Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors

Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors - [2009] VCAT 2616 - VCAT 2009 case summary — Zoe

It is considered that the rooms allocated on the plan to be used as a café and for functions are part and parcel of the land being used for entertainment or meetings by club members under the definition of a 'restricted place of assembly' and it is therefore not necessary to require a separate permit for such a proposed use.
Food and drink premises, the function centre, an office and residential hotel are all as of right uses in the CDZ3 permitted in the mixed use area shown on an approved development plan.
There is no requirement for a permit for the buildings and works if what is proposed is generally consistent with the approved development plan. The plan FDP7b is in our view an approved development plan. To be 'generally consistent with an approved development plan' the proposal must be 'generally in accordance with the plan as a whole, not each and every individual part of the plan[11]. The site is identified as lot H on the development plan. A three storey building envelope without boundary setbacks is shown on the development plan for lot H. It is clear from the development plan that the expectation is that this site is to be developed differently to the nearby Aldi site.
We note the Council officer's report expresses the view that the proposal is consistent with the development plan and therefore no permit is required for buildings and works under clause 4 CDZ3. The Responsible Authority did not raise this as an issue.
Clause 12 CDZ3 provides that in a mixed use area, in which the subject land is located, if the height exceeds three storeys a permit is required. Similarly under clause 14 CDZ3 if the proposal exceeds the plot ratio of 1.5 a permit is required. There was some debate regarding the height of the building and the plot ratio.
It was submitted that if the proposed development was considered to be generally in accordance with the development plan then there is no need to go to considering whether a permit is required under clauses 12 or 14. It was further submitted that if either or both of these clauses are brought into play, the proposal could not be found to be generally in accordance with the development plan and a permit would also be required for buildings and works.
We consider the wording of the two clauses suggests that they should be read as separate and discrete requirements for a permit in the mixed use area, even if the proposal is generally in accordance with the development plan. We consider that the provisions in CDZ3 should be read as a whole.
Clause 37.02-4 in the CDZ provides that

[6]

When we consider the FDP7b plan this indicates a three storey building on the subject land built to the boundary. If it is considered that the proposed building does not exceed three storeys then the proposal in this respect could be considered to be consistent with the development plan and there is no permit required under clause 12.
We note that the Responsible Authority did not raise any specific concern about the height of the building per se. We have adopted the view expressed by Morris J in Poci Brothers v Bayside CC [12] that it is a matter of characterisation as to whether a building presents visually as a three storey building. The upper level identified on the plans as Third Floor is an open roof top car park with roofed access via a lift and stairwells. An application has been made, out of caution, for the building to exceed three storeys. Considering the definition of 'storey' in the planning scheme we do not consider that the small covered areas of the lift and stairwells, which provide access to the open car park, form what would be considered under the definition to be a fourth storey. The building presents visually as three storeys and should be so characterised. A permit is therefore not required under clause 12 CDZ3.
'Plot ratio' is defined as 'the gross floor area of all buildings on a site, divided by the area of the site'. The total gross floor area is 13,577m². The plot ratio is therefore 2.69. If the car parking areas are excluded the gross floor area would total 6,217m² resulting in a plot ratio of 1.2. We note car parking areas were previously excluded from the definition of 'plot ratio' but this has been deleted in the definition now contained within the planning scheme.
It was submitted that if the proposal is built to the boundary at a height of three storeys, then any proposal would result in the plot ratio of less than 1.5 being exceeded. Therefore, if generally in accordance with the development plan, there should be no need to consider the issue of plot ratio.
Having reached the conclusion that a proposal can be generally in accordance with the development plan as a whole, but may not comply in every respect, it may be that any proposal built in accordance with the development plan, that is at a height of three storeys and to the boundary will exceed the plot ratio. But it is our view that clause 14 CDZ3 applies as a separate and discrete requirement and a permit is therefore required if the plot ratio of 1.5 is exceeded.
As indicated above we adopt the view expressed by the Tribunal in Melbourne CC v Becton Corporation Pty Ltd[13] and consider that a proposal can be generally in accordance with the whole development plan and in this case would not need a permit for buildings and works as it would be exempt under clause 4 CDZ3, but that it does not comply with the requirement for plot ratio and therefore needs a permit under clause 14 CDZ3.
All the planning witnesses considered the plot ratio was appropriate even if what is proposed exceeds the plot ratio specified in clause 14. As discussed below we have no issue with the plot ratio as proposed.
Given the limited matters the Tribunal is required to deal with in relation to a permit, the Tribunal is also confined to hearing objections by third parties, only in relation to permits for the installation of egms, the sale and consumption of liquor and the reduction in car parking. This is because within the planning scheme there are specific provisions relating to the exemption from notice to third parties in relation to parts of the proposal that requires a permit. In terms of the use of the land as a restricted place of assembly, and plot ratio there are no third party appeal rights.

[17]

Some of the policy directives in clause 22.04 include 'to encourage a variety of small scale, high quality leasable floor areas of up to 1500m2' and 'to encourage development to provide opportunities for the establishment of small to medium sized businesses, particularly ...(amongst other things)... indoor leisure and recreation facilities, places of assembly and indoor exhibition facilities'. (Tribunal emphasis)
The CDZ3 promotes a range of uses and developments with a much broader appeal, for example, an office use is permitted up to an area of 6000m2 with no single floor area exceeding 4000m2 as of right, and a larger office not exceeding 15,000m2 subject to conditions is discretionary. We note these provisions seem to respond to the purpose of 'encouragement of employment opportunities and a mix of commercial, office, entertainment and other ancillary uses'.
Mr Mc Nabb provided a good snapshot of the history of master planning for the locality, including the original concept envisaging about 1000 dwellings, and 'a business/employment activity area providing approximately 51,000 sq m of business floor space including business space, offices showrooms warehousing, service industries special retailing, leisure and entertainment facilities.
The provisions of CDZ3 and related policies, such as clause 22.04, whilst providing directions are not always as clear and helpful in providing precise direction about the form and mix of uses anticipated for this site. It is understandable for parties to obtain mixed messages about the preferred mix of uses and form and scale of development in this precinct. This is reinforced by an examination of the as-of -right uses and development allowed under the schedule. Mr Larkins conceded the policy applies to a poorly defined area of land to the east of Gordon Street, which it may be assumed includes the subject land[15].
We consider that the CDZ does not fit neatly into the hierarchy of activity centres mentioned in clause 12.0 of the planning scheme, particularly if it is to function as a neighbourhood activity centre only. This is not a criticism of the council in its role as a planning authority; rather it probably reflects the history of statutory planning and policy development affecting the ADI (Australian Defence Industries) site since 1992 when the overall development concept was formulated. Most, if not all, of the planning controls for the ADI site were formulated in the early to mid 1990's, long before the introduction of clause 12.
The Riverside Physical Framework Plan No.1 provides a useful historic understanding of the evolution of attempts by Maribyrnong Council and its predecessors to redevelop the previous Commonwealth land holding into a vibrant mixed use and residential estate. Whilst it was helpful, in a general sense, in identifying the precincts and concepts, an examination of development that has taken place in the last 10 years demonstrates there have been departures from the original Physical Framework Plan.
Some of the examples of the evolution/departure from the Physical Framework Plan can be seen in the shifting of the originally identified 'local activity focus' north of Thomas Holmes Street, to its current position south of it. Nonetheless, the designation of the subject site as mixed use, in contrast to the local activity focus remains and provides us with a better understanding of the original concepts envisaged for the site.
This is not to say what has taken place is bad, rather it is a living example of an evolving, but none the less, excellent urban renewal project in inner Melbourne. There is still more development to take place in Edgewater but we are impressed by the high quality urban design outcome that seems to have so far been achieved.
We also examined clauses 21.03 and 21.04-6 but these did not greatly illuminate how the Responsible Authority saw its mixed use precincts in the CDZ being developed. These clauses focus mainly on large retail centres and the map to clause 21.04- 6 is identified as the 'Activity (Retail) Centre Framework Plan' demonstrating, in our view, the emphasis in approach was focussed on retail matters at the time it was inserted in the planning scheme.

[18]

Mr Larkins sought to determine the level of intensity of non-retail uses within a neighbourhood activity centre. He submitted that in the light of clause 12 of the planning scheme the proposal should be read as being 'compatible with the role and function of the neighbourhood activity centre' within which it is to be located.
The strategic intent for Edgewater Estate is broad and this must be taken into account when considering the intent for the subject site[16]. There is no 'one size fits all' in terms of Neighbourhood Activity Centres each must be considered in terms of the zone and relevant policy provisions. The mixed use area and built form expectations denoted under CDZ3 are significant, providing guidance regarding expectations for the site. Compatibility must be read in light of these expectations.
We consider Mr McNabb's criticisms as to form and scale, lack of response in terms of urban design, and the type of uses has not adequately considered the extent of development allowed as of right, together with the mix of uses. Further, we do not consider the proposed use and development to be a major entertainment and accommodation complex, nor do we consider the objectives of clause 22.04 are offended.
The first objective in clause 22.04 seeks a mix of new and mixed industrial and commercial precincts in landscaped garden settings compatible with surrounding residential areas. The built form guidelines for the site are not offended, whether the proposal incorporates an office building or a building containing a mix of activities like a club, residential hotel or function centre.
The second objective focuses on non - residential development providing employment opportunities within walking distance of the adjacent and nearby growing residential precinct. This has little to do with the scale of the development or actual use. The proposed use and development will provide employment opportunities. Whilst it is unlikely to provide the same amount of jobs as a conventional 3 story office building of the same proportions, it cannot be said to offend that objective.
The floor area of the restricted place of assembly is about 1500 square metres. Its floor area is little different to other clubs like the Yarraville Club or "The Club" at Caroline Springs. The incorporated uses provide a local club focus but can also serve wider catchments without necessarily detracting from the primary local retail activity centre focus.
RAIDIM raised concerns about placing a gambling venue within a busy and growing neighbourhood strip shopping centre. We consider that the primary retail activities in the local activity centre actually turn their back on the proposal. The main entrance is to be from Thomas Homes Street rather than Edgewater Boulevard and will be clearly separated from the entrances to the Aldi supermarket, associated shops and their parking facilities.
We consider that in terms of the zone and policy that encourages employment opportunities and a mix of entertainment and other ancillary uses, the proposal for a restricted place of assembly is appropriate. We do not consider that the area can be strictly defined as a neighbourhood activity centre within the hierarchy of activity centres in clause 12. Whilst there is a limit in relation to retail there is no such limitation in terms of commercial, office, entertainment and other ancillary uses. This is in our view further supported by the site being located within what has specifically been approved in the development plan as a mixed use area.

[24]

Concerns were raised regarding inadequate car parking and an increase in traffic movements which may have an adverse affect on the amenity of the locality. It was submitted there was no justification for a reduction in the car parking requirements. It was also submitted the car parking areas had not been designed appropriately to provide a safe and efficient environment for motorists.
The planning scheme provisions require 554 car spaces to be provided based on a floor space assessment. A total of 329 car spaces are proposed, 33 staff car spaces and 296 patron car spaces. Mr Hunt indicated one space would need to be deleted as it was undersize and therefore made his assessment on the provision of 328 car spaces.
Mr Hunt's evidence was that the proposed number of car spaces will meet the anticipated peak demands and there would be no need to rely on any on street parking. In reaching this conclusion he considered the intention to limit the patron numbers to 650 to be significant. Mr Hunt also expressed the view that the car parking layout and access arrangements conform to the requirements of clause 52.06 and Australian Standard AS2890.1 and will provide for convenient and efficient access for staff and patrons.
With regard to traffic generation, Mr Hunt submitted, the site is expected to generate up to 175 vehicle movements per hour during the mid evening period on a Friday or Saturday with traffic distributed via Case Street to Edgewater Boulevard, Thomas Homes Street and Gordon Street. He was of the view there was sufficient capacity available to accommodate peak flows without impacting on existing operating conditions.
We note that neither residents nor the Responsible Authority called any evidence on parking or traffic difficulties and did not seem to provide any meaningful challenge to Mr Hunt's evidence.
If anything, we consider the provision of onsite car parking is remarkably generous for an entertainment use of this size in an inner metropolitan Melbourne suburb. The car parking area takes up more than half the plot ratio of the site and tends to emphasise the size and bulk of the building. Part of this can be attributed to the method of providing all car parking at ground or above ground level.[17]
While there will be a residential hotel function that could rely on about one car parking space per accommodation room, plus nominal management facility, there are opportunities for the sharing of parking to justify a reduction in the amount of parking for the use.
In questioning regarding the revised development plan Mr Hunt conceded that whilst there was a reduced number of car spaces to be provided (295) than the application plan it still provided a good outcome. In reaching this conclusion Mr Hunt considered there would be improved taxi storage facilities in Thomas Homes Street as a result of the relocated entrance.
We consider 295 car spaces to be a generous car parking supply for the activities proposed and there is adequate capacity in the surrounding road system to accommodate the traffic generated. Further the revised plans provide for tangible improvements to local amenity by reducing a potential conflict from vehicles departing the premises in the south western corner of the site. A reduction in the provision of car parking is considered appropriate.

[25]

In evidence Ms Hui advised the building should be capable of meeting SEPP N1 and N2 and the nominated sleep disturbance criteria. She recommended treatment to the outdoor courtyard area to the south-east of the building and recommended a limit on the number of patrons in the courtyard after 10.00pm. There was little challenge to Ms Hui's evidence or her recommendations.
Ms Hui expressed the view that relocating the elevated café section further north to a location close to Thomas Homes Street would help to reduce the potential escape of patron noise and as a result reduce any amenity issue at the closest interface with the residential properties approximately 50 metres plus to the south of the development.
Ms Hui also advised that noise from late night vehicle activity within the car park and Port Cochere will meet the nominated sleep disturbance criteria. We consider the revised plans that relocate the Port- Cochere and main pedestrian entrance to the north-western corner of Thomas Homes and Case Streets will also lessen the potential for conflict and is be preferred to the application plans.
Accordingly we consider there are no adverse noise amenity issues that cannot be addressed by permit conditions of the kind recommended by Ms Hui. We find the revised plans will assist in addressing any potential noise amenity conflicts.
The amenity of this site and its neighbouring properties is very different to a conventional residential area found in Maribyrnong. The extent of development and activity in the vicinity of the site will produce a different outcome than the greater level of peace and quiet that a resident in a normal residential neighbourhood may expect. Similarly, the physical manifestation of the neighbourhood which has late night activity, such as a supermarket providing local service is very different to a conventional Residential 1 Zone neighbourhood that comprises detached or semi detached houses.
We have considered the issues raised by objectors and Mr Gattini and make the following comments:
- The applicant offered to reduce the operating times of the premises to 1 am and we consider that is an appropriate limit for most operations of the premises although we see no fundamental reason why the function centre component could not operate until 3 am.
- Potential noise impacts and conflict with residences to the south- east were addressed by Ms Hui. Further improvement is achieved by relocating the Port- Cochere entrance to the north-western corner of the site.
- The elevated outdoor courtyard at the south-eastern corner is relocated further north- east.

[27]

The Responsible Authority submitted locating a gaming venue in a strip shopping centre is inappropriate. A new gaming venue will result in a saturation of gaming machines in an area with a community vulnerable to problem gambling. In this respect the proposal is contrary to clause 52.28 which seeks to ensure that gaming machines are situated in appropriate locations and premises.
The decision guidelines contained in clause 52.28-6 include not only a consideration of State and Local planning policies, but compatibility of the proposal with adjoining and nearby land uses, the capability of the site to accommodate the proposal and whether the gaming venue will also provide a full range of club facilities or services to members.
There is no specific policy guidance within the Maribyrnong planning scheme indicating where an 'appropriate location' would be for gaming machines. The Responsible Authority adopted a policy[18] with respect to gaming machines which is said to be out of date. We note this policy has not been incorporated within the planning scheme and given the comments regarding it being out of date and in need of revision we do not consider that it provides any assistance to us.
Due to the prohibition, an inappropriate location for a gaming venue is a strip shopping centre. We also note that gaming machines are not allowed in the Highpoint Shopping Complex, Maribyrnong. It is said that the location of gaming venues in close proximity to shopping strips is to discourage impulse gaming when in the course of a trip for a different purpose[19]. Other than the scheme indicating these locations are inappropriate there is nothing to suggest any other location is inappropriate. There is a possible inference that this extends to retail areas generally, but this has not been specified.
The location of the egms within a club rather than a hotel, we consider is significant and may not encourage, as would a hotel with easier access, the impulsive visit. Nor is the venue to be located within a strip shopping centre, although there are shops nearby. We do not consider that gaming venues should be located in inaccessible locations away from either shops or residences. As a legitimate form of entertainment general accessibility should be encouraged.
We do not consider that the gaming component of the premises is inappropriate within this location. There is to be contained within the premises not only a gaming venue but function rooms, bistro, café and accommodation. The gaming component is a very small part of the overall facility which is to provide not only entertainment but accommodation and club facilities for members and their guests. The components contained within the premises are considered to be compatible with the nearby land uses particularly as the site is included in a mixed use area which is earmarked for some form of commercial or entertainment use. The location and premises are therefore appropriate for the location of gaming machines.

[28]

Section 4(2) (d) of the Planning and Environment Act 1987 provides for explicit consideration of social and economic affects when decisions are made about the use and development of land.
The Responsible Authority submitted the gaming venue will adversely affect the social and economic well being of the Maribyrnong community. A consideration of the impact on the well being of the community is discussed further under a consideration of the Gaming legislation below. In terms of the planning context and the consideration required to be undertaken we make the following observations.
The Responsible Authority and in turn its witnesses as well as RAIDIM referred to the proposal having an adverse social (and economic) impact on the area. Some of the concerns expressed related to the immediate trade catchment area of the gaming venue that is within 1km and more particularly to the disadvantaged area to the south known as the Empire/Eldridge area. The evidence provided indicated there are a number of areas of relative disadvantage in the Maribyrnong municipality including the area around the Whitten Oval, the current site of the Club's gaming facility. The applicant submitted the Edgewater Estate was not one such area, but as Justice Bell stated in the recent Romsey Hotel[20] decision '... not everything you can count counts and you cannot count everything that counts'.
The evidence, discussed in more detail below, indicated there was considerable opposition from the local community, particularly within one kilometre of the site, whereas the applicant's survey methodology focused on a broader catchment in the order of 5 kilometres that identified a higher rate of acceptability.
It was contended that due to the location of the site there is a strong likelihood that the more disadvantaged residents in the Empire/Eldridge area would be more inclined to visit the subject premises rather than attend the nearby Powell Hotel, located on the corner of Ballarat Road and Gordon Street which also contains egms. We consider this claim is overstated. On our inspection we noted residents on the eastern side of Gordon Street accessing the hotel by utilising the existing traffic lights across Gordon Street outside the Powell Hotel, enabling the easy crossing of Gordon Street. We do not see that Gordon Street is a significant barrier to patrons seeking access to the Powell Hotel on the western side of Gordon Street, if anything it serves as a notional and statistical boundary that can be traversed by pedestrians.
We were provided with evidence of the attractiveness of venues that offered gaming facilities. Mr O'Hehir stated:

[30]

In evidence Dr Livingstone indicated persons vulnerable to gaming addiction were more likely to attend premises outside peak operating hours. This is a sound social reason to place some limits on the ability of club members and residents of Maribyrnong to be exposed to prolonged gaming venue operating hours.
If we were to assume a level playing field in terms of pedestrian accessibility then the Powell Hotel and the Edgewater Club will have similar benefits. We note the current operating hours of the Powell Hotel provides unrestricted access to the gaming area between 9.00am and 5.00am on each day.
Not only will there be a net reduction in gaming machines from 'areas of high disadvantage'[22] to an area of (relatively) less disadvantage, discussed further below, but a reduction in hours would mean a reduction in the opportunity to play those 70 machines under the 'attractiveness' score.
We consider the attractiveness of this new venue can be curtailed legitimately, in comparison to existing venues such as the Powel Hotel, by limiting its hours of operation. We acknowledge Mr Townshend offered to reduce the hours of operation from 3am to 1 am that amounts to a reduction from 140 hours to 126 hours or about 15 % loss in attractiveness.
We consider there is justification to further reduce the time for gaming to between 11am to 1 am, or amounting to 14 hours per day, which according to Mr O'Hehir's formula would amount to a 46% reduction in attractiveness of the venue.
Dr Livingstone mentions a number of "upstream" interventions to limit gambling harm. Whilst we consider some of these may have broad merit they have not been tested on a local level and should more realistically be the subject of wider investigation by the State Government. However we consider it appropriate to delete the smoking courtyard abutting the gaming room.
On our visit to other venues we noted for example in the Powell Hotel patrons had reserved machines to take a cigarette or play other machines and we consider this practice did not seem to enhance opportunities for patrons to take a break from gaming or consider their position.
We consider that smokers using the gaming area should be required to share other smoking areas such as the north-eastern terrace rather than have a convenient place next to the gaming machines. This would then obviate the practice observed in other gaming venues of persons reserving gaming machines and taking a quick smoke and it will encourage gamblers who take a smoke to consciously exit the gaming area in order to have a smoke.
Similarly, we consider it is prudent that there are a number of management tools that can take place to discourage problem gambling and emphasise the "club" atmosphere so that it is distinguished clearly from a hotel where patrons seemingly can walk in off the street buy a drink and use gaming machines at will.
During our hearing, we were urged to visit "The Club" at Caroline Springs as this was the likely model to be adopted by the Edgewater Club. We found "The Club" premises inviting and appeared to appeal to a broad demographic including sports bar facility, members area, gaming area, café and dining facility. We were somewhat surprised not to be challenged on entry or required to fill out any visitor documentation and compared this experience with the signing in at the Yarraville Club. From our perspective it may be easy for a layperson to find it difficult to distinguish the difference between "The Club" and a conventional hotel premises.
Mr Townshend seemed to be at pains to emphasize the importance of the football Club operating this venue; and it being a social club venue as a home base to enable an accessible base for the Club networks and people associated with the Club. We received mixed messages from some of the witnesses, including the President of the Club who advised in cross-examination that there was to be no direct link or facilities provided to Club members.
We accept that the Club is to be the intended operator with financial commitments and expectations of economic returns commensurate with gaming industry standards. The premises, to be known as Edgewater Club is to have little if any external or internal football club reference but will operate similar to "The Club" at Caroline Springs, operated by the Collingwood Football Club.
We accept the bona fides of the representatives of the Club about its relationship with Prizac Investments Pty Ltd and George Adams Pty Ltd. Mr Townshend submitted many patrons expect in a modern football club a social venue which many patrons enjoy. Whilst we accept the general thrust of his point we nonetheless were less than impressed by the mixed messages about the relationship with the club members. We would think it prudent that in the least reciprocal rights be offered so as to encourage members to visit its primary social club venue.
Having regard to some of the concerns raised by both the Responsible Authority and objectors we consider the following measures included as part of the proposal will address a number of their concerns:
- A permit condition restricting the operating hours of the gaming venue from 11.00am to 1.00am.
- A permit condition requiring the deletion of the smoking area immediately abutting the gaming area.
- A permit condition requiring a Patron Access & Management Plan to incorporate such measures as:
  - Membership ;
    - positive reciprocal arrangements with other clubs; and
  - measures to identify problem gamblers within the club.
When viewed within the whole package of uses to be contained within this development including a full range of club facilities like café, a kiosk, accommodation, separate bar facilities, bar and dining facilities and function rooms we consider the proposal will provide a positive social outcome for the emerging new suburb of Edgewater.

[38]

As we have previously stated we consider the proposed development is generally in accordance with the approved development plan, therefore under clause 4 CDZ3, there is no requirement for a permit for buildings and works.
Mr Pitt sought to comment on the built form and scale of the development with reference to its excessive plot ratio, method of construction above the raised surface of the land and pushing the volume of the building to site boundaries. This was similar to Mr McNabb's criticism mentioned earlier from the inappropriate form and scale to the type of uses recommended for a neighbourhood activity centre. It was Mr McNabb's view that the proposal does not respond to its context and is not acceptable from an urban design perspective, given its location immediately adjacent to the retail and community hub of the Edgewater neighbourhood centre.
Mr Gattini was critical of aspects of the scale and appearance of the development[25] with particular reference to:
- The lack of a commercial interface to the north.
- The less than optimal south and east elevations, including the lack of engagement with the public domain, and
- A consideration in the reduction of the perception of bulk by increasing the southern setback, and better articulating the building with recessed balconies
We do not share Mr Mc Nabb's criticism of the type of uses or extent of floor area. The approved development plan and the provisions of CDZ3 anticipate a three storey building with a hard edge built form to street boundaries. When the proposal is examined in the context of the type of development recently approved in the vicinity of the site, including the La Scala development to the north and the office building to the northwest, we consider the use and development, as revised, has responded in an appropriate manner to its policy and physical context.
Similarly, we do not consider the proposal will adversely affect the local (or neighbourhood) activity focus. The development now has a north-westerly focus. The entrance is not on the primary pedestrian route between the residential precincts to the east and the local retail focus. The Aldi Supermarket and three shops that form the focus of the neighbourhood activity centre turn their backs on the development.
Possibly with a view to seeking to address some of the issues raised, whilst no permit is required, Mr Townshend provided, late in the hearing a revised layout of the development. Having viewed this revised layout we think it should be preferred and make the following comments:
- the pedestrian and vehicular entry point is shifted from the south-west corner of the site to the north-west, a less sensitive location;

[40]

There did not appear to be a proper assessment of the plot ratio of the development undertaken, at least until the issue was raised by the Tribunal in the hearing. All parties presumed the site plot ratio was less than 1.5. As referred to above this appears to have been based on an old planning scheme.
In our view the plot ratio figure in clause 14 appears to be a remnant from the pre VPP planning scheme and may have been incorrectly applied without a proper appreciation of the ramifications that took place with the change in the definition of plot ratio in the late 1990's.
Mr Gattini claimed the development was too intense but did not refer specifically to plot ratio, its definition or permit trigger. Instead he focussed on the activities and the gaming facility in particular. This is somewhat odd because historically plot ratio has been used as an indicator of the commercial intensity of a development.
In this context we sought information about recent development approvals in the vicinity of the site. We were better able to understand the level and intensity of anticipated development for this section of the mixed use area after viewing the three storey office building and the plans of the La Scala development (approved by the Responsible Authority, but not developed)[26].
We may have come to a different conclusion if all buildings were of a size similar to the single storey Aldi supermarket to the west, however based on similar calculations of the La Scala development, particularly the northern office building, we are satisfied there is justification to allow the increase in plot ratio above 1.5.
Criticism of the excessive intensity of the uses proposed appears to us to be flawed. We note the main focus of criticism was the proposed gaming facility yet it will only occupy approximately 300 square metres, or about 20%, of the floor area of the proposed club floor area. It may facilitate a good proportion of the cash flow brought to the club, but it is not the only activity on the land.
In terms of parking and traffic generation it is the whole facility, including function rooms, dining and bars that are assessed, not just the gaming facility. Activities like the function rooms and bars can also contain large groups of people yet no analysis was provided of those facilities, presumably because the Responsible Authority saw those facilities as acceptable.
Accordingly, when we viewed the three storey height and the correctly applied plot ratio calculations, we are satisfied that the proposed development is reasonable in built form and intensity for this mixed use area.

[48]

Are the proposed premises, once built, suitable for the management and operation of gaming machines?
Will the net economic and social impact of approval not be detrimental to the well-being of the community of the municipal district in which the premises are located?
The Club until 1997 operated entirely out of premises known as the Whitten Oval. It has now re-located its home football games to Docklands. The social club at Whitten Oval was granted a gaming licence in 1992 for 105egms. This has been reduced twice, firstly by the operator providing the egms and then by the Minister for Gaming, imposing a cap on egms particularly in the municipality of Maribyrnong. The Club has 48 egms at Whitten Oval and also operates Club Leeds which had its egms reduced to 30 and leases the Vic Inn in Williamstown.
Once the ground at Whitten Oval was no longer used for football games the facilities deteriorated. The Club was successful in receiving a Federal Government Grant ($8m), along with grants from the State Government, Victoria University (who is to use two floors as an experimental teaching centre), philanthropic trusts, the AFL and Maribyrnong Council totalling $26m towards redevelopment of the Whitten Oval. The redevelopment is progressing rapidly.
It was acknowledged that underpinning some of this funding was the proposed relocation of the egms partly due to the relationship with a child care centre to be established at the Whitten Oval[27]. The Club is keen on ensuring that it can relocate its social venue within the municipality. The site for the proposed development being only 1.6km from Whitten Oval.
The original application before the Commission was for 65 egms, it was amended to 70 egms and the Commission was advised that all the egms to be located at the proposed Club Edgewater would be relocated from other venues within the City of Maribyrnong[28]. Further that if the application was approved, 11 egms would be removed altogether from the Maribyrnong municipality.

[54]

It was the Commission's view that the positive impacts of the proposal outweigh features of the proposal that may be detrimental to the well-being of the community. In this respect the Commission considered the reduction in the number of egms in Maribyrnong, no increase in gaming venues and an overall reduction in egm expenditure were all positives. It further considered the 70egms were to be relocated from more disadvantaged areas within the municipality to an area of less disadvantage, which was also predicted to increase in population. The community would be provided with a quality social venue resulting in not only construction, but on going employment opportunities which would stimulate economic activity within the municipality.
The detrimental impacts are said to relate in particular to the location of the proposed venue. Firstly it is in close proximity to a supermarket, particularly targeted at lower income shoppers; secondly it is in close proximity to a recognised disadvantaged area referred to as the Empire/Eldridge area to the south. The underlying premise being that persons with lower incomes or particularly disadvantaged were more vulnerable to problem gambling. Thirdly the residents in close proximity to the site are unhappy about it being located close by.
Maribyrnong has a high number of egms within its municipality. As a result of the imposition of the cap by the Minister for Gaming in 2007 there was an overall reduction in egms in the municipality from 675 to 511 (24%). The Maribyrnong community, because of this high concentration of egms, has easy access to them and although it was recognised they do make a community contribution in the form of entertainment, local employment and the provision of community facilities, such benefits to the community were considered, particularly by Dr Kerkin and Dr Livingstone, as being overstated.
RAIDIM submitted it reflected the overwhelming community opposition to the proposed gaming venue. RAIDIM referred to the overwhelming concern by residents regarding the introduction of gaming in close proximity to the shopping centre. They reiterated the views expressed by Dr Kerkin and Dr Livingstone regarding disadvantaged persons being more vulnerable to gambling addiction, the proximity of the Aldi supermarket as well as the close proximity to the Empire/Eldridge area.
RAIDIM presented a thorough and well thought out submission on behalf of its current membership, indicated to be almost 200 which it is understood include nearby, as well as residents further away within the municipality of Maribyrnong. It also indicated it was speaking on behalf of the 2,500 people who had signed a petition against the proposal. Gaming is but one issue the group has opposed having been formed in relation to opposition to development proposals.
Mr McKenzie made an individual submission advising us that he had succumbed to being a problem gambler. He gave some details as to how this had affected his family and life generally. He indicated he had retired to Edgewater and was vehemently opposed to the proposed introduction of a gaming venue in close proximity to his residence as well as the retail area of Edgewater.
We understand Mr McKenzie's personal reasons for not wanting a gaming venue within Edgewater, however we note that he lives in close proximity to other gaming venues, including the Powell Hotel and already has to grapple with issues of resistance. He indicted to the Commission that he visited the Powell Hotel to gamble, although we were not informed that he was still doing so.

[55]

Four representatives of the Club[29] gave evidence to the Tribunal, as they did before the Commission. These witnesses provided an insight into the Club's financial difficulties and improved on field and off field fortunes culminating in a turn around in revenue since 2007.
They all supported the view that this venue was an essential element in allowing the Club to maintain a social venue within its traditional heartland and in relatively close proximity to its training and administration facilities at the Whitten Oval.
Club Leeds, although located in the central shopping area of Footscray, does not present in any way as the "social club of the Western Bulldogs". Likewise it is also indicated that with the Edgewater proposal there will not be any overt branding to identify with the Club.
Reference was made by Mr Quick, as well as the Club witnesses to the members of the Club, of whom half, it was stated, reside in the western suburbs. The Club is also recognised by the Council as one of the 'icons' of the region with its long history closely tied to the social and cultural heritage of the region and because of this its significant contribution to the economy of the region. We note the Council and Club entered into a Memorandum of Understanding in 2004 which recognises the contribution and level of involvement in the community by the Club.
Mr Quick referred to the Club's community program initiatives which related to a healthier, safer, engaged and sustainable community. He sought to link the programs directly to gaming revenue and indicated part of the involvement in community activities is a requirement of the AFL.
All four Club witnesses highlighted the need for revenue from the egms to make a contribution, particularly to community based programs run by the Club, including its Spirit West Services (SWS). It was acknowledged that the social club declined and so did the revenue when games were moved from Whitten Oval, due in part to the lack of club members frequenting the Whitten Oval.
The Club witnesses inferred that without the revenue from gaming the Club would be unlikely to continue to provide its community services. If permitted however, this would possibly assist the Club in being able to increase the level of community service provided through SWS.
The VCGR was satisfied the operation of SWS involves costs born by the Club of at least $400,000[30] but it did not accept evidence which suggested a direct link between gaming and SWS, although they did accept that without the revenue from gaming, the operation of SWS would be severely compromised.
The Tribunal is unable to accept, as did the VCGR, that there is a clear link between gaming and the community services provided by the Club. There is a lot of sharing of facilities and financing going to SWS which comes out of the general revenue of the Club. There did not appear to be any distinct allocation, specifically of funds derived from gaming that were directed specifically to the community services. This is not however to say that located as it is within what is considered a disadvantaged community the services provided by SWS are not to be undervalued and it should be recognised that in this respect the Club is making a significant contribution.
The evidence indicated community services are an element that is required by the AFL for all football clubs to undertake. It was clear that all AFL Clubs conducted, or had some involvement, and supported some form of community services. All AFL Clubs within Victoria are also involved with venues that provide gaming. Mr Catterall was very clear in the expectations the AFL placed on clubs in this respect, considering that revenue from social clubs, and in particular egms, helped clubs remain competitive in the AFL and a viable organisation in the community. It seems to us that the Club would be required to continue its involvement in community services in some form or another to meet its AFL obligations, although we recognise that the type and extent of support could change.
It was put to us that there are other services within the municipality that also undertake similar community services. Given the nature of the community within the municipality the more services that can contribute to assisting this recognised disadvantaged community the better and the relationship with the Club is considered to be an excellent selling point for getting some of the disadvantaged members of the community involved in the programs offered. We were advised about one program known as FRESH[31] which appears no one else is carrying out.
We heard evidence that this program was created when the Club was in severe financial trouble. We would make the observation that if such a program can be embarked upon when the Club was experiencing financial difficulty, and has since been expanded upon, we do not consider that such a program would be lost merely because of a loss of revenue from gaming, if not permitted at this venue.
If the program is discontinued or changed we believe it could be for a variety of reasons, not merely a dependency on gaming revenue. We note from the evidence of Ms Hamilton and Mr Christoforou that the Club's connection with such a program has attracted additional sponsorship.
Similarly if the gaming venue is approved it does not necessarily follow that there will be an expansion of the SWS, although it would be hoped that a club that becomes more profitable can make an increased contribution to the community in which it is located.
The Responsible Authority in its submission recognised that there are various benefits to the community that arise as a result of the provision of SWS and other community services.
Both Dr Kerkin and Dr Livingstone sought to emphasise the impacts of problem gambling particularly amongst the disadvantaged members of the community and sought to highlight the high number of gaming machines that already exist in Maribyrnong and the highly disadvantaged community within the municipality in socio-economic terms.
Whilst Dr Livingstone's evidence was very interesting we found that it was very much focussed on his view that gaming machines should not be permitted anywhere as they lead to problem gamblers and the issues surrounding such a group.
Dr Livingstone was described as a crusader against gaming machines and whilst we found his evidence to be enlightening the comments he made seemed to be more apt for a Government forum rather than in relation to the matters we are required to consider under the Gambling Regulation Act 2003. We have therefore accepted his evidence in light of the statement by Morris J in Branbeau[32]:

[57]

Both Dr Kerkin and Mr Quick referred to the SEIFA index (Socio Economic Index for Areas) as providing an indication of the socio economic disadvantage profile of the City of Maribyrnong. Under the SEIFA scale of socio economic disadvantage the lower the score the higher proportion of relative disadvantage, the higher the score the lesser proportion of relative disadvantage.
Based on the 2006 SEIFA index of disadvantage Maribyrnong is ranked 7 out of 80 Local Government Areas (LGA) indicating that Maribyrnong comprises areas that are relatively disadvantaged. This ranking has, as Mr Quick observed, changed since 2001 when it was ranked 2 out of 79 LGA suggesting the improvement could in some way be due to the new developments within Maribyrnong, such as the Edgewater Estate.
Consideration was given to the area within 1km of the proposed development and details of the SEIFA index score and percentile ranking for the Census Collection Districts (CCDs) within this radius were taken into account. In relying on this indicator Dr Kerkin sought to show that the 1km catchment area of the proposed Edgewater venue was severely disadvantaged. Dr Kerkin referred to various studies that indicate that areas of socio-economic disadvantage are more vulnerable to problem gambling and the negative effects of gaming[33].
The area to the south is known as the Empire/Eldridge area[34]. This area at 2% is ranked lowest and is recognised as being severely disadvantaged. This is compared to the two CCD areas which make up the Edgewater Estate[35] ranked at 72% and 96% indicating less disadvantage.
Dr Kerkin concluded that the 1km catchment area is demographically over-represented by all of the known at-risk groups, including financially dependent and isolated women, people with mental health issues, substance and alcohol abuse/dependency as well as unemployed people, people from non- English speaking backgrounds and lone parents.
The VCGR agreed, as we do, with Dr Kerkin that the catchment area of the Edgewater Club contains a population with high levels of unemployment, low household and family incomes and signs of social isolation or weaker community connections. We note however as the VCGR noted, the Empire/Eldridge area is already in close proximity to a gaming venue, namely the Powell Hotel which provides them with convenient access to egms which is not subject to membership and sign in requirements anticipated for the proposed development.
Dr Kerkin did not agree that the proposed removal of a number of egms from other establishments, ranked relatively high in socio economic terms as disadvantaged, to an area of less socio economic disadvantage as a positive benefit for the community, particularly in relation to the community located in close proximity to each establishment. An example being the nearby Powell Hotel which will have a reduction of 7egms and 8 egms from the Braybrook Taverner located in a highly disadvantaged area.
Dr Kerkin expressed the view that the placement of egms at Edgewater would increase the opportunities for convenience gaming as it could not be considered a destination venue. It would be easily accessible and would increases the exposure of the community to gaming machines as a result of trips to the neighbourhood centre in which it is to be located. Dr Kerkin also considered the new venue would be more attractive than existing venues.
No evidence was presented to accept Dr Kerkin's conclusion that the proximity to retail facilities was a significant factor. Dr Kerkin asserted Edgewater is slightly more accessible due to pedestrian accessibility. We contrast this to Club Leeds and its location in the centre of the Footscray shopping area. Whilst said to be accessible we note the proposed venue is not located on a major road, unlike the Powell Hotel and Braybrook Taverner.
It is evident that within close proximity to the proposed venue there is an area of high socio economic disadvantage, it was acknowledged that this is the situation in close proximity to the Whitten Oval, as well as to the other establishments from which egms are to be removed. This situation currently exists and will not change as a result of the proposal.
The proposed venue does not contribute to an increase in egms within the municipality rather it will have a positive benefit in reducing the number of egms in highly disadvantaged areas as well as the overall number within the municipality. In this respect 70 egms will be relocated not to an area recognised as being highly disadvantaged but rather to an area that is less disadvantaged.
Whilst the proposal provides a new venue that is easily accessible this is no different to the existing venues which are also easily accessible[36]. Whilst Dr Kerkin and Dr Livingstone considered that the proposed new venue would attract people as it would provide more attractive surroundings, this may be so, but if it attracts members of the community who already frequent the other venues, particularly the Powell Hotel, this is no different to the existing situation. There are already members of the community who attend the other establishments, changing and attending this venue will not necessarily lead to a conclusion that there will be an increase in the number of the community who will now gamble; rather it just leads to a reduction in those members of the community who seek to gamble, attending one venue rather than another.
In terms of social benefits we consider the proposed venue provides a choice and improved facilities for people who wish to participate in gaming[37], an activity which is not only legal but supported by Government policy. The objectives expounded in the legislation[38] are to minimise harm from problem gambling and accommodate those who gamble without harming themselves or others, to promote tourism, employment and economic development generally in the State. We consider the accessibility of the venue as being in this respect a social benefit.
We contrast the proposed venue which is to be a club facility to that of a hotel. As mentioned previously a club has membership rules and requirements. There are no such restrictions on a hotel. We consider that a club venue where admission is regulated, and there can be imposed limited hours of operation of the gaming room, reduces the availability for problem gamblers, and reduces impulse access. We also note Mr Quick's comments regarding the Club's good repute regarding responsible service of gambling. We note that the Club is required to adopt a Responsible Gambling Code of Conduct and provide for a self-exclusion program approved by the VCGR.

[60]

The community of the Edgewater estate is a relatively new community. The estate contains approximately 600 new dwellings and is expanding with additional dwellings under construction and is described as being a master planned community. The evidence indicated that by 2011, the expected time the proposed development would be in operation, the number of residents in the Edgewater Estate will have markedly increased from currently 1,200 to an expected 2,500.
Mr Quick concluded that the SEIFA rankings suggest that the Edgewater Club, based on a 1km catchment, has a better socio-economic profile than the Braybrook Taverner, but is slightly less advantaged when compared to the Yarraville Club. In relation to the other catchments, the Edgewater Club appears to reflect a similar profile to the Whitten Oval, Powell Hotel and Club Leeds, although the CCDs that comprise the Edgewater Estate are noticeably better than other CCDs in the assessment[41].
We accept based on the SEIFA rankings, that there will be a higher proportion of residents within close proximity to the proposed venue in a CCD predicted to have a higher SEIFA index score, than the CCDs in which the machines are currently located. We accept that the greatest impact will be felt by those within a 1km radius, which consists of 9 collector districts, of these two are within the highest rankings, whilst a number of others were extremely low falling within the lowest 25%.
We note that Dr Kerkin did not consider the projected population increase within the Edgewater Estate. Housing stress was referred to which relates to expenditure and assumes more than 30% of available household income. The VCGR did not consider there was a high level of housing stress in Edgewater Estate and we were not given any evidence to suggest otherwise.
A survey of members of the Club was carried out. Of the 720 responses, 644 supported the proposal and 76 opposed it. 34% indicated they would use the gaming room.
Mr Calwell conducted a telephone survey which included 152 residents of Maribyrnong/Edgewater. His survey extended further than did Mr Hubner, which concentrated on a 1km radius and used the drop off and pick up survey method.
The respondents to Mr Calwell's survey were informed about the proposed development including that gaming machines would be relocated from other venues and 11 removed from the municipality, the potential employment opportunities and that it would provide funds for the Club to continue its community services. If the respondent expressed opposition to the inclusion of gaming at the venue they were informed that the proposal was an 'all or nothing' proposal and if there was no gaming the development would not proceed.
In Mr Calwell's survey 53% supported the proposal and 15% neither supported nor opposed it (68%). Of those that opposed it the greater majority, that is 80%, opposed it strongly. A number changed their position when told the development would not proceed if there was no gaming.
Mr Calwell's survey shows that residents close to the venue particularly in the Edgewater Estate were more likely to oppose the proposal than residents located further way.
Mr Hubner conducted two surveys one of 550 households relating to the original application and 150 in a clarifying survey relating to the amended application. In the later survey additional questions were put including asking for comments regarding the respondents' sense of well being and their level of happiness and contentment and the effect upon these matters if the application was successful.
700 houses received a survey form and completed forms were returned from 484. The respondents were given information about the proposal but were not asked, as in Mr Calwell's survey, to comment on the different components of the proposal. 68.7% of respondents were opposed to the application indicating the effects would be adverse.
The VCGR took into account the surveys by both Mr Calwell and Mr Hubner, observing that residents in close proximity to the proposed venue were well informed about the proposal as a result of publicity and public meetings. In relation to rating the impact the proposal would have on a range of socio-economic aspects of the local community the VCGR identified the greatest issue commented upon was 'traffic' with gambling/addiction issues being referred to after noise, crime and anti-social behaviour.
The statements of the residents appeared to be general. Gaming venues have been located within the municipality for a considerable time; this is not something new only that the venue is in a new location. This is unlike the situation in the small township of Romsey.
Mr Calwell found it was less unpopular amongst a broader section of the population. It was suggested the Council's view is that the Club will be too popular.
We consider the relevant community in relation to this application is a part of the community of Maribyrnong and relates to the community generally within a 1km range of the proposed development. We adopt this view as it was apparent from Mr Calwell's wider survey that there was less opposition as compared to the survey carried out by Mr Hubner which focused on the residents within a 1km radius and it is this community that we consider is likely to experience unhappiness and discontent. We note in the survey carried out by Mr Hubner the greatest impact as a result of the proposed development related to traffic issues and the concern with the possibility of increased gambling came after safety and policing.
We do not consider that the community will be worse off because of the approval. We accept that with the exception of the Yarraville Club all of the venues from which machines are to be taken are more severely disadvantaged than the Edgewater area[42].
The evidence indicated that by 2011, the expected time the proposed development would be in operation, the number of residents in the Edgewater Estate will have markedly increased from currently 1200 to an expected 2500. There is no expectation that the population in the nearby Empire/Eldrige area will either increase or decrease but rather it is expected to remain static.
We conclude that there will be no net social detriment. The impacts assessed are the marginal impacts of the approved venue that is only those impacts that will occur as a result of the application rather than those that would have occurred in any event[43].
There will be no increase in gaming venues within the municipality and although a number of people within close proximity to the site are unhappy about the proposal we consider this view would apply equally regarding the location of the nearby existing Powell Hotel and its gaming venue. We do not consider that the surveys indicate there will be an increase in unhappiness or discontent within the community in close proximity to the proposed development as a result of the introduction of gaming, as this community is already in close proximity to a gaming venue.
In our view the factors that make up this community will not change as a result of the presence of gaming at Edgewater. This is due to there already existing within the municipality and in close proximity already to this area, gaming venues. As did the VCGR, we consider that residents who live in closer proximity to the proposal, whilst opposed to gaming, do not rate it as one of the top issues for the local community to address. We also consider that the potential affect of gaming in this area where there are already venues in close proximity is in vast contrast to the situation in Romsey where there were no gaming venues.

[62]

Gaming expenditure in Maribyrnong is recognised as being high compared to the State average. The Club submitted 'expenditure on gaming is not necessarily a detriment to the community'. In this respect it was submitted the majority of gaming expenditure is voluntary and made by persons who are not problem gamblers enjoying a legal entertainment; the Productivity Commission has recognised a level of economic benefit flows from such expenditure; and, at least 1/3 of gaming expenditure is remitted to the government by way of direct or indirect taxes then spent for the benefit of the community.
It was submitted a substantial proportion of the gaming expenditure at Edgewater will be transferred from existing venues and as stated by Morris J in Kilsyth[44], 'to that extent, cannot as a mater of logic exacerbate problem gambling'.
In the circumstances of this proposal there is no proposed increase in the number of egms within the municipality as there would be with any other new venue proposal. The Club is proposing to close and relocate its 48 egms currently at Whitten Oval to Edgewater, and increase the number of egms to 70 by taking egms from other venues within the municipality[45]. The Club has also agreed that 11 egms would be removed totally from the municipality.
The Tribunal accepts, as did the VCGR, that due to the movement of egms from the different existing locations, including Whitten Oval, there will be a transfer of expenditure from the areas in which the existing egms are located to the new Edgewater venue. The Tribunal does not accept there will be no transfer of expenditure as submitted by Dr Livingstone. As well as a transfer of expenditure, Edgewater will also attract an element of new expenditure.
Mr Whitehouse gave evidence that the likely annual expenditure would be $6,3m of which 77.7% of this would be transferred expenditure leaving $1,41m as new expenditure. Mr Whitehouse further predicted that this would result in a net annual reduction in annual egm expenditure within the municipality of minus $709,102. In reaching these figures Mr Whitehouse relied upon the Geotech model[46].
The information provided by the Geotech model and now relied upon by the Club has been accepted by the VCGR, as well as the Tribunal, in a number of previous determinations[47]. It is not perfect and it can be seen from a comparison of the figures released by the Minister for Gaming in March 2009 and the predicted revenue from either Tattersall's or Tabcorp, as Mr Gill pointed out, there can be significant variations from the actual figures, on occasions over and on occasions below what was predicted. Often when looked at closely however, such variation can be explained, such as refurbishment of a venue.
The Geotech model does not look at any one venue in isolation; it forms a view as to the likely effect of the removal of machines or the addition of machines based upon how that venue sits within the network, how close it is to competing venues. It therefore endeavours to estimate the changes affecting venues within the LGA and outside the LGA that might be affected by the changes. It was acknowledged that there is a limitation of the Geotech model in that it is dependent on the information fed into it. It is also less accurate in predicting expenditure within clubs compared to hotels.
The Geotech model considers a number of factors, including venue attractiveness, which is partly subjective, as well as objective. This includes ease of access, availability of parking, external and internal appearance, the number of egms and other matters. Attractiveness is not the sole determinative of revenue, the venue may be rated highly for attractiveness but have a low revenue rate and vice versa[48].
The VCGR considered that on the evidence available to it there had never knowingly been an understatement of the likely egm expenditure. The VCGR expressed the view that overall the predictions have proved to be extremely accurate and on balance they have tended to over estimate the likely increase in expenditure rather than underestimate[49]. It was also noted that there was a close correlation between the results from the Geotech model and from the earlier used Spectrum model. The VCGR concluded the Geotech model offers a greater degree of likelihood that the picture presented to the VCGR will be accurate[50]; this is so because transferred expenditure is an integral part of the calculation of the overall expenditure to be earned at a venue rather than a separate calculation.
Mr Whitehouse encouraged us to take a conservative approach and proceed upon the basis of adjusted expenditure figures which fall within the upper range of the 75th percentile confidence range, meaning that 75% of the time the absolute number provided will be an overestimate and 25% of the time it will be an underestimate. Whilst doing this for the predicted expenditure he did not consider this should be done in relation to transferred expenditure. Applying the upper 75th percentile confidence range the total expenditure predicted would be $6.6m, new expenditure would be $1.48m and the change in expenditure for the municipality would be minus $582,989[51].
Mr Gill, whilst not providing figures himself, considered the figures provided by Mr Whitehouse of the expenditure at the Club was understated and the percentage transfer too high. He also considered the claimed reduction in egm expenditure caused by the transfer of 22 egms from other venues and the removal of 11 egms was overstated.
Mr Gill adopted a case study methodology to look back to estimate transferred expenditure[52] and concluded there could be 50% transfer. Under cross examination Mr Gill agreed that for Club Ringwood in an area with more competition, a new venue is more likely to derive its revenue from transferred expenditure than from new gaming expenditure.
Additional information that was available before the Tribunal that was not available before the VCGR was the Minister for Gaming's March 2009 figures which it is understood was released to enable venue operators and investors to be able to form a view about the performance of venues to participate in changes to the gaming regulations. Mr Gill referred to three venues within the list provided by the Minster and highlighted that the transfer of expenditure estimated by Tattersall's was overstated. He took the estimated growth rate average for Victoria for 2006 & 2007 if a new venue was not introduced. In the example used of the Family Hotel Drouin the growth was 37% whereas the estimate from Tattersall's was 60%.
Based on the figures in the Minister's report it was Mr Gill's view that no more than 50% transfer figure should be applied. He submitted that if 50% transfer was applied then it was expected new expenditure will be a lot more. In this respect Mr Gill questioned where this new expenditure would come from. Mr Gill indicated that if 50% is applied using Mr Whitehouse's estimation it calculates new expenditure of $3.1m, considerably more new expenditure than Mr Whitehouse's calculation of $1.4m based on 77%. Mr Gill submitted that the impact on the LGA will be a higher new expenditure amount within the LGA rather than less as Mr Whitehouse calculated.
The Geotech model presumes that the removal of egms from venues results in less expenditure at those venues. Mr Gill looked at what occurred with expenditure when egms had been removed referring to the Ministers' figures. Some have gone down and some gone up and Mr Gill relied on this to assert that it does not follow that removal of egms results in less expenditure.
It was Mr Gill's view that the impact of Edgewater will be that expenditure will go up, that transfer expenditure will be less than 77% and the impact of the withdrawal of machines is that it will not necessarily decrease expenditure therefore the overall impact will not be negative.
Mr Gill however indicated there was a decrease in revenue in the Maribyrnong LGA between 6 to 8% when the cap was imposed and agreed under cross-examination that there was an overall reduction in revenue as a result of the removal of machines. He acknowledged the removal of machines often leads to an increase and sometimes a decrease in revenue. In this respect he indicated there was no change to Flemington Racecourse Tabaret when machines were removed as a result of the cap, but the revenue for this venue could go down due to its proximity to Edgewater.
Mr Gill did not in his assessment account for any reduction in revenue at venues outside the LGA. We note that the $6.3m referred to by Mr Whitehouse comprises revenue obtained from venues both within and outside the LGA. The Geotech model indicates places outside the LGA, namely in Moonee Ponds will be impacted, but any loss in revenue may not necessarily be directed to Edgewater.
Mr Gill did not disagree with Mr O'Hehir regarding the Geotech model, but submitted the reliability of the model to predict expenditure at a new venue, such as Edgewater has not been tested. Mr O'Hehir referred to a checking against the performance of existing venues, as no new venues have yet opened to test predictions. Mr Gill agreed the Geotech model produces estimates for egm expenditure that are very close to actual egm expenditure at existing venues. Mr Gill considered the actual expenditure achieved at a particular venue and matched it against the Geotech prediction. Of the 86 cases he considered, Geotech predicted in 2/3rd a figure which proved to be too low and 1/3rd proved too high. Whilst there are variances, Mr Gill's approach has not been tested, whereas we accept the Geotech model has gone through considerable scrutiny.
We accept Mr Gill's suggestions that the accuracy of the Geotech model must be considered carefully, taking into consideration any matters which would appear to indicate that the result produced by the model is unrealistic. If the projected figure of $90,526 per egm is achieved the expenditure per egm would be the third highest for any club within the Tattersall's network in Victoria. When the two clubs achieving a figure of greater than $90,000 per egm are considered, the VCGR concluded and we also accept, the estimate based upon the Geotech model is not unreasonable[53], as both are located on major thoroughfares.
In relation to transferred expenditure the VCGR did not consider the estimate of 77.7% as so high to be incapable of acceptance. It is acknowledged there are a large number of venues within the municipality and many are in close proximity to the proposed venue.
The VCGR accepted that taking into consideration the reductions effected in November 2007 the overall effect upon a number of venues will be quite significant. We accept that expenditure per egm in venues which have fewer egms tends to be lower than in venues with more, therefore if Braybrook Taverner is to lose 8 or 26% of its 31egms and the Powell Hotel, the closest venue has a reduction from 30 to 23 or 23% we accept that based on the evidence of previous reductions, the removal of machines from these venues will have an impact.
The VCGR concluded the estimate of likely egm expenditure at the proposed venue at the higher range ($6.62m) is reasonable. We accept the calculation as to the likely change in expenditure within the trade area caused by the variations in numbers of egms at a number of venues within the trade area and within the LGA as a whole. We consider that it is necessary to look at the overall change that will occur within the municipality which includes the closure of the venue at Whitten Oval, the reduction in the number of machines at four venues and the eleven over the whole municipality, as well as the establishment of Edgewater. We consider that the Geotech model gives us an assessment which Mr Gill did not.
A reduction in overall expenditure can only be a benefit to the Maribyrnong community. If it is accepted, as put by Dr Kerkin and Dr Livingstone, problem gamblers contribute a high proportion of gaming expenditure then an overall reduction in expenditure suggests a reduction in expenditure by problem gamblers[54].
The conclusion is that there will be no net economic detriment.

[64]

New legislation in the form of the Gambling Regulation Amendment (Licensing) Bill 2009 was introduced during the time of the hearing and has now been incorporated into the Gambling Regulation Amendment Act 2003. The legislation introduces significant changes to the supply of gaming machines within Victoria. The Club considered the changes were likely to increase the benefits which flow from the application rather than increase any potential detriment.
Under the new legislation a club will be able to operate a gaming business in 2012 if they hold a current venue operator's licence; purchase gaming machine entitlements; have an approved venue; have gaming machines and connect their gaming machines to the monitoring system.
Mr Gill submitted the Club may incur costs in respect of gaming machine entitlements of approximately $4.18m as well as at Club Leeds and Vic Inn. As at 4 June 2009 the Club operated Whitten Oval, it was therefore expected to be able to purchase the potential first 40 gaming machine entitlements based on the revenue at the Whitten Oval. If this option is not taken up there is then an opportunity to participate in a competitive bidding process to be completed by early 2010. Mr Gill suggested machines could cost in the order of $56,000 to $62,000. Although there was no evidence as to what the machines might cost there seemed to be some agreement between Mr Stubbs and Mr Gill but most of Mr Gill's evidence in this respect appeared to be based on speculation.
It is understood that underlying the legislative amendments is an intention by the State Government to increase the level of benefits that come from gaming machines to the community.
The Responsible Authority suggested there is no guarantee that the 11 egms would be removed from the municipality, as a venue operator could apply under the new regime to seek increased entitlements. It is accepted that Tattersall's owns the machines installed at Whitten Oval, Club Leeds, the Yarraville Club, the Powell Hotel and the Braybrook Taverner. The venues only operate those machines because of contracts with Tattersall's, this will remain until August 2012 when Tattersall's gaming operator's licence expires and the new licensing under the legislation takes effect. Tattersall's has a contractual right to remove the necessary number of machines and can ensure none are put back in the venues prior to 2012. Even if operators purchased additional entitlements under the new legislation they still need approval to install and operate the machines[55].

[65]

Of the uses proposed a planning permit is only required for a 'restricted place of assembly', the installation and use of egms (unless prohibited), to use the land to sell or consume liquor, a reduction in the number of car spaces to be provided and to exceed the plot ratio of 1.5. The other uses proposed being a residential hotel, food and drink premises, function centre and office are all as of right.
We are not able to consider the built form, scale and context of the proposal as there is no requirement for a permit for buildings and works. What is proposed is considered to be generally in accordance with an approved development plan. We are also confined in relation to hearing from the third parties, who have objected to the proposal, only in relation to the installation of egms, the sale and consumption of liquor and a reduction in the car parking.
We have concluded that the area for the purposes of clause 52.28- 4 is considered to be encompassed by the roads being Gordon Street to the west, Thomas Holmes Street to the north, Skyline Drive to the east and Edgewater Boulevard to the south between Skyline Drive and Gordon Street. We accept that this area as defined, meets three of the four requirements under clause 52.28- 4, but does not meet the requirement of being in an area 'zoned for business'. As it is in an area denoted as being for mixed uses the installation and use of gaming machines on the subject site is not prohibited.
We consider the strategic intent for the Edgewater Estate is broad and whilst the zone and policies may focus on retail having a local focus these provisions do not limit, but rather encourage, employment opportunities and a mix of entertainment and other ancillary uses which leads us to conclude the proposal for a restricted place of assembly is appropriate. We see the range of facilities to be provided as having a local as well as regional focus, due to some extent with its alliance with and operation by the football Club, which is historically linked to the municipality, without necessarily detracting from the primary local retail activity centre focus. We see the proposed use and development as providing employment opportunities.
There is no 'one size fits all' in terms of Neighbourhood Activity Centres, each must be considered in terms of the zone and relevant policy provisions. The mixed use area and built form expectations denoted under CDZ3 are significant, providing guidance regarding expectations for the site. The built form guidelines for the site are not offended, and the proposed floor area is consistent with the limits nominated in the purpose to the CDZ3.
The revised layout provided of the development in our view has addressed a number of amenity concerns raised by the residents. In this respect we consider the pedestrian and vehicular entry point has been shifted to a less sensitive location to the north west and will lessen vehicular and pedestrian movements away from the residential interface.
We consider 295 car spaces to be a generous car parking supply for the activities proposed and there is adequate capacity in the surrounding road system to accommodate the traffic generated. We also consider the recommendations made to assist in reducing the potential escape of patron noise will also reduce any amenity issues.
The gaming component within the venue is a small part of the overall facility which is to provide not only entertainment but accommodation and club facilities for members and guests. In this respect we consider it is significant that the venue is to be a club rather than a hotel. We consider the venue provides a range of facilities that will provide a positive social outcome for the emerging new suburb of Edgewater.
In reaching the conclusion that the location and premises are appropriate for the location of gaming machines we have imposed conditions on any planning permit to issue which in our view may contribute to the management of gaming by those within the community more vulnerable to problem gambling. In this respect we have limited the hours of the operation of the gaming room from 11.00am to 1.00am, deleted the smoking area immediately abutting the gaming area and required a Management Plan to incorporate membership requirements, reciprocal arrangements with other clubs and measures to assist problem gamblers.
We acknowledge that there are a large number of gaming machines located within the municipality of Maribyrnong, that the community has easy access to gaming machines and that there is a high percentage of the Maribyrnong community on low incomes who are particularly disadvantaged and as such may be more vulnerable to problem gambling. This is an existing situation.
Allowing the new venue will not result in any increase in the number of gaming venues in Maribyrnong. The Club already has a gaming facility at Whitten Oval. The removal of the 48 egms from Whitten Oval is a positive step, given the area around Whitten Oval is rated as being highly disadvantaged. Machines are also going to be removed from other highly disadvantaged areas including the nearby Powell Hotel and Braybrook Taverner. We consider that the reduction of machines in highly disadvantaged areas to Edgewater, considered to be a less disadvantaged area on the SEIFA rankings is overall a positive benefit to the Maribyrnong community.
We do not consider that the new venue is anymore accessible than existing venues, we note it is not to be located on a main road. Nor do we consider that the residents from the nearby Empire/Eldrige area are more likely to attend the new premises, particularly as they are closer to an existing venue at the Powell Hotel.
Whilst some members of the community within a 1km radius of the proposed venue have indicated they are opposed to the gaming venue these people are already located in close proximity to an existing gaming venue at the Powell Hotel. In our view the factors that make up this community will not change as a result of the presence of gaming at Edgewater.
We accept that there is more than likely to be a reduction in overall gaming expenditure within the municipality as a result of the removal of 11 egms from the municipality, as was seen when the cap was imposed. We see such a reduction in gaming expenditure as a benefit to the Maribyrnong community leading to a possible reduction in expenditure by problem gamblers. We also accept that there will be a transfer of expenditure from other venues in highly disadvantaged areas to the less disadvantaged area of the Edgewater venue as a result of the removal of machines from several existing venues.
We anticipate that there will be increased economic activity in the local area with at least 75% coming from non-gaming activities, employment opportunities will be created both as part of the construction phase and on going as part of the operation of the venue. The ability to relocate its gaming venue at Whitten Oval to Edgewater will assist in ensuring the future economic viability of the Club and make some contribution to the Club's ability to fund the community services the Club supports which is seen as an overall benefit to the community. The venue will also provide new social facilities for the area which can only but be a benefit.
We are unable to conclude as to what type of impact the new legislative amendments will have on either this facility or existing facilities in the municipality. If any venues wish to increase the number of egms they already have, this will not happen automatically, they will need to go through a permit process. We however accept that the underlying intent of the amendments is to increase the level of benefits that come from gaming machines to the community.
The decision of the Responsible Authority is set aside and a planning permit is granted subject to conditions. The decision of the VCGR is affirmed.

[102]

the emission of noise, artificial light, vibration, smell, flumes, smoke, vapour, soot, ash, dust, waste water, waste products, grit or oil.
External lighting must be designed, baffled and located so as to prevent any adverse effect on surrounding land to the satisfaction of the Responsible Authority.
All security alarms or similar devices installed on the Subject Land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
Signage must be displayed near all entrances/exits requesting patrons to leave the Premises in a quiet and orderly manner so as not to disturb nearby residents to the satisfaction of the Responsible Authority.
The venue must ensure that all advertising in relation to the Premises contains the words 'Free parking provided on site. Enter from Case Street'.
Vehicular crossing(s) must be constructed and/or modified to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority.
All disused or redundant vehicle crossings must be removed and the area reinstated with either/or footpath, nature-strip, kerb and channel to the satisfaction of the Responsible Authority.
Any street trees to be removed must be replaced with advanced trees, of a species and in a location to the satisfaction of the Responsible Authority.
The site must be drained to the satisfaction of the Responsible Authority. Storm water run-off from the site must not cause any adverse impact to the public, any adjoining site or Council asset. Stormwater from all paved area must be drained to underground storm water system. Any cut, fill or structure must not adversely affect the natural storm water runoff from and to adjoining properties.
No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Council's drains or watercourses during and after development.
This permit will expire if:
1. the development and use are not started within two years of the date of this permit; or
2. the development is not completed within four years of the date of this permit.

At a glance

Court

Decision date

Source

Judgment (149 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)

Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors (includes Summary) (Red Dot) [2009] VCAT 2616 (15 December 2009)