Victorian Civil and Administrative Tribunal|2013-06-24

The applicant company has indicated that it will enter arrangements whereby it will contribute $30,000 per annum, to be adjusted for inflation, to a charity that is willing to accept the money. The arrangement would continue for the life of the approval granted by the Commission.
It is no doubt a good thing that the company makes substantial donations to charity, particularly charities that benefit the local area. However, we have not given weight to this consideration. We have determined this case on what we consider to be its merits in terms of clause 52.28. We propose to grant a permit because we have concluded that this is an appropriate location having regard to the considerations of that clause, and not because of the proposed donation. Not relying upon it, we have not included any condition seeking to enforce the promise to make that donation. So far as this permit is concerned, that will remain a matter for the company.

It was submitted that the Terminus Hotel is likely to close down if the permit sought is not granted. That may be so. That is a matter for the company. It was submitted that it is also a matter for the community in as much as the facilities and recreational opportunities that the hotel currently offers would thereby be lost to the community. Those facilities and opportunities do not strike us as unique or of particular social importance if it becomes financially unviable to provide them. We have not given any weight to the argument that we should grant a permit to ensure or to seek to enhance the prospects of financial viability of the Terminus Hotel.

In our above reasons, we have sought to analyse and understand the relevant planning scheme provisions and, as we have said, to determine the case on its merits having regard to those provisions. We have concluded that this is a suitable location and that a permit should be granted subject to conditions. We note that the hearing of this case was spread over five days. We have dealt with what we consider to be the relevant issues. That does not mean that every passing comment or observation has necessarily been dealt with in our reasons. However, we have dealt with the issues that we have assessed as being important in relation to determining the case.

The question of conditions was discussed in the course of the hearing on the basis of some draft conditions provided for the purpose. The contents of the conditions are as set out in the Schedule to this determination. We have taken account of the drafts submitted and the submissions made in relation to them. However, the final contents are our responsibility and we have considered ourselves free to vary the suggested conditions as we have thought appropriate. That has included, in some instances, some rewording as well as some omissions and inclusions.

A permit is granted for the installation and use of 30 electronic gaming machines and the use of the land for Gaming premises in accordance with the endorsed plans provided for in the following conditions which are to be the conditions in relation to this permit.

Before the use commences or electronic gaming machines are installed and used, amended plans are to be submitted to and approved by the Responsible Authority. Such plans are to be drawn to scale with dimensions and three copies are to be provided. When approved the plans will be endorsed as evidence of their approval and they will thereby become the endorsed plans in relation to this permit. The plans are to be generally in accordance with the plans dated 12 and 13 March 2013 marked as Exhibit P1 tendered at the hearing by the Victorian Civil and Administration Tribunal of Planning Application for Review P2775/2012 but modified to show:
- (a) as per the plans submitted in March 2013, Drawing no. 1483 SK-01 Rev A; and
- (b) the outdoor area located immediately to the south-west of the Gaming Lounge to be restricted to patrons of the Gaming Lounge area only.
The layout of the site and size of any approved buildings and works shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority.
The use of any land or building or part thereof as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.
Within 3 months of the date of issue of this permit, three copies of a Venue Management Plan must be submitted to and approved by the Responsible Authority. When approved, the Venue Management Plan (VMP) will be endorsed as evidence of its approval and will then be the endorsed Venue Management Plan under this permit and is to be complied with to the satisfaction of the Responsible Authority. The Venue Management Plan (VMP) must include the following information to the satisfaction of the Responsible Authority:
- (a) the maintenance of a complaints register;
- (b) procedures to be undertaken by staff in the event of complaints by a member of the public, the Victoria Police, an 'authorised officer' of Council or an officer of Liquor Licensing Victoria;
- (c) the measures to be taken by management and staff to ensure patrons depart the premises and the surrounding area in an orderly manner;
- (d) the measures to be taken by management and staff to ensure that patrons queue to enter the premises in an orderly manner;
- (e) the measures to be taken by management and staff to ensure that patrons do not cause any unreasonable or adverse impact to persons beyond the land. This will include, inter alia, ensuring that the surrounding properties are not impacted upon by the presence of litter, urine, faeces, or vomit or by unreasonable noise emissions;
- (f) lighting within the boundaries of the premises;
- (g) security lighting outside the premises;
- (h) security camera surveillance within the venue and at entrances and exits;
- (i) any other measures to be undertaken to ensure minimal amenity impacts from the licensed use.
A copy of the Responsible Service Gaming Management Plan approved by the Victorian Commission for Gambling and Liquor Regulation (VCGLR) for harm minimisation in respect to problem gambling incorporating an appropriate management framework and operational protocols and procedure (RSG manual) must be provided to the Responsible Authority within 7 days of approval of the VCGLR. That RSG manual must be complied with to the satisfaction of the Responsible Authority.
Not more than 30 electronic gaming machines may be installed and used within the premises.
Except with the further written consent of the Responsible Authority, the use of the thirty (30) electronic gaming machines may only operate between the following operating hours:

(a) on Good Friday and Anzac Day between 12 noon and 11pm; and

At all times the gaming room is open to the public, food must be available to the public for consumption on the premises in either the lounge area or the bistro.
The development and use must be managed to the satisfaction of the Responsible Authority, including so that the amenity of the area is not detrimentally affected, through the:

(a) transport of materials, good or commodities to or from the land;

(b) appearance of any building, works or materials;

(c) emissions of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or

The approved Venue Management Plan (VMP) must be complied with at all times to the satisfaction of the Responsible Authority.
A sign to the satisfaction of the Responsible Authority must be displayed at each exit of the premises advising patrons to respect the amenity of the nearby residential area and to leave the premises in a quiet and orderly manner.
This permit will expire if one of the following circumstances apply:

(a) the development is not started within two years of the date of this permit;

(b) the development is not completed within four years of the date of this permit; or

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within six months afterwards in the case of an extension to commence the development or use or within 12 months after the permit expires in the case of an extension to complete the development.

[1] The notions of commercial hub and community hub come up in some local policy provisions which we will refer to later

[2] Colliers International "The State of Gaming in Victoria - What it Means to Pubs and Clubs - Autumn 2012" gives 11.89% of total taxation in 2010-11 revenue from gambling with 7.17% from EGMs.

[3] [2012] VCAT 1920, a case heard by the current presiding member

[4] Amendment C97 gazetted on 16 May 2013 introduced a new MSS and a revised clause 21.04. However, that amendment does not alter the provisions or clause number relating to gaming machines.

[5] That is our recollection of the expression he used for the worst category of problem gambling.

[6] [2013] VCAT 444, a case where the presiding member sat with Ms Tracey Bilsten-McGillen, a planner member of this Tribunal.

[8] Not only clause 52.28, as all the Victorian Planning Provisions appear in the Yarra Ranges Planning Scheme as they do in all Victorian municipal planning schemes.

[10] The Tribunal's purposes in the Beretta's case

[11] [2007] VCAT 1396. This case was determined by two highly experienced planner members who are lawyers.

[12] [2009] VCAT 2616, a case presided over by a lawyer senior member sitting with an experienced planning member.

[16] Who appeared for the responsible authority in that case.

[21] (2008) 29 VPR 271; [2008] VSCA 45.

Pink Hills Hotel Pty Ltd v Yarra Ranges SC & Ors [2013] VCAT 954 (24 June 2013)

Beretta's Langwarrin Pty Ltd v Frankston CC, [2009] VCAT 74

Walker Corporation Pty Ltd v Wyndham CC, [2007] VCAT 1396

Prizac Investments Pty Ltd v Maribyrnong CC, [2009] VCAT 2616

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

Bright Newbay Pty Ltd v Bayside CC, [2010] VCAT 1347

Sayers Property Holdings Pty Ltd v Wyndham CC, [2010] VCAT 1364

De Group Pty Ltd v Wyndham CC, [2010] VCAT 607

SJ Beaumont Investments Pty Ltd v Warrnambool CC, [2013] VCAT 366

Flying Horse Bar and Brewery Pty Ltd v Warrnambool CC [2012] VCAT 1920

Queensberry Hotel Pty Ltd v Minister for Planning and Community Development [2013] VCAT 444

City of Whittlesea v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 26

Macedon Ranges v Romsey Hotel Pty Ltd (2008) 29 VPR 271; [2008] VSCA 45

Pink Hills Hotel Pty Ltd v Yarra Ranges SC & Ors [2013] VCAT 954

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Cases Cited (13)

Pink Hills Hotel Pty Ltd v Yarra Ranges SC & Ors [2013] VCAT 954 (24 June 2013)