Victorian Civil and Administrative Tribunal|2011-04-07|Before: Mr P

Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 (7 April 2011)

Planning and Environment Act 1987 - Whittlesea Planning Scheme - permit application for buildings and works for construction of a hotel incorporating 40 electronic gaming machines - review of Whittlesea CC failure to make a decision - whether a strip shopping centre - whether separate and adjoining lots - social and economic impacts of location - Gambling Regulation Act 2003 - review of decision of VCGR - whether net economic and social impact detrimental to the wellbeing of the community - balancing positive and negative social impacts

The decision of the Responsible Authority is affirmed. No permit is granted.

The decision of the Victorian Commission for Gambling Regulation is set aside.

Mr C Townshend SC and Ms S Porritt, barrister instructed by Bazzani Scully Brand lawyers.

Mr P Calwell, author of 'Laurimar Tavern Survey'
Mr N Moresi, of GTA Consultants
Mr R Quick, of URBIS author of 'Evidence Report - Laurimar Tavern'
Ms S Jordan, of URBIS author of 'Laurimar Tavern Planning Evidence' Report.

Mr J Ahmet, Agency Manager of Whittlesea Community Connections
Rev G Dickins, Plenty Valley Baptist Community Church
Mr D Lynch, joint author of University of Ballarat report 'Doreen Community's Attitudes towards Gambling and Electronic Gaming Machines'
Dr K Kerkin, author of 'Laurimar Tavern, Doreen Social Impact Assessment Report'.

For First Respondent/Victorian Commission for Gambling Regulation

Mr J Larkins and J Kane, instructed by Victorian Commission for Gambling Regulation.

The subject land is located on the south east corner of Hazel Glen Drive and Painted Hills Road within the Laurimar Town Centre. The land is irregular in shape with a curved frontage of approximately 76 metres to Hazel Glen Drive, a frontage of approximately 70 metres to Painted Hills Road a total area of 3605 square metres. The land does not contain any significant vegetation and is vacant. Laurimar is a developing planned residential estate which will at completion accommodate approximately 2400 dwellings.

The proposal is to develop the land for a hotel incorporating a bistro, a sports bar, a gaming lounge for 40 gaming machines, a lounge bar, two function rooms and associated service areas, children's play areas and various outdoor terrace areas.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time.

George Adams Pty Ltd (George Adams) is seeking planning and gaming permission to build a tavern at Laurimar, which would offer a range of facilities including a gaming lounge with 40 electronic gaming machines (egm's).
On 15 March 2010, the Victorian Commission for Gambling Regulation (the VCGR) granted approval for the installation of 40 electronic gaming machines at the proposed Laurimar tavern at Laurimar. The City of Whittlesea, the Responsible Authority under the Gambling Regulation Act 2003 (the GR Act) opposed the application.
The Responsible Authority has sought a review of the decision. The parties to the application for review are the Responsible Authority, George Adams in substitution for Laurimar Tavern Pty Ltd, the original applicant, and the VCGR.[1] At the time of the application before the VCGR, George Adams and Prizac Pty Ltd (Prizac) were co owners of the land and Laurimar Tavern Pty Ltd was the proposed operator. By the time the application for review was heard, George Adams was sole proprietor of the land, Laurimar Tavern Pty Ltd was no longer the proposed operator, and no other proposed operator had been nominated.
The original applicant also applied for planning permission to build the tavern on 8 May 2009. On 21 April 2010 the then applicant applied to the tribunal for a review of a deemed refusal to grant a permit. The City of Whittlesea subsequently formally refused the application and filed reasons for refusal on 20 December 2010. George Adams has sought a review of the refusal of planning permission.
The planning and gaming applications raise separate, although linked consideration of the appropriateness of the proposal, having regard to the separate legislative provisions in respect of planning and gaming approval.
The two applications were heard together, and by agreement, the evidence adduced by the parties was relied on, as appropriate, in respect of one, other, or both applications.
As the tribunal observed in Bright Newbay Pty Ltd v Bayside CC:[2]

Two discrete permissions are required. The planning permission is focused upon whether it is an appropriate location suitable for gaming and, secondly, the social and economic impacts of the location. The gaming considerations include whether the net economic and social impact of the machines would or would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. Hence, it is our view that a more detailed analysis of the economic and social impacts upon the community is a matter that is best dealt with as part of the consideration under the GR Act rather than as part of the planning application.

Laurimar is a planned development approximately 30 kilometres north of the Melbourne CBD, in the City of Whittlesea, a designated growth area. The proposed Laurimar Tavern is in the Laurimar town centre, which is planned to be the focal point for an emerging community of 9,000 people in 2,400 homes.
The town centre development plan describes the visions and objectives for the town centre in these terms:

[To] be not just a shopping centre, but to have all positive qualities of traditional main street centres. The centre is intended to be a focus for all kinds of activity, including shopping, but also cafes restaurants and the tavern, civic functions and community facilities, small businesses, education offerings and experiences for multiple audiences, leisure and recreation, and urban living. The mix of uses and the town centre's location are anticipated to generate a vibrant street life for at least eighteen hours a day, seven days a week, that will become an attraction in its own right.

The vision is for a centre that many people will walk or cycle to, and within which people will circulate on foot. This, and a detailed design of the public realm, will foster social interaction, contributing to the sense of community in Laurimar.

One of the 'non-negotiable structuring elements' of the town centre development plan is the location of iconic buildings at each end of the town centre. The proposed tavern is one of the iconic buildings, on the site already designated for a tavern.

The tavern proposal included a 250 seat café bistro, a sports bar with TAB for 185 people, a lounge bar, two function rooms with a combined capacity of 300, an indoor/outdoor childrens' play area and a gaming lounge with 40 egm's. It also included a community support program to be implemented in the event the application was granted. The program included an initial contribution of $100,000 for a nominated community infrastructure project and an annual contribution of $70,000 to community organisations for each of the first five years of the operation of the tavern.

This is an application to review the failure of the responsible authority to grant a permit within the prescribed time in respect of a permit application for, buildings and works associated with the construction of a Hotel, a reduction of required car parking, the sale and consumption of liquor and installation and use of 40 egm's at 63 Painted Hills Road, Doreen within the newly developing Laurimar town centre. The responsible authority ultimately decided that had it not been for the application for review it would have refused permission for the reasons set out in Appendix A.
At the commencement of the hearing the proponent applied to amend the permit application by the substitution of amending plans as foreshadowed by notice given in accordance with the tribunal's practice requirements. No person opposed the amendment of the permit application in this way, and the tribunal ordered the amendment of the permit application in accordance with the proponent's request.
In the planning proceeding there are a number of matters which are not in dispute between the parties. These matters were usefully summarised by the proponent, ie:

Based on the substituted plans, the buildings and works are acceptable and are generally in accordance with the Laurimar Town Centre Development Plan ("LTCDP");

The building would implement the strategic vision for this site in terms of land use and built form outcomes;

The proposed use of the land as a hotel including the gaming and licensed premises is generally in accordance with the LTCDP;

No permit is required under the Vegetation Protection Overlay or schedule I to that overlay;

A permit should be granted under clause 52.27 for the sale and consumption of liquor.

Whether the installation of electronic gaming machines is prohibited (clause 52.28-4).
Whether the premises and location of the gaming machines are appropriate for the installation and use of electronic gaming machines (clause 52.28-5).
The adequacy of 164 car parking spaces (clause 52.06).

The subject land is located on the south east corner of Hazel Glen Drive and Painted Hills Road within the Laurimar Town Centre. Laurimar is a developing planned residential estate which will at completion accommodate approximately 2,400 dwellings.

A significant proportion of the proposed development, both within the estate and within the town centre, is complete.[3] The town centre is intended to be a focus for activities including shopping, cafes, a tavern and community and recreation facilities. Hazel Glen Drive is the main street in the centre and traverses the centre east to west. Wetlands that are a feature of the estate have been developed to the east and south of the town centre.

The proposal is to develop the land for a hotel incorporating a bistro, a sports bar, a gaming lounge for 40 gaming machines, a lounge bar, two function rooms and associated service areas, children's play areas and various outdoor terrace areas, all at ground floor level. The main pedestrian entry will be from Hazel Glen Drive.
Car parking for 164 vehicles is provided on the first and second floor levels of the building. The loading bay and the car parking floors are accessed from Painted Hills Road.
The architecture of the building has a contemporary character responding to the character emerging within the town centre. A landscaping plan is part of the overall design.
The premises are proposed to be open to the public, for gaming and otherwise during the following times:
- Monday to Saturday between 7.00am and 3.00am,

except Good Friday. * Sunday between 10.00am and 1.00am. * Good Friday between 12noon and 1.00am. * Anzac day (not being Sunday) between 12noon and 1.00am 5. The sale of liquor for consumption off the premises is proposed during the following times: * Monday to Saturday between 7.00am and 11.00pm. * Sunday between 10.00am and 11.00pm. * Good Friday and Anzac Day between 10.00 am and 11.00pm. 6. The application proposes a Community Benefit Program associated particularly with the proposal for gaming machines. The program will provide $70,000 per annum to local community groups for a five year period and $100,000 one off contribution towards a major infrastructure project in the local community.

The zones and overlays and their associated development plans are set out in the following table:

Laurimar Town Centre Comprehensive Development Plan

Under the planning schemes provisions permission is required:
- To install and use electronic gaming machines in accordance with clause 52.28.
- To sell and consume liquor in accordance with clause 52.27;
- To construct a building and carry out works under the Schedule 6 to the Design and Development Overlay;
- To reduce the number of car parking spaces required by clause 52.06;
- To reduce the number of bicycle parking facilities in accordance with clause 52.34.

Under the Development Plan overlay a permit must not be granted if the proposal is not generally in accordance with the development plan.

Is the installation and use of gaming machines prohibited?

Clause 52.28, Gaming, provides that gaming machines are either permissible or prohibited in particular circumstances. Clause 52.28 is set out in full in Appendix B.
The purposes of the clause are:

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.

Clause 52.28-4, Prohibition of a gaming machine in a strip shopping centre, provides that the installation and use of gaming machines is prohibited if the schedule to the clause specifies a particular strip shopping centre, or that gaming machines are prohibited in all strip shopping centres. Under the Whittlesea Planning Scheme gaming machines are prohibited in all strip shopping centres.
Clause 52.28-4 defines strip shopping centres as follows:

A strip shopping centre is an area that meets all of the following requirements:

it is zoned for business use;
it consists of at least two separate buildings on at least two separate and adjoining lots;
it is an area in which a significant proportion of the buildings are shops;
it is an area in which a significant proportion of the lots abut a road accessible to the public generally;

but it does not include the Capital City Zone in the Melbourne Planning Scheme.

The question of whether or not the installation and use of gaming machines is prohibited is an important issue in the planning proceeding.

The parties made some general submissions as to the correct approach to the proper interpretation of the clause. We make the following observations on two of these issues:
- The proponent submits that because 52.28 is a planning control, rather than a policy it should be given a tight legal interpretation. We do not disagree with this submission except to observe that the purpose and the context of the statute is important to its interpretation. This approach was endorsed by the Supreme Court of New South Wales in Solomon v Licensing Court of New South Wales.[4]
- The proponent submits that for the purposes of clause 52.28-4, strip shopping centre does not have its ordinary meaning, rather it has the meaning provided for in the definition included within the clause.

Planning scheme controls do on occasion define constructs that do not otherwise exist in ordinary language. This is not the case here. The definition is a codification of an ordinary term which was regarded as being insufficiently precise for the purpose of control. Therefore, the ordinary meaning of strip shopping centre is part of the context of the clause and is therefore relevant to the interpretation of the defined term. 2. In relation to interpretation generally, we note an observation made by the tribunal in Crestline:[5]

We do not need to refer to the Explanatory Report in relation to Amendment S69 to determine this question, but by the way we note this paragraph on page 3 of that report under the subheading 'What the amendment does' the following appears:-

'Strip shopping centre' is defined for the purposes of the clause. It is defined broadly and is intended to apply to a wide variety of centres, other than the central area of Melbourne.

Are the proposed gaming machines within a strip shopping centre as defined?

The defined term describes a strip shopping centre as an area which meets four requirements. These elements of the definition are discussed below.

The proponent submits that the various cases in the Planning and Environment List referred to us approached the task of the interpretation of the clause by first defining the area which might be a strip shopping centre before analyzing whether or not it met the requirements of the definition. The proponent urged on us a different approach, arguing that we should adopt the intended site of the gaming machines as a starting point for the determination of the area within which it is located.[6]
We are not sure that adopting either approach would necessarily lead to a different outcome or that all of the decisions referred to us adopted the approach attributed to them by the proponent. The proponent's approach has nevertheless been useful in our analysis.
A child at the Laurimar Primary School might complete his or her address saying, Melbourne, Australia, the world, the solar system, the universe. For every place there is layering of progressively larger areas within which the place is located. A premises for gaming machines may be within an area or precinct which is not itself a strip shopping centre, but if that area or precinct is itself within a larger area, which is a strip shopping centre, then the premises is within a strip shopping centre.[7]
The Comprehensive Development Zone affecting the land and the Laurimar Town Centre Development Plan, which we discuss in more detail later in this analysis, lead us to the following conclusions in relation to this issue:
- The premises for the proposed gaming machines is within the Laurimar Town Centre;
- Laurimar Town Centre is a planned centre and the urban design of the centre derives from ideas associated with what is a traditional strip shopping centre using the ordinary meaning of that term. In whole or in part the Laurimar Town Centre is intended to be a strip shopping centre with a main street focused on Hazel Glen Drive.
The question therefore is the subject premises within the area of the planned strip shopping centre, and is the planned strip shopping a strip shopping centre as defined in clause 52.28?
The Laurimar Town Centre is, is a planned development so the issue of whether or not the subject premises is within the main street to be established on Hazel Glen Drive is in part to be understood by reference to the Comprehensive Development Zone affecting the land, and the related development plans and design guidelines. It is also the case that significant aspects of the town centre are already developed. Therefore the developing character of the centre has an important part to play in an understanding of the overall extent of the main street precinct and whether or not the subject premises sits within that area.
The Laurimar Town Centre Development Plan describes the Hazel Glen Drive main street as comprising community and commercial activities at its western end between Laurimar Boulevard and Bulimba Drive,[8] a retail core including a supermarket between Bulimba Drive and Painted Hills Road and a precinct for more commercially focused activities, including the tavern to the east of Painted Hills Road. We do not think that this distribution of land use priorities along the length of the Hazel Glen Drive main street is intended to create clearly separate areas or entities. Rather it is a plan which encourages the development of the mix and distribution of land uses that one ordinarily associates with the strip shopping centres as they develop over time.
This opinion is supported by the Laurimar Town Centre Comprehensive Development Plan,[9] which shows the entire length of Hazel Glen Drive within the town centre being within the one mixed use precinct and figure 2 extracted from the Laurimar Town Centre Development Plan which shows the planned extent of the Hazel Glen Drive main street.

Figure 2 - Laurimar Town Centre Development Plan, figure 4

The proponent referred to particular physical characteristics of the subject land's location such as the different streetscape treatment of Hazel Glen Drive east and west of Painted Hills Road, and the barrier effect of Painted Hills Road itself, and the Laurimar Town Centre Development Plan's identification of a retail core west of Painted Hills Road as being factors which support a conclusion that land east of Painted Hills Road including the subject land is not within the area centred on Hazel Glen Drive west of Painted Hills Road which might be regarded as a strip shopping centre.
Roads can be, but are not necessarily, boundaries between different areas. The possibility that Painted Hills Road was a boundary between what might be regarded as a strip shopping centre and the subject land was something that we explored during the course of the hearing and were keen to examine on inspection.
In our mind the inspection was decisive. The inspection revealed a town centre which had a more intimate scale than the various photographs and plans had prepared us for. Painted Hills Road does not in our view constitute a barrier between distinctively different precincts. On the contrary we formed the view that when land on either side of Hazel Glen Drive east of Painted Hills Road is developed in accordance with the plan then the entire Hazel Glen Drive main street, as envisaged by the development plan will appear as a single cohesive whole.[10]
Having determined that the subject land is within an area which might be regarded as a strip shopping centre and indeed appears to be designed for that purpose, the question to be resolved is whether or not this area meets the requirements of the definition set out in clause 52.28-4.

If the Hazel Glen Drive Main Street is a strip shopping centre as defined by clause 52.28 the first requirement it must satisfy is that it is zoned for business use.
The Hazel Glen Drive Main Street is in a Comprehensive Development Zone (CDZ3). It is therefore not within the group of business zones, Business 1 Zone 1 to Business 4 Zone, found in clause 34 of the planning scheme ordinance. There can be no presumption that the land is zoned for business use, as might be case if it was within one of this of suite business zones. However, the converse is not true. The fact that the Hazel Glen Drive Main Street is not within one of these business zones does not lead to a presumption that the land is not zoned for business use. Evidence of this includes the fact that:
- there are a number of special use zones including the Capital City Zone, and the Activity Centre Zone which can result in land being zoned for business use, and;
- the clause 52.28-4 definition itself specifically excludes land within the capital city zone for this reason.
The proponent submits that the CDZ3, is a zone for master planning in which a range of uses is possible, and that the comprehensive development plan associated with the zone shows the Hazel Glen Drive main street area as being a mixed use area. It is argued that these factors suggest that the land is not zoned for business use.
It is also submitted that we should not rely on any approved development plan or overlay controls in deciding whether or not the Hazel Glen Drive main street is zoned for business use.
Before turning to the explicit question of whether or not the CDZ in this case means that the land is zoned for business use, we make the following more general observations:
- The concept that the CDZ is a zone for master planning is subtly incorrect. It would be more correct to say the CDZ is a zone for the implementation of a master plan. It is the master plan which gives form and purpose to the zone,[11] and;
- A schedule to the zone is part of the zone itself. In some zones the schedule serves a subsidiary and optional purpose. This is not the case with the CDZ. The schedule to the CDZ is essential for the zone to have meaning and effect. In a fundamental way the purposes of the schedule are the purposes of the zone, and the schedule establishes the mix of uses which are either permitted or permissible within the zone.
It is not relevant to say that a zone provides for a mix of land uses without seeking to understand the context and purpose of the zone. This is particularly important in the case of the CDZ, which is used to achieve a planned future outcome. The CDZ for the Laurimar Town Centre was the subject of planning scheme amendment C80. The explanatory report identifies the future role and function of the town centre as that of a neighborhood activity centre i.e:

The amendment is required to facilitate the development of land within and around the Laurimar Town Centre for a variety of retail, commercial, residential, community and educational uses relevant to its future role and function as a neighbourhood activity centre. The amendment also seeks to ensure that the town centre is designed and built according to a clear set of objectives and principles.

The purposes of schedule 3 to the CDZ are as follows:

To provide for development of the Laurimar Town Centre generally in accordance with the Mernda Local Structure Plan: Part 1, the Laurimar Development Plan and the Laurimar Town Centre Comprehensive Development Plan.

To provide for a mix of uses including retail, commercial, civic, recreational and residential in a manner that integrates the site with the surrounding uses.

To designate land suitable for a compact, pedestrian-orientated and traditional mixed use town centre.

To achieve a high standard of urban design, landscaping, public amenity and safety.

Amendment C80 simultaneously applied Development Plan Overlay (DPO17) and Design and Development Overlay (DDO6) to the Laurimar Town Centre area as defined by the CDZ3. The amendment was adopted on 12 July 2007. The Laurimar Town Centre Development Plan adopted by council is also dated July 2007. The inescapable conclusion is that the zone, the overlays and the development plans are all part of a comprehensive package implementing the master plan for the Laurimar Town Centre.
The explanatory report for amendment C80 indicates that its strategic purpose is the creation of a neighbourhood activity centre at the Laurimar Town Centre. The purposes of the zone and the overlays implemented by the amendment encouraged the establishment of a traditional, vibrant and pedestrian oriented town centre. The Laurimar Town Centre Development Plan puts flesh on the bones of these purposes, i.e.:

Delfin Lend Leases vision for the Laurimar Town Centre to be not just a shopping centre, but to have all the positive qualities of a traditional main street centres.[12]

Figure 3 - Laurimar Town Centre Development Plan, page 27.

It is our conclusion that, these factors taken singly or together supports the conclusion that the CDZ3 as it applies to the Hazel Glen Drive main street has the effect that the land is zoned for business use.
The tribunal in Prizac considered the issues raised by clause 52.28-4 in respect of an area also affected by a comprehensive development zone. In Prizac, the tribunal concluded in respect of the business use issue that [I]n our view the land is not zoned for business use as there is no specific purpose that the rest of the land to be used for business over and above other uses.[13]
The proponent relies on Prizac to support his contentions in relation to the business use issue. We think the decision is distinguishable from our case because:
- The comprehensive development zone in Prizac applies to a very large area subject to extensive residential development including some mixed use elements;
- The zone and schedule purposes do not reveal any intention to create a town centre, main street or other like precinct within the broader area of the zone.
More particularly the conclusion of the Tribunal in Prizac in respect of the business use issue is understandable having regard to its view as to the area to be considered, i.e:
1. The 'area' for the purposes of clause 52.28 can be specifically defined as the area in which the subject land is centrally located and is bounded by Thomas Holmes Street to the north, Edgewater Boulevard to the south, Skyline Drive to the east and Case Street to the west. The 'area' can be more widely defined to include the area along Edgewater Boulevard and Thomas Holmes Street from Case Street to Gordon Street to the west.
2. The two defined areas do not include the whole of the area within the Comprehensive Development Zone Schedule 3 (CDZ3), although they are contained within the CDZ3. We do not consider the 'area' extends to include the slightly wider areas suggested by either Mr McNabb or Mr Pitt.
3. If the more confined area is accepted then the subject land is not located within a strip shopping centre as the only buildings in this area are dwellings and there are no shops.

If the Hazel Glen Drive main street is a strip shopping centre as defined by clause 52.28 the second requirement it must satisfy is that it consists of at least two separate buildings on at least two separate and adjoining lots.
The proponent's submissions in relation to this requirement essentially rely on submissions in relation to the relevant area, submissions which we have rejected. Nevertheless, we make the following observations in relation to this requirement:
- We agree that the word adjoining in the requirement should be given its narrower meaning and for the purposes of this clause adjoining lots are lots with a common boundary. The basis of this conclusion is not so much that the narrower meaning is required because we are interpreting a planning control, but rather because the purpose of the requirement can be understood by reference to the ordinary meaning of strip shopping centre. A characteristic of strip shopping centre as they are ordinarily understood is that they include rows of shops and other commercial premises on adjoining lots.

The subdivision of 95 Hazel Glen Drive[14] puts beyond doubt that within the Hazel Glen Drive main street there are two separate buildings on at least two separate and adjoining lots.

If Hazel Glen Drive main street is a strip shopping centre as defined by clause 52.28, the third and fourth requirements it must satisfy are that:
- It is an area in which a significant proportion of the buildings are shops;
- It is an area in which a significant proportion of the lots are abut a road accessible to the public generally;
Other than arguments relating to the relevant area under consideration, already rejected by us, there were no submissions which argued that these two requirements are not met.

The installation and use of gaming machines is prohibited

It is our conclusion in relation to the interpretation of clause 52.28-4 that the proposed gaming machines would be within an area we have called the Hazel Glen Drive main street, and that this area is a strip shopping centre as defined in accordance with the provisions of the clause. The installation and use of the proposed gaming machines is therefore prohibited under the provisions of the Whittlesea Planning Scheme.

Having concluded that the installation and use of gaming machines on the land is prohibited it is not entirely necessary for us to deal with the planning merits of the proposal more generally. However, having regard to the comprehensive submissions and evidence before us we consider it valuable to briefly address this issue.

The Laurimar Town Centre Development Plan specifically identifies the preferred future use of the subject land for the purpose of a tavern. The council accepts that the proposed use of the land for a hotel is consistent with this planned outcome. It is undoubtedly the case that the use for the land for a hotel gains very considerable support from the zone provisions and the overlays implemented to manage a use and development of the Laurimar Town Centre. It is also a case that a tavern as defined under the planning scheme can include gaming machines.

The zone, the overlays, and the development plans seek an iconic building with a high standard of architecture up to three storeys in height on the land. The parties do not dispute that the building described in the amending plans achieves this preferred outcome. We accept this assessment.

Master planning for the Laurimar Town Centre identified the subject land as a site for a tavern to service the local community. A tavern can include gaming. These factors indicate a degree of support for the installation and use of gaming machines on the land. However, while the implementation of the master plan through the comprehensive development zone CDZ3 has the effect that no permit is required for the use of the land for the purpose of a tavern, the installation and use of gaming machines on the land remains discretionary.
Council in the implementation of clause 52.28 in its planning scheme acted to prohibit gaming machines in all strip shopping centres. This implies a purpose for clause 52.28 derived from council's view as to the social and economic effects of gaming machines in local shopping strips, a view embodied in its 2002 gaming policy.
The planned outcome for the Laurimar Town Centre is the establishment of a traditional and vibrant town centre. Such a centre will have characteristics of a strip shopping centre as that term is commonly used. Our inspection revealed that the town centre has an intimate scale which is consistent with its intended role as a neighbourhood activity centre. These factors suggest that the installation and use of gaming machines in the town centre would be inconsistent with its character and the social and economic outcome sought to be achieved by council. This is a view which is supported by the public opinion surveys which demonstrate that a significant proportion of the local population oppose installation of gaming machines.
We do not consider the location is inappropriate because it is likely to be passed by significant numbers of children walking to and from school. There was no evidence led before us indicating school children, particularly primary school children are likely to be adversely affected by walking past a gaming venue. As our reasons in the gaming application reveal, we do have concerns about the convenience of the venue to the local community, and the associated risk of problem gambling. In our view, that is a risk more likely to attach to adults, including those walking children to and from school, than to the school children.
The considerations relevant to the social and economic impact of the introduction of egm's into the proposed development are referred to in detail in our reasons on the gaming application. For planning purposes, consideration of the social and economic impacts of the proposal is focused on the social and economic impacts of the location of the egm's. The findings we make in the gaming application in respect of the nature of the community, their vulnerability, for reasons other than social and economic disadvantage to problem gambling, the strength of community opposition to the introduction of egm's into the proposed tavern, and the community generally, and of our characterisation of the venue as having many features of a convenience, rather than destination venue, all support a finding the social and economic benefits of the location of egm's at the premises are outweighed by the disadvantages.

Council does not oppose the granting of a permit for the sale and consumption of liquor in association with the proposed hotel. This conclusion is supported by the planned use of the land for the purpose of a tavern in accordance with the Laurimar Town Centre Development Plan.

The amended plans propose the provision of 164 car spaces in two decks at levels 2 and 3 of the proposed building. The officer's report recommended the provision of 195 car spaces based on a theoretical assessment, which Mr Moresi described as a first principles assessment. Mr Moresi in his original report to council relied on a car parking demand survey of the Box Hill RSL club which resulted in a car parking demand of 11 car spaces per 100 square metres of net floor area. For the purposes of the hearing, Mr Moresi arranged for a number of hotels with gaming machines to be surveyed with the resulting car parking demands varying between 4 and 6 car spaces per 100 square metres of net floor area.
The proposed 164 car spaces represents the provision of 12 car spaces per 100 square metres of net floor area. This car parking provision compares very favourably with the empirical results for hotels with gaming machines, that is 4 to 6 car spaces per 100 square metres of net floor area. The car parking provision also slightly exceeds the empirical car parking demand for the Box Hill RSL club, a less directly comparable premises.
These empirical assessments satisfy us that the proposed car parking provision is likely to be satisfactory.

The planning merits do not support the grant of a permit

On balance we are of the opinion that the planning merits of the proposed hotel and the associated installation and use of gaming machines is not supported by the planning merits of the application. The planned use of the subject land for the purpose of a tavern provides strong support for the use and development of the land for that purpose. A tavern can include gaming machines, but the installation and use of gaming machines remains discretionary. These factors favour the installation and use of gaming machines, but we do not agree that they imply that gaming machines are supported in a way that the use and development of the land for a tavern is supported. This positive consideration is in our mind outweighed by the potential impact of gaming machines on the intended character of the Laurimar Town Centre and the associated social and economic impacts, a conclusion reinforced by opinions of the affected community.

The VCGR concluded that the proposal would, on balance, be of benefit to the community of Laurimar and the rapidly growing northern suburbs of the City of Whittlesea. It found the proposal would:

Provide a modern tavern with a range of entertainment facilities which are not available at present and which a new and growing residential area is entitled to expect. It is consistent with the Council's strategic development plans for the suburb. The gaming room will be part of the overall facility which is a common feature of similar developments in the newer suburbs of Melbourne.

It added that it would be unlikely to grant an increase in egm numbers at the venue in the foreseeable future. It said the proposal was:

essentially a boutique venue, appropriate to the area and consistent with the State government's objectives for the gaming environment in Victoria post the 2012 changes.[15]

In coming to its decision the VCGR took into account the following matters:
- (a) the tavern would also provide a 250 seat café bistro, a sports bar with TAB for 185 people, a lounge bar, two function rooms with a combined capacity of 300, and an indoor/outdoor childrens' play area;
- (b) the design and location of the tavern, in particular that it overlooked the lake, faced away from the adjacent shops, and over the parkland between the town centre and the nearby residential areas, and was on the site designated for a tavern on the Town Centre Development Plan;
- (c) the proposed operator's opinion, based on its financial projections, that the tavern was not viable without the income generated by egm's;
- (d) the proposed operator's promise of financial contributions to a community support program, namely an initial contribution of $100,000 for a nominated community infrastructure project and an annual contribution of $70,000 a year for five years to nominated community projects;
- (e) evidence of the means by which the proposed operator (an experienced operator of hotels with gaming machines, and experienced responsible service of gaming providor) would put into effect its stated intention to provide best practice responsible gambling services;
- (f) the conclusion of the social and economic impact assessment prepared by Mr Rhys Quick of Urbis Pty Ltd, that there would be a net community benefit from the proposal;
- (g) evidence of a community attitude survey conducted by Mr Phillip Calwell of Ipsos Australia. It showed widespread community support for a tavern. It showed, when told the development was dependent on gaming machine approval, 56% of respondents supported the proposal;
- (h) the relative lack of socio economic disadvantage and comparatively low density of egm's in the northern part of the City of Whittlesea, compared to the southern part of the city, and Melbourne generally, and the likely resultant reduced risk of problem gambling;
- (i) that the proposal would not result in the maximum number of machines exceeding the municipal limit for the City of Whittlesea.

Differences between case presented to the VCGR and the Tribunal

As a result of the change in ownership of the land, and the withdrawal of the potential operator, the applicant did not rely upon the evidence presented to the commission from Mr Ian Macklin, the project manager for the proposed development by George Adams and Prizac, Mr John Nicholson and Mr Anthony Perry, the proposed managers of Laurimar Tavern Pty Ltd, or Ms Mary Louise Crowe, then a gaming consultant, who it was proposed would be engaged to provide best practice training and compliance services to the operator and employees of the gaming facility.
In finding the proposal would, on balance, be of benefit to the community of Laurimar and the rapidly growing northern suburbs of the City of Whittlesea, the VCGR placed weight on their evidence. It relied on the financial projections and opinion the tavern was not viable without the income generated by egm's, evidence of the experience of Prizac and the proposed operators in the hotel and gaming industry, and their commitment to ensuring best practice training and supervision of staff in the provision of responsible gambling services.

There was no other evidence adduced or relied on before us from George Adams or any actual or potential operator, in respect of the financial viability of the proposal without egm's. There was no reliance on the experience or expertise of the owner or proposed operator in the gaming industry. There was no evidence of any proposals for, or commitment to introduction of best practice training and supervision of staff in respect of the provision of responsible gambling services. We consider the absence of evidence before us in respect of these matters to be a significant difference between the case below and the case before us.
Mr Townshend submitted the evidence of experience of the proposed operators, or their commitment to best practice in relation to provision of gambling services was an irrelevant consideration, as the application before the VCGR (and the tribunal) was for approval of premises, not approval of operator. He submitted operator approval was a separate and independent matter and that even if evidence were led in an application for premises approval of the experience, expertise and intentions of the proposed operator in respect of provision of responsible gaming services, its absence on review before the tribunal did not weaken the applicant's case, as there could be a change of operator at any time after premises approval.
Therefore, he submitted, the absence of evidence of the experience and intentions of operators did not weaken George Adams' case before us. If this is correct then the evidence should not have been adduced or relied on before the VCGR. We wonder why the applicant presented and relied on evidence of the proposed operator's experience in the gaming industry and commitment to best practice in the provision of responsible gaming services before the VCGR if it now contends it is irrelevant.
We note Mr Larkins, on behalf of the VCGR, submitted it was the VCGR's expectation that a potential or existing operator of a gaming venue provide detailed information including sworn evidence that the operator is committed to implementing responsible gaming initiatives within a gaming venue. In his submission this is consistent with one of the fundamental functions of the VCGR, namely, to foster responsible gambling. He advised us that consistently with that expectation, in most if not all applications before the VCGR, potential or existing operators give evidence in relation to their experience with managing gaming venues and their commitment to responsible gambling. He said that was consistent with the objectives of the GR Act and the statutory functions and objectives of the VCGR.
Although we accept Mr Townshend's submission that operator approval is separate from premises approval, and acknowledge that circumstances may change between the granting of premises approval, and premises opening for business, so as to lead to a change in operator, we consider the analysis of the VCGR in respect of the significance of evidence in premises approval applications of the commitment of the operator or proposed operator to implementing responsible gaming initiatives within the gaming venue to be the correct approach. For these reasons, the reliance on such evidence by the VCGR and the absence of such evidence before us is, in our view, a relevant difference in the cases presented before us and the VCGR by the applicant for approval.
In the alternative, Mr Townshend submitted if evidence of commitment to best practice in responsible service of gaming was relevant to premises approval, then the applicant was prepared to consent to conditions being attached to its planning permission in respect of the provision of responsible service of gaming. This was the approach adopted by the tribunal in Bright Newbay v Bayside CC.[16] He indicated that the applicant would be prepared to consent to conditions in similar terms to those attached to the permit in that case.[17] Mr Townshend submitted attaching such conditions to the planning permission would put the applicant in the same position it was in before the VCGR, that is, with a demonstrated commitment to implementation of responsible service of gaming initiatives. The result or the effect of that would be, he submitted, that the applicant's case was not weakened by the absence of evidence before us of its commitment to responsible service of gaming practices.
We disagree. We do not consider that a promise to consent to conditions in respect of provision of responsible service of gaming in a planning permission fills the gap left by the evidence of such commitment before us. First, there was no evidence of what it was the applicant proposed to do, or the means by which it proposed to do it. Secondly, as Ms Sophie Jordan, the planner called by the applicant acknowledged, a commitment to responsible gaming strategies was a very significant matter for an operator in a growing community and responsible authorities do not have the expertise to ensure that such conditions are effectively implemented. Thirdly, we accept the VCGR's submission that the experience and commitment of an operator to responsible gaming strategies is a matter to be taken into account when considering the social and economic impact of a proposal. The absence of such evidence means we can give little weight to mere assertions of commitment to implementing responsible gaming strategies.
The City of Whittlesea did not rely upon the evidence of Mr Peter Spratt, its senior research officer, who prepared an economic and social impact assessment, and gave evidence before the VCGR. His evidence, and the basis of the council's opposition to the application was that the proposal would result in a net social and economic detriment to the community. The City of Whittlesea's case below, in reliance on Mr Spratt's opinion, was that there was a net detriment based on three main grounds. The council's opposition to any increase in egm's in the municipality, its concern about the already high expenditure on gambling in the municipality, and the proximity of the site to the school, supermarket and other amenities. Instead, before us, the City of Whittlesea relied upon a social and economic impact assessment provided by Dr Kate Kerkin. As did Mr Spratt, so did Dr Kerkin conclude there was a net negative social and economic benefit from the introduction of egm's. The matters she identified as relevant to her assessment went beyond those relied on by the City of Whittlesea before the VCGR. This too is a material difference.
The City of Whittlesea also introduced before us a survey of community attitudes, commissioned by it from Mr David Lynch of the Centre for Regional Innovation and Competitiveness at the University of Ballarat. Further evidence of community attitudes was provided in the form of a DVD containing interviews with a number of Laurimar residents and the results of a questionnaire distributed to Laurimar residents. This evidence showed greater community opposition to the introduction of egm's than had been the case before the VCGR. There had been no survey of community attitudes relied on by the council specific to the Laurimar area in the case it presented to the VCGR. Again this is a material difference.
There were some differences, too, in the evidence presented by Mr Quick in his updated social and economic impact assessment. Some could properly be characterised as updated information on matters such as population growth and income in the Laurimar area. In addition he took into account the effect of the changed circumstances of the applicant. He said the withdrawal of the planned operator, and the absence of evidence of gaming industry experience and a commitment to best practice in respect of responsible gaming practices had not affected his conclusion there was a net social and economic benefit. Nor did he consider the absence of reliance on evidence that the proposal was not viable unless it contained egm's detracted from his original conclusion. Mr Quick's original social and economic impact assessment provided to the VCGR, and his evidence before the VCGR indicated those were factors he had relied on in concluding there was a net benefit from the proposal. We consider therefore that despite Mr Quick's evidence they did not affect his conclusion, this, too, is a material difference between the case below and the case before us.
Rev Glynis Dickins of the Plenty Valley Baptist Community Church, and Mr Jemal Ahmet, the agency manager of Whittlesea Community Connections gave evidence before us which added to, and updated their evidence before the VCGR. It was generally consistent with their evidence before the VCGR but they also provided additional material, not before the VCGR, which we must take into account.
By the time of the hearing before us, the parties had reached agreement on the amount of the projected expenditure per egm. This meant it was not necessary to hear from Mr Nair and Mr Gill, the two financial analysts called by the parties below, and resolve, as the VCGR had to, the difference in their projections. The agreed projection does not differ markedly from the figure determined by the VCGR, but the agreement makes that part of our task less onerous than the VCGR's.
The original proposal before the VCGR contemplated transferring 12 egm's from other gaming venues in the southern part of the municipality, so leading to a net increase of only 28 egm's if approved. As the VCGR did not make that a condition of approval, and the proposal before us contemplated a net increase of 40 egm's if approval were granted, we do not consider the fact this now contemplates a net 40 egm increase, if granted, a material difference to the case as presented before the VCGR.
This summary shows that the evidence and surrounding circumstances before us differ in some significant respects from the evidence which was presented to the VCGR, and the cases which were presented to it by the parties.
In Branbeau Pty Ltd v The Victorian Commission of Gambling Regulation[18] Morris P said:

Although the tribunal must proceed without any presumption as to the correctness of the decision under review, it will usually be appropriate for the tribunal to give weight to the commission's decision in the matter. There are two reasons for this. First the commission has particular expertise in the area of gaming. Second, there is a public interest in consistency of decision making in the exercise of powers under the Act and this may be advanced if weight is given to commission decisions.

We accept that the VCGR possesses particular expertise in the area of gaming, and that we should accord due deference to an expert tribunal's decision, in those aspects of its decision which rely on its expertise. As the case we must assess is a different one in some significant respects from the one presented to the VCGR, the deference to be given to its expertise will be affected by the weight we give to those differences.
It was accepted by the parties that the jurisdiction of the tribunal on review is, standing in the shoes of the original decision maker to make the correct and preferable decision, on the basis of the evidence and submissions made to the tribunal.
Before turning to the test for determining this application, it is important to identify the objectives of the GR Act, and the objectives and functions of the VCGR, as they are relevant to the approach to applications for approval under the GR Act generally, and to the interpretation and application of the test for approval.

By s 1.1(2) the objectives of the GR Act include:
- (a) to foster responsible gambling in order to -
  - (i) minimise harm caused by problem gambling; and
  - (ii) accommodate those who gamble without harming themselves or others;

(f) to promote tourism, employment and economic development generally in the State.

By s 10.1.3 the objectives of the commission include:

(a) to ensure that gaming on gaming machines is conducted honestly;

(d) to act as a source of advice to the Minister on gambling issues and to ensure that the Government's policy on gambling is implemented;

(iii) minimise harm caused by problem gambling; and

(iv) accommodate those who gamble without harming themselves or others;

The functions of the Commission relevantly include
- (a) regulating the use of gaming machines in casinos and approved venues;

(g) advising the Minister on community concerns about the economic and social impact of gambling on the wellbeing of the community.[19]

In Romsey the Court of Appeal said:[20]

As Morris J had earlier pointed out in Branbeau Pty Ltd v Victorian Commission of Gambling Regulation ('Branbeau'), the Commission's objective (para (d)) of ensuring the implementation of government policy on gambling directs attention to the six policy principles identified by the Minister for Gaming. Those principles are as follows:

● developing and reinforcing the [G]overnment's commitment to responsible gambling through measures that assist and protect problem gamblers and those at risk of becoming problem gamblers, their families and the wider community;

● developing and maintaining the [S]tate's commitment to the highest standards of probity for gambling service providers;

● accepting gambling is a valid activity for many Victorians who are entitled to expect ongoing high standards of service, transparency and accountability from the gambling sector;

● ensuring that the legitimate financial benefits of gambling (both private and public) are transparent, appropriately recognisable and fairly distributed to the Victorian community;

● that, to the extent possible consistent with the other principles, gaming service providers operate in a competitive environment;

● establishing proper consultative processes to ensure that appropriate information is given to, and input is received from, the wide variety of persons interested in gambling including stakeholders, affected parties and, to the widest extent possible, the broader Victorian community.

The test for determining applications for approval of premises as suitable for gaming is contained in s 3.3.7 of the GR Act. It provides:

3.3.7 Matters to be considered in determining applications

(1) The Commission must not grant an application for approval of premises as suitable for gaming unless satisfied that -

(a) the applicant has authority to make the application in respect of the premises; and

(b) the premises are or, on the completion of building works will be, suitable for the management and operation of gaming machines; and

(c) the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located.

(2) In particular, the Commission must consider whether the size, layout and facilities of the premises are or will be suitable.

(3) The Commission must also consider any submission made by the relevant responsible authority under section 3.3.6.

It was common ground in the application for review before us that the conditions referred to in s 3.3.7(1)(a) and (b) were satisfied. The applicant, as the registered proprietor of the land upon which it is proposed that the tavern be built, has the authority to make the application in respect of the premises. It was accepted that the plan for the premises submitted to the City of Whittlesea for approval was such that, on the completion of the building works in accordance with the plan, the premises would be suitable for the management and operation of gaming machines.

The issue for determination by us was confined to s 3.3.7(1)(c), namely, whether we could be satisfied that the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. Consistently with the concession made in respect of the suitability of the premises for the management and operation of egm's if the building works are completed in accordance with the plan, it was accepted also that if we were satisfied there would be no net detriment, that the size, layout and facilities of the premises will be suitable.
In Branbeau Pty Ltd v Victorian Commission for Gambling Regulation Morris P, when considering the meaning of s 3.3.7 of the GR Act said:

The use of the word 'net' recognises that there may be both a positive and negative impacts on the well being of the local community and that a balancing process is required ... the test does not require the commission (or, on review, the tribunal) to be satisfied that there will be a net positive economic and social impact of approval; it is sufficient that the commission (or, on review, the tribunal) be satisfied that the net economic and social impact of approval will be either neutral or positive.[21]

In Macedon Ranges Shire Council v Romsey Hotel[22] the Court of Appeal said:

The GR Act does not specify the matters which the decision-maker must consider in deciding whether this 'no net detriment' test is satisfied. ... The identification of the matters which the decision-maker is bound to consider is, accordingly, a matter of implication from the subject-matter, scope and purpose of the Act.

In the present case, the statutory signposts are provided by the test itself. The decision-maker must consider:

● the net effect of those impacts on the well-being of the relevant community.

'Social impact' means the impact on the society or community (or some part or parts of it) in which the gaming machines are proposed to be located. The 'well-being' of the community is a very broad concept. Dictionary definitions indicate that well-being is to be measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous.

The evidence before us revealed that the City of Whittlesea has high levels of social and economic disadvantage. The SEIFA[23] is a well recognised and accepted tool for measuring social and economic disadvantage. On the SEIFA the City of Whittlesea ranks as the 27th most disadvantaged government municipality of the 80 in Victoria. However, there are marked variations within the city. The social and economic disadvantage is concentrated in the older, more established suburbs in the south.
Laurimar is located in the suburb of Doreen. It falls within the Whittlesea North statistical local area of the municipality, which ranks among the least disadvantaged areas in the state, when the SEIFA is broken down into statistical local areas. The disadvantaged areas of Whittlesea in the south west rank as the eleventh most disadvantaged statistical local area out of the 204 in the State. Whittlesea north is ranked 169 out of 204. There are higher levels of home ownership, a higher proportion of growing families, a lower rate of unemployment and a higher household income than the Melbourne average, and the southern part of the municipality. Similar findings were made in the Jesuit Social Services ranking, to which we were referred by the VCGR.
Municipal caps apply to egm density in the south of the municipality but not to the Whittlesea North statistical local area. It should be noted that when egm's were first legalised in Victoria, there was no regulation governing their location. There was no net detriment test, nor opportunity for or right given to councils to make submissions in respect of the impact on the location of egm's, or the number of egm's in their municipalities. The no net detriment test was not applied in respect of the location of egm's in the south of the municipality.
The municipal limit for the uncapped area of the City of Whittlesea was set, by order of the Minister for Gaming in June 2009, at 10 egm's per 1,000 adults, or 212 egm's. Approval of this application would not exceed that limit. The combination of the recent approval by the VCGR of 40 egm's for the Bridge Inn Hotel at Mernda, and approval of this proposal would increase the concentration of egm's per head in the northern area of the municipality from 4.1 to 5.1.
The density of egm's in the City of Whittlesea overall is lower than the metropolitan and state average, but the expenditure on egm's in the municipality is higher. The VCGR published figures for egm expenditure for the year ending 30 June 2010 show net expenditure per adult in Whittlesea was $813, considerably higher than the Melbourne average of $649. Expenditure on egm's in the north, where the concentration of egm's is significantly less than in the south, and the population is less economically and socially disadvantaged than the south was $324 for the same period.
It was agreed between George Adams and the City of Whittlesea that net machine revenue, per machine, per day would be between $237 and $290. This means a total gaming expenditure of between $3,453,898 and $4,234,000. Taking into account projections on the amount attributable to transfer expenditure from other venues and assuming the Bridge Inn Hotel at Mernda will install the 40 egm's for which it has obtained approval, the resultant new revenue, or expenditure is likely to be between $1,357,264.01 and $2,117,000.
The City of Whittlesea developed a Responsible Gaming Strategy in 2002. It opposed any increase of overall numbers of egm's in the municipality. Although tighter controls over numbers of egm's in the municipality than those in place in 2002 now exist, and the population in the north has increased significantly and the number of egm's in the municipality is below the limits now permitted by the relevant caps and municipal limits, it has not revised its policy. This approach has been criticised by the VCGR. It recommends the council consider each application on its merits, regardless of whether approval would result in an overall increase of egm's in the municipality.
Consistently with the objects and purposes of the GR Act generally and of the commission itself, the VCGR in its submissions acknowledged gaming was not a benign activity, that it came with risks. The applicant submitted, correctly, that gaming is a lawful activity, and an entertainment option chosen by many. Most gamblers are not problem gamblers. We accept the application must be considered by reference to an empirical understanding of the relevant facts, not by reference to philosophical, moral or religious values.[24]
On the other hand, although problem gamblers represent a small percentage of the gambling population, as Dr Kerkin in her social and economic impact assessment pointed out, research shows that problem gambling can lead to severe health, social and financial impacts for gamblers and their families. We would add that the social and financial impacts can be felt beyond the gamblers and their families within the broader community.
Mr Quick concluded that the social and economic impact of the proposal, including consideration of the location, would result in a net community benefit. Dr Kerkin concluded there would be a net community detriment.
Mr Quick describes himself as an economic property consultant with over 12 years experience specialising in the retail and gaming sectors. He has a bachelor of economics with honours from Monash University. His CV describes his particular areas of expertise as major shopping centre development analysis and economic impact assessment, and gaming sector consulting. He has identified specific areas of expertise which include, relevantly for these purposes the preparation of economic and social impact assessments, property performance benchmarking and analysis, development project feasibility assessments, undertaking market demand studies, turnover and rental income analysis and forecasting, providing demographic market profiles, site location assessments and recommendations and national location and acquisition strategies.
Dr Kerkin is an urban and social planner. She has a bachelor of arts (H1) degree from ANU majoring in urban geography and social planning, a masters of public policy from the University of New England and a PhD in architecture and planning from the University of Melbourne. She has over 20 years experience in urban and social planning. She describes her areas of expertise as including socio-demographic analysis, policy analysis and social planning.
These differences in qualifications informed the different approaches they took.
Dr Kerkin identified six indicators against which she assessed the potential social impact of the proposal. They were:
- (a) problem gambling vulnerability;
- (b) economic benefits to the community;
- (c) community facilities and services;
- (d) entertainment;
- (e) community health;
- (f) community wellbeing.

She identified those indicators by reference to international standards and guidelines for social impact assessment, the relevant provisions of the GR Act and the Planning and Environment Act 1987 (the P&E Act), State Government policy, previous decisions of VCAT and the VCGR and research and gaming and master planned estates. She then applied the test formulated by Morris P in Branbeau Pty Ltd v Victorian Commission for Gambling Regulation[25] when considering the meaning of s 3.3.7 of the GR Act.

Mr Quick relied for his definitions for assessing social and economic impact on those provided by the VCGR in its submission form for local authorities. They are in the following terms:
- (a) Economic impact of the proposal: economic impact is the sum of the effects on the viability and development of the economy (of the municipal district) in the short or medium term, and how this is likely to affect the wellbeing of the community.
- (b) Social impact of the proposal: social impact is the sum of the effects of the social infrastructure, social opportunities and social interactions (of the municipal district) in the short or medium term, and how this is likely to affect the wellbeing of the community.
- (c) Wellbeing of the community of the municipal district: economic prosperity and social robustness or health of the overall community of the municipal district.
- (d) Will not be detrimental to the wellbeing of the community of the municipal district: when the net economic and social impact of the proposal (ie the sum of the incremental effects) is considered neutral or positive.
Dr Kerkin divided her analysis into positive and negative social impacts, and then weighted each of them individually, before arriving at an overall result. Mr Quick identified the factors he took into account and gave a net weighting to each individual factor before arriving at an overall result. In our view, each analysis, of necessity involved judgments about the value to be placed on varying factors. Such assessments always have a level of subjective assessment, and opinions about the matters of fact and degree are notoriously matters about which reasonable minds can differ. Ultimately there is a considerable amount of subjective opinion and value judgment applied to the analyses. The difference in approaches made direct comparison between their conclusions more difficult.
Both Mr Quick and Dr Kerkin agreed Laurimar and the surrounding area is not disadvantaged and has strong levels of community cohesion. This was consistent with the opinion of Rev Dickins, and with the views of residents expressed in the DVD in which she participated. On balance, despite Mr Ahmet's concerns that an emerging community may not be as robust as an established community we accept these opinions.
Mr Quick, in reliance on the strong socio economic profile of the Laurimar area when compared to other areas within the City of Whittlesea and Melbourne, concluded that although there was a high level of homes purchased subject to mortgage, the vast majority of residents were without mortgage stress. In Dr Kerkin's opinion, the residents were nonetheless financially vulnerable. She applied the VAMPIRE Index, (Vulnerability Assessment for Mortgage, Petroleum and Inflation Risks and Expenses) which shows heightened vulnerability on that index for people living in areas such as Laurimar, on the city fringe of Melbourne.
In our view, despite the relative financial advantage of residents in Laurimar and the surrounding area, as demonstrated by the SEIFA, we consider the VAMPIRE Index is a useful measure of financial vulnerability and that the comforting picture painted by reliance solely on measures such as the SEIFA needs be tempered by an appreciation of the susceptibility of people in the Laurimar community to financial pressure should interest rates, petrol prices, or unemployment levels rise. The VCGR too found Laurimar residents were, although not socially and economically disadvantaged, vulnerable to financial stress.
Both agreed there was strong community support for a tavern or similar entertainment facility, and that it would fill an unmet need. They also agreed that the tavern proposal aligns with the overall strategic direction for the site.
Both agreed that the promise by George Adams to contribute $100,000 for a major infrastructure project and five annual contributions of $70,000 to local community groups was a significant positive benefit to the community.
Both agreed that the project would generate economic benefit through employment, although there was disagreement about the extent of the employment generated, and how much would be of benefit to the local community. Mr Quick considered there would be 'significant' new employment, both in the short term, during construction, and permanently, once the venue was operating. Dr Kerkin considered the economic benefits from employment would be small.
Mr Quick estimated 57 jobs would be generated during construction. We accept it is likely some, at least, would be filled by locals, and so generate financial benefit to the community during construction. We also accept his assessment that there would be some indirect benefits, particularly to those businesses which would service the needs of those employed during construction.
When considering the employment generated by the tavern itself once operating, we do not consider it appropriate to assess all employment generated by it, as much of it would be in non gaming positions. Mr Quick estimated 40 equivalent full time positions would be generated by the tavern, when operational. He did not put a figure on the gaming specific jobs. Dr Kerkin, in reliance on VCGR and other research data showing gaming was a low intensity employment, with approximately 30% of staff employed at gaming venues being associated with the gaming facilities, put the likely permanent employment figure at 2 - 3 equivalent full time positions. In addition, she considered the economic benefit was reduced because of the high rates of casual and part time employment in the hotel and gaming sector. In her view, the economic benefits were also countered, to some extent by social detriment. She pointed to recent Department of Justice research which identified staff working at gaming venues were at higher risk of developing gambling problems, with the risk increasing for those who work in the gaming lounges themselves.
We accept there will be short term and long term economic benefits associated with employment. In our view, those attributable to gaming will be modest. We also accept the evidence gaming related employment comes with some risk.
Dr Kerkin included a useful summary in her report on key issues identified in recent research on gaming which are relevant to assessing the social impacts of an egm venue. They are:

(1) People gamble for a variety of reasons - for entertainment, to win money, for social reasons, because of boredom, isolation and loneliness, or as an escape. There may be a lack of alternative entertainment options or barriers to accessing other forms of entertainment that encourage people to gamble.

(2) Problem gambling affects a small but significant number of people within the community and these figures increase dramatically for egm gambling. About a third of regular (weekly) egm gamblers are problem gamblers or moderate risk gamblers.

(3) The location of the gaming venue can influence problem gambling. ... Research and policy identify a strong link between accessibility of gaming venues (geographical, temporal and social) and gambling behaviour.

(4) Problem gambling increases if there is a high number of egm's in an area, in conjunction with increased expenditure. Areas of socio-economic disadvantage are more vulnerable to problem gambling. The spatial distribution of egm's in Victoria is uneven, and most egm's are located in areas of higher disadvantage.

(5) Severe health, social and financial implications for the problem gambler and their families, can have ramifications for service providers working to meet the needs of those with gambling problems.

(6) Identified triggers for people becoming problem gamblers are a major life event (such as the loss of a job, death of someone close to them, major illness).

(7) Gaming can provide entertainment and recreation for a community. Social accessibility (whether a venue is safe, fun, social and affordable) is an important factor for gamblers and a key element of enjoyment and benefit.

(8) Comparatively, egm gambling is an unsafe form of consumption. Harm minimisation strategies include consumer awareness information and venue risk management strategies.

(9) There is a positive and significant relationship between gaming expenditure and crime rates.

(10) Egm consumption is around twice as high in hotel gaming venues as opposed to club gaming venues.

Mr Quick's identification of matters relevant to assessing social impact was confined to a consideration of the risks of problem gambling, and to evaluating the support in the Ipsos community attitude survey to the tavern, with and without egm's.
Mr Quick concluded that the 'risk of elevated problem gambling was not high' for the following reasons:
- (a) there are legislative restrictions in place that attempt to minimise problem gambling behaviour;
- (b) the proposal provides a range of dining and entertainment options, with gaming machines being only part of the overall venue;
- (c) forty egm's was a modest number for a new hotel development of the scale and quality of the proposal;
- (d) the location and orientation of the venue, separated as it is from other town centre uses would not result in convenience gaming; and
- (e) the strength of the demographic profile of the region is such that there is a reduced risk of excessive gambling causing financial strain to local residents.
We consider the preferable approach is that adopted by Dr Kerkin when considering the factors to take into account when assessing the social impact of an egm venue. Mr Quick's analysis of the risks of problem gambling, relied predominantly if not entirely on the risk factors associated with social and economic disadvantage as measured by the SEIFA, and to the risk (which he considered was not present here) of convenience venues. He did not make any enquiries about the availability of any services for problem gamblers, or any other support services to residents in Laurimar and surrounding areas. He did not take into account the evidence of Mr Ahmet that there were no services available to problem gamblers in the area.
When considering Mr Quick's conclusion that the risk of elevated problem gambling was not high we would make the following observations. First, in our opinion, it is not correct to look at the risk of 'elevated problem gambling'. The risk to consider is the risk of problem gambling, not elevated problem gambling. That risk is not the only factor relevant to an assessment of whether the net economic and social impact of approval would be detrimental to the wellbeing of the community.
Even if the word elevated is removed from that formulation, we do not consider the reasons advanced by Mr Quick support his conclusion that the risk of problem gambling is not high. His first ground - that there are legislative restrictions aimed at minimising problem gambling behaviour is an argument that applies generally, that is to all gaming venues. There is nothing to indicate they would have more force in Laurimar than in any other gaming venue. The existence of such restrictions in themselves acknowledge the risk of problem gambling, and their stringency, the magnitude of the risk. We do not consider this a factor which affects an assessment of the level of risk of problem gambling for this proposal. In their final submissions, the applicant argued there needed to be clear evidence that the particular community or area has a level of risk beyond that which is associated with the provision of gaming generally in the community in order to find a risk of problem gambling associated with the proposal existed. We disagree. The question is not whether the risk of problem gaming resulting from this proposal is greater than the risk of problem gaming associated with other gaming venues, or concentration of gaming venues in an area. The question is whether there is a risk of problem gaming resulting from this proposal, and the weight we give to that risk.
There is force in the argument a venue offering a variety of entertainment or recreational options is preferable to one which offers only gaming. Balanced against that is the absence of other venues in Laurimar which offer dining, recreational and entertainment options. The proposal provides no choice for residents wanting to go to a hotel, bistro, sports bar, TAB or function room other than to go to one which includes a gaming room. In addition, although the building has been designed so the gaming room has ample natural light, and is sited so it does not face the supermarket or shop car park, and takes advantage of the lake frontage, the gaming lounge is located by the entrance. It is directly opposite the function rooms, and requires patrons accessing the lounge, bistro and sports bar to walk past it to access those areas. Its location makes the gaming area a prominent part of the venue, in effect the gateway to the other entertainment options.
We agree that 40 egm's is a modest number, compared to the gaming venues in the southern part of the municipality, most of which have 100 egm's. Although there is some evidence greater numbers of egm's can facilitate access by problem gamblers, and conversely, fewer egm's can make regular users more recognisable as such, we do not consider the 'modest number' to be of great significance in assessing the level of risk of problem gaming in this community. It is the presence of egm's in the only tavern, in the town centre, rather than the number which is the major consideration in our view. We note, too, the VCGR in its decision said it would be unlikely to approve an increase in numbers in the foreseeable future.
We do not consider the proposed tavern is properly described as a destination venue. It has many features of a convenience venue. The site is part of the town centre. Although divided from the main shopping area by Painted Hills Road, it is clearly integrated with, and part of the town centre. As we have already noted, our view confirmed the intimacy of scale and connection between the tavern site and the other parts of the town centre. The site is on the walking path between the school, the shops and the surrounding residential areas. There is an exit from the car park behind the shops and supermarket on to Painted Hills Road. It is proposed that the entry of the car park to the tavern will be directly opposite that exit. Although there are differences between the convenience of a gaming venue located directly between shops in the middle of a strip shopping centre, there is nonetheless a significant level of convenience of access to those walking or driving to the shops, school or the other facilities located within the town centre.
The VCGR in its reasons referred to the conundrum created by the planning requirements that new gaming venues must be in or on the edge of activity centres, and the fact that activity centres also must contain other facilities such as schools and shops. In our view, it is necessary to consider the size and location of the activity centre where it is proposed to permit the introduction of egm's and the nature of the other facilities in the activity centre, not simply whether the proposed venue is in an activity centre.
The convenience to the local community of the location of the tavern in the Laurimar town centre can be contrasted with the location of the Bridge Inn at Mernda, five kilometres away. The Bridge Inn, too, is located in a designated activity centre. However, the Bridge Inn is properly described as a destination venue. It is not part of a planned residential development like Laurimar. There is very little housing nearby. A large shopping complex which will house supermarkets and other large retail outlets is under construction for the diagonally opposite corner. The Bridge Inn is separated from that shopping complex by Plenty Road, a major road, and Bridge Inn Road, a major feeder road to Plenty Road for the housing developments, including Laurimar, nearby.
The Mernda activity centre has not been designed, as the Laurimar town centre has, as a traditional main street centre containing shops, cafes, restaurants, civic and community facilities, small businesses, educational offerings, recreation and leisure facilities and urban living. Unlike the Laurimar town centre, the Mernda activity centre has not been designed as a place that many people will walk or cycle to, or one which will generate a vibrant street life.[26]
For these reasons we do not accept Mr Quick's opinion the location and orientation of the venue would not result in convenience gambling.
It is clear this community ranks well, according to the SEIFA of social and economic disadvantage. Although socially and economically disadvantaged communities, particularly when presented with easy access to egm's have alarmingly high rates of egm expenditure, and increased rates of susceptibility to problem gaming, it does not follow that a robust socio economic profile indicates there is no, or little risk of financial strain from gaming, or that other problem gaming risk factors do not exist. As we have already indicated, we accept the broader factors relied on by Dr Kerkin as relevant to the assessment of risk of problem gaming.
Mr Quick and Dr Kerkin reached different conclusions on the level of community support for the proposal. This was due to the differences in the survey results relied on by them. Mr Quick relied on the survey conducted by Mr Phillip Calwell of Ipsos Australia, in May 2009. He surveyed 300 residents within a five kilometre radius of the suburbs of Laurimar, Doreen and Mernda and asked their response to the tavern proposal. The survey area included the suburbs of Whittlesea, Yan Yean, Woodstock, Arthurs Creek, South Morang and Yarrambat. Only 30 of those surveyed were from Laurimar, and a further 130 were drawn from Doreen and Mernda. The balance, 146, or just under half the respondents, were drawn from those suburbs falling within a five kilometre band of the Laurimar, Doreen, Mernda area.
When asked their attitude to the proposal overall, that is a tavern with a café bistro, lounge bar, sports bar, function rooms, gaming room and child play area, 73% supported it. When the proposal was broken down into its individual components, one could see a marked difference between support for those individual components:

● 84% supported a children's play area (73% strongly);

Opposition to individual components other than gaming ranged between 3% and 12%. Opposition to a gaming lounge was 44%. When told that the development was an all or nothing proposal, that is, that it would not proceed without approval for gaming machines, support for the proposal including gaming machines increased from 36% to 56%. Of the 44% who opposed the development of the gaming lounge, the numbers were almost equally divided between those who still opposed development when told the proposal was all or nothing, that is, dependent on gaming machine approval and those who, faced with that knowledge, supported the proposal overall. Forty-two percent still opposed the development with the gaming lounge, whilst 45% were prepared to support the development if the only way for the proposal to proceed was to accept a gaming lounge as part of it.

Dr Kerkin relied on the survey conducted by Mr David Lynch of the Centre for Regional Innovation and Competitiveness at the University of Ballarat in January 2011. He surveyed 250 people, agreed to be a statistically similar number to those surveyed by Ipsos. This survey group was drawn from a smaller area, within approximately a 2.5km radius of the town centre of Laurimar. In that survey, 60% of respondents opposed the introduction of egm's (44% strongly), while 20% supported their introduction, (8%) strongly. Seventy-six percent supported the building of the tavern if it did not have egm's. When asked to indicate their level of support if the installation of the egm's was necessary for it to proceed, 52% opposed (34% strongly) the installation of the machines. Only 31% supported (10% strongly) the building of the tavern if installation of the egm's was necessary for the project to proceed.
In our view, the difference in community attitudes to the installation of egm's in the proposed tavern is for the most part attributable to a greater community awareness of the proposal by the time of the University of Ballarat survey was conducted and in part to the survey group being drawn from a smaller area, covering essentially the Laurimar community only. The University of Ballarat survey was conducted after VCGR had approved the original application, and the application for review was pending. As Rev Dickins made clear, the Laurimar Community Action Group had been active in informing the community about the proposal and mobilising community opposition. And, significantly, the respondents were drawn from a smaller area. It was accepted both by Mr Calwell and Mr Lynch that opposition to a proposal for the introduction of egm's was generally greater the closer people were to the proposed location. It was accepted those closest were most likely to be affected (positively or negatively) by the proposal, as research shows that generally, most people travel up to 2.5 kilometres to game at a venue with egm's, and most will not travel beyond five kilometres to attend such a venue.
In hindsight, each survey contained some questions which may have influenced the answers of some respondents, but in our opinion, the surveys were each in general terms, fairly and competently conducted, followed a similar methodology, and produced statistically reliable results. We consider the University of Ballarat survey to be the more reliable and representative of the views of the Laurimar community at the time of the hearing before us. The pool of those surveyed was drawn from the community most likely to feel the impact, whether positive or negative, of a gaming venue in their midst. It was conducted at a time of greater community awareness than existed at the time of the Ipsos survey.
In our view, both community surveys show that there is significant and strong community opposition to the introduction of egm's into Laurimar. In the face of strong support for a tavern, and confronted by an all or nothing proposition, the opposition to egm's is still significant. Although it is within an applicant's right to choose what type of project it wishes to develop, and to make the installation of egm's a non negotiable part of the proposal, the weight to be given to the response of those surveyed to an all or nothing question must be evaluated against the strength of support for a tavern without egm's, and to the strength of opposition to egm's, if residents have a choice between a tavern with egm's and a tavern without them.
It is clear the residents of Laurimar want a venue which provides opportunities for families, including families with young children, to socialise, to eat out, and drink alcohol, to watch sport on a large screen television, and to host functions. As a community with a large number of families, they also want a family friendly place, where children are catered for. There is no such place at present at Laurimar. The Town Development Plan has always contemplated such a venue, on the very site the subject of this application. That in our view explains the strength of overall support for the proposal, and also the response to the all or nothing question.
In assessing community attitudes to the introduction of egm's, Dr Kerkin also drew on a 2009 survey of community attitudes to egm's across the whole of the City of Whittlesea, and the results of a workshop conducted by Rev Dickins through the Laurimar Residents Community Action Group. The City of Whittlesea survey showed 69% of respondents were opposed to egm's in local venues. This result is largely consistent with other research findings about the level of opposition to egm's in local venues across Victorian communities. Rev Dickins made it clear the workshop attendees were a self-selected group. The workshop findings were not put forward as representative of the views of the whole community. They were put forward as a demonstration of the strength of feelings of those who chose to attend the workshop. Although the workshop results cannot be treated in the same way surveys such as the Ipsos and University of Ballarat surveys can be, the opinions expressed in the workshop are consistent with those expressed in the community wellbeing questions put to the respondents to the University of Ballarat survey. We view the opposition to egm's expressed in the DVD in a similar light. Whilst lacking the statistical validity of the Ipsos and University of Ballarat surveys, the views are consistent with the views on community wellbeing referred to in the University of Ballarat survey.
In Romsey, the Court of Appeal held it was for the decision maker to decide what weight should be given to evidence regarding community attitudes to the introduction of egm's. The weight will depend upon the nature, extent and cogency of the evidence.
The weight to be given to community views in this case is considerable. There is a stark contrast between the strength of support for the non-gaming aspects of the proposal and the level of support for the gaming aspect. There is strong opposition to the gaming aspect. The strength of opposition to the introduction of gaming is greater in the more recent survey, which, as we have found, is more representative of the current views of the community most directly affected and benefited by the proposal. That the strength of opposition to the introduction of egm's, and strength of support for the non-gaming aspects of the proposal comes from a cohesive community, in our view, adds to the weight to be given to the survey responses and to community attitudes.
It was telling that the University of Ballarat survey showed such significant numbers who considered the introduction of egm's would have a negative impact on their sense of community, and wellbeing in the community. Although only a small number of respondents felt they personally would be at risk from problem gambling, there was clearly a strong concern that the introduction of egm's would change the nature and identity of the community which they had chosen to join.

We are satisfied the proposal has the following positive social and economic impacts:

(a) The community lacks a tavern, and the proposal will fill an unmet need for one. It will have a positive impact on the currently very limited entertainment options in the area.

(b) The site is one which is designated in the town centre development plan for a tavern. The tavern proposal is in accordance with the overall strategic direction for the site.

(c) There will be economic benefits from employment both during construction and once the tavern is operational. The economic benefits from employment directly related to gaming are modest compared to those generated by the non-gaming aspects of the proposal.

(d) There is significant economic benefit from the community support program.

(e) There will be economic benefits from the return of percentage of gaming expenditure to the broader community.

(f) The community is cohesive and is not socially and economically disadvantaged. It is better equipped than more disadvantaged communities to absorb spending on entertainment, including gambling. It is not as vulnerable to the risk of problem gambling as is a community which does not have those advantages.

(g) Community surveys indicate the respondents do not generally fear they, personally, will be at risk of problem gambling, and consider access to egm's would have a small positive impact on their individual social lives.

We are satisfied the proposal has the following negative social and economic impacts:

(a) There is strong community opposition to the introduction of gaming machines into the community, and to including a gaming room in the proposed tavern. That strength of opposition is demonstrated in part by the contrast between the high levels of support for the other aspects of the proposal, compared to the introduction of gaming machines. Despite the strong support for a tavern, a significant percentage of the community is still prepared to oppose the proposal as a whole if it was dependent for development upon approval of egm's.

(b) The site of the tavern, in the town centre, along the pedestrian access between the town centre, school and residential areas, gives it significant features of a convenience venue, which increases the risk of problem gambling.

(c) The absence of other entertainment options in the area means that those who wish to use the other facilities offered by the proposal can only do so at a venue that also provides gaming. Introduction of egm's in the proposed tavern would make them highly accessible in a community where they currently do not exist and where there are limited alternative options for entertainment.

(d) The modest economic benefits from employment must be balanced against the evidence of increased risk of problem gambling of people employed in gaming venues.

(e) Although not socially and economically disadvantaged, the Doreen and Laurimar communities have significant indicators of financial vulnerability and susceptibility to other stressors which make them vulnerable to the risk of problem gambling. They include: home mortgage commitments, susceptibility to interest rate and petrol price increases, and the lag in provision of facilities and services in new and rapidly growing communities. The consequences of problem gambling include social, financial and health consequences for problem gamblers and their families.

(f) There are no services available for problem gamblers in the Laurimar area. Such services that exist in the City of Whittlesea are concentrated in the south which has very high levels of egm expenditure, and a demonstrated need for more services than currently exist to address the social, financial, and health consequences of problem gambling.

(i) Residents of the Laurimar and Doreen communities have identified a range of social concerns linked to the introduction of egm's that will cause unhappiness or discontent within the community.

(j) Respondents to the University of Ballarat survey indicated that egm's at Laurimar would have a small but negative impact on both their connection to the community and their satisfaction with their current location.

In addition, we note that the Bridge Inn at Mernda, less than five kilometres away from the Laurimar town centre has approval for the introduction of 40 egm's. Five kilometres is within the distance research shows people will generally travel to access egm's. It is not a convenience venue, but is accessible to those Laurimar residents who wish to gamble on egm's.
In this case, the negative social and economic disadvantages strongly outweigh the positive social and economic benefits of the proposal. In our opinion, the social and economic impact of approval for the introduction of egm's into the Laurimar community would have a significant detrimental effect on the wellbeing of a significant proportion of the local community.
It follows that even if it were open to give planning approval, we do not consider the applicant has satisfied the criteria in s 3.3.7 of the GR Act and we would not have granted approval of the premises as suitable for gaming.

The decision of the Responsible Authority is affirmed. No permit is granted.

The decision of the Victorian Commission for Gambling Regulation is set aside.

The use and installation of gaming machines is Prohibited pursuant to Clause 52.284 of the Whittlesea Planning Scheme as the site is within a strip shopping centre as defined in that clause.
The extent of car parking reduction is excessive having regard to the amount of floor space/seating proposed, the nature of the use and the car parking supply for this site as referred to in the Laurimar Town Centre Development Plan.

The protrusion of the basement above natural ground level results in an unattractive built form presentation to the street and park frontages and fails to allow integration with the adjacent parkland contrary to the Laurimar Town Centre Design and Development Plan.

The landscape plan provides inadequate detail, inappropriate planting and fails to provide connection with the approved landscaping of the adjacent parkland.
The location is inappropriate for gaming machines given the characteristics of the activity centre that includes convenience shopping, predominantly retail use and educational uses.
The site location is inappropriate for gaming machines given the proximity to pedestrian routes used especially by school children.
The social and economic impacts of the location of the gaming machines will not result in net community benefit.

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.

This does not apply in either of the following circumstances:

Clause 52.28-3 or Clause 52.28-4 specifically prohibit a gaming machine.
the gaming machine is in an approved venue under the Gambling Regulation Act 2003 on 18 October 2006 and the maximum number of gaming machines for the approved venue on 18 October 2006 is not exceeded.

52.28-3 Prohibition of a gaming machine in a shopping complex

Installation or use of a gaming machine is prohibited on land specified in a schedule to this clause.

This does not apply to a gaming machine in an approved venue under the Gambling Regulation Act 2003 on 18 October 2006; and the maximum number of gaming machines for the approved venue on 18 October 2006 is not exceeded.

52.28-4 Prohibition of a gaming machine in a strip shopping centre

Installation or use of a gaming machine is prohibited in a strip shopping centre if:

the strip shopping centre is specified in the schedule to this clause.
the schedule provides that a gaming machine is prohibited in all strip shopping centres on land covered by this planning scheme.

A strip shopping centre is an area that meets all of the following requirements:

it is zoned for business use;
it consists of at least two separate buildings on at least two separate and adjoining lots;
it is an area in which a significant proportion of the buildings are shops;
it is an area in which a significant proportion of the lots abut a road accessible to the public generally;

but it does not include the Capital City Zone in the Melbourne Planning Scheme.

The requirements of Clause 52.28 as in force immediately before 18 October 2006 continue to apply to a gaming machine referred to in a transitional application and permitted in the determination of a transitional application if a planning permit was not required immediately before 18 October 2006 for that gaming machine.

In this clause, "transitional application" means an application or request made, and not determined, before 18 October 2006 to the Victorian Commission for Gambling Regulation under the Gambling Regulation Act 2003 for either:

an approval of premises for gaming, or variation of approval of premises for gaming, or
amendment of conditions of a venue operator's licence to vary the number of permitted gaming machines for an approved venue.

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.
Whether the gaming premises provides a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons.

[3] Elements already developed in or near the town centre include a supermarket, shops, cafes, take away food premises, a primary school and a community activity centre.

[4] Solomon v Licensing Court of New South Wales & Anor [2000] NSWSC 974 paragraphs [16]-[27] in particular.

[5] Crestline Architects Pty Ltd v Greater Geelong CC & Ors [1998] VCAT 100 at [24].

[6] We do not think that the proponent was seeking to imply that the subject land was a separate and distinct area in its own right. We nevertheless observe that such an approach is inconsistent with the purpose of the clause and is in any event immaterial, if the subject land is within a larger area which is a strip shopping centre.

[7] This is essentially the approach adopted by the tribunal in Crestline Architects Pty Ltd v Greater Geelong CC & Ors [1998] VCAT 100.

[8] The street names Laurimar Boulevard and Bulimba Drive change south of Hazel Glen Drive.

[10] A much more cohesive whole than was the case in Crestfield with the Belmont Shopping Centre.

[11] The key purpose of the zone is to provide for a range of uses and the development of land in accordance with comprehensive development plan incorporated in this scheme.

[12] Laurimar Town Centre Development Plan, July 2007 - page 4.

[13] Prizac Investments v Maribyrnong CC [2009] VCAT 2616 at [25].

[14] Plan of Subdivision PS634389G registered on 22 December 2010.

[16] [2010] VCAT 1347, see Appendix A condition 6.

[20] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and Anor, [2008] VSCA 45; (2008) 19 VR 422 at [7].

[23] Social and Economic Index For Areas.

[26] Laurimar Town Centre Development Plan.

Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534

At a glance

Court

Decision date

Before

Source

Judgment (201 paragraphs)

Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 (7 April 2011)

Parties

Legislation Cited (1)

Cases Cited (1)