Glenroy RSL Sub Branch Inc v Moreland CC [2017] VCAT 531

Glenroy RSL Sub Branch Inc v Moreland CC [2017] VCAT 531 - VCAT 2017 case summary — Zoe

[31]

The Glenroy RSL Sub Branch Inc (the Glenroy RSL) has conducted its activities from premises on the subject land in Glenroy Road since 1957. For more than 20 years, the Glenroy RSL's premises have included a room in which members and guests have played electronic gaming machines (EGMs). Since around 2001, the room has contained 40 EGMs.
Revenue from the EGMs helps the Glenroy RSL provide welfare and support services to returned service people and their families. We agree with the views expressed on a number of occasions by the Victorian Commission for Gambling and Liquor Regulation (the Commission), that RSLs provide a unique and strong community service.[2]
The Glenroy RSL's single-level premises currently comprise a lounge (with TAB and pool table), a 140-patron function room, a 100-seat bistro, a 40 EGM-gaming room and a children's play area (the premises). There is car parking to the east side and rear of the premises. The premises are tired. The Glenroy RSL believes its premises struggle to meet the needs of its members and the local community and will not meet future needs.
The Glenroy RSL wants to substantial upgrade to its premises with a major internal refurbishment. It involves a marginal increase in the building footprint. The footprint of the gaming room is unaltered but the number of EGMs is proposed to be increased by 10 to 50. The lounge is changed to a sports bar. The function room is to have a new bar, toilet facilities, stage and an alfresco area.
The Glenroy RSL has submitted, in this proceeding, that the anticipated increased revenue from the 10 additional EGMs is essential to fund the upgrade to its premises.
In 2001, the Council granted a permit under the Moreland Planning Scheme (the scheme) that, in effect, authorised the installation and use of the 40 existing EGMs (the 2001 permit). The Glenroy RSL applied to the Council to amend the 2001 permit to allow the 10 additional EGMs, the buildings and works to refurbish the premises, and to extend the area in which liquor may be supplied and consumed. Public notice was given of the application. The Council received objections.
The Council issued a notice of decision dated 23 May 2016 to amend the 2001 permit. The notice of decision allowed the buildings and works and the extension to the liquor licence but did not allow the 10 additional EGMs. Conditions 1(a) and 6 in the amended 2001 permit maintained the 40 EGM cap. The Glenroy RSL has applied to the Tribunal to review these two conditions. No objector applied to the Tribunal to review the Council's decision.[3]

[35]

The Council did not apply to the Tribunal to review the Commission's decision under the GR Act. Accordingly, we are only reviewing the Council's decision under the Planning and Environment Act 1987 (the PE Act).
The Moreland Resident and Ratepayers Action Group Inc supports the Commission's decision and its representative, Ms Jennifer Jacomb, submits the Council is estopped by its decision to withdraw its objection to the Commission (ie to not oppose the 10 additional EGMs) from issuing the notice of decision under the scheme (ie to oppose the 10 additional EGMs). We do not accept that submission. The application regimes under the GR Act and PE Act are separate and distinct, although linked.
We agree with Ms Hicks' submissions that our task is not a de facto review of the Commission's decision. The Commission's decision does not in any way mean that we must allow the Glenroy RSL's review application. In essence, we must decide if the Glenroy RSL's application to amend the 2001 permit is an acceptable planning outcome, having regard to the provisions of the scheme, without the inclusion of the two disputed conditions in the notice of decision.
Although the application regimes under the GR Act and PE Act are separate and distinct, they overlap. This overlap is illustrated by the Commission's task to consider whether the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. The Commission's primary focus is accordingly on the municipal district.[6]
As we state later in these reasons, the Council's task (and the Tribunal's task, on review) is more confined and has a narrower focus.[7] This is because the purpose of the provision in the scheme under which a permit is required to install additional EGMs includes to consider the social and economic impacts 'of the location of gaming machines'.
We infer from the Council's withdrawal of its objection to the application under the GR Act that the Council is satisfied that the net economic and social impact of 10 additional EGMs in the premises would not be detrimental to the wellbeing of the Moreland City community.
The Commission's findings are not a complete answer to our task because, despite the overlapping nature of some considerations, we are making a decision under a different legislative regime. Nonetheless, we place considerable weight, but not overriding weight, on the Commission's findings.[8]
We do so for the following main reasons. First, the application was not contested by the Council.[9] Second, there is no special reason to revisit the Commission's findings. Third, the Commission had before it more expert evidence on social and economic impacts than was before us. Fourth, the Commission considered the narrower context of impacts, being impacts on the area within a 2.5 km radius of the premises and did do with the benefit of expert evidence.
In relation to the second of these reasons, the Council submitted there is a special reason, being the status of its policy. The policy is now part of the scheme. We do not find this a special reason that warrants giving the Commission's findings less weight. There is no difference in substance between the Council's policy before the Commission and the policy now before us that is included in the scheme.
So, we now turn to the Commission's findings. We summarise the relevant findings as follows:
- (a) Moreland has a population growth above the Victorian average.[10]
- (b) Part of Moreland, that does not include the premises, is subject to a regional cap of 640 EGMs and the remaining part of Moreland, that does include the premises is subject to a municipal cap of 445 EGMs. The additional 10 EGMs would result in the EGMs in the municipal cap area rising to 139 which would remain under the 445 EGM cap.[11]
- (c) The current EGM density in Moreland of 5.2 EGMs per 1,000 adults is lower than the Melbourne metropolitan average of 5.4 and Victorian average of 5.7, and would remain lower than both of those averages if the additional EGMs were installed.[12]
- (d) EGM expenditure per adult in Moreland is $468 or 18.8% lower than the Melbourne metropolitan average and 15.5% lower than the Victorian average, and the additional EGMs would result in expenditure per adult rising by 0.9%.[13]
- (e) In the area within a 2.5 km radius of the premises, 65% of the SA1s (the smallest unit for release of Census data) are in the two most disadvantaged quintiles of the SEIFA index of relative socio-economic disadvantage score in Moreland.[14]
- (f) Unemployment decreased in Moreland in the previous twelve months but remained 0.8% above the Melbourne metropolitan unemployment rate of 6.6%.
- (g) The low level of anticipated new expenditure (about $54,000) from the new EGMs, the Moreland demographic profile and the age profile of the premises' patrons are indicative of the potential increase in problem gambling being low.[15]
- (h) The area around the premises is undergoing urban renewal and demographic and socio-economic change.[16]
- (i) On balance, the additional EGMs will have a minor but positive economic impact on the Moreland community.[17]
- (j) The Glenroy RSL's status as a club and its members' older demographic profile may decrease the risk of problem gambling and the additional EGMs do not affect these factors.[18]
- (k) Moreland is not particularly vulnerable to problem gambling and the potential for increased problem gambling in Moreland resulting from the additional EGMs is low.[19]
The Inner North West Primary Care Partnership (the INWPCP) represents more than 30 health and human service agencies with the municipal districts of Melbourne, Yarra, Moonee Valley and Moreland.[20] Its submission referred to the health impacts of gambling, higher problem gambling rates in lower socio-economic status areas, the correlation between problem gambling and family violence, homelessness, mental health and drug use.
We are unable to rely on these submissions to refuse Glenroy RSL's application because the submission in broad terms oppose use of EGMs contrary to the effect of GR Act and because to refuse on the INWPCP's grounds would amount to a de facto review of the Commission's decision.[21]

[42]

Mr Milner accepts that the subject land is not in a strip shopping centre. However, in his opinion the subject land is, nevertheless, not an appropriate location for the additional EGMs because he considers it is close to, indeed opposite, a strip shopping centre being, an area directly opposite the subject land to the south bounded by Glenroy Road, Wheatsheaf Road and Argyle Street. Consequently, in his opinion, the subject land is an inappropriate location because it is convenient to and a temptation to users (including shoppers) of that area who are problem gamblers.
The subject land is in the Glenroy activity centre. The centre comprises two main shopping areas. One is along Pascoe Vale Road. The other is along Wheatsheaf Road between the railway line and Argyle Street. These two shopping 'strips' are 'zoned for commercial use' being in the Commercial 1 Zone and contain the traditional line of shop buildings attached to each other, and mainly used for retail and ancillary services.
The area that Mr Milner considers is a strip shopping centre opposite the subject land on the south side of Glenroy Road includes the strip along Wheatsheaf Road to which we refer.
However, that part of Mr Milner's area on the south side of Glenroy Road near the subject land does not exhibit the characteristics of a strip shopping centre. The buildings opposite the subject land are purpose-built office buildings and used mainly for offices (and occupied by VincentCare and Scope, both welfare organisations). By design, they do not provide shop windows typical of retail premises. We do not accept Mr Milner's opinion that the VincentCare premises were built as shop premises. The only commercial use is a pizza take-away on the ground floor of 177 Glenroy Road. These buildings are separated from the Wheatsheaf Road shops by a laneway and have no visual nexus with the Wheatsheaf Road shops.
We accept that a permit would not be required under the scheme for these offices to change to a shop use, having regard to the provisions of the Commercial 1 Zone in which the offices are located. However, these buildings are not designed for retail and it is unlikely that they will become shops and hence the land opposite the subject land being regarded as a potential (if not actual) strip shopping centre.
Accordingly, we find part of Mr Milner's area on the south side of Glenroy Road near the subject land is not part of the Wheatsheaf Road shopping area and is not a strip shopping centre. As a result, we do not agree with this opinion that the subject land is in an inappropriate location for that reason.

[43]

It is local policy to discourage EGMs in '[s]uburbs of socio-economic disadvantage as defined by the SEIFA index of Relative Socio-economic disadvantage (IRSD)'.[24]
Mr Milner's opinion is that the additional EGMs should be discouraged for the subject land because Glenroy is second to only Fawkner as the most disadvantaged suburb or neighbourhood in Moreland as defined by the SEIFA index. Glenroy has a rating of 930.5 and that sits below the national threshold of 1002 and Moreland's threshold of 998.
We have already referred to the Commission findings about the relative disadvantage of small areas within 2.5 km of the subject land compared to other parts of the municipal district further to the south.
Mr Anderson cautions against placing significant weight on these SEIFA ratings because they relate to data from 2011 and because he contends the socio-economic profile of Glenroy has changed and will continue to change and become less relatively disadvantaged. He relies on emerging urban renewal and further anticipated renewal having regard to the planned forthcoming removal of the level crossing on Glenroy Road and the economic boost that will give to the activity centre, in particular. Mr Milner agreed that there has been gentrification around the activity centre since 2011 and the removal of the level crossing will boost gentrification. The Commission accepted there was evidence of urban renewal.
We have inspected the activity centre and its surrounds. Recent urban renewal is tentative and, at this stage, not significant. It is largely confined to medium density housing in townhouse format on a sprinkling of lots at the periphery of the activity centre. We do not consider this housing being designed for persons with a significantly different demographic profile from existing residents. Our inspection of the activity centre also revealed a high proportion of community and retail uses associated with welfare, community assistance, and shops relating to an area that is far from well-to-do, such as opportunity shops, low value retail shops, and a sizeable pawn shop in the main shopping strip in Pascoe Vale Road.
We understand that two of the important factors in determining SEIFA ratings are personal income and household income. We agree with the Tribunal's observation in Pakenham Racing Club that lower than average personal and household income has a doubtful relationship to problem gambling and hence cast doubt in relying on SEIFA ratings for disadvantage.[25] Mr Milner conceded that the relationship or link between disadvantage and problem gambling is not settled.
Having regard to the policy emphasis on SEIFA ratings and to our inspections, we find the subject land is located in an area of relative socio-economic disadvantage to other areas in the municipal district. Accordingly, it does not particularly respond well to this aspect of local policy.
As well, it is local policy to '[e]ncourage gaming machines to be transferred from areas of low socio-economic disadvantage to areas of high advantage'.[26] The Glenroy RSL submits that it expects to be successful in sourcing the additional EGMs from Longreach RSL in Chelsea in the City of Kingston.
Mr Milner's opinion is that the additional EGMs do not respond well to this policy aspect because Chelsea has a SEIFA score of 1000.4 compared to Glenroy's 930.5 and the EGMs would therefore be moving to a more relatively disadvantaged area. We do not agree with Mr Milner because the policy cannot apply to transfers from outside Moreland because the scheme has no affect in such areas.

[49]

It is local policy to ensure EGMs are located in venues which '[h]ave a maximum 18 hours operation and have a shutdown period for a minimum of 6 hours, staring no later than 2 am', '[a]re designed to ensure patrons are not required to enter the gaming lounge in order to access any other activity or area of the venue', '[h]ave a range of other non-gambling entertainment activities' and '[a]lready have gaming machines, rather than creating a new gaming venue'.[39]
Neither Mr Milner nor the Council dispute with any force that the Glenroy RSL responds to all these aspects of local policy. Again, it is significant that the Glenroy RSL is an existing gaming venue with a successful operating record. Nonetheless, Mr Milner's opinion was that we should not give significant weight to Glenroy RSL already having EGMs because it would be unlikely now to obtain approval to install those EGMs if it was not already a gaming venue. We do not give weight to this opinion because it is speculative, particularly as we find that a new gaming venue would not be prohibited under shopping area provisions of clause 52.28.
On our inspection, we found the gaming room was visually highly exposed to the foyer. In the application, that degree of exposure is retained. We will add a requirement for a partial visual screen between the foyer and the gaming room which we consider necessary in respect of the additional EGMs.
Related to this issue is the decision guideline in clause 52.28 to consider 'the capacity of the site to accommodate the proposal'. There were no submissions and no evidence that the size and shape of the subject land or the premises or the gaming room within the premises that indicated that the subject land could not physically accommodate the additional EGMs.
Also related to this issue is the decision guideline in clause 52.28 to consider '[w]hether the gaming premises provide a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons'. The Glenroy RSL does provide such a range of club facilities and services appropriate to an RSL club.

At a glance

Court

Decision date

Source

Judgment (110 paragraphs)

Glenroy RSL Sub Branch Inc v Moreland CC [2017] VCAT 531 (19 April 2017)

Parties

Legislation Cited (3)