept Ms Peterson's evidence that the introduction of 60 gaming machines in a multi purpose recreation and entertainment venue will have little impact on accessibility or access to machines for problem gamblers. People with existing problems are already able to access machines within the region and travel to these venues to participate in gaming, so that additional machines at this venue are not likely to contribute to additional problem gambling.
We find that the location of this venue is sufficiently separated from any activity centres so it is unlikely to increase risky behaviour by problem gamblers. Its location requires patrons to make a conscious decision to visit the venue rather than participate in so called risky behaviour because it just happens to be on their way to somewhere else. We consider that the location is in line with other VCAT decisions, which have encouraged gaming venues to be located at the edge or near the periphery of activity centres, but not within them. This ensures that gaming venues benefit from proximity to these venues but are not located so as to encourage convenience gambling.[1]
A key issue to consider in determining whether a permit to install and use gaming machines under clause 52.28 is the suitability of the location and the premises. We conclude on both these issues that:
- The location is appropriate and is compatible with adjoining and nearby land uses.
- The gaming premises will be part of a venue that will provide a full range of hotel facilities and services to patrons for eating, drinking and socialising. The premises are therefore appropriate for the installation and use of gaming machines.

[48]

In the present case, the Gaming Commission has determined that having regard to the economic and social impacts upon the community, it was appropriate to give permission for 60 gaming machines for this venue. We do not consider it is our role to revisit that finding, notwithstanding the views expressed to us by and on behalf of the community.
The Beacon Gospel Trust were particularly focussed in their opposition to gaming machines. Their place of worship is located opposite the hotel site in May Road. They say that the establishment of an hotel and gaming venue is antithetical to the religious and cultural values of their congregation. The members of the congregation are strongly of the view that the juxtaposition of a church with an hotel, including gaming, is incompatible and inappropriate. They say the introduction of the proposal will constitute a very negative element in their perception of the pleasantness and amenity of the neighbourhood in which members of the congregation live and worship. The neighbourhood will never be the same for the members of the Beacon Gospel Trust if this proposal is permitted. They submitted that the psychological affects of the proposal on the members of the congregation would constitute a social effect that the Tribunal should consider as a relevant planning impact. They refer to commentary by the Tribunal about psychological affects in relation to the establishment of funeral parlours.[6]
The commentary about the psychological affects of funeral parlours referred to by the Beacon Gospel Trust is inconclusive. In the early 1990's, there were different views expressed by the Tribunal about the weight to be placed on the psychological effects of funeral parlours and the consequential impact on the amenity of an area. We do not consider that this commentary and the cases discussed assist us. We regard the views expressed in Minawood as more accurately reflecting the current approach by the Tribunal to the relevance of views held by the community, either generally by groups or by individuals, on moral, religious or cultural grounds. Aversion to a proposal that is otherwise a lawful activity on moral grounds is not a relevant social effect.
We acknowledge that members of the congregation of the Beacon Gospel Trust perceive that their amenity will be reduced at their place of worship if the hotel with gaming machines is established. Nevertheless, even accepting that this is an amenity consideration, we do not consider it would outweigh the benefits of the proposal and the suitability of the location for these purposes.
We have therefore concluded that there is no basis for rejecting the proposal for the hotel or gaming machines on the basis of the aversion felt for these uses by members of the community in general or by the members of the congregation the Beacon Gospel Trust.

[50]

We have had regard to the evidence of Mr Clarke and his analysis of the Beacon Hill Development Plan, but we do not agree with his conclusion that the development plan does not apply to the subject land. We find that the Beacon Hill Development Plan complies with the requirements of the Development Plan Overlay and Schedule 4 (DPO4).
The plans in appendices A and B of the Beacon Hill Development Plan include land to the north of the subject land for which a detailed subdivision layout and staging are shown. The subject land includes no such details but includes the notation: Future development consistent with Residential 1 Zone. We disagree with the Beacon Gospel Trust that the subject land is excluded from the development plan because it lacks detail.
The address given of the land in the development plan includes O'Neill Road, May Road and Princes Highway. All these roads abut the subject land, although the Princes Highway does not abut the land to the north. We regard this address/description, together with the fact that the land contained within the plans at appendices A and B includes the subject land, as evidence that it was intended to include the subject land as part of the development plan.
The development plan contains considerable detail about the land to the north and how it should be developed, but less detail about subject land. Nevertheless, the development plan is not devoid of detail about the subject land. In addition to the notation about future development consistent with the Residential 1 Zone, the plans in appendices A and B show the tree reserve, Melbourne Water easement and physical features in respect of the subject land. The development contribution schedule in appendix C refers to the subject land by its lot and subdivision details.
We therefore find that whilst greater detail is included within the development plan in relation to the land to the north of the subject land, this does not mean that the development plan does not apply to the subject land.
There were various other submissions and counter submissions put by Beacon Gospel Trust and the applicant, but we do not consider it is necessary to address them in detail because they do not affect our conclusion.

[62]

We accept that the proposed hotel use will serve local community needs. It is a facility that will offer a range of entertainment options for this growing community. It will be local meeting place, and will provide a venue that will cater for different social occasions. With a maximum capacity of 650 patrons, we consider that its scale places it in the category of a local facility, rather than one which will attract significant patronage from a sub-regional catchment. Even if it were to attract some patrons from beyond the immediate area (which we think it most likely will), this does not necessarily make it unacceptable or inconsistent with the above purpose of the Residential 1 zone. Previous Tribunal decisions have held that the local need test under the Planning scheme does not require that every patron must reside within an area which could be defined as 'local'. Frequently, non-residential uses draw from a wider catchment, but include persons from the immediate neighbourhood. We consider that this will be the case in this instance.
Under existing conditions, the development is not only clearly out-of-centre, it is not proximate to an existing activity centre. However, based on the Precinct Structure Plan, this will not always be the case. The proposed Whiteside Road Neighbourhood Activity Centre (NAC) is to be developed on the opposite side of May Road. Mr Milner estimates that the review site is some 125 metres from the western edge of the proposed NAC and approximately 350 - 350 metres from the business core. The intermediate area between the review site and the business core is identified in the Precinct Structure Plan as a location for higher density housing.
We have found the proximity of the site to the proposed NAC to be influential to our decision. While we acknowledge that locating the facility within an activity centre can result in the benefits identified by Mr Milner (such as contributing to the land use mix, establishing a synergy with other uses and sharing of car parking and other infrastructure), we have concluded that the proposal will be complementary to the NAC, notwithstanding that it is located outside its boundaries. It will be proximate to the activity centre's border and will certainly be within the centre's 'sphere of influence'. It will have some obvious relationship with the proposed activity centre and it will not result in a fragmented land use pattern, as would be the case if it were to be separated from the NAC by conventional residential development.
Policy requires us to be satisfied that an out-of-centre development/use will result in net community benefit. The Planning scheme does not provide any guidelines to assist us with this task. We have already indicated that we think this facility will be beneficial to the local community as a meeting place, entertainment venue, and a place where functions may be held. Further benefits, amongst others, are employment generation and a contemporary urban design outcome that will represent an attractive addition to the emerging built form composition of this developing area. We also think it relevant that the site is bounded by three roads, thereby making its amenity impacts more manageable to ensure that they are within acceptable parameters. As we will discuss later, the sole potential direct residential interface can be treated satisfactorily to ensure that the proposed development and use do not impact unacceptably on the amenity of this land.
Consideration, however, must also be given to potential disbenefits. These include the car-based nature of the facility, the potential limitations on the ability to establish synergies with other non-residential uses, and restricted opportunities for multi-purpose trips given the separation from the NAC.
On balance, we consider that the benefits of the proposal outweigh the disbenefits and on this basis have concluded that it will deliver net community benefit.

[64]

There is general agreement among the parties that, as a built form outcome, the proposed development represents an acceptable design response. Mr Czarny acknowledged that it is a 'competent piece of architecture'. Similarly, Ms Ring stated that the architecture of the building is 'very good'. The dispute lies in the siting of the development and its relationship to the site's topography. These are the two key issues that we need to address.
The Council's submission, and evidence, is that the adopted siting is reflective of past, outdated, practices where venues such as this were positioned centrally on the land and surrounded by car parking. It was put to us that such an outcome does not represent an acceptable urban design solution, as it does not allow the development to engage with the street to provide activity and animation to the immediately adjoining public realm. Particular criticism was made of the proposed 39 metre setback from the proposed connector road, and the intended provision of car parking within this setback area. A further criticism was made of the proposed location of the main entry on the east side of the building, with the north elevation having an entry that is accessed by stairs, in response to a grade separation of some 2.0 metres.
The Applicant's position is that the siting is appropriate to the property's context as it will allow a landscaped interface with the street and achieve what was described as a subtle arrangement in terms of the building's visibility from the connector road. It was stated that the Council's preference for the building to be located closer to the street is more akin to what would be found within a commercial or industrial neighbourhood.
State policy, at Clause 15.01-2, has the objective of achieving architectural and urban design outcomes that contribute positively to local urban character and enhance the public realm while minimising detrimental impact on neighbouring properties. This Clause sets out a number of urban design principles that are to be applied to non-residential developments. A relevant principle in this instance is that the design of interfaces between buildings and public spaces, including the arrangement of adjoining activities, entrances, windows and architectural detailing should enhance the visual and social experience of the user.
At the local level, the MSS includes policies that address the role of urban design in creating attractive and functional environments[8]. A related strategy is to encourage urban design which creates a strong character and identity for the area, provides a functional built environment and promotes community and personal safety.
We consider that the proposed siting is acceptable. Within what will be developed as a predominantly residential context, we consider that positioning a building of this scale close to the street will detract from the more modest built forms that are likely to eventuate on the adjoining and opposite land. These are likely to be set back from the street and have vegetated front garden areas. A design response that places the development close to the frontage would accentuate the building's contrast with its environs. We think that, provided the front setback area is well landscaped to avoid the dominance of car parking at the street interface, the proposal will represent an acceptable outcome. Mr Wyatt's landscape plan provides for a significant level of planting throughout the car park area - comprising both evergreen and deciduous species. This includes not only trees, but also shrubs and groundcovers to provide screening and softening to this area.
Although not an urban design consideration, the setting of the building back from the street will also assist to reduce the impact of the proposed use on the amenity of the existing residential area to the north, and on the future development on the opposite side of the proposed connector road.
We understand the rationale of locating the main entry on the eastern side of the building. In this area, it will be directly accessible from the larger of the car parks, also being the one which is furthest removed from future (potential) residential interfaces to the west. This car park will be cut into the site, and will be below the level of May Road. This will have the effect of reducing its impact on the properties on the opposite side of May Road. While this results in the northern entry having a more subservient role in respect of pedestrian access to the facility, it nonetheless presents acceptably within the form and composition of the entire northern elevation. We acknowledge that its access via stairs may affect the ability of persons to enter and exit the premises from this point. It is, however, one of four entries and those persons wishing to enter at-grade will be able to use the other doors. We consider the north elevation to have sufficient articulation and visual interest, and that the proposed screen wall will not detract from the overall appearance of this side of the building. In response to the Council's concerns regarding the appearance of this wall, we will include a condition that requires all external finishes and colours to be to the Council's satisfaction.
As a whole, the review site has a considerable fall. It is inevitable that any development on the land will necessitate some cut and fill. This was fairly acknowledged by the parties. Indeed, the point was made that modifications to the topography to achieve developable areas are a characteristic of this locality. The creation of a single-level floorplate necessitates both cut and fill. In general terms, the cut is to occur at the eastern end of the land, with the fill being undertaken at the western end. The latter will require the construction of a retaining wall that is to extend for approximately 95 metres and, at its highest point, rise to 4.5 metres. This gabion retaining wall is to be set back 6.0 metres from the (proposed) western lot boundary, with the intervening area being a landscaped batter. Planting in this area is to comprise both trees and understorey shrubs, and the like.
The Council opposes the proposed earthworks and resultant altered topography, submitting that it is not a site responsive design. It was suggested that the development could adopt a split-level arrangement to 'step down' the slope. Concerns were expressed about the visual impact of the proposed retaining wall, due to the elevated nature of the site. These concerns also extended to the potential effect of this structure on the amenity of future dwellings on the adjoining land to the west.
Having heard and considered the evidence of Mr Wyatt, we are persuaded that the proposed response to the site's topography is acceptable. There is no question that the proposed western retaining wall is an extensive structure. We believe, however, that it will not have an unacceptable visual impact for three main reasons. Firstly, its gabion form, utilising material extracted from the site will allow its earthy tones to blend into the landscape. Secondly, due to the cross-fall of the land, the wall will not be a consistent height of 4.5 metres. The height will taper to the north and south. Thirdly, the proposed landscaped battered bank in front of the retaining wall will substantially screen the wall from view.
Mr Wyatt demonstrated that, even at planting, the proposed trees will have an immediate effect of partially screening the wall. As the understorey planting matures, it will effectively produce a landscape screen that will largely conceal the wall from view. Even if sections of the wall are visible through the vegetation, we consider that they will blend in with this landscape treatment. The 6.0 metre wide buffer will allow for the provision of substantial landscaping, which will also have the benefit of screening views of the site from the proposed future residential properties to the west. It is also relevant that, as the land to the west is developed, it is likely to have what may be described as a cascading form down to the slope as dwelling sites (and houses) are positioned to take advantage of westerly views. This may also mean that dwellings could be two-storey in order to capitalise on such views. Accordingly, although the development will be particularly obvious in the interim period, over time it will form an element of a broader urban context.
We agree with the Applicant that the excavation at the site's eastern end will assist in screening the largest car park from view and minimise the development's impact on the land to the east.
Having inspected the site and surrounds, we acknowledge that the site of the hotel building is prominent. It is on top of the elevated topographical feature known as 'Pink Hill'. It will be most visible from the west, including on the approach along the Princes Highway. Of itself, we do not think this is an unacceptable outcome. We find the building to be a well-designed structure with a contemporary architecture. In our view, it will be aesthetically pleasing. In conjunction with the proposed landscaping, we think it will represent a good urban design outcome that will make a positive contribution to its context. Although large, it is on a substantial site, adjacent to a major thoroughfare and within a developing area where larger buildings, including dwellings, are not unusual. Again, the future development to the west will have the effect of providing a built form context that, to a degree, will temper the prominence of the building, as will the landscaping, once established.
The Council expressed concerns regarding the extent of the proposed tree removal, and submitted that there is insufficient evidence that the Application adopts the three-step model provided in Victoria's Native Vegetation Management - a Framework for Action, which is referred to in Clauses 12.01-2 and 52.17[9].
It is proposed to remove a total of eight trees of conservation significance. These comprise of one large tree (high conservation significance); 6 medium trees (medium conservation significance) and 1 small tree (low conservation significance). Two existing trees are proposed to be retained within the car park. We note that the planning application was referred to the Department of Sustainability and Environment (DSE) for comment and no objection to the proposed tree removal was raised.
Given the urban zoning of the review site; its location within a developing growth area; the position of the trees in locations where they act as a significant constraint on the development of the land; the absence of an objection from the DSE; and the substantial tree planting proposed by this application we consider that the removal of trees, while regrettable, is supportable in this instance. Conditions of the permit will require the provision of offsets in accordance with the Native Vegetation Management Framework.

[65]

We accept the submissions that the hotel will be a car-based facility. This is not a location which is well served by public transport, nor does it lend itself to a high level of access using alternative transport modes. Growth area locations such as this are heavily car-dependent. For this reason, we are of the view that this is not an instance where significant concessions to the car parking provision should be made. This is particularly so given the very limited (if not non-existent) opportunities to park on-street due to the level difference with, and nature of, May Road, and the proposed single carriageway width of the connector road - at least in the interim until it is duplicated.
Both the Council and the Applicant called evidence from experienced traffic engineers. In assessing the car parking demands associated with the proposed use, Mr Robertson relied upon a car parking requirement equivalent to 0.5 per patron. This rate was derived from surveys of the Craigieburn Sporting Club and the Berwick Springs Hotel. During the surveys, patron numbers in each section of these facilities were counted at half hourly intervals, and the number of cars parked were also recorded.
Mr Hunt relied on data collected during surveys of the Caroline Springs Club. The surveys recorded the number of cars parked on that site, and in the adjacent service road, and related these to the floor area of the premises. This assessment arrived at a peak parking demand of 15.4 spaces per 100 square metres of floor area.
In giving his evidence, Mr Robertson stated that it is not appropriate, in his view, to utilise floor area as the basis for an empirical assessment of car parking demand because, unless the occupancy rate of the premises is known, it is not possible to determine whether the assessment represents the peak occupancy of the facility.
Mr Hunt did not agree with this approach. In his view, it is very difficult, if not impossible, to count the number of patrons on a premises at any one time. He suggested that such a methodology usually leads to an underestimate of the persons actually present, with the consequence being the calculation of a higher parking demand. While maintaining that a requirement based on floor area is the most appropriate means of calculating parking demand, he also referred to a rate based on patron numbers. This rate is 0.4 space per patron. Mr Hunt stated that this rate is derived from a combination of that for a function centre (0.3/0.35 per patron) and that for a bar/gaming venue (0.5/0.6/0.7 per patron). He advised that this rate is generally accepted in the industry and is consistent with that specified in the report of the Advisory Committee established to review Clause 52.06.
We have found Mr Robertson's evidence to be the more persuasive and prefer to adopt his recommendations regarding the rate of car parking. In doing so, we have been influenced by our conclusion that it is very important in this instance to "get the car parking right". While acknowledging that the Advisory Committee review is still in the consultation phase, we observe that there has been a move away from utilising floor area as a basis of determining car parking for an hotel. This provides some support for an approach that relies on patron numbers rather than floor area. We also think that there is some merit to Mr Robertson's suggestion that an assessment that relies solely on counting car spaces does not give any indication about the actual occupancy of the premises and may lead to an under-estimation of the likely demand.
While we acknowledge that there isn't a significant difference between the 0.4 per patron and 0.5 per patron rates of the two witnesses, we believe that a conservative approach is warranted in this instance. The car-based nature of the development, the relative absence of alternative transport options and the inability to park on-street (and the undesirability of this outcome) support a car parking provision that is towards the higher end. We are persuaded that Mr Robertson's methodology has provided a reasonable basis for us to adopt the 0.5 per patron rate.
With a maximum capacity of 650 persons, the proposal will generate a car parking demand for 325 spaces. As 270 car spaces are proposed to be provided on the land, this results in a shortfall of 55 spaces. There is a portion of the site in the north-east corner that is proposed to be left vacant. It is annotated as "Grassed Area (Future Development)". At the Tribunal's request, Mr Robertson estimated that this area could potentially accommodate 50 car spaces. In his view, if this were to occur, the shortfall of 5 car spaces is inconsequential.
We have decided that additional car parking should be provided on the land. To this end, we have included a condition that a further 50 car spaces be provided, and that these be located in the north-eastern corner of the property, in that area identified on the plans as being for 'future development'.
There was also disagreement between the experts in respect of the access arrangements into and out of the site, and of the need or otherwise for a deceleration lane adjacent to the site's boundary for use by west bound (left turning vehicles). Mr Robertson's evidence is that the eastern access point should be located further east and be 'left-turn out only'; the western access point should be multi-directional (allowing access into the site from both directions and both left and right turn exit); and that a left turn deceleration lane in association with the western access should be provided.
Mr Hunt has a different view. His evidence is that the forecast traffic volumes along the proposed connector road and the lack of co-incidence of the commuter peak and hotel operation peak mean that a taper, rather than a full deceleration land would be sufficient for vehicles turning left into the western access. He stated that a deceleration lane is not required for either of these peak periods. Mr Hunt suggested that an assessment of the necessary arrangements could be undertaken when the connector road is fully constructed.
It is evident to us that the proposed connector road will have an important role to play in the overall road network in this area. This is particularly so given it will ultimately provide access to and from the adjoining Officer Precinct. As noted earlier, it is identified in the Precinct Structure Plan as a Local Arterial Road[10] and will have a width of 33 metres. Given the strategic importance of this thoroughfare, we consider that good planning would see the provision of a deceleration lane as recommended by Mr Robertson. The desirability of providing this lane is supported by the anticipated popularity of this venue. It is likely to be attractive to a broad cross-section of the community and, we anticipate, it is likely to be a busy venue. Mr Robertson advised that the provision of the deceleration lane will require the relocation of the proposed eastern exit point further to the east. This would place it within the 'future development area' referred to earlier. Given our conclusion that this area should be developed for car parking, the relocation of the exit point can be achieved.

[67]

The three key amenity impacts raised by those parties opposing the proposal relate to the visual impact of the retaining wall and car park on the future residential properties to the west; the acoustic impacts associated with the use; and the impacts arising from patron behaviour.
We have already commented on the proposed retaining wall. We consider that the provision of the 6.0 metre landscaped buffer will adequately protect future adjoining residents from any undesirable visual impacts arising from this structure. The provision of a fence along the western edge of the car park will assist in shielding residents from off-site impacts arising from the use of the car park, including headlight glare. Further screening will be provided by the landscaping within the car park.
It is also relevant to note that any purchasers of adjoining residential lots will be aware that an hotel development has been approved on the review site. They will therefore be in a position to make an informed decision as to whether they wish to reside next to such as use. Indeed, this may also have a bearing on the ultimate siting and design of dwellings on these adjacent lots as residents may elect to locate sensitive areas away from the common boundary with the hotel use.
An important consideration when assessing potential amenity impacts is that of noise. The Applicant called acoustic evidence from Ms Hui. She identified the three key noise sources as being plant equipment, music and patrons. We accept that plant and music noise can be adequately addressed with reference to State Environment Protection Policies N-1 (Noise from Commerce, Industry and Trade) and N-2 (Control of Music Noise from Public Premises). We acknowledge that SEPP N-1 does not apply to the review site as it is outside the Metropolitan Region. However, we accept that the methodology adopted by SEPP N-1 can be used to achieve acceptable outcomes.
The more problematic impact is that of patron noise arising from the use of outdoor areas. There are presently no legislative controls or guidelines against which to assess this impact. Ms Hui stated that Melbourne acoustic consultants have been involved in on-going discussions to determine the most appropriate noise criteria to use to assess this impact. The proposed criteria detailed in her evidence are based on the background noise level in the area and the NSW EPA sleep disturbance criteria. She states that the proposed criteria (for the quasi steady state component) is similar to that which would apply if the SEPP N-1 methodology were followed. The identified noise limits are 61dBA for the daytime period; 56dBA for the evening period and 41dBA for the night time period.
Applying this criteria to the proposed outdoor areas and having regard to the context of the review site, Ms Hui found that the daytime and evening limits will be achieved. However, the night time limit will be exceeded by 1dBA - 7dBA. The residential properties to the north will experience a noise level that exceeds the 41dBA limit by 6dBA. The future residential properties to the west are predicted to experience a noise level that exceeds the limit by 2dBA (at ground floor level) and 7dBA if the dwellings are two-storey and have habitable room windows overlooking the review site.
In response to these predictions, Ms Hui stated:

[73]

Ms Hui expects the maximum patron and vehicle noise levels from the car park to comply with sleep disturbance criteria at both existing and future dwellings with no further treatment. She did, however, qualify this by stating that noise predictions may need to be revised if the proposed retaining wall design was changed significantly. Mr Hui also stated that, in the event that the dwellings to the west were not constructed at a level lower than that of the review site, a 1.8 -2.0 metre high acoustic fence may need to be provided at the western edge of the western car park to protect the dwellings from noise.
We were not provided with any evidence to contradict or challenge that of Ms Hui. We consider that, in the circumstances where there is no legislation or guideline against which to assess patron noise, Ms Hui's recommendations provided a reasonable means of dealing with this issue. While we are somewhat reluctant to defer final determination of the means of addressing this issue to a 'secondary consent' process by condition, we agree that the particular circumstances of this application justify this approach. A key consideration in this respect is the site's location within a developing area where much of the surrounding land is vacant, yet is likely to be developed for residential purposes. The manner in which this occurs will affect the degree to which the proposal complies with the noise limits specified by Ms Hui.
A suggested condition requires the submission of a Noise Management Plan, with a further assessment and update of this Plan being undertaken within 6 months of the use commencing. We will include this condition in our order. Given the developing nature of this locality, we think it prudent to include a provision that allows the Responsible authority to require updated Noise Management Plans when that part of the site directly opposite and that directly adjacent to the hotel property are developed and occupied. This will ensure that any necessary modifications to the operation of the use can be required to contain impacts to within reasonable limits.
We will also require the provision of a minimum 1.8 metre high acoustic fence at the western edge of the car park to provide further protection to future adjoining residents. This fence will be screened by the proposed landscaping, once established.
Clause 52.27 requires us to consider a number of decision guidelines when determining whether permission should be granted for the sale and consumption of liquor. These include:

[77]

Firstly, it is important to note that this is not a 'vertical drinking venue' where the consumption of liquor is an integral component of the social experience. It is a multi-purpose facility (or entertainment complex) offering a range of facilities that will be attractive to a broad cross-section of the community. These include bistro and function areas that are likely to attract the patronage of families. This being the case, it is far less likely that the sale and consumption of liquor will result in off-site impacts that could be reasonably be compared to those of venues whose focus is on the serving of alcohol.
As we have stated earlier, the proposed 650 patron capacity establishes the development as a local facility. This limit on patron numbers will have the effect of tempering amenity impacts as it is directly related to the intensity of the proposed use. Also of relevance are the proposed hours of operation. Although the venue is proposed to operate until 3.00am, the Applicant indicated its willingness to accept a midnight and 1.00am closing time. We think this is appropriate having regard to the residential zoning and surrounding land use. This restriction will assist in limiting the impact of the use on the amenity of the area.
Patron behaviour is a further relevant consideration. We acknowledge that the consumption of liquor can, and does, give rise to forms of behaviour that adversely impact on the amenity of a locality. This is a possibility with any licensed venue. We believe that an appropriate management regime needs to be put in place to limit these impacts. To this end, we have included a condition that requires that preparation and implementation of a management plan. This plan will need to address such matters as staffing; compliance with relevant legislation in respect of the service of alcohol; employment of a manager who is to be responsible for ensuring that the conduct of patrons does not cause detriment to the amenity of the area; the maintenance of a complaints register; and liaison with the police.

[78]

We have given our reasons for the inclusion of a number of conditions, which were in dispute, in the context of our discussion about the merits of the proposals. At the conclusion of the hearing there was a discussion about conditions and a further opportunity was provided to the parties to discuss and seek to resolve any outstanding dispute about conditions. The conditions we have included in the permits reflect the conditions agreed to by the council and the applicant. Where a dispute exists, we have exercised our judgement. As indicated, we have made certain changes based on our reasons with respect to various aspects. The only other conditions we wish to comment on are as follows.
We are not persuaded to include a notation on the plan of subdivision to reflect the Public Acquisition Overlay proposed as part of Amendment C149 on Lot 2 of the subdivision. Any acquisition of this land will be part of a separate process. We also note the comment by the Growth Areas Authority that the alignment of this area has not yet been fully resolved. We consider that this condition is unnecessary and could be a complicating factor. We have therefore deleted it.
The applicant has advised that the hotel will provide $100,000 per annum in cash donations to local community groups, charities and sporting clubs in the event that the application is successful. We were told that:
- Donations will be held in a trust set up by the Daley family and shall be distributed on an annual basis.
- Priority will be given to junior sporting clubs that will assist in the development of the sporting ground located on the corner of Princes Highway and O'Neill Road.
- One quarter of the $100,000 or $25,000.00 will be made available for community education and awareness. This money will be made available to a responsible authority, such as the Shire of Cardinia or other recognised service support provider operating in the Shire. It is proposed that these funds would be distributed to gambling awareness programmes to be conducted in the local area and throughout the Shire targeted at different age groups such as mature aged, young adults and youth.
The applicant has said the donation should not be included as a condition in the permit, but it would be prepared to enter an appropriate section 173 agreement if the Tribunal so required. In Bright Newbay, the Tribunal said about such a condition:

[80]

The parties in Bright Newbay generally acknowledged that such a requirement may be better dealt with through the gaming approval, which the Tribunal in that case was also considering, as the Gambling Regulation Act 2003 provides the opportunity for the Commission to impose any condition it sees fit. However, having regard to comments made by Bell J in the Romsey[11] decision, the Tribunal decided not to include such a condition, but to note the undertaking that the venue operator gave to make an annual minimum $50,000.00 contribution to local community and sporting groups through a community fund to be established.
In the present case, the applicant has put forward its willingness to make this contribution as a positive benefit associated with the gaming machine proposal. Mr Hocking made the pertinent observation that from a community perspective it would be unfortunate if the applicant puts forward the prospect of a $100,000.00 per annum community contribution in support of its application and there is then no binding obligation to pay it.
The provision of a section 173 agreement was not opposed by the applicant. If it had been opposed, we do not consider there would be a sufficient nexus between the payment and the permission being granted under clause 52.28 to support such a condition. However, section 173 agreements, where there is a genuine agreement on the part of the permit applicant, enable things to be done, which may otherwise lie outside the normal ambit of conditions in a planning permit. Under section 174 of the Planning and Environment Act 1987, an agreement may provide for a very wide range of matters. A constraint is provided under section 180 that an agreement must not require or allow anything to be done which would breach a planning scheme or a permit. The proposed payment does not contravene this provision.
We have therefore concluded that because the applicant does not oppose the inclusion of a condition requiring a section 173 agreement, one should be included. Payment will provide benefit to the community in various ways.

[93]

(a) Staffing and other measures which are designed to ensure the orderly arrival and departure of patrons.

(b) Signage to be used to encourage responsible off-site patron behaviour.

(c) The training of staff in the management of patron behaviour.

(d) Staff communication arrangements.

(e) Hours of operation for each area of the hotel.

(f) Patron numbers, and how this number of patrons will be controlled by staff.

(g) Measures to control noise emissions from the premises.

(h) Compliance with the Liquor Control Reform Act 1998, including confirmation that all persons engaged in the serving of liquor must undertake Responsible Service of Alcohol Training provided by, or approved by, Liquor Licensing Victoria within one (1) month of employment.

(i) The management and responsibility of crowd controllers including confirmation that security staff employed at the premises must have undertaken a recognised course in crowd control and be licensed under the Private Agents Act 1966.

(j) Liaison with the Victoria Police in relation to the operation of the premises, where required.

(k) The keeping of a complaints register and procedure for dealing with complaints.

(l) Confirmation that all persons engaged for employment in the gaming lounge must undertake Responsible Service of Gaming Training by, or approved by, the Victorian Commission for Gambling Regulation.

(m) The emergency procedures to apply to the premises in the case of an emergency.

(n) The employment of a manager over the age of 21 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. The manager must be authorised by the operator to make statements at any time on his/her behalf to any officer of the Responsible Authority, the Victoria Police and/or of Liquor Licensing Victoria authorised under section 129 of the Liquor Control Reform Act 1998 and/or to take action on his/her behalf in accordance with a direction by such officer.

(o) The installation and maintenance, during all hours of operation and for 30 minutes after the close of the premises each day, of an electronic surveillance system to monitor and record continuous images of all entrances and exits and bar areas. These records must be retained for a period of one (1) month and made available for viewing and/or removal at all times by an authorised police officer or authorised officer of the Council or an authorised officer of Liquor Licensing Victoria.

At a glance

Court

Decision date

Source

Judgment (224 paragraphs)

DSL Securities v Cardinia SC [2011] VCAT 1842 (19 September 2011)

Parties

Legislation Cited (2)