Victorian Civil and Administrative Tribunal|2008-02-20|Before: Ms J

The applicant is the owner and operator of the Star Hotel, 91 Gavan Street Bright. The Star Hotel is an approved gaming venue and has at present 18 gaming machines. The applicant wishes to increase the number of gaming machines on the premises to 30 from 31 April 2008.
A permit is required under clause 52.28-2 in the Alpine Planning Scheme to install or use a gaming machine.
Pursuant to the Schedule to clause 52.28-4 the installation or use of a gaming machine is prohibited in all strip shopping centres on land covered by the Alpine Planning Scheme.
Pursuant to clause 52.28-4 a strip shopping centre is an area that meets all of the following requirements:
- - it is zoned for business use;
- - it consists of at least two separate buildings on at least two separate and adjoining lots;
- - it is an area in which significant proportion of the buildings are shops; and
- - it is an area in which a significant proportion of the lots abut a road accessible to the public generally.
In relation to the subject land:
- - it is located in the Business 1 zone under the Alpine Planning Scheme, that is an area zoned for business use;
- - it is in an area where there are at least two separate buildings on at least two separate and adjoining lots;
- - the Hotel as well as proximate lots abut a road accessible to the public generally that is the Hotel is located on the corner of Gavin Street (Great Alpine Road) and Star Road.
The issue to be resolved is therefore whether the Hotel is in an area in which a significant proportion of the buildings are shops. For the purposes of considering whether the Hotel is in an area in which a significant proportion of the buildings are shops firstly it is considered that the 'area' should be defined, secondly whether the buildings in the area are 'shops' and thirdly is there a 'significant' proportion of these buildings that are shops.

Both the Responsible Authority and applicant sought to define the area as being the north and south side of Gavin Street. Extending from 85 Gavin Street (the Acacia Motel) to Howitt Lane on the north, 70-72 Gavin Street (Residential Units) to Howitt Lane on the south and the east side of Star Road opposite the Hotel. The applicant, as in some previous matters before the Tribunal, sought to break down the area on the north and south side of Gavin Street, the east side of Star Road and Anderson Street into 9 zones. Whilst not breaking this area down further the Responsible Authority has in many respects agreed to the confining of this area.
The Responsible Authority was of the view that this area met the requirements of a strip shopping centre in that it contained a number of shops and more particularly that these shops attracted pedestrians for their daily needs. This view having been expressed in a number of determinations relating to gaming venues[1].
In Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation[2] the Tribunal referred to the origins of clause 52.28-4 stating:

Clause 52.28-4 had its origins in 1998 when there was public concern about shoppers being seduced into gaming venues whilst undergoing their retail activity. The theory which underpinned the prohibition was that a person who wished to engage in gambling should make a conscious decision to that effect and that gaming outlets should not be permitted to tempt shoppers carrying out these activities. However inserting the prohibition into planning schemes there was a recognition that hotels and clubs (in which gaming occur) are properly to be found in business areas, particularly in rural townships. Hence the reference to a significant proportion of buildings was designed to prohibit new gaming opportunities, not in business areas, but in those parts of business areas where shoppers congregate and where there is a significant degree of pedestrian traffic. Indeed the importance of pedestrian activity was recognised as a relevant factor in Crestline Architects Pty ltd v Greater City of Geelong (1998) VCAT 100 at 17.

The applicant in breaking the area into 9 zones did so in order to establish that it was not a strip shopping centre submitting the majority of buildings across the 9 zones are not shops. Acknowledging that there are some shops, it was submitted that these were located at a distance from the Hotel, that is on both the north and south sides of Gavin Street from Star Road to Howitt Lane.
The Bright Town Centre is described as having a total area of approximately 10,3200m² of retail floor space located to the south of Gavin Street in Barnard Street, Anderson Street and Ireland Street to Railway Parade.
Bright is appropriately described as a tourist town, certainly at all times of the year it is frequented by young and older persons exploring the town itself as well as the surrounding region. Not only are the shops and other businesses in Barnard Street, Anderson Street and Ireland Street frequented with pedestrians but so to is Gavin Street in the area defined. Pedestrians are particularly encouraged to move from Gavin Street down Star Road to the Ovens River and the walks along the River (Canyon Walk). Star Road is the access point to the Bright Town Centre over the river from the Caravan Park.
Parking is located along each of the streets referred to above as well as there being several public car parks for shoppers including a car park off Star Road close to the river in Riverside Avenue. From this car park there is convenient pedestrian access along Star Road past the Star Hotel which provides access to Gavin Street, Anderson Street, Barnard Street and Ireland Street.
In several earlier Tribunal determinations in relation to strip shopping centres and gaming the area has sought to be defined or in some respects confined by the breaking down of the area into zones or precincts[3]. It is my view, adopting the view of the Tribunal in Crestline Architects Pty Ltd[4], that the area along Gavin Street is one part of the whole, that is the Bright Strip Shopping Centre is made up of the north and south sides of Gavin Street from numbers 70-72 and 85 to Howitt Lane, the east side of Star Road, Barnard Street, Anderson Street and Ireland Street to Railway Parade and this area whilst being zoned Business 1 is not the whole of the Business 1 zone. Within this area there are a number of shops.
Unlike the conclusion reached in Romsey Hotel a significant amount of pedestrian activity occurs in Star Road, passes the Hotel and bottle shop and extends along the defined area of Gavin Street and further.

I consider that in the area of Gavin Street defined by the parties that a proportion of the buildings are shops. In reaching this conclusion I have considered the comments of the Tribunal in Crestline Architects Pty Ltd 'that the natural or ordinary English meaning of the word shop is to be preferred' and those of the Tribunal in Romsey Hotel Pty Ltd:

When is a building a shop? In my opinion, this will depend on both the building and the sue of the building. For example a building designed to be used as a shop, but currently vacant, would ordinarily be regarded as a shop. on the other hand the same building would not be regarded as a shop if is had been permanently converted to residential use....

However I should add that I would not regard a building to be a shop if it is used as a restaurant; although I would regard it as a shop if it was a building used to sell take-away food. It is to be noted that the definition of the land use term "shop" (see clause 74 of the planning scheme) does not determine this question because the clause is concerned with the proportion of buildings that are shops rather than land use as such.

The explanatory memorandum that accompanied the original amendment (S69) incorporating the reference to strip shopping centres in the planning scheme noted the definition of 'strip shopping centre' for the purposes of the clause is broad and intended to apply to a wide variety of centres.
In the area of Gavin Street defined by the parties there are at least 17 shops these include the vacant hardware shop, the Star Hotel Bottle shop, two hairdressers/beauty salons, a shoe shop, clothing shop, coffee shop, ice cream shop, book shop, pastry shop, Pizza shop, café/takeaway food shop, a home ware shop, a takeaway food shop, a bakery, a sub-way/takeaway sandwich shop and a cycle shop.
I consider the area also contains other land uses commonly found in shopping centres including offices, a printing firm, chiropractor, insurance company, real estate agency, two banks, physiotherapist, beautician/massage, upholsterer, medical practice, post office, two service stations and 4 restaurants one of which provides a take away service.
Even if it was considered that the stricter view of a shop as defined in the planning scheme was adopted rather than the wider view expressed in Romsey Hotel Pty Ltd and the ordinary English meaning expressed in Crestline Architects Pty Ltd, I am of the view that a number of the buildings in the area are shops.

Are the buildings that are shops a 'significant' proportion? I do not consider it needs to be a majority. It is of assistance to adopt the view taken in Romsey Hotel Pty Ltd to consider the number, proportion and nature of the shops in the area and the link with pedestrian activity.
I consider that the area of Gavin Street defined by the parties to contain a significant proportion of shops and that this area is but a part of the whole Bright Strip Shopping Centre. The location of the Star Hotel on the corner of Gavin Street and Star Road results in it being in my view, particularly in terms of pedestrian traffic, in a prominent location within the Bright Strip Shopping Centre.
In WG Elms v Yarra Ranges SC[5] the Tribunal stated:

It is our conclusion that the prohibition must be in some way associated with the desire to reduce the 'convenience', accessibility or prominence of such venues in places where the community congregates on a regular basis and with dollars in their pockets. The objective must be for gaming to constitute a specific purpose trip on the part of the patron rather than an impulse action taken in the course of a trip with a different purpose.

The area in which the Star Hotel is located is an area that meets all the defined requirements of a strip shopping centre for the purposes of the planning scheme pursuant to clause 52.28-4.
The installation of additional gaming machines in the Star Hotel is prohibited under the Alpine Planning Scheme.
No permit is granted.

[1] Crestline Architects Pty Ltd v Greater Geelong CC [1998] VCAT 100; WG Elms v Yarra Ranges SC 22 AATR 174; Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation & Macedon Ranges SC 26 VPR 228

[3] Crestline Architects Pty Ltd v Greater Geelong CC [1998] VCAT 100; Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation & Macedon Ranges SC 26 VPR 228

Environment Act 1987

M & S Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291 (20 February 2008)

M & S Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (1)

Cases Cited (1)

M & S Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291 (20 February 2008)