Victorian Civil and Administrative Tribunal|2012-04-19

The application proposes significant alterations to the existing Tavern in association with the installation of 19 gaming machines. Internally the interior of the building is replanned to allow the bistro areas are to be enlarged, the gaming room to be established and the first floor caretakers dwelling to be converted into a function room. Other changes include a new outdoor bar area.

Application under section 77 of the Planning and Environment Act 1987 to review a decision to refuse a permit

This is an application to review the decision of the responsible authority to refuse permission for:
1. The installation 19 electronic gaming machines;
2. Buildings and works to create a new outdoor bar area and internal rearrangements including the conversion of the caretakers dwelling into a function room;
3. A reduction in required car parking;
4. Alterations to the liquor licence to include the proposed outdoor bar area and other new areas created within the building;

all in respect of an existing tavern at 1143 to 1153 Raglan Parade, Warrnambool.

The responsible authority issued a Notice of Refusal to Grant a Permit for the following reasons:

Amenity, car parking and social impact on the residents of West Warrnambool.

The parties and the witnesses at the hearing of the application for review relied on both written and oral submissions and a number of photographs, plans and other documents were tendered to the Tribunal

The subject land is a large lot located on the southwestern corner of the intersection of Walsh Street with Raglan Parade in Warrnambool.

The land has an area of 4900 ha. There is an existing Tavern on the land within a rather non-descript building probably developed about the 1960s. The building is set back behind the car park and the driveway areas associated with the drive through bottle shop.
The land is located on the North eastern periphery of the West Warrnambool industrial area. There are nearby residential areas across Raglan Parade, and to the south along Walsh Road.

The application proposes significant alterations to the existing Tavern in Association with the installation of 19 gaming machines. The proposed works are largely confined to the interior of the building other than for the creation of an outdoor bar area and other more minor changes to openings in the facade of the building. Internally the interior of the building is replanned to allow the bistro areas are to be enlarged, the gaming room to be established and the first floor caretakers dwelling to be converted into a function room.

Perusing the tribunal file prior to the hearing it was clear to me that the location of the subject premises within West Warrnambool, and the associated implications of the introduction of gaming machines in this area of relative socio and economic disadvantage was likely to be the most significant issue in this application. The hearing of the application only confirmed this preliminary observation.
At the conclusion of the hearing Ms Porritt emphasised her client's concern for an early decision because of the particular contractual obligations it was facing. For this reason, and because I am of the view that this particular locational consideration is the decisive consideration in this application, my reasons focus on this issue with some further observations on the car parking issue. My reason do not otherwise further explore other matters raised during the course of the hearing.

There are many decisions of the tribunal which have dealt with the appropriate decision-making approach to Clause 52.28 and in particular the approach to decision making having regard to the provisions of clause 10.04. In addition under the Warrnambool Planning Scheme the local planning policy framework is of particular relevance because it sets out a specific policy relating to gaming within Warrnambool at clause 21.07. The relevant parts of these clauses are set out below:

Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.

Planning authorities and responsible authorities 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.

Warrnambool has an extensive range of gaming venues and machines. Council wishes to control the number of venues and machines in Warrnambool, due to the significant social and economic impacts of gaming on the community.

To minimise the social and economic impacts of gaming on the community

Discourage any further increases in either/or gaming venues and machines.
In the event that a gaming venue ceases to operate, consider the replacement of gaming machines within a community based organisation, (eg. a sporting club), and not in a commercial premise.

To ensure that gaming machines are situated in appropriate locations and premises.

To ensure the social and economic impacts of the location of gaming machines are considered.

To prohibit gaming machines in specified shopping complexes and strip shopping centres.

A permit is required to install or use a gaming machine.

Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:

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.

Decisions of the tribunal in the cases referred to me have adopted the approach that clause 52.28 requires the tribunal to have regard to the particular locational characteristics of the proposed venue[1] and that clause 10.04 does not obligate an applicant to establish a net community benefit, rather it makes this consideration a matter to be weighed in the balance of competing policy considerations.
In Warrnambool this decision making approach is influenced by the local policy in relation to gaming. A policy which has a specific objective to minimise the social and in the economic impacts of gaming and strategies which seek to discourage any increase in the number of gaming venues.
Council has also adopted the Warrnambool Gaming Policy. This policy is not embodied within the planning scheme provisions. Ms Liddell submitted that the policy is based on principles which include:
- Gaming is a legal activity in Victoria;
- Additional gaming machines will not be support while the total number of gaming machines within the city exceeds the state average;
- The transfer of gaming machines to an area of relative socio and economic disadvantage will not be considered.
Ms Liddell also submits that the policy implies that:
- Council will not support a proposal for a venue in or adjacent to a areas of relative socio and economic disadvantage,
- Council would give preference to proposals which do not result in an increase in the number of gaming venues within the municipality;
- Council will give preference to proposals for venues closer to other opportunities for social participation and entertainment.
This policy has not been the subject of public participation in its development and has not been incorporated in any way within the planning scheme. It is argued that I should therefore give little weight to this policy in reaching my decision.
I agree that little weight should be given to a policy such as this, if it seeks to significantly influence the balance to be struck between competing policies within the planning scheme. Nevertheless, section 60 (1A)(g) of the Planning And Environment Act provides that policies of this type may be considered. In this case, I agree with Ms Liddell, that the policy is useful to the extent that it informs Council's approach to the application of its local gaming policy found at clause 27.03.
Ms Liddell argues on behalf of Council that the proposal is inconsistent with its local gaming policy at clause 27.03 because West Warrnambool is an area of the city in which there is a greater concentration of social and economic disadvantage and that the proposal exposes the vulnerable community of West Warrnambool to greater harm.
Ms Porritt argues on the half of the permit applicant that the likelihood of there being any increased risk for residents of West Warrnambool is diminished by the existing ready accessibility of gaming venues to this community and the separation provided by the location of the proposed venue in an industrial area. It was also submitted that this potential social effect should not be considered in isolation from the positive social and economic effects arising from the proposal.
Figure 2 illustrates the fact that there are established residential areas close to the subject land extending in an arc from the north-west through to the south-east. To the north, the closest residential property to the subject land is 68 m to the northeast across Raglan Parade. To the south, the closest residential property is some 150 m south down Walsh Road.
In the assessment of risks posed by gaming venues, destination venues are said to be less risky than convenience venues. A destination venue is said to be one in respect of which a user must make a particular decision to travel to the venue to gamble. A convenience venue is one where a user might pass by the venue during his or her daily activities facilitating impulse decisions to go to the venue to gamble.
It is submitted by half of the applicant that the proposed venue will be a destination venue. This is clearly true to some degree, the proposed venue is not for example located within a shopping centre where members of the community may pass by the venue as part of their day to day activities. On the other hand
- the proposed venue will be highly accessible, it is within easy walking distance of a large number of dwellings.
- the site is an island site surrounded by roads and a commercial premises perhaps facilitating a sense of a anonymity among users.
Moreover, in my opinion it is unlikely that impulsive behaviour is limited to persons who as pedestrians walking past the premises and are confronted with the lure of bright advertising. A person alone at home, perhaps somewhat socially isolated or just at a loose end, might impulsively decide that he or she might "nick out: to the local gaming venue for 30 minutes, it is only 5 minutes walk away.
The proposed venue is not a convenience venue like one located within a busy shopping centre, but nor is it like a destination venue which would require a user to make a decision to travel some kilometres to the venue to play the pokies.
Consultants for the applicant have mapped the SEIFA[2] index of disadvantage by CCD for Warrnambool. The map confirms the contention that West Warrnambool is relatively disadvantaged compared with the city as a whole. More particularly, the residential areas close to the subject land described above are all in areas that fall within the first to fourth deciles of the SEIFA index of disadvantage. That is, these areas have higher than average levels of disadvantage as measured by the index. Indeed, the nearest residential areas to be south-east are within either the first or the second deciles of the index.
Socio economic factors predisposing people to problem gambling are highly complex. A related consideration is the resilience of particular communities in the face of harm associated with problem gambling.
Ms Liddell in section 10 of her submission provides a useful discussion of these issues, and I agree with her primary conclusion that relatively disadvantaged communities measured by the SEIFA index of disadvantage are more vulnerable to the risk of harm dissociated with accessibility to gaming venues. Ms Porritt in her submissions and Ms Thomas in her evidence did not seriously dispute this conclusion.
The proposed gaming machines are to be machines relocated from within the existing cap applicable to the municipality. All existing gaming machines are at present located in or close to the CBD. There are CCDs including and close to the CBD which are similarly disadvantaged to those near the subject land. It could be argued that on balance there is no net increase in disadvantage or risk.
I do not agree that a small reduction in the number of gaming machines in this central location results in a balancing of disadvantage and risk vis a vis the current proposal. The existing venues are located within an area with a much more complex and robust urban character than that in the vicinity of the subject land. They exist within an area which provides a variety of recreational and entertainment opportunities to people live in or frequent the area.
I am satisfied that the proposed location does not minimise social and economic effects because it locates gaming machines in what is likely to be a more vulnerable community. Is this effect outweighed by the social and economic advantages of the proposal?
In Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534[3], the tribunal reviewed the decisions of both the Council and the VCGR in respect of a proposal for a Tavern with gaming machines in the newly developing community of Laurimar. The planning review particularly focused on the strip shopping centre issue but the gaming review led to a considerable discussion the assessment of net social and economic benefit. The Tribunal observes that all such assessments are highly subjective and that experts can disagree on the basis of reasonably held opinions[4]. Moreover, the Tribunal had regard to the marginal benefit of the gaming machine element of the proposal in isolation from the benefits of the project as a whole, at least in relation to employment[5], an approach particularly relevant in this case[6].
What are the social and economic benefits which can really be said to flow from the establishment of this gaming venue? In this case the existing Tavern is tired and in need of renovation and revitalisation. The application proposes substantial improvements to interior spaces, the provision of a function room and an improved menu among other things. Employment at the Tavern will increase and community contributions are proposed. These are clearly benefits, but how significant are these benefits?
The marginal economic benefit that will accrue to the community in this case is diminished because:the proposal is an upgrade to an existing Tavern and the proposed gaming machines are a relocation of gaming machines already accessibly located in the community. Moreover, while the West Warrnambool community would benefit from the improvement of facilities and services, other than gaming, proposed for this highly accessible venue, again this is a marginal benefit because similar facilities are already available and highly accessible to this community because of its proximity to the CBD[7].
On balance, I am satisfied that the risk of harm to the more vulnerable community of West Warrnambool represents a social and economic disadvantage which outweighs any benefits which might result from the project as a whole. This land is not an appropriate location for a gaming venue and the establishment of a gaming venue on the land does not minimise the social and economic impacts of gaming on the community.

When the peak use of the proposed Tavern coincides with a function in the proposed function room, it is Mr Hill's assessment that the anticipated peak car parking demand will be largely accommodated on site. However, there is considerable uncertainty in relation to this estimation. If one assumes that,

the revamped Tavern succeeds in doubling its peak patronage and that; 2. this peak coincides with a function accommodating a further 100 patrons, and;

the car parking generation rate stays the same as has been measured for the existing venue, that is 0.44 car spaces per patron,

then car parking demand would significantly exceed the on-site provision.

Overspill car parking from this venue is unlikely to occur in nearby residential areas and overspill car parking is only likely to occur outside ordinary business hours. On this basis I would ordinarily be unconcerned about the prospect of on street car parking nearby. However, there is no street lighting in the nearby streets within the industrial zone, therefore, on street car parking near the subject land is not as safe and convenient as would ordinarily be the case in an urban environment such as this.
As I have already observed, there is a high degree of uncertainty as to car parking demand, I do not say that car parking is a decisive issue in this case, it cannot however be dismissed as one of no consequence.

It follows from the above reasons that it is the Tribunal's conclusion that the decision of the responsible authority should be affirmed and no permit granted.

[1] Contrasting or drawing a distinction between the role of VCGR and a responsible authority under the planning scheme.

[3] I was a member of the Tribunal in this case with Judge Hampel presiding.

[4] Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 para 124.

[5] Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 paras 130 to 133.

[6] To what extent is the proposed renovation of the existing Tavern dependant on gaming machines?

Environment Act 1987

SJ Beaumont Investment Pty Ltd v Warrnambool CC [2012] VCAT 464 (19 April 2012)

SJ Beaumont Investment Pty Ltd v Warrnambool CC [2012] VCAT 464

At a glance

Court

Decision date

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)

SJ Beaumont Investment Pty Ltd v Warrnambool CC [2012] VCAT 464 (19 April 2012)