Plaintiff (Applicant) v Defendant (Respondent)

Plaintiff (Applicant) v Defendant (Respondent) - [2018] VSC 126 - VSC 2018 case summary — Zoe

[29]

The Moreland Resident and Ratepayers Action Group Inc supports the Commission's decision and its representative, Ms Jennifer Jacomb, submits the Council is estopped by its decision to withdraw its objection to the Commission (ie to not oppose the 10 additional EGMs) from issuing the notice of decision under the scheme (ie to oppose the 10 additional EGMs). We do not accept that submission. The application regimes under the GR Act and PE Act are separate and distinct, although linked.
We agree with Ms Hicks'[6] submissions that our task is not a de facto review of the Commission's decision. The Commission's decision does not in any way mean that we must allow the Glenroy RSL's review application. In essence, we must decide if the Glenroy RSL's application to amend the 2001 permit is an acceptable planning outcome, having regard to the provisions of the scheme, without the inclusion of the two disputed conditions in the notice of decision.
Although the application regimes under the GR Act and PE Act are separate and distinct, they overlap. This overlap is illustrated by the Commission's task to consider whether the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. The Commission's primary focus is accordingly on the municipal district.
As we state later in these reasons, the Council's task (and the Tribunal's task, on review) is more confined and has a narrower focus. This is because the purpose of the provision in the scheme under which a permit is required to install additional EGMs includes to consider the social and economic impacts 'of the location of gaming machines'.
We infer from the Council's withdrawal of its objection to the application under the GR Act that the Council is satisfied that the net economic and social impact of 10 additional EGMs in the premises would not be detrimental to the wellbeing of the Moreland City community.
The Commission's findings are not a complete answer to our task because, despite the overlapping nature of some considerations, we are making a decision under a different legislative regime. Nonetheless, we place considerable weight, but not overriding weight, on the Commission's findings.
We do so for the following main reasons. First, the application was not contested by the Council. Second, there is no special reason to revisit the Commission's findings. Third, the Commission had before it more expert evidence on social and economic impacts than was before us. Fourth, the Commission considered the narrower context of impacts, being impacts on the area within a 2.5 km radius of the premises and did so with the benefit of expert evidence.
In relation to the second of these reasons, the Council submitted there is a special reason, being the status of its policy. The policy is now part of the scheme. We do not find this a special reason that warrants giving the Commission's findings less weight. There is no difference in substance between the Council's policy before the Commission and the policy now before us that is included in the scheme.
So, we now turn to the Commission's findings. We summarise the relevant findings as follows:

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(a) Moreland has a population growth above the Victorian average.

(b) Part of Moreland, that does not include the premises, is subject to a regional cap of 640 EGMs and the remaining part of Moreland, that does include the premises is subject to a municipal cap of 445 EGMs. The additional 10 EGMs would result in the EGMs in the municipal cap area rising to 139 which would remain under the 445 EGM cap.

(c) The current EGM density in Moreland of 5.2 EGMs per 1,000 adults is lower than the Melbourne metropolitan average of 5.4 and Victorian average of 5.7, and would remain lower than both of those averages if the additional EGMs were installed.

(d) EGM expenditure per adult in Moreland is $468 or 18.8% lower than the Melbourne metropolitan average and 15.5% lower than the Victorian average, and the additional EGMs would result in expenditure per adult rising by 0.9%.

(e) In the area within a 2.5 km radius of the premises, 65% of the SA1s (the smallest unit for release of Census data) are in the two most disadvantaged quintiles of the SEIFA index of relative socio-economic disadvantage score in Moreland.

(f) Unemployment decreased in Moreland in the previous twelve months but remained 0.8% above the Melbourne metropolitan unemployment rate of 6.6%.

(g) The low level of anticipated new expenditure (about $54,000) from the new EGMs, the Moreland demographic profile and the age profile of the premises' patrons are indicative of the potential increase in problem gambling being low.

(h) The area around the premises is undergoing urban renewal and demographic and socio-economic change.

(i) On balance, the additional EGMs will have a minor but positive economic impact on the Moreland community.

(j) The Glenroy RSL's status as a club and its members' older demographic profile may decrease the risk of problem gambling and the additional EGMs do not affect these factors.

(k) Moreland is not particularly vulnerable to problem gambling and the potential for increased problem gambling in Moreland resulting from the additional EGMs is low.

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Proposal of amendment by venue operator

s 3.4.18 (1) A request by a venue operator for an amendment of licence conditions -

...

(c) in the case of... an amendment to increase the number of gaming machines permitted in an approved venue, must be accompanied by a submission -

(i) on the net economic and social benefit that will accrue to the community of the municipal district in which the approved venue is located as a result of the proposed amendment; and

(ii) taking into account the impact of the proposed amendment on surrounding municipal districts -

in the form approved by the Commission and including the information specified in the form.

Submissions on proposed amendments

s 3.4.19 (1) Subject to this section, after receiving a copy of a request for an amendment referred to in section 3.4.18(2), a municipal council may make a submission to the Commission -

(a) addressing the economic and social impact of the proposed amendment on the well-being of the community of the municipal district in which the approved venue is located; and

(b) taking into account the impact of the proposed amendment on surrounding municipal districts.

Consideration and making of amendment

s 3.4.20 (1) Without limiting the matters which the Commission may consider in deciding whether to make a proposed amendment the Commission must not amend a venue operator's licence unless -

...

(b) if the proposed amendment will result in an increase in the number of gaming machines permitted in an approved venue, the Commission is satisfied that the regional limit or municipal limit for gaming machines for the region or municipal district in which the approved venue is located will not be exceeded by the making of the amendment; and

(c) if the proposed amendment will result in an increase in the number of gaming machines permitted in an approved venue, the Commission is satisfied that the net economic and social impact of the amendment will not be detrimental to the well-being of the community of the municipal district in which the approved venue is located; ...

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10 OPERATION OF THE STATE PLANNING POLICY FRAMEWORK

10.01 Purpose

The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State planning policy which they are to take into account and give effect to in planning and administering their respective areas. The State Planning Policy Framework provides a context for spatial planning and decision making by planning and responsible authorities.

The State Planning Policy Framework is dynamic and will be built upon as the government develops and refines policy, and changed as the needs of the community change.

The planning policies are directed to land use and development, as circumscribed by the Planning and Environment Act 1987, a primary objective of which is to provide for the fair, orderly, economic and sustainable use and development of land.

10.02 Objectives

The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

10.03 Application

The State Planning Policy Framework sets out the planning policies which apply to all land in Victoria. The Victoria Planning Provisions includes nine regionally specific policy clauses in Clause 11 of the State Planning Policy Framework. This scheme includes only the regionally specific policies that apply to the area covered by this scheme.

These policies must be taken into account when a planning authority prepares an amendment to this scheme or a responsible authority makes a decision under this scheme.

Planning and responsible authorities must take account of and give effect to the policies applicable to issues before them to ensure integrated decision making.

10.04 Integrated decision making

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.

Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

Consistent with the objectives of local government under the Local Government Act 1989, municipal planning authorities are required to identify the potential for regional impacts in their decision-making and co-ordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.

10.05 Structure

The State Planning Policy Framework is structured around the following themes:

At a glance

Court

Decision date

Before

Source

Judgment (213 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (10)