Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1997] VSC 29; [1997] VICSC 29 - VSC 1997 case summary — Zoe

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Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1997] VSC 29; [1997] VICSC 29

[1997] VSC 29

Supreme Court of Victoria|1997-07-03|Before: Hayne J, Brooking JA

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At a glance

Source facts

Court

Supreme Court of Victoria

Decision date

1997-07-03

Before

Hayne J, Brooking JA

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

The application for a planning permit that was made in June 1995 in relation to the Carlton premises sought permission to carry out works on the ground floor of the premises to provide a gaming venue in which there would be 80 gaming machines, a food counter, a bar and eating area and seating for up to 50 people. The Carlton Social Club gave notice of its application for a planning permit. Many objections were received by Moreland City Council (including objections submitted by the Glenroy Sub-Branch of the RSL) and a petition was submitted by members of that sub-branch.

[2]

By notice of decision dated 3 October 1995, Moreland City Council determined to grant a permit for the refurbishment of the premises at 177 Glenroy Road. Various conditions were specified in that permit including a condition that a certain number of car-parking spaces be available for use by patrons of the gaming venue - some at 177 Glenroy Road and others on the Caltex site. There was a further condition that Carlton Social Club enter a s.173 agreement under the Planning and Environment Act to provide car-parking on the Caltex site to the satisfaction of the responsible authority and that the agreement provide that the car-parking continue to be provided or the permit lapse unless some alternative arrangement was made to the satisfaction of the responsible authority.

[13]

"4.(a) The use must not commence or continue, and electronic gaming machines must not be used on the premises unless 69 off-street car parking spaces to be available for occupation by cars in relation to the use are provided prior to 6.00 pm on each day when the premises are open to club members, guest and other patrons with 78 such spaces to be available when the premises are open to such members, guests and patrons between 6.00 pm and closure of the premises to such members, guest and patrons which parking spaces are to be provided on the land or nearby land to the satisfaction of the Responsible Authority but with not less than 13 such spaces to be provided on the land.

(b) Before the commencement of the use hereby permitted, and before the commencement of the use of any electronic gaming machines on the land, written approval of the Responsible Authority is to be obtained in relation to all car parking spaces to be provided pursuant to this condition other than the 13 spaces to be provided on the land at 177 Glenroy Road, Glenroy including approval of the location and layout of such spaces. The request for such approval must be accompanied by a copy of any planning permit required under the Planning Scheme to allow land other than the land to be used for parking in relation to such use of the land. Similar prior written approval must be obtained in relation to any subsequent alteration or relocation of some or all of such parking spaces being provided on land elsewhere than on the land at 177 Glenroy Road, Glenroy.

Note: Nothing in this condition or this permit removes any requirement that otherwise exists to obtain planning permission to use any nearby land for parking in relation to the use hereby permitted.

(c) In the event of the total of such car parking space provision being reduced to less than 69 spaces before 6.00 pm or 78 spaces after 6.00 pm as aforesaid, the use of the land hereby permitted and the use of electronic gaming machines on the land must cease forthwith."

[34]

"One suggested effect relied upon by the Glenroy RSL was the suggestion that the establishment of this proposal would cause a loss of funds to local charities. This was put on the basis that the RSL supports various worthy local sporting and charitable activities with funds raised from the operation of its gaming machines. It appears that the operators of gaming machine premises, whoever they are, are effectively obliged to make some such contributions. The GMC Act (Gaming Machine Control Act] specifies how portions of gross takings from machines are disbursed. Part 2 of the GMC Act provides for amounts and levies, including percentages to be given as prizes and payments to the consolidated fund for a community support fund and other purposes. Section 127 provides for levies for a hospital and charities fund and mental hospitals fund. For these purposes it makes no difference whether the takings are those of the Glenroy RSL or the Applicant. The Glenroy RSL does not devote all its profits to charitable purposes. It has spent substantial parts of its takings on acquiring new facilities and improving facilities for its members. We take it to be a 'non-profit' organisation in the sense that its profits are not devoted to direct financial gains for its members. However, its decision to devote some of its profits to charitable and sporting purposes is its own, and there seems to be no reason why it could not change its mind about these matters at any time. It is not clear to us why these circumstances should entitle it to a protection of its present monopoly by excluding competition from the Applicant. The Applicant is also 'non-profit' in the above sense and devotes its profits to sporting objectives and, it was suggested, to other charitable purposes. We do not accept that one existing licensed gaming club should be entitled to protection from the planning laws or discretionary decisions made under those laws from competition from other such clubs. We do not regard this as a significant social effect of the sort that should be taken into consideration pursuant to s.60(1), and we do not think that the circumstances appear to so require."

[40]

In the course of the argument before us it was suggested that the Tribunal may have wrongly concluded that social effects are not relevant to planning matters. I need not decide whether the several references made by the Chairman in the course of argument before the Tribunal to what he called "planning considerations" or the analysis that was made of the section in the Tribunal's reasons properly found that conclusion. It is enough to say that s.4(2)(d) of the Planning and Environment Act makes plain that it is part of the so-called "planning framework" that explicit consideration be given to social considerations. Some of the comments made by the Chairman in the course of the debate before the Tribunal, and indeed some of the reasons given by the Tribunal, might appear to have proceeded from an assumption that no relevant distinction could be drawn between the activities of the Glenroy Sub-Branch and the Carlton Social Club. If that was so (and again I need not decide it) there was no material before the Tribunal which would permit an informed comparison between the activities of the two organizations. There was no evidence (and no other material) which revealed how much of the proceeds of gaming operations conducted by the Glenroy Sub-Branch had been or would be applied to particular uses and very little material about its charitable or benevolent activities. At the time that the Tribunal made its ruling that the evidence which it was proposed to tender was irrelevant, there was no evidence of what the Carlton Social Club did in this regard. Indeed, the evidence that was given later about the activities of the Carlton Social Club was anything but detailed. It was, then, simply not possible to say, at the time of the ruling or at the time of the Tribunal's decision, whether there would be any social or economic effect that flowed from granting Carlton Social Club's application or whether that effect would, or might, properly be described as "significant". Nor was it possible to say whether "the circumstances appeared to require" that the Tribunal consider this matter.

Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1997] VSC 29; [1997] VICSC 29

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)

Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1997] VSC 29; [1997] VICSC 29 (3 July 1997)