George Adams Pty Ltd v Whittlesea City Council
[2011] VSCA 194
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0066
| GEORGE ADAMS PTY LTD | |
| Applicant | |
| v | |
| WHITTLESEA CITY COUNCIL | Respondent |
S APCI 2011 0067
| GEORGE ADAMS PTY LTD | |
| Applicant | |
| v | |
| WHITTLESEA CITY COUNCIL | First Respondent |
| AND | |
| VICTORIAN COMMISSION FOR GAMBLING REGULATION | Second Respondent |
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| JUDGES | HARPER JA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 June 2011 |
| DATE OF JUDGMENT | 30 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 194 |
| JUDGMENT APPEALED FROM | Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 (Hampel V-P and Senior Member Liston) |
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APPEAL – Appeal from the Victorian Civil and Administrative Tribunal – Leave to appeal on question of law – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Permissions sought to install electronic gaming machines in a proposed tavern – VCAT held gaming machines to be prohibited under clause 52.28 of the Whittlesea Planning Scheme and refused planning permission – Question of law arises in respect of proper construction of clause 52.28 – VCAT separately refused approval under the Gaming Regulation Act 2003 (Vic) s 3.3.7 – Whether an arguable error on question of law in making the planning decision vitiated the gaming decision – Leave to appeal the planning decision allowed – Leave to appeal the gaming decision refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr C J Townshend SC Ms S J Porrit | Bazzani Scully Brand |
| For Whittlesea City Council | Mr A J Finanzio Mr B C Chessell | Maddocks |
| For Victorian Commission for Gambling Regulation | Mr J F M Larkins Mr J P Kane | Victorian Commission for Gambling Regulation |
HARPER JA:
I will invite Macaulay AJA to deliver the first judgment.
MACAULAY AJA:
Introduction
George Adams Pty Ltd (‘George Adams’) seeks leave to appeal two decisions of the Victorian Civil and Administrative Tribunal (‘VCAT’) made 7 April 2011. The Tribunal was constituted by Hampel V-P and Senior Member Liston.
The two decisions related to a proposal to construct a tavern at Laurimar, a new planned development within a growth area 30 kilometres north of the Melbourne CBD, in the City of Whittlesea (‘the City’). The town centre at Laurimar is being developed in accordance with a number of development plans governed by various zones and overlays under the Whittlesea Planning Scheme (‘the Scheme’). The Laurimar town centre is to be the centre of a planned residential estate comprising some 2,400 homes to house a community of 9,000 people. At each end of the town centre there are to be a number of iconic buildings. The proposed tavern is one of them, to be located on the corner of Hazel Glen Drive and Painted Hills Drive. Hazel Glen Drive is the main street of the town on either side of which is to be constructed a traditional strip shopping centre.
The issue which has generated the subject decisions is a proposal that the tavern have a gaming lounge with 40 electronic gaming machines (‘the gaming machines’).
George Adams is the proprietor of the land on which the tavern is to be constructed. Relevantly, it required two permissions to locate gaming machines within its tavern: first, planning permission under the Scheme and, secondly, approval for the premises as suitable for gaming under the Gambling Regulation Act
2003 (Vic) (‘the GR Act’). The Victorian Commission for Gambling Regulation (‘the VCGR’) granted approval under the GR Act on 15 March 2010 for the installation of the gaming machines at the proposed tavern. The City formally refused the application for planning permission on 20 December 2010. George Adams appealed the planning permission refusal to VCAT and the City, as the Responsible Authority under the GR Act, appealed the grant of gaming approval.
Both appeals were heard concurrently at VCAT before Hampel V-P and Senior Member Liston. On 7 April 2011 the Tribunal affirmed the decision of the City not to grant planning permission for a tavern incorporating the gaming machines (’the planning decision’) and set aside the decision of the VCGR to approve the tavern as suitable for gaming (’the gaming decision’).
George Adams wishes to appeal both of the Tribunal’s decisions, and thus seeks leave. The City is the respondent in both applications. The VCGR is the second respondent in the gaming decision application but is not a party in the planning decision application. The City does not oppose leave to appeal the planning decision. Although the gaming decision overruled its own decision to approve the installation of the gaming machines, the VCGR now joins with the City in opposing leave to appeal the gaming decision. In my view leave should be granted to George Adams to appeal the Tribunal’s planning decision but not in respect of the gaming decision. My reasons appear below.
Pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) an appeal from the Tribunal lies only on a question of law, and only upon leave being granted. The principles applicable to the grant of leave under s 148 are well settled.[1] Although an applicant need not establish an error – that is for the appeal itself – it will be required to show there is a real or significant argument to be put that error exists. That error must bear directly upon the relief which will be sought in the appeal.
[1]Secretary to Department of Premier & Cabinet v Hulls [1999] 3 VR 331, 335; Myers v Medical Practitioners Board of Victoria [2007] VSCA 163, [28].
The Planning Decision
The requirements for the grant of planning permission are set out in cl 52.28 of the Scheme which commences with its purpose :
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.
After stating that a permit is required to install or use a gaming machine,[2] the clause goes on to specify the shopping complexes and strip shopping centres in which gaming machines are prohibited. In the case of a strip shopping centre, cl 52.28-4 provided:
[2]Clause 52.28-2 of the Scheme.
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.
[the schedule adopted the second alternative, prohibiting gaming machines in all strip shopping centres]
…
A strip shopping centre is an area that meets all of the following requirements:
• It is zoned for business use;
•it consists of at least two separate buildings on at least two separate and adjoining lots;
•It is an area in which a significant proportion of the buildings are shops;
•It is an area in which a significant proportion of the lots abut a road accessible to the public generally;
but it does not include the Capital City Zone in the Melbourne Planning Scheme.
The Tribunal’s planning decision involved the conclusion that the tavern fell within an area properly described as a ’strip shopping centre‘ within the meaning of cl 52.28-4. As submitted by George Adams, and conceded (correctly in my view) by the City, that conclusion was informed by a particular interpretation of the expression ’strip shopping centre‘ and the words ’area‘, ’zoned for business use‘ and ’adjoining lots‘ in the formulation of requirements to constitute a shopping centre as such.
As explained by Phillips JA in S v Crimes Compensation Tribunal,[3] the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure is a question of law. Here, the term ‘strip shopping centre’, appearing in cl 52.28, falls to be given its proper meaning as a matter of construction and is relevant to George Adams’ success or failure in its quest for planning permission. Thus, a relevant question of law is properly identified.
[3](1998) 1 VR 83, 88-89.
My conclusion that leave is justified is, I think, fortified by the further submission of George Adams, also conceded by the City, that the construction of cl 52.28 concerns an issue of general importance in the field of town planning and gaming regulation affecting the whole of the State in respect of which there is some potential uncertainty. Unlike Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[4] this case appears to provide an appropriate vehicle to address the proper construction of the clause.
[4][2008] VSCA 45.
Gaming Decision
Whereas the planning decision was governed by the criteria in cl 52.28 of the Scheme, and the central issue was whether or not the tavern fell within a ‘strip shopping centre’, the gaming decision fell to be determined on quite different considerations.
The gaming decision was governed by s 3.3.7 of the GR Act which is in the following terms:
3.3.7 Matters to be considered in determining applications
(1)The Commission must not grant an application for approval of premises as suitable for gaming unless satisfied that –
(a)the applicant has authority to make the application in respect of the premises; and
(b)the premises are or, on the completion of building works will be, suitable for the management and operation of gaming machines; and
(c)the net economic and social impact of approval will not be detrimental to the wellbeing of the community of the municipal district in which the premises are located.
(2)In particular, the Commission must consider whether the size, layout and facilities of the premises are or will be suitable.
(3)The Commission must also consider any submission made by the relevant Responsible Authority under section 3.3.6.
It was not disputed before the Tribunal that the conditions in s 3.3.7(1)(a) and (b) were satisfied; the only issue of contention was the net economic and social impact referred to in s 3.3.7(1)(c). The Tribunal’s conclusion on that issue was:
… The negative social and economic disadvantages strongly outweigh the positive social and economic benefits of the proposal. In our opinion, the social and economic impact of approval for the introduction of [electronic gaming machines] into the Laurimar community would have a significant detrimental effect on the wellbeing of a significant proportion of the local community.[5]
[5]Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 (‘Reasons’) [162].
George Adams does not rely upon any arguable error in respect of a question of law in the gaming decision, standing alone. That is, it does not contend, for example, that the Tribunal wrongly construed s 3.3.7 of the GR Act, nor does it contend that the Tribunal made a finding of fact which was not open to it on the evidence. Rather, George Adams contends that the arguable error raised in the planning decision – the construction of cl 52.28 of the Scheme – has been carried into the Tribunal’s gaming decision.
I do not accept that argument. The argument, valiantly put, was somewhat subtle and elaborate. It needs to be explained in some little more detail.
The question of law identified for the appeal of the gaming decision as set out in the proposed notice of appeal, is:
Was the consideration of the social and economic impact of approval of gaming machines in [the gaming appeal] connected with and affected by the Tribunal’s conclusions as to the purpose, construction and effect of clause 52.28 of the Whittlesea Planning Scheme such that an error in the construction of clause 52.28 constituted a vitiating error in [the gaming appeal]?
One of the grounds for alleged error in relation to the construction of cl 52.28 was that VCAT:
… wrongly implied a purpose to clause 52.28 from the general prohibition in the Schedule (and council’s 2002 gaming policy). [George Adams] contends that clause 52.28 does not have a purpose to prohibit or discourage gaming machines in any particular location, rather it is a statutory tool for the regulation of the location of gaming machines.[6]
[6]George Adams’ Written Outline of Argument [16]. (Emphasis added).
The passage of the Tribunal’s reasons said to set out its erroneous implication of purpose when construing cl 52.28 is as follows:
Council in the implementation of clause 52.28 in its planning scheme acted to prohibit gaming machines in all strip shopping centres. This implies a purpose for clause 52.28 derived from council’s view as to the social and economic effects of gaming machines in local shopping strips, a view embodied in its 2002 gaming policy.[7]
[7]Reasons [68].
It is not clear that, by that passage, the Tribunal itself is inferring a statutory purpose for cl 52.28 or merely observing that the Council implemented cl 52.28 according to its own policy, and thus gave effect to the Council’s own purpose. Nevertheless, according to George Adams, VCAT employed this view of the ‘purpose’ of cl 52.28 in construing the clause so as to find that the tavern was within the strip shopping centre. In my view this contention is not without problems. Nowhere does the Tribunal actually say that it used this implied purpose in construing the meaning and application of the clause.
Mr Townshend SC who, with Ms Porritt, appeared for George Adams marries what the Tribunal earlier said, namely, ‘[t]he purpose and context of the statute is important to its interpretation’,[8] with the passage set out above concerning implied purpose, to conclude that the Tribunal must have construed the clause with that purpose in mind.
[8]Reasons [30].
The sequence with which the Tribunal considered matters, and the point in its reasoning when it dealt with purpose, do not support that argument. As pointed out by the City, the Tribunal first reached its conclusions on the construction argument, holding that a proper interpretation of cl 52.28-4 meant that the gaming machines would be within the strip shopping centre and were thus prohibited.[9] It was only after stating that conclusion that the Tribunal proceeded to deal with the issue that would have arisen had it not concluded that the gaming machines were prohibited. That is, it considered whether the permission should be granted as a matter of discretion. It was in the context of its discretionary consideration that it made the observations set out above concerning the so-called implied purpose for cl 52.28.
[9]Reasons [63].
Ultimately it will be for the Court of Appeal upon hearing the appeal on the planning decision to determine whether the Tribunal wrongly employed this view of ‘purpose’ in its construction of cl 52.28. I am merely considering whether sufficient doubt attends a question of law in the gaming decision to warrant leave to appeal from that decision being granted. It is in this context that I make any comments about George Adams’ argument. For my part, even getting to this starting point of its argument, George Adams encounters difficulty. However, its problems do not finish there.
The next limb of the argument assumes that, if there was an erroneous consideration of purpose derived from a view of the social and economic impact lying behind the Tribunal’s construction of cl 52.28, that legal error somehow was carried into the Tribunal’s decision on the gaming approval. Here the argument encounters even greater difficulties.
As I have already mentioned, the central issue in the gaming decision was whether or not the Tribunal was satisfied that the net social and economic impacts referred to in s 3.3.7(1)(c) of the GR Act would be detrimental to the wellbeing of the community. George Adams’ argument is that, having come to a particular view of the social and economic impacts as an integer in the Tribunal’s process of construing cl 52.28, with that construction arguably being in error, the Tribunal’s erroneous view of cl 52.28 must have affected its decision on the gaming approval.
Senior counsel for George Adams made several attempts to explain how a potential misuse of a factual finding in the construction of cl 52.28, for the purpose of the planning decision, generated a possible error on a question of law in respect of the Tribunal’s factual finding on the net social and economic impacts of gaming approval for the purpose of the gaming decision. In my view the connection was never satisfactorily explained. He tried to do so by highlighting the Tribunal’s reasoning towards its conclusion that the tavern would be a ‘convenience venue’.
In relation to the gaming approval case Dr Kerkin, called by the City, opposing the approval, expressed this opinion:
The location of the gaming venue can influence problem gambling … Research and policy identify a strong link between accessibility of gaming venues (geographical, temporal and social) and gambling behaviour.[10]
[10]Reasons [134(3)].
Mr Quick, called by George Adams, was of the opposing view, saying that the risk of elevated problem gambling was not high in part because:
… The location and orientation of the venue, separated as it is from other town centre uses would not result in convenience gaming.[11]
[11]Reasons [136(d)].
At issue here, as an element in the consideration of net social and economic impact on the community, was a factual issue concerning the physical proximity of the tavern to other community infrastructure and facilities. The question was whether the tavern was so located that, having regard to its proximity to shops, schools, access ways and so on, members of the community might be attracted to the venue largely because of its proximity to other places (‘convenience venue’) or mostly because those members set out to go there (‘destination venue’). The Tribunal concluded:
We do not consider the proposed tavern is properly described as a destination venue. It has many features of a convenience venue. The site is part of the town centre. Although divided from the main shopping area by Painted Hills Road, it is clearly integrated with, and part of the town centre. As we have already noted, our view confirmed the intimacy of scale and connection between the tavern site and other parts of the town centre.[12]
[12]Reasons [142].
In making those remarks about integration and intimacy of scale, the Tribunal echoed what it had earlier said when considering that the tavern was within the ‘area’ of the strip shopping centre for the purpose of deciding that gaming machines were prohibited under cl 52.28-4. However, to observe that the Tribunal employed a common factual finding as a basis for its two different decisions does not, of itself, mean that a legal error in one is a legal error in the other. There is no challenge to the conclusion that there was an intimacy of scale and connection between the tavern and other parts of the town centre, or that the two were clearly integrated. Nor was it argued that the Tribunal was wrong to consider the proximity of the tavern to other community facilities to assess social and economic impact.
Counsel did argue that the use of the expression ‘town centre’ when speaking of integration with the tavern showed that, in its gaming decision, the Tribunal was drawing upon a conclusion reached in the planning decision as to what constituted a strip shopping centre. But this is a misconception. The expression ‘town centre’ is not used as a synonym for ‘strip shopping centre’. It is a shorthand reference to a much greater area than the strip shopping centre alone, referring to that area defined by the Laurimar Town Centre Development Plan incorporating other facilities including the school.
In my view, apart from there being common findings of fact, including (perhaps) common findings on social and economic impact, the Tribunal’s two decisions reveal that each decision was arrived at by applying discrete legal principles pertinent to each decision. So much is made explicitly clear by the Tribunal’s citation of Bright Newbay Pty Ltd v Bayside CC,[13] in which it was said:
The planning permission is focused upon whether it is an appropriate location suitable for gaming and, secondly, the social and economic impacts of the location. The gaming considerations include whether the net economic and social impact of the machines would or would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located.[14]
It was also reinforced by the final paragraph in its own reasons:
… even if it were open to give planning approval, we do not consider the applicant has satisfied the criteria in s 3.3.7 of the GR Act and we would not have granted approval of the premises as suitable for gaming.[15]
[13][2010] VCAT 1347.
[14]Ibid [9].
[15]Reasons [163].
Ultimately, George Adams’ argument invites us to infer that:
· contrary to the separate manner in which the Tribunal carried out its deliberation on the two permissions;
· in the absence of any explicit statement by the Tribunal that, because it had concluded the tavern was within a strip shopping centre, it felt constrained to conclude there was net negative social and economic impact for the community if gaming approval was granted; and
· in the face of its statement that it would still have refused gaming approval even if it gave planning permission,
nevertheless, the Tribunal must have been influenced by its construction of cl 52.28 in refusing the gaming approval. I find no basis for drawing any such inference.
George Adams raised two subsidiary arguments in favour of granting leave. I will deal with those briefly.
The first was an appeal to an overriding principle of ‘justice’ attending the grant of leave. As Phillips JA said in Secretary to the Department of Premier & Cabinet v Hulls:[16]
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought …[17]
[16][1999] 3 VR 331.
[17]Ibid 337.
To say so, however, is not to diminish the need to exercise the discretion rationally or to overlook the fact that an appeal only lies on a question of law. George Adams emphasised that all parties consented to the two matters being heard together at VCAT and for evidence in relation to one appeal being available for the other. It argued that because the two matters were heard and determined together at VCAT they should not be severed on appeal to this Court. In my view there is little substance in this argument. The fact that the two matters were heard together was plainly a sensible and efficient decision. But it did not imply either that the outcome of the decisions must necessarily be the same or that if one was arguably shown to be wrong, for whatever reason, the other should also gain the benefit of an appeal.
A further argument was raised before us, not the subject of the notice of appeal or any written outline of submission. It was that the Tribunal wrongly considered what was meant by or involved in the notion of ‘convenience venue’. Neither the expression ‘convenience venue’ or ‘destination venue’ seem to be of any statutory significance. Rather, they were labels used by the experts to characterise venues by reference to their method of attracting gaming patrons. Whether or not
there is a ‘body of learning’ upon these notions – and none was presented to us – does not seem to advance the possible existence of any question of law. It is evident that the Tribunal used these concepts as a measure of likely community access to the gaming venue, being one element bearing upon its net social and economic impact upon the community wellbeing. No discernible question of law arises from that issue.
Conclusion
For the foregoing reasons I would allow leave to appeal in respect of the planning decision and refuse leave to appeal in respect of the gaming decision.
HARPER JA:
I agree with Macaulay AJA.
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