Victorian Civil and Administrative Tribunal|2010-11-30

Richmond Football Club Ltd v Knox CC [2010] VCAT 1913 (30 November 2010)

Section 79 of the Planning and Environment Act 1987; Knox Planning Scheme; Residential 1 Zone; Knox Central Principal Activity Centre; Gaming machines

Richmond Football Club Ltd v Knox CC [2010] VCAT 1913

The decision of the responsible authority in relation to permit application no. P/2009/6878 is set aside.
A permit is granted in relation to land at 350 Stud Road, Wantirna South. The permit will allow:
- Installation and use of ten gaming machines
The permit is subject to the conditions contained in Appendix A to these reasons.

Ms Sarah Porritt of Counsel, instructed by Bazzani Scully Brand Lawyers. Ms Porritt called the following witnesses:

Ms Laura Thomas, town planner, Urbis Pty Ltd
Mr Kevin McMaster, General Manager, Wantirna Club

Mr Michael Nelthorpe, town planner, Glossop Town Planning

Application under s 79 of the Planning and Environment Act 1987

Clause 52.28-2 (installing or using a gaming machine)

Clauses 10.4, 11.01, 21.03, 21.07, 21.08, 22.04 and 65

The land is on the west side of Stud Road about 130 m south of the Burwood Highway. It is triangular in shape, with a frontage to Stud Road of about 168 m, a northern side boundary of about 107 m and a west boundary of about 149 m, and an area of about 7,500 sq m. On the land is the Wantirna Club, which is operated by the Applicant. There are 77 gaming machines at the Club.

In the surrounding area, Knox Central shopping centre is located nearby on the north-east corner of Stud Road and the Burwood Highway. Land to the west is a drainage reserve used for public open space. Land to the north is used for a funeral parlour. Land to the south is used for dwellings. Land on the east side of Stud Road is used for residential hotels, aged accommodation and tertiary education (Swinburne University Wantirna campus).

CK & Sons Pty Ltd v Bayside CC [2010] VCAT 505

Bright Newbay Pty Ltd v Bayside CC [2009] VCAT 1347

Rennie v Darebin CC [2010] VCAT 1719

On 1 March 2010, the Richmond Football Club Limited (the Football Club) applied to the Tribunal to review the failure of the Knox City Council (the Council) to determine within the prescribed period the Football Club's application for a planning permit to install and use ten additional gaming machines (the proposal) at the Wantirna Club (the Club).
The Club premises are at 350 Stud Road, Wantirna South (the land). The Club has a gaming room with 77 gaming machines.
One person objected to the Council against the grant of a permit, on philosophical grounds. That person was not a party to this proceeding.
After the Football Club filed the application, the Council resolved that it opposed the grant of a permit on three grounds.
The key issues for determination are:
- Social and economic well being of the Knox community.
- Net community benefit to the Knox community.
- Application of policy.
- Adjoining and nearby land uses.
- Capability of the site to accommodate the proposal.
- Club facilities or services.
The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied. Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Knox Planning Scheme (the scheme), we have decided to grant a permit. Our reasons follow.

The Club was constructed in 1998 as a social venue to cater for Football Club members in the eastern suburbs. It comprises, on the ground floor, a bistro with indoor and outdoor seating for 132 people, a lounge bar with 44 indoor and outdoor seats, and a gaming room with 77 gaming machines, casual indoor and outdoor seating for 24 people, and a large car park around the premises. At the first floor, there are two functions rooms holding 120 people in total, a conference/board room and offices.
The Club's liquor licence allows trading in internal areas between 9 am and 3 am the next day, other than Sunday when trading must start no earlier than 10 am. The gaming room current operates between 9 am and midnight Monday to Thursday, between 9 am Friday and 2 am Saturday, between 10 am Saturday and 2 am Sunday, and between 11 am and midnight on Sunday.

The proposal is to add ten gaming machines, allowing a maximum of 87 gaming machines, to the Club's existing gaming room. No building and works are required and no increase in the floor area of the gaming room is proposed.

On 21 April 2010, the Victorian Commission for Gaming Regulation (VCGR) approved an application under the Gambling Regulation Act 2003 (the GR Act) by the Football Club to amend the operator's licence for the Club to add ten gaming machines and vary the number of electronic gaming machines from a maximum of 77 to 87.
The Council opposed this application to amend the licence, but did not apply to the Tribunal to review the decision by the VCGR.

Social and economic well being of the Knox community

The Council submitted that there will be an adverse effect on the social and economic well being of the Knox community because:
- The current density of gaming machines per adult population exceeds the metropolitan density.
- The average player loss in Knox exceeds the metropolitan player loss.
- Most of the Club's patrons live in Knox suburbs within 5 km of the Club.
In support of its submission, the Council relied on its Responsible Gaming Policy (the gaming policy).[1] The gaming policy provides that the number of gaming machines in Knox should not exceed the metropolitan average. It is an informal policy and does not form part of the scheme as either a reference document or an incorporated document. It has not been subject to public consultation or independent review.
We agree with the Tribunal's finding, in Bright Newbay Pty Ltd v Bayside CC,[2] that a policy concerning responsible gambling is a relevant consideration, but if it is an informal policy it should be given little weight. The gaming policy in this instance, however, is of little assistance to our determinations. It is not a planning policy in relation to the location of gaming machines.
In relation to social and economic issues associated with gaming machines, the Council (and, on review, this Tribunal) is limited to a specified area of inquiry.
It does not extend to the effect of proposed machines on the social and economic well being of the Knox community. That is not a relevant planning consideration. It amounts to a relevant gaming consideration because, as expressed, it is similar to the test that requires the VCGR to refuse to approve additional gaming machines, unless the VCGR is satisfied that:

... the net economic and social impact of [the additional machines] will not be detrimental to the well-being of the community of municipal district in which the approved venue is located.[3]

The relevant planning considerations, in relation to social and economic issues, are restricted to:
- Ensuring the social and economic effects of the location of proposed gaming machines are considered.[4]
- Considering, if relevant, any significant economic and social effects of the gaming machines in an application.[5]
According to Ms Thomas' evidence, the City of Knox, as a whole, and the Knox North-West Statistical Local Area (the SLA) within which the land is located, both have lower unemployment, more affordable housing, higher home ownership, and higher household incomes compared to the metropolitan averages. Knox's index of relative socio-economic disadvantage (SEIFA index) is 5% above the Australian average. The SLA ranks 175 out of the 204 SLAs in Victoria for socio-economic advantage (where a ranking of 1 is the most disadvantage). This means that the SLA is in the 14% least disadvantaged SLAs.
If the proposal was approved and acted upon:
- There would be 865 machines in Knox, which would remain below the current capped number of 1,173 gaming machines in Knox.
- The number of gaming machines per 1,000 adults in Knox (based on latest population census figures of 123,119 adults) would increase from 6.94 to 7.03.[6]
The current metropolitan average is 6.15 gaming machines per 1,000 adults. However, we agree with Ms Thomas' opinion that a higher rate of gaming machines per 1,000 adults is preferred in an area like Knox (and the SLA) that is not disadvantaged in socio-economic terms. The SEIFA index for Knox and the SLA shows that the proposal is very different to that considered by the Tribunal in Rennie v Darebin CC[7]. In that case, the Tribunal did not support the installation of 30 gaming machines within a hotel at 197 Plenty Road, Preston given the high level of disadvantage and the high concentration of machines in the area.
In conclusion, we find there is little social and economic effect of location of the ten additional gaming machines because the venue with its 77 gaming machines already exists. As well, ten additional machines is a relatively modest increase and will not have significant effects.

The Council submitted the proposal will not provide a net community benefit to the Knox community. This is not a relevant criterion. It is policy under the scheme that the Council 'should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations'.[8] It does not require a decision maker to be satisfied that every proposal will result in a net benefit.[9]

Some of the relevant policies in the scheme include those relating to activity centres (the land is within the Knox Central Principal Activity Centre),[10] the Council vision and strategic land use framework,[11] non-residential uses in residential areas,[12] and community well being.[13] In making a decision, we have endeavoured to integrate these policies and while there is little if any express conflict between these policies, we have balanced those policies in the necessary way.
We have also considered relevant policies not in the scheme, such as the gaming policy, referred to earlier in these reasons.

Clause 52.28 of the scheme requires consideration of the compatibility of the proposal with adjoining and nearby land uses. A purpose of this clause is to ensure gaming machines are located in appropriate locations and premises.
The land is in a R1Z but within a principal activity centre. It is not within a proscribed shopping complex or strip shopping centre. It is therefore not well located for convenience gambling, the avoidance of which is something underlying the purpose of cl 52.28.
The land adjoins a major road with frequent bus services, is proximate to the principal activity centre, is within 800 m of three retirement villages, adjoins hospitals and hotel accommodation, and does not abut conventional residential development. In summary, the location is appropriate for the proposal.

Clause 52.28 of the scheme requires consideration of the capability of the site to accommodate the proposal. The land is about 7,500 sq m. It has generous car parking around the Club. It is well landscaped. Entry and egress for vehicles is appropriate and safe, albeit somewhat inconvenient for southbound traffic on Stud Road that must do a 'u turn' in Stud Road south of the land. The site is accommodating the existing gaming room and the proposal will not affect that capacity. The VCGR controls the location of gaming machines with respect to the capacity and layout of the gaming room.

Clause 52.28 requires consideration of whether the gaming premises provide a full range of club facilities or services to members and patrons. The purpose of this provision is to discourage gaming venues that have a gaming room and little else.
The Club is not a large club and it is struggling financially to provide upgraded facilities and services to members. The purpose of the proposal is to assist in enabling the necessary upgrades to proceed. Nevertheless, the Club currently provides a bistro, lounge bar, two functions rooms, a conference room, and a program of activities for members and patrons including bingo, music mornings, social golf days and some football-related functions. If the proposed upgrade to Club facilities goes ahead, then better use of the first floor function and conference facilities will be likely.
We find that the Club currently provides an adequate range of facilities and services to members and patrons. They are the facilities and services expected of a suburban sports club. Furthermore, if the upgrade proceeds, those facilities and services will be enhanced. This issue is not a basis on which to refuse a permit.

Having regard to the relevant planning consideration, we are satisfied that the proposal for ten additional gaming machines in the gaming room at the Club should be supported.
The decision of the responsible authority will be set aside and a permit granted subject to conditions.

The gaming machines must be installed in the gaming room as it exists at the date of this permit.
No more than 87 gaming machines may be installed or used.
This permit will expire if the gaming machines are not installed within four years of the date of this permit. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months afterwards.

[1] Knox City Council, Responsible Gaming Policy (December 2005).

[3] GR Act s 3.4.20(1)(c). By its decision dated 21 April 2010, the VCGR was not satisfied that there would be such an impact and the additional machines were approved.

[6] Which is above the current metropolitan average of 6.15 gaming machines per 1,000 adults.

[9] CK & Sons Pty Ltd v Bayside CC [2010] VCAT 505 at [16].

Gambling Regulation Act 2003

Environment Act 1987

Richmond Football Club Ltd v Knox CC [2010] VCAT 1913

At a glance

Court

Decision date

Source

Judgment (37 paragraphs)

Richmond Football Club Ltd v Knox CC [2010] VCAT 1913 (30 November 2010)

Richmond Football Club Ltd v Knox CC [2010] VCAT 1913 (30 November 2010)

Parties

Legislation Cited (3)