Victorian Civil and Administrative Tribunal|2004-04-16|Before: Stuart Morris J

Tabcorp Holdings Limited v Moreland CC [2004] VCAT 693 (16 April 2004)

I grant a permit pursuant to the Moreland Planning Scheme and I direct the responsible authority to issue the permit to allow, in respect of land at 10/190 Union Street, Brunswick West, alterations to the shopfront, a waiver of car parking, and to erect and display business identification signs and internally illuminated signs in association with the use of the land as a betting agency, subject to the following conditions being the conditions in the notice of decision to grant a planning permit dated 22 March 2004, save that condition 1 be deleted, in condition 3 the word "type" be added after the word "dimensions" and in condition 6 the words "under the control of the occupier" be added after the word "land".

(given orally at the hearing and subsequently revised)

1 Tabcorp Holdings Pty Ltd ("Tabcorp") wishes to establish a betting agency in an existing building in Grantham Street, Brunswick West. The building forms a tenancy which is part of the Union Square Shopping Centre. Tabcorp appealed to the tribunal against the failure of the council to grant a permit.

2 Prior to that appeal being determined the council decided that if it was empowered to grant a permit it would have done so subject to a number of conditions. Most of those conditions are not contentious and result from a recommendation of the council officer. However the council decided to include additional conditions as follows:

a) The deletion of the internally illuminated under awning sign located on the southern side of the building.

b) The deletion of the internally illuminated light boxes located within the shop frontage.

c) The entrance for the building be from Grantham Street.

3 The basis for these conditions would appear to be a concern on the part of the council that the entry to the proposed betting agency and the signage proposed in relation to it were prominent and encouraged persons to engage in gambling. It appears that the fundamental concern of the council was that the grant of a permit without these conditions would result in an outcome which was socially undesirable and which may have adverse social effects on the community.

4 The permit application also has a potential effect upon the use of Grantham Street, which I am told is a road in respect of which VicRoads has responsibility. By reason of the decision guidelines contained in clause 52.05-2 the sign that is proposed to be displayed on Grantham Street is a sign in respect of which the views of the Roads Corporation must be taken into account. The Roads Corporation has indicated that that sign should be realigned so as to be parallel to the building face.

5 It is convenient to first deal with the signage question affecting Grantham Street. The plans show that there is to be an illuminated sign 950 millimetres long and 950 millimetres wide abutting the eastern façade of the building and being perpendicular to the building. This sign will extend over the footpath but will still be about 2 metres from the roadway. Presumably the basis of the VicRoads' position is that the projection of the sign would make it more visible to passing traffic and would thus have a greater impact upon traffic movement along Grantham Street. Frankly I find it difficult to accept the VicRoads' view given that there are already projecting signs in the area. Indeed, current signage in the area is quite substantial and could even be described as cluttered. The proposed signage by contrast is of clean lines, has a unity to it and is of a modern appearance. I find it difficult to see how the proposed sign in any way adversely affects the road functions of Grantham Street. Having considered VicRoads' view, I do not accept it.

6 Turning to the three conditions required by the council, it needs to be first observed that there would be no possible basis for these conditions if this proposal was for a shop or a use such as a newsagent. It seems quite obvious that the shopping centre has been designed on the basis that the entry to the tenancy in question would be from the south. This facilitates pedestrian movements within the shopping centre, which is logical having regard to the location of car parking. It is also practical and logical in relation to access by disabled persons.

7 Similarly the signage proposed, which consists of two internally illuminated signs designed to alert persons to the presence of the betting agency, together with three internally illuminated signs designed to highlight products available, is not unusual in a commercial area and would be completely non-contentious if the use was not contentious. In other words, if the shop was selling clothing or books or magazines, the type of signage proposed would be run of the mill and unexceptional. So what is really in issue here is to consider whether the fact that the signage is connected with a betting agency makes a difference.

8 I have examined the decision criteria that applied to signage to see whether there is any support for the notion that a sign can be refused because it promotes a product which might be thought to be socially undesirable. In particular, I have examined clause 52.05-2 of the scheme. But, as I am presently advised and I acknowledge the assistance Mr Luka gave me in this respect, I am unable to see any provision which would support the refusal of a sign on this basis.

9 Similarly, if we are to consider the location of the entry to the tenancy, I note that the provision that requires a permit is clause 34.01-4 of the scheme. This provides that a permit is required to construct a building. In the present context this includes external alterations to the building. But once again, the decision guidelines in relation to altering a building do not and could not extend to issues concerning the potentially adverse social impacts of the use.

10 Indeed as Ms West, who appeared for Tabcorp, pointed out, in the Business 1 Zone the use of land for a betting agency is a section 1 use, that is a use for which a permit is not required. It would be anomalous for the planning scheme to state that a use is as of right and does not require a permit in a particular zone and then to seek to discourage the use by the imposition of conditions that were out of the ordinary in relation to access or advertising.

11 I am conscious that section 60(1)(b)(i) of the Planning and Environment Act enables the tribunal to consider any significant social effects of the use or development for which the application is made if the circumstances appear to so require. I am not satisfied that the circumstances appear to so require. In the first place, no permit is required for the use of the land as a betting agency, yet this is the very concern that underpins the conditions that are now in contention.

12 Second, having regard to the reasoning I set out in Victorian National Parks Association Inc v Iluka Resources Limited [2004] VCAT 20 section 60(1)(b)(i) of the Act must be applied in the context of the particular planning controls pursuant to which a permit is sought. Those particular controls are directed at the impact of external works, the waiver of car parking and the appropriateness of the display of certain categories of advertising signs. A detailed examination of each of these controls does not support the notion that they are intended to be applied so as to regulate betting shop activities in business zones.

13 There is a third reason, and that is this: no evidence has been put before me to support the notion that the imposition of these conditions would have any impact whatsoever in relation to the social effects that might result from the use. The social effects of gaming is a difficult issue. It is notorious that gaming does have some adverse social effects, but it is equally true that gaming is a recreational activity for many people. The complexity of the social effects of gaming, including wagering, can be contrasted with the simplicity of the policy positions that different members of the community may adopt in relation to such activity, which are often black and white in nature. This is because attitudes to gaming are primarily determined, not so much by detailed sociological or economic evidence as to the impact of gaming, but by philosophical or moral values, sometimes even religious values. When it comes to exercising powers pursuant to the Planning and Environment Act in relation to social effects, I do not believe that it is appropriate to simply apply philosophical or moral or religious values. Rather it is necessary to make such decisions on the basis of a true empirical understanding of the facts of the situation. No empirical information has been put before me in this case to support the notion that the proposed access arrangement or signage would have any significant adverse social effect.

14 In the circumstances, I propose to allow the appeal and grant a permit without the additional conditions.

Tabcorp Holdings Limited v Moreland CC [2004] VCAT 693

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Judgment (21 paragraphs)

Tabcorp Holdings Limited v Moreland CC [2004] VCAT 693 (16 April 2004)

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