Macedon Ranges Shire Council v Romsey Hotel Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3703 of 2007

MACEDON RANGES SHIRE COUNCIL
	v
ROMSEY HOTEL PTY LTD
	VICTORIAN COMMISSION FOR GAMBLING REGULATION

---

JUDGES:	WARREN CJ, MAXWELL P and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2007
DATE OF JUDGMENT:	19 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 45

---

ADMINISTRATIVE LAW – Error of law – Relevant considerations – Victorian Civil and Administrative Tribunal – Review of decision refusing approval of hotel premises for gaming – ‘Net economic and social impact of approval’ – Whether ‘detrimental to well-being of community’ – Evidence of community opposition to introduction of electronic gaming machines – Whether evidence of community opposition was considered by VCAT – Whether relevant consideration or merely ‘piece of evidence’ – Gambling Regulation Act 2003(Vic), Part 3 – Victorian Civil and Administrative Tribunal Act1998 (Vic) s 49.

ADMINISTRATIVE LAW – Merits review – Weight to be attached to reasons for decision of primary decision-maker – Role of primary decision-maker in review proceeding – Relevance of presence of contradictor – Whether impartiality of primary decision-maker jeopardised by active participation in merits review proceedings – Victorian Civil and Administrative Tribunal Act1998 (Vic) s 59 – Branbeau Pty Ltd v Victorian Commission of Gambling Regulation (2005) 22 VPR 262 disapproved – Transport Accident Commission v Bausch [1998] 4 VR 292 applied – R v Hardiman; ex parte Australian Broadcasting Tribunal (1980) 144 CLR 13 distinguished.

ADMINISTRATIVE LAW – Jurisdiction – Merits review – Scope of jurisdiction of VCAT when reviewing primary decision – Whether Tribunal purported to exercise jurisdiction which primary decision-maker did not have – Victorian Civil and Administrative Tribunal Act1998 ss 42(1), 48, 51(1).

STATUTES – Interpretation – Statutory power to approve hotel premises for gaming – Relevant considerations – ‘Net economic and social impact of approval’ – Whether ‘detrimental to well-being of community’ – Whether community opposition relevant – Whether ‘in principle’ objections to gaming relevant – How community opinion to be ascertained – Gambling Regulation Act 2003, Part 3.

WORDS AND PHRASES – ‘social impact’, ‘detrimental to well-being’.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Wright QC with Mr R Appudurai	Maddocks
For the First Respondent	Mr J G Judd QC with Mr N J Tweedie	Bazzani Scully Brand Lawyers
For the Second Respondent	Ms M L Quigley SC with Dr K L Emerton SC	Victorian Commission for Gambling Regulation

WARREN CJ,
MAXWELL P,
OSBORN AJA:

Part 3 of the Gambling Regulation Act 2003(Vic) (‘the GR Act’) regulates the approval of premises for gaming. Under s 3.3.4, the owner of premises may apply to the Victorian Commission for Gambling Regulation (‘the Commission’) for the approval of those premises as suitable for gaming. Under s 3.3.7, the Commission must not grant the application for approval unless it is satisfied (relevantly) that –

(1)(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.

In November 2004, the first respondent, the owner of the Romsey Hotel (‘the proprietor’), applied to the Commission for approval of the hotel premises for gaming. The proprietor proposed to install 50 electronic gaming machines (later reduced to 30). The Commission refused the application, stating that it was

unable to be satisfied that … the net economic and social impact of the proposal would not be detrimental to the wellbeing of the community within Romsey and its surrounding areas …[1]

Central to this conclusion was the Commission’s ‘overwhelming impression’ that
members of the local community find the prospect of gaming at its only hotel so disconcerting that it would have a significant effect upon that community.[2]

[1]Commission reasons [85].

[2]Commission reasons [81].

The proprietor sought review of the Commission’s decision by the Victorian Civil and Administrative Tribunal under s 3.3.14(1) of the GR Act. The Tribunal President set aside the Commission’s decision and – exercising the powers of the Commission – approved the hotel premises as suitable for gaming. The Tribunal noted the Commission’s analysis, and the decisive significance for the Commission of the strong community opposition, but did not address that issue in its own consideration of the likely impact of approving gaming machines at the hotel.

The local municipal authority, the Macedon Ranges Shire Council (‘the Shire’), appeals by leave from the decision of the Tribunal.[3] The central issue is whether the Tribunal erred in law in arriving at its decision without taking into account the evidence of community opposition. In our view, for reasons which follow, the Tribunal did err and its decision should be set aside.
[3]Had the Commission approved the premises for gaming, the Shire would have had a right to appeal to the Tribunal against that decision: s 3.3.14(2).

The functions of the Commission

The Commission is established by s 10.1.1. Its relevant objectives are: [4]
[4]Section 10.1.3.

(a) to ensure that gaming on gaming machines is conducted honestly;
…
(d)to act as a source of advice to the Minister on gambling issues and to ensure that the Government’s policy on gambling is implemented;
(e)to foster responsible gambling in order to –
(i)minimise harm caused by problem gambling; and
(ii)accommodate those who gamble without harming themselves or others;

…

The functions of the Commission relevantly include[5]
[5]Section 10.1.4(2).

(a)regulating the use of gaming machines in casinos and approved venues;

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

As Morris J had earlier pointed out in Branbeau Pty Ltd v Victorian Commission of Gambling Regulation (‘Branbeau’)[6], the Commission’s objective (para (d)) of ensuring the implementation of government policy on gambling directs attention to the six policy principles identified by the Minister for Gaming. Those principles are as follows:

•developing and reinforcing the [G]overnment’s commitment to responsible gambling through measures that assist and protect problem gamblers and those at risk of becoming problem gamblers, their families and the wider community;
•developing and maintaining the [S]tate’s commitment to the highest standards of probity for gambling service providers;
•accepting gambling is a valid activity for many Victorians who are entitled to expect ongoing high standards of service, transparency and accountability from the gambling sector;
•ensuring that the legitimate financial benefits of gambling (both private and public) are transparent, appropriately recognisable and fairly distributed to the Victorian community;
•that, to the extent possible consistent with the other principles, gaming service providers operate in a competitive environment;
•establishing proper consultative processes to ensure that appropriate information is given to, and input is received from, the wide variety of persons interested in gambling including stakeholders, affected parties and, to the widest extent possible, the broader Victorian community.[7]
[6](2005) 22 VPR 262.
[7]Victoria Parliamentary Debates, Legislative Assembly, 6 November 2003, 1595 (John Pandazopoulos, Minister for Gaming).

The Commission’s decision

The Commission published detailed written reasons for its decision to refuse the proprietor’s application. The Commission noted that the proprietor’s application was supported by evidence describing the economic benefits for the community of Romsey of the approval of gaming machines for the hotel. It was proposed that there be a major redevelopment of the hotel, but this would only occur if the application for EGMs were granted. The witnesses called on behalf of the proprietor were extensively cross-examined by counsel for the Shire, which opposed the application.

The Shire called its own evidence, the key element of which proved to be the results of a community survey conducted by the Shire. The survey question was: ‘Do you support the installation of electronic gaming machines in Romsey?’ There was a 69% return rate. Of those who responded, 20% said they supported the installation of EGMs while 79% said they did not.

The Commission dealt with the survey evidence – and the general issue of community opposition - in these terms:

[70]     … In the presentation of the case on behalf of the Council one issue dominated. Whilst, as stated earlier, the Commission is critical of the manner in which the survey which was carried out by the Council was conducted, the Commission does believe that in this matter there is overwhelming evidence that members of the local community are opposed to the introduction of [electronic gaming machines] into their community.
[71]     The extent to which community opposition should be taken into consideration by the Commission in matters such as these is never easy to determine and many matters may influence the weight which should be given to it. The relevant [local government authority] as the elected spokesman for the community may express a view that there is overwhelming opposition but in certain instances there may be little or no empirical evidence to justify such an assertion.
…
[72]     If the opposition amounts to, effectively, a rejection of the decision by the Victorian Government, supported at various times by both major parties, to permit legalised EGMs in Victoria, the Commission must be cautious in giving excessive weight to it. On the other hand opposition which is based upon particular features which are distinctive to the area under consideration may be afforded more weight.
…
[73]     It is true that, as pointed out on many occasions by [counsel for the proprietor], the policy of the Shire appears to be one of opposition to EGMs at any point in the [local government area]. But ultimately we are satisfied that in this matter the local opposition is genuine, that it is little influenced by the policies of the Council and that it is more related to the nature of Romsey as a town and the hopes and aspirations of those who live in it.[8]

[8]Emphasis added.

The key conclusion of the Commission was in these terms:

[81] The Commission believes that in considering the issue of net social and economic detriment the Commission must be influenced by its conclusion as to the effect which the granting of the application would have upon this community. No doubt there have been people within the community who have forcefully expressed their views of hostility towards EGMs and who may well have a position of such hostility to EGMs anywhere, despite the fact that gambling on EGMs is a legitimate recreational activity. But in all the material which we have considered, in the inspections of the township which we have conducted, from the oral evidence which was led before us, including demographic factors, we have gained the overwhelming impression that members of the local community find the prospect of gaming at its only hotel so disconcerting that it would have a significant effect upon that community.[9]
[9]Emphasis added.

The application for review

Under s 3.3.14 of the GR Act, an applicant for approval of premises for gaming may apply to the Tribunal for review of a decision of the Commission on the application. Its application having been refused by the Commission, the proprietor on 10 May 2006 applied to the Tribunal for a review of that decision.

Once that application for review was lodged, the Commission came under the obligation imposed by s 49(1) of the VCAT Act, an obligation which attaches to every primary decision-maker whose decision is under review by the Tribunal. The Commission was obliged to lodge with the Tribunal copies of its statement of reasons and of every other document in its possession which the Commission considered relevant to the review of the decision.[10] Section 49(2) required those documents to be lodged within 28 days after the Commission received notice of the review application.
[10]Section 49(1)(b).

As Tadgell JA said in Transport Accident Commission v Bausch[11] (in relation to the predecessor of s 49), the obligations which this provision imposes on the primary decision-maker

are obviously designed to assist the [Tribunal] to understand how the decision under review was made and the reasons for its making.

In the present case, the Commission lodged with the Tribunal copies of its statement of reasons and of the transcript of the hearing before the Commission. Copies of the community survey forms, which had been received in evidence by the Commission, were not transmitted to the Tribunal. Nor, it appears, was the Shire’s submission to the Commission on economic and social impact.[12] Clearly enough, those documents were relevant to the Tribunal’s review of the Commission’s decision, and should have been forwarded in compliance with s 49(1).

[11][1998] 4 VR 249, 260.

[12]The submission was filed in accordance with s 3.3.6 of the GR Act – see further [67] below.

Despite the Commission’s failure to forward these documents, however, the full and clear reasons which the Commission had given were sufficient to convey to the Tribunal how the Commission had arrived at its decision; what the results of the survey were; and, relevantly, how significant the evidence of community opposition had been to the decision. In those circumstances, it was immaterial that the Tribunal did not have the survey documents themselves (of which, in any case, the Commission had received only a representative sample).

The Shire’s change of position

What appears to have had a decisive influence on the Tribunal’s decision was the position adopted by the Shire in the Tribunal proceeding. We have already noted that the Shire actively opposed the proprietor’s application before the Commission. The Shire itself had led the survey evidence.

When the matter came before the Tribunal, however, the Shire did not lead evidence of the survey, and made no submissions in support of the Commission’s conclusion on community opposition. At the beginning of the hearing, counsel for the proprietor pointed out to the Tribunal that the Commission’s assessment of community opposition had been a ‘key point of rejection’. The Tribunal President noted, correctly, that this finding of the Commission had been based in large measure upon the survey. Counsel for the proprietor then informed the Tribunal that the Shire would not be leading evidence of the survey or in support of it. Counsel told the Tribunal that the proprietor was ‘a bit perplexed’ by the Shire’s decision, but –

we can only conclude from that, or we suggest that the only thing that your Honour can conclude from that [is that] it’s not a matter that materially assists you in assessing this matter.

When his Honour pointed out that the survey ‘seemed to have been the main thing that swung the Commission’, counsel for the proprietor agreed, and responded as follows:
… [T]hat is why it is quite an astounding position that you are faced with, where the responsible authority had placed so much emphasis on that point [but] is now not seeking to lead any evidence on it. …

No explanation for the Shire’s change of position was given to the Tribunal, and none has been given to this Court.[13]

[13]On the Shire’s application for leave to appeal from the Tribunal’s decision, it was accepted that the Shire’s conduct before the Tribunal did not preclude it from arguing on appeal that the Tribunal’s failure to have regard to the survey results was an error at law.

As mentioned earlier, the Tribunal recognised the importance to the Commission’s decision of the issue of community opposition, and of the survey evidence specifically. The relevant part of the Tribunal’s reasons is as follows:

13. In relation to negative factors, the Commission noted that one issue dominated: that is, that there was a comprehensive survey showing that members of the local community were opposed to the introduction of gaming machines into their community. In its conclusions the Commission said:
We have gained the overwhelming impression that members of the local community find the prospect of gaming at its only hotel so disconcerting that it would have a significant effect upon that community.

14. The Commission then concluded that when this point is considered the Commission found it hard to consider that the advantages associated with the application were sufficient to outweigh the negatives. As a result the Commission said that, on balance, it was unable to be satisfied that if the application was granted the net economic and social impact of the proposal would not be detrimental to the well being of the community within Romsey and its surrounding areas.
15. As I have said, the key evidence which influenced the Commission was a plebiscite directed at residents of Romsey which asked the question:
Do you support the installation of electronic gaming machines in Romsey?

The evidence was that there was a 69% return rate of the survey forms. Further, of the returned survey forms, 20% supported the provision of gaming machines in Romsey; but 79% did not support the installation of gaming machines in Romsey.

The Tribunal took the view that the change of position by the Shire was ‘highly significant’. The relevant part of the Tribunal’s reasons is in these terms:

[16] Although the tribunal is entitled to consider the reasons of the Commission, it is highly significant that the [C]ouncil did not seek to lead evidence of this community survey before the [T]ribunal. The survey was referred to in a video shown to the [T]ribunal, but the results and method of the survey, as such, were not presented. This cannot have been an oversight. Rather it must have been the result of a deliberate decision on the part of the [C]ouncil, presumably on the basis that it recognised that such a survey was not relevant having regard to the test set out in the Act. In any event – and this is what is important – the facts placed before the [T]ribunal are substantially different than those which were before the Commission. In particular, the key evidence which swayed the Commission and upon which its refusal was based was not presented before the [T]ribunal. On the other hand, evidence was re-presented in relation to all the benefits identified by the Commission. Given this, the outcome of the [T]ribunal’s consideration of the merits is hardly surprising.[14]

[14]Emphasis added.

Earlier in its reasons, the Tribunal had said this:

It is important that I explain that review on the merits does not necessarily involve overriding the primary decision (that is, the decision made by the Commission). Still less does it involve overriding a decision made by a council, as no decision under the Act has been vested in a local council. Often the body charged with conducting a review on the merits is presented with additional or different evidence than the body which made a primary decision. As a matter of logic and reality this means that if the reviewing body takes a different view than the primary decision-maker this does not mean that the primary decision was wrong. Indeed, this is a case where fundamental information relied upon by the Commission was not presented to the tribunal.[15]

The same point was repeated later in the reasons, when the Tribunal said that it had:

… carefully considered the reasons given by the Commission in refusing the application and the extent to which the key factor relied upon by the Commission was not a factor at the forefront of the council case.[16]

[15]Reasons [49] (emphasis added).

[16]Emphasis added.

His Honour appears to have taken the view that, since the Shire had not led evidence of the survey and had made no submissions about community opposition, the Shire was not seeking to support the decision of the Commission on that ground and it was therefore not necessary for the Tribunal itself to consider that matter. Once that ‘negative factor’ (as the Tribunal described it) was removed from the analysis, there was very little before the Tribunal to counterbalance the evidence which the proprietor had led ‘in relation to all the benefits identified by the Commission’. It was for this reason, his Honour said, that the Tribunal’s decision on the merits should be seen as ‘hardly surprising’.[17]
[17]Reasons [16] – see para 19 above.

The Tribunal said of the Shire’s decision not to lead evidence of the community survey that the decision was made:

presumably on the basis that [the Shire] recognised that such a survey was not relevant having regard to the test set out in the Act.[18]

The use of the word ‘recognised’ would appear to convey – implicitly at least – the Tribunal’s approval of the view imputed to the Shire, namely that the survey evidence was irrelevant. But if this was indeed the Tribunal’s view, it was unexplained. As we have said, what seems to have been of decisive significance was that ‘the facts placed before the Tribunal [were] substantially different than those which were before the Commission.’

[18]Ibid (emphasis added).

Counsel for the proprietor argued on the appeal that, when the Tribunal’s reasons were read as a whole, it should be concluded that the Tribunal did have regard to the evidence of community opposition –

but did not consider that it was of sufficient weight to outbalance the significant social and economic benefits which [the Tribunal] otherwise found would result from the approval of the proposal.

We reject this argument. The Tribunal’s conclusion is preceded by a lengthy section headed ‘The impact of the gaming machines’, in which the advantages and disadvantage for Romsey are considered. There is no mention of community opposition as a consideration, and no reference to the survey evidence. The only ‘negative factor’ referred to in the Tribunal’s analysis is the issue of problem gambling. The passages quoted at [19] and [20] above make clear that the Tribunal did not treat the Shire’s failure to rely on the survey as going to its weight. The Tribunal decided the matter on the basis that there was no evidence of the survey before it.

Before dealing with the question of legal error, it is appropriate to consider the reasons for the non-participation of the Commission in the review proceeding before the Tribunal.

The role of the Commission in the Tribunal

By force of s 59 of the VCAT Act, the primary decision-maker is a party to the review proceeding. In the present case, the Commission was named as the first respondent to the proprietor’s review application. The Shire was the second respondent. Directions given in the proceeding included a direction specifying the date by which ‘the respondents’ (that is, both the Commission and the Shire) should file material on which they wished to rely. Pursuant to that direction, the Commission filed a copy of the transcript of the hearing before it. Its covering letter said:

The Commission may wish to rely on matters contained in the transcript at the forthcoming Tribunal review of the Commission’s decision.

Six weeks later, however, the Commission advised the Tribunal that it intended to take no further part in the proceeding unless so directed by the Tribunal.

When asked by this Court why the Commission had decided not to participate, senior counsel for the Commission drew attention to what Morris J had said in Branbeau. There, after noting that s 59 made the Commission a party to the review proceeding, his Honour said:[19]

In the present case the Commission appeared via counsel and made very helpful submissions. However, in future cases, the Commission may decide to let a responsible authority or an applicant be the contradictor (depending upon who is the applicant for review) and otherwise abide by the result. I think the appropriate course is best left to the Commission. (Some guidance might be provided by the decisions in R v Hardiman; ex parte Australian Broadcasting Tribunal[20] and Fagan v Crimes Compensation Tribunal[21]).

Senior counsel informed the Court that the Commission had viewed what his Honour said in Branbeau as intended actively to discourage the Commission from participating in review proceedings before the Tribunal. In addition, senior counsel said, the Commission was anxious to be seen to be impartial.

[19](2005) 22 VPR 262, [43].

[20](1980) 144 CLR 13.

[21](1982) 150 CLR 666.

In our view, the Commission’s decision to take no part in the review proceeding reflected a misapprehension of its role as the primary decision-maker. So too, with respect, did the remarks of Morris J in Branbeau which so influenced the Commission’s approach.

The role of the primary decision-maker in review proceedings before the Tribunal was clearly defined by this Court in Transport Accident Commission v Bausch.[22] Tadgell JA (with whom Batt and Buchanan JJA agreed) said of the statutory accident compensation scheme administered by the Transport Accident Commission (‘TAC’):

… The scheme necessarily carries with it an entitlement on the part of a disappointed claimant to have an administrative decision by the commission properly reviewed by the tribunal. That entitlement carries, of course, a corresponding obligation on the part of the commission, as the primary administrative decision-making body, to assist the tribunal in making the review.[23] The review is in no sense to be treated as raising a lis or amounting to an adversarial contest in which the commission is entitled to engage in curial tactics. That is not to say that there cannot be disputed issues between the parties raised for resolution, or that the commission may not seek actively to support before the tribunal its decision which is under review.[24]

[22][1998] 4 VR 249.

[23]McDonald v Director-General of Social Security (1984) 1 FCR 354, 366 (Northrop J) cited.

[24][1998] 4 VR 249, 259–260.

The obligation of the primary decision-maker is to assist the Tribunal in the review of the primary decision. In discharging that obligation, it is entirely proper for the primary decision-maker to seek actively to support the decision under review. That is what routinely occurs in proceedings before the Tribunal concerning (for example) decisions of the TAC under the Transport Accident Act1986. The disappointed claimant seeks to persuade the Tribunal that a different decision should be made on the merits, while the TAC – almost always represented by counsel – defends the primary decision by leading evidence, cross-examining witnesses and making submissions. Municipal authorities similarly play an active role in defending their planning decisions in review proceedings before the Tribunal.

Active participation by the primary decision-maker is of particular importance if the person seeking review of the decision did not appear before the decision-maker,[25] or if there would otherwise be no contradictor, as is often the case. But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker playing such a role. The most obvious example is a tripartite planning appeal before the Tribunal, where the permit applicant and the objectors will be on opposite sides but the planning authority nevertheless seeks actively to defend the decision which it made, and may well adopt a position different from both applicant and objectors on facts in issue and on conditions to be attached to approval.
[25]As in McDonald v Guardianship & Administration Board [1993] 1 VR 521, 532-3.

Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the Tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed – exclusively – by the aims and objectives of the statutory scheme.

Of course, where the adversary parties can be expected to cover the relevant issues, the decision-maker – or the Tribunal itself[26] - may decide that there is little for the decision-maker to contribute to the Tribunal proceeding. But the presence of a contradictor is no guarantee that all relevant matters will be canvassed, as the present case illustrates. Although the Shire was acting as contradictor – opposing the proprietor’s application for review of the Commission’s refusal of its application – the Shire elected not to support the Commission’s decision on the ground of community opposition. The Commission itself being absent from the proceeding, there was no party before the Tribunal supporting that critical part of the Commission’s reasoning.
[26]Geographical Indications Committee v O’Connor (2000) 64 ALD 325.

Nor is the impartiality of the primary decision-maker jeopardised by active participation in a review proceeding. Of course, as Tadgell JA said in Bausch, the decision-maker must not behave as an adversarial party nor ‘engage in curial tactics’. But, as the example of the TAC itself illustrates, there is no obstacle to the decision-maker being represented by counsel and presenting its own ‘case’ in support of the decision under review. As s 59 makes clear, the decision-maker is a ‘party’ in every sense.

What was said by the High Court in R v Hardiman; Ex parte Australian Broadcasting Tribunal (‘Hardiman’s case’)[27] did not concern administrative review proceedings before a tribunal like VCAT. Rather it concerned the – quite different – position of a decision-maker whose decision is the subject of judicial review proceedings. Such proceedings are to be distinguished from ‘merits review’ proceedings before the Tribunal in two important respects. First, judicial review is concerned with error of law. There is no room for debate about the merits of the decision under challenge. Secondly, if the decision under review is found to be vitiated by error of law, the ordinary course is for the decision to be quashed and the matter remitted to the primary decision-maker, which must then carry out the decision-making process afresh in accordance with the legal ruling of the court. Hence the importance of the decision-maker preserving its impartiality.[28]
[27](1980) 144 CLR 13.
[28]Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182, 195-6 (Burchett J), 206-7 (Mansfield J).

Hardiman’s case involved judicial review of a decision of the Australian Broadcasting Tribunal. The Tribunal had been represented in the High Court by senior counsel, who sought actively to defend the legality of the Tribunal’s decision. The High Court said:

In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. … If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.[29]

Impartiality in the event of a re-hearing by the same decision-maker was thus the critical issue.

[29](1980) 144 CLR 13, 35–6 (emphasis added).

In Branbeau, Morris J referred also to the decision in Fagan v Crimes Compensation Tribunal.[30] That too was a judicial review proceeding. The Crimes Compensation Tribunal appeared in the proceeding by counsel and opposed the application for judicial review. Brennan J noted that the principle enunciated in Hardiman would ordinarily have applied but considered that, because the proceedings before the Crimes Compensation Tribunal as decision-maker had not involved an inter partes hearing, it was appropriate that the decision-maker should ‘appear by counsel to make such submissions as it thinks calculated to assist the court …’[31]
[30](1982) 150 CLR 666.
[31]Ibid 681–2. See also TXU Electricity Ltd v Office of the Regulator-General [2001] 3 VR 93; New Theme Pty Ltd v Victorian Casino and Gaming Authority [2002] VSCA 80.

An administrative review proceeding, by contrast, is concerned with the merits of the primary decision. As we have pointed out, the primary decision-maker is uniquely well-placed to assist the Tribunal in its consideration of the merits. Secondly, the primary decision-maker is seldom called upon to carry out the decision-making process afresh.[32] The Tribunal stands in the shoes of the primary decision-maker and decides what is the ‘correct or preferable decision’ on the material before it.[33] The decision made by the Tribunal then becomes, for all purposes, the decision of the primary decision-maker.[34]
[32]The Tribunal does have power to remit a matter for reconsideration by the decision-maker (s 51(2)(d)), but this power is rarely exercised. Cf Capricornia Credit Union Ltd v Australian Securities and Investments Commission [2007] FCAFC 112, [13] (Dowsett, Edmonds & Besanko JJ).
[33]McDonald v Guardianship and Administration Board [1993] 1 VR 521, 528 (Fullagar, Tadgell & JD Phillips JJ).
[34]VCAT Act s 51(3).

Davies J, as President of the Commonwealth Administrative Appeals Tribunal, drew these same distinctions in New Broadcasting Ltd v Australian Broadcasting Tribunal.[35] In contradistinction to Hardiman’s case, that case involved merits review of a decision of the Broadcasting Tribunal. His Honour said that in a proceeding before the AAT (Cth) –

… it is not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and to put substantive arguments. That is indeed the normal and desirable course.[36]

[35](1987) 73 ALR 420.

[36]Ibid 430. In Geographical Indications Committee (2000) 64 ALD 325, the Full Federal Court read these remarks as directed at the case where there is otherwise no contradictor – as to which, see [32] above.

For these reasons, in our view, the Commission could – and should – have played an active role in the review proceeding. The Commission should have sought to support its own decision by reference to the material which it considered to be significant, and by reference to the statutory regime under the GR Act which it administers.

Error of law

In our view, the Tribunal erred in law when it disregarded the evidence of community opposition to the proposed introduction of gaming machines. For reasons set out below, community opposition was a relevant consideration, that is, a matter which the Tribunal was bound to take into account having regard to the statutory scheme. [37]
[37]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).

Neither the Commission’s absence, nor the decision of the Shire not to ventilate that issue, relieved the Tribunal of the obligation to decide for itself whether community opposition was a relevant issue and, if so, what weight was to be given to the survey evidence. As we have said, the Commission’s reasons contained a careful analysis of that issue and a clear account of the community survey and its results. An error of law may be committed if a central issue is ignored by a tribunal, even if no submission is directed to the point.[38] While a tribunal is entitled to take account of concessions made by the parties appearing before it, the tribunal will:

fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified.[39]

[38]Transport Accident Commission v Bausch [1998] 4 VR 249, 263 (Tadgell JA).

[39]Comcare v Fiedler (2001) 115 FCR 328, 338 [39] (Drummond, Kiefel & Dowsett JJ). See also Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 and Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 50 FCR 405.

The power under the GR Act to approve premises as suitable for gaming is exercisable only if the decision-maker is satisfied that –

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.

The GR Act does not specify the matters which the decision-maker must consider in deciding whether this ‘no net detriment’ test is satisfied. (There is an express requirement to consider any submission made by the responsible authority concerning the economic and social impact of the proposal,[40] but this takes the matter no further). The identification of the matters which the decision-maker is bound to consider is, accordingly, a matter of implication from the subject-matter, scope and purpose of the Act.[41]

[40]Section 3.3.7(3).

[41]Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39-40 (Mason J); Craig v South Australia (1995) 184 CLR 163, 177 (The Court).

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

·the likely economic impacts of approval;
·the likely social impacts of approval; and
·the net effect of those impacts on the well-being of the relevant community.

‘Social impact’ means the impact on the society or community (or some part or parts of it) in which the gaming machines are proposed to be located. The ‘well-being’ of a community is a very broad concept. Dictionary definitions indicate that well-being is to be measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous.[42]

[42]New Shorter Oxford English Dictionary (3^rd ed, 1993), 3654.

It follows, in our view, that if the 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 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. (The weight to be given to the evidence is, of course, a matter for the decision-maker, and will depend upon the nature, extent and cogency of the evidence.) It follows that the Commission was clearly correct when it said –

[In] considering the issue of net social and economic detriment the Commission must be influenced by its conclusion as to the effect which the granting of the application would have upon this community.[43]

[43]See [11] above.

Further – and perhaps, in some cases, more significantly – evidence of community attitude, together with other evidence as to the character of a community, may give rise to an inference as to the impact that a gaming proposal is likely to have upon the social character of that community. If satisfied that the impact would involve substantial change, the decision-maker is less likely to be satisfied that approval of the proposal will not result in net detriment. In the present case we take the Commission to have reasoned in this way, namely that the particular factors which were distinctive of the social character of Romsey, in a positive way, were at unacceptable risk of change if the gaming proposal were approved.

Counsel for the proprietor argued that the obligation to take relevant considerations into account was not breached by a mere failure to consider a piece of evidence, in this case the results of the community survey. Although that distinction can sometimes be important,[44] it has no application in the present case. The Tribunal failed to give any consideration to community opposition as a substantive element of social impact. This was not the mere overlooking of a piece of evidence.[45]
[44]Li Shi Ping v Minister for Immigration (1994) 35 ALD 225; Paul v Minister for Immigration (2001) 113 FCR 396, 423 [78] – [79] (Allsop J); Cameron v Board of Trustees (2003) 130 FCR 122, 131 [32] (Whitlam, Kiefel & Dowsett JJ).
[45]cf Htun v Minister for Immigration (2001) 194 ALR 244, 259 [42] (Allsop J).

As the High Court made clear in Craig v South Australia,[46] and again in Minister for Immigration v Yusuf,[47] an administrative tribunal makes an error of law if it ignores ‘relevant material’ such that its exercise, or purported exercise of power, is thereby affected.[48] Earlier, in Minister for Aboriginal Affairs v Peko-Wallsend Limited,[49] Brennan J said:

The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.

In the present case, community opposition was a salient fact giving shape to the matter of social impact. It was of such importance that the Tribunal’s failure to address it meant that social impact had not been properly considered.

[46](1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).

[47](2001) 206 CLR 323, 351-2 (McHugh, Gummow & Hayne JJ).

[48]See Linett v McIntyre (2002) 117 FCR 189, 199 [34] (Kiefel J).

[49](1986) 162 CLR 24, 61.

Counsel for the proprietor also argued that the Tribunal was not required to take into account the survey evidence because it ‘patently lacked a rational basis’ and ‘had no probative value on the question of social impact’. In their written submission, they argued that:

A mere expression of desire, or preference, on the part of some members of the community for a particular outcome does not, in and of itself, provide evidence of either social or economic benefit or detriment. Nor is it a basis from which detriment might be inferred. The mere fact that an individual would prefer no electronic gaming machines in Romsey is not evidence that any individual, far less the community generally, would actually suffer any detriment, economic or social, in the event that this result did not eventuate.

They also contended that survey responses concerning ‘the installation of electronic gaming machines in Romsey’ could not be relevant to an assessment of the ‘social impact of the proposal’ that is, the proprietor’s proposal for a specific number of machines at the hotel.

We reject these arguments. We have already explained why community apprehension about the advent of gaming machines is capable of constituting a relevant social impact occasioning relevant detriment to the well-being of the community. For this purpose, concern about the impact of gaming machines on the community is relevant whether or not it is expressly referable to the particular proposal. To repeat – the weight to be attached to the evidence was a matter for the Tribunal, but to ignore it altogether was an error of law.

We highlighted earlier the key findings of the Commission, namely that:

·there was ‘overwhelming evidence’ that members of the Romsey community were opposed to the introduction of EGMs in their community;
·the ‘overwhelming impression’ was that members of the Romsey community found the prospect of gaming at their community’s only hotel ‘so disconcerting that it would have a significant effect upon that community’; and
·the local opposition was genuine, and was related to the nature of Romsey as a town and the hopes and aspirations of those who live in it. [50]

[50]See [10] above.

Those conclusions were based principally, but not entirely, upon the results of the survey carried out by the Shire. The Commission referred also to inspections which it had conducted and to the oral evidence led before the Commission. There was also a DVD, prepared by some Romsey residents, which the Shire showed to the Commission and later filed with the Tribunal, and which we ourselves have viewed. The DVD conveys quite clearly that there are real concerns within the Romsey community that its character would change very significantly were EGMs to be introduced.

Although the Tribunal on review has the same inquisitorial function as the Commission does,[51] no question arises in this appeal about the Tribunal having to make its own enquiries on this issue. The relevant matters were clearly exposed in the reasons of the Commission, which had been placed before the Tribunal. And the Tribunal was, in our view, obliged to consider all of the evidence which had been before the Commission bearing upon this issue of community opposition. To the extent that this evidence was not before the Tribunal, it could readily have been obtained either from the Shire’s representatives or from the Commission itself. The absence of the Commission gave rise to a particular need for the Tribunal to ensure that the evidence as a whole was assessed from the point of view of the statutory criteria and that the review was not constrained by the positions taken by the Shire and the proprietor.
[51]Branbeau (2005) 22 VPR 262, [40].

Although the review proceeding was a hearing de novo, the Commission’s reasons should have been given considerable weight. As we noted earlier, the Commission has the administrative responsibility for the GR Act. It has both specialist expertise and unique experience in dealing with the issues which arise under the Act. So much was acknowledged by Morris J in Branbeau.[52] Again, although it was for the Tribunal to decide what was the ‘correct or preferable’ decision on the proprietor’s application, the Tribunal could not properly discharge its ‘review’ function without evaluating the central element of the Commission’s reasoning and – if that element was to be disregarded in considering the ‘net detriment’ test – explaining why it was to be so disregarded. As the Tribunal’s reasons contained neither that evaluation nor that explanation, the Commission was given no guidance as to why its approach was said to be erroneous.
[52]Ibid [39]; see also Georgoussis v Medical Board of Victoria [1957] VR 671, 679 (Smith J).

Counsel for the proprietor relied, as did the Tribunal, on the circumstance that the GR Act expressly permits gaming on gaming machines ‘as a valid activity for Victorians’. The Act, they point out, provides for a system where the operation of up to 27,500 gaming machines in Victoria is lawful, and has as one of its main objectives –

To foster responsible gambling in order to –
(i) minimise harm caused by problem gambling; and
(ii)accommodate those who gamble without harming themselves or others.[53]

These provisions are relied on to support a submission that the presence or absence of ‘in principle’ community support for gaming machines generally is irrelevant to the task of deciding whether particular premises should be approved as suitable for gaming.

[53]Section 1.1(2)(a) – see Branbeau (2005) 22 VPR 262, [50].

We disagree. This argument is founded on a basic misconception. The fact that the GR Act allows gaming to occur in approved premises does not mean that any Victorian community is obliged to accept gaming machines. Nor do the provisions in any way prevent a community (or particular members of it) from voicing ‘in principle’ objections to the introduction of EGMs. On the contrary, as we have noted, community input is to be sought ‘to the widest extent possible’. We deal further below with the nature of the Commission’s inquiry.[54]
[54]See [67]–[72].

The scope of ‘social impact’ and ‘detriment to well-being’

There is no warrant for confining consideration of the ‘social impact’ of approval to the implications for problem gambling. In Branbeau, Morris J spoke of what he called the ‘fundamental dilemma’ of gambling control, in these terms:

There are problem gamblers, or potential problem gamblers, in the midst of every sector of society. This is particularly the case with gaming machines. The ‘good’ achieved by making gambling opportunities more accessible will always be accompanied by the ‘bad’ of increasing the prospect of problem gambling.[55]

In that case, the only ‘negative impact’ of the relevant approval which the Tribunal considered was the likely effect on problem gambling.[56] Likewise in the present case. His Honour’s conclusion – that the net impact of approval would not be detrimental to the community’s well-being – was explained in these terms:
I have outlined a number of benefits to the community if the venue is approved. These benefits need to be balanced against an increased propensity for the occurrence of problem gambling, with the community problems this creates. However, the extent of the latter is amorphous; and the socio-economic circumstances of the Romsey area are likely to mitigate the problem to some extent.[57]

[55](2005) 22 VPR 262, [57]; see also 278, [87].

[56]Ibid [87]-[94].

[57]Reasons [66].

With respect, the focus here is much too narrow. The impact on community members who do not gamble, and do not wish to gamble, is equally relevant. As the GR Act makes clear, Parliament was concerned that the views of the community at large should be heard. The Commission has, as one of its statutory functions, to advise the Minister ‘on community concerns about the economic and social impact of gambling on the well-being of the community.’[58] Further, the sixth policy principle which the Commission is obliged to implement requires it to establish:

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

[58]GR Act s 10.1.(2)(g).

Contrary to the submission advanced on behalf of the proprietor, there is no basis for treating as irrelevant for this purpose objections based on moral or religious grounds. The views which members of a community have about the kind of community in which they wish to live will reflect a whole variety of interests, aspirations, beliefs and experiences. If – as the Commission found to be the case in Romsey – members of the relevant community ‘find the prospect of gaming at [the proposed venue] so disconcerting that it would have a significant effect upon that community’, it is immaterial whether such concerns are founded on philosophical or moral or religious views (or some combination of these) or simply reflect unarticulated views about the kind of community in which people wish to live.

In arguing for a more restricted approach to ‘social impact’, counsel for the proprietor relied on a series of first instance decisions in the Land and Environment Court of New South Wales, concerning the cognate concept of ‘amenity’ in planning law.[59] On analysis, however, these decisions are underpinned by a line of appellate authority which supports the view we have taken on the scope of ‘social impact’ in the present context.
[59]Reliance was placed on Jarasius v Forestry Commission of NSW (No 1) (1990) 71 LGRA 79; Liu v Fairfield City Council (1996) 130 LGERA 230 (‘Liu’); Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; Soueid v Leichardt Municipal Council (2004) 139 LGERA 273.

Appellate courts in Queensland and South Australia have firmly rejected the proposition that the subjective perceptions of residents about the character of a neighbourhood must be excluded from consideration. Thus, in Broad v Brisbane City Council (“Broad”),[60] the Full Court of the Queensland Supreme Court was concerned with whether the expansion of a nursing home would ‘detrimentally affect the amenity of the neighbourhood’. Thomas J (with whom Connolly J agreed) said:
[60][1986] 2 Qd R 317.

The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood, and the reasonable expectations of a neighbourhood. The creation of an institution within a neighbourhood is in my view capable of altering its character in a greater respect than can be measured by the additional noise, activity, traffic and physical effects that it is likely to produce.[61]

De Jersey J (with whom Connolly J also agreed) said:
There is no doubt that the concept of amenity is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses, but also the resident’s subjective perception of his locality. Knowing the use to which a particular site is or may be put, may affect one’s perception of amenity.[62]

Referring to the description by Sugerman J of the amenity of a neighbourhood as ‘the quality which it has of being pleasant or agreeable,’ [63] de Jersey J said:
One would think that the assessment of that quality would necessarily involve subjective judgments, and often judgments for which it would be difficult to offer a rational, concrete foundation.[64]

[61]Ibid 319-20.

[62]Ibid 326.

[63]In Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR 152, 156.

[64]Broad [1986] 2 Qd R 317, 326.

These statements by Thomas J and de Jersey J were adopted and applied by the Full Court of the South Australian Supreme Court in Novak v Woodville City Corporation (‘Novak’).[65] The Full Court also endorsed what was said by Cripps J in Venus Enterprises Pty Ltd v Parramatta City Council (‘Venus Enterprises’),[66] as follows:

I am not persuaded, as a matter of law, that matters of taste and morality must necessarily be put to one side when determining whether or not a development is appropriate. It must always be a question of fact whether the amenity of a neighbourhood will be or is likely to be adversely affected by a development. It is not difficult to envisage a development which may cause such great offence to a significantly large part of the community that for that reason it ought not to be permitted on town planning grounds. I have no doubt, however, that the Court ought never to allow its own personal view of matters of taste or sexual morality to be a substitution for the evidence or to fill a vacuum left by the evidence. It is in this sense that it could be said that it is not for the Court to impose standards of morality.[67]

[65](1990) 70 LGRA 233, 236 (Jacobs J, with whom Cox and Prior JJ agreed).

[66](1981) 43 LGRA 67.

[67]Ibid 69-70.

In Perry Properties Pty Ltd v Ashfield Council (No 2),[68] Bignold J referred to Broad and Novak and said:

[T]he very wide concept of ‘amenity’ expounded in cases like Broad applies with even greater force in a statutory scheme like the [Environmental Planning and Assessment Act 1979 (NSW) s 79C] which in para (b) gives effect to the widest conceivable scope of ‘likely impacts’ of a proposed development, including environmental, economic and social impacts, without employing the term “amenity”.[69]

[68](2001) 113 LGERA 301.

[69]Ibid 318, [64]. Under Environmental Planning and Assessment Act 1979 (NSW) s 79C, the decision-maker is required to take into consideration ‘(b) the likely impacts of [the] development, including environmental impacts on both the natural and built environments and social and economic impacts in the locality’ (emphasis added).

In Dixon v Burwood Council,[70] Pain J was dealing with the likely impacts of a brothel development on the amenity of the relevant neighbourhood. The proposed development was in close proximity to a Greek Orthodox Church, of which the Commissioner at first instance had said:

There is little doubt that adherents of the Greek Orthodox religion are conservative in respect of moral and sexual standards, pointing to the unacceptability of brothels generally and thus to a great personal offence at having such a facility within such close proximity as is the case here.

Pain J held that the Commissioner had not erred in taking into account the concerns of the church community. Referring to Liu and to Perry Properties Pty Ltd v Ashfield Council (No 1) (cases relied on by counsel for the proprietor), her Honour said:
Those cases clearly establish that where a development causes antagonism or affront to an immediately affected and identifiable group because of their particular religious or cultural values or practices and beliefs then a detrimental social impact may be demonstrated.
In considering whether there was antagonism or affront caused between the development (a brothel) and the identified and immediately affected group (the church community), the moral and sexual standards of the church community as they relate to the religious beliefs of the church community and inform its behaviour are relevant.[71]

[70](2002) 123 LGERA 253.

[71]Ibid 266, [66]-[67].

In New Century Developments Pty Ltd v Baulkham Hills Shire Council (also relied on by counsel for the proprietor),[72] Lloyd J applied Broad, Novak, Venus Enterprises and Perry Properties Pty Ltd v Ashfield Council, saying:

In analysing the substance of … contributions from the public, issues of taste and morality are not necessarily set aside when determining whether or not a development is appropriate … [I]t is not difficult to envisage a development which causes such great offence to a large portion of the community that for that reason it ought not to be permitted on town planning grounds … [S]uch antagonism would amount to a detrimental social impact … These sentiments in relation to the element of subjectivity involved in assessing such impact upon amenity are echoed in the decision of Novak, with the caution that there is room for opinions to differ in weighing the same objective criteria.
In circumstances such as the present case, however, the consent authority must not blindly accept the subjective fears and concerns expressed in the public submissions. Whilst such views must be taken into consideration, there must be evidence that can be objectively assessed before a finding can be made of an adverse effect upon the amenity of the area ... In Broad, de Jersey J explained … that whilst the court is clearly entitled to have regard to the views of residents of the area, those views will be accorded little, if any, weight if there is no objective, specific, concrete, observable likely consequence of the establishment of the proposed use.[73]

Lloyd J also referred to what was said by the New South Wales Court of Appeal in refusing leave to appeal in Liu, where Mason P said:
While the morality issue per se is irrelevant, the demonstrable social effect of a particular brothel use is relevant … .[74]

[72](2003) 127 LGERA 303.

[73]Ibid 316, [60]-[61] (references omitted).

[74](1996) 130 LGERA 230, 238.

It is unnecessary to refer here to Victorian authority on the meaning of ‘amenity’ in planning law. No such question arises under the GR Act. As did counsel for the proprietor, we refer to the New South Wales cases by way of analogy only and to demonstrate that, contrary to the proprietor’s submission, the analogy reinforces the conclusion we have reached. (For completeness, we note that the approach in Victoria has been similar to that of the other States. Broad was applied by Ormiston J in City of Camberwell v Nicholson[75] and several decisions of VCAT have referred to the abovementioned cases in their consideration of ‘amenity’.[76])
[75](Unreported, Supreme Court of Victoria, 2 December 1998).
[76]See, for example, Kingston Council v Beaman & Ors [2003] VCAT 231; Black Lula Evangeline & Cooke Brian v Liquor Licensing Victoria & Green Dragon Pty Ltd [2000] VCAT 459; Zullaphella Pty Ltd v Stonnington City Council & Ors [1999] VCAT 200; Connell Wagner Pty Ltd v City of Port Phillip [1998] VCAT 606.

To sum up, the GR Act mandates consideration of the social impact of granting approval for gaming machines. By directing attention specifically to impacts which may be detrimental to community well-being, the Act makes squarely relevant the subjective perceptions of community members about their community, and their views about the likely effect of gaming machines on that community. While there is no place for the personal views of the decision-maker, the personal views of community members must be given their proper place in the evaluation.

Scope for community views to be heard

There is one further argument advanced by the proprietor which needs to be addressed. Reference was made to s 3.3.6 of the GR Act, which authorises the relevant responsible authority (in this case, the Shire) to make a submission to the Commission on an application for approval of premises –

addressing the economic and social impact of the proposal for approval on the well-being of the community of the municipal district in which the premises are located; …

The effect of this provision, so it was argued, was that –
the relevant responsible authority will have both the right and the responsibility to represent the views of the community of the municipality in which the machines are to be located and the attitude expressed by the responsible authority is sufficient representation of the attitude of that community.

In oral argument, it was contended that the responsible authority was ‘the custodian of the community’s concerns’, with the exclusive right to decide what matters were placed before the decision-maker on behalf of the community. The only vehicle for community consultation or participation in the process of approving premises, so it was said, was ‘through the avenue of the relevant community’s democratically-elected municipal council’.

The Commission and the Shire appear to have taken a somewhat similar view. The Commission’s reasons for decision refer to the introduction into evidence, though the Shire’s Director of Sustainable Development (Ms Schilling), of a video prepared by local residents, objecting to the introduction of EGMs in Romsey.[77]

Ms Schilling said that following the planning application conference and various meetings with community members, she had suggested that she could present to the inquiry a visual presentation on behalf of the community, given the limited ability of the community to participate in the inquiry process. We commend the makers of the video for the initiative in preparing it, but must say that such a video only captures the view of those who participate in it, which, in this case, was a small number of Romsey residents only.[78]

The Commission appears to have accepted, implicitly, the Shire’s view that community members could only communicate with the Commission through the Shire’s witness.

[77]We assume this is the DVD referred to earlier.

[78]Reasons [46] (emphasis added).

We note also a rather puzzling statement in an explanatory note to the Commission’s standard form application for approval of premises, as used by the proprietor in this case. After pointing out that the GR Act provides for a submission to be made by a local authority on economic and social impact, the note states:

The submission process does not preclude an applicant, a local authority and industry representatives communicating directly [scil with the Commission].

The note provides no further indication as to the nature of the communications which may occur between ‘industry representatives’ and the Commission with respect to a particular application for approval.

There is nothing in the provisions of the GR Act to suggest that Parliament intended the affected community to have only a ‘limited ability to participate’ in the Commission’s (or the Tribunal’s) inquiry into a proposal for approval of premises for gaming. Less still is there any foundation for the proposition that the responsible authority is to be the sole conduit between the community and the Commission/Tribunal in the decision-making process. All the Act does is to authorise the responsible authority to make a submission and then require the decision-maker to take that submission into account (or seek the views of the authority if it chooses to make no submission).[79]
[79]GR Act s 3.3.7(3) - (4).

Those provisions neither impose nor imply any restriction on the way in which the Commission otherwise goes about its ‘inquiry’ into the application, that being the term used in s 10.1.22 of the GR Act and by the Commission in its reasons.[80] The Commission has a duty to inquire into the matters upon which its power to approve premises is expressed to depend. It must conduct its work in an inquisitorial manner, not on an adversary basis.[81] The Commission should therefore –

be actively involved in fact gathering from an early stage and throughout the decision-making process, this function being interspersed with oral or written hearings where the parties make submissions.[82]

Again –
The essence of inquisitorial adjudication lies in the active participation of an impartial investigator from the earliest stages of the proceedings. The investigator has primary responsibility for defining the issues and is able to supervise the gathering of evidence.[83]

[80]Reasons [1], [2], [5], [6].

[81]New Theme Pty Ltd v Victorian Casino and Gaming Authority [2002] VSCA 80, [50] (Eames JA), [99] (O’Bryan AJA).

[82]Margaret Allars, Neutrality, the Judicial Paradigm and Tribunal Procedure (1991) 13 Syd LR 377, 384.

[83]Mark Aronson, Bruce Dyer, Matthew Groves, Judicial Review of Administrative Action (3^rd ed, 2004) 490.

It follows from what we have said already, about the scope of the requisite inquiry into social impact, that the Act requires an approach by the Commission which maximises opportunities for community input. Such an approach is entirely appropriate for an inquisitorial body. It accords, moreover, with the Commission’s obligation to ensure that ‘input is received … to the widest extent possible [from] the broader Victorian community’. The statutory policy of openness and accessibility is emphasised by the requirement of s 10.1.22(2)(a), that any inquiry which the Commission holds for the purpose of considering an application for approval of premises for gaming must be conducted in public, unless there are special circumstances requiring that it be held in private. Under s 10.1.16, the Commission is obliged to perform its functions ‘with as little formality and technicality, and as much speed, as the requirements of this or any other Act and the proper consideration of the subject matter permit’.

Conclusion

For these reasons, the appeal must be allowed. What we have said already suffices to explain why we reject the proprietor’s final argument – that the Tribunal’s failure to consider the relevant evidence could not have affected the outcome. Plainly, it could have.

The Tribunal’s decision to approve the hotel premises as suitable for gaming must be set aside, and the proprietor’s application for approval remitted to the Tribunal for hearing and determination according to law.

The planning questions

The second and third grounds of appeal advanced by the Shire do not concern the GR Act or the question whether the hotel premises should be approved for gaming. Rather, they concern questions arising under the Macedon Planning Scheme. The Tribunal gave answers to those questions but, for reasons which follow, had no jurisdiction to do so. Accordingly, those matters cannot be agitated on this appeal.

In 2004, the proprietor applied to the Shire for planning permit P204-0490. The permit sought was for –

Use and development of the Romsey Hotel to be extended for the use of a gaming lounge to install 50 gaming machines, and function room, and to modify the public bar to café lounge.

On 14 December 2004, the Shire gave notice that it had refused the permit. The stated reasons included the following:
The view of the Macedon Ranges Shire is that the net economic and social impacts of electronic gaming machines upon our communities are negative. Macedon Ranges Council actively opposes any increase in the number of gaming machines within the Shire and will encourage a reduction in electronic gaming machine numbers. This proposal will increase the number of machines by more than 60 per cent in the Shire. … [T]he proposal is contrary to Council’s adopted Responsible Gaming Policy adopted in March 2002.

The proprietor sought review of that refusal by the Tribunal. In its written submission to the Tribunal, the Shire said:

In addition to the detrimental amenity impacts of the proposal, Council is very concerned about the social and economic impact of the proposal. Council accepts … that the most appropriate body to consider the social and economic impacts of the proposal is the Victorian Commission for Gaming Regulation.
Given that the gaming use component does not require a permit, it would be difficult to mount arguments based on social and economic impact in the planning forum. However, for the record, Council is firmly of the view that installation of gaming machines at the hotel will cause significant net detrimental social and economic impact on the municipality and it intends to argue this before the Victorian Gaming Commission should the planning permit currently under consideration be granted.

On 19 May 2005, the Tribunal set aside the decision of the Shire to refuse the permit application, and granted – subject to a number of conditions – a permit for alterations and additions to the hotel. The Tribunal’s reasons recorded the following:

It was agreed that the gaming use does not require a planning permit and that the most appropriate body to consider aspects relating to the social and economic impact of the gaming facility is the Victorian Commission for Gaming Regulation. Accordingly only the built form and car parking provision of the application are before us for determination.

On 7 June 2005, in accordance with the direction of the Tribunal, the Shire issued the planning permit.

The proprietor’s application to the Commission for approval of the premises for gaming had been lodged in November 2004. Under s 3.3.4(3)(b) of the GR Act, that application had to be accompanied by –

any one of –
(i)a copy of a permit issued under the Planning and Environment Act 1987 permitting the premises to be used for gaming on gaming machines; or
(ii)other evidence 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; or
(iii)a copy of an application that has been made in accordance with the Planning and Environment Act 1987 for a permit that, if granted, would permit the premises to be used for gaming on gaming machines.

On the Shire’s view, as recorded in the Tribunal’s reasons for decision on the planning appeal, no planning permit was required for the use of the premises for gaming. Only the second of these alternatives could therefore have been relevant. It appears that no relevant ‘evidence’ was attached to the proprietor’s application, but by the time the Commission began its inquiry into the proprietor’s application on 27 September 2005, the Tribunal’s decision on the planning appeal had already been handed down, recording the Shire’s concession that no permit was required for the gaming use. There is nothing in the Commission’s reasons for decision to indicate that either the Shire (which was opposing the proprietor’s application) or the Commission itself raised any question about non-compliance by the proprietor with s 3.3.4(3)(b). In the circumstances this is hardly surprising.

The Commission’s reasons were published on 21 April 2006. On 10 May 2006, the proprietor filed with the Tribunal its application for review of the Commission’s decision to refuse approval. On 18 October 2006 an amendment to the Macedon Planning Scheme came into operation, prohibiting the installation of electronic gaming machines in any ‘strip shopping centre’ within the Shire. There had previously been no such prohibition.

As amended, cl 52.28 of the Scheme provided as follows:

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. [The schedule so provides].

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.

52.28-5 Transitional arrangements
The requirements of Clause 52.28 as in force immediately before 18 October 2006 continue to apply to a gaming machine referred to in a transitional application and permitted in the determination of a transitional application if a planning permit was not required immediately before 18 October 2006 for that gaming machine.
In this clause, “transitional application” means an application or request made, and not determined, before 18 October 2006 to the Victorian Commission for Gambling under the Gambling Regulation Act 2003 for either:
·an approval of premises for gaming, or variation of approval of premises for gaming, or
·amendment of conditions of a venue operator’s licence to vary the number of permitted gaming machines for an approved venue.

On 1 November 2006, the Shire wrote to the proprietor and the Tribunal, in connection with the proprietor’s application for review of the Commission’s decision, in the following terms:

We have become aware that the following questions of law need to be determined in this matter:
1.Would the installation or use of gaming machines within the Romsey Hotel contravene Clause 52.28-4 of the Macedon Ranges Planning Scheme?
2.If so, must the Tribunal disallow the application for review of the decision of the Victorian Commission for Gambling Regulation (VCGR) which decision was to refuse the application for approval of the Romsey Hotel as suitable for gaming?

The Schedule to Clause 52.28-4 of the Macedon Ranges Planning Scheme provides that a gaming machine is prohibited in all strip shopping centres on land covered by the Scheme. Therefore, the installation and use of a gaming machine is prohibited in the Romsey Hotel if the Romsey Hotel is in a strip shopping centre.
It is Council’s view that the Romsey Hotel is located within a strip shopping centre.
An application for approval of premises must contain or be accompanied by evidence that the use of the premises would not contravene the planning scheme that applies under the Planning and Environment Act1987 (refer section 3.3.4(3)(b)(ii) of the Gambling Regulation Act2003). The application for approval of the Romsey Hotel is not accompanied by such evidence.

Written submissions were subsequently filed by the Shire and by the proprietor in relation to the proposed questions. In its submission, the proprietor argued that it was neither necessary nor appropriate for the Commission at first instance, or for the Tribunal on appeal, to determine the issues raised. The proprietor argued – correctly, in our view – that the determination of whether a planning permit was required was properly to be dealt with by way of an application brought under the Planning and Environment Act1987, not under the GR Act.

So far as any question of formal non-compliance with s 3.3.4(3) was concerned, the proprietor argued – again correctly, in our view – that if the Tribunal were to grant the proprietor’s application for approval of the premises, the approval could be made subject to a condition under s 3.3.9(3)(b). Under that provision, the Commission (and hence the Tribunal on review) may make it a condition of the approval that it not take effect until the applicant satisfies the Commission either that it has obtained the necessary permit or that the use of the premises for gaming on gaming machines will not contravene the applicable planning scheme.

The Tribunal formed the view, however, that before it could embark on the merits of the proprietor’s application under the GR Act for approval of the premises, it was necessary to address the planning questions raised by the Shire. The Tribunal concluded that the proposed gaming venue would not be in an area that was a ‘strip shopping centre’ within the meaning of the relevant clause of the planning scheme. The Tribunal also addressed the question whether the proprietor’s application for approval of the premises for gaming was a ‘transitional application’, within the meaning of cl 52.28-5. The Tribunal concluded that it was. Detailed reasons were given for each of these conclusions, so detailed indeed that a greater proportion of the Tribunal’s reasons was devoted to the planning questions than to the merits of the application for approval of the hotel premises.

With great respect, the learned President was in error in dealing with these planning questions. The Tribunal simply had no jurisdiction to decide them. The only matter which was before the Tribunal in its review jurisdiction was the decision of the Commission to refuse the proprietor’s application under s 3.3.4 of the GR Act. The Commission had not made any decision about whether a planning permit was required under the Macedon Ranges Planning Scheme for the use of the hotel premises for gaming. Plainly, it had no jurisdiction to do so. The Tribunal in its review jurisdiction has the powers and functions of the primary decision-maker under the enabling legislation,[84] and no other.
[84]And any additional functions conferred on the Tribunal by the enabling legislation - VCAT Act s 42(1), 48, 51(1).

In any case, the question of a planning permit for the proposed gaming room had already been decided by the Tribunal (otherwise constituted) in May 2005. On the basis of an express concession by the Shire that no permit was required for the gaming use, the Tribunal had granted the only permit which the proprietor required, namely, a permit for the construction works.

Since the purported decisions of the Tribunal on those questions were outside the Tribunal’s jurisdiction, they have no legal validity at all.[85] Accordingly, no appeal lies. The grant of leave to appeal in respect of grounds 2 and 3 is therefore revoked.
[85]Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-5 [51] (Gaudron and Gummow JJ).

This conclusion, though inescapable, is in some ways regrettable. The Tribunal gave detailed consideration to the planning questions and it would no doubt have been of assistance to those practising in the planning field had this Court been able to express views as to the correctness (or otherwise) of what his Honour said. But for the reasons given, we are simply unable to do so.

In the circumstances, it is important to emphasise that the answers which his Honour purported to give to the planning questions have no legal validity and should be disregarded. They have no force, persuasive or otherwise, in the planning jurisdiction. How the ‘strip shopping centre’ definition is to be interpreted and applied must await a suitable case raising that issue for consideration.

---

Actions

Download as PDF Download as Word Document

Citations

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45

Most Recent Citation

Director of Public Prosecutions v Cowton [2014] VCC 51

Cases Citing This Decision

78

Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105

Powell v Australian Information Commissioner [2019] FCCA 39

Cases Cited

17

Statutory Material Cited

0

R v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13

Geographical Indications Committee v The Honourable Justice O'Connor [2000] FCA 1877

Commonwealth of Australia v Human Rights and Equal Opportunity Commission [1998] FCA 704

Cited Sections

[2008] VSCA 45

19 March 2008