KFT Investments Pty Ltd v Yarra Ranges SC [2011] VCAT 258

KFT Investments Pty Ltd v Yarra Ranges SC [2011] VCAT 258 | Case summary | Zoe

[33]

The proposal fails to demonstrate how it will protect the amenity of the surrounding area from impacts associated with car parking, noise and patrons of the facility as required by Council's gaming policy.
Before addressing these specific issues, we firstly find it important to clarify the extent of policy and planning provisions that affect this site.
These provisions include the Business 2 zoning of the land, the Development Plan Overlay and specifically the approved Development Plan for the site that establishes clear direction about use and development expectations for the site and how amenity impacts should be addressed. We acknowledge the comments of Ms Brennan and evidence of Mr Twite that in this instance if any conflict occurs between provisions the specific controls of the approved Development Plan[2] should prevail.
This approved development plan includes specific direction for this site and is described as a "leisure / commercial / hotel / gaming - maximum five levels". The application responds directly to this preferred outcome. The development plan must be read in conjunction with the development plan overlay that states the development plan (and we further interpret this to refer to any subsequent planning permits approved for the site) should limit the use of electronic gaming machines to no more than 70 machines, sourced from existing venues in the Yarra Ranges Shire.
Our review of the proposal is that it is in accordance with this Development Plan Overlay and approved development plan.
Local policy 22.08[3] was introduced into the planning scheme some six months after the introduction of the development plan overlay and development plan. We find the policy must be read as a further guiding document to how a gaming facility should be established, but that the development plan overlay and development plan give clear authority that a gaming venue is be anticipated on this site. We therefore address the local policy in context of the specific provisions to establish a gaming premises on the site.

[37]

To reduce the impact of gaming machines on vulnerable communities. 2. To minimise the amenity impacts on existing uses surrounding venues containing gaming machines.
We find that the location also meets the general objectives of the gaming policy. The site does not technically meet performance standards of the policy as it is located at the edge of an activity centre and sits just within 400 metres of a school.
Our inspection of the site, confirms evidence put to us by the permit applicant that whilst the site is close to these facilities on plan, barriers physically separate them, including the Maroondah Highway and the escarpment west of the Maroondah Highway. We find the site is clearly identifiable as a separate and individual site from the core of the activity centre.
We also affirm the comments of Ms Brennan regarding previous decisions of the tribunal that identify a need to balance competing Activity Centre policy that seeks to co locate leisure activities close to retail or activity centres and gaming policy and provisions to ensure that this isn't done to a level where convenience gambling will result. We particularly note the previous determination of the Tribunal at Walker v Wyndham City Council[4] and consider that the site before us has had regard to these competing issues. We are mindful that the site has formed part of a broader strategic plan to identify a site for gaming machines. We further note that the Priority Development Panel that recommended introduction of the Business 2 zone and Development Plan Overlay for the site through a review of public submissions concluded "this is an appropriate location for a hotel / entertainment complex including gaming[5]". It further noted that whilst the site was adjacent to other elements of the activity centre it was not directly linked to these.
We are satisfied that the policy intent to locate gaming facilities as separate from convenience retail or sensitive uses so as to not promote convenience gambling is met.
We are also satisfied the proposed use to include gaming machines can achieve a net community benefit as directed by the policy. The proposal includes provision of 70 machines that are to be relocated from the existing 80 machines at the Lilydale International. This will result in a net loss of machines to the municipality and move the machines to an area of less disadvantage.
We understand that the Lilydale International will remain open, thereby retaining employment in Lilydale. The new premises will generate new employment in the local area and provide additional entertainment facilities.
The key questions we find outstanding with regard to the policy are whether design and form of the use and development:

[42]

Physically and visually separates the venue's non-gambling activities from gambling activities.
With the revised operating hours proposed by the applicant the premises will not operate more than 16 hours per day. We note that Ms Cheung submitted Council did not object to the revised operating hours. Based on its compliance with policy and the lack of any evidence or submission that the revised hours were inappropriate we find that Council's ground of refusal regarding the extent of hours of operation can no longer be substantiated.
Ms Cheung alluded that despite the reduced hours there was still a cumulative impact of the number of patrons, gaming and provision of alcohol. From the evidence put to us we are satisfied that there the impact of the use within the hours now proposed is acceptable. No adverse impact of the use and development at the scale proposed can be identified.
Finally Ms Cheung submitted that the proposal had failed to demonstrate how it will protect the amenity of the surrounding area from impacts of car parking, noise and patrons of the facilities.
We accept the uncontested evidence of Mr Walsh, Ms Hui and Mr Twite that consideration has been given to protecting the amenity of the surrounding area.
The facility provides more than adequate car parking that forms part of endorsed plans. We acknowledge that at some point in the future part of this car parking may need to be shared or re-allocated, but this will require an amendment to endorsed plans and can be addressed at that time with a review of parking needs. This can be undertaken with relevant review of parking demands of the facility once operational. We find that Mr Walsh's evidence took a very conservative empirical assessment by taking likely peak rates of all uses on site together to determine the parking requirements. We find a more likely scenario is that peak rates will vary and therefore a greater sharing of car parking will occur.
Likewise we are satisfied from Ms Hui's evidence that conditions of permit can address any off site noise impacts including noise from patrons using the bistro outdoor eating area. Some discussion was held regarding appropriate conditions to ensure the outdoor eating area would not impact current and future residences. We agree with the suggestion of the permit applicant that the simplest manner to achieve this is to raise the proposed 1m glass balustrade to 1.8m so as create a physical barrier to general noise generated from the area.
We are also satisfied that with noise monitoring as recommended by Ms Hui, outdoor music and amplification in the bistro courtyard should not be restricted by proposed draft permit condition circulated prior to the hearing. We further note Ms Cheung did not contest the removal of this draft condition.
We find that some other occasional noise may occur from the site as patrons exit the premises and leave but we are satisfied that such noise can be managed in a way that meets expectations of the site context. This includes its Business 2 zoning, frontage to Maroondah Highway and no immediate residential zone abuttal.
In summary we are satisfied this proposal responds directly and positively to the specific planning provisions that affect the site being the development plan overlay and development plan. We are also satisfied that it sufficiently achieves the objectives of the gaming policy at Clause 22.08 and general provisions of the planning scheme.
We therefore will direct that a planning permit issue subject to conditions.

[57]

Restrict waste collection to the hours of 7am and 8pm from Monday to Saturday and between 9am and 8pm on Sundays and public holidays. 2. Prohibit bottle crushing from being carried out on the subject land.
Prior to the occupation of the permitted development, the parking areas and vehicular accessways shown on the endorsed plan must be fully constructed, sealed, drained and delineated to the satisfaction of the Responsible Authority.
Prior to the occupation of the permitted development, the existing vehicle crossing in Fletcher Road must be removed and footpath, kerb and channel and nature-strip reinstated, to the satisfaction of the Responsible Authority.
Prior to the occupation of the permitted development, piped drainage, including a detention system, must be constructed to drain all paved areas to the satisfaction of the Responsible Authority.
Prior to the commencement of any works covered by this permit, engineering plans showing all carparking, driveways and drainage must be lodged with and be approved by the Responsible Authority. The development must then be constructed in accordance with these approved engineering plans, to the satisfaction of the Responsible Authority.
Prior to the approval of civil engineering construction plans showing all carparking, vehicular accessways and drainage, a checking fee of $500 must be paid to the Responsible Authority.
The parking areas and vehicular accessways and drainage approved by this permit must be maintained to the satisfaction of the Responsible Authority.
The parking areas and vehicular accessways must not be obstructed or made inaccessible to the satisfaction of the Responsible Authority.
Prior to the occupation of the permitted development, a concrete footpath must be constructed, sealed and drained with a minimum width of 1.5 metres along the southern side of Fletcher Road between Maroondah Highway and East Ridge Drive to the satisfaction of the Responsible Authority.
The works as required by conditions 9 and 15 of this permit are to be maintained in good condition and repair by the developer, for a period of three months from the date of practical completion, to the satisfaction of the Responsible Authority.
Prior to the occupation of the permitted development the construction of all internal civil works, including carparking, vehicular accessways, and drainage, including a detention system, is to be inspected and approved by a suitably experienced civil engineer or person. This person must supply written certification that the works have been constructed in accordance with this permit and to appropriate standards, to the satisfaction of the Responsible Authority.
All vehicles must enter and exit the site in a forward direction to the satisfaction of the Responsible Authority.
Prior to the commencement of the use permitted pursuant to this permit, a report must be submitted to the satisfaction of the Responsible Authority outlining the following:
1. The applicable SEPP N-2 music limits for the day, evening and night-time periods; and
2. Details of allowable internal and external music noise levels in each of the venue areas.

At a glance

Court

Decision date

Source

Judgment (75 paragraphs)

KFT Investments Pty Ltd v Yarra Ranges SC [2011] VCAT 258 (22 February 2011)

Parties