Trio Taverns Pty Ltd v Port Phillip CC decision [2012] VCAT 1430

Trio Taverns Pty Ltd v Port Phillip CC decision [2012] VCAT 1430 - VCAT 2012 case summary — Zoe

[10]

Trio Taverns Pty Ltd Ltd lodged an application with the Port Phillip City Council seeking permission for various changes to the Dick Whittington tavern located on the corner of Chapel Street and Crews Street St Kilda. The changes involve alterations to the internal layout of the hotel to facilitate increasing the number of Electronic Gaming Machines [EGMs] from 29 to 40 in the gaming room; the provision of a function room at first floor level and increase in the size of the area where liquor can be served. An extension to the hours is also sought. The Council did not grant the permit within the prescribed time. This application by Trio Taverns against the Council's failure and requests an order directing the issue of the permit.
Subsequent to the application being lodged with the Tribunal, the Council decided that it would have refused the grant of a permit on six grounds. In summary, the grounds of refusal assert that the proposal is contrary to existing and proposed policies in the planning scheme, inconsistent with the purpose of the zone and would be contrary to the purposes of clauses 52.27 (liquor) and 52.28 (gaming).
Mr Burke, a resident in Queen Street, also opposes the grant of the permit. He submits that the proposal to increase the number of EGMs, provide function rooms and extend trading hours will lead to an increased number of patrons attending the premises with resultant impact on noise, general disruption to amenity, more pressure on kerbside parking within the area and increased traffic.
In December 2011, the Victorian Commission for Gambling Regulation (VCGR)[1] determined to approve a request for an additional 11 EGMs on the subject land[2]. In reaching this conclusion, the Commission found the City of Port Phillip and the area immediately surrounding the venue do not appear to be disadvantaged and that any detriment would be more than offset by the benefits associated with the proposal[3].
Trio Taverns contends that it is reasonable to grant a permit in the circumstances. While contending that there is no need for a net benefit to be demonstrated, Trio Taverns submits that the proposal will result in positive benefits to the community, a view supported by the VCGR. It submits that the Commission's view should be given weight. It also contends that while the tavern is located adjacent to land which is being redeveloped for social housing and proximate to public housing and community facilities, the use of 11 additional EGMs will not lead to increased problem gambling. This is because the local community is already exposed to gaming facilities, both within the Dick Whittington Tavern as well as other larger venues such as the Balaclava Hotel. Trio Taverns relies on the evidence that it is a well run venue which implements responsible gaming practices and provides a full range of facilities for its patrons. It submits that the additional trading hours sought will not result in unreasonable impacts on amenity.
Having considered all submissions and evidence presented with regard to the applicable policies and provisions of the Port Phillip Planning Scheme, I have decided to grant the permit. My reasons follow.

[24]

While this may be so, it seems to me that there is overlap between what the Commission was required to consider under the Gambling Regulation Act 2003 and the matters under Clause 52.28. It is inescapable that Clause 52.28 requires the social and economic impacts of the location of gaming machines to be considered.
It could be argued that the difference lies in the specific nature of the effect to be considered. Under the Gambling Regulation Act 2003, the Commission is required to consider the impact on the well being of the community of the municipal district while the emphasis in Clause 52.28 is focussed on the specific location.
While this may be the case, what is clear is that in this case is that the Commission did not simply limit its examination of the impacts of the proposal to those on the well being of the community of the municipality. Rather, it is evident from the Commission's decision that it also considered the impacts on the immediate context. This followed submissions from the Council which highlighted its concerns about:
- Residents of the several public housing estates surrounding the venue;
- The number of people who access the range of community services which are provided in the Carlisle Street precinct; and
- The low income earners who access Carlisle Street shopping precinct which is one of the cheapest shopping precincts in the municipality[6].
The Council also submitted that:
- The Commission should consider the physical circumstances in which the venue finds itself, that is, the community housing estate at 87 Chapel Street which is being provided b the Port Phillip Housing association[7].
It is clear that the Council's submission sought the Commission's consideration of the social and economic impacts on of the specific context and not to simply on the well being of the community within the municipality.
With respect to these matters, I note the Commission's conclusions at paragraph 16 (a) and (b) of its decision when it said:
- (a) As a whole, the City of Port Phillip and the area immediately surrounding the venue do not appear to be disadvantaged.
- (b) In respect of the venue's proximity to public and social housing and community services, the Commission acknowledges the Council's concern. The Commission accepts that it is appropriate to take a precautionary approach is cases like this. Even on a precautionary approach, however, refusal is not warranted in this case. The evidence before the Commission suggests that residents of public and social housing are not significant utilisers of the egms at the venue. No evidence was put before the Commission that this was likely to change with the addition of new machines[8].
While the provisions of Section 3.3.7 (1) (c) of the Gambling Regulation Act 2003 require consideration of the impact on the well-being of the community within the municipal district, the Tribunal's[9] decision in Branbeau v Victorian Commission for Gambling Regulation[10] supports the view that it was appropriate for the Commission's assessment of the impact on the community to drill down to the local context. On this point, the Tribunal said:

[40]

At the municipal level, the City of Port Phillip is ranked 73 out of 80 all Local Government Areas under the SEIFA Index, where the 80th is the least disadvantaged. The commission's decision notes that the "SEIFA figures for the City of Port Phillip do not suggest any obvious cause for concern". However, at the Council's insistence, the Commission examined the potential for localised impacts. It is clear that the Commission did so, as evidenced by the analysis in its decision. In particular, the Commission found that eligibility criteria for housing in a number of the social housing developments identified on Council's map would tend to exclude the persons most likely to be problem gamblers'. Further, the Commission found that a person shopping or using community services in the Carlisle Street precinct is more likely to take advantage of the larger, cheaper, more proximate Balaclava Hotel than walking to the Dick Whittington Tavern[19].
There is some irony in the concern raised about the potential impact on the residents of Port Phillip Housing Association project opposite the tavern. The tavern has operated with EGMs for many years. I understand that at one stage the premises accommodated 45 EGMs. Nonetheless, despite the existence of EGMs in the tavern, the Port Phillip Housing Association sought and obtained a permit for a social housing on land directly opposite the site. The Council supported the application. Given the level of concern expressed about this proposal, it is inconceivable that the potential social and economic impacts of locating a project of that type directly opposite a gaming venue were not considered by both the association and the Council. I understand that large sites for such projects are difficult to assemble in inner areas like St Kilda. I can only conclude that the potential effects of having a gaming venue near such a project are not so severe to warrant abandoning a worthwhile housing project.
In this case, the proposed increase of 11EGMs is acceptable. The increase is to occur within an existing gaming facility. The proposal does not create a new facility. I also agree with the view expressed by Mr Barrett that the increase in EGMs is relatively small and, importantly, will not change the nature of the venue. In relative terms, with 40 EGMs, it is a small to medium sized venue. As a gaming venue, it is nowhere near the scale of the Balaclava Hotel. The EGM's are located within a tavern that provides for a full range of facilities for patrons including bar, bistro and function room areas. Given the layout, patrons entering the tavern from Chapel Street are not immediately confronted by EGMs. Rather the EGMs are located within a discreet area toward the rear of the ground floor level.
For reasons that I will expand on later, I am unable to conclude that the additional EGMs will bring about change that will have adverse impacts on the amenity of the locality and in particular, surrounding residential uses.
The analysis and conclusions reached by the Commission provide a compelling basis on which to enable me to find that location of the venue with 40 EGMs is acceptable having regard to social and economic impacts. I accept the Commission's conclusion that if there is a social and economic detriment, it is likely to be small and that the positive aspects of the proposal will deliver a net community benefit as sought by policy. The provision of function rooms free of charge to community groups[20], the applicant's commitment to make community contributions of $20000 per annum, additional employment at the tavern, access to improved hotel gaming facilities for responsible gamblers and the operation of the venue under an updated code will all work toward delivering a positive outcome as envisaged by planning policy. While the Commission did not require a formal undertaking for the contributions to be made, Trio Taverns is prepared to give the Tribunal an undertaking that it will implement the contributions with such undertaking given under Section 130 of the Victorian Civil and Administrative Tribunal Act 1998. The undertaking is recorded in my order.

[42]

The Council is also concerned about the proposed extended trading hours given the residential context. The Council accepts that, on one view, the proposed extended hours are modest. However, it is concerned that hotel management will not be able to control the behaviour of patrons leaving the venue late at night, particularly when it large numbers when functions conclude. The Council submits that the existing trading hours should be maintained. Mr Burke supports this view.
There is no doubt that late night venues have the potential to have adverse impacts on the amenity of the area. Management of the venue is critical in this regard. It is of relevance that despite extensive notice of the permit application[21], the Council received nine objections. Of these, Mr Burke attended the hearing to express his concerns about the proposal.
While the substance of objections must be considered, in my experience, licensed venues which cause problems tend to attract extensive objections. This is not the case here. Further, given the evidence of Ms Didham and Ms Cottrell, it is clear that the tavern is well run. From time to time, patrons associated with licensed venues can cause problems to amenity. However, there was no persuasive evidence to enable me to form the view that the tavern has and/or will cause unacceptable problems if it is allowed to operate with additional hours sought by Trio Taverns. Essentially, one hour extension is sought on four nights with 1.00am being the latest closing time. This is not inappropriate given the nature of the venue and context.
The suggestion is that the detriment will occur because a function room is to be provided within the first floor level. However, the evidence presented at the hearing is that functions are already conducted within the tavern, with the bistro area used for this purpose from time to time. I would expect that problems associated with functions would already have arisen as this is an activity that is already conducted on the land. The proposal simply involves providing a separate and specific space for this part of the tavern's operation.
The existing liquor licence allows up to 320 persons to be on the land. The application does not seek to increase this number. The additional floor space associated with the proposed works is 7 square metres to facilitate the provision of new toilets. This is also the increase in the size of the licensed area. Under clause 52.06, a permit is required where there is an increase in the number of patrons. Despite Mr Burke's submission that more car parking is required, given that the number of patrons will not increase, no additional parking is required under Clause 52.06. When (and if) an application to increase patron numbers is made, the need for additional car parking will be considered at that time.
In relation to noise, premises of this nature are required to comply with State Environment Protection Policies N1 and N2. The Council's draft conditions require these standards to be complied with.
I conclude that the proposed buildings and works, extension to the trading hours and licensed are will not result in unreasonable impacts on amenity.

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Judgment (91 paragraphs)

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Cases Cited (1)

Trio Taverns Pty Ltd v Port Phillip CC decision [2012] VCAT 1430 (17 September 2012)