Victorian Civil and Administrative Tribunal|2010-08-13

For the reasons set out above, the proposal is ultimately acceptable when addressed against the various key benchmarks - hence I have made orders that a permit issue. I have made various modifications to the draft permit conditions, but none to those put forward by VicRoads ie they were non-contentious.

To that part of the land at 410 Derrimut Road, Tarneit affected by the proposed use and development. The permit will allow:

the use and development of a hotel;
the display of internally illuminated business identification signage;
the sale and consumption of liquor on and off the premises;

in accordance with the endorsed plans provided for and subject to the permit conditions set out in the Appendix to this decision.

Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three (3) copies must be provided. The plans must be generally in accordance with the application plans but modified to show:
- (a) Traffic calming measures within the car parking area (Speed Humps);
- (b) The noise attenuation measures recommended in the Noise Report dated 26 July 2010 prepared by the Burton Consulting Group;
- (c) A setback of 1m incorporating landscaping along the north eastern boundary wall is required to improve the interface with the drainage reserves and reduce impact on amenity (this modification must be done without any reduction of the level of on-site car parking being provided as part of the development); and
- (d) A Schedule of proposed Materials and Finishes, including where appropriate colour samples.

The development as shown on the endorsed plans must not be altered or modified without the written consent of the Responsible Authority.

Except with the prior written consent of the Responsible Authority, the use permitted by this development must operate only between the following times:

Except with the prior written consent of the Responsible Authority, deliveries to the subject land must only occur between the following times;

The number of people attending events in the Function Room must not exceed 200, except with the prior written consent of the Responsible Authority.

The central rear outdoor smoking area (ie adjacent to the rear waterway) must be closed by 10.00pm, including suitable measures to ensure that the public access doors are locked after that time.

Sales of liquor for consumption off the premises may only take place from the bottle shop.

Prior to the commencement of development, a Management Plan is to be prepared and submitted to the Responsible Authority which must detail, but is not limited to:
- (a) At all times during the operation of the use, there must be present on the premises a person over the age of 21 years who is responsible for ensuring that the activities on the premises and the conduct of persons attending the premises do not have a detrimental impact on the amenity of the locality;
- (b) Staffing and security arrangements for the premises, including staffing and security to manage the number of patrons and behaviour of patrons on and associated with the premises;
- (c) Measures to manage any patrons queuing to enter the premises;
- (d) Measures to ensure compliance with Conditions 3 to 7;
- (e) Monitoring of patrons during peaks times by professional crowd security persons;
- (f) Complaint identification management;
- (g) Security measures to provide for the orderly departure of patrons from the premises at night time;
- (h) Vehicle access/movements after closing hours;
- (i) Patron drop off/pick up procedures.

Prior to the commencement of the development hereby permitted, three (3) copies of a landscaping plan prepared by a suitably qualified person must be submitted and approved to the satisfaction of the Responsible Authority. Consideration should be given to the brochure "Indigenous Plants of Wyndham Suitable for Gardens and Revegetation" for appropriate species (available to download from Council's website www.wyndham.vic.gov.au). Such a plan will show the following:
- (a) All surface treatments;
- (b) The location, type and height of all fencing;
- (c) The botanical name, height and width at maturity, and location of all vegetation to be used.
- (d) A works specification, and the method of preparing, draining, watering and maintaining the landscape area;
- (e) A barrier, where necessary, to prevent vehicles causing damage to garden areas; and
- (f) Increased tree planting is required in the car parking area.

The landscape area(s) shown on the endorsed plan(s) must be planted and maintained to the satisfaction of the Responsible Authority and once landscaped must not be used for any other purpose except with the prior written consent of the Responsible Authority.

The use and/or development permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods, or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.

Outdoor lighting must be designed, baffled and located to the satisfaction of the Responsible Authority such that no direct light is emitted outside the boundaries of the subject land.

Any equipment required for refrigeration, air-conditioning, heating and the like must be located on the subject land and must be suitably insulated for the purpose of reducing noise emissions, to the satisfaction of the Responsible Authority.

Prior to the commencement of any buildings and works a Construction Management Plan must be submitted to and must be approved by the Responsible Authority detailing the construction activity proposed. The plan must include, but is not limited to:
- (a) hours of construction;
- (b) parking and traffic movement for all workers' vehicles and construction vehicles;
- (c) works timetable;
- (d) any impacts upon the adjacent roads and pedestrian walkways and providing for adequate movement and circulation of vehicles and pedestrians adjacent to the development area during the construction phase;
- (e) access routes for construction vehicles;
- (f) proposed parking locations for construction of vehicles and construction workers' vehicles;
- (g) temporary fencing works;
- (h) the number of workers expecting to work on the site at any one time;
- (i) methods of limiting escape of dust and litter from the site;
- (j) in the event of mud, crushed rock or over debris being carried onto public roads or footpaths on the subject land, appropriate measures to be implemented to minimise the problem.

Once this plan is submitted to and approved by the Responsible Authority, the works detailed by the plan must be carried out in accordance with the plan to the satisfaction of the Responsible Authority.

Note: The relevant construction and associated demolition works must comply with the requirements specified in the Environmental Protection Authority's Noise Control Guidelines.

Mechanical ventilation systems, refrigeration motors, air conditioning units or all other equipment is to be suitably located to the satisfaction of the Responsible Authority.

Noise emissions must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.

Noise emissions must comply with State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.

All waste water generated onsite must comply with City West Water Trade Waste requirements and EPA waste water requirements before discharge to the reticulated sewerage system.

Goods, equipment or machinery must not be stored or left exposed outside a building, including car parking and landscape areas so as to be visible from any public road or thoroughfare.

Flashing or intermittent light must not be displayed on the subject land except with the prior written consent of the Responsible Authority. Any external security lighting is to be connected to a sensor so that illumination of the site is not continuous.

No receptacles for any form of rubbish or refuse (other than public waste bins) may be placed or allowed to remain in view from a public road or thoroughfare and odour must not be emitted from any such receptacle(s) so as to cause offence to any person(s) outside the subject land.

No External PA System - Where the site abuts a sensitive area

Any form of public address system and telephone amplification must not be used on the subject land except one which is audible only within the perimeter of the subject site.

The loading and unloading of vehicles and the delivery of goods must at all times be undertaken within the boundaries of the subject land.

Areas set aside for the parking and movement of vehicles as shown on the endorsed plan(s) must be made available for such use and must not be used for any other purpose.

A sign or signs must be provided to the satisfaction of the Responsible Authority to direct drivers to the on-site car parking area(s). Such sign(s) must be located in the vicinity of the frontage of the subject land and maintained to the satisfaction of the Responsible Authority. The sign(s) must not exceed 0.3 square metres in area.

The boundaries of all car spaces, access and egress lanes and the direction in which vehicles should proceed along the lanes must at all times be clearly indicated on the ground to the satisfaction of the Responsible Authority.

The whole of the subject land, including landscaped and paved areas, must be drained to the legal point of discharge to the satisfaction of the Responsible Authority.

All drainage must be to the satisfaction of the Responsible Authority.

The use permitted by this permit must not be commenced until:
- (a) the parking area(s) shown on the endorsed plan(s) have been constructed to the requirements and satisfaction of the Responsible Authority; and
- (b) the garden and landscape area(s) shown on the endorsed plan(s) have been planted to the requirements and satisfaction of the Responsible Authority.

Any walls / spaces accessible to the public must be treated in accordance with Safer Design and CPTED (Crime Prevention Through Environmental Design) Principles. Where appropriate the following measures must be implemented to the satisfaction of the Responsible Authority:
- (a) Use of textured or rough surfaces that make it difficult to apply graffiti;
- (b) Construct buildings with high-density, low absorbency materials;
- (c) Use anti-graffiti coating to protect the surface when building or revitalising the walls (including facade);
- (d) Install sensor lighting and / or enhance surveillance to deter graffitists;
- (e) Break up large surfaces to minimise the canvas available for graffitists.
The permit holder/occupier must promptly remove or obliterate any graffiti on the subject site which is visible to the public and keep the site free from graffiti at all times to the satisfaction of the Responsible Authority.

All vehicular movements to and from Sayers Road must be made in a forward manner.
To the satisfaction of and at no cost to VicRoads, the proposed car park crossover on Sayers Road access must be constructed generally in accordance with the submitted plans, such that it is at 6.5 metres wide at the property boundary, and for the first 6 metres within the property, flared with a minimum of 3 metre radial turnouts and with 1 metre clearance from any fixed objects.
Any redundant crossovers to the development shall be removed and the kerb, footpath and nature strip reinstated to the satisfaction and at no cost to VicRoads.
The proposed access shall be designed and constructed in accordance with guidance contained in AustRoads' "Guide to Traffic Engineering Practice" and VicRoads' "Road Design Guidelines".
Any works associated with the proposed development shall be performed at no cost to VicRoads.
Worksite traffic management practices must be in accordance with the Australian Standard AS 1742.3-2009 "Manual of Uniform Traffic Control Devices - Part 3: Traffic Control Devices for Works on Roads". If traffic congestion becomes excessive at any time, the contractor must undertake measures to ease congestion.

During construction, sediment control measures shall be undertaken to ensure no pollutant or sediment laden runoff enters Melbourne Water's drainage system. Other discharges may require licensing under provisions of the Environment Protection Act 1970.
Only clean stormwater may be discharged into Melbourne Water's drainage system. Other discharges may require licensing under provisions of the Environment Protection Act 1970.
Stormwater runoff from the development must achieve State Environment Protection Policy (Waters of Victoria) objectives for environmental management of stormwater as set out in the "Urban Stormwater Best Practice Environmental Management Guidelines (CSIRO) 1999".
Spoil resulting from excavation works must be stockpiled in an area away from the reserve. Any stockpile of spoil on site should be bordered with appropriate silt controls.
At least 21 days prior to commencement of works, a Site Management Plan detailing pollution and sediment control measures must be submitted to Melbourne Water.
Prior to the commencement of works, a separate application direct to Melbourne Water must be made for any new or modified storm water connection to Melbourne Water's drains or watercourses. Contact Asset Services on telephone 9235 1414 for Melbourne Water's connection requirements, including payment of appropriate fees.
Storage of construction materials, plant equipment or vehicles on the reserve is not permitted unless approved in writing by Melbourne Water.
Finished building floor levels must be a minimum of 300mm above the adjacent top of bank along the north eastern boundary.

The owner of the land must enters into an agreement with City West Water for the provision of water supply.
The owner of the subject land must enter into an agreement with City West Water for the provision of sewerage.

Except with the prior written consent to the Responsible Authority, waste collection from the subject land must occur within the following times - Monday to Sunday 7am to 8pm.

This permit will expire if one of the following circumstances applies;
- (a) The development and use is/are not started within two (2) years of the date of this permit;
- (b) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires, or within three (3) months afterwards.

NOTE: In the event that this permit expires or the subject land is proposed to be used or developed for the purposes different from those for which this permit is granted, there is no guarantee that a new permit will be granted. If a new permit is granted then the permit conditions may vary from those included on this permit having regard to changes that might occur to circumstances, the Planning Scheme or policy.

NOTE: Any new or modified crossovers require separate approval from Council's Engineering Services Department.

NOTE: Except where no permit is required under the provisions of Clause 52.05 of the Wyndham Planning Scheme, no advertising signs may be constructed or displayed without a permit.

NOTE: This permit is issued pursuant to the provisions of the Wyndham Planning Scheme and does not relieve the permit holder of the necessity to obtain a building permit pursuant to the Building Act 1993 prior to commencement of any construction or works on any part of the site.

If further information is required in relation to Melbourne Water's permit conditions shown above, please contact Melbourne Water on telephone 9235 2517, quoting Melbourne Water's reference 176269.

The property is adjacent to an overland flow path of storm water runoff. The applicable flood level for the property is 300mm below the adjacent top of bank.

FOOTNOTE: Separate approval must be obtained from Councils' Environmental Health Department and any other relevant authority prior to the commencement of the use and/or development.

FOOTNOTE: All food premises as defined by the Food Act 1984 must register with Council's Environmental Health Unit prior to commencing operation.

[1] The Council's "failure to decide in the statutory period" being the equivalent of a refusal.

[2] See paragraph 39 of the Berettas decision in particular.

[3] Also see CK & Sons Pty Ltd v Bayside CC [2010] VCAT 505 and De Group Pty Ltd v Wyndham CC [2010] VCAT 607.

[4] I refer here in particular to the third to last bullet point at page 32 of Ms Thomas' written evidence, which reads as follows - "At the Statistical Local Area (SLA) level, with Wyndham North (where the Tavern is situated) being ranked 108 out of the 104 SLAs in the state, Wyndham West had 124 and Wyndham South had 196. This implies that Wyndham North SLA is less disadvantaged than more than half of Victoria's SLAs".

[5] I acknowledge that in the Maddocks' written submission this parking dispensation figure is slightly higher, but as Maddocks provided no particular justification for this slightly higher figure, I prefer the evidence of Mr Walsh on this issue.

[6] In Ms Thomas' planning report, she estimates the height of these fences to be 2.4 metres. Certainly my site inspection confirm that they are unusually high.

Gambling Regulation Act 2003

Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364 (13 August 2010)

Prizac Investments Pty Ltd & Ors v Maribyrnong CC & Ors [2009] VCAT 2616,

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

De Group Pty Ltd v Wyndham CC [2010] VCAT 607

Cedar Woods Properties Limited v Wyndham CC [2010] VCAT 446.

In summary, the information we have set out above tells us that it is not our role to be considering whether the Frankston municipality per se should be absorbing additional EGMs. It is clear to us that the Gaming Commission has already found that the net economic and social benefits of the proposed 16 additional EGMs outweighs the reservations which it expressed about the fact that the level of gaming expenditure in the municipality is already 8% above the metropolitan average. Accordingly, to the extent that Mr Rantino put to us that "the proposal should be refused due to excessive gaming expenditure in the whole municipality", this was misguided in that this issue has already been resolved by the Gaming Commission and it beyond the scope of this Tribunal.
Rather, it is our role under the Planning and Environment Act 1987 to review:
- to what extent the proposal can be supported when assessed by Clause 52.28 of the Planning Scheme;
- any relevant planning issues; and
- whether on balance the proposal ultimately deserves planning approval.
In making our decision, we have made findings on the basis of an empirical understanding of the relevant facts rather than by reference to philosophical or moral values (see Branbeau v Victorian Commission for Gaming Regulation [2005] VCAT 2606 at para 61). However we discuss later the way in which we have taken into account as a relevant factor the evidence provided to us at the hearing regarding the views of the local community regarding the proposed installation of the 16 additional EGMs.
This emphasis on locational issues is reinforced by the decision criteria for Clause 52.28, which reads as follows:
- The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
- The compatibility of the proposal with adjoining and nearby land uses.
- The capability of the site to accommodate the proposal.
- Whether the gaming premises provides a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons.

Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364

At a glance

Court

Decision date

Source

Judgment (57 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364 (13 August 2010)