Victorian Civil and Administrative Tribunal|2013-03-28

SJ Beaumont Investments Pty Ltd v Warrnambool CC [2013] VCAT 366 (28 March 2013)

Planning and Environment Act 1987 s 77; Warrnambool Planning Scheme cl 33.03, 52.06, 52.27 & 52.28; buildings and works; installation and use of gaming machines; variation of general licence; social impact; whether car parking dispensation required; whether condition required to secure community contributions

SJ Beaumont Investments Pty Ltd v Warrnambool CC

The decision of the Responsible Authority is set aside.
In permit application P2011-077, a permit is granted and directed to be issued for the land at 1143 - 1153 Raglan Parade, Warrnambool on the conditions set out in Appendix A. The permit allows buildings and works to an existing tavern, the installation and use of 19 electronic gaming machines, a variation to the general (liquor) licence and associated red line plan, and a partial waiver of bicycle parking requirements.
Pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998 , the Tribunal declares that:
- (a) given changes to clause 52.06 of the Warrnambool Planning Scheme since the permit application was made, the car parking associated with the proposal complies with clause 52.06 and a permit is no longer required for a waiver of car parking; and
- (b) a permit is not required under cl 33.03 of the Warrnambool Planning Scheme for the use of the premises as a tavern and gaming venue. For the purpose of the zone control in clause 33.03, and subject to obtaining approval under clause 52.28, the use of the gaming machines is an ancillary use and/or lawful activity within the existing permitted use of the tavern.

Stuart Morris QC and Louise Hicks of counsel, instructed by Bazzani Scully Brand, solicitors. The Applicant called the following witnesses:

Michael Barlow, town planner
Rhys Quick, socio-economic assessment
Stephen Hunt, car parking assessment
Leigh Barrett, responsible gaming
Peter Cook, director of applicant
Brian Douglas, Marcia Iles & Brian Keats, local residents

Andrew Walker of counsel, instructed by Maddocks, solicitors

These written reasons are provided in relatively short-form on some issues, as a partial oral decision was given at the conclusion of the hearing in Warrnambool.
The applicant, through an associated corporate entity, is the owner of Rafferty's Tavern in West Warrnambool. The applicant initially sought a planning permit:
- to install and use 19 gaming machines at the tavern (under clause 52.28 of the Warrnambool Planning Scheme);
- for buildings and works to create a new outdoor bar area, and internal re-arrangements to the existing tavern including the conversion of the caretakers residence on the first floor to a function room (under clause 33.03);
- for a partial waiver of car parking requirements (under clause 52.06) and bicycle parking requirements (clause 52.34); and
- to vary the arrangements for the sale and consumption of liquor at the tavern, to facilitate a variation to the general licence - primarily to extend the 'red line' area within which liquor may be sold and consumed.
In the state-wide auction of gaming entitlements in 2011, the applicant had obtained the rights to 19 gaming machines that were then already in use at other gaming venues in Warrnambool. The permit, if granted, would thus establish Rafferty's Tavern as a new gaming venue, but would not result in any net increase in gaming machines in Warrnambool.
The responsible authority, Warrnambool City Council, resolved to refuse the permit, and the applicant seeks to review that refusal. A differently constituted Tribunal heard the matter in 2012, but its decision was set aside by the Supreme Court on appeal, with the proceeding now remitted to the Tribunal for re-hearing. The parties treated the re-hearing as a complete re-hearing de novo, with fresh evidence and submissions. I agree with the applicant that I should therefore attach little or no weight to the earlier Tribunal proceeding, and I have decided the matter on the basis of evidence and submissions before me.

Despite a detailed officer report and recommendation in favour of the grant of a permit, the Council resolved on 3 October 2011 to refuse a permit.
According to the Council resolution, its initial ground of refusal was "based on my personal principles, the amenity and the social aspect for the community and I would like to see poker machines banned altogether in Warrnambool ...".
Perhaps realising the inadequacies of this resolution from a town planning perspective, the Council on 24 October 2011 resolved to amend its ground of refusal to be "amenity, car parking and social impact on the residents of West Warrnambool". This was the reason for refusal ultimately stated on the Notice of Decision, and which forms the basis of the review proceeding. No details were provided as to what the underlying basis was for this ground - e.g. what the specific amenity, car parking or social impact issues were that the Council considered warranted the amended refusal.
As I indicated at the hearing, in reaching my decision, I do not wish to denigrate the no doubt genuinely held views of certain councillors (and perhaps the Council as a whole) about gaming machines. However, in its capacity as a responsible authority under the Planning and Environment Act 1987, the Council must apply the regulatory regime for planning and gaming as it presently exists in this state, as must the Tribunal on review. Any change to that regulatory regime is a matter for government. The grant or refusal of a planning permit for gaming machines must be properly based on objective and non-arbitrary planning grounds.

At the hearing, the Council's advocate indicated that the Council did not now separately pursue the ground of refusal based on 'amenity', save for any amenity issues inherent in the car parking and social impact issues.
The Council's advocate also acknowledged that, save for the Council's concerns about car parking and the social impact of gaming machines, all other aspects of the proposal were acceptable - e.g. in relation to the buildings and works, variation to the general (liquor) licence etc.
Rafferty's Tavern is in an Industrial 3 Zone under the Warrnambool Planning Scheme, and has a planning permit for its existing use as a 'tavern'. The Council now contends that a permit may also be required for the additional use of the tavern as a gaming premises under the zone control (i.e. under clause 33.03), in addition to requiring a permit for the installation and use of the gaming machines under the 'particular provision' dealing with gaming (i.e. under clause 52.28).
I do not share this view, and prefer the alternative view expressed by the applicant's counsel. I am satisfied that the currently permitted use as a tavern sufficiently embraces the use of gaming machines, as an ancillary use or a lawful activity within the existing use, such that the future use of the tavern with 19 gaming machines will not change from the existing use as a 'tavern'. In reaching this view, I have had regard to established case law principles on the characterisation of a 'use' for planning purposes, including (but not limited to) Stonnington City Council v Southern Property Corporation [2006] VSC 435. There is thus no separate use for 'gaming premises' requiring additional use permission under clause 33.03. I note also that a 'tavern' is a defined land-use term (under clause 74) that expressly includes potential use for 'gambling'.
For the avoidance of doubt, I have made a consequential declaration to this effect.
Given these factors, there are essentially only two issues remaining to be resolved in this proceeding, namely the grounds of refusal relating to car parking and the social impact of the proposal on the residents of West Warrnambool.

As a result of the buildings and works, three car spaces will be lost in the vicinity of the new outdoor bar area, and six additional spaces created adjacent to the western access lane - a net increase of three car spaces - with a total of 91 car spaces provided on-site.
The Council claims that a waiver of 74 car spaces is nonetheless required due to the increased floor area. It suggests this is a 'common sense' approach in considering whether the car parking is adequate to accommodate the proposed new uses - the gaming venue and the function room. It suggests that this approach is consistent with the approach taken in Hotel Brighton v Bayside City Council and Ors [2011] VCAT 1207.
The applicant had initially sought a waiver under the scheme controls that applied at the time it made its permit application, but contends that a car parking waiver is no longer required. I agree. Indeed, the 'common sense' approach in my view is not as the Council suggests, but to simply apply the planning scheme provisions as they now exist, and to rely on those with expertise and experience on the matter about the adequacy of car parking.
In this regard, I accept the evidence of the applicant's expert consultant traffic engineer, Mr Hunt about the operation of the planning scheme controls, and the adequacy of on-site and on-street car parking for the proposal.
The state-wide clause 52.06 for car parking, included in the Warrnambool Planning Scheme, was amended in 2012 - i.e. since the permit application was initially made. Car parking for a 'tavern' is no longer determined by reference to additional floor area. The Hotel Brighton case analogy raised by the Council therefore no longer applies. The amended clause 52.06 indicates that the methodology for assessing car parking for a 'tavern' is now by reference to maximum patron numbers under its liquor licence. The uncontested evidence of Mr Hunt and Mr Barlow is that the tavern has an existing licensed limit of 578 patrons at any one time, and this will not change even when the new function area opens. The tavern already provides car parking that is 'deemed' to meet this maximum number of patrons. Accordingly, there is no increase in maximum patronage that needs to be accommodated through additional car parking. A car parking waiver is therefore no longer required.
For the avoidance of doubt, I have made a consequential declaration to this effect.
Even if I am wrong on this, and a car parking waiver was somehow still required under clause 52.06, I am satisfied with the overall adequacy of on-site and on-street car parking for the proposal such that I would have granted the dispensation sought. This is based not just on my acceptance of Mr Hunt's detailed expert evidence, but also on the assessment by Council's own experienced officers in their officer report, which had recommended in favour of the waiver. Whilst a Council is not bound to accept an officer assessment, even on what might be considered a technical matter, the Council's advocate at the hearing provided no transparent or objective basis for the Council's departure from its officer report on this issue in this case.
I note in passing that the proposal seeks a partial waiver of bicycle parking requirements that may otherwise be required under clause 52.34. This was not an issue of debate at the hearing, nor raised in Council's ground of refusal. The Council officers had recommended that bicycle parking facilities be provided to cater for a minimum of 8 bikes on-site, and Mr Hunt's report indicates that this is reasonable. In the absence of submissions to the contrary, I accept this consensus position.

The key ground that occupied most of the hearing was the Council's ground of refusal based on the contended " social impact on the residents of West Warrnambool". There was no material provided by the Council's advocate to transparently demonstrate the objective basis (if any) for the Council resolution to refuse the particular permit application before it on this amended ground. Moreover, the Council led no evidence at all in support of this ground of refusal.
Whilst the Council's advocate made a valiant attempt to give some substance to this ground through submissions, I do not consider this to be a 'finely balanced case' (a phrase often used in other gaming and planning matters before the Tribunal). The evidence before me, considered in the context of the Warrnambool Planning Scheme, in my view leads clearly and overwhelmingly to a decision in favour of the grant of a permit for the installation and use of the 19 gaming machines at Rafferty's Tavern.
As indicated, there will be no net increase in gaming machines in Warrnambool created through this proposal. Although the 19 gaming machine entitlements purchased by the applicant ceased to operate in their previous locations in Warrnambool (e.g. at the Warrnambool Football Club and the Whalers Inn) in September 2012, it is those same entitlements that will be transferred to a new location at Rafferty's Tavern, with only a short-term hiatus in their operation within the municipality. This hiatus is largely created by the delay in having this review proceeding resolved. It is misconceived and/or disingenuous for the Council to argue that there will be 19 additional gaming machines in the municipality, and that the social impact should be assessed on the basis of an increase in gaming machines. Even if this application were refused, the 19 gaming machines would not be removed from the municipality, but would effectively be backfilled to their pre-existing locations. Indeed, the Warrnambool Football Club already holds 11 entitlements ready for transfer from another municipality if this application is refused.
I accept the uncontested evidence of Mr Cook that the refurbishment of Rafferty's Tavern is not viable without the gaming revenue. The applicant has a proven record in Victoria of upgrading and re-invigorating run down or poorly trading hotels through a model based in part on the revenue from a small number of gaming machines. The applicant's model is not for a large-scale gaming venue, where gaming is the dominant activity, but for a small number of gaming machines (usually 20 or less, as here) within a mixed food, bar, function and entertainment offering. There will be some positive benefits for the West Warrnambool community through the upgrading of its only remaining hotel, and the Council should not assume that all of the social impact from the transfer of gaming machines to the Rafferty's Tavern will be negative, or that an overall balancing of social and economic considerations will be net negative. The Council's concern about the effects of problem gambling is highly relevant to a socio-economic assessment of the proposal but, contrary to the position the Council appears to have taken, it is not the only factor in that assessment.
I accept the detailed evidence of Mr Quick on socio-economic issues, Mr Barlow on town planning issues relating to gaming, and Mr Barrett on responsible gaming issues. I do not propose to restate that evidence, which is detailed in their respective witness statements. Whilst very minor concessions were made during the cross-examination of each witness by the Council's advocate, the underlying basis of their evidence remains intact.
I agree with the applicant that the proper starting point for my assessment is the objectives and decision guidelines in clause 52.28 of the Warrnambool Planning Scheme - the particular provision dealing with gaming. In my view, the Council has not properly addressed or applied its own planning scheme provisions to this proposal.
Having regard to the over-lapping regulatory framework for gaming, it is generally accepted that the gaming premises approval under the Gambling Regulation Act 2003 is concerned with considerations including the so-called 'no net detriment' test - i.e. whether the net social and economic impacts will be detrimental to the well-being of the community of the relevant municipal district. The planning approval for the installation and use of gaming machines under a local planning scheme (i.e. here, clause 52.28 of the Warrnambool Planning Scheme) focuses more on whether the location of the gaming venue is appropriate, and any particular social and economic impacts of that location. This is self-evident from the express objectives of clause 52.28 itself. (On this issue see also, for example, Bright Newbay Pty Ltd v Bayside City Council [2010] VCAT 1347 at [21]- [23], and Prizac Investments Pty Ltd v Maribyrnong City Council [2009] VCAT 74).
Although social and economic impacts of a gaming proposal are thus appropriately considered in both approval processes, the more detailed socio-economic assessment of social and economic impacts on a community will therefore ordinarily occur, and is ordinarily best dealt with, by the Victorian Commission for Gambling and Liquor Regulation under the Gambling Regulation Act 2003 rather than as part of the planning application. Moreover, the relevant responsible planning authority (i.e. here, the Council) has special status in Commission proceedings on the issue of social and economic impact, and in any review of a Commission decision.
Here, the Commission has already granted premises approval for the proposal under the Gambling Regulation Act 2003. In doing so, and following evidence from witnesses including Mr Quick, the Commission made a finding that the net social and economic impacts of the proposal will be positive, and that the proposal will not be detrimental to the well being of the Warrnambool community.
I agree with the applicant that, whilst the gaming and planning regulatory approval processes and tests are slightly different, I should place great weight on the Commission's findings on socio-economic issues given its experience and expertise in this area. I do not agree with the Council that I should now question or second-guess the uncontested evidence before the Commission on these issues. The Council had the opportunity to participate in the Commission proceeding. Indeed, it had initially raised its concerns with the Commission, but then chose to formally withdraw from the Commission proceeding - in part following its own independent community attitudes survey (by Wallis Consulting) supporting a similar finding to that reached by the Commission. I also note in passing that there are only three objections to this planning permit application, and a large petition more recently lodged with the Council in favour of the application.
The Council did not seek to review the Commission decision. In my view, it ill-behoves the Council to belatedly attempt, in submissions before me, to seek to question matters such as the gaming expenditure forecasts before the Commission. Its planning ground of refusal only refers to social (rather than economic) impact, and its solicitors had indicated in writing to the applicant that it did not require its expert on gaming expenditure to be called.
In giving great weight to the Commission decision, I do not propose to detail in these reasons all of its subsidiary findings. They are set out in its decision, and include gaming expenditure forecasts, predicted transferred expenditure, the absence of widespread opposition, the experience of the applicant as a venue operator with a best practice approach to responsible gambling, the social and economic benefits of the proposal including the refurbishment of Rafferty's Tavern, the relative low-levels of socio-economic disadvantage in Warrnambool, and the mitigation of problem gambling through the relatively small size of the gaming facilities. In the absence of any evidence led by the Council to the contrary, and indeed with the detailed supporting evidence before me from Mr Quick, Mr Barlow and Mr Barrett on behalf of the applicant, I endorse the Commission findings. I find them highly relevant and of great assistance to the socio-economic assessment required as part of the planning considerations in this case. Some of the subsidiary findings by the Commission also deal with specific locational issues relevant to the planning considerations - for example, the proximity of the tavern to the growth area of Dennington. Indeed, even putting the Commission decision to one side, the evidence separately before me leads to a similar conclusion on social and economic issues relevant to this proposal.
I consider the Council's case before me is unduly narrow, in that it has only focussed on the negative social impact of problem gambling without taking proper account of the many other relevant socio-economic considerations that demonstrate the likely net benefit of this proposal.
Clause 52.28 calls up a requirement to consider the state and local planning policy framework in the Warrnambool Planning Scheme. Here, there is only a very limited reference to gaming in the Council's Municipal Strategic Statement. The Council has an economic development objective in its MSS "to minimise the social and economic impacts of gaming on the community" (clause 21.07-2), and an economic development strategy "to discourage any further increase in either/or gaming venues and machines" (clause 21.07-3). There is no analysis or discussion in the MSS to support the objective and strategy from a planning policy perspective. Moreover, unlike many other municipalities, there is no local planning policy or control mechanism about gaming yet incorporated in the Warrnambool Planning Scheme to give any operational effect to this objective and strategy. I was informed that a policy is in the course of preparation.
Based on the Commission finding, the Wallis survey, and the evidence of Mr Quick, Mr Barlow and Mr Barrett on behalf of the applicant, I am satisfied that the MSS objective of minimising the social and economic impacts of gaming will be generally met for this proposal in any event. There is also no net increase in gaming machines. The best that can be said is that the Council currently has an economic development strategy within its MSS that seeks to discourage new gaming venues. However, this local municipal 'vision' must be read in conjunction with clause 52.28, which deals with the need to consider the appropriateness of a location for a gaming venue rather than any arbitrary prohibition or general discouragement (save for a prohibition in certain shopping centres, not relevant here).
In terms of the other decision guidelines in clause 52.28, the Council conceded that none militate in favour of a refusal. I agree with the applicant that the installation of gaming machines at Rafferty's Tavern would not be incompatible with adjoining and nearby land uses, the site can easily accommodate the proposal, and the tavern provides a full range of hotel facilities and services.
The Council does have an adopted "Warrnambool Responsible Gaming Policy", which has been in existence (with minor variations) since 2002. The Council attempted to place great weight on it. However, I agree with the applicant that I should attach little weight to it, as it has not been through a strategic or public planning process for adoption into the Warrnambool Planning Scheme as a local planning policy relevant to the exercise of discretion in a planning application. As indicated earlier, a policy for incorporation into the scheme is apparently in the course of preparation, and may well differ from this policy.
I am nonetheless able to consider the Council policy, albeit giving it little determinative weight. I agree with the applicant that the policy is problematic, in that it proceeds on the basis that all of the impacts of gaming are negative and that the Council will generally not support additional gaming machines under the present municipal cap. I also agree with the applicant, and the evidence of Mr Barlow that is also supported by the Council officer assessment, that the proposal to transfer 19 gaming machines to Rafferty's Tavern nonetheless meets many of the policy objectives. In a balancing of competing policy objectives, it cannot be said that the proposal fails to comply overall with this Council policy, and it does not provide a basis for refusal.
Taking all relevant planning considerations into account, the key issues for me are whether the location of Rafferty's Tavern is in an area of relative socio-economic disadvantage and/or creates a 'convenience' destination for gaming to an extent that the potential risk of problem gambling outweighs the likely benefits of the proposal.
The Council's ground of refusal refers to social impact on the residents of West Warrnambool. It did not define what 'West Warrnambool' comprises, although I took this to mean the area generally between the Warrnambool CAD and Dennington. In its submissions, the Council expressed a specific concern that Rafferty's Tavern was in an area adjacent to one of the poorest areas of Warrnambool and, in particular, adjacent to an area with a very high SEIFA score of relative disadvantage (using the lowest quintile in the relevant index published by the Australian Bureau of Statistics). It claimed that the residents of this 'poor' area, particularly those within 400 metres walking distance of the tavern, would be susceptible to the risk of problem gambling.
Rafferty's Tavern is not itself within a SEIFA collector district of high relative socio-economic disadvantage (i.e. not in the lowest quintile). Nor do the SEIFA collector districts that might be said to comprise West Warrnambool collectively demonstrate high relative socio-economic disadvantage. Nor is Warrnambool an area of high relative disadvantage by reference to the SEIFA index for the whole municipality. The area is also proximate to the more affluent growth area of Dennington.
I agree with Mr Barlow and Mr Quick that, considering the issue in a proper spatial context, it cannot be said that Rafferty's Tavern is in an inappropriate location as a gaming venue by reference to relevant SEIFA data. I agree that all of the gaming venues in Warrnambool are within a few minutes drive of each other, and surveys suggest access is predominantly by car. The trade areas of the hotels and gaming venues in Warrnambool overlap significantly, and do not comprise finite or exclusive catchments. Those who may live close to Rafferty's Tavern already have access to a variety of gaming facilities nearby. The transfer of a few gaming machines from other venues to Rafferty's Tavern will not materially alter access to gaming in Warrnambool, and the impact on gaming behaviour will be small. Whilst there are undoubtedly problem gamblers in Warrnambool, the large number of venues and machines already accessible to them means that the risk of any increase in problem gambling created by this proposal will be small.
It is true, as Council asserts, that Rafferty's Tavern is in an area adjacent to an area where there is a statistical collector district with a high SEIFA index of relative disadvantage. As I have indicated, I do not consider it appropriate to consider the suitability of the location of the tavern as a gaming venue, from a planning perspective, in such a limited spatial context having regard to the accessibility of gaming in Warrnambool generally. However, even if it was relevant, the adjacent collector district exhibiting higher relative socio-economic disadvantage is predominantly in an Industrial zone. There are only 23 houses within this collector district that are within 400 metres of Rafferty's Tavern, and none of these could be said to be convenient to the tavern, being separated by roads and other commercial and industrial premises. These households comprise a very small number of adults, and hotel surveys suggest the tavern does not draw much patronage from this area. Although these few residents may become theoretically closer (as the crow flies) to a gaming venue if the proposal is approved, they are already well-served by other gaming venues. Again, the risk of any increase in problem gambling will be small, and must be balanced with other social and economic considerations.
I am satisfied that Rafferty's Tavern will be 'accessible but not convenient', and will operate as a small 'destination' venue for gaming in conjunction with the other expanded entertainment offerings at the tavern. It is not in or near a shopping centre. I accept that smaller gaming venues are generally more easily managed with responsible gambling initiatives, and I am satisfied on the evidence of Mr Cook and Mr Barrett that best practices guidelines will operate at the tavern to further minimise the risks of problem gambling.
It follows that I consider it appropriate to grant the permit.

In the event that I determined to grant a permit, the applicant and Council were not far apart on what conditions should attach to such permit. I have largely adopted the proposed form of permit provided by the applicant at the hearing, which contains relatively some modifications to a draft set of conditions prepared by the Council.
The applicant has committed to making a community contribution from the gaming revenue of $35,000 per annum (indexed) as cash grants to not-for-profit organisations and sporting clubs, the grants to be determined by a committee including applicant, Council, and community representatives. The applicant indicated a willingness to have a permit condition imposed requiring a section 173 agreement to secure that contribution. I have however decided not to impose such a condition. In my opinion, the securing of community contributions (whether by a condition on approval, undertaking, or some other mechanism) is a matter best dealt with by the Commission under the Gambling Regulation Act 2003 through the gaming premises approval process. It is that process that deals with social and economic considerations at a community level, and community well-being. I am satisfied that the applicant has made a genuine commitment to its community grants program through that process, as noted in the Commission decision. I am not convinced it is appropriate to separately or additionally secure those contributions through a planning permit condition (and certainly not in this case) given the more limited locational considerations within the planning approval process. A section 173 agreement registered on title is a cumbersome and potentially costly mechanism.
Although I have not imposed the requirement as a permit condition, the applicant can still voluntarily enter into such an agreement with the Council if it so chooses.

Buildings and works to an existing tavern, the installation and use of 19 electronic gaming machines, a variation to the general (liquor) licence and associated red line plan, and a partial waiver of bicycle parking requirements.

Before any works commence, amended plans must be submitted to the responsible authority for assessment. Once approved the plans will be endorsed and will form part of the permit. The plans must be generally in accordance with the plans supplied with the application but modified to show:
- (a) a total of 91 car-parking spaces depicted on the land.
- (b) the extent of licensed areas. The licensed areas are limited to the publicly accessible areas within the premises, and may include the outdoor bar and smoking area.
- (c) provision of bicycle parking facilities to cater for a minimum of 8 bikes to the satisfaction of the responsible authority.
- (d) a pedestrian crossing, line marked on the road surface across the Walsh Road slip road onto Raglan Parade, to the satisfaction of VicRoads.
- (e) a frosted glass door between the foyer and the gaming lounge.
- (f) deletion of the doors between the lounge and the gaming lounge.
Before any works commence, plans relating to stormwater management must be submitted to and approved by the responsible authority. The plans must be drawn to scale with dimensions. The plans must include approved outlet or onsite retention facilities for the development. The drainage works must be designed in accordance with the Warrnambool City Council Guidelines for Subdivision and Development of Land.
The use of any gaming machines permitted by this permit on the land must not commence until all the buildings and works permitted by this permit (and which are detailed on the plans endorsed under this permit) have been completed to the satisfaction of the responsible authority.
Before works on the development commence, plans must be prepared by an appropriately qualified Civil Engineer, submitted to and approved by the responsible authority showing:
- (a) construction of 1.5 metre wide concrete footpaths along the Raglan Parade service road frontage of the site to link into the existing footpath network and the development site.
- (b) widening of the western vehicle crossing to the Raglan Parade Service Road to cater for entering vehicles.

All works must be designed in accordance with the Warrnambool City Council Guidelines for Subdivision and Development of Land and shall be carried out at the Developer's cost and must be completed prior to use or occupation of the development.

Prior to the use or occupation of the development, car park lighting shall be modified as necessary to meet Australian Standards to the satisfaction of the responsible authority.
Prior to the use occupation of the development, bicycle parking facilities must be provided in close proximity to the main entrance of the building to the satisfaction of the responsible authority.
Prior to the use or occupation of the development, a suitable fence shall be erected along the top of the retaining wall along the south side of the site to the satisfaction of the responsible authority.
All works associated with this permit must be undertaken at full cost to the developer and must be maintained at all times to the satisfaction of the responsible authority.
No more than 19 gaming machines are permitted to be installed or used at the premises.
The use of the gaming room is only permitted during the following hours:
- (a) Sunday between 10 am and 11 pm;
- (b) Good Friday and Anzac Day between 12 noon and 11 pm;
- (c) on any other day between 10 am and l am the following morning.
The supply and consumption of liquor is permitted between the following hours:
- (a) For consumption in the gaming room:
  - (i) Sunday between 10 am and 11 pm;
  - (ii) Good Friday and Anzac Day between 12 noon and 11 pm;
  - (iii) on any other day between 10 am and l am the following morning.
- (b) For consumption in all other areas as shown on the endorsed plans:
  - (i) Sunday between 10am and 11pm;
  - (ii) Good Friday and Anzac Day between 12 noon and 11pm;
  - (iii) on any other day between 7 am and l am the following morning.
- (c) For consumption off the premises:
  - (i) Sunday between 10 am and 11 pm;
  - (ii) Good Friday and Anzac Day between 12 noon and 11 pm;
  - (iii) On any other day between 7 am and 11 pm.
The development and use hereby permitted must be managed so that the amenity of the area is not detrimentally affected, to the satisfaction of the responsible authority, through the:
- (a) transport of materials, goods or commodities to or from the land;
- (b) appearance of any buildings, works or materials;
- (c) emissions of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;
- (d) presence of vermin.
- (e) management of car parking by patrons so as not to cause any disruption to the amenity of the area and inconvenience to other nearby landowners.

Civil and Administrative Tribunal Act 1998

Environment Act 1987

SJ Beaumont Investments Pty Ltd v Warrnambool CC [2013] VCAT 366

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

SJ Beaumont Investments Pty Ltd v Warrnambool CC [2013] VCAT 366 (28 March 2013)

Parties

Legislation Cited (3)