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

Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 | Case summary | Zoe

[14]

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]

[52]

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.

[55]

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:

[65]

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.

[74]

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.

[83]

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.

[86]

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:

[121]

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.

[123]

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:

[134]

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:

[137]

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.

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)