Victorian Civil and Administrative Tribunal|2012-07-03

The Applicant and the Council have prepared a set of agreed facts (the Agreed Facts) which are set out below.

As outlined in the Agreed Facts, the Applicant proposes to carry out the development of the subject site approved in accordance with planning permit WYP4093 in two stages. Stage 1 is currently under construction and under the Endorsed Plans show that the Gaming Room will occupy 19.4% of the floor area of the Clubrooms where liquor may be consumed.

The construction of Stage 2 will result in the Gaming Room occupying 17.3% of the floor area of the Clubrooms where liquor may be consumed. The Applicant anticipates that it will commence Stage 2 within a relatively short time frame.

The Council's position regarding the Declaration Application is that the existing use rights that the subject site enjoys are limited to the use of EGMS to a restricted area occupying the same proportion of floor area of the Clubrooms where liquor may be consumed that existed prior to 18 October 2006 (ie: 19%). This is based upon the Council's interpretation of Clause 63.05.

Although the Applicant does not agree with the Council's interpretation of Clause 63.05, it is willing to ensure that the Stage 1 development results in a Gaming Room that will occupy no more than 19% of the floor area of the Clubrooms where liquor may be consumed. This can be easily achieved because:
- Making some internal alterations to the Stage 1 works;
- Construction works for Stage 1 are still underway; and
- The development plans for Stage 1 can be readily amended by the Council (without the need for advertising) via secondary consent.

Mr Bate has prepared an amended plan for Stage 1 that will result in the Gaming Room not occupying more than 19.4% of the floor area of the Clubrooms where liquor may be consumed. The Applicant has provided the above plans to the Council for approval.

The Applicant submits that the Tribunal should make the Declaration that it seeks for the following reasons.

Background: Installation and Use of EGMS at the Hoppers Club[1]

In 1992, the Club applied for a Gaming License to install EGMs in the Clubrooms.

On 18 May 1993, the Club obtained its Gaming License for the installation of 30 restricted Electronic Gaming Machines and 5 unrestricted EGMs.
On 1 October 1993, the Club commenced operating 27 EGMs with Tattersall's as the business partner. Since then the Club has obtained approval for the installation and operation of additional EGMs within the Clubrooms as follows:
- 01.10.1993 27 EGMs
- 01.11.1995 30 EGMs
- 20.02.1996 50 EGMs
- 27.05.1997 54 EGMs
- 22.04.1998 56 EGMs
- 24.11.1999 70 EGMs
Since 1999, the Club has been operating 70 EGMs.

The Club has not been required to obtain a planning permit to either install or use any of the EGMs because at no time did the area of the Gaming Room exceed the 25% Rule. The 25% Rule was previously found at Clause 52.28-1 and stated

No permit is required to install and use a gaming machine in a restricted area if that area does not exceed 25 per cent of the gross floor area of the premises where liquor may be consumed.

The gross floor area where liquor may be consumed does not include bedrooms, external drinking and dining areas, service areas, kitchens, area behind bars, storage areas, administrative areas, lifts, stairs, ramps, escalators, corridors, hallways, lobbies, service ducts, plant rooms and toilets.

On 11 January 2005, Parkinson Design Pty Ltd on behalf of the Applicant applied to the Council for an amendment to the Endorsed Plans to enable the carrying out of internal alterations and renovations to the Clubrooms. The alterations included relocating the Gaming Room to another area of the Clubrooms. The area of the Clubrooms dedicated to Gaming was to be reduced as follows:
1. Existing Gaming Lounge 288 m2 21% of the total Patron area
2. Proposed Gaming Lounge 245m2 19% of the total Patron area

A copy of the letter dated 11 January 2005 from Parkinson Design Pty Ltd is attached to the Declaration Application.
By letter dated 21 January 2005, the Council advised Parkinson Design Pty Ltd that the request to amend the Endorsed Plans had been approved. A copy of the letter dated 21 January 2005 from the Council to Parkinson Design Pty Ltd is attached to the Declaration Application and also attached is a copy of the Officer's Report that assessed the request to amend the Endorsed Plans.

On 12 May 2005, the Applicant obtained approval from the Victorian Commission for Gambling Regulation to relocate the 70 EGMs from the existing Gaming Room to the new Gaming Room. A copy of the letter dated 12 May 2005 from the Victorian Commission for Gambling Regulation to the Applicant approving the relocation of the 70 EGMs is attached to the Declaration Application.

In May 2005, the 70 EGMs were relocated from the existing Gaming Room to the new Gaming Room.

On 18 October 2006, Clause 52.28-2 of the Scheme was amended by Amendment VC39 to require a planning permit to install and use a gaming machine.

On 18 October 2006, the size of the Gaming Room occupied a floor area of 19.4% of the total floor area where liquor could be consumed within the Clubrooms.

The Applicant and the Council have agreed to the following set of Agreed Facts:

In 1993, the first gaming machines at the subject land and gaming machines have been used at the subject land since that time.

The use and installation of the gaming machines have not been regulated by a planning permit.

From the time the use of gaming machines at the subject land commenced until 18 October 2006 a permit was not required to install and use a gaming machine in a restricted area if that area did not exceed 25 per cent of the gross floor area of the premises where liquor may be consumed.

The gaming machines used and installed at the subject land up until 18 October 2006 always existed within a restricted area that had an area that did not exceed 25% of the gross floor area of the premises where liquor may be consumed.

From the time that the use and installation of gaming machines commenced at the subject land until 18 October 2006 the restricted area changed location and size on various occasions but immediately prior to 18 October 2006, the restricted area had and area that comprised 19% of the gross floor area of the premises where liquor may be consumed.

On 18 October 2006, clause 52.28 of the Wyndham Planning Scheme was amended so as to provide for a permit requirement in respect of all new gaming machines, irrespective of floor area, subject to limited exceptions.

Clause 63.05 of the Wyndham Planning Scheme allows for existing use rights to continue despite a change in the planning scheme, provided any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use rights or the extent of activities within the use.

Prior to 18 October 2006, the lawful use of the subject land as a Licensed Club Venue that included the use of gaming machines was subject to a restriction that limited gaming machines to a restricted area occupying no more than 25% of the floor area of the premises in which liquor was consumed.

There is a dispute between the parties about whether such existing use rights were subject to a further restriction that limited the use of gaming machines to a restricted area occupying the same proportion of floor area of the premises in which liquor may be consumed that existed prior to 18 October 2006.

The subject land has existing use rights as a Licensed Club Venue that includes the use and installation of gaming machines within a restricted area of occupying 19.4% of the gross floor area of the premises where liquor may be consumed.

The Applicant proposes to carry out the development of the subject land approved in accordance with planning permit WYP4093 in two stages. Stage 1 is currently under construction.
The restricted area within which gaming machines are proposed to be used and installed following the completion of the development of the subject land in accordance with planning WYP4093 will occupy 19.4% of the floor area of the premises in which liquor may be consumed.

The restricted area within which gaming machines are proposed to be used and installed following the completion of Stage 2 the development of the subject land in accordance with planning permit WYP4093 will occupy 17.3% of the floor area of the premises in which liquor may be consumed.

There are a number of principles that have been formulated by the Courts and applied by the Tribunal in relation to existing use rights. Relevant principles include:

Existing use rights should be construed liberally so as to effectively preserve the existing use right intended to be granted. See for example: Dorrestijn v South Australian Planning Commission [1984] HCA 76; and Nunawading City Council v Harrington [1985] VicRp 64; [1985] VR 641.

Provisions creating and protecting existing use rights should be interpreted and applied as liberally as the language in its context. See for example: Henshall v Shire of Flinders (1986) 4 PABA 350.

The use to which the land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served. See for example: Nunawading City Council v Harrington [1985] VicRp 64; [1985] VR 641 and Norman v Gosford Shire Council [1975] HCA 15; (1975) 132 CLR 83.

A finding that an existing use right has been abandoned is not lightly made by the Courts or Tribunal. Even the total cessation of a use for a short period will not constitute abandonment of that use in circumstances where it is intended that the use be continued in some way in the future. See for example: Hudak and Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138 and Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) LGRA 123

It is clear from the above principles that planning law contemplates intensification (or a reduction of intensity) of a use, provided it is the same essential use, without regarding such changes as creating the different use.

In support of their position, the Council places some emphasis upon the following comments made by Dwyer DP in McKinnon Hotels Pty Ltd v Glen Eira CC [2011] VCAT 413:

There was some discussion at the hearing as to whether the existing use rights could extend beyond the existing gaming room to the full extent of 25% of the floor area. The applicant did not however pursue an establishment of existing use rights to that extent, and it is also unnecessary to finally decide that issue. However, I observe that the restriction in the planning control operating prior to 18 October 2006 was in relation to a 'restricted area' not greater than 25% of the floor area. The emphasis appears to be on the restricted area (i.e. here, the existing gaming room), and the applicant had never prior to 18 October 2006 pursued any notional planning scheme entitlement (insofar as it may have then existed) to extend its restricted area whilst that opportunity existed within the scheme. I therefore doubt that existing use rights would extend further than that contended for by the applicant in this case - i.e. within the existing gaming room.

Although the Applicant does not intend to make any detailed submissions with respect to these comments, the Applicant simply submits that:
- They are only "comments" based upon "some discussion at the hearing";
- DP Dwyer did not make any findings based upon evidence or legal argument with respect to this particular issue;
- The comments relate to a different set of factual circumstances than what is currently before this Tribunal;
- DP Dwyer's comments are not binding on this Tribunal.

Clause 63.05 provides that a use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:

Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.

Clause 63.05 deals with the continuation of an existing use right, once established.

In Stonnington CC v Southern Property Corp Pty Ltd and Abgol Pty Ltd [2006] VSC 435 in commenting on the meaning of "condition or restriction to which the use was subject" in clause 63.05, Justice Osborn said (at paragraph 31):

In my view no implied restriction on the extent of existing use rights can be derived from a meticulous cataloguing of the extent of particular activities as at the relevant date of commencement of the planning scheme:

(a) Such a process would not be to characterise the use by reference to its real and substantial purpose "according to ordinary terminology". This is the process envisaged by s6(3)(b) of the Act, by clause 63.02 and by authority;

(b) Such a process would give to the words "implied restriction" a meaning contrary to their ordinary meaning. It would attribute to circumstances of the degree of extension the notion of "restriction". "Restriction" ordinarily implies an external cause or source. No such cause or source has been identified in the present case. I should add that I incline strongly to the view that such restriction must be founded in a planning control, but it is unnecessary to so decide in the present case.

(c) Such a process would give to the words "implied restriction" a meaning unnecessary for their operation and one which did not give effect to the "construction principle" which I have stated above, requiring them to be interpreted in favour of the holder of existing use rights.

Without deciding the matter, the Court "inclined strongly to the view" that such an implied restriction (for the purposes of Clause 63.05) would need to be founded in a planning control, or at least some external source.

By analogy to the Abgol case, the Applicant accepts that the implied restriction for the purposes of Clause 63.05 is found in the 25% Rule that was a requirement of Clause 52.28 prior to 18 October 2006.

The current application does not compromise the implied restriction on the extent of activities within the use. It is therefore submitted that there is no impediment arising under Clause 63.05 to prevent the Tribunal from making the Declaration that the Application seeks.

With respect to the legal question regarding whether or not planning permission under Clause 52.28 of the Wyndham Planning Scheme is required for the installation of the additional EGMs, the Applicant relies upon:

McKinnon Hotels Pty Ltd v Glen Eira City Council [2011] VSC 627 where Osborn J found that no planning permission was required under clause 52.28 for the installation of additional gaming machines at the venue in circumstances where no other development was proposed; and

Club Italia Sporting Club Inc v Brimbank CC [2011] VCAT 2378 where Member Cook found that there is no need for planning permission under section 52.28 of the Brimbank Planning Scheme for either the use or installation of the additional gaming machines at the premises.

[1] See the Witness Statements of Mr Eggleton, Mr Bate and Mr Mitchell

Hoppers Crossing Club Ltd v Wyndham CC [2012] VCAT 927 (3 July 2012)

Hoppers Crossing Club Ltd v Wyndham CC [2012] VCAT 927

At a glance

Court

Decision date

Source

Judgment (56 paragraphs)

Parties

Cases Cited (3)

Hoppers Crossing Club Ltd v Wyndham CC [2012] VCAT 927 (3 July 2012)