Appeal against a decision to refuse to grant a permit under S.77 of the Planning and Environment Act 1987.

Vol. 9107 Fol. 947 CP 104345 Parish of Dandenong.

Dandenong Planning Scheme / Dandenong District Centre.

1. The proposal is contrary to Council's policy regarding Amusement Parlours.

2. There is inadequate on-site car parking for the proposed use.

3. Traffic conflict would be generated by the proposal that will have a detrimental impact at the Greenland Place/Cheltenham Road intersection.

4. The proposed use is incompatible with surrounding land uses.

5. The proposed use is contrary to the orderly and proper planning of the area.

1. The proposed amusement parlour will be appropriately managed and supervised and is an appropriate use for this land.

Mr N Charalambakis, Town Planner, represented the Responsible Authority.

Mr J Gobbo of Counsel, instructed by Tolhurst Druce and Emmerson, appeared for the Applicant and called Mr A Biasci of Contour Group as a witness.

The proposal is to use an existing building for the purpose of an Amusement Parlour and associated uses incorporating 30 coin operated amusement machines, 2 nine-ball tables and 3 pool tables. In association with this there is to be an area set aside for retailing of computer and video related products, a cafe with seating for 45 people and an associated kitchen, storage and amenity areas. While the building has a total floor area of 1,250 square metres it is only proposed to use the ground floor which has an area of 700 square metres. The building is situated at 1 Cheltenham Road, Dandenong which is in the District Centre Dandenong Zone of the Dandenong Planning Scheme. This zone exists north and west of the site while east of the subject site is a Main Road Reservation and south of the site an existing Railway Reservation. The Dandenong Structure Plan and the Urban Design/Streetscape Plan for this large business area also cover the subject site. The site is within close proximity to the redeveloped Dandenong railway station to which access can be gained by Greenland Place and is not far from Foster Street, one of the major streets in the Dandenong district centre. The submitted zoning plans show it to be well removed from residential development and well accessed by the major road network.

After receiving the application on the 30th October 1995, the Council required it to be advertised with a notice placed on the site and notices sent to adjoining owners and occupiers. Seven objections were received, one of which was from the Victoria Police, and responses were received from various referral authorities. Following consideration the Council determined to refuse the application on the six grounds listed above.

The site was initially developed in 1975 as a sales warehouse and car park when it was zoned Light Industrial. In 1980 the site was rezoned to District Centre and then in 1985 to District Centre Dandenong Zone. The Council previously refused an application to use the site for amusement parlour, place of assembly and cafe, take-away food centre in September 1995. The Applicant then proposed a total of 100 coin operated machines.

The area in which this site is located had, over the years before the railway station was pulled down and the Southern Aurora Hotel demolished, a certain notoriety in Dandenong because it was frequented by gangs of youths and there was a major problem with drug trafficking and usage in the vicinity. Australian Leisure and Hospitality Group Limited and the local police have therefore strongly opposed this present application because of those past problems and their fears that such may reoccur if the permit is granted.

All parties present at the hearing made written and verbal submissions, and tendered plans, photographs and other documents for the Tribunal's information, all of which are retained on the Tribunal file. The Australian Leisure and Hospitality Group Limited had previously written the Registrar indicating that it was not being represented at the hearing but made a short submission which the Tribunal has read and will take into consideration in its determination. Victorian Police were also unfortunately unable to be represented, because of illness of the member, who has been involved, from the Dandenong District.

It is not the Tribunal's intention to deal with each ground of refusal in detail, nor with the short grounds of appeal but rather to concentrate on what are the critical elements in this appeal. These are whether a major district centre is an appropriate place for amusement parlours; whether the opposition of the police, council and the hospitality group is well founded; whether there is a car parking and traffic problem likely to be generated by the proposal and whether there is likelihood of a resurgence of the old social problems in the area. Mr Gobbo in his submission explained that this proposal was not an old style amusement parlour, but rather a place where amusement machines were just one of a number of activities which would occur on the site. These included retention of an existing computer retailing business, a cafe area where computers were placed strategically on tables and which would enable patrons to access Internet, the provision of virtual reality type amusement machines, pool tables and an American game called Nine Ball which is also played on a pool type table. He suggested that the present proprietor of the computer business would continue to manage the premises and be the person responsible for the overall operation of the amusement parlour. Mr Biasci suggested to the Tribunal that the District Centre Dandenong Zone was a most appropriate one for the proposal as one its primary purposes is to:

"Encourage in suburban centres well served with public transport a wide range of commercial, professional, cultural, entertainment and community activities and to ensure that planning requirements do not inhibit activities that normally take place outside normal working hours."

Mr Gobbo quoted Avel Pty Ltd v City of Dandenong Appeal No 1991/19862 in which it was held:

"While amusement parlours had a tarnished image technological changes and improved management had tended to reverse this. The Applicant had a good track record and the use could have the positive benefit of attracting young patrons away from less savoury competitors. The better amusement parlour operators should be allowed to establish in prime locations subject to controls rather than be forced into unsavoury backwaters."

"As the first stated purpose of the zone promoted entertainment activities and the use was a nominate Section 2 use a permit should issue. No trial period condition would be imposed. The circumstances were not unusual or exceptional and this appeal was not at the margin where there was a concern that conditions may not be complied with."

In relation to the last sentence the City had requested that if a permit issue a condition should be that it made be personal to the named Applicant.

The City of Greater Dandenong used its Amusement Parlour policy as the major reason for refusal of this application. As Mr Biasci submitted the policy was one which had been developed in the early 1980's by the then City of Springvale and used by it to virtually preclude all amusement parlours within that city. This policy would not allow amusement machines to be installed in premises unless the machines were ancillary to the primary purpose of the premises for recreational purposes. He submitted that the former City of Dandenong had never developed a policy of its own. Mr Biasci was asked by Mr Charalambakis to describe what criteria he would use to locate an amusement parlour. He replied that an ideal area would be one which had a good prominent location in a commercial zone or centre with adequate parking and which could be integrated with other facilities. He suggested that all these criteria existed on the present site. The Tribunal was advised that a number of other parlours had been situated in this centre as a result of decisions of previous tribunals and there had also been recent closures of several centres in Foster Street. Foster Street had been an active business street but was changing its role to become more orientated to restaurants and other peripheral activities to the major business centre.

Both Mr Charalambakis and Mr Biasci referred to the Urban Design/Streetscape Plan which had been developed by the city. The plan refers to this site as a gateway site suitable for a major office use or limited retail use and it is referred to as the Station Precinct where it is suggested that major office blocks of up to 15 storeys may be located in the future. Mr Biasci has suggested that it is unlikely this site would be developed for offices in the short to medium term and therefore this use would be appropriate for up to five years. It is the Tribunal's opinion that the District Centre Zone is an appropriate one for amusement parlours and other like entertainments, a view which is certainly reinforced in Appeal No 1991/19862. A primary purpose of this zone is to allow for amusements and recreation activities.

The Australian Leisure and Hospitality Group in its written submission advised the Tribunal that it had been the previous owner of the Southern Aurora Hotel which it had agreed to sell for demolition purposes because of the major social issues that had occurred such as drug taking, trafficking, vandalism, gang activities and the like. Its submission was that:

"The amusement parlour backs onto a laneway which is very dark and provides areas for teenagers to create havoc with existing businesses.

Previous experience with other amusement parlours in Foster Street, resulted in 20-50 teenagers hanging around outside, being involved in fights, with a constant necessity for the police to be involved.

As previously experienced, there will be an increase in graffiti and damage to property.

Foster Street is now becoming a safe area to shop and we do not wish to attract a detrimental element back to the area.

There would be an increase in underage drinking as a result of older youths (over 18) supplying drinks to younger teenagers.

In 1993, we agreed to sell the Southern Aurora Hotel for demolition purposes to help stamp out a large local problem associated with liquor, drugs, etc."

The police submission which was also in writing supports this submission:

"In the past, prior to the construction of the new Dandenong Railway Station and the closure of the Southern Aurora Hotel, Dandenong Amusements and Casino Amusements in Foster Street, there was a prevalent problem in this area concerning drug trafficking and usage in this vicinity, particularly in Greenland Place which has numerous alcoves and other places where persons may secrete themselves. I believe that this problem may re-occur if this Planning Permit is granted."

The police in a letter to the Council indicated its concerns in a number of reports as follows:

"On the original application, S/Sgt. KAMINSKI reported on the suitability of the application. The concerns that were voiced in that report, (attached) are still relevant. Even though the application has been reduced from 100 down to 30 machines, I do not believe that he had addressed the problems that were envisaged.

The traffic problems in relation to entry and egress to the premises is still relevant and has not been addressed in his new application. The problem of personal safety of patrons has not been sufficiently addressed. In his letter of application he agrees that there is an existing problem in the area but he believes that by opening his centre, this problem will diminish.

The applicant states in his letter to Council that he has spoken to various Police Officers and that they have no problem with his proposed application. I have spoken to the Station Commander of the Dandenong Police Station, Senior Sergeant PIKE, and he states that he has not spoken to the applicant or in any way been approached by the applicant for an opinion on the Application.

It is my opinion that the original concerns of S/Sgt KAMINSKI have not been addressed and even though this application is for a substantially reduced number of machines, I would recommend that the application be refused."

The Council has relied heavily on these two submissions as well as its adopted interim policy and to support this and to highlight the social effects of amusement parlours, it quoted Appeal No 1989/42258 for a permit for an amusement parlour in Leonard Avenue, Noble Park, in the former City of Springvale, where it suggested that Tribunal found that that centre was one where numerous offences occurred such as drug taking drug dealing, illegal gambling, consumption of alcohol by minors and violent assaults. It quoted that Tribunal as follows:

"On the basis of all the material presented at the hearing, I am unable to conclude that drug usage is occurring or has occurred on the amusement parlour premises. I do however find that drug use has occurred in the vicinity of the premises. There is no evidence to suggest that any of the Respondents are or have been involved in drug dealing or drug use.

I am satisfied that drug dealing occurs in the vicinity of the parlour premises, and that the amusement parlour is a point of contact for buyers and sellers of drugs or place for dealers and/or potential buyers to assemble prior to an exchange of drugs. The nature of the amusement parlour use, where individuals come and go freely, without creating undue suspicion, and its location adjacent to a car park, is conducive to these activities..."

_`_Ms Smith in determining to Cancel the Planning Permit, found that the premises had been ".... one of the principle places ... " where the notorious "3174" gang congregated.'

"... The evidence given in this case about the deterioration in the amenity of the area, and the havoc wreaked by youths who frequent the amusement parlour, is appalling. I have heard of no more extreme example before this Tribunal of what residents, shopkeepers and employees have had to endure. I am satisfied that there is a clear connection between the amusement parlour use and the deterioration in the amenity of the area which has occurred. Despite continual monitoring by the police, trouble has continued in the area. If the amusement parlour closed, then one of the focal gathering points for the 3174 gang would be removed. It is apparently the only entertainment facility in the immediate area for the youths who frequent it, and hang about outside it. The nature of the use renders it particularly conducive to congregations of youths."

Mr Gobbo in his submission advised the Tribunal that the style of management and the proposed security would alleviate many of the fears expressed by the quoted parties. The site is within close proximity to the Dandenong Police Station, the management philosophy will ensure that there are no social problems within the premises and it will have six closed circuits television cameras and a bank of monitors to allow it surveillance of activities within the premises and would use a commercial security service to ensure that activities outside the property boundaries are closely monitored. The external security service would carry radios which would enable them to make contact with police if the need so arose. He suggested that there were a number of attributes to the site to make it suitable for the proposed purpose:

* "It is a prominent, corner and main road location.

* It is not near schools or other educational establishments and therefore does not constitute any great truancy incentive.

* It is not near hotels or other late night venues.

* It is not located on a main pedestrian thoroughfare.

* It is not in a position where any congregations of young people would intimidate shoppers or other passers by.

He strongly submitted that concerns of the past are not relevant in this appeal, that these had gone, the major attractions for them were no longer there, the railway station had been completely redeveloped and the hotel was gone. The present premises would be well lit and the shopfront windows were to remain so that it would not be a dark, dingy environment. While he would not completely discount a trial period, he suggested that such was not relevant and quoted a number of precedents where the Tribunal had in fact leant towards granting a permit not encumbered by such as there are adequate measures available under the Planning and Environment Act to enable organisations to stop the operation of a premises which was in contravention of its permit conditions, including enforcement orders. His major contention was that unless there were other uses in the immediate vicinity such as night clubs, it was not likely that the past problems would reoccur. He suggested that the circumstances in Leonard Avenue were completely different and therefore that decision should not be used as a reason for upholding this refusal.

From the evidence submitted at the hearing by both Mr Biasci and the submission of Mr Gobbo, the Tribunal has formed the view that this premises is quite different to many existing amusement parlours in that it is in a situation where the premises can be well observed from passing traffic and from a number of points on both Cheltenham Road and Greenland Place. It is not intended to cover the shop front windows which presently exist and as Mr Biasci suggested the premises has been built almost as if it had been designed for an entertainment facility. If the premises both internally and externally are adequately lit, there is in the Tribunal's opinion, nowhere that illegal activities could occur without the person or persons being seen by passers by or staff from within the premises. The use of regular checking by security people of the environs, together with, one would imagine, the regular police patrols of the area would indeed make it different to past circumstances. While the Tribunal accepts the police, council and hospitality groups' concerns as being serious ones and to which it has given due consideration, it is conscious of the assertions of both Mr Gobbo and Mr Biasci that the area has changed and there is no other nearby venue which is likely to attract undesirable patrons. In Mr Biasci's submission he advised the Tribunal he had discussions with a number of Youth and Community Services officers of the City of Greater Dandenong who expressed positive vibes in relation to the proposal. It does not appear from the Council's case as if the planning department of the Council had referred this matter to its Community Services officers, and it was not able to obtain information from Mr Charalambakis in relation to this, and he did not in his questioning of Mr Biasci, raise the issue. The Tribunal accepts that the area has changed and it is appropriate to consider new developments of an entertainment nature in it. Appropriate permit conditions and adequate surveillance measures should give the authorities the necessary ammunition to ensure there is no recurrence of past problems.

The final major issue is that of car parking and perceived traffic problems. The Council advised the Tribunal that one of the key purposes of the District Centre Zone was:

"to ensure that the centre is developed in an orderly manner having regard to vehicle and pedestrian movement and car parking".

Mr Charalambakis advised the Tribunal that the Victoria Police had made a strong submission in relation to the vehicle entry and egress to the site and the availability of sufficient parking, which he quoted as follows:

* "Vehicular entry and egress to the premises may result in vehicle collisions due to the increase in vehicular movement, prevailing traffic conditions and the roadway design and construction. Due to the aforesaid factors access and exit of emergency vehicles may also be delayed.

* The availability of sufficient parking spaces being allocated to cope with the increased vehicular activity in this area.

* The intended premises is to be situated at the intersection of Cheltenham Road and Greenland Place. It is envisaged that there will be a great deal of pedestrian traffic to and from the Dandenong Railway Station and the intended premises along the laneway with the personal safety of these persons being in jeopardy particularly during the hours of darkness. The laneway is simply the rear of shops and other commercial premises and is dimly lit. A licensed drive through bottle shop also abuts this laneway."

He also suggested that Council's transport planning unit had advised that the proposed use is likely to require approximately 70 car parking spaces while there are only 20 provided. However, he also suggested that there is available car parking in the vicinity of the site within the PTC car park near the station and on-street in Thomas Street. He suggested that the Council may even be changing street parking in the near vicinity from limited to all day parking. In reply to this Mr Biasci suggested that if there were significant traffic problems then he would have expected expert evidence to be called by the Council. He also expected that the Dandenong District Centre would have a policy in relation to such matters apart from the Planning Scheme requirements and further, that it was not unusual for district centres to have flexible controls for parking. Mr Gobbo in his submission suggested that it was unrealistic to require major car parking obligations on a centre that was basically directed towards youth entertainment and in fact very few customers or patrons will drive. He also suggested that "district centre land use planning proceeds on the underlying assumption of shared parking resources".

In viewing the overall major strategy, that is, the Urban Design Streetscape Plan, it is obvious to the Tribunal, that if this area is to become a major office centre, then there will be greater demands on parking and traffic problems caused by such uses rather than a small amusement centre, indeed Council's transport planning unit may have to involve itself in significant reappraisal of the immediate area. As it stands, Cheltenham Road and Foster Street are major streets within the district business centre and would appear to have adequate traffic management. Greenland Place accesses the PTC car park and, at one stage, accessed a major hotel establishment, both of which also would have generated far more traffic problems than this proposed amusement parlour. The Tribunal concurs with the submissions of Mr Gobbo and Mr Biasci that traffic and parking generated by this proposal should not create a problem.

It is the Tribunal's opinion that, subject to satisfactory conditions, the Council's decision to refuse to grant a permit should be overturned and a permit issued. The Tribunal reiterates the advice it gave during the hearing that it was not disposed to make any permit for this development a personal one and it does not agree that a trial period condition should be imposed.

The determination of the Tribunal is that the appeal is allowed in part and a permit is granted for the development and use of land at 1 Cheltenham Road, Dandenong for the purpose of an Amusement Parlour and associated uses in accordance with the endorsed plans and subject to the following conditions:

1. The use and development allowed by this permit and the layout of the premises and the location of the amusement machines shown on the endorsed plans shall not be altered or amended without the consent of the Responsible Authority.

2. The maximum number of amusement machines shall not exceed thirty (30) without the consent of the Responsible Authority.

3. No more than 150m2 of the premises shall be available for retail use without the consent of the Responsible Authority.

4. No more than 32 seats shall be provided in the cafe without the consent of the Responsible Authority.

5. The use hereby permitted shall only operate between the hours of 10.00 am and 11.00 pm Monday - Thursday, 10.00 am to 11.30 pm Friday - Saturday and 10.00 am to 9.00 pm Sunday without the consent of the Responsible Authority.

6. (a) No alcohol or food shall be kept, served or consumed on the premises and signs to that effect shall be prominently displayed within the premises.

(b) No smoking shall take place on the premises and signs to that effect shall be prominently displayed within the premises.

(c) No children under the age of fifteen (15) years shall be permitted on the premises during school hours.

7. The use hereby permitted shall not cause injury to or prejudicially affect the amenity of the locality by reason of the emission of noise, the appearance of the property or otherwise.

8. There shall at all times the premises are used for the purposes hereby permitted, be present on the premises, a person above the age of 25 years responsible for the good conduct of persons using the premises and the carrying out of these conditions (hereinafter referred to as "the manager").

9. The manager shall at all times be authorised by the owner and the occupier of the premises to make statements on their behalf to any officer of the Responsible Authority or the Victoria Police concerning the conduct of the premises for the use hereby permitted.

10. The owner, the occupier and the manager of the premises shall at all times each make reasonable endeavours to ensure that persons using the premises do not create a nuisance and annoyance to neighbours or otherwise disturb the amenity of the area.

11. The owner, the occupier and the manager shall at all times take all necessary steps to ensure that no noise or other disturbance emanates from the premises which would be likely to cause a nuisance to the adjoining occupiers or a detriment to the amenity of the neighbourhood.

12. No external amplified public address system or speaker system shall be installed on the premises.

13. The owner, occupier and the manager, shall at all times each make reasonable endeavours to ensure that no loitering occurs outside the premises.

14. The owner, occupier and the manager shall at all times ensure that these conditions are carried out and complied with.

15. All external signage used for the advertising and identification of the use hereby permitted shall be submitted to the Responsible Authority for its approval prior to installation.

16. The toilet facilities shall be accessible to the public during the hours of operation of the use hereby permitted and shall be to the satisfaction of the Chief Health Surveyor.

17. Exterior lighting shall be provided to all public areas and have suitable baffles and/or located so as to minimise the emission of light outside the site, to the satisfaction of the Responsible Authority.

18. Provision shall be made for the storage of bicycles at a location to the satisfaction of the Responsible Authority.

19. Two external video surveillance cameras shall be provided at a location to the satisfaction of the Responsible Authority.

20. Adequate provision shall be made for the storage and collection of garbage and other solid wastes within the curtilage of the site. This area shall be properly graded and drained and screened from public view to the satisfaction of the Responsible Authority.

21. The installation on the premises of any amusement machines operated by a coin or token which returns to the person operating the same any reward in the form of coins or tokens is prohibited.

22. The owner, occupier and the manager shall at all times each make reasonable endeavour to ensure that no offence is committed on the premises against the provisions of the Summary Offences Act, the Crimes Act, the Vagrancy Act, the Poisons Act, or pertaining to drugs or gambling.

23. The manager shall notify Victoria Police if he/she perceives a problem arising from the actions or conduct of patrons which is likely to disturb peace or good order.

24. In the event that the occupier, manager, or any person employed on the premises is convicted of any offence under the Drugs Poisons and Controlled Substances Act or any other drug related offence and such offence has been committed in or in the vicinity of the premises, the use hereby permitted shall cease immediately upon such conviction and may not re-commence until it has been proved, to the satisfaction of the Responsible Authority, that the offender/s is no longer employed at or is no longer the owner or manager or occupier of the premises.

25. Front windows of the premises with frontage to a street shall not be obscured but remain as a shop front.

26. The time for the commencement of the use and development hereby authorized is, pursuant to Section 68 of the Planning and Environment Act 1987, specified as twelve months from the date of issue of this permit and the time for completion is specified as two years from the date of such commencement. The time within which the use and development is to be commenced or completed may on application made before or within three months after the expiry of this permit be extended by the Responsible Authority.

27. This permit will expire if the use is discontinued for a period of 2 years.

The Responsible Authority is directed to issue a permit in accordance with this determination under Section 85(1)(b) of the Planning and Environment Act 1987.