Plaintiff v Defendant

Supreme Court of Victoria|2011-12-06|Before: OSBORN J

The applicant argued that the installation of the gaming machines would not constitute 'development' or 'works' as those terms are defined in the Planning and Environment Act 1987. "Development" is however an inclusive (rather than exhaustive) definition, so the Act definition alone is inconclusive. Moreover, I agree with the Council that larger infrastructure installations would clearly constitute development or works, even if the placement of smaller chattels or equipment such as gaming machines may not. It may be a matter of fact and degree. Either way, as I have indicated, the word 'install' is more closely correlated to the concept of development and works, and is a different concept to 'use'. Furthermore, even if the installation of gaming machines is not strictly 'development' or 'works' in this case, that does not mean by default that it is 'use'. Unless the applicant could establish that the installation of gaming machines is part of the 'use' (which I do not believe would be the correct interpretation for the reasons I have indicated), the installation simply does not obtain the benefit of the existing use rights. Here, I consider the installation of the machines is not part of the use, but a precursor to it.

30 He then referred to the provisions of the Gaming Regulation Act 2003 ('the GR Act'):

In the proceeding, I was referred generally to the Gambling Regulation Act 2003, albeit not in this specific context. Clause 52.28-2 refers to that Act, and it is part of the combined regulatory scheme for the control of gaming, and potentially an aid to interpretation in how particular words are used in the context of gaming. Although not argued before me, I note that provisions such as s 3.1.4 of that Act refer separately to the 'use' (in s 3.1/4(1)(a)) and 'installation' (in s 3.1.4(1)(c)) of gaming equipment in what comprises the 'conduct of gaming' under the Act. This is not strictly determinative of how the words 'install or use' should be construed in clause 52.28-2 of the planning scheme, but it perhaps bolsters the view I have reached.

It follows that I am of the view that the word 'install', where used in the phrase 'install or use' in the permit requirement in clause 52.28-2, necessarily means something different and additional to 'use', and a precursor to use. It relates to the installation of the gaming machines by the licensees or operators rather than their use by hotel patrons. In a planning context, it therefore presumably covers matters such as the layout and configuration of the gaming machines within the gaming room, and potentially the impact this may have on internal amenity. I doubt that it would include matters pertaining to the type of machines, or adjustments made to the machines to limit their operation, as these are not really planning matters but regulatory matters for the gaming authorities under the Gambling Regulation Act 2003. It is sufficient to note that the installation of additional gaming machines at the McKinnon Hotel is a separate concept to their 'use', and the installation does not therefore benefit from any protection given to existing 'use' rights.
Despite not requiring a permit for use, a permit would therefore still be required under clause 52.28-2 to install additional machines at the hotel.
Having reached this conclusion, it is perhaps worth making comment on the practical implications of it. The applicant is required to seek a planning permit merely to install additional gaming machines, even though the planning system does not commonly regulate the internal rearrangement of buildings or the placing of chattels or equipment within them. The broader implications of the use of the additional gaming machines are not a matter for planning consideration given the protection afforded here by existing use rights, albeit that those broader implications can, to some extent, be dealt with by the gaming regulators in any approval process required under the Gambling Regulation Act 2003.
I would not go so far as the applicant to say that these outcomes are 'absurd', but they do create a planning control of limited utility where existing use rights are established. It is not however for the Tribunal to change this outcome under the guise of statutory interpretation. Rather it is a matter for the regulators. If it is not intended to create a permit trigger to 'install' gaming machines and regulate that installation separately from 'use', then the words 'install or' should be deleted from clause 52.28-2. Alternatively, the intent should be clarified. If it is the intent that a planning permit should be obtained to use additional gaming machines as the Council here contends, even where existing use rights are established, then s6(3) of the Planning and Environment Act 1987 may require amendment.[10] These are policy matters for government.

(a) in construing the word 'install' by reference in the first instance to its plain meaning; and

(b) by reference to the enabling provisions of the P&E Act.

33 I also agree that the phrase 'install or use' should be interpreted as conveying more than the single concept of use.

34 It seems to me with respect, however, that in the present context insofar as to 'install' adds to the concept of 'use' such installation must be understood to comprise 'development'.

35 As the Deputy President himself recognised, 'install' is capable of meaning a form of development. Thus, in ordinary parlance, when a person installs a swimming pool in the backyard it will, in planning terms, be a development if what is involved is permanent works, but amount to no more than 'use' if what is involved is the placing of a temporary movable receptacle in position for the use of children.

36 The two planning scheme instances of the use of the word 'install' identified in argument before the Tribunal (and again before me) use 'install' in the sense of development. Both the installation of automatic teller machines and of satellite dishes may involve building as that term is defined in the planning scheme. The definition of building contained in the P & E Act itself uses the phrase 'service installations' as a component of building.

37 In turn, although the Deputy President's reasons were responsive to the manner in which the case was argued before him, I have come to the conclusion that the real question in the present case is not whether 'install' and 'use' are to be regarded as separate concepts. Rather, it is the subsidiary question of whether, if they are so regarded, 'install' is to be understood as intended to govern 'installation' in the nature of development, whilst 'installation' in the colloquial sense not involving development is to be regarded as governed by the control over use.

38 In my view, the better view is that 'install' is to be read down in this way. Conversely, there is no intermediate category of 'installation' which is neither development nor use.

39 First, the power to regulate 'installation' derives from the power to regulate development and use contained in the P & E Act. The fundamental obligation to comply with the planning scheme imposed by cl 61.05 is with respect to the use or development of land. As the Deputy President recorded, the concept of 'use' is fundamental to the way in which the planning system operates in Victoria. The P&E Act controls land use planning and enables the regulation of the use or development of land. In my view, this control regulates both.

40 Secondly, the control can be logically read as, first, regulating an aspect of development and, secondly, an aspect of use. So read, the word 'install' adds to the control over 'use'.

41 Thirdly, unlike zone controls, the control does not regulate use or development by reference to the real and substantial purpose of the use of the land.[11] In the present case, that use is hotel.[12] The control over gaming regulates an aspect of land use and contemplates that land use may occur in a variety of premises including hotels. The fact that the control is not one upon classes of land use by reference to their real and substantial purpose does not, however, mean that it is not a regulation of use and development. It is a regulation of land use and development which focuses upon the provision and use of gaming machines as a specific activity.

42 Fourthly, unless installation is understood to relate to development only, the question of what constitutes installation as distinct from use is a difficult one. A gaming machine is broadly defined. It may not require affixing to the building at all in order to be operable. Mechanical machines of the traditional 'one armed bandit' type did not. Further, a gaming machine may be in place for a relatively short period of time. Whilst historically controls have limited the total number of machines upon premises, they have not precluded the rotation or substitution of machines. Are machines 'installed' no matter how temporary their presence? Are they 'installed' whenever the room layout is modified, albeit to a minor extent?

43 Fifthly, the conclusion that installation is directed towards development fits comfortably with the Tribunal's view that to install is 'more closely correlated' to the concept of development and constitutes a different concept to 'use'.

44 Sixthly, in land use terms a 'precursor' to a particular use will ordinarily be regarded as part of the use. Thus, the meaning of 'use' as defined in the P&E Act specifically includes proposed use for the purpose for which land is being developed. Likewise, the leading authorities as to existing use rights make clear that limited physical activity may nevertheless constitute a land use.[13]

45 Seventhly, for my own part I would in any event regard the plugging in and switching on of a gaming machine within a building as comprising part of the use of that machine within the building. Thus, to plug in an electrical appliance and switch it on is generally to commence its use upon land. It comprises part of the use of the land.

46 Eighthly, historically, as counsel for the appellant submitted, the phrase 'install and use' was used in analogous controls. Nevertheless, that is not the current wording of the control and the different forms of control since 1995 (which adopt both the use of 'or' and 'and') do not give any clear guide to departure from the apparent intention that installation be the subject of control as well as use.

47 Ninthly, the primary method of regulating the use of gaming machines is the GR Act. There is no reason to regard the planning controls as intending to achieve more than an aspect of the regulation of the use and impact of such machines. The GR Act addresses issues of social planning including problems associated with addictive behaviour.[14] There is little encouragement in this context to postulate a novel form of planning control over 'installation' which is neither a control over development nor use.

48 Lastly, I should record for completeness that the extrinsic materials relating to the planning scheme provisions now in issue do not recognise or materially assist the resolution of the question before the Court.

49 The better view is that the word 'install' should be understood to relate to development. What falls short of development and might otherwise be colloquially described as 'installation' should be understood to constitute 'use'. In the present case, the installation proposed is simply an aspect of use and does not involve development. To plug in a gaming machine and switch it on is an aspect of land use in the same way as is the plugging in and switching on of any other moveable electric appliance.

50 The appellant contends by its notice of appeal that, having reached a favourable conclusion that the appellant had existing use rights extending to the use of some additional machines, the Tribunal should then have concluded that no planning permit was required to install such additional gaming machines in the hotel's existing gaming room.

51 For the reasons set out above, I accept that the Tribunal should have so concluded, save with respect to installation constituting development. Accordingly, I will allow the appeal and subject to any further submissions of the parties direct that the Tribunal's order be modified so that paragraph 1(c) reads:

assuming that the land is not in a strip shopping centre (but reserving the opportunity to the parties to contest that assumption in any future proceeding), a planning permit is still required under clause 52.28-2 of the Glen Eira Planning Scheme to install additional gaming machines in the hotel's existing gaming room by way of development of the land but not otherwise.

[4] Cf Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, 535 per Kitto J.

[5] Gaming and gaming machine are defined in clause 72 of the planning scheme:

Gaming machine Has the same meaning as it has in the Gambling Regulation Act 2003.

Gaming premises is defined in clause 74 of the planning scheme:

Gaming premises Land used for gambling by gaming, and where there is the ability to receive a monetary reward.

any device, whether wholly or partly mechanically or electronically operated, that is so designed that -

(a) it may be used for the purpose of playing a game of chance or a game of mixed chance and skill; and

(b) as a result of making a bet on the device, winnings may become payable -

and includes any machine declared to be a gaming machine under section 3.1.3 but does not include -

(d) interactive gaming equipment that is used or intended to be used for the purposes of interactive games and not for gaming of any other kind.

[6] The provisos contained in subsections (4) and (4A) are not relevant to the present case.

[7] McKinnon Hotels Pty Ltd v Glen Eira City Council [2011] VCAT 413 (17 March 2011) ('Tribunal's Reasons'), [20]-[21].

[8] Following Kraan v Cardinia SC [2006] VCAT 1629, per DP Gibson.

[9] Tribunal's Reasons, [28] (footnotes omitted).

[10] Eg similar to Codes of Practice under s 6(4A) that apply notwithstanding existing use rights.

[11] Cf Uniting Church in Australia Property Trust (Vic) v Moreland City Council (1996) VICCAT 74.

[12] Hotel is defined by clause 74 of the planning scheme as follows: Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.

[13] Cf City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 and the cases there cited.

[14] Cf Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422.

Control Reform Act 1998

Environment Act 1987

Gaming Regulation Act 2003

Control Reform Act 1998

Environment Act 1987

Gaming Regulation Act 2003

Control Reform Act 1998

Environment Act 1987

Gaming Regulation Act 2003

Control Reform Act 1998

Environment Act 1987

Gaming Regulation Act 2003

Control Reform Act 1998

Environment Act 1987

Gaming Regulation Act 2003

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