RED DOT DECISION SUMMARY
The practice of VCAT is to designate cases of interest as ‘Red Dot Decisions’. A summary is published and the reasons why the
decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part
of the decision or reasons for decision.
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P1697/2008
PERMIT APPLICATION NO. TP708/2007
VCAT REFERENCE NO. B18/2008
OCCUPATION AND BUSINESS
REGULATION LIST
IN THE MATTER OF
Prizac Investments Pty Ltd & George Adams Pty
Ltd v Maribyrnong City Council RAIDIM &
Others
Maribyrnong City Council v Victorian
Commission for Gaming Regulation & Footscray
Football Club Ltd
BEFORE
Jeanette G Rickards, Senior Member
Peter O’Leary, Member
NATURE OF CASE
Permit granted for Footscray Football Club social venue at
Edgewater including the installation of 70 electronic gaming
machines
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE
LEGISLATION – interpretation or
application of statutory provision
Section 3.3.7 Gaming Regulation Act 2003 – no net detriment to
well being of the community of the municipal district in which
the premises are located
PLANNING SCHEME – interpretation
or consideration of VPP provision
Clause 52.28 Maribyrnong Planning Scheme whether land
within a strip shopping centre prohibiting the installation of
gaming machines
POLICY – interpretation or
application of policy
Application of the development controls in the Comprehensive
Development Zone Schedule 3
APPLICATION – significant,
interesting or unusual use or
development; application of policy,
provision or principle; or
circumstances
Relocation of gaming machines into a new venue
Impact on well-being of community
SUMMARY
Of the uses proposed a planning permit is only required for a ‘restricted place of
assembly’, the installation and use of egms (unless prohibited), to use the land to sell or
consume liquor, a reduction in the number of car spaces to be provided and to exceed
the plot ratio of 1.5. The other uses proposed being a residential hotel, food and drink
premises, function centre and office are all as of right.
There is no requirement for a permit for buildings and works as the proposed
development is considered to be generally in accordance with an approved development
plan.
The defined area meets three of the four requirements under clause 52.28- 4, but does
not meet the requirement of being in an area ‘zoned for business’. The use of gaming
machines on the subject site is not prohibited.
The strategic intent for the Edgewater Estate is broad the provisions do not limit, but
rather encourage, employment opportunities and a mix of entertainment and other
ancillary uses which leads us to conclude the proposal for a restricted place of assembly
is appropriate.
The revised layout of the development addresses a number of amenity concerns raised
by the residents in relation to car parking and noise.
The gaming component within the venue is a small part of the overall facility. It is
significant that the venue is to be a club rather than a hotel.
The location and premises are appropriate for the location of gaming machines.
The positive benefits of the proposal are that there will be no increase in the number of
gaming venues in Maribyrnong. The number of gaming machines in highly
disadvantaged areas are to be relocated to Edgewater a less disadvantaged area.
There will be an overall reduction in gaming expenditure in the municipality. The venue
will provide a social facility for the new suburb of Edgewater. The proposal will
provide construction and ongoing employment benefits.
The make up of the community will not change as a result of the presence of gaming at
Edgewater as the residents currently live within close proximity to gaming venues.
VCAT Reference No. P1697/2008, B18/2008
Page 2 of 65
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRATIVE DIVISION
PLANNING AND ENVIRONMENT LIST
VCAT REFERENCE NO. P1697/2008
PERMIT APPLICATION NO. TP708/2007
VCAT REFERENCE NO. B18/2008
OCCUPATION AND BUSINESS
REGULATION LIST
CATCHWORDS
Section 77 Planning and Environment Act 1987 – Comprehensive Development Zone - 3 storey building
– generally in accordance with approved development plan – permit triggers - cl 37.02 restricted place of
assembly, cl 52.28 installation of gaming machines, cl 52.27 to sell & consume liquor, cl 52.06 reduction
in car parking, cl 14 CDZ3 increase in plot ratio – whether a strip shopping centre -suitability of location
and premises – social & economic impacts – net community benefit – amenity impacts – noise, traffic
Section 3.3.14(2) Gambling Regulation Act 2003 - 70 electronic gaming machines – net economic social
impact not detrimental to well-being of community – vulnerability of community to problem gambling reduction in number of gaming machines in Maribyrnong – no increase in gaming facilities in
Maribyrnong – reduction in gaming expenditure – employment opportunities – impact of new Gaming
Regulations 2012
P1697/2008
APPLICANTS
Prizac Investments Pty Ltd and
George Adams Pty Ltd
RESPONSIBLE AUTHORITY
Maribyrnong City Council
RESPONDENTS
Residents Against Inappropriate Development
in Maribyrnong Inc (RAIDIM) & Others
Henry & Niola Glowacki
B18/2008
APPLICANT
Maribyrnong City Council
RESPONDENTS
Victorian Commission for Gambling
Regulation
Footscray Football Club Ltd
Residents Against Inappropriate Development
in Maribyrnong Inc (RAIDIM)
SUBJECT LAND
31 Edgewater Boulevard, Maribyrnong
WHERE HELD
Melbourne
BEFORE
Jeanette G Rickards, Senior Member
Peter O’Leary, Member
HEARING TYPE
Hearing
VCAT Reference No. P1697/2008, B18/2008
Page 3 of 65
DATES OF HEARING
10, 11, 12, 15 – 18, 22 – 25, 29 - 30 June 2009,
1 – 2, 13 – 14 July 2009 and 7 August 2009
DATE OF ORDER
15 December 2009
CITATION
ORDER
P1697/2008
1
The decision of the Responsible Authority is set aside.
2
In permit application TP708/2007 a permit is granted and directed to be
issued for the land at 31 Edgewater Boulevard, Maribyrnong in accordance
with the endorsed plans and on the conditions set out in Appendix A. The
permit allows:
 Use of the land as a Restricted Place of Assembly (Licensed Club)
pursuant to clause 37.02-1.
 Sale and consumption of liquor under a Full Club Liquor Licence
and an On Premises Liquor Licence pursuant to clause 52.27.
 Use and installation of not more than 70 electronic gaming
machines pursuant to clause 52.28.
 A reduction in the requirement for car-parking for a Residential
Hotel, Restricted Place of Assembly (Licensed Club) and Function
Centre/room pursuant to clause 52.06.
 An increase in plot ratio pursuant to clause14 of CDZ3.
B18/2008
1
The decision of the Victorian Commission for Gambling Regulation dated
24 December 2008 is affirmed subject to the following conditions:

That approval does not take effect until the Commission is satisfied
that the grant of approval is in compliance with the direction made by
the Minister for Gaming under section 3.2.4 of the Act and that, in
addition, eleven gaming machines have been removed from the City
of Maribyrnong.

That approval does not take effect until the Commission has notified
the applicant in writing that the premises have been inspected for the
purposes of section 3.3.7 (1) (b) of the Act and the commission is
satisfied that the premises are suitable for the management and
operation of gaming machines.

That approval does not take effect until the applicant satisfies the
Commission that the applicant has obtained a permit under the
VCAT Reference No. P1697/2008, B18/2008
Page 4 of 65
Planning and Environment Act 1987 permitting the premises to be
used for gaming on gaming machines, or that use of the premises for
gaming on gaming machines would not contravene the planning
scheme that applies under the Planning and Environment Act 1987.
Jeanette G Rickards
Senior Member
VCAT Reference No. P1697/2008, B18/2008
Peter O’Leary
Member
Page 5 of 65
APPEARANCES
For Applicants/Second
Respondent
Mr C Townshend SC and Mr N Tweedie,
Barristers instructed by Bazzani Scully Brand
They called the following witnesses:
 Mr P Calwell, Navis Group Survey
 Mr D Smorgon, President, Footscray
Football Club Ltd
 Ms G Hamilton, Director, Footscray
Football Club Ltd
 Mr R Stubbs, Chief Operating Officer,
Footscray Football Club Ltd
 Mr A Catterall, General Manager – Strategy
& Club Support, AFL
 Mr C Christoforou, Teacher
 Mr A Biacsi, Town Planner
 Ms S Jordan, Town Planner
 Mr C O’Hehir, Actuary, Ernst and Young
 Mr R Whitehouse, Divisions Manager of
Channel Strategy for Tattersall’s Gaming
Pty Ltd
 Mr R Quick, Social & Economic Impact
 Ms E Hui, Acoustic Engineer
 Mr S Hunt, Traffic Engineer
 Mr C Rose, Chief Executive, Footscray
Football Club Ltd
VCAT Reference No. P1697/2008, B18/2008
Page 6 of 65
For Applicant/Responsible
Authority
Mr J Larkins and Mr H Jackson , Barristers
instructed by Maddocks
They called as witnesses:
 Mr P McNabb, Planning & Economic
 Ms K Kerkin, Social Impact Assessment
 Mr G Gattini, Town Planner
 Ms K Thompson, CEO Maribyrnong CC
 Mr C Gill, Forensic Accountant, Ferrier
Hodgson
 Dr C Livingstone, Senior Lecturer, Health
Social Sciences
 Mr D Hubner, Metropolis Research Pty Ltd
For Respondents:
Victorian Commission for
Gaming Regulation
Dr K Emmerton SC, Barrister and Ms J
Kummrow instructed by Ms L Corneliusen,
Victorian Commission for Gaming Regulation
RAIDIM
Ms M Rutherford , Mr E De Fazio, Mr
Servoski and Ms Campbell
Henry & Niola Glowacki
Mr I Pitt SC, Solicitor, Best Hooper
He called the following witness:

Others
Mr R Milner, Town Planner
Mr J McKenzie, Mr C Duncan, Mrs J Warlond,
Mr K Warlond, Ms M McKenzie, Ms M Tam,
Ms P Fattor, Ms S Xia, Ms M Ilic, Ms U
Guttierrez, Mr P Ellis, Ms M De Fazio and Mr
A Schaub in person
VCAT Reference No. P1697/2008, B18/2008
Page 7 of 65
INFORMATION
Description of Proposal
P1697/2008 - Restricted Place of Assembly,
comprising gaming facilities, function rooms,
bistro, cafe, accommodation with a car parking
dispensation.
B18/2009 – the approval of premises as
suitable for gaming (installation of 70 EGMs)
Nature of Applications
P1697/2008 - Section 77 Planning and
Environment Act 1987
B18/2009 - Section 3.3.14(2) Gambling
Regulation Act 2003
Planning Zone and Overlays
Comprehensive Development Zone – Schedule
3 - (cl 37.02 CDZ3)
Environmental Audit Overlay (cl 45.03 EAO)
Development Contributions Plan Overlay –
Schedule 2 – (cl 45.06 DCPO2)
Planning Permit triggers
Cl 37.02 – restricted place of assembly
Cl 52.06 – reduction in car parking
Cl 52.27 – licensed premises
Cl 52.28 – installation and use of Electronic
Gaming Machines (egms)
Cl 14 CDZ3 – exceeds plot ratio of 1.5
Cl 45.03-1 – permit condition required
Cl 45.06-1 – permit condition required
Land description
31 Edgewater Boulevard, Maribyrnong a relatively large parcel of vacant land with
extensive fill that rises as it extends eastwards.
The site has a frontage of 70 metres, a depth of
about 75 metres and a land area of 5032 square
metres bounded by Edgewater Boulevard to the
south, Case Street to the west, Thomas Homes
Street to the north and Skyline Drive to the
east. The land is east of a recently developed
Aldi store/supermarket on the western edge of
the Edgewater Estate, a recently developed
housing and mixed use estate.
VCAT Reference No. P1697/2008, B18/2008
Page 8 of 65
Cases referred to
Branbeau Pty Ltd v Victorian Commission of
Gambling Regulation [2005] VCAT 2006;
Coopers v Surfcoast SC [2000] VCAT 2180;
Cope v Hobsons Bay CC [2004] VCAT 2487;
Crestline Architects Pty Ltd v City of Greater
Geelong & Ors [1998] VCAT 100 (20 July
1998);
Kilsyth and Mountain District Basketball
Association Inc v Maroondah CC [2007]
VCAT 2;
M & S Whelan Investments Pty Ltd v Alpine SC
[2008] VCAT 291;
Macedon Ranges SC v Romsey Hotel Pty Ltd &
Anor [2008] VSCA 45 (19 March 2008)
Melbourne CC v Becton Corporation Pty Ltd
[2003] VCAT 1077;
Poci Brothers v Bayside CC [2003] VCAT
1884;
Romsey Hotel Pty Ltd v Victorian Commission
for Gaming Regulation & Macedon Ranges SC
[2009] VCAT 2275;
Shimmerbridge Pty Ltd v Bayside CC [2008]
VCAT 1428;
TEAC Australia v Port Phillip CC [1999]
VCAT 1222
WG Elms v Yarra Ranges SC (1998) 22 AATR
174
VCAT Reference No. P1697/2008, B18/2008
Page 9 of 65
REASONS
Background
1
The Tribunal was informed the application is a joint venture between
Prizac Investments Pty Ltd, George Adams Pty Ltd and the Footscray
Football Club trading as the Western Bulldogs (the Club). The proposed
venue at 31 Edgewater Boulevard, Maribyrnong is to operate as the
Club’s primary social club.
2
The owners of the land, Prizac Investments Pty Ltd and George Adams
Pty Ltd said to be part of the Tatts Group Limited have applied for a
planning permit and the Club has applied for the installation of 70
electronic gaming machines (egms) at the venue.
3
The venue, to be known as the ‘Edgewater Club’, is to be contained
within a three/four level building, built to the boundary. A common
pedestrian entry is to be off Edgewater Boulevard at the corner of Case
Street. Car access is to be provided off Case Street.
4
The building is to contain at ground level a bistro with seating for 250
patrons with an associated outdoor area; a sports bar with associated
external area with a capacity of 85 patrons; a gaming lounge with 70 egms
and associated soft lounge areas and external area; a café with seating for
up to 50 patrons with associated external area and two flexible function
rooms that can also be used as one large function space for up to 290
patrons.
5
The first and second levels of the building are to contain a total of 59
accommodation rooms located around the eastern and southern perimeter.
A total of 329 car spaces are to be provided on the site, 33 car spaces for
staff at ground level and the remainder at the first, second and third level.
6
The Responsible Authority, Maribyrnong City Council refused on 21 May
2008 an application for a planning permit “to construct building and
works for a 4-storey building containing a residential hotel, bistro, café
and to use the land for the purpose of a function centre and gaming room,
including installation of 65 electronic gaming machines, liquor licence
and reduction in the car parking requirement”.
7
The Responsible Authority’s grounds of refusal included that the gaming
venue is prohibited, as the subject site is part of a strip shopping centre;
the gaming venue will adversely affect the social and economic well
being of the Maribyrnong community; a reduction in the car parking to be
provided has not been justified and may have an impact on the amenity of
the area; the car parking areas have not been designed appropriately, and
the proposal will adversely affect the amenity of the surrounding and
future residential area.
VCAT Reference No. P1697/2008, B18/2008
Page 10 of 65
8
On 24 December 2008 the Victorian Commission for Gaming Regulation
(the VCGR) determined to approve the Club’s application to install 70
egms in the proposed development at Edgewater.
PLANNING
Issues for consideration
1 Is the subject land within a strip shopping centre and thereby prohibiting
the proposed gaming component of the development?
2 If not prohibited what planning permits are required for the proposal?
3 Is the proposed location and premises appropriate,having regard to the
social and economic impacts of the location of gaming machines?
4 Will the net economic and social impact of approval be detrimental to the
well being of the community of the municipal district in which the
premises are to be situated?
Strip Shopping Centre
9
It is appropriate to set out in full the particular provision relating to
gaming in the planning scheme. This is found at clause 52.281 which
provides:
52.28-1 Purpose
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.
52.28-2 Permit requirement
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 prohibits 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.
1
Amendment S69 December 1997
VCAT Reference No. P1697/2008, B18/2008
Page 11 of 65
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.
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.
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.
10
For the purposes of clause 52.28-2 Highpoint Shopping Centre,
Maribyrnong and Metro West Shopping Centre, Footscray are prohibited
shopping complexes. For the purposes of clause 52.28-4 a gaming
machine is prohibited in all strip shopping centres on land covered by the
Maribyrnong planning scheme. The particular strip shopping centres
within Maribyrnong are not specified, therefore an assessment of the area
in which the subject land is located is required to be undertaken, taking
into account the requirements specified in clause 52.28-4.
11
The various planning witnesses expressed their views as to whether the
subject land was located within a strip shopping centre. A strip shopping
centre under clause 52.28 is a particular creature within the meaning of
the clause. To meet the definition of the clause a persons individual views
as to what a strip shopping centre might be is of little relevance.
12
What is required is for an area to be defined this does not need to extend
to a whole centre, nor does one consider each of the four requirements and
then define the area as the one that satisfies each of the requirements. It is
accepted that if an area is stated as such under the first point in clause
52.28-4 then there is no question. Whether it fits within the defined terms
VCAT Reference No. P1697/2008, B18/2008
Page 12 of 65
is a matter to be considered when incorporated into the planning scheme.
It may not necessarily fit within the defined terms.
The Area
13
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.
14
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.
15
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.
16
Mr Gattini did not define an area, whereas Mr Biacsi and Ms Jordan
generally focused on the wider area and Mr Milner and Mr McNabb
during cross examination were prepared to accept the wider area
described above.
17
The area in our view is considered to be encompassed by the roads being
Gordon Street to the west, Thomas Holmes Street to the north, Skyline
Drive to the east and Edgewater Boulevard to the south between Skyline
Drive and Gordon Street.
Zoned for business use
18
The area is zoned Comprehensive Development not Business under the
planning scheme. In previous determinations before the Tribunal in
relation to determining whether an area is a strip shopping centre, the
areas referred to have all been located within specified business zones
under the relevant planning schemes2. It appears from these decisions that
reference to the zoning within the planning scheme was the appropriate
way to consider this requirement.
19
Mr Pitt referred to the Macquarie dictionary meaning of ‘zoned’. This
does not take the understanding further than referring to a zone within the
planning scheme. The planning scheme zones refer to areas which differ
2
Crestline Architects Pty Ltd v City of Greater Geelong & Ors [1998] VCAT 100 (20 July 1998); M & S
Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291; Shimmerbridge Pty Ltd v Bayside CC [2008]
VCAT 1428
VCAT Reference No. P1697/2008, B18/2008
Page 13 of 65
in some respect or are distinguished for some purpose from adjoining
zoned areas.
20
There are four zones contained within the Maribyrnong Planning Scheme
specifically relating to business. These zones relate to specific areas
within the Municipality of Maribyrnong. They adjoin other zones that
differ from and are distinguished from these zones by name and purpose.
The Business zones all have as one of their purposes ‘to encourage the
intensive development of business centres, offices and associated
commercial, manufacturing and industrial uses’3.
21
There is no specific focus on business uses found within the purposes of
the CDZ rather one of its purposes is to provide for a range of uses and
the development of land in accordance with a comprehensive
development plan incorporated into the planning scheme. For the
purposes of CDZ3 the Riverside Physical Framework Plan No 1(1992) is
the incorporated plan for “Footscray Land, Gordon Street” in which the
subject land is located.
22
The subject land is located within an area denoted as ‘mixed use’ on the
incorporated plan. The majority of as of right uses permitted within the
CDZ3 are required to be located within a mixed use area shown on an
approved development plan.
23
Whilst the as of right uses vary in a Business zone as well as the CDZ,
there is not in the CDZ, an overall emphasis on the use of the land within
the zone for business.
24
It is acknowledged that within the business zones whilst business uses
may be as of right, there is still a need for a permit for buildings and
works, similarly in the CDZ there is a requirement to comply with the
incorporated development plan. The requirement in clause 52.28-4 refers
to being zoned for business use; it does not go to the next layer of
requirements.
25
In our view the land is not zoned for business use as there is no specific
purpose that directs the land to be used for business over and above other
uses .
It consists of at least two separate buildings on at least two separate and
adjoining lots;
3
26
Within the area are four dwellings with frontages to Edgewater
Boulevard. Two separate buildings on at least two separate and adjoining
lots.
27
The Aldi Supermarket and the three specialty shops, whilst two separate
buildings, were not considered to be on two separate and adjoining lots, as
Clauses 34.01, 34.02, 34.03 and 34.04 Maribyrnong Planning Scheme
VCAT Reference No. P1697/2008, B18/2008
Page 14 of 65
they are separated by a walkway/driveway, said to be part of common
property.
28
‘Lot’ is defined in clause 72 of the planning scheme as ‘a part (consisting
of one or more pieces) of any land (except a road, a reserve, or common
property) shown on a plan, which can be disposed of separately and
includes a unit or accessory unit on a registered plan of strata subdivision
and a lot or accessory lot on a registered cluster plan’.
29
It was submitted that a narrow interpretation of ‘adjoining’, that is that
each lot touch should not be applied rather a broader view should be
adopted that included properties across a roadway. Whilst it may be
conventional planning practice to advertise to properties across a roadway
under the provisions of sections 52 of the Planning and Environment Act
1987 which refers to giving of notice to adjoining lots, this does not mean
that ‘adjoin’ should be given a broader view4. Any reference to ‘abut’ in
the fourth dot point does not broaden the meaning of adjoin.
30
The dictionary definitions of both words indicate a similar meaning.
‘Adjoin’ to be in connection or contact with; abut on, to lie or be next, or
in contact. ‘Abut’ (sometimes followed by on or against) to be adjacent,
join end to end, make contact with one end’5.
31
There is a building close to the corner of Gordon Street and Edgewater
Boulevard which contains a restaurant and takeaway food shop. There is a
building to the east of this building on Edgewater Boulevard which
contains a bakery, Thai restaurant, Deli, organic food store and the sales
and information centre for the Edgewater Estate. The two lots containing
these buildings are separated by a road.
32
The only two buildings contained on two separate and adjoining lots
located within the area are the dwellings on the southern side of
Edgewater Boulevard.
It is an area in which a significant proportion of the buildings are shops;
4
5
33
The area referred to consists of eight shops being the supermarket, a
butchers shop, fruit and vegetable shop, chicken shop, organic food store,
deli, bakery and takeaway food shop.
34
Whilst takeaway food premises is separately defined under the planning
scheme and does not fall within the definition in the planning scheme of
shop, the ordinary meaning of shop, in relation to this section of the
clause is preferred to the definition within the planning scheme. Previous
Tribunal determinations have accepted that this ordinary meaning should
be given, as to the person in the street, a takeaway food premises is a
Coopers v Surfcoast SC [2000] VCAT 2180 at [30]
Macquarie Dictionary 4th Edition
VCAT Reference No. P1697/2008, B18/2008
Page 15 of 65
shop6. Even if the planning scheme definition of shop was adopted and
the two takeaway food premises disregarded this would leave six shops in
nine buildings, four of which are dwellings and one office building.
35
Pedestrian activity was referred to in a number of the previous Tribunal
decisions and appears to have been an element taken into consideration as
to whether people would frequent the area in the course of carrying out
their daily shopping needs7. This is not one of the requirements specified
as determining whether an area is a strip shopping centre or not. It is of
some assistance if the question is one as to whether a significant
proportion of the buildings in the area are shops. Pedestrian activity in this
area seems to be generally focussed in front of the Aldi supermarket and
speciality shops as well as the shops on the southern side of Edgewater
Boulevard opposite the supermarket car park.
36
There is, including the subject land, a considerable amount of vacant land
within the area. The buildings within the area consist of the four
dwellings, the supermarket and three specialty shops, the two buildings on
the southern side of Edgewater Boulevard between Gordon Street and
Mary Walsh Street and an office building on the north western corner of
Thomas Holmes Street and La Scala Avenue.
37
In M & S Whelan Investments Pty Ltd v Alpine SC8 it was considered that
a significant proportion of the buildings are shops did not mean the
majority. In Shimmerbridge Pty Ltd v Bayside CC9 buildings designed and
constructed as shops were included, even if vacant.
38
In the area, given the limited number of buildings it is considered that 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;
39
The area is bounded by roads that are accessible to the public generally.
40
It is in our view an area in which a significant proportion of the lots abut a
road accessible to the public generally.
41
If the narrow definition of the area is accepted then it is not within a strip
shopping centre as it does not meet all the requirements under clause
52.28-4, namely
i
The area is not specifically zoned for business use; it is contained
within a special purpose zone which identifies a range of land
uses qualified by reference to a master plan indicating the area is
6
Crestline Architects Pty Ltd v City of Greater Geelong & Ors [1998] VCAT 100 (20 July 1998); M & S
Whelan Investments Pty Ltd v Alpine SC [2008] VCAT 291
7
Ibid
8
[2008] VCAT 291
9
[2008] VCAT 1428
VCAT Reference No. P1697/2008, B18/2008
Page 16 of 65
for mixed uses10. The area must be zoned for business, not just
the purposes that would qualify, but the table of uses.
ii
The area contains vacant land. This includes the land itself and
the land opposite to the north on Thomas Holmes Street. A small
supermarket, some shops and a medical centre are proposed to be
developed on this site, known as the La Scala Development.
Future development is not relevant in this assessment. To meet
the requirements buildings must exist.
iii
On the southern side of Edgewater Boulevard opposite the
subject land there are at least two separate buildings on at least
two separate and adjoining lots but these buildings are dwellings
not shops. They are separated from Edgewater Boulevard by a
reserve.
iv
On Case Street, opposite the subject land to the west, is the rear
of the Aldi Supermarket as well as the rear of three speciality
shops, a fruit and vegetable shop, butcher and takeaway chicken
shop. A walkway separates the Aldi supermarket from the
speciality shops. The three shops are on separate and adjoining
lots contained within separate but attached buildings. The rear of
these shops, abut Case Street, whilst they front onto a car park.
v
Opposite to the east on Skyline Drive construction has recently
commenced for dwellings, there is no built form at this stage.
42
Whilst some of the requirements may be met not all are met. This is not
an area in which a significant proportion of the buildings are shops.
Although it is an area in which a significant proportion of the lots abut a
road accessible to the public generally.
43
The wider defined area does not meet all the requirements under clause
52.28-4 and therefore cannot be described as a strip shopping centre.
Whilst it meets three of the four requirements it fails to meet all four
requirements under the clause, as it is not an area zoned for business,
rather it is denoted as being for mixed uses under the incorporated
development plan.
44
Defining the area more widely does not result in all the requirements set
out in clause 52.28-4 being met. The subject site is not located within a
strip shopping centre as defined under clause 52.28-4.
Permit requirements
45
10
For the reasons expressed below we consider the only planning permits
required for the proposal are for a ‘restricted place of assembly’ under
clause 37.02, the installation and use of 70 egms under clause 52.28 as
they are not prohibited, to use the land to sell or consume liquor under
Riverside Physical Framework Plan No 1 (1992)
VCAT Reference No. P1697/2008, B18/2008
Page 17 of 65
clause 52.27, a reduction in the requirement for car parking under clause
52.06 and exceeding the plot ratio under clause 14 CDZ3.
46
‘Restricted Place of Assembly’ is defined in clause 74 of the planning
scheme to be :
Land used by members of a club or group, or by a member’s guests,
for religious or cultural activities, entertainment or meetings. It may
include food and drink for consumption on the premises and gaming.
11
47
It is considered that the rooms allocated on the plan to be used as a café
and for functions are part and parcel of the land being used for
entertainment or meetings by club members under the definition of a
‘restricted place of assembly’ and it is therefore not necessary to require a
separate permit for such a proposed use.
48
Food and drink premises, the function centre, an office and residential
hotel are all as of right uses in the CDZ3 permitted in the mixed use area
shown on an approved development plan.
49
There is no requirement for a permit for the buildings and works if what is
proposed is generally consistent with the approved development plan. The
plan FDP7b is in our view an approved development plan. To be
‘generally consistent with an approved development plan’ the proposal
must be ‘generally in accordance with the plan as a whole, not each and
every individual part of the plan11. The site is identified as lot H on the
development plan. A three storey building envelope without boundary
setbacks is shown on the development plan for lot H. It is clear from the
development plan that the expectation is that this site is to be developed
differently to the nearby Aldi site.
50
We note the Council officer’s report expresses the view that the proposal
is consistent with the development plan and therefore no permit is
required for buildings and works under clause 4 CDZ3. The Responsible
Authority did not raise this as an issue.
51
Clause 12 CDZ3 provides that in a mixed use area, in which the subject
land is located, if the height exceeds three storeys a permit is required.
Similarly under clause 14 CDZ3 if the proposal exceeds the plot ratio of
1.5 a permit is required. There was some debate regarding the height of
the building and the plot ratio.
52
It was submitted that if the proposed development was considered to be
generally in accordance with the development plan then there is no need
to go to considering whether a permit is required under clauses 12 or 14.
It was further submitted that if either or both of these clauses are brought
into play, the proposal could not be found to be generally in accordance
with the development plan and a permit would also be required for
buildings and works.
Melbourne CC v Becton Corporation Pty Ltd [2003] VCAT 1077
VCAT Reference No. P1697/2008, B18/2008
Page 18 of 65
53
We consider the wording of the two clauses suggests that they should be
read as separate and discrete requirements for a permit in the mixed use
area, even if the proposal is generally in accordance with the development
plan. We consider that the provisions in CDZ3 should be read as a whole.
54
Clause 37.02-4 in the CDZ provides that
A permit is required to construct a building or carry out works unless
the schedule to this zone specifies otherwise.
Any requirements in the schedule to this zone must be met.
12
55
When we consider the FDP7b plan this indicates a three storey building
on the subject land built to the boundary. If it is considered that the
proposed building does not exceed three storeys then the proposal in this
respect could be considered to be consistent with the development plan
and there is no permit required under clause 12.
56
We note that the Responsible Authority did not raise any specific concern
about the height of the building per se. We have adopted the view
expressed by Morris J in Poci Brothers v Bayside CC 12 that it is a matter
of characterisation as to whether a building presents visually as a three
storey building. The upper level identified on the plans as Third Floor is
an open roof top car park with roofed access via a lift and stairwells. An
application has been made, out of caution, for the building to exceed three
storeys. Considering the definition of ‘storey’ in the planning scheme we
do not consider that the small covered areas of the lift and stairwells,
which provide access to the open car park, form what would be
considered under the definition to be a fourth storey. The building
presents visually as three storeys and should be so characterised. A permit
is therefore not required under clause 12 CDZ3.
57
‘Plot ratio’ is defined as ‘the gross floor area of all buildings on a site,
divided by the area of the site’. The total gross floor area is 13,577m². The
plot ratio is therefore 2.69. If the car parking areas are excluded the gross
floor area would total 6,217m² resulting in a plot ratio of 1.2. We note car
parking areas were previously excluded from the definition of ‘plot ratio’
but this has been deleted in the definition now contained within the
planning scheme.
58
It was submitted that if the proposal is built to the boundary at a height of
three storeys, then any proposal would result in the plot ratio of less than
1.5 being exceeded. Therefore, if generally in accordance with the
development plan, there should be no need to consider the issue of plot
ratio.
59
Having reached the conclusion that a proposal can be generally in
accordance with the development plan as a whole, but may not comply in
every respect, it may be that any proposal built in accordance with the
[2003] VCAT 1884; Cope v Hobsons Bay CC [2004] VCAT 2487
VCAT Reference No. P1697/2008, B18/2008
Page 19 of 65
development plan, that is at a height of three storeys and to the boundary
will exceed the plot ratio. But it is our view that clause 14 CDZ3 applies
as a separate and discrete requirement and a permit is therefore required if
the plot ratio of 1.5 is exceeded.
60
As indicated above we adopt the view expressed by the Tribunal in
Melbourne CC v Becton Corporation Pty Ltd13 and consider that a
proposal can be generally in accordance with the whole development plan
and in this case would not need a permit for buildings and works as it
would be exempt under clause 4 CDZ3, but that it does not comply with
the requirement for plot ratio and therefore needs a permit under clause 14
CDZ3.
61
All the planning witnesses considered the plot ratio was appropriate even
if what is proposed exceeds the plot ratio specified in clause 14. As
discussed below we have no issue with the plot ratio as proposed.
62
Given the limited matters the Tribunal is required to deal with in relation
to a permit, the Tribunal is also confined to hearing objections by third
parties, only in relation to permits for the installation of egms, the sale and
consumption of liquor and the reduction in car parking. This is because
within the planning scheme there are specific provisions relating to the
exemption from notice to third parties in relation to parts of the proposal
that requires a permit. In terms of the use of the land as a restricted place
of assembly, and plot ratio there are no third party appeal rights.
Has the proposal met the purposes of the zone and the relevant local planning
policy framework?
63
The Responsible Authority just prior to the hearing raised an additional
ground of refusal. Given the proposed nature and scale of the proposal it
is inappropriate to locate it within a neighbourhood activity centre.
64
In this respect Mr Larkins submitted the use and the development issues
go together in determining the intensity of the use. He referred to the
extent to which clause 12 in the planning scheme and its hierarchy of
activity centres restricts the intensity of non-retail uses within a
neighbourhood activity centre.
65
Mr Larkins contended the proposal fails to respond positively to the
policy contained within clause 22.04 which only encourages a variety of
small scale uses consistent with the scale of a neighbourhood activity
centre, being those uses that are as of right.
66
In support of this contention Mr Larkins relied on the evidence of Mr
McNabb who submitted:

13
The proposal does not respond positively to the planning policy
framework by establishing a major entertainment and accommodation
Ibid
VCAT Reference No. P1697/2008, B18/2008
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facility that is promoted by the developer as a regional destination
facility in a neighbourhood activity centre.
67

The proposal is inappropriate in form and scale to the type of uses
recommended for a neighbourhood activity centre and would not
provide a net community benefit.

The proposal does not respond to its context and is not acceptable from
an urban design perspective, given its location immediately adjacent to
the retail and community hub of the Edgewater neighbourhood centre.
Apart from the purpose of implementing the State planning policy and the
local planning policy framework, including the Municipal Strategic
Statement and local planning policies the relevant purpose of the CDZ is:

68
To provide for a range of uses and the development of land in
accordance with a comprehensive development plan
incorporated in this scheme.
The policy objectives of clause 22.04 are:
To create very attractive, well designed new and mixed industrial and
commercial precincts in landscaped garden settings which will be
compatible with surrounding residential areas.
To promote the development of suitable research,
commercial/industrial and other compatible non- residential activities
to provide sustainable employment opportunities within walking
distance of adjacent and nearby growing residential areas.
To discourage large commercial, industrial and other land use and
development which is incompatible with adjoining activity, or for
which more suitable land or clustering opportunities exist nearby.
69
We note that one of the purposes in the CDZ3 is ‘to provide for limited
retail activities to meet the requirements of the population of the local
neighbourhood’. Similarly, the policy in clause 22.04-1 directs that the
activity centre is to serve as a retail centre to serve the local
neighbourhood only. There are however other purposes of the Schedule
that include:

To encourage employment opportunities.

To ensure that the combination of uses, the density and the scale
and character of any redevelopment are compatible with:
-
the amenity of the surrounding area and the existing and
future residential density;
- the capacity of the existing road system and any proposed
modifications to accommodate an increase in vehicle traffic;
- the capacity of existing essential services and any proposed
modifications.
VCAT Reference No. P1697/2008, B18/2008
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
14
15
To encourage a high standard of urban design and landscape
treatment especially along Gordon Street.14
70
Some of the policy directives in clause 22.04 include ‘to encourage a
variety of small scale, high quality leasable floor areas of up to 1500m2’
and ‘to encourage development to provide opportunities for the
establishment of small to medium sized businesses, particularly
…(amongst other things)… indoor leisure and recreation facilities, places
of assembly and indoor exhibition facilities’. (Tribunal emphasis)
71
The CDZ3 promotes a range of uses and developments with a much
broader appeal, for example, an office use is permitted up to an area of
6000m2 with no single floor area exceeding 4000m2 as of right, and a
larger office not exceeding 15,000m2 subject to conditions is
discretionary. We note these provisions seem to respond to the purpose of
‘encouragement of employment opportunities and a mix of commercial,
office, entertainment and other ancillary uses’.
72
Mr Mc Nabb provided a good snapshot of the history of master planning
for the locality, including the original concept envisaging about 1000
dwellings, and ‘a business/employment activity area providing
approximately 51,000 sq m of business floor space including business
space, offices showrooms warehousing, service industries special
retailing, leisure and entertainment facilities.
73
The provisions of CDZ3 and related policies, such as clause 22.04, whilst
providing directions are not always as clear and helpful in providing
precise direction about the form and mix of uses anticipated for this site. It
is understandable for parties to obtain mixed messages about the preferred
mix of uses and form and scale of development in this precinct. This is
reinforced by an examination of the as-of -right uses and development
allowed under the schedule. Mr Larkins conceded the policy applies to a
poorly defined area of land to the east of Gordon Street, which it may be
assumed includes the subject land15.
74
We consider that the CDZ does not fit neatly into the hierarchy of activity
centres mentioned in clause 12.0 of the planning scheme, particularly if it
is to function as a neighbourhood activity centre only. This is not a
criticism of the council in its role as a planning authority; rather it
probably reflects the history of statutory planning and policy development
affecting the ADI (Australian Defence Industries) site since 1992 when
the overall development concept was formulated. Most, if not all, of the
planning controls for the ADI site were formulated in the early to mid
1990’s, long before the introduction of clause 12.
75
The Riverside Physical Framework Plan No.1 provides a useful historic
understanding of the evolution of attempts by Maribyrnong Council and
There are several other purposes but these are irrelevant to our consideration.
See paragraph 234 on page 48 of the Responsible Authority closing submission.
VCAT Reference No. P1697/2008, B18/2008
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its predecessors to redevelop the previous Commonwealth land holding
into a vibrant mixed use and residential estate. Whilst it was helpful, in a
general sense, in identifying the precincts and concepts, an examination of
development that has taken place in the last 10 years demonstrates there
have been departures from the original Physical Framework Plan.
76
Some of the examples of the evolution/departure from the Physical
Framework Plan can be seen in the shifting of the originally identified
‘local activity focus’ north of Thomas Holmes Street, to its current
position south of it. Nonetheless, the designation of the subject site as
mixed use, in contrast to the local activity focus remains and provides us
with a better understanding of the original concepts envisaged for the site.
77
This is not to say what has taken place is bad, rather it is a living example
of an evolving, but none the less, excellent urban renewal project in inner
Melbourne. There is still more development to take place in Edgewater
but we are impressed by the high quality urban design outcome that seems
to have so far been achieved.
78
We also examined clauses 21.03 and 21.04-6 but these did not greatly
illuminate how the Responsible Authority saw its mixed use precincts in
the CDZ being developed. These clauses focus mainly on large retail
centres and the map to clause 21.04- 6 is identified as the ‘Activity
(Retail) Centre Framework Plan’ demonstrating, in our view, the
emphasis in approach was focussed on retail matters at the time it was
inserted in the planning scheme.
Role and Function of the Activity Centre
16
79
Mr Larkins sought to determine the level of intensity of non-retail uses
within a neighbourhood activity centre. He submitted that in the light of
clause 12 of the planning scheme the proposal should be read as being
‘compatible with the role and function of the neighbourhood activity
centre’ within which it is to be located.
80
The strategic intent for Edgewater Estate is broad and this must be taken
into account when considering the intent for the subject site16. There is no
‘one size fits all’ in terms of Neighbourhood Activity Centres each must
be considered in terms of the zone and relevant policy provisions. The
mixed use area and built form expectations denoted under CDZ3 are
significant, providing guidance regarding expectations for the site.
Compatibility must be read in light of these expectations.
81
We consider Mr McNabb’s criticisms as to form and scale, lack of
response in terms of urban design, and the type of uses has not adequately
considered the extent of development allowed as of right, together with
the mix of uses. Further, we do not consider the proposed use and
TEAC Australia v Port Phillip CC [1999] VCAT 1222 at [2]
VCAT Reference No. P1697/2008, B18/2008
Page 23 of 65
development to be a major entertainment and accommodation complex,
nor do we consider the objectives of clause 22.04 are offended.
82
The first objective in clause 22.04 seeks a mix of new and mixed
industrial and commercial precincts in landscaped garden settings
compatible with surrounding residential areas. The built form guidelines
for the site are not offended, whether the proposal incorporates an office
building or a building containing a mix of activities like a club, residential
hotel or function centre.
83
The second objective focuses on non – residential development providing
employment opportunities within walking distance of the adjacent and
nearby growing residential precinct. This has little to do with the scale of
the development or actual use. The proposed use and development will
provide employment opportunities. Whilst it is unlikely to provide the
same amount of jobs as a conventional 3 story office building of the same
proportions, it cannot be said to offend that objective.
84
The floor area of the restricted place of assembly is about 1500 square
metres. Its floor area is little different to other clubs like the Yarraville
Club or “The Club” at Caroline Springs. The incorporated uses provide a
local club focus but can also serve wider catchments without necessarily
detracting from the primary local retail activity centre focus.
85
RAIDIM raised concerns about placing a gambling venue within a busy
and growing neighbourhood strip shopping centre. We consider that the
primary retail activities in the local activity centre actually turn their back
on the proposal. The main entrance is to be from Thomas Homes Street
rather than Edgewater Boulevard and will be clearly separated from the
entrances to the Aldi supermarket, associated shops and their parking
facilities.
86
We consider that in terms of the zone and policy that encourages
employment opportunities and a mix of entertainment and other ancillary
uses, the proposal for a restricted place of assembly is appropriate. We do
not consider that the area can be strictly defined as a neighbourhood
activity centre within the hierarchy of activity centres in clause 12. Whilst
there is a limit in relation to retail there is no such limitation in terms of
commercial, office, entertainment and other ancillary uses. This is in our
view further supported by the site being located within what has
specifically been approved in the development plan as a mixed use area.
Amenity impacts
87
It was contended the proposal will adversely affect the amenity of the
surrounding area and the existing and future residential density contrary to
CDZ3.
88
We acknowledge the limited scope for third party participation on the
development and use. From our observations there appeared to be some
fundamental pedestrian amenity, noise and nuisance issues that may
VCAT Reference No. P1697/2008, B18/2008
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derive, together with the visual massing on Edgewater Boulevard from the
proposal as submitted by the Responsible Authority.
89
We were concerned about external noise particularly from the elevated
café/bar decking at the southeast corner of the building and the possible
impact on residential properties to the south of Edgewater Boulevard,
together with potential conflicts between patrons exiting the southwestern driveway particularly late at night.
90
We consider that in assessing the amenity of the area it is important to
consider the context of the site, and the relevant purposes of the CDZ 3 to
better appreciate what is anticipated for the area and the level of amenity
particularly at the relevant residential interfaces.
91
There are two specific purposes in CDZ3 that we consider are relevant to
an assessment of the impact on the amenity of the area. The first is:

92
To encourage redevelopment of land located on the east side of
Gordon Street, City of Maribyrnong in a comprehensive manner
for a mixture of residential, commercial, office, light
industrial, entertainment, community, residential and
ancillary uses. (Tribunal emphasis)
The next relevant purpose is:

To ensure that the combination of uses, their density and the
scale and character of any redevelopment are compatible with:
- The amenity of the surrounding area and the existing and
future residential density.
- The capacity of the existing road system and any proposed
modifications to accommodate an increase in vehicle traffic
- The capacity of existing essential services and any proposed
modifications.
93
The subject site as indicated previously is identified on the Riverside
Physical Framework Plan No1 for mixed use. The context of the use and
development on this mixed use site or that is approved in the vicinity and
opposite the site is as follows:

A supermarket and shop to the west on the opposite side of Case
Street.

Retail uses to the south-west on Edgewater Boulevard.

Residential development in two storey attached buildings to the south,
on the opposite side of Edgewater Boulevard with a plantation serving
as an additional physical buffer.

A proposed 4 storey apartment style development to the east on the
eastern side of Skyline Boulevard, but likely to turn its back on the
site due to the topography of the site but also to capture pleasant views
to the north east over the Maribyrnong River.
VCAT Reference No. P1697/2008, B18/2008
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
Proposed commercial development comprising two and three storeys
to the north on the La Scala site(s).

A three storey office building to the north-west
94
95
Whilst Mr Gattini refers to the intensity of the proposed development
being in conflict with the direction in clause 14.01-2 which requires
recognition of neighbourhood character. He also claimed there will be
conflict with opposite existing and planned residential areas. Later in
assessing the decision guidelines for the gaming purpose, Mr Gattini
refers to conflicts with residential development to the south in terms of:

Problems with intoxicated and noisy patrons on the surrounding
streets;

The 3am closing times;

Outdoor dining areas on the site boundaries that generate noise
impacts.
Clause 14.01-2 is a general policy statement seeking to facilitate the
orderly development of urban areas and provides little direct assistance in
the assessment of amenity in the context of this site.
Car parking and Traffic
96
Concerns were raised regarding inadequate car parking and an increase in
traffic movements which may have an adverse affect on the amenity of
the locality. It was submitted there was no justification for a reduction in
the car parking requirements. It was also submitted the car parking areas
had not been designed appropriately to provide a safe and efficient
environment for motorists.
97
The planning scheme provisions require 554 car spaces to be provided
based on a floor space assessment. A total of 329 car spaces are proposed,
33 staff car spaces and 296 patron car spaces. Mr Hunt indicated one
space would need to be deleted as it was undersize and therefore made his
assessment on the provision of 328 car spaces.
98
Mr Hunt’s evidence was that the proposed number of car spaces will meet
the anticipated peak demands and there would be no need to rely on any
on street parking. In reaching this conclusion he considered the intention
to limit the patron numbers to 650 to be significant. Mr Hunt also
expressed the view that the car parking layout and access arrangements
conform to the requirements of clause 52.06 and Australian Standard
AS2890.1 and will provide for convenient and efficient access for staff
and patrons.
99
With regard to traffic generation, Mr Hunt submitted, the site is expected
to generate up to 175 vehicle movements per hour during the mid evening
period on a Friday or Saturday with traffic distributed via Case Street to
Edgewater Boulevard, Thomas Homes Street and Gordon Street. He was
VCAT Reference No. P1697/2008, B18/2008
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of the view there was sufficient capacity available to accommodate peak
flows without impacting on existing operating conditions.
100 We note that neither residents nor the Responsible Authority called any
evidence on parking or traffic difficulties and did not seem to provide any
meaningful challenge to Mr Hunt’s evidence.
101 If anything, we consider the provision of onsite car parking is remarkably
generous for an entertainment use of this size in an inner metropolitan
Melbourne suburb. The car parking area takes up more than half the plot
ratio of the site and tends to emphasise the size and bulk of the building.
Part of this can be attributed to the method of providing all car parking at
ground or above ground level.17
102 While there will be a residential hotel function that could rely on about
one car parking space per accommodation room, plus nominal
management facility, there are opportunities for the sharing of parking to
justify a reduction in the amount of parking for the use.
103 In questioning regarding the revised development plan Mr Hunt conceded
that whilst there was a reduced number of car spaces to be provided (295)
than the application plan it still provided a good outcome. In reaching this
conclusion Mr Hunt considered there would be improved taxi storage
facilities in Thomas Homes Street as a result of the relocated entrance.
104 We consider 295 car spaces to be a generous car parking supply for the
activities proposed and there is adequate capacity in the surrounding road
system to accommodate the traffic generated. Further the revised plans
provide for tangible improvements to local amenity by reducing a
potential conflict from vehicles departing the premises in the south
western corner of the site. A reduction in the provision of car parking is
considered appropriate.
Noise
105 In evidence Ms Hui advised the building should be capable of meeting
SEPP N1 and N2 and the nominated sleep disturbance criteria. She
recommended treatment to the outdoor courtyard area to the south-east of
the building and recommended a limit on the number of patrons in the
courtyard after 10.00pm. There was little challenge to Ms Hui’s evidence
or her recommendations.
106 Ms Hui expressed the view that relocating the elevated café section
further north to a location close to Thomas Homes Street would help to
reduce the potential escape of patron noise and as a result reduce any
amenity issue at the closest interface with the residential properties
approximately 50 metres plus to the south of the development.
17
Apparently in response to site contamination issues.
VCAT Reference No. P1697/2008, B18/2008
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107 Ms Hui also advised that noise from late night vehicle activity within the
car park and Port Cochere will meet the nominated sleep disturbance
criteria. We consider the revised plans that relocate the Port- Cochere and
main pedestrian entrance to the north-western corner of Thomas Homes
and Case Streets will also lessen the potential for conflict and is be
preferred to the application plans.
108 Accordingly we consider there are no adverse noise amenity issues that
cannot be addressed by permit conditions of the kind recommended by
Ms Hui. We find the revised plans will assist in addressing any potential
noise amenity conflicts.
109 The amenity of this site and its neighbouring properties is very different to
a conventional residential area found in Maribyrnong. The extent of
development and activity in the vicinity of the site will produce a different
outcome than the greater level of peace and quiet that a resident in a
normal residential neighbourhood may expect. Similarly, the physical
manifestation of the neighbourhood which has late night activity, such as
a supermarket providing local service is very different to a conventional
Residential 1 Zone neighbourhood that comprises detached or semi
detached houses.
110 We have considered the issues raised by objectors and Mr Gattini and
make the following comments:

The applicant offered to reduce the operating times of the premises to 1
am and we consider that is an appropriate limit for most operations of
the premises although we see no fundamental reason why the function
centre component could not operate until 3 am.

Potential noise impacts and conflict with residences to the south- east
were addressed by Ms Hui. Further improvement is achieved by
relocating the Port- Cochere entrance to the north-western corner of the
site.

The elevated outdoor courtyard at the south-eastern corner is relocated
further north- east.
Is the proposed location and premises appropriate for the location of gaming
machines having regard to the social and economic impacts?
Suitability of the Location and Premises
111 The Responsible Authority submitted locating a gaming venue in a strip
shopping centre is inappropriate. A new gaming venue will result in a
saturation of gaming machines in an area with a community vulnerable to
problem gambling. In this respect the proposal is contrary to clause 52.28
which seeks to ensure that gaming machines are situated in appropriate
locations and premises.
112 The decision guidelines contained in clause 52.28-6 include not only a
consideration of State and Local planning policies, but compatibility of
VCAT Reference No. P1697/2008, B18/2008
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the proposal with adjoining and nearby land uses, the capability of the site
to accommodate the proposal and whether the gaming venue will also
provide a full range of club facilities or services to members.
113 There is no specific policy guidance within the Maribyrnong planning
scheme indicating where an ‘appropriate location’ would be for gaming
machines. The Responsible Authority adopted a policy18 with respect to
gaming machines which is said to be out of date. We note this policy has
not been incorporated within the planning scheme and given the
comments regarding it being out of date and in need of revision we do not
consider that it provides any assistance to us.
114 Due to the prohibition, an inappropriate location for a gaming venue is a
strip shopping centre. We also note that gaming machines are not allowed
in the Highpoint Shopping Complex, Maribyrnong. It is said that the
location of gaming venues in close proximity to shopping strips is to
discourage impulse gaming when in the course of a trip for a different
purpose19. Other than the scheme indicating these locations are
inappropriate there is nothing to suggest any other location is
inappropriate. There is a possible inference that this extends to retail areas
generally, but this has not been specified.
115 The location of the egms within a club rather than a hotel, we consider is
significant and may not encourage, as would a hotel with easier access,
the impulsive visit. Nor is the venue to be located within a strip shopping
centre, although there are shops nearby. We do not consider that gaming
venues should be located in inaccessible locations away from either shops
or residences. As a legitimate form of entertainment general accessibility
should be encouraged.
116 We do not consider that the gaming component of the premises is
inappropriate within this location. There is to be contained within the
premises not only a gaming venue but function rooms, bistro, café and
accommodation. The gaming component is a very small part of the overall
facility which is to provide not only entertainment but accommodation
and club facilities for members and their guests. The components
contained within the premises are considered to be compatible with the
nearby land uses particularly as the site is included in a mixed use area
which is earmarked for some form of commercial or entertainment use.
The location and premises are therefore appropriate for the location of
gaming machines.
Social and Economic Impacts
117 Section 4(2) (d) of the Planning and Environment Act 1987 provides for
explicit consideration of social and economic affects when decisions are
made about the use and development of land.
18
19
Maribyrnong City Council Responsible Gambling Policy and Action Plan 2003-2005
WG Elms v Yarra Ranges SC (1998) 22 AATR 174
VCAT Reference No. P1697/2008, B18/2008
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118 The Responsible Authority submitted the gaming venue will adversely
affect the social and economic well being of the Maribyrnong community.
A consideration of the impact on the well being of the community is
discussed further under a consideration of the Gaming legislation below.
In terms of the planning context and the consideration required to be
undertaken we make the following observations.
119 The Responsible Authority and in turn its witnesses as well as RAIDIM
referred to the proposal having an adverse social (and economic) impact
on the area. Some of the concerns expressed related to the immediate
trade catchment area of the gaming venue that is within 1km and more
particularly to the disadvantaged area to the south known as the
Empire/Eldridge area. The evidence provided indicated there are a
number of areas of relative disadvantage in the Maribyrnong municipality
including the area around the Whitten Oval, the current site of the Club’s
gaming facility. The applicant submitted the Edgewater Estate was not
one such area, but as Justice Bell stated in the recent Romsey Hotel20
decision ‘… not everything you can count counts and you cannot count
everything that counts’.
120 The evidence, discussed in more detail below, indicated there was
considerable opposition from the local community, particularly within one
kilometre of the site, whereas the applicant’s survey methodology focused
on a broader catchment in the order of 5 kilometres that identified a
higher rate of acceptability.
121 It was contended that due to the location of the site there is a strong
likelihood that the more disadvantaged residents in the Empire/Eldridge
area would be more inclined to visit the subject premises rather than
attend the nearby Powell Hotel, located on the corner of Ballarat Road
and Gordon Street which also contains egms. We consider this claim is
overstated. On our inspection we noted residents on the eastern side of
Gordon Street accessing the hotel by utilising the existing traffic lights
across Gordon Street outside the Powell Hotel, enabling the easy crossing
of Gordon Street. We do not see that Gordon Street is a significant barrier
to patrons seeking access to the Powell Hotel on the western side of
Gordon Street, if anything it serves as a notional and statistical boundary
that can be traversed by pedestrians.
122 We were provided with evidence of the attractiveness of venues that
offered gaming facilities. Mr O’Hehir stated:
The attractiveness of a venue is assumed to reduce in line with
reducing trading hours. In particular, the trading hours weighting
reduces by 1.1% for every trading hour less than 140 hours per week,
subject to a minimum of 90 hours per week.21
20
21
Romsey Hotel Pty Ltd v Victorian Commission for Gaming Regulation [2009] VCAT 2275
Witness report of Donald O’Hehir page 22 see page 4585 in tab 96
VCAT Reference No. P1697/2008, B18/2008
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123 In evidence Dr Livingstone indicated persons vulnerable to gaming
addiction were more likely to attend premises outside peak operating
hours. This is a sound social reason to place some limits on the ability of
club members and residents of Maribyrnong to be exposed to prolonged
gaming venue operating hours.
124 If we were to assume a level playing field in terms of pedestrian
accessibility then the Powell Hotel and the Edgewater Club will have
similar benefits. We note the current operating hours of the Powell Hotel
provides unrestricted access to the gaming area between 9.00am and
5.00am on each day.
125 Not only will there be a net reduction in gaming machines from ‘areas of
high disadvantage’22 to an area of (relatively) less disadvantage, discussed
further below, but a reduction in hours would mean a reduction in the
opportunity to play those 70 machines under the ‘attractiveness’ score.
126 We consider the attractiveness of this new venue can be curtailed
legitimately, in comparison to existing venues such as the Powel Hotel, by
limiting its hours of operation. We acknowledge Mr Townshend offered
to reduce the hours of operation from 3am to 1 am that amounts to a
reduction from 140 hours to 126 hours or about 15 % loss in
attractiveness.
127 We consider there is justification to further reduce the time for gaming to
between 11am to 1 am, or amounting to 14 hours per day, which
according to Mr O’Hehir’s formula would amount to a 46% reduction in
attractiveness of the venue.
128 Dr Livingstone mentions a number of “upstream” interventions to limit
gambling harm. Whilst we consider some of these may have broad merit
they have not been tested on a local level and should more realistically be
the subject of wider investigation by the State Government. However we
consider it appropriate to delete the smoking courtyard abutting the
gaming room.
129 On our visit to other venues we noted for example in the Powell Hotel
patrons had reserved machines to take a cigarette or play other machines
and we consider this practice did not seem to enhance opportunities for
patrons to take a break from gaming or consider their position.
130 We consider that smokers using the gaming area should be required to
share other smoking areas such as the north-eastern terrace rather than
have a convenient place next to the gaming machines. This would then
obviate the practice observed in other gaming venues of persons reserving
gaming machines and taking a quick smoke and it will encourage
gamblers who take a smoke to consciously exit the gaming area in order
to have a smoke.
22
Whitten Oval, Braybrook Taverner
VCAT Reference No. P1697/2008, B18/2008
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131 Similarly, we consider it is prudent that there are a number of
management tools that can take place to discourage problem gambling
and emphasise the “club” atmosphere so that it is distinguished clearly
from a hotel where patrons seemingly can walk in off the street buy a
drink and use gaming machines at will.
132 During our hearing, we were urged to visit “The Club” at Caroline
Springs as this was the likely model to be adopted by the Edgewater Club.
We found “The Club” premises inviting and appeared to appeal to a broad
demographic including sports bar facility, members area, gaming area,
café and dining facility. We were somewhat surprised not to be
challenged on entry or required to fill out any visitor documentation and
compared this experience with the signing in at the Yarraville Club. From
our perspective it may be easy for a layperson to find it difficult to
distinguish the difference between “The Club” and a conventional hotel
premises.
133 Mr Townshend seemed to be at pains to emphasize the importance of the
football Club operating this venue; and it being a social club venue as a
home base to enable an accessible base for the Club networks and people
associated with the Club. We received mixed messages from some of the
witnesses, including the President of the Club who advised in crossexamination that there was to be no direct link or facilities provided to
Club members.
134 We accept that the Club is to be the intended operator with financial
commitments and expectations of economic returns commensurate with
gaming industry standards. The premises, to be known as Edgewater Club
is to have little if any external or internal football club reference but will
operate similar to “The Club” at Caroline Springs, operated by the
Collingwood Football Club.
135 We accept the bona fides of the representatives of the Club about its
relationship with Prizac Investments Pty Ltd and George Adams Pty Ltd.
Mr Townshend submitted many patrons expect in a modern football club
a social venue which many patrons enjoy. Whilst we accept the general
thrust of his point we nonetheless were less than impressed by the mixed
messages about the relationship with the club members. We would think it
prudent that in the least reciprocal rights be offered so as to encourage
members to visit its primary social club venue.
136 Having regard to some of the concerns raised by both the Responsible
Authority and objectors we consider the following measures included as
part of the proposal will address a number of their concerns:

A permit condition restricting the operating hours of the gaming venue
from 11.00am to 1.00am.

A permit condition requiring the deletion of the smoking area
immediately abutting the gaming area.
VCAT Reference No. P1697/2008, B18/2008
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
A permit condition requiring a Patron Access & Management Plan to
incorporate such measures as:
 Membership ;
 positive reciprocal arrangements with other clubs; and
 measures to identify problem gamblers within the club.
137 When viewed within the whole package of uses to be contained within
this development including a full range of club facilities like café, a kiosk,
accommodation, separate bar facilities, bar and dining facilities and
function rooms we consider the proposal will provide a positive social
outcome for the emerging new suburb of Edgewater.
Net Community Benefit
138 Mr Larkins referred to previous Tribunal decisions, including Beretta’s
Langwarrin Pty Ltd v Frankston CC23 to submit the test in clause 11 has
not been met because the proposal does not produce net community
benefit. We do not consider that clause 11 sets out a particular test, unlike
the provisions contained within section 3.3.7 of the Gaming Regulation
Act 2003. Clause 11 in our view sets out some policy considerations as
guidance and does not require the applicant in planning terms to
demonstrate the proposal will lead to a net community benefit.
139 We acknowledge the different roles and responsibilities under the gaming
application and planning application. Whilst the gaming legislation
mandates no net community detriment and constrains the exercise of
power by the VCGR if this is not found, the Planning and Environment
Act is more general in seeking to balance the present and future interests
of all Victorians.
140 Under clause 11 it is the State Government’s expectation that planning
and Responsible Authorities will endeavour to integrate the range of
policies relevant to the issues to be determined and balance conflicting
objectives in favour of net community benefit and sustainable
development. We accept Mr Townshend submission that clause 11, itself,
is not a prohibition on the grant of a permit in the absence of net
community benefit. Rather he claimed, policies are meant to guide the
decision making, not dictate outcomes. We acknowledge a proposal does
not necessarily fail if an applicant cannot demonstrate a net benefit,
particularly in a case where there may be a neutral outcome.
141 In this case there has been extensive debate about the benefits and
disadvantages of the proposal, particularly in terms of planning, social and
economic issues.
23
[2009] VCAT 74
VCAT Reference No. P1697/2008, B18/2008
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142 Dr Livingstone’s evidence focussed on significant disadvantages derived
from gaming machines. His evidence did not provide any specific
evidence of disadvantage. As Morris J stated in Branbeau24:
The Productivity Commission identified that, when analysed on a
State by State basis, there was a positive correlation between
gambling expenditure per adult and the incidence of problem
gambling. However I am unaware of specific evidence as to the
impact of a new venue on problem gambling when residents of the
area concerned already have good access to gaming opportunities.
143 We acknowledge there are various benefits derived from this development
including an advancement of the purposes of a CDZ, and in particular
creating employment, recreation and entertainment facilities for
 removal of 11 gaming machines from the municipality in total; and
 removal of gaming machines from areas of disadvantage.
Other issues
Residential Hotel
144 The use of the land for a residential hotel is as of right. We are satisfied
that it is an appropriate activity for this part of the mixed use area. It will
serve both a local and wider catchment and will provide a benefit to the
general community and is an appropriate adjunct to this proposal.
Food and Drink Premises
145 We see the food and drink usage as an important complementary activity
in this mixed use area and the proposal as a whole. In our view it will
complement a full range of club facilities and services to members and
patrons of the restricted place of assembly.
146 As stated above our only concern regarding the café utility external to the
building related to the potential for patron noise at the elevated southeastern section of the site and their potential impact on residents on the
southern side of Edgewater Boulevard. This has been addressed in terms
of Ms Hui’s evidence.
Licensed premises
147 The purposes of clause 52.27 are:

To ensure that licensed premises are situated in appropriate
locations.

To ensure that the impact of licensed premises on the amenity of
the surrounding area is considered.
148 Decision guidelines in this clause include considering, as appropriate :
24
Ibid at [89]
VCAT Reference No. P1697/2008, B18/2008
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
the impact of the sale or consumption of liquor permitted by the
liquor licence on the amenity of the surrounding area;

the impact of the hours of operation on the amenity of the
surrounding area and the impact on the number of patrons;

the cumulative impact of an existing and proposed liquor
licence, the hours of operation and the number of patrons on the
amenity of the area.
149 We consider that the proposal is appropriate for the site having regard to
the purposes of the licensed premises provisions and the purposes of the
CDZ3 which encourages redevelopment of land for a mixture of uses
including entertainment.
150 Whilst the focus of most objectors and the Responsible Authority was on
“the gaming activity” there is a need to give serious consideration to the
offsite amenity impacts of the proposed uses including their hours of
operation. The offer by Mr Townshend to reduce the operating hours to
1.00am only is influential in our decision. We acknowledge it was offered
to alleviate concerns about the extent of gambling, but it also reduces the
potential for amenity conflicts with nearby residential uses.
151 We have also drawn a distinction in operating hours for the function
rooms, café and bar operating within the confines of a Club that may wish
to run functions such as business breakfasts, café and dining for members
and nearby residents and other local community groups. If anything,
based on the focus of opposition about gambling by most residents and
the Responsible Authority we consider the broader the amount of services
provided to the local community and its members the greater the net
benefit achieved.
Off Premises Retail Alcohol Sales
152 We acknowledge the general concern by RAIDIM about off premises
retail alcohol sales. Based on the submissions there is little intention to
supply retail sales, but it may occur as part of the licence. We suspect that
in reality it will rarely occur. We see no major difficulty with the
occasional supply of alcohol to a club member, provided it is in the
context of a minor adjunct or ancillary activity of the club.
Scale and Context
153 As we have previously stated we consider the proposed development is
generally in accordance with the approved development plan, therefore
under clause 4 CDZ3, there is no requirement for a permit for buildings
and works.
154 Mr Pitt sought to comment on the built form and scale of the development
with reference to its excessive plot ratio, method of construction above the
raised surface of the land and pushing the volume of the building to site
boundaries. This was similar to Mr McNabb’s criticism mentioned earlier
from the inappropriate form and scale to the type of uses recommended
VCAT Reference No. P1697/2008, B18/2008
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for a neighbourhood activity centre. It was Mr McNabb’s view that the
proposal does not respond to its context and is not acceptable from an
urban design perspective, given its location immediately adjacent to the
retail and community hub of the Edgewater neighbourhood centre.
155 Mr Gattini was critical of aspects of the scale and appearance of the
development25 with particular reference to:

The lack of a commercial interface to the north.

The less than optimal south and east elevations, including the lack
of engagement with the public domain, and

A consideration in the reduction of the perception of bulk by
increasing the southern setback, and better articulating the building
with recessed balconies
156 We do not share Mr Mc Nabb’s criticism of the type of uses or extent of
floor area. The approved development plan and the provisions of CDZ3
anticipate a three storey building with a hard edge built form to street
boundaries. When the proposal is examined in the context of the type of
development recently approved in the vicinity of the site, including the La
Scala development to the north and the office building to the northwest,
we consider the use and development, as revised, has responded in an
appropriate manner to its policy and physical context.
157 Similarly, we do not consider the proposal will adversely affect the local
(or neighbourhood) activity focus. The development now has a northwesterly focus. The entrance is not on the primary pedestrian route
between the residential precincts to the east and the local retail focus. The
Aldi Supermarket and three shops that form the focus of the
neighbourhood activity centre turn their backs on the development.
158 Possibly with a view to seeking to address some of the issues raised,
whilst no permit is required, Mr Townshend provided, late in the hearing
a revised layout of the development. Having viewed this revised layout
we think it should be preferred and make the following comments:

25
the pedestrian and vehicular entry point is shifted from the south-west
corner of the site to the north-west, a less sensitive location;

vehicular access for short-term taxis pick-up and delivery is
incorporated together with a good opportunity for access to a taxi rank
away from the residential interface, lessening vehicular movements
and potential conflict close to the southern residential interface;

the main pedestrian entrance is moved further away from the
pedestrian link route between housing in Edgewater Estate and the
local shopping focus; and
Witness Report Giovanni Gattini at pages 25-27
VCAT Reference No. P1697/2008, B18/2008
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
the projecting section of the building over Edgewater Boulevard has
been removed better articulating the building and reducing the
impression of bulk and massing on that attractive tree lined street.
Plot Ratio
159 There did not appear to be a proper assessment of the plot ratio of the
development undertaken, at least until the issue was raised by the Tribunal
in the hearing. All parties presumed the site plot ratio was less than 1.5.
As referred to above this appears to have been based on an old planning
scheme.
160 In our view the plot ratio figure in clause 14 appears to be a remnant from
the pre VPP planning scheme and may have been incorrectly applied
without a proper appreciation of the ramifications that took place with the
change in the definition of plot ratio in the late 1990’s.
161 Mr Gattini claimed the development was too intense but did not refer
specifically to plot ratio, its definition or permit trigger. Instead he
focussed on the activities and the gaming facility in particular. This is
somewhat odd because historically plot ratio has been used as an indicator
of the commercial intensity of a development.
162 In this context we sought information about recent development approvals
in the vicinity of the site. We were better able to understand the level and
intensity of anticipated development for this section of the mixed use area
after viewing the three storey office building and the plans of the La Scala
development (approved by the Responsible Authority, but not
developed)26.
163 We may have come to a different conclusion if all buildings were of a size
similar to the single storey Aldi supermarket to the west, however based
on similar calculations of the La Scala development, particularly the
northern office building, we are satisfied there is justification to allow the
increase in plot ratio above 1.5.
164 Criticism of the excessive intensity of the uses proposed appears to us to
be flawed. We note the main focus of criticism was the proposed gaming
facility yet it will only occupy approximately 300 square metres, or about
20%, of the floor area of the proposed club floor area. It may facilitate a
good proportion of the cash flow brought to the club, but it is not the only
activity on the land.
165 In terms of parking and traffic generation it is the whole facility, including
function rooms, dining and bars that are assessed, not just the gaming
facility. Activities like the function rooms and bars can also contain large
groups of people yet no analysis was provided of those facilities,
26
The La Scala development was subject to review on the basis of the rate of car parking but this was
subsequently settled by consent in application P247/2009
VCAT Reference No. P1697/2008, B18/2008
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presumably because the Responsible Authority saw those facilities as
acceptable.
166 Accordingly, when we viewed the three storey height and the correctly
applied plot ratio calculations, we are satisfied that the proposed
development is reasonable in built form and intensity for this mixed use
area.
GAMING
167 Section 3.3.7 Gaming Regulation Act 2003 requires the Commission and
in turn the Tribunal in making its determination to take into consideration
the following relevant parts:
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.
168 Maribyrnong City Council, the relevant local government authority made
a submission to the VCGR addressing the economic and social impact of
the proposal for approval on the well-being of the community, and also
taking into account the impact of the proposal on surrounding municipal
districts. The VCGR determined to grant a gaming licence for the Club to
operate 70 egms at the proposed premises at Edgewater. The Council now
seeks review of the VCGR’s determination.
169 Three questions arise for consideration by the Tribunal:
1. Does the Club have authority to make the application in respect of the
premises?
2. Are the proposed premises, once built, suitable for the management
and operation of gaming machines?
3. Will the net economic and social impact of approval not be
detrimental to the well-being of the community of the municipal
district in which the premises are located?
170 The Club until 1997 operated entirely out of premises known as the
Whitten Oval. It has now re-located its home football games to
Docklands. The social club at Whitten Oval was granted a gaming licence
in 1992 for 105egms. This has been reduced twice, firstly by the operator
providing the egms and then by the Minister for Gaming, imposing a cap
on egms particularly in the municipality of Maribyrnong. The Club has 48
VCAT Reference No. P1697/2008, B18/2008
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egms at Whitten Oval and also operates Club Leeds which had its egms
reduced to 30 and leases the Vic Inn in Williamstown.
171 Once the ground at Whitten Oval was no longer used for football games
the facilities deteriorated. The Club was successful in receiving a Federal
Government Grant ($8m), along with grants from the State Government,
Victoria University (who is to use two floors as an experimental teaching
centre), philanthropic trusts, the AFL and Maribyrnong Council totalling
$26m towards redevelopment of the Whitten Oval. The redevelopment is
progressing rapidly.
172 It was acknowledged that underpinning some of this funding was the
proposed relocation of the egms partly due to the relationship with a child
care centre to be established at the Whitten Oval27. The Club is keen on
ensuring that it can relocate its social venue within the municipality. The
site for the proposed development being only 1.6km from Whitten Oval.
173 The original application before the Commission was for 65 egms, it was
amended to 70 egms and the Commission was advised that all the egms to
be located at the proposed Club Edgewater would be relocated from other
venues within the City of Maribyrnong28. Further that if the application
was approved, 11 egms would be removed altogether from the
Maribyrnong municipality.
Does the Club have authority to make the application in respect of the
premises?
174 Much was sought to be made of the lack of a finalised agreement between
the owners of the site and the Club in relation to the operation of the
venue. Nothing was made of this before the VCGR.
175 Mr Stubbs indicated there has been no agreement given the changing
gaming machine environment as a result of the Governments’
announcements post 2012.
176 In closing submissions Mr Townshend indicated the Club would be
prepared to have a condition on its planning permit requiring presentation
of the leasing arrangements.
177 Given the representation of the parties before us it is our view that the
Club has authority to make the application and that a condition requiring
the citing of a lease agreement could be included in the planning permit.
Are the proposed premises, once built, suitable for the management and
operation of gaming machines?
178 The premises are well laid out and considered suitable for the operation of
gaming machines. The Tribunal agrees with the VCGR’s conclusion that
27
Letter Godwin Grech, Department of Prime Minister & Cabinet, 10 November 2008, letter/email
Victoria University, planning permit
28
Whitten Oval (48), Club Leeds (5), Yarraville Club (7), Powell Hotel (7), Braybrook Hotel (8)
VCAT Reference No. P1697/2008, B18/2008
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the building proposed will provide very adequate accommodation for the
purposes proposed. The space occupied by gaming will comprise only
20% of the available floor space on the ground floor.
179 The Tribunal acknowledges, as did the VCGR, that the Club has a proven
history of responsibility operating gaming venues. It has also fulfilled its
requirements and been actively involved in assisting problem gambling
service providers with educating the community in relation to problem
gambling.
Will the net economic and social impact of approval not be detrimental to the
well-being of the community of the municipal district in which the premises are
located?
180 It was the Commission’s view that the positive impacts of the proposal
outweigh features of the proposal that may be detrimental to the wellbeing of the community. In this respect the Commission considered the
reduction in the number of egms in Maribyrnong, no increase in gaming
venues and an overall reduction in egm expenditure were all positives. It
further considered the 70egms were to be relocated from more
disadvantaged areas within the municipality to an area of less
disadvantage, which was also predicted to increase in population. The
community would be provided with a quality social venue resulting in not
only construction, but on going employment opportunities which would
stimulate economic activity within the municipality.
181 The detrimental impacts are said to relate in particular to the location of
the proposed venue. Firstly it is in close proximity to a supermarket,
particularly targeted at lower income shoppers; secondly it is in close
proximity to a recognised disadvantaged area referred to as the
Empire/Eldridge area to the south. The underlying premise being that
persons with lower incomes or particularly disadvantaged were more
vulnerable to problem gambling. Thirdly the residents in close proximity
to the site are unhappy about it being located close by.
182 Maribyrnong has a high number of egms within its municipality. As a
result of the imposition of the cap by the Minister for Gaming in 2007
there was an overall reduction in egms in the municipality from 675 to
511 (24%). The Maribyrnong community, because of this high
concentration of egms, has easy access to them and although it was
recognised they do make a community contribution in the form of
entertainment, local employment and the provision of community
facilities, such benefits to the community were considered, particularly by
Dr Kerkin and Dr Livingstone, as being overstated.
183 RAIDIM submitted it reflected the overwhelming community opposition
to the proposed gaming venue. RAIDIM referred to the overwhelming
concern by residents regarding the introduction of gaming in close
proximity to the shopping centre. They reiterated the views expressed by
Dr Kerkin and Dr Livingstone regarding disadvantaged persons being
VCAT Reference No. P1697/2008, B18/2008
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more vulnerable to gambling addiction, the proximity of the Aldi
supermarket as well as the close proximity to the Empire/Eldridge area.
184 RAIDIM presented a thorough and well thought out submission on behalf
of its current membership, indicated to be almost 200 which it is
understood include nearby, as well as residents further away within the
municipality of Maribyrnong. It also indicated it was speaking on behalf
of the 2,500 people who had signed a petition against the proposal.
Gaming is but one issue the group has opposed having been formed in
relation to opposition to development proposals.
185 Mr McKenzie made an individual submission advising us that he had
succumbed to being a problem gambler. He gave some details as to how
this had affected his family and life generally. He indicated he had retired
to Edgewater and was vehemently opposed to the proposed introduction
of a gaming venue in close proximity to his residence as well as the retail
area of Edgewater.
186 We understand Mr McKenzie’s personal reasons for not wanting a
gaming venue within Edgewater, however we note that he lives in close
proximity to other gaming venues, including the Powell Hotel and already
has to grapple with issues of resistance. He indicted to the Commission
that he visited the Powell Hotel to gamble, although we were not
informed that he was still doing so.
Social Impact
187 Four representatives of the Club29 gave evidence to the Tribunal, as they
did before the Commission. These witnesses provided an insight into the
Club’s financial difficulties and improved on field and off field fortunes
culminating in a turn around in revenue since 2007.
188 They all supported the view that this venue was an essential element in
allowing the Club to maintain a social venue within its traditional
heartland and in relatively close proximity to its training and
administration facilities at the Whitten Oval.
189 Club Leeds, although located in the central shopping area of Footscray,
does not present in any way as the “social club of the Western Bulldogs”.
Likewise it is also indicated that with the Edgewater proposal there will
not be any overt branding to identify with the Club.
190 Reference was made by Mr Quick, as well as the Club witnesses to the
members of the Club, of whom half, it was stated, reside in the western
suburbs. The Club is also recognised by the Council as one of the ‘icons’
of the region with its long history closely tied to the social and cultural
heritage of the region and because of this its significant contribution to the
economy of the region. We note the Council and Club entered into a
29
Mr David Smorgon, Club President; Dr Campbell Rose, Chief Executive Officer; Mr Robert Stubbs,
Chief Operating Officer; Ms G Hamilton, Director
VCAT Reference No. P1697/2008, B18/2008
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Memorandum of Understanding in 2004 which recognises the
contribution and level of involvement in the community by the Club.
191 Mr Quick referred to the Club’s community program initiatives which
related to a healthier, safer, engaged and sustainable community. He
sought to link the programs directly to gaming revenue and indicated part
of the involvement in community activities is a requirement of the AFL.
192 All four Club witnesses highlighted the need for revenue from the egms to
make a contribution, particularly to community based programs run by the
Club, including its Spirit West Services (SWS). It was acknowledged that
the social club declined and so did the revenue when games were moved
from Whitten Oval, due in part to the lack of club members frequenting
the Whitten Oval.
193 The Club witnesses inferred that without the revenue from gaming the
Club would be unlikely to continue to provide its community services. If
permitted however, this would possibly assist the Club in being able to
increase the level of community service provided through SWS.
194 The VCGR was satisfied the operation of SWS involves costs born by the
Club of at least $400,00030 but it did not accept evidence which suggested
a direct link between gaming and SWS, although they did accept that
without the revenue from gaming, the operation of SWS would be
severely compromised.
195 The Tribunal is unable to accept, as did the VCGR, that there is a clear
link between gaming and the community services provided by the Club.
There is a lot of sharing of facilities and financing going to SWS which
comes out of the general revenue of the Club. There did not appear to be
any distinct allocation, specifically of funds derived from gaming that
were directed specifically to the community services. This is not however
to say that located as it is within what is considered a disadvantaged
community the services provided by SWS are not to be undervalued and it
should be recognised that in this respect the Club is making a significant
contribution.
196 The evidence indicated community services are an element that is
required by the AFL for all football clubs to undertake. It was clear that
all AFL Clubs conducted, or had some involvement, and supported some
form of community services. All AFL Clubs within Victoria are also
involved with venues that provide gaming. Mr Catterall was very clear in
the expectations the AFL placed on clubs in this respect, considering that
revenue from social clubs, and in particular egms, helped clubs remain
competitive in the AFL and a viable organisation in the community. It
seems to us that the Club would be required to continue its involvement in
community services in some form or another to meet its AFL obligations,
although we recognise that the type and extent of support could change.
30
Matthew Steer Report 6 November 2008
VCAT Reference No. P1697/2008, B18/2008
Page 42 of 65
197 It was put to us that there are other services within the municipality that
also undertake similar community services. Given the nature of the
community within the municipality the more services that can contribute
to assisting this recognised disadvantaged community the better and the
relationship with the Club is considered to be an excellent selling point for
getting some of the disadvantaged members of the community involved in
the programs offered. We were advised about one program known as
FRESH31 which appears no one else is carrying out.
198 We heard evidence that this program was created when the Club was in
severe financial trouble. We would make the observation that if such a
program can be embarked upon when the Club was experiencing financial
difficulty, and has since been expanded upon, we do not consider that
such a program would be lost merely because of a loss of revenue from
gaming, if not permitted at this venue.
199 If the program is discontinued or changed we believe it could be for a
variety of reasons, not merely a dependency on gaming revenue. We note
from the evidence of Ms Hamilton and Mr Christoforou that the Club’s
connection with such a program has attracted additional sponsorship.
200 Similarly if the gaming venue is approved it does not necessarily follow
that there will be an expansion of the SWS, although it would be hoped
that a club that becomes more profitable can make an increased
contribution to the community in which it is located.
201 The Responsible Authority in its submission recognised that there are
various benefits to the community that arise as a result of the provision of
SWS and other community services.
202 Both Dr Kerkin and Dr Livingstone sought to emphasise the impacts of
problem gambling particularly amongst the disadvantaged members of the
community and sought to highlight the high number of gaming machines
that already exist in Maribyrnong and the highly disadvantaged
community within the municipality in socio-economic terms.
203 Whilst Dr Livingstone’s evidence was very interesting we found that it
was very much focussed on his view that gaming machines should not be
permitted anywhere as they lead to problem gamblers and the issues
surrounding such a group.
204 Dr Livingstone was described as a crusader against gaming machines and
whilst we found his evidence to be enlightening the comments he made
seemed to be more apt for a Government forum rather than in relation to
the matters we are required to consider under the Gambling Regulation
Act 2003. We have therefore accepted his evidence in light of the
statement by Morris J in Branbeau32:
31
A community based education program for youths (15-20 years) experiencing difficulties with
mainstream education.
32
Branbeau Pty Ltd v VCGR [2005] VCAT 2006 at [50]
VCAT Reference No. P1697/2008, B18/2008
Page 43 of 65
Thus the Tribunal ought to consider the test in the context that the
operation of up to 27,500 gaming machines in Victoria is lawful, that
gambling is a valid activity for Victorians, and that responsible
gambling should be fostered, not only to minimise harm caused by
problem gambling, but also to accommodate those who gamble
without harming themselves or others.
205 Both Dr Kerkin and Mr Quick referred to the SEIFA index (Socio
Economic Index for Areas) as providing an indication of the socio
economic disadvantage profile of the City of Maribyrnong. Under the
SEIFA scale of socio economic disadvantage the lower the score the
higher proportion of relative disadvantage, the higher the score the lesser
proportion of relative disadvantage.
206 Based on the 2006 SEIFA index of disadvantage Maribyrnong is ranked 7
out of 80 Local Government Areas (LGA) indicating that Maribyrnong
comprises areas that are relatively disadvantaged. This ranking has, as Mr
Quick observed, changed since 2001 when it was ranked 2 out of 79 LGA
suggesting the improvement could in some way be due to the new
developments within Maribyrnong, such as the Edgewater Estate.
207 Consideration was given to the area within 1km of the proposed
development and details of the SEIFA index score and percentile ranking
for the Census Collection Districts (CCDs) within this radius were taken
into account. In relying on this indicator Dr Kerkin sought to show that
the 1km catchment area of the proposed Edgewater venue was severely
disadvantaged. Dr Kerkin referred to various studies that indicate that
areas of socio-economic disadvantage are more vulnerable to problem
gambling and the negative effects of gaming33.
208 The area to the south is known as the Empire/Eldridge area34. This area at
2% is ranked lowest and is recognised as being severely disadvantaged.
This is compared to the two CCD areas which make up the Edgewater
Estate35 ranked at 72% and 96% indicating less disadvantage.
209 Dr Kerkin concluded that the 1km catchment area is demographically
over-represented by all of the known at-risk groups, including financially
dependent and isolated women, people with mental health issues,
substance and alcohol abuse/dependency as well as unemployed people,
people from non- English speaking backgrounds and lone parents.
210 The VCGR agreed, as we do, with Dr Kerkin that the catchment area of
the Edgewater Club contains a population with high levels of
unemployment, low household and family incomes and signs of social
isolation or weaker community connections. We note however as the
VCGR noted, the Empire/Eldridge area is already in close proximity to a
gaming venue, namely the Powell Hotel which provides them with
33
Tuggeranong Study (ANU) 2004
CCD 2300110 (SEIFA Index 881) and 2300107 (SEIFA Index 788)
35
CCD 2300115 (SEIFA Index 1,066) and 2300111 (SEIFA Index 1,129)
34
VCAT Reference No. P1697/2008, B18/2008
Page 44 of 65
convenient access to egms which is not subject to membership and sign in
requirements anticipated for the proposed development.
211 Dr Kerkin did not agree that the proposed removal of a number of egms
from other establishments, ranked relatively high in socio economic terms
as disadvantaged, to an area of less socio economic disadvantage as a
positive benefit for the community, particularly in relation to the
community located in close proximity to each establishment. An example
being the nearby Powell Hotel which will have a reduction of 7egms and
8 egms from the Braybrook Taverner located in a highly disadvantaged
area.
212 Dr Kerkin expressed the view that the placement of egms at Edgewater
would increase the opportunities for convenience gaming as it could not
be considered a destination venue. It would be easily accessible and
would increases the exposure of the community to gaming machines as a
result of trips to the neighbourhood centre in which it is to be located. Dr
Kerkin also considered the new venue would be more attractive than
existing venues.
213 No evidence was presented to accept Dr Kerkin’s conclusion that the
proximity to retail facilities was a significant factor. Dr Kerkin asserted
Edgewater is slightly more accessible due to pedestrian accessibility. We
contrast this to Club Leeds and its location in the centre of the Footscray
shopping area. Whilst said to be accessible we note the proposed venue is
not located on a major road, unlike the Powell Hotel and Braybrook
Taverner.
214 It is evident that within close proximity to the proposed venue there is an
area of high socio economic disadvantage, it was acknowledged that this
is the situation in close proximity to the Whitten Oval, as well as to the
other establishments from which egms are to be removed. This situation
currently exists and will not change as a result of the proposal.
215 The proposed venue does not contribute to an increase in egms within the
municipality rather it will have a positive benefit in reducing the number
of egms in highly disadvantaged areas as well as the overall number
within the municipality. In this respect 70 egms will be relocated not to an
area recognised as being highly disadvantaged but rather to an area that is
less disadvantaged.
216 Whilst the proposal provides a new venue that is easily accessible this is
no different to the existing venues which are also easily accessible36.
Whilst Dr Kerkin and Dr Livingstone considered that the proposed new
venue would attract people as it would provide more attractive
surroundings, this may be so, but if it attracts members of the community
who already frequent the other venues, particularly the Powell Hotel, this
Destination – Style Gambling, Department of Justice, May 2007; Destination Gaming – Evaluating the
benefits for Victoria, Department of Justice, May 2008
36
VCAT Reference No. P1697/2008, B18/2008
Page 45 of 65
is no different to the existing situation. There are already members of the
community who attend the other establishments, changing and attending
this venue will not necessarily lead to a conclusion that there will be an
increase in the number of the community who will now gamble; rather it
just leads to a reduction in those members of the community who seek to
gamble, attending one venue rather than another.
217 In terms of social benefits we consider the proposed venue provides a
choice and improved facilities for people who wish to participate in
gaming37, an activity which is not only legal but supported by
Government policy. The objectives expounded in the legislation38 are to
minimise harm from problem gambling and accommodate those who
gamble without harming themselves or others, to promote tourism,
employment and economic development generally in the State. We
consider the accessibility of the venue as being in this respect a social
benefit.
218 We contrast the proposed venue which is to be a club facility to that of a
hotel. As mentioned previously a club has membership rules and
requirements. There are no such restrictions on a hotel. We consider that a
club venue where admission is regulated, and there can be imposed
limited hours of operation of the gaming room, reduces the availability for
problem gamblers, and reduces impulse access. We also note Mr Quick’s
comments regarding the Club’s good repute regarding responsible service
of gambling. We note that the Club is required to adopt a Responsible
Gambling Code of Conduct and provide for a self-exclusion program
approved by the VCGR.
Community Well-Being
Survey
219 The recent determination in Romsey Hotel Pty Ltd v Victorian
Commission for Gambling Regulation and Macedon Ranges SC39 made it
clear that the no detriment test in section 3.3.7 (1) (c) ‘is a composite test
requiring consideration of a single net impact, in economic and social
terms on wellbeing of the community’.
220 It is accepted that evidence of community attitude toward gaming is
always a relevant matter to be considered. This is a matter of weight and
is dependent on the nature, extent and cogency of evidence. The Court of
Appeal in relation to Romsey40 stated:
It follows, in our view, that if approval of gaming at particular
premises is likely to cause unhappiness or discontent in that
community (or any part or parts of it), that consequence is a ‘social
37
Kilsyth and Mountain District Basketball Association Inc v Maroondah CC [2007] VCAT 2
Sections 1.1 (2) (a) and (f) Gaming Regulation Amendment Act 2003
39
[2009] VCAT 2275 at [332]
40
Macedon Ranges SC v Romsey Hotel Pty Ltd & Anor [2008] VSCA 45 (19 March 2008)at [44-45]
38
VCAT Reference No. P1697/2008, B18/2008
Page 46 of 65
impact of approval, which will be detrimental to the well-being of the
community’. It will be detrimental to well-being because it diminishes
the citizens’ sense of happiness with, or contentment in, their
community. Evidence tending to show a detriment of that kind as the
likely or probable consequence of approval must , therefore be taken
into account by the decision maker in determining whether the
statutory ‘no net detriment’ test is satisfied.
221 The community of the Edgewater estate is a relatively new community.
The estate contains approximately 600 new dwellings and is expanding
with additional dwellings under construction and is described as being a
master planned community. The evidence indicated that by 2011, the
expected time the proposed development would be in operation, the
number of residents in the Edgewater Estate will have markedly increased
from currently 1,200 to an expected 2,500.
222 Mr Quick concluded that the SEIFA rankings suggest that the Edgewater
Club, based on a 1km catchment, has a better socio-economic profile than
the Braybrook Taverner, but is slightly less advantaged when compared to
the Yarraville Club. In relation to the other catchments, the Edgewater
Club appears to reflect a similar profile to the Whitten Oval, Powell Hotel
and Club Leeds, although the CCDs that comprise the Edgewater Estate
are noticeably better than other CCDs in the assessment41.
223 We accept based on the SEIFA rankings, that there will be a higher
proportion of residents within close proximity to the proposed venue in a
CCD predicted to have a higher SEIFA index score, than the CCDs in
which the machines are currently located. We accept that the greatest
impact will be felt by those within a 1km radius, which consists of 9
collector districts, of these two are within the highest rankings, whilst a
number of others were extremely low falling within the lowest 25%.
224 We note that Dr Kerkin did not consider the projected population increase
within the Edgewater Estate. Housing stress was referred to which relates
to expenditure and assumes more than 30% of available household
income. The VCGR did not consider there was a high level of housing
stress in Edgewater Estate and we were not given any evidence to suggest
otherwise.
225 A survey of members of the Club was carried out. Of the 720 responses,
644 supported the proposal and 76 opposed it. 34% indicated they would
use the gaming room.
226 Mr Calwell conducted a telephone survey which included 152 residents of
Maribyrnong/Edgewater. His survey extended further than did Mr
Hubner, which concentrated on a 1km radius and used the drop off and
pick up survey method.
41
Rhys Quick Expert Witness Statement, may 2009 at page 35
VCAT Reference No. P1697/2008, B18/2008
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227 The respondents to Mr Calwell’s survey were informed about the
proposed development including that gaming machines would be
relocated from other venues and 11 removed from the municipality, the
potential employment opportunities and that it would provide funds for
the Club to continue its community services. If the respondent expressed
opposition to the inclusion of gaming at the venue they were informed
that the proposal was an ‘all or nothing’ proposal and if there was no
gaming the development would not proceed.
228 In Mr Calwell’s survey 53% supported the proposal and 15% neither
supported nor opposed it (68%). Of those that opposed it the greater
majority, that is 80%, opposed it strongly. A number changed their
position when told the development would not proceed if there was no
gaming.
229 Mr Calwell’s survey shows that residents close to the venue particularly
in the Edgewater Estate were more likely to oppose the proposal than
residents located further way.
230 Mr Hubner conducted two surveys one of 550 households relating to the
original application and 150 in a clarifying survey relating to the amended
application. In the later survey additional questions were put including
asking for comments regarding the respondents’ sense of well being and
their level of happiness and contentment and the effect upon these matters
if the application was successful.
231 700 houses received a survey form and completed forms were returned
from 484. The respondents were given information about the proposal but
were not asked, as in Mr Calwell’s survey, to comment on the different
components of the proposal. 68.7% of respondents were opposed to the
application indicating the effects would be adverse.
232 The VCGR took into account the surveys by both Mr Calwell and Mr
Hubner, observing that residents in close proximity to the proposed venue
were well informed about the proposal as a result of publicity and public
meetings. In relation to rating the impact the proposal would have on a
range of socio-economic aspects of the local community the VCGR
identified the greatest issue commented upon was ‘traffic’ with
gambling/addiction issues being referred to after noise, crime and antisocial behaviour.
233 The statements of the residents appeared to be general. Gaming venues
have been located within the municipality for a considerable time; this is
not something new only that the venue is in a new location. This is unlike
the situation in the small township of Romsey.
234 Mr Calwell found it was less unpopular amongst a broader section of the
population. It was suggested the Council’s view is that the Club will be
too popular.
VCAT Reference No. P1697/2008, B18/2008
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235 We consider the relevant community in relation to this application is a
part of the community of Maribyrnong and relates to the community
generally within a 1km range of the proposed development. We adopt this
view as it was apparent from Mr Calwell’s wider survey that there was
less opposition as compared to the survey carried out by Mr Hubner
which focused on the residents within a 1km radius and it is this
community that we consider is likely to experience unhappiness and
discontent. We note in the survey carried out by Mr Hubner the greatest
impact as a result of the proposed development related to traffic issues
and the concern with the possibility of increased gambling came after
safety and policing.
236 We do not consider that the community will be worse off because of the
approval. We accept that with the exception of the Yarraville Club all of
the venues from which machines are to be taken are more severely
disadvantaged than the Edgewater area42.
237 The evidence indicated that by 2011, the expected time the proposed
development would be in operation, the number of residents in the
Edgewater Estate will have markedly increased from currently 1200 to an
expected 2500. There is no expectation that the population in the nearby
Empire/Eldrige area will either increase or decrease but rather it is
expected to remain static.
238 We conclude that there will be no net social detriment. The impacts
assessed are the marginal impacts of the approved venue that is only those
impacts that will occur as a result of the application rather than those that
would have occurred in any event43.
239 There will be no increase in gaming venues within the municipality and
although a number of people within close proximity to the site are
unhappy about the proposal we consider this view would apply equally
regarding the location of the nearby existing Powell Hotel and its gaming
venue. We do not consider that the surveys indicate there will be an
increase in unhappiness or discontent within the community in close
proximity to the proposed development as a result of the introduction of
gaming, as this community is already in close proximity to a gaming
venue.
240 In our view the factors that make up this community will not change as a
result of the presence of gaming at Edgewater. This is due to there already
existing within the municipality and in close proximity already to this
area, gaming venues. As did the VCGR, we consider that residents who
live in closer proximity to the proposal, whilst opposed to gaming, do not
rate it as one of the top issues for the local community to address. We also
consider that the potential affect of gaming in this area where there are
42
43
Rhys Quick Witness Report
Branbeau Pty Ltd v Victorian Commission of Gambling Regulation [2005] VCAT 2006 at [47]
VCAT Reference No. P1697/2008, B18/2008
Page 49 of 65
already venues in close proximity is in vast contrast to the situation in
Romsey where there were no gaming venues.
Economic Impact
Employment
241 Mr Quick supported the view that the proposal will provide employment,
not only at the construction phase but also on going in relation to the
running of the various facilities (approximately 90 staff of mixed
casual/part-time/ full-time). Not only would increased employment be of
benefit to the community, recognised as having a low employment rate, it
will also have a multiplier effect on the broader economy as a result of
increased demand for materials, services and products.
242 Unlike Mr Quick, Dr Kerkin only focussed on the likely social impact of
the proposal on the community and did not give any consideration to the
economic impact.
Gaming Expenditure
243 Gaming expenditure in Maribyrnong is recognised as being high
compared to the State average. The Club submitted ‘expenditure on
gaming is not necessarily a detriment to the community’. In this respect it
was submitted the majority of gaming expenditure is voluntary and made
by persons who are not problem gamblers enjoying a legal entertainment;
the Productivity Commission has recognised a level of economic benefit
flows from such expenditure; and, at least 1/3 of gaming expenditure is
remitted to the government by way of direct or indirect taxes then spent
for the benefit of the community.
244 It was submitted a substantial proportion of the gaming expenditure at
Edgewater will be transferred from existing venues and as stated by
Morris J in Kilsyth44, ‘to that extent, cannot as a mater of logic exacerbate
problem gambling’.
245 In the circumstances of this proposal there is no proposed increase in the
number of egms within the municipality as there would be with any other
new venue proposal. The Club is proposing to close and relocate its 48
egms currently at Whitten Oval to Edgewater, and increase the number of
egms to 70 by taking egms from other venues within the municipality45.
The Club has also agreed that 11 egms would be removed totally from the
municipality.
246 The Tribunal accepts, as did the VCGR, that due to the movement of
egms from the different existing locations, including Whitten Oval, there
will be a transfer of expenditure from the areas in which the existing egms
are located to the new Edgewater venue. The Tribunal does not accept
44
45
Kilsyth and Mountain District Basketball Association Inc v Maroondah CC [2007] VCAT 2 at [ ]
Club Leeds (5), Yarraville Club (7), Powell Hotel (7) Braybrook Tavern (8)
VCAT Reference No. P1697/2008, B18/2008
Page 50 of 65
there will be no transfer of expenditure as submitted by Dr Livingstone.
As well as a transfer of expenditure, Edgewater will also attract an
element of new expenditure.
247 Mr Whitehouse gave evidence that the likely annual expenditure would be
$6,3m of which 77.7% of this would be transferred expenditure leaving
$1,41m as new expenditure. Mr Whitehouse further predicted that this
would result in a net annual reduction in annual egm expenditure within
the municipality of minus $709,102. In reaching these figures Mr
Whitehouse relied upon the Geotech model46.
248 The information provided by the Geotech model and now relied upon by
the Club has been accepted by the VCGR, as well as the Tribunal, in a
number of previous determinations47. It is not perfect and it can be seen
from a comparison of the figures released by the Minister for Gaming in
March 2009 and the predicted revenue from either Tattersall’s or Tabcorp,
as Mr Gill pointed out, there can be significant variations from the actual
figures, on occasions over and on occasions below what was predicted.
Often when looked at closely however, such variation can be explained,
such as refurbishment of a venue.
249 The Geotech model does not look at any one venue in isolation; it forms a
view as to the likely effect of the removal of machines or the addition of
machines based upon how that venue sits within the network, how close it
is to competing venues. It therefore endeavours to estimate the changes
affecting venues within the LGA and outside the LGA that might be
affected by the changes. It was acknowledged that there is a limitation of
the Geotech model in that it is dependent on the information fed into it. It
is also less accurate in predicting expenditure within clubs compared to
hotels.
250 The Geotech model considers a number of factors, including venue
attractiveness, which is partly subjective, as well as objective. This
includes ease of access, availability of parking, external and internal
appearance, the number of egms and other matters. Attractiveness is not
the sole determinative of revenue, the venue may be rated highly for
attractiveness but have a low revenue rate and vice versa48.
251 The VCGR considered that on the evidence available to it there had never
knowingly been an understatement of the likely egm expenditure. The
VCGR expressed the view that overall the predictions have proved to be
extremely accurate and on balance they have tended to over estimate the
likely increase in expenditure rather than underestimate49. It was also
46
The Geotech Model developed in 2007 uses gravity modelling which aims to stimulate the choices
consumer’s make: Statement of Richard Whitehouse, 19 May 2009 Annexure 3
47
Matthew Flinders Hotel, Bell’s Hotel, Mail Exchange Hotel, Kyabram Club Inc, Ballarat RSL SubBranch Inc, Frankston RSL Sub-Branch Inc, Caroline Springs Hotel, Casey Towers Hotel and Lynbrook
Hotel
48
The Powell Hotel indicated a low attractiveness rate but high revenue $4.9m.
49
Commission Report [164]
VCAT Reference No. P1697/2008, B18/2008
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noted that there was a close correlation between the results from the
Geotech model and from the earlier used Spectrum model. The VCGR
concluded the Geotech model offers a greater degree of likelihood that the
picture presented to the VCGR will be accurate50; this is so because
transferred expenditure is an integral part of the calculation of the overall
expenditure to be earned at a venue rather than a separate calculation.
252 Mr Whitehouse encouraged us to take a conservative approach and
proceed upon the basis of adjusted expenditure figures which fall within
the upper range of the 75th percentile confidence range, meaning that 75%
of the time the absolute number provided will be an overestimate and 25%
of the time it will be an underestimate. Whilst doing this for the predicted
expenditure he did not consider this should be done in relation to
transferred expenditure. Applying the upper 75th percentile confidence
range the total expenditure predicted would be $6.6m, new expenditure
would be $1.48m and the change in expenditure for the municipality
would be minus $582,98951.
253 Mr Gill, whilst not providing figures himself, considered the figures
provided by Mr Whitehouse of the expenditure at the Club was
understated and the percentage transfer too high. He also considered the
claimed reduction in egm expenditure caused by the transfer of 22 egms
from other venues and the removal of 11 egms was overstated.
254 Mr Gill adopted a case study methodology to look back to estimate
transferred expenditure52 and concluded there could be 50% transfer.
Under cross examination Mr Gill agreed that for Club Ringwood in an
area with more competition, a new venue is more likely to derive its
revenue from transferred expenditure than from new gaming expenditure.
255 Additional information that was available before the Tribunal that was not
available before the VCGR was the Minister for Gaming’s March 2009
figures which it is understood was released to enable venue operators and
investors to be able to form a view about the performance of venues to
participate in changes to the gaming regulations. Mr Gill referred to three
venues within the list provided by the Minster and highlighted that the
transfer of expenditure estimated by Tattersall’s was overstated. He took
the estimated growth rate average for Victoria for 2006 & 2007 if a new
venue was not introduced. In the example used of the Family Hotel
Drouin the growth was 37% whereas the estimate from Tattersall’s was
60%.
256 Based on the figures in the Minister’s report it was Mr Gill’s view that no
more than 50% transfer figure should be applied. He submitted that if
50% transfer was applied then it was expected new expenditure will be a
lot more. In this respect Mr Gill questioned where this new expenditure
50
Ibid [173]
Statement of Richard Whitehouse 19 May 2009: Table Two: Annual Range of Expenditure
52
He looked at Queenscliff Hotel, Drouin Hotel and Club Ringwood
51
VCAT Reference No. P1697/2008, B18/2008
Page 52 of 65
would come from. Mr Gill indicated that if 50% is applied using Mr
Whitehouse’s estimation it calculates new expenditure of $3.1m,
considerably more new expenditure than Mr Whitehouse’s calculation of
$1.4m based on 77%. Mr Gill submitted that the impact on the LGA will
be a higher new expenditure amount within the LGA rather than less as
Mr Whitehouse calculated.
257 The Geotech model presumes that the removal of egms from venues
results in less expenditure at those venues. Mr Gill looked at what
occurred with expenditure when egms had been removed referring to the
Ministers’ figures. Some have gone down and some gone up and Mr Gill
relied on this to assert that it does not follow that removal of egms results
in less expenditure.
258 It was Mr Gill’s view that the impact of Edgewater will be that
expenditure will go up, that transfer expenditure will be less than 77% and
the impact of the withdrawal of machines is that it will not necessarily
decrease expenditure therefore the overall impact will not be negative.
259 Mr Gill however indicated there was a decrease in revenue in the
Maribyrnong LGA between 6 to 8% when the cap was imposed and
agreed under cross-examination that there was an overall reduction in
revenue as a result of the removal of machines. He acknowledged the
removal of machines often leads to an increase and sometimes a decrease
in revenue. In this respect he indicated there was no change to Flemington
Racecourse Tabaret when machines were removed as a result of the cap,
but the revenue for this venue could go down due to its proximity to
Edgewater.
260 Mr Gill did not in his assessment account for any reduction in revenue at
venues outside the LGA. We note that the $6.3m referred to by Mr
Whitehouse comprises revenue obtained from venues both within and
outside the LGA. The Geotech model indicates places outside the LGA,
namely in Moonee Ponds will be impacted, but any loss in revenue may
not necessarily be directed to Edgewater.
261 Mr Gill did not disagree with Mr O’Hehir regarding the Geotech model,
but submitted the reliability of the model to predict expenditure at a new
venue, such as Edgewater has not been tested. Mr O’Hehir referred to a
checking against the performance of existing venues, as no new venues
have yet opened to test predictions. Mr Gill agreed the Geotech model
produces estimates for egm expenditure that are very close to actual egm
expenditure at existing venues. Mr Gill considered the actual expenditure
achieved at a particular venue and matched it against the Geotech
prediction. Of the 86 cases he considered, Geotech predicted in 2/3rd a
figure which proved to be too low and 1/3rd proved too high. Whilst there
are variances, Mr Gill’s approach has not been tested, whereas we accept
the Geotech model has gone through considerable scrutiny.
VCAT Reference No. P1697/2008, B18/2008
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262 We accept Mr Gill’s suggestions that the accuracy of the Geotech model
must be considered carefully, taking into consideration any matters which
would appear to indicate that the result produced by the model is
unrealistic. If the projected figure of $90,526 per egm is achieved the
expenditure per egm would be the third highest for any club within the
Tattersall’s network in Victoria. When the two clubs achieving a figure of
greater than $90,000 per egm are considered, the VCGR concluded and
we also accept, the estimate based upon the Geotech model is not
unreasonable53, as both are located on major thoroughfares.
263 In relation to transferred expenditure the VCGR did not consider the
estimate of 77.7% as so high to be incapable of acceptance. It is
acknowledged there are a large number of venues within the municipality
and many are in close proximity to the proposed venue.
264 The VCGR accepted that taking into consideration the reductions effected
in November 2007 the overall effect upon a number of venues will be
quite significant. We accept that expenditure per egm in venues which
have fewer egms tends to be lower than in venues with more, therefore if
Braybrook Taverner is to lose 8 or 26% of its 31egms and the Powell
Hotel, the closest venue has a reduction from 30 to 23 or 23% we accept
that based on the evidence of previous reductions, the removal of
machines from these venues will have an impact.
265 The VCGR concluded the estimate of likely egm expenditure at the
proposed venue at the higher range ($6.62m) is reasonable. We accept the
calculation as to the likely change in expenditure within the trade area
caused by the variations in numbers of egms at a number of venues within
the trade area and within the LGA as a whole. We consider that it is
necessary to look at the overall change that will occur within the
municipality which includes the closure of the venue at Whitten Oval, the
reduction in the number of machines at four venues and the eleven over
the whole municipality, as well as the establishment of Edgewater. We
consider that the Geotech model gives us an assessment which Mr Gill did
not.
266 A reduction in overall expenditure can only be a benefit to the
Maribyrnong community. If it is accepted, as put by Dr Kerkin and Dr
Livingstone, problem gamblers contribute a high proportion of gaming
expenditure then an overall reduction in expenditure suggests a reduction
in expenditure by problem gamblers54.
267 The conclusion is that there will be no net economic detriment.
53
VCGR Decision 24 December 2008 ar [188]
Kilsyth and Mountain District Basketball Association Inc v Maroondah CC [2007] VCAT 2 at [40 and
41]
54
VCAT Reference No. P1697/2008, B18/2008
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Cost to Club to commence operation under new gaming arrangements
268 New legislation in the form of the Gambling Regulation Amendment
(Licensing) Bill 2009 was introduced during the time of the hearing and
has now been incorporated into the Gambling Regulation Amendment Act
2003. The legislation introduces significant changes to the supply of
gaming machines within Victoria. The Club considered the changes were
likely to increase the benefits which flow from the application rather than
increase any potential detriment.
269 Under the new legislation a club will be able to operate a gaming business
in 2012 if they hold a current venue operator’s licence; purchase gaming
machine entitlements; have an approved venue; have gaming machines
and connect their gaming machines to the monitoring system.
270 Mr Gill submitted the Club may incur costs in respect of gaming machine
entitlements of approximately $4.18m as well as at Club Leeds and Vic
Inn. As at 4 June 2009 the Club operated Whitten Oval, it was therefore
expected to be able to purchase the potential first 40 gaming machine
entitlements based on the revenue at the Whitten Oval. If this option is not
taken up there is then an opportunity to participate in a competitive
bidding process to be completed by early 2010. Mr Gill suggested
machines could cost in the order of $56,000 to $62,000. Although there
was no evidence as to what the machines might cost there seemed to be
some agreement between Mr Stubbs and Mr Gill but most of Mr Gill’s
evidence in this respect appeared to be based on speculation.
271 It is understood that underlying the legislative amendments is an intention
by the State Government to increase the level of benefits that come from
gaming machines to the community.
272 The Responsible Authority suggested there is no guarantee that the 11
egms would be removed from the municipality, as a venue operator could
apply under the new regime to seek increased entitlements. It is accepted
that Tattersall’s owns the machines installed at Whitten Oval, Club Leeds,
the Yarraville Club, the Powell Hotel and the Braybrook Taverner. The
venues only operate those machines because of contracts with Tattersall’s,
this will remain until August 2012 when Tattersall’s gaming operator’s
licence expires and the new licensing under the legislation takes effect.
Tattersall’s has a contractual right to remove the necessary number of
machines and can ensure none are put back in the venues prior to 2012.
Even if operators purchased additional entitlements under the new
legislation they still need approval to install and operate the machines55.
CONCLUSION
273 Of the uses proposed a planning permit is only required for a ‘restricted
place of assembly’, the installation and use of egms (unless prohibited), to
55
Clause 52.28-1 Maribyrnong Planning Scheme, Ss 3.14.17 (1) (b) and 3.4.20(1)(c) Gaming Regulation
Act 2003
VCAT Reference No. P1697/2008, B18/2008
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use the land to sell or consume liquor, a reduction in the number of car
spaces to be provided and to exceed the plot ratio of 1.5. The other uses
proposed being a residential hotel, food and drink premises, function
centre and office are all as of right.
274 We are not able to consider the built form, scale and context of the
proposal as there is no requirement for a permit for buildings and works.
What is proposed is considered to be generally in accordance with an
approved development plan. We are also confined in relation to hearing
from the third parties, who have objected to the proposal, only in relation
to the installation of egms, the sale and consumption of liquor and a
reduction in the car parking.
275 We have concluded that the area for the purposes of clause 52.28- 4 is
considered to be encompassed by the roads being Gordon Street to the
west, Thomas Holmes Street to the north, Skyline Drive to the east and
Edgewater Boulevard to the south between Skyline Drive and Gordon
Street. We accept that this area as defined, meets three of the four
requirements under clause 52.28- 4, but does not meet the requirement of
being in an area ‘zoned for business’. As it is in an area denoted as being
for mixed uses the installation and use of gaming machines on the subject
site is not prohibited.
276 We consider the strategic intent for the Edgewater Estate is broad and
whilst the zone and policies may focus on retail having a local focus these
provisions do not limit, but rather encourage, employment opportunities
and a mix of entertainment and other ancillary uses which leads us to
conclude the proposal for a restricted place of assembly is appropriate.
We see the range of facilities to be provided as having a local as well as
regional focus, due to some extent with its alliance with and operation by
the football Club, which is historically linked to the municipality, without
necessarily detracting from the primary local retail activity centre focus.
We see the proposed use and development as providing employment
opportunities.
277 There is no ‘one size fits all’ in terms of Neighbourhood Activity Centres,
each must be considered in terms of the zone and relevant policy
provisions. The mixed use area and built form expectations denoted under
CDZ3 are significant, providing guidance regarding expectations for the
site. The built form guidelines for the site are not offended, and the
proposed floor area is consistent with the limits nominated in the purpose
to the CDZ3.
278 The revised layout provided of the development in our view has addressed
a number of amenity concerns raised by the residents. In this respect we
consider the pedestrian and vehicular entry point has been shifted to a less
sensitive location to the north west and will lessen vehicular and
pedestrian movements away from the residential interface.
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279 We consider 295 car spaces to be a generous car parking supply for the
activities proposed and there is adequate capacity in the surrounding road
system to accommodate the traffic generated. We also consider the
recommendations made to assist in reducing the potential escape of patron
noise will also reduce any amenity issues.
280 The gaming component within the venue is a small part of the overall
facility which is to provide not only entertainment but accommodation
and club facilities for members and guests. In this respect we consider it is
significant that the venue is to be a club rather than a hotel. We consider
the venue provides a range of facilities that will provide a positive social
outcome for the emerging new suburb of Edgewater.
281 In reaching the conclusion that the location and premises are appropriate
for the location of gaming machines we have imposed conditions on any
planning permit to issue which in our view may contribute to the
management of gaming by those within the community more vulnerable
to problem gambling. In this respect we have limited the hours of the
operation of the gaming room from 11.00am to 1.00am, deleted the
smoking area immediately abutting the gaming area and required a
Management Plan to incorporate membership requirements, reciprocal
arrangements with other clubs and measures to assist problem gamblers.
282 We acknowledge that there are a large number of gaming machines
located within the municipality of Maribyrnong, that the community has
easy access to gaming machines and that there is a high percentage of the
Maribyrnong community on low incomes who are particularly
disadvantaged and as such may be more vulnerable to problem gambling.
This is an existing situation.
283 Allowing the new venue will not result in any increase in the number of
gaming venues in Maribyrnong. The Club already has a gaming facility at
Whitten Oval. The removal of the 48 egms from Whitten Oval is a
positive step, given the area around Whitten Oval is rated as being highly
disadvantaged. Machines are also going to be removed from other highly
disadvantaged areas including the nearby Powell Hotel and Braybrook
Taverner. We consider that the reduction of machines in highly
disadvantaged areas to Edgewater, considered to be a less disadvantaged
area on the SEIFA rankings is overall a positive benefit to the
Maribyrnong community.
284 We do not consider that the new venue is anymore accessible than
existing venues, we note it is not to be located on a main road. Nor do we
consider that the residents from the nearby Empire/Eldrige area are more
likely to attend the new premises, particularly as they are closer to an
existing venue at the Powell Hotel.
285 Whilst some members of the community within a 1km radius of the
proposed venue have indicated they are opposed to the gaming venue
these people are already located in close proximity to an existing gaming
VCAT Reference No. P1697/2008, B18/2008
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venue at the Powell Hotel. In our view the factors that make up this
community will not change as a result of the presence of gaming at
Edgewater.
286 We accept that there is more than likely to be a reduction in overall
gaming expenditure within the municipality as a result of the removal of
11 egms from the municipality, as was seen when the cap was imposed.
We see such a reduction in gaming expenditure as a benefit to the
Maribyrnong community leading to a possible reduction in expenditure by
problem gamblers. We also accept that there will be a transfer of
expenditure from other venues in highly disadvantaged areas to the less
disadvantaged area of the Edgewater venue as a result of the removal of
machines from several existing venues.
287 We anticipate that there will be increased economic activity in the local
area with at least 75% coming from non-gaming activities, employment
opportunities will be created both as part of the construction phase and on
going as part of the operation of the venue. The ability to relocate its
gaming venue at Whitten Oval to Edgewater will assist in ensuring the
future economic viability of the Club and make some contribution to the
Club’s ability to fund the community services the Club supports which is
seen as an overall benefit to the community. The venue will also provide
new social facilities for the area which can only but be a benefit.
288 We are unable to conclude as to what type of impact the new legislative
amendments will have on either this facility or existing facilities in the
municipality. If any venues wish to increase the number of egms they
already have, this will not happen automatically, they will need to go
through a permit process. We however accept that the underlying intent of
the amendments is to increase the level of benefits that come from gaming
machines to the community.
289 The decision of the Responsible Authority is set aside and a planning
permit is granted subject to conditions. The decision of the VCGR is
affirmed.
Jeanette G Rickards
Senior Member
VCAT Reference No. P1697/2008, B18/2008
Peter O’Leary
Member
Page 58 of 65
APPENDIX A TO APPLICATION P1697/2008
Conditions to be imposed on Permit No. TP708/2007
Amended Plans
1. Before the development commences, amended plans to the satisfaction of the
Responsible Authority must be submitted to and approved by the Responsible
Authority. When approved, the plans will be endorsed and will then form part
of the permit. The plans must be drawn to scale with dimensions and three
copies must be provided. The plans must show the information required under
Clause 9 of CDZ3 and must show:
a. the layout generally in accordance with the plans tendered to the
Victorian Civil and Administrative Tribunal, being those plans marked
‘revision 04’ forming Exhibit A4I in application P1697/2008; and
b. the location of any plant and equipment visible from public areas;
c. a 1.8 metre high transparent screen around the perimeter of the outdoor
areas for the bistro, member’s bar and café constructed from a material
with a minimum surface density of lOkg/rn2 and to be free of any
holes or gaps;
d. deletion of the outdoor smoking court yard area abutting the gaming
facility.
e. a schedule of construction materials, external finishes and colours;
f. a landscape plan.
Uses of the Land
2. The use and development as shown on the endorsed plans must not be altered
without the written consent of the Responsible Authority.
3. Before the development commences evidence of a lease of the Subject Land
to the Footscray Football Club Ltd for a minimum term of ten (10) years must
be provided to the satisfaction of the Responsible Authority.
Electronic Gaming Machines
4. No more than 70 gaming machines are permitted to be installed or used in the
gaming area.
5. Before the use and installation of electronic gaming machines commences, an
Electronic Gaming Machine Relocation Plan is to be submitted to the
satisfaction of the Responsible Authority. The Plan must provide details of
the relocation of 70 gaming machines in the municipality and in particular
show:
a. 48 electronic gaming machines removed from the Whitten Oval, 417
Barkly Street, West Footscray;
VCAT Reference No. P1697/2008, B18/2008
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b. 7 electronic gaming machines removed from the Powell Hotel, 202
Ballarat Road, Footscray;
c. 5 electronic gaming machines removed from Club Leeds, 17 Leeds
Street, Footscray;
d. 8 electronic gaming machines removed from the Braybrook Taverner,
353 Ballarat Road, Braybrook; and
e. 13 electronic gaming machines removed from the Yarraville Club, 135
Stephen Street, Yarraville; and
a total of 11 electronic gaming machines removed from the municipality.
The Plan, including the matters specified herein, may be amended to the
satisfaction of the Responsible Authority.
When approved, the Plan is to be implemented to the satisfaction of the
Responsible Authority.
6. Before the use and installation of gaming machines commences, a Patron
Access & Management Plan is to be submitted to the satisfaction of the
Responsible Authority. The Plan must provide details of access to the
Restricted Place of Assembly (Licensed Club) including that only the
following persons can access the Gaming Area of the Restricted Place of
Assembly (Licensed Club):
a. Authorised Gaming Visitor as defined in the Liquor Control Reform
Act 1998;
b. Members of the Restricted Place of Assembly (Licensed Club) who
have been members of the Restricted Place of Assembly (Licensed
Club) for a period of not less than 24 hours or a guest of such Member.
c. Bona-fide members of clubs with reciprocal membership
arrangements.
d. Membership;
e. Measures to identify problem gamblers within the Gaming Area of the
Restricted Place of Assembly;
f. Measures designed to ensure the orderly arrival and departure of
patrons;
g. Signage to be used to encourage responsible off-site patron behaviour;
h. The training of staff in the management of patron behaviour;
i. Staff communication arrangements;
The Plan, including the matters specified herein, may be amended to the
satisfaction of the Responsible Authority.
When approved, the Plan is to be implemented to the satisfaction of the
Responsible Authority.
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Patron Numbers
7. No more than 650 patrons are permitted on the Subject Land (other than the
Residential Hotel) at any one time with:
a. no more than 15 patrons permitted at any one time in the Outdoor
Lounge adjacent to the Café;
b. no more than 150 patrons permitted at any one time in the Bistro
Outdoor Dining and after 10:00pm on each day no more than 25
patrons to be permitted in that area; and
c. no more than 85 patrons permitted at any one time in the Member’s
Bar Outdoor Area and after 10:00pm on each day no more than 25
patrons to be permitted in that area.
Hours of Operation
8. The use of the Subject Land, including for the supply and consumption of
liquor within the subject area permitted as follows:
a. Restricted Place of Assembly (Licensed Club)/Bar/Cafe/Bistro areas:
i. Monday to Saturday between 7:00am and 1:00am the following
day (including until 1:00am on Good Friday and Anzac Day
morning);
ii. Sunday between 9:00am and 1:00am the following day; and
iii. Good Friday and Anzac Day between 12noon and 1:00am the
following day.
b. Gaming Area within the Restricted Place of Assembly:
i
11:00am to 1:00am the following day.
ii Good Friday and Anzac Day between 12 noon and 1:00am the
following day.
c. Function Centre/Room:
i. Monday to Saturday between 7:00am and 1:00am the following
day (including until 1:00am on Good Friday and Anzac Day
morning); except that the Function Centre may operate to 3am
on up to 8 occasions per year;
ii. Sunday between 9:00am and 1:00am the following day; and
iii. Good Friday and Anzac Day between 12noon and 1:00am the
following day.
d. Residential Hotel at any time and on any day;
e. The supply of liquor to members for consumption off the licensed
Premises must cease by 11:00pm on each and every day.
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Smoking Management Plan
9. Before the use commences, a Smoking Management Plan to the satisfaction
of the Responsible Authority must be submitted to and approved by the
Responsible Authority. When approved, the plan will be endorsed and will
then form part of the permit. The plan must include management controls and
measures to be implemented on the Subject Land to ensure the following are
complied with:
a. after 10.00pm, a section of the “bistro outdoor dining” and “members
bar outdoor area” must be cordoned off and from 10.00pm onwards
until close of the Premises, no more than 25 persons may be present in
either of the “bistro outdoor dining” and “members bar outdoor area”
at any one time.
b. no liquor may be consumed in the “bistro outdoor dining” and
“members bar outdoor area” after 10:00pm on any day.
The Plan, including the matters specified herein, may be amended to the
satisfaction of the Responsible Authority.
When approved, the Plan is to be implemented to the satisfaction of the
Responsible Authority and thereafter maintained to the satisfaction of the
Responsible Authority.
Waste Management
10. Before the development commences, a Waste Storage and Collection
Management and Recycling Plan to the satisfaction of the Responsible
Authority must be submitted to and approved by the Responsible Authority.
When approved, the plan will be endorsed and will then form part of the
permit.
Deliveries
11. Deliveries to and from the site (including waste collection) may only occur
between:
a. 7am to 10pm (inclusive) Monday to Saturday;
b. 9am to 10pm (inclusive) Sunday and/or public holidays.
Car-Parking Areas
12. Before the use commences, the area(s) set aside for the parking of vehicles
and access lanes must be constructed, properly formed, surfaced, drained, line
marked to indicate each car space and clearly marked to show the direction of
traffic along access lanes and driveways, all to the satisfaction of the
Responsible Authority. Car spaces, access lanes and driveways must be kept
available for these purposes at all times.
13. The loading and unloading of goods from vehicles may only be carried out
within the building.
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Landscaping
14. Before the use commences or by such later date as is approved by the
Responsible Authority in writing, the landscaping works must be carried out
and completed and thereafter maintained to the satisfaction of the Responsible
Authority.
Construction Management Plan
15. Before the development commences, a Construction Management Plan
(CMP) to the satisfaction of the Responsible Authority must be submitted to
and approved by the Responsible Authority. When approved, the CMP will
be endorsed and will then form part of the permit.
Noise
16. All external plant and equipment must be acoustically treated and/or insulated
to the satisfaction of the Responsible Authority to minimise noise and
vibration and to ensure compliance with noise limits as determined by the
State Environment Protection Policy (Control of Noise from Commerce,
Industry and Trade) No. N-1.
17. Noise levels emanating from the Premises must not exceed the noise levels as
determined by the State Environment Protection Policy (Control of Music
Noise from Public Premises) No. N-2.
18. No music, of a background level or otherwise, may be played in any of the
outdoor external areas listed above, after 10pm on any day.
19. Before the use commences an Acoustic Plan and report which outlines
recommended acoustic treatment and noise attenuation measures required to
address the issues identified in Elizabeth Hui’s witness statement in VCAT
Hearing P1697/2008 to the satisfaction of the Responsible Authority must be
submitted to and approved by the Responsible Authority. When approved, the
Acoustic Plan will be endorsed and will then form part of the permit.
20. Before the use commences or unless otherwise approved by the Responsible
Authority in writing, all measures, recommendations and guidelines contained
in the approved Acoustic Plan must be implemented to the satisfaction of the
Responsible Authority and thereafter maintained at all times to the
satisfaction of the Responsible Authority.
21. Within 3 months of the uses commencing, a suitably qualified acoustic
engineer must undertake an assessment and prepare a report to the satisfaction
of the Responsible Authority assessing whether the implementation of the
approved Acoustic Plan achieves the requisite noise levels and whether any
additional measures should be implemented to achieve compliance, all to the
satisfaction of the Responsible Authority.
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Amenity and Management Controls
22. No external sound amplification equipment or loud speakers are to be used
for the purpose of announcement, broadcast, playing of music or similar
purpose without the consent of the Responsible Authority.
23. The use and development, as approved, must be managed so that the amenity
of the area is not detrimentally affected, through the:
a. the transport of materials, goods or commodities to or from the land;
b. the appearance of the building, works or materials; and
c. the emission of noise, artificial light, vibration, smell, flumes, smoke,
vapour, soot, ash, dust, waste water, waste products, grit or oil.
24. External lighting must be designed, baffled and located so as to prevent any
adverse effect on surrounding land to the satisfaction of the Responsible
Authority.
25. All security alarms or similar devices installed on the Subject Land must be
of a silent type in accordance with any current standard published by
Standards Australia International Limited and be connected to a security
service.
26. Signage must be displayed near all entrances/exits requesting patrons to leave
the Premises in a quiet and orderly manner so as not to disturb nearby
residents to the satisfaction of the Responsible Authority.
27. The venue must ensure that all advertising in relation to the Premises contains
the words ‘Free parking provided on site. Enter from Case Street’.
28. Vehicular crossing(s) must be constructed and/or modified to the road to suit
the proposed driveway(s) to the satisfaction of the Responsible Authority.
29. All disused or redundant vehicle crossings must be removed and the area
reinstated with either/or footpath, nature-strip, kerb and channel to the
satisfaction of the Responsible Authority.
30. Any street trees to be removed must be replaced with advanced trees, of a
species and in a location to the satisfaction of the Responsible Authority.
31. The site must be drained to the satisfaction of the Responsible Authority.
Storm water run-off from the site must not cause any adverse impact to the
public, any adjoining site or Council asset. Stormwater from all paved area
must be drained to underground storm water system. Any cut, fill or structure
must not adversely affect the natural storm water runoff from and to adjoining
properties.
32. No polluted and/or sediment laden runoff is to be discharged directly or
indirectly into Council’s drains or watercourses during and after development.
33. This permit will expire if:
a. the development and use are not started within two years of the date of
this permit; or
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b. the development is not completed within four years of the date of this
permit.
The Responsible Authority may extend the periods referred to if a request is
made in writing before the permit expires, or within three months afterwards.
VCAT Reference No. P1697/2008, B18/2008
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