Victorian Civil and Administrative Tribunal|2012-11-01

The applicant seeks a review of the failure of the Port Phillip City Council to determine to make a decision within the prescribed time for the installation and use of 25 electronic gaming machines (EGMs) and minor building works at 120 Montague Street, South Melbourne, The Golden Fleece Hotel [the Hotel]. The Council advises that if the review application had not been lodged, it would have refused the grant of a permit[3].

The Victorian Commission for Gaming Regulation [the Commission]

Before a hotel can install and use EGMs, two separate permissions are required. This Hotel has been granted approval by the Commission for 25 EGMs. The Victorian Commission for Gambling and Liquor Regulation issued an approval for 25 EGMs to be installed at the Golden Fleece Hotel on 13 April 2012. As part of the submission to the Commission, the Applicant offered $18,750 indexed annually to cpi for the life of the entitlements to two local community groups and an arrangement with the Montague Centre to provide work experience and training for its students, where appropriate. In making its decision, the Commission concluded that there would be modest positive economic benefits and neutral or slightly positive social benefits. The Commission further concluded that it is satisfied that the Applicant understands and will act on its obligations to, so far as is reasonable, take measures to prevent problem gambling.

Planning permission is required under clause 52.28 Gaming, to install or use a gaming machine. The purpose of clause 52.28 is:

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

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

To prohibit gaming machines in specified shopping complexes and strip shopping centres[4].

The decision guidelines require consideration of:
- The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
- The compatibility of the proposal with adjoining and nearby land uses.
- The capability of the site to accommodate the proposal.
- 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.

In general, clause 10 of the planning scheme, seeks to ensure that the objectives of the planning in Victoria are fostered through appropriate land use, development policies and practices. More specifically clause 11 seeks to strengthen Melbourne's capital city functions and clause 17 focuses on the economic and business role of the city.
At the local level, the site is zoned Capital City Zone Schedule 1[5]. A range of local policies apply to the site. Policies at clause 21 relate to housing and accommodation, tourism and the arts, social impact assessments, urban structure and character and Fisherman's Bend Urban Renewal Area. Clause 21.04-8 'Social Impacts' identifies licensed premises and gaming venues as requiring appropriate siting and management to minimise social impacts on the community.
The current clause 22.07 'Gaming' applies to the use of land for gaming with the City of Port Phillip. The current clause 22.07 seeks to ensure that the amenity, social and economic impacts of gaming are considered[6]. The decision guidelines seek to have regard to whether the proposed use will have any social impacts.
Clause 22.07 is proposed to be replaced by a new gaming policy via Amendment C88. The new clause 22.07 has been forwarded to the Minister for approval. The policy is based on the understanding that there are links between vulnerable communities, problem gambling and proximity to gaming machines. This clause seeks to locate gaming machines in accordance with certain criteria including:

Gaming machines should be located in areas which are not:

Within 500 metres walking distance of locations with, or concentrations of, support/referral services and welfare agencies servicing vulnerable communities.
Within 500 metres walking distance of social (public and community) housing developments:
- With 50 or more dwellings; or
- Where a cluster of social housing exceeds 50 dwellings.

That minimise the likelihood of people passing the venue in the course of their usual business or every day activities.

The draft clause refers to a distance of 500 metres separation from gaming machines to social housing and other nominated services. Ms Brennan put to me that this distance should be 400 metres not 500 metres. There is some doubt as to what ultimately will be approved by the Minister, but it was agreed by the parties that the new gaming policy is a seriously entertained policy. As to Ms Brennan's submission that the distance should be amended, this case does not turn on a specific distance. The notion of achieving a reasonable separation from vulnerable communities and gaming machines provides some guidance in assessing the merits. Not only have I considered the distance in metres, but I have considered it in terms of access, line of sight between the Hotel and social housing and community centres, and context. This is discussed later in this decision. Notably the policy contains the following objectives:
- To reduce the impact of gaming machines on vulnerable communities.
- To minimise opportunities for convenience gaming and the incidence of problem gambling.

Ms Peterson provided a background to Gaming in Victoria by referring to the Victorian Longitudinal Study [May 2003]. In summary, she concluded that the report recognises the legitimate role of gambling within the community as a form of recreation, as well as the disbenefits for the percentage of people [1-2%] who are problem gamblers. As her evidence applies to this site, Ms Peterson provided the latest statistics in relation to EGMs and Port Phillip municipality. In summary she submitted that:
- Port Phillip has approximately 29.7% less EGMs per 1000 adults than the Victorian average.
- Port Phillip has 0.9% more adults per venue than the state-wide average.
- Gaming expenditure (per adult) is considerably lower than the State average, being 48.2% lower than the Victorian average spend.
- The postcodes that comprise the primary catchment of the venue, (within 2.5km radius) all have SEIFA scores well above the median indicating that there is little sign of economic and social disadvantage within the patron catchment.
- The postcode that comprises the majority of the patron catchment (i.e 3205 South Melbourne) has a SEIFA score that sits just above the postcode median, and sits in the 6th decile. Whilst having a mixed profile even at the lowest levels it still sits above the metropolitan median.
The City of Port Phillip is a municipality that is considered to have low levels of economic disadvantage. Ms Peterson in her evidence, put to me that whilst there are Census Collection Districts (CCD's) with SEIFA scores below the metropolitan average, almost without exception, the primary driver of the lower SEIFA score is the location of social housing. It was further put that in relation to this site, these CCD's are all located at least 400 metres walking distance away from the Hotel. The closest being 411-478 Coventry Street with a SEIFA score of 778 and located approximately 400 metres by road to the Hotel.

The Hotel is located on the corner of Montague Street and Buckhurst Street, South Melbourne. The Hotel is located on a busy road on the edge of a former Industrial area now part of the Capital City Zone. It is located approximately 1 kilometre from the CBD and 900 metres from Crown Casino.
The Hotel is a recently refurbished 19th Century hotel offering a bar and bistro downstairs with function room upstairs.
In respect to the existing context, the area is described as commercial/industrial. The site is located on a busy road with four lanes of traffic. My inspection revealed walking from the subject site to City Road is not currently a pleasant or pedestrian friendly environment due to the number of commercial/industrial properties that front Montague Street.
The Hotel is located within range of the following:
- A cluster of social housing is located approximately 400 metres at 411-478 Coventry Street South Melbourne. It is located in an area bounded by City Road, Nelson Road, Pickles Street and Coventry Street and contains 112 dwellings.
- Approximately 300 metres is the Sol Green Community Centre located on the corner of Coventry and Montague Streets.
- Opposite the Hotel is the Montague Continuing Education Centre, which is a school for young adults with special needs. This education centre is not easily discernible due to its high brick fence and internal facing buildings.
- Social housing at 44 Raglan Street Port Melbourne is located approximately 700 metres from the subject site.
There is a range of public transport opportunities near the site including the light rail, buses and trams.
In terms of the location, Council put forward the Montague Precinct Structure Plan as a document to be considered. This Structure Plan promotes the renewal of the Montague Precinct including increased housing for 25,000 new residents, a local community hub and open space. The area is earmarked for change by the rezoning of the land and Council's strategic direction noted in the Montague Precinct Structure Plan. Ms Bisucci put forward that the location of gaming on the subject site will be a significant factor when it comes to the implementation of the Structure Plan and land uses.
I cannot agree that the future development of the area designated by the Structure Plan is dependant on the outcome of this decision. The Structure Plan is yet to be considered by a Panel and yet to be granted any formal weighting. I consider that this document is to be given little weight. It is at an early stage in the planning process. What it does do is to provide some guidance as to the direction or thinking of Council for the area, that is, higher residential forms and a community hub. Having said that, I am cognisant of the fact that the purpose of the current zoning of the land also seeks:
- To enhance the role of Melbourne's central city as the capital of Victoria and as an area of national and international importance.
- To create through good urban design an attractive, pleasurable, safe and stimulating environment.

Council was concerned that the location of the Hotel would result in an increased risk of 'convenience gambling' to those vulnerable in society, and the location and installation of 25 EGMs would have an adverse impact on the social and economic well being of the local community surrounding the site.
Ms Brennan put to me that the Tribunal should resist any submission to revisit the findings of the Commission in relation to matters within its statutory purview, including its findings in relation to the social and economic impact of EGMs on the municipality and its findings in relation to community well being. In support of this, the Permit Applicant referred me to several paragraphs of the Bright Newbay Pty Ltd v Bayside City Council[7] decision including:

[9] Two discrete permissions are required. The planning permission is focused upon whether it is an appropriate location suitable for gaming and, secondly, the social and economic impacts of the location. The gaming considerations include whether the net economic and social impact of the machines would or would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. Hence, it is our view that a more detailed analysis of the economic and social impacts upon the community is a matter that is best dealt with as part of the consideration under the Gambling Regulation Act rather than as part of the planning application.

Ms Peterson in her evidence submitted that there has been a debate as to whether or not it is necessary to demonstrate that there will be a net social and economic benefit flowing from the approval of a planning permit application for gaming machines. She submitted that the approach is clarified in Prizac Investments Pty Ltd[8] and CK Sons Pty Ltd[9] that confirm that the SPPF does not require the demonstration of net community benefit and that the policy is neutral in relation to gaming machines.
Ms Brennan contends that having regard to the issues of existing and proposed policy, zone and future strategic directions for the area and the existing land use mix, the Hotel performs well and a permit should issue. She further submitted that the single question for the Tribunal to address is, is the Hotel in an appropriate location for gaming machines?
I agree that it is not my role to reconsider the decision of the Commission. However, I consider that clause 52.28 directs the decision maker to give regard to the issue of social and economic impacts of the location of gaming machines. I find that social and economic considerations in the context of the planning scheme are a relevant consideration as discussed in Rennie[10] and S J Beaumont Investments Pty Ltd[11]. As discussed in Rennie, Members Naylor and Slattery made the observation:

[14] In our opinion, the Planning and Environment Act and Victorian planning schemes require consideration of the significant social and economic impacts of the proposal (for example section 60(1A)(a) of the Act); and the social and economic impacts of the location of gaming machines (pursuant to clause 52.28) respectively.

I further note that clause 22.07 both current and proposed, both provide objectives and policy guidance as to the issues to be considered in assessing the appropriateness of a location for EGMs. Considering the social and economic impacts of the location in planning applications has been recognised by the Tribunal and upheld by the Supreme Court. The overlap is also recognised by the Permit Applicant who on one hand put to the Tribunal not to revisit the findings of the Commission whilst on the other hand, calling both economic and social evidence to support the proposal.

The Council identified that the main catchment for the Hotel is South Melbourne, Port Melbourne, Middle Park/Albert Park and South Wharf/South Bank. Within this catchment, Council put to me that there are 8 Census Collector Districts whose SEIFA score is below 900, placing them in the bottom 15% of collector districts in Australia.
The LPPF at clause 21.04-8 in respect of 'Social Impact Assessments' seeks to ensure major land use and development proposals deliver a positive social benefit to the community. The policy acknowledges that pressure for gaming venues is growing. It therefore seeks to ensure that gaming venues are appropriately sited and managed so that their social impacts on the community are minimized.
The current clause 22.07 requires the social and economic impacts to be considered. Ms Bisucci highlighted the draft clause 22.07 widens the objectives to consider:
- To minimise harm from gaming and the incidence of problem gaming.
- To discourage the location of gaming machines in, and proximate to, disadvantaged areas and vulnerable communities.
- To minimise opportunities for convenience gaming and the incidence of problem gaming.
- To protect the amenity of existing uses surrounding the venues containing gaming machines.
It is Council's submission that the location of the Hotel is within easy walking distance of a social housing cluster and an important community centre, does not meet the walking distance specified in draft clause 22.07 and the installation of 25 EGMs would increase the risk of convenience gaming for those individuals who are most vulnerable in society.
It is also Council's submission that the location of the Hotel would result in 'convenience gambling' as people would pass the venue in the course of their business or everyday activities. For instance, people travelling to the Sol Green centre that use the light rail need to walk past the Golden Fleece Hotel.
The distinction between convenience and destination gambling is based on the proposition that EGMs that are located conveniently with other uses such as transport stops or shops are easy to access and provide convenience to gamble. This convenience poses a risk, particularly to problem gamblers. Destination gambling is the deliberate choice of an individual to visit a specific gaming premise.
A cluster of social housing exists at 411-478 Coventry Street South Melbourne located approximately 400 metres and the Sol Green Community Centre is located approximately 300 metres south of the proposed entry to the site. I am persuaded by Mr Twite however that whilst this distance is the most direct walking route, because of the noisy nature of City Road and Montague Street and needing to cross a four lane busy road, I am not persuaded that it will be a desirable or highly patronised route to travel. There is no evidence as to the actual number of people using this route, but from my observations, the route from these noted centres and the Hotel is not an inviting one.
There are also no lines of sight between the identified social housing and community centre and the subject site. This is relevant as convenience gambling is where the site is 'conveniently' located and easy access. With no line of sight between the noted centres and the Hotel, I am persuaded by Mr Twite that there would be little or no impulse to visit the site.
I am further persuaded that there is little incentive for the social housing residents to travel north across City Road unless they are seeking a particular destination. To access the light rail stop, people do walk past the Hotel, however, there is a range of public transport options available to the area. As I have stated above, Montague Street at present is not a particularly pleasant or friendly pedestrian environment.
The Montague School sits directly opposite the Hotel on Buckhurst Street. This school offers educational opportunities for youths aged 15-18 with mild intellectual disabilities. The School has not objected and it was explained to me that a relationship has been established between the school and the Hotel. Nevertheless, the proximate location of these two facilities is a matter for consideration. I observed that the School effectively turns it back on the streets with no obvious entrances or signs for the School. It has a high fence to the street frontage opposite the Hotel. It is further noted that it was explained that the School accommodates youths in the age bracket generally 15-18, therefore largely not of an age legally permitted into a licensed venue. For these reasons, I do not consider the location of the Montague School a reason to refuse the installation of the EGMs.
I am persuaded by both Mr Twite and Ms Peterson that the separation distances of some approximately 400 metres to social housing at 411-478 Coventry Street, South Melbourne and approximately 300 metres to the Sol Green Community Centre is an adequate separation distance due to the locational context as described earlier. I am not persuaded that the location of the Hotel would result in convenience gambling and increase the risk of problem gambling for those individuals who are the most vulnerable in society.
Despite the City of Port Phillip having low levels of economic disadvantage, it does have pockets of disadvantage. The closest CCD of disadvantage to the site is the social housing cluster at 411-478 Coventry Street, South Melbourne.
Ms Brennan put to me that Port Phillip has below average expenditure and gaming machine density when benchmarked against the metropolitan and State averages. It was further put to me that this application does not significantly alter the expenditure and density figures for Port Phillip. Ms Peterson noted that in 2009, the VCGR announced the maximum permissible number of gaming machines for each municipal district in Victoria. The maximum number of machines permitted in Port Phillip is 830 and currently there is 373 EGMS that operate within the municipality, below the municipal limit.
Mr Whitehouse estimated that an increase in expenditure within the LGA of Port Phillip of 1.46% or $404,045 could be expected in 2012/2013. As to this Hotel, it is expected that:
- Transferred expenditure will be 88.7%
- New expenditure $313,438 (upper prediction).
It was Mr Whitehouse's opinion that the majority of the transferred expenditure would come from The Rex, The Beach and Bells Hotel. It was also his opinion that the gaming room will be small in size with a small number of machines.
Given the above evidence, the high level of transferred expenditure, the low number of machines within the municipality, the lower level of expenditure per adult ($313 compared to $638) than the Metropolitan and State averages, and that the net expenditure per machine is lower than the Metropolitan and State average, I am unable to conclude that the EGMS should be refused because of economic impact on the location.
Further Mr Jeynes provided an outline of The Golden Fleece Hotel Responsible Gaming Policy. It was his evidence that the Hotel is committed to establishing and maintaining meaningful and working relationships with all stakeholders including the City of Port Phillip, Gamblers Help Southern and other support providers servicing the local area. This is an appropriate response to managing the patron expenditure in the venue.

In terms of the venue, I find that it is a suitable venue for gaming noting the following facilities:
- it has been fully refurbished and contains a restaurant, bar and function room,
- the venue is small with the gaming room to occupy 21.57 percent of the effective licensed floor area,
- the EGMs are integrated within the overall facility,
- the EGMs are not visible to the street (they have been relocated from in front of the window to Montague Street),
- the door to Montague Street is to be locked, and
- the proposed hours of the gaming room include:
  - 10.00am - 11.00pm Sunday
  - 12 noon - 11.00pm ANZAC Day & Good Friday
  - 7.00am - 11.00pm Monday & Tuesday
  - 7.00am - 1 am the following morning - Wednesday to Saturday.

Based on the above, I am unable to conclude that the location of the Hotel, would result in an increase risk of 'convenience gambling' or is inappropriate in this location.
I am satisfied with the commitment of the Hotel to implement and maintain its Patron Access & Management Plan as required by a planning permit condition.
I am satisfied that the proposal is acceptable having regard to the provisions of the planning scheme both current and future policies. I am satisfied that the Hotel is appropriately sited and will be managed to satisfy the provision so of clauses 52.28 and 21.04-8 of the planning scheme.
Having regard to the above, the decision of the responsible authority will be set aside and a permit issued subject to conditions.

Use and installation of not more than 25 electronic gaming machines pursuant to clause 52.28 of the Port Phillip Planning Scheme

generally in accordance with the endorsed plans identified as Tribunal Plan dated 18 September 2012, Drawing No. P-02 Revision A and subject to the following conditions.

The layout of the uses, including the layout of the gaming area, as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
Once the use has started it must be continued and completed to the satisfaction of the Responsible Authority.
No more than 25 gaming machines are permitted to be installed or used in the gaming area.
The gaming machines must only be used between the hours of:
- 10.00am - 11.00pm Sunday
- 12 noon - 11.00pm ANZAC Day & Good Friday
- 7.00am - 11.00pm Monday & Tuesday
- 7.00am - 1 am the following morning - Wednesday to Saturday
Before the use and installation of gaming machines, a Patron Access & Management Plan is to be submitted to the satisfaction of the Responsible Authority. The Plan must provided details of:

Measures to identify problem gamblers within the Gaming Area; 2. Measures designed to ensure the orderly arrival and departure of patrons;

Signage to be used to encourage responsible off-site patron behaviour;

The training of staff in the management of patron behaviour; 2. Staff communication arrangements.

The Plan, including the matters specified herein, may be amended to the satisfaction of the Responsible Authority. When approved, the Plan is to be implemented to the satisfaction of the Responsible Authority.

Noise levels must not exceed the permissible noise levels stipulated in State and Environment Protection Policy N-1 (Control of Noise from Industrial Commercial and Trade Premises within the Melbourne Metropolitan Area) and State Environment Protection Policy N-2 (Control of Music from Public Premises).
The amenity of the area must not be detrimentally affected by the use or development through the:

Transport of materials, goods or commodities to or from the land 2. Appearance of any building, work or materials.

Emission of artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil

Presence of vermin; or 2. In any other way.
This permit will expire if one of the following circumstances applies:
1. The use is not commenced within two years of the date of this permit.
2. If the use is commenced the use is then discontinued for a period of two years.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] The subject land enjoys existing use rights under clause 63 of the planning scheme. There are no changes proposed to the patron numbers, hours of operation of the venue as a whole, the licensed area or the type of licence.

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[3] The application would have been refused on the following grounds.

1. The proposed installation and use of electronic gaming machines at the hotel would create a detrimental net social and economic impact and is therefore inconsistent with the Port Phillip Planning Scheme.

2. The proposed installation and use of 25 electronic gaming machines at the hotel would be contrary to the purpose of the gaming provisions at clause 52.28 of the Port Phillip Planning Scheme, in that it would be inappropriately located and would adversely affect the social and economic wellbeing of the local community surrounding the premises.

3. The proposed installation and use of electronic gaming machines at the hotel would be contrary to the objective of Clause 22.07 of the Port Phillip Planning Scheme in that it would result in social and economic detriment to the local community surrounding the premises.

4. The proposed installation and use of 25 electronic gaming machines on the subject site would result in social and economic detriment to the local community due to the site's location within 500 metres walking distance of social housing, and the likelihood that people (including vulnerable people) will pass the venue in the course of their business or everyday activities and is therefore inconsistent with the adopted and "seriously entertained" gaming policy (at Clause 22.07) and Amendment C88 and the Port Phillip Responsible Gambling Policy (2011).

5. The proposed installation and use of 25 electronic gaming machines on the subject site would prejudice the future redevelopment of the Montague Precinct and Fisherman's Bend Urban Renewal Area.

[4] Under the Schedule to clause 52.28-3, gaming machines are prohibited in specific locations. The subject site is not located within any of the prohibited areas and, accordingly, discretion exists for a permit to be granted.

[6] Clause 22.07 also seeks to minimise the impacts of gaming uses upon the amenity of residents and to ensure that adequate car parking is provided. Amenity and car parking issues were not raised as concerns.

[7] Bright Newbay Pty Ltd v Bayside City Council [2010] VCAT 1347.

[8] Prizac Investments Pty Ltd Ors v Maribyrnong CC Ors (Red Dot) [2009] VCAT 2626.

[9] CK Sons Pty Ltd v Bayside CC [2010] VCAT 505.

[10] Rennie v Darebin CC [2010] VCAT 1719 (22 October 2010).

[11] S J Beaumont Investments Pty Ltd v Warrnambool City Council [2012] VSC 378.

Environment Act 1987

Kingfish Victoria Pty Ltd v Port Phillip CC [2012] VCAT 1672 (1 November 2012)

Bright Newbay Pty Ltd v Bayside City Council [2010] VCAT 1347.

Prizac Investments Pty Ltd Ors v Maribyrnong CC Ors (Red Dot) [2009] VCAT 2626.

CK Sons Pty Ltd v Bayside CC [2010] VCAT 505.

Bay & Bridge Hotel Pty Ltd v Port Phillip CC & Ors [2012] VCAT 1343 (28 August 2012).

Rennie v Darebin CC [2010] VCAT 1719 (22 October 2010).

S J Beaumont Investments Pty Ltd v Warrnambool City Council [2012] VSC 378.

Kingfish Victoria Pty Ltd v Port Phillip CC [2012] VCAT 1672

At a glance

Court

Decision date

Source

Judgment (50 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Kingfish Victoria Pty Ltd v Port Phillip CC [2012] VCAT 1672 (1 November 2012)