McKinnon Hotels Pty Ltd v Glen Eira City Council

McKinnon Hotels Pty Ltd sought to install additional gaming machines at their hotel, which already had use rights for such machines. The Glen Eira City Council denied the permit for these additional machines, stating that they constituted development under the Glen Eira Planning Scheme. McKinnon Hotels challenged this decision, leading to an appeal to the Supreme Court of Victoria. The primary issue before the court was whether the installation of additional gaming machines at McKinnon Hotels constituted 'development' as defined by the Glen Eira Planning Scheme. The court needed to determine if this activity required a permit under Clause 52.28 of the Scheme.

The court examined the definition of 'development' and considered whether the installation of additional machines constituted a change in use or expansion of existing use. It was established that the hotel already had use rights for gaming machines, but the question was whether adding more machines without physical alterations to the premises constituted development. The court held that while the use rights permitted the operation of gaming machines, the installation of additional machines required a permit as it constituted a change in the use of the premises, which is considered development under the Scheme.

Consequently, the court found that the installation of additional gaming machines did indeed constitute development under Clause 52.28 of the Glen Eira Planning Scheme. Therefore, McKinnon Hotels was required to obtain a permit to proceed with the installation. The appeal was dismissed, and the decision of the Glen Eira City Council was upheld. The court's ruling clarified that while existing use rights for gaming machines were acknowledged, any increase in the number of machines necessitated a permit, in line with the definition of development.