McKinnon Hotels Pty Ltd v Glen Eira City Council
[2011] VSC 627
•6 December 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 1765
| McKINNON HOTELS PTY LTD | Plaintiff |
| v | |
| GLEN EIRA CITY COUNCIL | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2011 | |
DATE OF JUDGMENT: | 6 December 2011 | |
CASE MAY BE CITED AS: | McKinnon Hotels Pty Ltd v Glen Eira City Council | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 627 | |
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TOWN PLANNING – Appeal on question of law – Hotel with existing use rights in respect of gaming machines – Permit required to install or use gaming machines – Installation refers to development – Use rights otherwise extend to additional machines – Clause 52.28 Glen Eira Planning Scheme.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Tweedie with Mr D M Robinson | O’Donnell Salzano Lawyers |
| For the Defendant | No appearance |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
Use or development........................................................................................................................... 4
Existing use rights.............................................................................................................................. 7
Installation........................................................................................................................................... 9
Conclusion......................................................................................................................................... 15
HIS HONOUR:
Introduction
The appellant operates the McKinnon Hotel, which has for many years contained a gaming room with gaming machines. The appellant wishes to increase the number of machines within that room from 19 to 23.
At the time gaming machines were installed in 1995, no planning permit was required to install gaming machines in a ‘restricted area’, as defined under the relevant gaming legislation, if that restricted area did not exceed 25 per cent of the floor area where liquor might be consumed.
On 18 October 2006, amendment VC39 amended all Victorian planning schemes and abolished the previous 25 per cent rule. The explanatory report relating to the amendment stated in part:
Why the amendment is required:
The amendment is required to implement the Government’s 2002 Election commitment to:
·remove the provisions in Clause 52.28 that allowed gaming machines for up to 25% of a premises’ floor space without a permit, and
·require that a planning permit be granted for a gaming machine.
The amendment is also required to ensure the Victoria Planning Provisions and planning schemes are consistent with the Gambling Regulation Act 2003 and the Liquor Control Reform Act 1998 and to simplify the operation of the gaming provisions.
Clause 52.28-2 of the planning scheme now provides:
52.28-2 Permit requirement
A permit is required to install or use a gaming machine.
This does not apply in either of the following circumstances:
·Clause 52.28-3 or Clause 52.28-4 specifically prohibit a gaming machine.
·the gaming machine is in an approved venue under the Gambling Regulation Act 2003 on 18 October 2006 and the maximum number of gaming machines for the approved venue on 18 October 2006 is not exceeded.
This appeal is concerned with the effect of the initial permit requirement contained in clause 52.28-2, in circumstances where a hotel has existing use rights with respect to gaming machines.
For reasons I shall explain, the critical question is what meaning should be given to the phrase ‘install or use a gaming machine’.
On 17 March 2011, Deputy President Dwyer made orders in the following terms:
1.Pursuant to s 149A of the Planning and Environment Act 1987, I determine that, in respect of the land at 251 McKinnon Road, McKinnon:
a.immediately prior to 18 October 2006, the land was being lawfully used for the purpose of a hotel. The lawful activities comprised within the use of the land for the purpose of a hotel included the use of gaming machines within the hotel’s existing gaming room.
b.by reason of the existing use rights established as at 18 October 2006 (when clause 52.28 of the Glen Eira Planning Scheme was amended by Amendment VC39), a planning permit is not required under clause 52.28 of the planning scheme to ‘use’ additional gaming machines in the hotel’s existing gaming room. The use of any additional gaming machines may still require regulatory approval under other legislation such as the Gambling Regulation Act 2003.
c.assuming that the land is not in a strip shopping centre (but reserving the opportunity to the parties to contest that assumption in any future proceeding), a planning permit is still required under clause 52.28-2 of the Glen Eira Planning Scheme to install additional gaming machines in the hotel’s existing gaming room.[1]
2. The application is otherwise dismissed.
[1]Emphasis added.
The appellant does not take issue with the Tribunal’s findings as to existing use rights, nor has the respondent council challenged such findings by way of notice of contention.
The appellant challenges finding 1(c) and, more particularly, contends that because of its existing use rights, no planning permit is required if the installation of the proposed additional machines requires no more than the bringing of movable machines into the existing gaming area and the provision of electric power by way of plugging them in.
Use or development
It is convenient, first, to say something of the underlying framework of the Planning and Environment Act 1987 (‘P&E Act’). Section 6 of the P&E Act provides that a planning scheme may, among other things, make any provision which relates to the use, development, protection or conservation of any land, including provisions which regulate or prohibit the use or development of any land.[2]
[2]Section 6(1) and (2)(b).
The control now in issue is made pursuant to this power. It is a provision which relates to the ‘use or development’ of land.
The concepts of ‘use’, ‘development’ and ‘land’ are given extended definitions by s 3 of the P&E Act:
development includes—
(a)the construction or exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d)the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings;
building includes—
(a) a structure and part of a building or a structure; and
(b)fences, walls, out-buildings, service installations and other appurtenances of a building; and
(c)a boat or a pontoon which is permanently moored or fixed to land;
construct includes reconstruct or make structural changes;
land includes—
(a) buildings and other structures permanently fixed to land; and
(b) land covered with water; and
(c)any estate, interest, easement, servitude, privilege or right in or over land;
Use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed;
Works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.
The introduction to all planning schemes in Victoria contains a State Planning Policy Framework (‘the SPPF’), which states that the planning policies are directed to ‘land use and development, as circumscribed by the Planning and Environment Act 1987, a primary objective of which is to provide for the fair, orderly, economic and sustainable use and development of land’.[3] In turn, Victorian planning schemes set out policies relating to strategic planning considerations, including those relating to social considerations.
[3]Clause 10.01 of the SPPF.
Planning schemes go on to state a local planning policy framework; a series of zone controls; a series of overlays, which refine the controls applicable to aspects of use and development within specified areas; and particular provisions that relate to specified categories of use and development and other matters. The gaming provisions found in clause 52.28 fall within this last mentioned section of the planning scheme.
Planning schemes next contain a series of general provisions relating to administration of the scheme; the exclusion of certain uses, buildings, works, subdivisions and demolition from the requirement of a permit; existing uses; land used for more than one use; decision guidelines; referrals; and applications under s 96 of the P&E Act.
The concept of land use, which underlies the zone, controls the particular provisions which relate to particular uses. A number of the general provisions utilise a purposive concept of land use. Land use is understood to be regulated by the real and substantial purpose of the use, rather than a meticulous cataloguing of activities.[4] Nevertheless, clause 61.05 of the planning scheme provides:
[4]Cf Shire of Perth v O’Keefe (1964) 110 CLR 529, 535 per Kitto J.
61.05 Effect of this scheme
Land may be used or developed only in accordance with this scheme.
Land must not be developed unless the land as developed can be used in accordance with this scheme.
If this scheme allows a particular use of land, it may be developed for that use provided all requirements of the scheme are met.
In turn, the planning scheme independently regulates a number of activities, such as car parking and advertising, which may constitute a dominant land use in their own right or be incidental to the real and substantial use of the land.
Conceptually, the planning scheme thus regulates the use of land in a primary sense by regulating the real and substantial purpose for which land may be used, but it also, secondarily, regulates specific land use and development activities of sensitivity, whatever may be the dominant real and substantive purpose for which the land is used.
Specific aspects of land use, activity or development which are subject to particular controls include satellite dishes, advertising signs, heliports, post boxes, native vegetation, private tennis courts and gaming.
The planning scheme defines ‘gaming’, ‘gaming machine’ and ‘gaming premises’ as separate concepts.[5] Clause 52.28 regulates the specific activity of gaming and not the defined land use of gaming premises.
[5]Gaming and gaming machine are defined in clause 72 of the planning scheme:
Existing use rights
Section 6(3) of the P&E Act protects existing use rights:
6 What can a planning scheme provide for?
…
(3)Subject to subsections (4) and (4A), nothing in any planning scheme or amendment shall—
(a)prevent the continuance of the use of any land upon which no buildings or works are erected for the purposes for which it was being lawfully used before the coming into operation of the scheme or amendment (as the case may be); or
(b)prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation; or
(c)prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d)prevent the use of any building or work for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e)require the removal or alteration of any lawfully constructed building or works.[6]
[6]The provisos contained in subsections (4) and (4A) are not relevant to the present case.
It follows from the terms of s 6(3)(b) that the current control over gaming comprised in clause 52.28-2 cannot prevent the use of the McKinnon Hotel for any purpose for which it was lawfully used before that control came into operation.
In turn, clause 63 of the planning scheme provides for existing use rights. The initial provisions are as follows:
63.01 Extent of existing use rights
An existing use right is established in relation to use of land under this scheme if any of the following apply:
·The use was lawfully carried out immediately before the approval date.
·A permit for the use had been granted immediately before the approval date and the use commences before the permit expires.
·A permit for the use has been granted under Clause 63.08 and the use commences before the permit expires.
·Proof of continuous use for 15 years is established under Clause 63.11.
·The use is a lawful continuation by a utility service provider or other private body of a use previously carried on by a Minister, government department or public authority, even where the continuation of the use is no longer for a public purpose.
63.02 Characterisation of use
If a use of land is being characterised to assess the extent of any existing use right, the use is to be characterised by the purpose of the actual use at the relevant date, subject to any conditions or restrictions applying to the use at that date, and not by the classification in the table to Clause 74 or in Section 1, 2 or 3 of any zone.
63.03 Effect of definitions on existing use rights
The definition of a term in this scheme, or the amendment of any definition, does not increase or restrict the extent of any existing use right established prior to the inclusion of the definition or amendment.
63.04 Section 1 uses
A use in Section 1 of a zone for which an existing use right is established may continue provided any condition or restriction to which the use was subject and which applies to the use in Section 1 of the zone continues to be met.
63.05 Sections 2 and 3 uses
A use in Section 2 or 3 of a zone for which an existing use right is established may continue provided:
· No building or works are constructed or carried out without a permit. A permit must not be granted unless the building or works complies with any other building or works requirement in this scheme.
· Any condition or restriction to which the use was subject continues to be met. This includes any implied restriction on the extent of the land subject to the existing use right or the extent of activities within the use.
· The amenity of the area is not damaged or further damaged by a change in the activities beyond the limited purpose of the use preserved by the existing use right.
The use of the appeal site as a hotel is a section 2 use with existing use rights.
In a carefully reasoned judgment, Deputy President Dwyer held in the present case that the provisions of clause 52.28 would not require a use permit for the proposed increase in gaming machines at the McKinnon Hotel because that increase would not alter the existing use:[7]
I do not agree with the Council’s view on these matters. Section 6(3) of the Planning and Environment Act 1987 means what it says in relation to the protection of a continuing use. I agree with the applicant that, to the extent a provision of a planning scheme purports to fetter the protection afforded by existing use rights, that provision would be ultra vires and invalid.[8] Planning schemes are a subordinate instrument that must be read subject to the overriding statutory protection of existing use rights, and not vice versa. Moreover, use provisions of more general application (i.e. not solely directed to existing uses) do not apply to uses for which an existing use right is established. This is the case whether the use provision is in a zone, an overlay or particular provision. All are parts of a planning scheme to which s 6(3) applies.
It is now a well-established principle of existing use rights that a use for which existing use rights are established may reasonably intensify over time (provided it is for the same purpose) without losing the protection afforded by s 6(3). In this case, the ‘use’ of additional gaming machines within the existing gaming room would comprise an intensification of the existing use within such a principle. The new permit requirement in clause 52.28-2, to the extent it introduces a ‘use’ control over gaming machines, cannot fetter the reasonable intensification of the McKinnon Hotel’s existing use rights for the purpose of a hotel that includes the activity of gaming machines within the hotel’s existing gaming room. To the extent a permit could conceivably be refused, the permit requirement in clause 52.28-2 would impose a fetter on those existing use rights, and does not therefore apply to the McKinnon Hotel’s current proposal.
[7]McKinnon Hotels Pty Ltd v Glen Eira City Council [2011] VCAT 413 (17 March 2011) (‘Tribunal’s Reasons’), [20]-[21].
[8]Following Kraan v Cardinia SC[2006] VCAT 1629, per DP Gibson.
I respectfully agree. I further agree with the Deputy President’s analysis of the subsidiary arguments put to him relating to this issue, which it is unnecessary to repeat.
Installation
The Deputy President went on to consider whether a permit was nevertheless required to install additional gaming machines, despite the appellant’s existing use rights. The Deputy President first noted that existing use rights do not create development rights:[9]
It is well established that existing use rights (as the name implies, and as s 6(3) of the Planning and Environment Act 1987 applies) only relate to ‘use’, and no clause equivalent to clause 63 appears in planning schemes that deals with existing development. There is no similar statutory protection afforded to existing development. As indicated earlier, even where an existing use right is established, other planning scheme controls on matters other than use may still apply.
[9]Tribunal’s Reasons, [28] (footnotes omitted).
He recorded the appellant’s submission that the words ‘install’ and ‘use’ should be regarded, when read collectively and in context, as relating essentially to use. The respondent council did not press strongly for the opposite conclusion, but the Deputy President did not accept this construction of the phrase. He noted, first, the use of the separate words ‘install or use’ and applied the principle of statutory interpretation that some meaning should be given to both ‘install’ and ‘use’. He observed that this was particularly the case in the context of a land use control where ‘use’ is ‘such a fundamental concept to the way in which the planning system operates in Victoria’. The Deputy President referred to a dictionary definition of ‘install’, namely ‘to place in position for service or use’. He concluded that to ‘install’ is to undertake an activity which is a precursor to use and is thus something other than the use itself.
The Deputy President next referred to controls under the planning scheme relating to installation of satellite dishes and automatic teller machines and concluded that these references carried with them the implication that the concept of ‘install’ is a physical act more correlated to development or works and thus something different to ‘use’.
The Deputy President also considered the definition of ‘development’ and ‘works’ under the P&E Act and concluded:
34The applicant argued that the installation of the gaming machines would not constitute ‘development’ or ‘works’ as those terms are defined in the Planning and Environment Act 1987. “Development” is however an inclusive (rather than exhaustive) definition, so the Act definition alone is inconclusive. Moreover, I agree with the Council that larger infrastructure installations would clearly constitute development or works, even if the placement of smaller chattels or equipment such as gaming machines may not. It may be a matter of fact and degree. Either way, as I have indicated, the word ‘install’ is more closely correlated to the concept of development and works, and is a different concept to ‘use’. Furthermore, even if the installation of gaming machines is not strictly ‘development’ or ‘works’ in this case, that does not mean by default that it is ‘use’. Unless the applicant could establish that the installation of gaming machines is part of the ‘use’ (which I do not believe would be the correct interpretation for the reasons I have indicated), the installation simply does not obtain the benefit of the existing use rights. Here, I consider the installation of the machines is not part of the use, but a precursor to it.
He then referred to the provisions of the Gaming Regulation Act 2003 (‘the GR Act’):
35In the proceeding, I was referred generally to the Gambling Regulation Act 2003, albeit not in this specific context. Clause 52.28-2 refers to that Act, and it is part of the combined regulatory scheme for the control of gaming, and potentially an aid to interpretation in how particular words are used in the context of gaming. Although not argued before me, I note that provisions such as s 3.1.4 of that Act refer separately to the ‘use’ (in s 3.1/4(1)(a)) and ‘installation’ (in s 3.1.4(1)(c)) of gaming equipment in what comprises the ‘conduct of gaming’ under the Act. This is not strictly determinative of how the words ‘install or use’ should be construed in clause 52.28-2 of the planning scheme, but it perhaps bolsters the view I have reached.
The Deputy President then concluded:
36It follows that I am of the view that the word ‘install’, where used in the phrase ‘install or use’ in the permit requirement in clause 52.28-2, necessarily means something different and additional to ‘use’, and a precursor to use. It relates to the installation of the gaming machines by the licensees or operators rather than their use by hotel patrons. In a planning context, it therefore presumably covers matters such as the layout and configuration of the gaming machines within the gaming room, and potentially the impact this may have on internal amenity. I doubt that it would include matters pertaining to the type of machines, or adjustments made to the machines to limit their operation, as these are not really planning matters but regulatory matters for the gaming authorities under the Gambling Regulation Act 2003. It is sufficient to note that the installation of additional gaming machines at the McKinnon Hotel is a separate concept to their ‘use’, and the installation does not therefore benefit from any protection given to existing ‘use’ rights.
37Despite not requiring a permit for use, a permit would therefore still be required under clause 52.28-2 to install additional machines at the hotel.
38Having reached this conclusion, it is perhaps worth making comment on the practical implications of it. The applicant is required to seek a planning permit merely to install additional gaming machines, even though the planning system does not commonly regulate the internal rearrangement of buildings or the placing of chattels or equipment within them. The broader implications of the use of the additional gaming machines are not a matter for planning consideration given the protection afforded here by existing use rights, albeit that those broader implications can, to some extent, be dealt with by the gaming regulators in any approval process required under the Gambling Regulation Act 2003.
39I would not go so far as the applicant to say that these outcomes are ‘absurd’, but they do create a planning control of limited utility where existing use rights are established. It is not however for the Tribunal to change this outcome under the guise of statutory interpretation. Rather it is a matter for the regulators. If it is not intended to create a permit trigger to ‘install’ gaming machines and regulate that installation separately from ‘use’, then the words ‘install or’ should be deleted from clause 52.28-2. Alternatively, the intent should be clarified. If it is the intent that a planning permit should be obtained to use additional gaming machines as the Council here contends, even where existing use rights are established, then s6(3) of the Planning and Environment Act 1987 may require amendment.[10] These are policy matters for government.
[10] Eg similar to Codes of Practice under s 6(4A) that apply notwithstanding existing use rights.
In my view the Deputy President was correct:
(a)in construing the word ‘install’ by reference in the first instance to its plain meaning; and
(b) by reference to the enabling provisions of the P&E Act.
I also agree that the phrase ‘install or use’ should be interpreted as conveying more than the single concept of use.
It seems to me with respect, however, that in the present context insofar as to ‘install’ adds to the concept of ‘use’ such installation must be understood to comprise ‘development’.
As the Deputy President himself recognised, ‘install’ is capable of meaning a form of development. Thus, in ordinary parlance, when a person installs a swimming pool in the backyard it will, in planning terms, be a development if what is involved is permanent works, but amount to no more than ‘use’ if what is involved is the placing of a temporary movable receptacle in position for the use of children.
The two planning scheme instances of the use of the word ‘install’ identified in argument before the Tribunal (and again before me) use ‘install’ in the sense of development. Both the installation of automatic teller machines and of satellite dishes may involve building as that term is defined in the planning scheme. The definition of building contained in the P & E Act itself uses the phrase ‘service installations’ as a component of building.
In turn, although the Deputy President’s reasons were responsive to the manner in which the case was argued before him, I have come to the conclusion that the real question in the present case is not whether ‘install’ and ‘use’ are to be regarded as separate concepts. Rather, it is the subsidiary question of whether, if they are so regarded, ‘install’ is to be understood as intended to govern ‘installation’ in the nature of development, whilst ‘installation’ in the colloquial sense not involving development is to be regarded as governed by the control over use.
In my view, the better view is that ‘install’ is to be read down in this way. Conversely, there is no intermediate category of ‘installation’ which is neither development nor use.
First, the power to regulate ‘installation’ derives from the power to regulate development and use contained in the P & E Act. The fundamental obligation to comply with the planning scheme imposed by cl 61.05 is with respect to the use or development of land. As the Deputy President recorded, the concept of ‘use’ is fundamental to the way in which the planning system operates in Victoria. The P&E Act controls land use planning and enables the regulation of the use or development of land. In my view, this control regulates both.
Secondly, the control can be logically read as, first, regulating an aspect of development and, secondly, an aspect of use. So read, the word ‘install’ adds to the control over ‘use’.
Thirdly, unlike zone controls, the control does not regulate use or development by reference to the real and substantial purpose of the use of the land.[11] In the present case, that use is hotel.[12] The control over gaming regulates an aspect of land use and contemplates that land use may occur in a variety of premises including hotels. The fact that the control is not one upon classes of land use by reference to their real and substantial purpose does not, however, mean that it is not a regulation of use and development. It is a regulation of land use and development which focuses upon the provision and use of gaming machines as a specific activity.
[11]Cf Uniting Church in Australia Property Trust (Vic) v Moreland City Council (1996) VICCAT 74.
[12]Hotel is defined by clause 74 of the planning scheme as follows: Land used to sell liquor for consumption on and off the premises. It may include accommodation, food for consumption on the premises, entertainment, dancing, amusement machines, and gambling.
Fourthly, unless installation is understood to relate to development only, the question of what constitutes installation as distinct from use is a difficult one. A gaming machine is broadly defined. It may not require affixing to the building at all in order to be operable. Mechanical machines of the traditional ‘one armed bandit’ type did not. Further, a gaming machine may be in place for a relatively short period of time. Whilst historically controls have limited the total number of machines upon premises, they have not precluded the rotation or substitution of machines. Are machines ‘installed’ no matter how temporary their presence? Are they ‘installed’ whenever the room layout is modified, albeit to a minor extent?
Fifthly, the conclusion that installation is directed towards development fits comfortably with the Tribunal’s view that to install is ‘more closely correlated’ to the concept of development and constitutes a different concept to ‘use’.
Sixthly, in land use terms a ‘precursor’ to a particular use will ordinarily be regarded as part of the use. Thus, the meaning of ‘use’ as defined in the P&E Act specifically includes proposed use for the purpose for which land is being developed. Likewise, the leading authorities as to existing use rights make clear that limited physical activity may nevertheless constitute a land use.[13]
[13]Cf City of Nunawading v Harrington [1985] VR 641 and the cases there cited.
Seventhly, for my own part I would in any event regard the plugging in and switching on of a gaming machine within a building as comprising part of the use of that machine within the building. Thus, to plug in an electrical appliance and switch it on is generally to commence its use upon land. It comprises part of the use of the land.
Eighthly, historically, as counsel for the appellant submitted, the phrase ‘install and use’ was used in analogous controls. Nevertheless, that is not the current wording of the control and the different forms of control since 1995 (which adopt both the use of ‘or’ and ‘and’) do not give any clear guide to departure from the apparent intention that installation be the subject of control as well as use.
Ninthly, the primary method of regulating the use of gaming machines is the GR Act. There is no reason to regard the planning controls as intending to achieve more than an aspect of the regulation of the use and impact of such machines. The GR Act addresses issues of social planning including problems associated with addictive behaviour.[14] There is little encouragement in this context to postulate a novel form of planning control over ‘installation’ which is neither a control over development nor use.
[14]Cf Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422.
Lastly, I should record for completeness that the extrinsic materials relating to the planning scheme provisions now in issue do not recognise or materially assist the resolution of the question before the Court.
Conclusion
The better view is that the word ‘install’ should be understood to relate to development. What falls short of development and might otherwise be colloquially described as ‘installation’ should be understood to constitute ‘use’. In the present case, the installation proposed is simply an aspect of use and does not involve development. To plug in a gaming machine and switch it on is an aspect of land use in the same way as is the plugging in and switching on of any other moveable electric appliance.
The appellant contends by its notice of appeal that, having reached a favourable conclusion that the appellant had existing use rights extending to the use of some additional machines, the Tribunal should then have concluded that no planning permit was required to install such additional gaming machines in the hotel’s existing gaming room.
For the reasons set out above, I accept that the Tribunal should have so concluded, save with respect to installation constituting development. Accordingly, I will allow the appeal and subject to any further submissions of the parties direct that the Tribunal’s order be modified so that paragraph 1(c) reads:
assuming that the land is not in a strip shopping centre (but reserving the opportunity to the parties to contest that assumption in any future proceeding), a planning permit is still required under clause 52.28-2 of the Glen Eira Planning Scheme to install additional gaming machines in the hotel’s existing gaming room by way of development of the land but not otherwise.
Gaming The playing of a gaming machine.
Gaming machine Has the same meaning as it has in the Gambling Regulation Act 2003.
Gaming premises is defined in clause 74 of the planning scheme:
Gaming premises Land used for gambling by gaming, and where there is the ability to receive a monetary reward.
The GR Act defines gaming machine as:
any device, whether wholly or partly mechanically or electronically operated, that is so designed that—
(a) it may be used for the purpose of playing a game of chance or a game of mixed chance and skill; and
(b) as a result of making a bet on the device, winnings may become payable—
and includes any machine declared to be a gaming machine under section 3.1.3 but does not include—
(c) a lucky envelope vending machine within the meaning of Chapter 8; or
(d) interactive gaming equipment that is used or intended to be used for the purposes of interactive games and not for gaming of any other kind.
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