Victorian Civil and Administrative Tribunal|2012-05-23

The applicant (Melkat) is the operator of the Caledonian Hotel in Echuca. It has applied for a declaration from the Tribunal under section 149A of the Planning and Environment Act 1987 that the land is not located within a strip shopping centre as defined in clause 52.28-4 of the Campaspe Planning Scheme.
Melkat wishes to apply for the relevant permissions to install some gaming machines in association with redevelopment and renovation works at the Hotel. The permissions required include a planning permit in respect of the use and installation of electronic gaming machines (EGMs) pursuant to clause 52.28 of the planning scheme. However, clause 52.28-4 prohibits installation or use of a gaming machine in a strip shopping centre if the strip shopping centre is specified in a schedule to the clause or the schedule provides that a gaming machine is prohibited in all strip shopping centres on land covered by the planning scheme. Schedule to clause 52.28-4 of the Campaspe Planning Scheme provides that a gaming machine is prohibited in all strip shopping centres on land covered by this planning scheme.
Clause 52.28-4 defines strip shopping centre in the following terms:

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 a significant proportion of the buildings are shops;
it is an area in which a significant proportion of the lots abut a road accessible to the public generally;

but it does not include the Capital City Zone in the Melbourne Planning Scheme.

The council contends that the Caledonian Hotel is located in a strip shopping centre. This application for declaration seeks to resolve this issue.
If the applicant is successful and the Caledonian Hotel is not located in a strip shopping centre, the applicant will have the opportunity to have the merits of its applications considered both in terms of the planning permit application and by the Victorian Commission for Gambling and Liquor Regulation in respect of the required premises approval under the Gambling Regulation Act 2003.

Amendment C87 to the Campaspe Planning Scheme has been exhibited and considered by an independent Panel. The amendment (in a modified form) has been submitted to the Minister but has not yet been approved.
Amendment C87 sought to amend the Local Planning Policy Framework as it relates to gaming machines; introduce a Gaming Policy at clause 22.05 to the guide the location of gaming machines within the municipality; and to specify strip shopping centres in the schedule to clause 52.28 where gaming machines are prohibited. With respect to this latter aspect of the amendment, it was proposed to include in the schedule mapped areas of prohibited areas for various towns within the municipality. The Caledonian Hotel was included in the mapped prohibited area for Echuca.
The Panel recommended that strip shopping centres should not be mapped. The council did not accept the Panel's recommendation on this point and resolved to retain mapping of strip shopping centres within the schedule to clause 52.28.
I am required to make a declaration based on the planning controls as they exist at the date of the declaration. As Amendment C87 has not been approved, it is not relevant to my consideration. I must determine whether the Caledonian Hotel is in a strip shopping centre having regard to the definition of strip shopping centre in clause 52.28-4.

Evidence about location of the Caledonian Hotel within Echuca

The Caledonian Hotel is located at the southern end of the commercial centre of Echuca. By commercial area, I am referring to the land included in the Business 1 Zone. Not all land in the Business 1 Zone however will necessarily meet the criteria in the planning scheme that define a strip shopping centre for the purposes of clause 52.28. It is therefore necessary to look at the actual use and development of land in the vicinity of the Caledonian Hotel to determine whether the criteria are met.
Evidence was given at the hearing on behalf of Melkat by Laura Thomas about a land use survey she has undertaken of the Caledonian Hotel and surrounds. The survey was conducted along Darling Street between Annesley Street and High Street (east to west direction) and along Hare Street both to the north of Darling Street and south of Maude Street (north to south direction). The tenancy of each address was recorded and the land use definition of that tenancy as defined under clause 74 of the planning scheme. The specific land uses identified include shop, education centre, service industry, food and drink premises, trade supplies and office. In addition, she identified a number of vacant premises.
A similar exercise was undertaken by the council, but for a more extensive area to the north along Hare Street to Pakenham Street and to the north along Annesley Street. The council's analysis is confined to identifying whether the tenancy is a shop or not. With respect to vacant buildings, it has identified whether a building was constructed as a shop.
In addition to this evidence from the applicant and the council, reference was made during the hearing to aerial photographs and electronic images on Google Maps.

There is really no disparity between the council and the applicant as to the factual characterisation of land uses surrounding the Caledonian Hotel. The difference between the parties lies in the way they apply the criteria in clause 52.28-4 to the surrounding area. This stems from the way in which they classify "the area" which must be considered for the purpose of applying the criteria in clause 52.28-4 to determine whether "the area" is a strip shopping centre.
The applicant adopts a very restricted area, which it analyses for the purpose of the criteria, and concludes that it does not constitute a strip shopping centre. The council adopts a broader area and concludes that the Caledonian Hotel is within a strip shopping centre.
Hare Street is the commercial spine of Echuca, although the commercial area also extends back several streets either side. There is no question that Hare Street north of Pakenham Street is a strip shopping centre in the traditional sense, being a street lined on both sides with retail shops. It is the character of Hare Street south of Pakenham Street, where the land use is more mixed, that is in issue.
The commercial centre of Echuca is terminated at the southern end by three large freestanding shopping centres. On the south west corner of Hare Street and Darling Street, directly opposite the Caledonian Hotel, is the Coles car park and supermarket. At the rear of the Caledonian Hotel, on the north west corner of Maude Street and Annesley Street, is the Big W car park and supermarket. On the north west corner of Darling Street and Annesley Street and having a frontage to Nish Street is the Safeway Supermarket. The Caledonian Hotel is therefore surrounded by, although not immediately abutting, three large supermarket complexes.
The Hotel has frontages to both Hare Street and Darling Street. It is bounded on its south side by Maude Street. On the south side of Maude Street fronting Hare Street is a locksmith, a vacant shop and the Telstra exchange. The land then becomes zoned residential.
To the north of Darling Street fronting Hare Street is an education facility - part of the Echuca campus of the Bendigo Regional Institute of TAFE. There is another education facility, Campaspe College of Adult Education, diagonally opposite on the west side of Hare Street. Adjoining that on the north west corner of Darling Street and Hare Street and extending west along Darling Street opposite the Coles supermarket and car park are a café, Betta Electrical premises a bike shop and computer sales and service shop. To the rear of the Caledonian Hotel, having frontages to Darling Street and Maude Street, are a laundrette, a tax shop, a vacant shop formerly used as a gymnasium, a bargain shop, a florist and another vacant shop, which may shortly open as a fitness centre.
The east side of Hare Street north of the hotel between Darling Street and Pakenham Street, are primarily retail shop premises with a sprinkling of real estate agents, a travel agent, credit union and accountants office, apart from the TAFE premises at the southern end of this precinct previously mentioned. On the west side of Hare Street between Darling Street and Pakenham Street, apart from the shops on the corner of Darling Street and Hare Street and the adjoining Campaspe College of Adult Education, there is an art gallery, vacant land included in a Public Park and Recreation Zone, and a church.
The applicant relies upon a very narrow interpretation of the second criterion in clause 52.28-4 to confine "the area" to only the block containing the Caledonian Hotel, which it calls Area A, or, at most, this block plus the area immediately south of Maude Street, which it calls Area B2.
The second criterion defining a strip shopping centre is that the area "consists of at least two separate buildings on at least two separate and adjoining lots".
In interpreting this criterion, the applicant focussed on the words separate and adjoining and submitted that the word should be given their primary and strict meaning, that is, requiring contiguity. It is not sufficient in this context to contend for a looser construction to include nearby, surrounding and opposite.[1]
The essence of the applicant's argument on this point is that for an area to be a strip shopping centre within the meaning of clause 52.28-4, it can only comprise buildings that are on separate and adjoining lots. It is not appropriate to include in an area buildings which are separated by streets. Thus, the applicant says, it is necessary to break down a broader commercial area into a series of smaller areas separated by streets where the buildings are adjoining. In the present case, the applicant argues that the area, which must be considered for the purpose of determining whether the Caledonian Hotel is within a strip shopping centre, is what was referred to as Area A. This is the area bounded by Hare Street, Darling Street, Annesley Street and Maude Street. Alternatively, if the narrowness of Maude Street is considered to justify considering those lots on the south side of Maude Street as adjoining lots, then the area for the purpose of consideration is what is called Area B2, which includes Area A plus the Big W supermarket, and the locksmith, vacant shop and Telstra telephone exchange fronting Hare Street south of Maude Street.
On no account, submitted the applicant, could the area be considered to include buildings on the north side of Darling Street or on the west side of Hare Street. This is because it cannot be said that such buildings are on lots which adjoin lots within the block within which the Caledonian Hotel is located.
On this analysis, according to the applicant, there may be several strip shopping centres within the commercial area of a town within the meaning of clause 52.28-4. It is not appropriate to look at the whole of a commercial centre, rather the centre needs to be broken down into separate areas for the purpose of deciding whether a particular site falls within a strip shopping centre.
In my view, this interpretation is misconceived. The notion that a strip shopping centre cannot extend across streets or roads is contrary to a number of Tribunal decisions and also to common sense and the general understanding of what a strip shopping centre is.
I consider that that the criterion that an area must consist of "at least two separate buildings on at least two separate and adjoining lots" is a minimum criterion for an area to be a strip shopping centre. It does not require that all buildings in a strip shopping centre must comply with this minimum criterion. A strip shopping centre may be more, but it cannot be less. This is made clear by the words "it consists of at least two separate buildings on at least two separate and adjoining lots".
In my view, this criterion is intended to avoid classifying a single shop building as a strip shopping centre or two separate buildings on opposite sides of a road or intersection, which are not adjoined by any other shop buildings, as a strip shopping centre. The words of the criterion give flesh to the "strip" element of the term "strip shopping centre". Therefore, so long as there are at least two separate buildings on at least two separate and adjoining lots, there may be a strip shopping centre. There may be many more buildings than this in the area that constitutes the strip shopping centre, some of which may be separated from others by streets or roads. I consider that so long as the basic criterion is satisfied, there is nothing to prevent the greater area from being characterised as a strip shopping centre if it meets all the other criteria as well.
In effect, the applicant is seeking to break down the commercial area of Echuca into separate areas or precincts for the purpose of defining a strip shopping centre. Other Tribunals have rejected this approach. For example, the Tribunal in Crestline Architects Pty Ltd v Greater Geelong CC[2] considered a submission that required it to consider whether the Belmont Hotel formed part of the High Street/Belmont strip shopping centre. The advocate for the Belmont Hotel (Mr Morris) and witness (Mr Rodda) sought to argue that the whole of the business zone based on High Street should be regarded as devisable into three sections, that the central section should be considered in isolation from the other two and that it should be assessed as an area where there was not a significant proportion of shops amongst the buildings. It was within the central section that the Belmont Hotel lay.
The Tribunal rejected the contention that the three precincts must be considered independently when deciding what the area was that constituted a strip shopping centre under clause 52.28. On this point, the Tribunal said:

[19] We think it is true, as Mr Rodda points out, that this District Business Zone stretching for approximately 1 kilometre along High Street is not uniform in its topography, lot sizes and types of development. We do not seek to quarrel very much with his description or his discerning within it of three precincts, but we do think that these are three parts of one whole. We think that each and all of them are part of the High Street Belmont Shopping Centre and that they constitute one strip shopping centre. In this connection we agree with the observation made by Mr Rolfe in the course of his submissions when he said that the person in the street at Belmont would think that the whole area was a strip shopping centre. He later added that the Belmont centre is a centre though it has differing parts. We agree, and we think that his hypothetical person, and Mr Rolfe himself, are right in this assessment and this description. We do so on the basis of our assessment of all the evidence and of inspection of the area.

Likewise, the Tribunal in M & S Whelan Investments Pty Ltd v Alpine SC[3] rejected attempts to break down the Bright town centre into nine zones for the purpose of determining whether the Star Hotel at 91 Gavin Street, Bright was within a strip shopping centre. The Tribunal said:

[14] 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. It is my view, adopting the view of the Tribunal in Crestline Architects Pty Ltd, 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.

I endorse the approach taken by the Tribunals in Crestline and Whelan. The risk of dividing a commercial area into precincts then analysing each precinct according to the definition in clause 52.28-4 to determine if the precinct is a strip shopping centre runs the risk of failing to see the wood for the trees. It also risks manipulation in determining the boundaries of the precincts to avoid one or other of the criteria set out in the definition not being met.
Identifying "the area" which is or may be a strip shopping centre requires the Tribunal to make a decision of mixed fact and law. The factual element will require a judgement to be made based on the appearance, function and characterisation of the buildings forming part of the commercial centre. I use the words "commercial centre" in contradistinction to the words "strip shopping centre". Not all commercial centres will be strip shopping centres within the meaning of clause 52.28-4. Whether they do so will require an exercise of judgement by reference to the criteria.
For example, in Bright Newbay Pty Ltd v Bayside CC[4] the Tribunal determined that the neighbourhood centre in which the Newbay Hotel was located was a small commercial centre with an office/service focus, rather than a strip shopping centre. It found that there was not a "significant proportion" of the buildings within this centre being used as shops.
Bright Newbay was an example of a commercial centre that is not a strip shopping centre. In the case of Hare Street, Echuca, it is common ground that north of Pakenham Street, Hare Street meets all the criteria and accords with the general concept of what constitutes a strip shopping centre. South of Pakenham Street, the character of the businesses and activities change. There are more non-commercial activities (eg the church and education facilities) and more service business and financial business premises. However, there remains a strong retail aspect to the activities in the street and the retail component is strengthened at the perimeter of the Business 1 Zone to the south of Darling Street with the cluster of three major supermarkets.
In my view, the commercial centre of Echuca is very clearly defined at the southern extremity of Hare Street by the boundary of the Business 1 Zone. It is for this reason that I consider that "the area" that must be assessed against the criteria in clause 52.28-4 is the area delineated by the council, which includes the land on both sides of Hare Street and both sides of Darling Street between High Street and Annesley Street, and extends to the southern boundary of the Business 1 Zone. I reject the applicant's submission that "the area" is the much smaller area it referred to as Area A, or even Area B2, both of which are focussed much more closely on the immediate vicinity of the Caledonian Hotel and do not extend across either Darling Street or Hare Street.
I also find that the area identified by the council consists of at least two separate buildings on at least two separate and adjoining lots, and hence meets this criterion of the definition of strip shopping centre.

Are the other criteria for a strip shopping centre met?

The first criterion of a strip shopping centre set out in clause 52.28-4 is the that the area is zoned for business use. The whole of the area of Hare Street and Darling Street, which I have referred to, is included in a Business 1 Zone and consequently is zoned for business use. This criterion is therefore met.

The third criterion in the definition is that a strip shopping centre is an area in which a significant proportion of the buildings are shops.
This does not mean that a numeric majority of the buildings must be shops.[5] A significant proportion needs to be contrasted with an insignificant or minor proportion.[6]
There appears to be some difference of opinion in the Tribunal as to what the expression "buildings are shops" means exactly. Does this mean buildings designed and constructed to look like shops or buildings used as shops? If it means the actual use, does the reference to "shops" mean shops as narrowly defined in clause 74 of the planning scheme or does the term have a broader meaning?
In Shimmerbridge Pty Ltd v Bayside CC[7] the Tribunal held that buildings which are shops can mean buildings designed and constructed to look like shops.[8] The Tribunal also agreed with the decisions in Crestline and Whelan that the planning scheme land use definition of "shop" does not determine the question, because clause 52.28 is concerned with the proportion of buildings that are shops rather than with land use. In each of these cases, the Tribunal held that the natural or ordinary English meaning of the word shop is to be preferred. If people looking at a building would tend to say that it was a shop, for example with respect to a take away food shop, it ought be regarded as a building which is a shop even though the planning scheme definition of shop excludes food and drink premises.[9]
Bright Newbay appears to take a slightly different view. There the Tribunal said:

[17] We have considered the findings of the Tribunal in Shimmerbridge Pty Ltd v Bayside CC in which Member Komesaroff (as she was then) held that it may be reasonable to have regard to whether certain buildings had been developed to be capable of use as a shop/s. We distinguish this case on its facts, since we consider that this approach is not generally warranted where there is an almost 100% occupancy rate within the centre such that the use of each building is readily apparent, as is the case before us.

[18] In this regard we note that the test in this clause is whether a significant proportion of the buildings "are" shops, which to our mind denotes an intention that this assessment is to be made 'on the ground' at the time of considering an application for the installation and use of gaming machines at a particular premises. Another major distinguishing fact is that the use of land as a shop in the Business 5 Zone would be prohibited, such that any building not currently being used as a shop could not be converted over to such use unless that land was rezoned.

I am not sure that when Member Komesaroff said in Shimmerbridge that if buildings were designed and constructed as shops she meant they must be considered to be shops irrespective of their actual use. I consider that the design and construction of a building, which is vacant, may mean it should be considered to be a shop within the meaning of clause 52.28-4, but if the building is not currently being used for a purpose which would be characterised by an ordinary person as a shop, then the design and construction of the building is not relevant. The appearance of the building is only a useful guide when it is not actively being used at the time a decision must be made about whether the area is a strip shopping centre.
Thus, although it may have been appropriate for the Tribunal in Bright Newbay to distinguish Shimmerbridge in the circumstances of the facts in Bright Newbay, where there was an almost 100% occupancy rate within the centre such that the use of each building was readily apparent, I consider that the principle in Shimmerbridge may still be a useful guide in situations where buildings are vacant.
In the present case, the applicant's analysis of the buildings in Area A and based on the land use definitions in the planning scheme lead it to conclude that only two buildings are shops out of the eight buildings in the small area bounded by Hare Street, Darling Street, Annesley Street and Maude Street. On this basis, the applicant says that Area A is not an area in which a significant proportion of the buildings are shops.
If the larger area of B2 is considered, the proportion of buildings as shops does not improve, according to the applicant. Although the Big W supermarket is a large building that occupies a large lot, it is only one building and numerically the shop uses do not constitute the majority of uses in the area. The applicant submitted that this area (B2) is better characterised as a peripheral business area on the edge of a country town than legitimately as a strip shopping centre.
I disagree with these submissions by the applicant on two grounds.
Even if the area in question was confined to Area B2, the conclusion reached, which is based on the number of buildings that are shops, ignores the proportion of the area where buildings are shops. In other words, counting the supermarket as only one building which is a shop, ignores the size of the building and the significant proportion of the area devoted to use for the purpose of a shop. In my view, the words used in the definition in clause 52.28-4 require a different approach and they enable a broad view to be taken of whether the area is one in which a significant proportion of the buildings are shops as distinct from the type of numerical analysis that would follow if the criterion was whether a majority of the buildings are shops. As previously noted, the Tribunal has said this criterion does not mean a numeric majority of the buildings must be shops.
However, for reasons which I have outlined above, I consider the area that needs to be examined is much broader than the applicant's areas A or B2. Having regard to the broader area, I find that a significant proportion of the buildings in this area are shops.
The council presented evidence about the buildings on each lot in the broader area and the purpose for which the land was currently being used. There are several vacant buildings, which the council classified as shops because they have been designed and constructed as shops. Based on Shimmerbridge and what I have said earlier, I consider this is an appropriate methodology. Based on this evidence, there are 57 buildings, 35 of which are being used for the purpose of a shop.[10]
Although the continuity of buildings in Hare Street which are shops is broken by the church and education facilities, the east side of Hare Street south of Pakenham Street is lined by buildings designed, constructed and used as shops, interspersed with some other uses. The buildings on the north west corner of Hare Street and Darling Street are shops, then there are very large buildings which are shops in the form of the three supermarkets surrounding the Caledonian Hotel - to the west (Coles), to the south (Big W) and to the north east (Safeway).
In my view, the number of shops and the extensive proportion of the area covered by shops, especially due to the three supermarkets, means that in this area a significant proportion of the buildings are shops.
I therefore find that the third criterion in clause 52.28-4 is satisfied as the broad area in question is an area in which a significant proportion of the buildings are shops.

The fourth criterion in the definition of a strip shopping centre is that it is an area in which a significant proportion of the lots abut a road accessible to the public generally.
I regard this criterion as encapsulating the fundamental difference between the common perception of a strip shopping centre and an enclosed shopping centre or shopping complex. Clause 52.28-3 enables a planning scheme to prohibit installation or use of a gaming machine in a shopping complex.[11] There is no contention between the parties that this criterion is met whether the area in question is Area A, Area B2 or the broader area, which I have found to be the area in question. Accordingly, I find that the area meets the criterion of an area in which a significant proportion of the lots abut a road accessible to the public generally.

In undertaking my analysis, I have not had regard to anything said by Justice Morris in the Tribunal decision in Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation[12]. This is notwithstanding that other Tribunals have referred to his consideration of the meaning of strip shopping centre and the approach to be taken to considering such issues in that case, and it was quoted with support by the applicant in the present case.
I have disregarded his comments because the decision was overturned by the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor[13] in circumstances which make it inappropriate to place any weight on those comments.
The proceeding before the Tribunal was an application for review against the decision by the Victorian Commission for Gambling Regulation for approval of the Romsey Hotel premises for gaming. It was not an application for review under the Planning and Environment Act 1987 in respect of a planning permit. Notwithstanding this, Justice Morris considered whether the proposed gaming venue would be in an area that was a strip shopping centre within the meaning of clause 52.28-4 and concluded that it would not (which meant that a planning permit was not prohibited). At the conclusion of its decision, the Court of Appeal said:

[87] With great respect, the learned President was in error in dealing with these planning questions. The Tribunal simply had no jurisdiction to decide them. The only matter which was before the Tribunal in its review jurisdiction was the decision of the Commission to refuse the proprietor's application under s 3.3.4 of the GR Act. The Commission had not made any decision about whether a planning permit was required under the Macedon Ranges Planning Scheme for the use of the hotel premises for gaming. Plainly, it had no jurisdiction to do so. The Tribunal in its review jurisdiction has the powers and functions of the primary decision-maker under the enabling legislation,[14] and no other.

[89] Since the purported decisions of the Tribunal on those questions were outside the Tribunal's jurisdiction, they have no legal validity at all.[15] Accordingly, no appeal lies. The grant of leave to appeal in respect of grounds 2 and 3 is therefore revoked.

[90] This conclusion, though inescapable, is in some ways regrettable. The Tribunal gave detailed consideration to the planning questions and it would no doubt have been of assistance to those practising in the planning field had this Court been able to express views as to the correctness (or otherwise) of what his Honour said. But for the reasons given, we are simply unable to do so.

[91] In the circumstances, it is important to emphasise that the answers which his Honour purported to give to the planning questions have no legal validity and should be disregarded. They have no force, persuasive or otherwise, in the planning jurisdiction. How the 'strip shopping centre' definition is to be interpreted and applied must await a suitable case raising that issue for consideration.

The Court of Appeal has therefore very explicitly directed that whatever Justice Morris may have said about the planning issues and the definition of strip shopping centre in the planning scheme, his comments should not be considered or relied upon in any way in the planning jurisdiction.

One of the issues touched upon by Justice Morris in the Romsey Hotel Tribunal decision concerned the degree of pedestrian activity in an area. For the reasons just given, I do not consider anything said in the Romsey Hotel case by Justice Morris about pedestrian activity is relevant.
Other Tribunals have also mentioned it. In Crestline, the Tribunal was given evidence about the difference in intensity for pedestrian activity within the different precincts of the Belmont Centre based on the nature of the retail activities. However, whilst the Tribunal accepted that the reduced pedestrian activity in one of the precincts was a relevant consideration, it was not decisive and did not persuade it from the conclusion it reached that the three precincts identified were three parts of one whole of the High Street Belmont Shopping Centre and that they constituted one strip shopping centre.[16] Pedestrian activity was also referred to as being a relevant consideration in Whelan[17], Prizac[18] and Shimmerbridge[19]. Shimmerbridge found that pedestrian activity did not change the character of the area as a strip shopping area[20]. I agree with this.
I am not persuaded that pedestrian activity is a relevant element to be taken into consideration. It is not one of the requirements specified in clause 52.28-4 as determining whether an area is a strip shopping centre or not. It is speculative to suggest that pedestrian activity may have been part of the rationale in determining the criteria for defining an area that is a strip shopping centre, and hence an area where gaming machines may be prohibited. If pedestrian activity was important, it could have been included as a criterion. It was not. In my view, it is therefore not relevant when considering the very specific requirements which are set out in the planning scheme. I cannot see how the level of pedestrian activity would influence or be relevant to deciding whether these requirements are met in any given case. Issues about pedestrian activity or ease of accessibility to a venue may be relevant when determining whether a permit should be granted under clause 52.28-2. However, the opportunity to consider a permit on its merits will only arise if the proposed venue is not in a strip shopping centre where the installation or use of a gaming machine is prohibited.

Based on my analysis of the criteria set out in clause 52.28-4, I find that the area meets all the requirements and is therefore a strip shopping centre. The Caledonian Hotel is within this area and therefore is within a strip shopping centre.
The application seeks a declaration from the Tribunal that the subject land is not located within a strip shopping centre as defined in clause 52.28-4 of the Campaspe Planning Scheme. As I have found to the contrary that the land is located within a strip shopping centre as defined in clause 52.28-4, the application for this declaration is therefore refused.

[1] See Graham v Stonnington CC [2010] VCAT 1224; Solomon v Licensing Court of New South Wales & Another (2000) NSWSC 974

[5] Crestline Architects Pty Ltd v Greater Geelong CC [1998] VCAT 100 at [23]; M & S Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291 at [21]

[6] Bright Newbay Pty Ltd v Bayside CC [2010] VCAT 1347 at [15]

[9] See also Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 2616 at [34]

[10] I have excluded from this count the Caledonian Hotel car park on the south side of Maude Street, which is vacant; the building at 207 Darling Street, which was formally used as Curves Gymnasium, because it is currently vacant and does not appear to have been designed or constructed as a shop; and one reference to the Caledonian Hotel, which appears to have been counted twice.

[11] In the Campaspe Planning Scheme there are no shopping complexes included in the schedule to clause 52.28-3.

[14] And any additional functions conferred on the Tribunal by the enabling legislation - VCAT Act s 42(1), 48, 51(1).

[15] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, 614-5 [51] (Gaudron and Gummow JJ).

[16] [1998] VCAT 100 at [17], [19] & [20]

Melkat Pty Ltd v Campaspe SC (Red Dot) [2012] VCAT 657 (23 May 2012)

Melkat Pty Ltd v Campaspe SC

At a glance

Court

Decision date

Source

Judgment (48 paragraphs)

Parties

Cases Cited (2)

Melkat Pty Ltd v Campaspe SC (Red Dot) [2012] VCAT 657 (23 May 2012)