Victorian Civil and Administrative Tribunal|2009-02-04

Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 167 (4 February 2009)

George Adams Pty Ltd and Prizac Investments Pty Ltd

Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 167

George Adams Pty Ltd and Prizac Investments Pty Ltd

(b) Pursuant to section 127 and clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998 the permit application is amended by changing the name of the permit applicant to:

George Adams Pty Ltd and Prizac Investments Pty Ltd

Pursuant to section 60 of the Victorian Civil & Administrative Tribunal Act 1998, the Victorian Commission for Gambling Regulation is joined as a party to application P1697/2008.
In application P1697/2008, the hearing scheduled for 5 days to commence on 16 March 2009 is vacated.
Application P1697/2008 and application B18/2009 shall be heard and determined together. These proceedings are listed for hearing for 3 weeks from 9 - 30 June 2009. The Tribunal will not sit on 19 or 26 June 2009.
The application made by Maribyrnong City Council to deal with the issue of whether the site is part of a strip shopping centre for the purpose of clause 52.28 of the Maribyrnong Planning Scheme as a preliminary issue is refused. This issue will be dealt with as part of the substantive hearing and determination of application P1697/2008.
The applicant/permit applicant has foreshadowed that it intends to make an application to amend the planning permit application and substitute amended plans for the permit application plans in this proceeding. It shall be sufficient compliance with clause 11.1 of Practice Note PNPE1 - General Procedures if the applicant/permit applicant by no later than 2 March 2009 gives notice of its application to amend the permit application and plans in accordance with the following:
- (a) File with the Tribunal and serve on all parties to the proceeding, and the responsible authority the following documents:
  - A Notice of Application to Amend Plans in the form of Form A to Schedule 3 of Practice Note PNPE 1 - General Procedures with the relevant details completed;
  - A statement in writing describing the changes from the previous plans;
  - Advice that copies of the amended plans can be inspected during business hours at the main office of the responsible authority and on the responsible authority's website;
  - Advice that a party may obtain a copy of the amended plans upon request to the permit applicant.
- (b) File and serve the specified number of clearly readable scaled copies of the amended plans upon the following persons:
  - file with the Tribunal 2 copies;
  - serve 3 copies on the responsible authority;
  - serve 1 copy on:

Henry and Niola Glowacki and Others C/- Best Hooper, Solicitors

Victorian Commission for Gambling Regulation, C/- Victorian Government Solicitors Office

The permit applicant shall provide the responsible authority with a copy of the application to amend the permit and the plans in electronic form and the responsible authority shall publish them on its website as soon as practicable after receiving them.
It will be sufficient compliance with the requirements of Clause 4.2 of Practice Note PNPE-1 General Procedures for parties to file and serve the specified number of reports or statements containing the evidence in chief of any expert upon whose evidence they intend to rely at the hearing upon the following persons (as relevant):
- file with the Tribunal 2 copies;
- serve 3 copies on the responsible authority;
- serve 2 copies on the applicant/permit applicant
- serve 1 copy on:

Henry and Niola Glowacki and Others C/- Best Hooper, Solicitors

Victorian Commission for Gambling Regulation, C/- Victorian Government Solicitors Office

Expert witness reports should be filed and served 10 business days before the date of the hearing.

The responsible authority shall make available for inspection at its offices copies of all the expert reports filed and served herein, and each party shall upon request provide a copy of its reports to any other party to these proceedings forthwith whether that request is made orally or in writing.
Where possible, parties shall provide the responsible authority with a copy of their expert reports in electronic form and the responsible authority shall publish the reports on its website as soon as practicable after receiving them.

For George Adams Pty Ltd and Prizac Investments Pty Ltd

Mr Chris Townshend SC and Mr N Tweedy of counsel, instructed by Bazzani Scully Brand

For Residents against inappropriate development in Maribyrnong Inc (RAIDIM)

Ms Joanne Kummrow, solicitor, of Victorian Government Solicitors Office

This application for review concerns a new club complex for the Western Bulldogs to be known as the Edgewater Club. A particularly contentious aspect of the proposal is the installation of 70 electronic gaming machines (EGMs).
Under clause 52.28 of the Maribyrnong Planning Scheme, gaming machines are prohibited in strip shopping centres. One of the issues for determination by the Tribunal will be whether the proposed Edgewater Club is in a strip shopping centre.
An application was made by Maribyrnong City Council to have the strip shopping centre issue considered as a preliminary and discrete issue. It submitted that resolution of this issue in the affirmative could mean that the rest of the hearing would become redundant hence saving time and expense for all parties. This course of action was supported by other parties but opposed by the applicant.
I do not consider that a separate and preliminary hearing of the strip shopping centre issue would be appropriate. This is but one issue concerning one component of the Edgewater Club proposal. The planning permit application is for a major development containing a residential hotel, function centre, bistro and café, as well as the gaming room and gaming machines. These other aspects of the proposal are not affected by whether the location is within a strip shopping centre or not.
Determination of the strip shopping centre issue is a mixed question of fact and law. Witnesses giving evidence on this issue will doubtless be giving evidence on other aspects of the proposal. I therefore consider that any potential savings in time or expense are likely to be illusory. I consider that the caution advocated by the High Court in Tepko Pty Ltd v Water Board[1] against trials of issues rather than of cases in their totality is particularly relevant. The factual matters relevant to the strip shopping centre issue will be relevant to other issues, and they will overlap. The prospect of an appeal in respect of the single strip shopping centre issue would only serve to lengthen the time for a final decision rather than hasten it. In short, I am not satisfied that there would be any utility, economy and fairness to all parties that justifies such a course of action.
At the Practice Day Hearing, the applicant requested[2] that application B18/2009 be transferred to the Planning and Environment List to be heard and determined in conjunction with application P1697/2008. Application B18/2009 is an application for review of the decision by the Victorian Commission for Gambling Regulation to approve 70 gaming machines for the Edgewater Club. The request to transfer this proceeding to the Planning and Environment List so that both matters can be dealt with together was supported by all other parties, including the council and the Victorian Commission for Gambling Regulation.
I cannot make this order myself, but I will arrange for this request under rule 2.05(4) to be dealt with.

[2] Pursuant to rule 2.05 of the Victorian Civil & Administrative Tribunal Act Rules 1998

Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 167

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 167 (4 February 2009)

Parties