I approve the proposed agreement, being the agreement forwarded to the tribunal under cover of letter dated 26 August 2005, with clause 6.1 being replaced with the following:

"6.1 Clause 3 of this Agreement is suspended if gaming ceases to be conducted on the land, unless it ceases as a result of the suspension or cancellation of any relevant gaming licence or as a result of other disciplinary action under gaming legislation.

6.1A If gaming ceases to be conducted on the land, the gaming room must not be used at any time of the day when other parts of the premises are not permitted to be open for business."

(given orally at the hearing and subsequently revised)

1 This case requires me to consider a proposed agreement to be entered into pursuant to section 173 of the Planning and Environment Act 1987 ("the Act").

2 On 18 January 2005 the tribunal, constituted by Member Christina Fong, granted a permit for the extended operating hours of a gaming room at 65-67 Douglas Parade, Williamstown. This permit, which would seem to have been granted pursuant to clause 52-27 of the Hobsons Bay Planning Scheme, was subject to a number of conditions. Two of the conditions were as follows:

. Monday to Saturday (inclusive) (excluding Good Friday and Anzac Day) 7:00am to 2:00am the following day;

. Good Friday and Anzac Day 12 noon to 2:00am the following day; and

. Sunday (excluding Anzac Day) 10:00am to 11:00pm.

. Monday to Saturday (inclusive) (excluding Good Friday and Anzac Day ) 7:00am to 12 midnight;

. Good Friday and Anzac Day 12 noon to 11:00 pm; and

. Sunday (excluding Anzac Day) 10:00am to 11:00pm.

9 Before the commencement of extension of hours hereby permitted, an agreement pursuant to s.173 of the Planning and Environment Act 1987 must be entered into between the Hobsons Bay City Council and the Owner, and to the satisfaction of the Responsible Authority, to covenant:

. No use of the first floor Function Room after 8:00pm on any day; and

. No provision of live musical entertainment in the first floor Function Room at any time.

This agreement must be prepared at the cost of the owner and registered on the title.

3 A draft agreement was prepared with a view to complying with condition 9 of the permit. The content of this draft agreement was the subject of some disagreement between the owner of the land and the responsible authority. This led to proceedings before the tribunal pursuant to section 149 of the Act. At a directions hearing on 5 August 2005 I amended that application so that it was also an application pursuant to section 184 of the Act. I also made other orders designed to narrow and clarify the differences between the parties as to the content of the proposed agreement. As a result of those directions and orders there remains only one provision in the draft agreement that is in dispute. This is clause 6.1 which is proposed to provide: "This agreement will end immediately if the provision of gaming ceases on the land for any reason".

4 Section 62(2)(f) of the Act provides that a condition may be included in a permit that the owner of the land is to enter into an agreement with the responsible authority under section 173 within a specified period or before the use or development or a specified part of it starts. Member Fong used this power when she imposed condition 9. In accordance with usual practice, the condition outlined some of the content of the proposed agreement which was required to be entered into, but did not purport to set out the full content of that agreement. The condition requires the agreement to include covenants to the effect that there be no use of the first floor function room after 8:00pm on any day and that there be no provision of live musical entertainment in the first floor function room at any time. However at the time that condition was imposed it would have been anticipated that the agreement would actually have contained more detailed provisions.

5 This type of circumstance is envisaged by the Act. Section 184 of the Act provides in sub-sections (1) and (2) the following:

(1) An owner of land may apply to the Tribunal for an amendment to a proposed agreement if -

(a) under a planning scheme or a permit the use or development of land for specified purposes is conditional upon an agreement being entered into under this Division; and

(b) the owner objects to any provision of the agreement.

(2) The Tribunal may approve the proposed agreement with or without amendments.

6 In Solid Investments Pty Ltd v City of Greater Geelong[1] I set out principles concerning agreements pursuant to section 173 of the Act. That case did not involve section 184(1) of the Act. Hence it is desirable to add some additional comments about that provision.

7 Section 184(1) of the Act allows an owner of land to apply to the tribunal for an amendment to a proposed agreement if under a permit the use of land for specified purposes is conditional upon a section 173 agreement being entered into and the owner objects to any provision of the agreement. The provision contemplates that the responsible authority will prepare the proposed agreement and place it before the owner. It also contemplates that the owner will indicate whether or not it is willing to enter into that agreement. If the owner objects to a provision of the agreement, the owner may apply to the tribunal; and the tribunal may approve the proposed agreement with or without amendments.

8 The anticipated procedure was not followed in this case. Rather the proposed agreement was prepared by the owner; and the council objected to a provision of the agreement. This procedure is not uncommon. In my opinion, section 184(1) still applies, because the substance is the same as if the council had prepared the agreement and then the owner had objected to a provision in it.

9 Section 184(1) involves a review on the merits. Nonetheless such review is somewhat constrained, in that it is a review aimed to settle a matter of detail. Substantive issues have been settled by the grant of the permit, whether it by the responsible authority or the tribunal. Thus it would be inappropriate to exercise the power under section 184 of the Act in such a way that the condition requiring the section 173 agreement was no longer been given effect to. Hence, in this case, it would be inappropriate to exercise the power under section 184 to delete a provision from the agreement requiring the first floor function room not be used after 8:00pm on any day.

10 On one view the permit should have been expressed to allow the use of land for the purpose of the sale and consumption of liquor, rather than to extend the operating hours of the gaming room of the premises: see Bomvic Pty Ltd v Yarra City Council.[2] Be that as it may, I agree with the submission made by Mr Raunic for the applicant that the Bomvic principles are relevant to whether condition 9 could have been imposed and not whether clause 6.1 of the proposed agreement should be part of the agreement. The Bomvic principles do not require clause 6.1 to be omitted.

11 I find that it is desirable to include in the agreement a provision like proposed clause 6.1, in order to better give effect to the intent of the permit and conditions 3 and 9 of the permit. It is significant that in granting the permit the tribunal chose not to restrict the hours of operation for non-gaming uses to periods less than those which were previously in operation. The technique used was a different one: namely a requirement that the owner enter into an agreement pursuant to section 173 of the Act. By using that technique the tribunal left some of the terms of the agreement to be determined.

12 My attention was drawn to paragraph 44 of the reasons for the tribunal's decision, where Member Fong said, inter alia, that the permit conditions that will go on the permit will include the terms of offer made by the applicant. This would seem to be a reference to a statement made by a witness for the applicant, Mr Bruce Mathieson, to the effect that the applicant was prepared to commit to a formal section 173 agreement incorporating certain trading hour measures "so long as gaming activities continued to be part of the venue's operation". This offer was in fact contained in a letter sent to various objectors by the solicitors for the permit applicant shortly prior to the hearing of the case. That letter also was cast in language, I find, that made the offer to reduce the trading hours of the function room, and the provision of light musical entertainment in the function room, conditional upon gaming operations continuing. It might be that the nature of the offer was, as Mr Testro put it, somewhat of a moving feast. But I find that at all times an integral element of the offer was that the premises be used for gaming. In reaching this view I rely upon my experience in relation to gaming venues and my knowledge that the principal driver of revenue at such venues is gaming machines. I also rely upon my experience that the nature of the business at a club or hotel with gaming machines is usually quite different to the nature of a business at a club or hotel which does not have gaming machines.

13 Mr Testro pointed to the fact that various attempts had been made to have condition 9 of the permit "corrected" and that Member Fong declined to do so. In my opinion Member Fong was entirely correct in choosing not to make any correction to condition 9. The application had been made pursuant to the slip rule. But there had been no "slip". Rather, in accord with the usual practice, the wording of condition 9 did not fill the frame, but required further detail to be resolved. The detail was to be resolved by the content of the section 173 agreement. Further, that was to be resolved in the context that if there was to be a dispute about any matter, that could be determined by the tribunal under section 184 of the Act.

14 I do not propose to affirm clause 6.1 without changes. Changes are required for two reasons. First, as Mr Testro has pointed out, gaming on the land might cease and then resume. Second, if gaming ceases there will be a need to deal with the hours of operation of the gaming bar. Although the permit contemplated that liquor would be consumed in the gaming room, this room was to have a central focus of gaming. If gaming was to cease on the property it would be contrary to the intent of the permit that the gaming room be then used until 2:00am for non-gaming purposes. Hence I propose to exercise my power pursuant to section 184(2) to approve the agreement with the amendments.

[1] [2004] VCAT 2356 at [42-58].

[2] [2004] VCAT 1961.