Victorian Civil and Administrative Tribunal|2012-12-14

Flying Horse Bar and Brewery Pty Ltd v Warrnambool CC [2012] VCAT 1920 (14 December 2012)

Flying Horse Bar and Brewery Pty Ltd v Warrnambool CC [2012] VCAT 1920

The decision of the responsible authority to refuse to grant a permit is set aside.
In permit application number P2011-268, being application for review to this Tribunal P581/2012, a permit is granted and directed to be issued for the land known as the Flying Horse Bar and Brewery at 10,691-10,699 Princes Highway, Warrnambool for the installation and use of eight electronic gaming machines in accordance with the conditions of this permit which are set out in Appendix A to this document. The permit is to allow the installation and use of eight electronic gaming machines.

Ms S Brennan, barrister, appeared on the instructions of Norton Rose, solicitors. She presented written and oral submissions and called Colleen Peterson, town planner as an expert witness. Ms Peterson gave oral evidence in the course of which she adopted a written report.

Mr Rob Milner, consultant town planner, appeared. He presented written and oral submissions. On the second day of the hearing on 30 November 2012, Ms Natasha Liddell, town planner of Mr Milner's firm, appeared in his place.

Application under s 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed time.

Installation and use of eight electronic gaming machines.

Mixed Use Zone and subject to a Design and Development Overlay (Schedule 4) and an Environmental Audit Overlay under the Warrnambool Planning Scheme.

Clause 52.28-2 of the Planning Scheme for the installation and use of gaming machines.

A rectangle of land on the south east corner of the intersection of Princes Highway with Mahoneys Road, having a frontage of 22.24 metres to the south side of Princes Highway and an abutment of 123.12 metres to the east side of Mahoneys Road with and area of 5,115m2

This case is about whether planning permission should be given for the installation and use of eight electronic gaming machines in an existing hotel. The professional planning staff of the responsible authority advised the granting of this permission but the responsible authority, as it is entitled to do, did not accept that advice. It determined to refuse the permit sought.
The municipality of Warrnambool is located in the Western District of Victoria and on its south coast. The sea is to its south and otherwise the municipality is surrounded by the Shire of Moyne.
Moyne is a rural shire with a population in the order of 12,500 people.
Warrnambool municipality is largely occupied by the city of Warrnambool. It has a population of approximately 35,000.
The Princes Highway is a coastal highway that runs west from Melbourne to approach Warrnambool from its east. It runs through the centre of Warrnambool and continues off in a westerly direction.
Warrnambool was described by Mr Milner, the town planner who appeared for the responsible authority, as having a central area with a central business district and also East Warrnambool and West Warrnambool. He also toyed with the idea of their being a North Warrnambool.
The review site in this case is located on the south side of the Princes Highway and at or near the eastern periphery of the town.
A railway runs from east to west through Warrnambool. It is located to the south of Princes Highway and to the south of the review site which, in turn, is located on the south east corner on the intersection of the Highway with Mahoneys Road.
The Flying Horse Bar and Brewery is an hotel located on that south east corner. It is a recently built and contemporary style structure. It has been established pursuant to planning permission granted by the responsible authority in recent years. It does not provide sleeping accommodation but does provide meals and a venue for functions and entertainment together with a bar and a Totalisator Agency Board (TAB) betting shop. Until recently it also contained a so-called boutique brewery. This brewery function has been relocated, although its products are still sold at this hotel.
The hotel is part of an integrated development which includes substantial areas of car-parking that can serve the hotel and also the businesses in the adjacent building. These businesses are a petrol service station and a McDonalds Family Restaurant.
In my opinion, these are so-called "highway uses". That does not mean that they will not attract and accept some custom from the township or surrounding district. Nevertheless, they are appropriately located on a busy highway and are partly dependent on custom from that highway. Something similar can be said in relation to the Flying Horse Bar and Brewery.
Mr Milner sought to make much of the so-called "service" facility offered by the service station. He claimed that it was an obvious local opportunity for residents and university students to obtain newspapers and daily wants.
The petrol service station, as is common, sells some so-called "convenience" goods although this does not amount to a separate use as a convenience shop. There is no separate planning permission for such a use. In any event, it is clear that this is a highway use rather than any sort of conventional convenience shop. There is no nearby or surrounding residential catchment from which a sustainable demand for convenience goods can be expected. There are no footpaths on the south side of the highway in this vicinity.
Vehicle access to the businesses on the site can be obtained from the highway frontage, but there are also crossings from Mahoneys Road over the eastern side boundary.
A campus of Deakin University is located to the east and south of the review site. This is obviously a rural campus and approximately a quarter of the students are accommodated on the campus. Others have accommodation provided by the university, but off campus. The on campus halls of residence are more than 1km from the review site and the service station.
There is a residential area further to the south although it is substantially cut off from the review site by the railway line. Nevertheless, Mahoneys Road crosses the railway lines so that people could walk from the residential area to the review site via Mahoneys Road.
There is a complex pattern of zoning in and around the review site. The review site itself is in a mixed use zone. Mixed use zoning is a residential zoning, although, in this instance, the land is substantially in other uses not, residential.
To the west of the review site, on the western side of Mahoneys Road, and on the south west corner of its intersection with the Princes Highway, there is a substantial "Homemakers" centre. I think the floor area thereof is said to be 24,000m2 of which the vast majority is intended for restricted retailing type uses, that is to say, uses like furniture and carpet sales that require large areas but which cannot sustain the sort of rent per square metre that might apply to ordinary shops of an ordinary scale.
This complex contains 6000m2 which, by virtue of a schedule in the planning scheme applicable to the land, can be used for shops. However, such shops have to each have a minimum floor area of 1000m2 . Shops with this sort of floor area will hardly be offering day to day "convenience" goods. At present there cannot be a supermarket in the homemakers centre although there was a proposed planning scheme amendment has been prepared to allow a small supermarket there, perhaps an Aldi discount supermarket. That idea has now been abandoned. All this is a use and planning arrangement quite consistent with the notion of a highway use.
On the north side of the highway there is a Bunnings Hardware. Likewise that is a highway use.
The existing hotel, though it contains a TAB betting room, does not contain any electronic gaming machines. This application is for permission for the installation and use of eight such machines. They would be accommodated in an existing room that opens off a function area or dining area. It is not a large room and could not conveniently contain more, or at least very few more, than eight machines.
At present this room has an external double glass door facing to the east, that is to say, directly towards the McDonalds facility. This is by no means the main entrance to the hotel. If permission is granted it would be appropriate to eliminate this door, even if by means of an arrangement that would still admit light. There should be no opportunity of direct passage from the McDonalds facility, any outdoor dining facilities thereof, or its immediate carpark, into the gaming room. A condition could be imposed to prevent such access and to reconstruct that wall so it did not appear as a doorway.
It is common ground that no planning permission is required in connection with this proposal under the mixed use zoning provisions of clause 32.04 of the planning scheme, nor under either of the applicable overlays, namely, the Design and Development Overlay and the Environmental Audit Overlay.
There is an existing full range Coles supermarket a short distance to the north west. There is also a rival Woolworths near that supermarket, but to its south. All this is within the so-called Gateway Plaza Shopping Centre (154 Raglan Parade, Warrnambool).
The nearest residential zone is a Residential 1 Zone to the west of the Coles supermarket. Its distance, as the proverbial crow flies, from the review site is approximately 800 metres, although the nearest dwelling to the review site is 1.2km away by the shortest practical route.
There are a number of hotels and clubs in Warrnambool. There are six electronic gaming machine venues. There are several small hotels which Mr Milner described as "Irish pubs" and which do not have, and lack space for, gaming machines.
The majority of larger hotels that could accommodate gaming machines already have a greater or lesser number of them. However, the Flying Horse Bar and Brewery does not. There are two others without such machines.
There is an overall limit of 234 on the number of gaming machines allowed for the area. The eight machines for the Flying Horse, if allowed, will not increase that number. The eight would come from another existing premises with an existing licence for electronic gaming machines. The previous duopoly of Tatts and TabCorp in relation to electronic gaming machines has been broken. There is something of a market where the right to relocate existing machines within the limit can be purchased. The Flying Horse Bar and Brewery has purchased eight. However, it cannot install or use them without planning permission under s 52.28 of the planning scheme in relation to gaming.
The limitation to eight machines is a severe limit. I am informed that the most that is allowed at one premises, apart from Crown Casino, is 105. The other venues in Warrnambool have varying numbers up to about 50.
The limitation to eight Flying Horse Bar and Brewery machines means, of course, that not more than eight can be in operation at once. If there are many potential players of gaming machines they must either await their turn or go somewhere else.
It is said that it is envisaged by the management of the Flying Horse Bar and Brewery that usage will be incidental to the other activities and patronage of the hotel, rather than people coming specifically for gaming. A customer coming specifically for gaming might prefer other premises with more machines, not only to avoid the possibility of having to wait a turn, but also because of other restrictions such as small number imposes. Machines are set to accept set amounts of wager per play and there are various sorts of games that can be played. A particular player may find that there are few, or perhaps no, machines that offer the game he or she prefers and at the wager that he or she prefers. These circumstances seem to me to be a significant disincentive for patrons to come to the premises for the purpose of gaming. Other premises with more than eight machines are highly likely to be more conducive.
The existing Warrnambool gaming venues are dotted around within and around the central business area and are accordingly located a considerable distance to the west of this site. Ms Petersen, the town planner who gave expert planning evidence on behalf of the applicant company, claims that this was not an accurate description of the situation. I am satisfied, on reviewing the evidence, it is.
The purpose of the particular provisions in relation to gaming is at clause 52.28 of the planning scheme can be found in clause 52.28-1. Three purposes are nominated. Those purposes read:

To ensure that gaming machines are situated in appropriate locations and premises;

To ensure that social and economic impacts of the location of gaming machines are considered;

To prohibit gaming machines in specified shopping complexes and strip shopping centres.

Clause 52.28 accordingly is concerned with shopping complexes and strip shopping centres. The review site is not contained within a shopping complex. That contemplates something of a drive-in detached shopping centre like Northland or Highpoint (although they are very large ones), as opposed to a strip shopping centre which is a traditional set of shops, whether actually in a strip or not.
Clause 52.28-3 prohibits the installation and use of gaming machines in a shopping centre specified in a schedule to the clause. This prohibition is subject to an exception that is not relevant for present purposes. The relevant schedule prohibits gaming machines in the Gateway Plaza Shopping Centre. It can be described as being located at eastern gateway of the Princes Highway to Warrnambool. The review site is also part of the gateway, being situated even further to the east.
There is a somewhat similar arrangement in relation to the prohibition of gaming machines in strip shopping centres. This appears in clause 52.28-4. Apart from an irrelevant exception, gaming machines are prohibited by clause 52.28 in accordance with a schedule in this planning scheme, both in specified shopping centres or in all strip shopping centres. The prohibition in the relevant schedule in the Warrnambool planning scheme prohibits gaming machines in all strip shopping centres.
Clause 52.28-4 contains a definition of what is meant by a strip shopping centre for the purposes for the clause. It is not necessary to go into details here as it is common ground that the review site is not in a strip shopping centre.
However, it can be relevant to consider the definition of a strip shopping centre to see what light it shines on the intention of the prohibition and of the gaming clause generally. To be a strip shopping centre it must meet all of the following requirements:

it consists two separate buildings on at least two separate adjoining lots;

it is an area in which a significant proportion of the buildings are shops;

it is an area in which a significant proportion of the lots abut a road accessible to the public generally.

The purpose of the third clause 52.28-1 is to prohibit gaming machines in specified shopping complexes and strip shopping centres. The other purposes seek to ensure that gaming machines are situated in appropriate locations and premises and that the social and economic impacts of the location of machines are considered.
It is these two purposes that raise the key issue in this case. In fact the key question is one of location. Is the Flying Horse Bar and Brewery an appropriate location for the proposed electronic gaming machines? There is no real issue in this case as to whether the Flying Horse Bar and Brewery premises are suitable, or can be rendered suitable by alterations to the eastern wall of the proposed gaming room.
It seems to me that the second purpose requires that social and economic impacts are to be considered in relation to that question of location. That is what the purpose in fact says.
Location then is the key issue, with social and economic effects to be taken in account in determining it.
Quite apart from this planning case, the proposal requires approval of the Victorian Commission for Gaming Regulation (the Commission). The Commission conducted a hearing on 9 December 2011 and gave its written determination on 11 January 2012. The scope of what was relevant to the Commission differs from what was relevant to the present planning case and includes considerations going beyond planning. There is some overlap. The Commission considered the proposed venue to be suitable, and I agree. It was also satisfied that the proposal is unlikely to cause an increase in problem gambling either in the immediate vicinity of the Flying Horse Hotel or generally throughout the City of Warrnambool.[1] It also said, at its paragraph 43, that the proposal is unlikely to have significant social or economic benefit or harm. As required by the second purpose in Clause 52.28-1 of the planning scheme, I have too considered social and economic effects of the location, and come to a similar view in that respect.
Of course "considered" does not mean the same thing as prohibited and the concept of social and economic impacts is a varying one.
The purposes do not refer to the number of gaming locations so that consideration, heavily relied upon by the responsible authority in accordance with a policy it has adopted[2] but it is really only an indirect consideration in terms of the purpose as expressed in the clause.
It is clear that clause 52.28 contains an underlying policy concern about the location of gaming machines. It would appear that this includes a concern that they should be avoided or prevented in at least many ordinary shopping locations. I would infer that it is thought desirable that people should not be confronted with gaming machines, and the temptation to play them, in the ordinary course of necessary activities associated with ordinary life, including shopping.
As I mentioned in the hearing, I have seen evidence indicating that in places outside of Australia, electronic gaming machines have been permitted inside what we would call milk bars or convenience shops where people young and old and of various sorts and conditions must come and go. Other locations are bus stops, railway platforms and even lavatories.
Though such locations are prohibited in Victoria, they present a stark example of locations and premises that might reasonably be taken to be inappropriate for social, economic or other reasons.
Does "economic" here mean private financial considerations or wider economic considerations? It is usually the latter that is taken to be relevant in planning terms. Social, however, pertains to the individuals in society. Private financial stress might be taken to be "social" in this context.
It was perceived by many, including the previous Premier, Mr John Cain, and the inquiries conducted for the Cain government by Mr Xavier Conner, QC (as he then was), that there were perceptions of serious dangers and adverse social and economic impacts if gaming machines were allowed in Victoria at all. Their introduction might be supposed to have had social and economic impacts of a substantial nature generally, so that social and economic impacts merely relating to location might be relatively minor in comparison. However, for good or ill, electronic gaming machines are lawful in Victoria and it is only locations, including the social and economic impact of locations, that call for planning consideration.
The responsible authority asserts that the residential area to the west of the Gateway Plaza Shopping Centre is one of a lower advantage in terms of social and financial considerations than some other parts of Warrnambool. It goes on from there to mount an argument against this proposal, not on the basis of the total number of machines in Warrnambool, but because, it is said, there is danger inherent in an increase in the number of venues. I think that this is a minor consideration if a proposed extra venue was appropriately located in accordance with the stated purpose. It is not something expressed in the purposes of clause 52.23.
The proposition is put in terms of convenience. Some research or discussion documents are referred to that suggest that potential gamblers, including so-called "problem" gamblers, are likely to treat convenience to home as an important consideration in choice of venue and that they are likely to favour venues within walking distance of up to 400 metres. Of course this venue, by practical routes of travel, is well in excess of 800 metres; pedestrians, cyclists and motorists and their passengers being unable to follow the straight lines that might be available to airborne crows.
It was later suggested that gamblers, particularly habitual problem gamblers, spread their custom amongst various venues. It strikes me as plausible that habitual or problem gamblers would do this to avoid embarrassment and to stave off identification as being habitual or problem gamblers.
I have found this argument of the responsible authority to be unconvincing where it seeks to establish that this venue would be more convenient to that area than existing gaming venues.
In any event, I think this consideration is hardly relevant in relation to problem gamblers. People addicted to gambling, like those addicted to alcohol or other things, are likely to seek out what they desire at more distant or inconvenient locations if they are not available closer by.
The responsible authority pointed to a distinction between accessibility and convenience. However, I cannot see that it has established that this proposed new venue, though it might be accessible, would be convenient. It would only be convenient to patrons already going to the hotel for other reasons but the attraction of other reasons, would be vastly greater so far as the central activity area is concerned. There are so many other reasons to visit the central activity area including shopping, entertainment, cultural occasions, banking, professional services, post office and so on and on.
Ms Brennan, the barrister that appeared for the applicant, points to a paradox in this connection. There seems to be an argument that it is desirable that gaming machines should be located in the central activity area amongst other sporting, recreational, commercial, etc attractions, so that gaming has to compete with these other attractions but this means that machines will be handy and accessible to people present for other purposes. However, convenience is said to be a disadvantage where it increases the likelihood of incidental or opportunistic gaming that might not otherwise be indulged in if someone was not near the gaming facility for other purposes.
It may be more to the point to be concerned about people who are not problem gamblers who might be attracted or enticed to indulge in gaming. It is all very well to talk about innocent gaming entertainment for people who are not addicted to gaming. As with alcohol, drugs and smoking, people who start do not plan to become addicted. Considering the suffering caused by such addictions, it is hardly likely that people would begin indulging in the expectation of becoming addicted. It is only those who do not indulge, or who currently indulge without addiction, who run the risk of becoming addicted. It may be for their benefit that inappropriate locations are to be avoided where "inappropriate" means tempting or confronting people who have not set out with the idea of gambling.
On this basis, locations that call for a deliberate decision to seek them out are to be preferred over those that will confront people lacking any such intentions.
The responsible authority also advances an argument that some hotels should be kept free of gaming for the benefit of those who may prefer to attend hotels that have no gaming. This apparently is advanced as a town planning consideration. Normally it is a matter of deciding whether a location is suitable to a proposed use and then letting those that have suitable locations compete in the market.
Some total abstainers or temperate users of gambling may prefer or insist upon venues that do not offer gaming whilst others may tolerate its presence, or nearby presence in other rooms, whilst not indulging themselves. A parallel with liquor can be seen in this respect.
If there is sufficient demand, perhaps sufficient insistent demand, for the provision of such hotels where no gaming is provided, the market would presumably ensure their provision without the intervention of planning. It is not normally for planning to insist on something that perhaps nobody wants, if it is something for which there is no actual direct need. If there is such an insistent need, that will represent a commercial opportunity that someone in the market will surely seek to exploit. It could represent a commercial advantage, just as the presence of machines might be a commercial advantage in attracting those who would like to gamble.
I do not give this consideration weight in the present case, firstly because of my doubts of its appropriateness as a planning consideration, but secondly because its basis is not borne out by the evidence. In a table on pages 18 and 19 of his written submissions, Mr Milner refers to nine hotels plus a tavern and a night club where only two of the hotels have electronic gaming machines. This consideration is based on the policy adopted by the responsible authority but it is not part of the planning scheme. Indeed, I am informed that it is not referred to in the planning scheme and that there is no intention for it to go into the planning scheme. As such, it cannot expect to receive weight.
In any event this proposal is not contrary to the principles upon which the policy is based. The responsible authority's submission sets out these principles as recognising that gaming is legal in Victoria, that the total number of electronic gaming machines in the municipality exceeds the statewide average, that the responsible authority does not support additional machines in Warrnambool, that the responsible authority will not consider the transfer of machines from more socio-economically advantageous areas to less socio-economically advantageous areas and that gaming is carried out in an environment that develops and reinforces a commitment to responsible gaming to the central activities area. I doubt that it is proper for the responsible authority to determine, in advance, that it will not consider things that it has a duty, as a responsible authority, to consider. In any event, this proposal is not contrary to any of those principles. I will consider them individually later in these reasons.
At the end of his written submissions, Mr Milner has his Part 12 headed "The social and economic costs and benefits of the proposal". He has a list of what he recognises as six benefits, seven costs and two propositions, that, he claims, should not be claimed as benefits.
He took the entire first day to present his case on behalf of the responsible authority, and that without calling any witnesses. His presentation was meticulous and exhaustive. Time was used in the course of the day, in the discussion and examination of a number of points that he raised. That was perhaps inevitable in that many were at least not obvious, if not dubious, and were supported, not by evidence, but more by theoretical argument and guesswork. Many propositions, although possible, could not be described as substantiated or probable. That is not to criticise his work as an advocate on the basis of irrelevance. He did a thorough going job in conceiving and mastering a considerable array of arguable submissions (although a number seemed to me to amount to no more than that).
For example, the fifth of his "costs" is that there is strategic and structural advantage of having all gaming venues in Warrnambool located in or around the robust and diverse environment of the central city and that this would be lost or, as he qualified this proposition, eroded, if the current proposal was to be permitted. Such a submission begs the question as to whether there is a strategic and structural advantage in having them so located, and if so, whether that is lost by the relocation of some of them to a less accessible location; and whether, if there is more than a theoretical advantage, it is not so trifling as to be insignificant. I do not think the strategic or structural importance of the central activity area would be compromised by this minor proposal and I do not regard this so called "cost" as being significant in relation to it.
The fourth of his "costs" is that shoppers and users of convenience services around the site would be increasingly exposed to the convenience of and opportunity for impulse gaming. That must be true, to a greater of lesser extent, to any premises where there are electronic gaming machines. In this instance the word "lesser" is the appropriate one.
I think that exposure to the convenience of and opportunity for impulse gaming is the most important consideration in relation to the appropriateness or otherwise of gaming locations, and that this is the most important consideration by a considerable degree. It seems ironic to reflect that this exposure to convenience and opportunity is far greater in relation to the concentration of venues in and around the more robust and diverse environment of the central city.
It was obvious, prior to the legalisation of electronic gaming machines in Victoria, that there was a significant body of opinion that was very apprehensive about such an introduction and that this was based on an apprehension of social problems, including problem gambling.
Location is a relevant consideration, and that is reflected in clause 52.28. Its introduction with control provisions enabling regulation of location in terms of shopping centres reflects an appreciation, perhaps a growing appreciation, of the adverse social effects that legalisation of electronic gaming has brought. Nevertheless, it is only location that planning controls. The decision to legalise such gaming has been made by the parliament and it would be for the parliament to decide if it should again be prohibited or phased out. Location is a much lesser issue, but still one of relevance.
It is possible to imagine some locations as being much less appropriate than others, and clause 52.28 reflects policy based on such thinking.
Although some venues may be much more inappropriate than others, some differentiations may be so fine as to be insubstantial or trifling. I would describe some differences argued for by the responsible authority in this case are really ephemeral.
Mr Milner referred to the Warrnambool Gaming Policy 2011. This policy has been adopted by the responsible authority but it is not part of the planning scheme, nor is it referred to in the planning scheme. Furthermore, there is no intention of it going into the planning schemes. In these circumstances, as was observed in paragraph 63 above, it can receive little weight.
According to 6.5.1 of (page 13) of the written submissions of the responsible authority, the policy is based on several principles including the recognition that gaming is legal in Victoria, that the total number of gaming machines in the municipality exceeds the statewide average and that the responsible authority will not support additional machines in Warrnambool. Furthermore:
- Council will not consider the transfer of machines from a more socio-economically advantageous area to a less socio-economically advantageous area.
- That gaming is carried out in a environment that develops and reinforces a commitment to responsible gambling.
I do not see that this proposal offends any of those principles although, as I have said, I doubt that the responsible authority is supposed to refuse to consider the proposals that are brought before it.
The written submissions of the responsible authority[3] put forward the following propositions as relevant to this case.
- Council will not support planning proposals where the venue is situated in, or adjacent to residential areas of relative socio-economic disadvantage.
- Council will give preference in approving any potential transfer of EGMs[4] to proposals that do not result in additional venues within the municipality.
- Council will give preference to planning proposals for venues located close to other opportunities for social participation and entertainment.
- Council will favour planning proposals at venues, which offer a variety of recreation opportunities, not just focus on electronic gaming.
- Council will not support planning proposals for venues that offer the extended hours of operation.

This venue is not situated in or adjacent to a residential area of relative socio-economic disadvantage.
The question in this case is whether the proposed location is suitable for what is in fact proposed. The responsible authority may have less concern about machine transfers between existing venues, but the current proposal still has to be determined on is merits. On its merits this venue is, in my opinion, suitable for what is proposed.
This proposed venue is located close to other opportunities for social participation and entertainment.
It is also a venue that offers a variety of recreational opportunities and where, even if eight machines are introduced, the venue will not focus on electronic gaming. Unlike some other potential venues that are located close to opportunities for social participation, entertainment and recreation, this venue is not also in proximity to convenience shopping needs or other everyday activities such as occur in the central activities area.
The last proposition in the above list does not spell out what is meant by "extended hours of operation" but this is a matter that could be controlled by conditions if necessary.
It was noted, by the way, that a gambling policy review 2012 is being undertaken for the responsible authority but this has not been adopted and it has been common ground that it cannot be relied upon in relation to this case.
Mr Milner, on behalf of the responsible authority, specifically disavowed reliance upon the concept of net community benefit in relation to this case.
I do not accept the suggestion that this minor matter would undermine the status of the central activity area of Warrnambool.
The Flying Horse Bar and Brewery, and its gaming room would be accessible. All premises have to be accessible, if they are to be used at all. That does not mean that they are inappropriately convenient, either to residential areas or to places to where people must come and go for convenience shopping and other day-to-day purposes. This is not such a place and it is not subject to that sort of objection.
Incidental or opportunistic encounters with gaming are not likely to be promoted by this proposal. People will not even be in the vicinity of the gaming room if they have made a deliberate decision for other reasons to attend at the Flying Horse Bar and Brewery. There are not even likely to be purpose gaming visits to this gaming room because it is so limited in number of machines and opportunities for differing games and differing wager amounts. Other venues will, generally speaking, be much more attractive and often more convenient.
This place is not within convenient walking distance from homes or convenience facilities. People who come here will be passing on the highway or have come for other purposes.
Clause 52.28-5 of the planning scheme contains some decision guidelines in relation to permit applications of this sort. Apart from general considerations applicable generally to permit applications, there are three specific guidelines.
The first is that consideration must be given to the compatibility of the proposal with adjoining and nearby land uses. For reasons given above, I am satisfied that this proposal is so compatible.
The next consideration is the capacity of the site to accommodate the proposal. That consideration was not in issue in this case and, in any event, the site clearly can accommodate the proposal.
The third guideline for consideration is 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. Of course, in this case it is hotel facilities that are to be considered. There is here a full range, having regard to current liquor licensing requirements.
For these reasons I consider that this location is suitable for what is proposed. I therefore agree with the officers of the responsible authority in their recommendation that this proposal should be approved. To the extent that there is an overlap with the considerations relevant to the decision of the Commission, I also agree with the Commission. In my view a permit should be granted.

A permit is granted for the land known as the Flying Horse Bar and Brewery at 10,691-10,699 Princes Highway

Warrnambool for the installation and use of eight electronic gaming machines in accordance with the conditions of this permit which are set out in this Appendix A.

Before any electronic gaming machines are installed or used on the land amended plans must be submitted to the responsible authority for approval. The plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans are to show:

the dimensions of the room in which the electronic gaming machines are to be located and its position within the premises including means of access to it (limited to one access from within the building) and the proposed location of the machines; and

modifications to the eastern wall of the proposed gaming room so that it will no longer contain a door to the outdoors and it will not appear as a means of entry to the gaming room, so that it will not be a means of entry and so that the gaming room will not be able to be observed from the outside to be a gaming room, (although light may be admitted through windows in that wall).

No more than eight electronic gaming machines are permitted to be installed or used at the premises.
Except with further consent of the responsible authority the use of the gaming room and the use of the electronic gaming machines within the premises is only permitted during the following hours:

9am until 1 am the following day on Thursday Friday and Saturday.

The installation and use hereby permitted must be managed to the satisfaction of the responsible authority so that the amenity of the area is not detrimentally affected, through the:

a transport of materials, goods or commodities to or from the land;

emissions of noise, artificial light, vibration, smell, fumes, smoke vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

presence of vermin; and
management of car parking by patrons so as not to cause any disruptions to the amenity of the area and inconvenience to other landowners.

The electronic gaming machines hereby permitted are not to be installed or used until the proposed gaming room has been modified to the satisfaction of the responsible authority as follows:

access to the gaming room is to be by one door or opening only with such access to be from within the existing building; 2. there is to be no direct access to the gaming room from outside the building; and

the existing eastern (exterior) wall of the room to be used as the gaming room and which contains a door to the outside is to be replaced with a wall that does not contain a door, and which does not allow views into the room from the outside although it may allow outside light into the room.

[1] Paragraph 37 of the reasons of the Commission

[2] I will refer again to this policy at a later point.

Flying Horse Bar and Brewery Pty Ltd v Warrnambool CC [2012] VCAT 1920

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Flying Horse Bar and Brewery Pty Ltd v Warrnambool CC [2012] VCAT 1920 (14 December 2012)

Parties