Moreland City Council v Glenroy RSL
[2018] VSC 126
•27 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2017 01813
| MORELAND CITY COUNCIL | Plaintiff (Applicant) |
| v | |
| GLENROY RSL SUB BRANCH INC | Defendant (Respondent) |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 and 11 October 2017 |
DATE OF JUDGMENT: | 27 March 2018 |
CASE MAY BE CITED AS: | Moreland City Council v Glenroy RSL |
MEDIUM NEUTRAL CITATION: | [2018] VSC 126 First revision 9 April 2018 |
TOWN AND COUNTRY PLANNING — Planning Scheme — Application for additional gaming machines — VCAT decision granting application — Weight given by VCAT to decision of Victorian Commission of Gambling and Liquor Regulation — Whether VCAT validly exercised its review jurisdiction — Whether VCAT had regard to local policy — Net community benefit — Acceptable outcome — Moreland Planning Scheme, cls 10.04, 22, 52.08, 65 — Planning and Environment Act 1987 s 60(1)(f), 80.
ADMINISTRATIVE LAW — Appeal on questions of law from decision of VCAT granting modifications to planning permit permitting additional gaming machines — Whether VCAT validly exercised its review jurisdiction — Whether VCAT had regard to local policy — Planning and Environment Act 1987 s 80; Victorian Civil and Administrative TribunalAct1998 ss 51, 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff (Applicant) | Mr A Finanzio SC and Mr R Chaile | Harwood Andrews |
| For the Defendant (Respondent) | Ms L Hicks | Williams Winter Solicitors |
HIS HONOUR:
Moreland City Council (‘the Council’) seeks leave to appeal on questions of law from the decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’ or ‘VCAT’) of 19 April 2017 directing that a planning permit be issued to Glenroy RSL Sub Branch Inc (‘Glenroy RSL’ or ‘RSL’) with modifications permitting 50 electronic gaming machines (‘EGMs’) to be placed at its premises, when the existing permit permitted 40 EGMs.
The Council had granted a permit for redevelopment work at the Glenroy RSL’s premises at 184-186 Glenroy Road, Glenroy, but had kept the gaming machine limit at 40. The 40 gaming machines had been introduced some years previously when no planning permit was required for gaming machines to be used in premises, and a permit issued in 2001 permitted 40 gaming machines.
The ten additional gaming machines were to be transferred from the Longbeach RSL in Chelsea in the City of Kingston.
On 22 October 2015, the Victorian Commission for Gambling and Liquor Regulation (‘the Commission’) granted the Glenroy RSL’s application for amendment of its venue operator’s licence to vary the number of electronic gaming machines at its approved premises at 186 Glenroy Road, Glenroy from 40 to 50.
The RSL provides welfare and support to returned service people and their families, including to those living in Glenroy and the City of Moreland.
The Council’s questions of law and proposed grounds of appeal
The Council’s questions of law are:
1. Whether the Victorian Civil and Administrative Tribunal (‘Tribunal’) constructively failed to exercise its jurisdiction by failing to undertake its own assessment of the social and economic impacts of granting a permit to add ten electronic gaming machines (‘EGMs’) and instead treating the findings of the Victorian Commission on Gambling and Liquor Regulation (‘Commission’) as correct until proven otherwise?
2. Whether the Tribunal erred in law by construing clause 10.04 of the Moreland Planning Scheme (‘Scheme’) as not establishing a test which must be met in order to grant a permit?
The Council’s proposed grounds of appeal if leave is granted are:
Ground One: constructive failure to exercise jurisdiction
The Tribunal constructively failed to exercise its jurisdiction by failing to undertake an independent assessment of the social and economic impacts of the grant of a permit.
Particulars
a.The installation of the EGMs required approval from both the Commission under the Gambling Regulation Act 2003 ('the Gambling Act') and Moreland City Council under the Planning and Environment Act 1987 ('the Planning Act').
b.In granting approval under the Gambling Act, the Commission had to consider the matters set out in s 3.3.7 of the Gambling Act, in particular whether the proposal would result in a net community detriment to the Moreland municipal district.
c.In granting approval under the Planning Act, the Council was required to consider the matters set out in s 60 of the Planning Act, as relevant, as well as the matters identified as relevant in clauses 22.10, 52.28 and 65 of the Scheme, which matters included the social and economic impacts of the proposal.
d.The task of the Tribunal on review under s 80 of the Planning Act is to conduct its own independent assessment and determination of the matters necessary to be determined and must make its own findings of fact about those matters.
e.The Tribunal relied upon the Commission's findings as to social and economic impacts and stated that:
i.It would not depart from them in the absence of 'special reasons'; and
ii.No special reasons existed
By adopting this approach, the Tribunal failed to undertake its own assessment of the social and economic impacts of the proposal.
Ground Two: Misinterpretation of the scheme
The Tribunal erred in law by construing clause 10.04 of the Moreland Planning Scheme as merely stating a consideration to be taken into account and not requiring a proposal to demonstrate ‘net community benefit’ in order to warrant the grant of a permit.
The proceeding is limited to the questions of law and the Court plays no role in considering the merits of the application for approval of additional gaming machines.
The facts
I take the following statement of undisputed background facts from the Council’s submission:
3.On 3 May 1995, the Council issued Permit MP 95/000063 which allowed the construction of a gaming room with 40 EGMs on the Land.
4.In April 2001, the Council granted a further permit MPS 2000/1057 (‘the 2001 Permit’), which allowed:
Construction of buildings and works to be used for place of assembly and gaming venue with associated car parking in accordance with the endorsed plans.
5.Condition 6 of the 2001 Permit provided:
The number of gaming machines in the premises must not exceed 40.
6.On 10 November 2014, pursuant to s 3.3.5 of the Gambling Regulation Act 2003 (‘the GR Act’), the RSL, through its solicitors, notified the Council of its intention to seek approval from the Victorian Commission for Gambling and Liquor Regulation (‘the Commission’) under that Act to amend its venue operator’s licence (‘the Licence’) to increase the number of EGMs in the venue by ten.
7.In or about June 2015, the RSL applied to the Council to amend the 2001 Permit. The amendment application sought permissions for buildings and works associated with a refurbishment of the RSL, to extend the area for the service of liquor, as well as permission to install an additional 10 EGMs.
8.In due course the RSL lodged its application to amend the Licence with the Commission.
9.On 31 July 2015, the Council advised the Commission that it opposed the amendment of the Licence.
10.On 25 August 2015, the Council provided written submissions and evidence to the Commission in support of its opposition.
11.On 7 September 2015, the Council withdrew from the proceedings before the Commission, citing an agreement with the RSL to impose certain conditions on the Licence, namely:
(a)The RSL agreed to contribute $20,000.00 per annum (for the life of the entitlements) towards initiatives for community support and education with Moreland, as agreed in consultation with Council.
(b)If the works proposed in the application to amend the 2001 Permit are not substantially completed within 2 years of the date on which the corresponding planning permit is granted, any approval obtained from the Commission would lapse and the number of electronic gaming machines that may be operated by the RSL would revert to 40.
12.On 22 October 2015, the Commission granted the amendment to the Licence and gave reasons.
13.On 23 May 2016, the Council granted the RSL’s application to amend the 2001 Permit in respect of all the amendments sought, but refused to allow those which sought to increase the number of the EGMs.
14.Subsequently, the RSL sought review of the Council’s decision in the Tribunal under s 80 of the Planning and Environment Act 1987 (Vic) (‘the Planning Act’). The review application was heard on 23–25 January and 28 February 2017.
15.On 19 April 2017, the Tribunal made orders setting aside the Council’s decision and directing the amendment of the 2001 Permit to facilitate the increase in the EGMs. At the same time, the Tribunal gave its reasons (‘Reasons’).
The Tribunal’s statutory duty
The parties accepted that the Tribunal was required to make the correct or preferable decision on the facts and the materials before it.[1] The Court of Appeal has described the Tribunal’s role as to carry out a merits review of the permit application, not to sit in appeal from the decision made, but to re-exercise the essential function of the original decision maker.[2] The Court of Appeal quoted with approval the statement of Emerton J that:
While the Tribunal may have to consider the factual findings upon which the decision under review was based in order to decide whether that decision was the correct or preferable one, it must make its own findings of fact and is not bound by the original decision-maker’s findings of fact.[3]
[1]See Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 42, 44 and 51 and Planning and Environment Act 1987 s 80; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 590; McDonald v Guardianship & Administration Board [1993] 1 VR 521.
[2]Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 748-9 [113] (‘Hoskin’).
[3]Mond v Perkins Architects Pty Ltd [2013] VSC 455, [10].
The Court of Appeal also stated:
It follows that, whilst it was proper for the Tribunal to record the basis on which the Council considered the question of social effects, it was also necessary for the Tribunal entirely for itself upon the material as it was before it.[4]
[4]Hoskin at 747 [110].
The Tribunal’s reasons
I next set out key passages in the introductory section of the Tribunal’s reasons:[5]
[5]P1435/2016 Glenroy RSL Sub Branch Inc v Moreland CC [2017] VCAT 531 (‘VCAT Reasons’).
12.The Moreland Resident and Ratepayers Action Group Inc supports the Commission’s decision and its representative, Ms Jennifer Jacomb, submits the Council is estopped by its decision to withdraw its objection to the Commission (ie to not oppose the 10 additional EGMs) from issuing the notice of decision under the scheme (ie to oppose the 10 additional EGMs). We do not accept that submission. The application regimes under the GR Act and PE Act are separate and distinct, although linked.
13.We agree with Ms Hicks’[6] submissions that our task is not a de facto review of the Commission’s decision. The Commission’s decision does not in any way mean that we must allow the Glenroy RSL’s review application. In essence, we must decide if the Glenroy RSL’s application to amend the 2001 permit is an acceptable planning outcome, having regard to the provisions of the scheme, without the inclusion of the two disputed conditions in the notice of decision.
[6]Counsel for the RSL.
14.Although the application regimes under the GR Act and PE Act are separate and distinct, they overlap. This overlap is illustrated by the Commission’s task to consider whether the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. The Commission’s primary focus is accordingly on the municipal district.
15.As we state later in these reasons, the Council’s task (and the Tribunal’s task, on review) is more confined and has a narrower focus. This is because the purpose of the provision in the scheme under which a permit is required to install additional EGMs includes to consider the social and economic impacts ‘of the location of gaming machines’.
16.We infer from the Council’s withdrawal of its objection to the application under the GR Act that the Council is satisfied that the net economic and social impact of 10 additional EGMs in the premises would not be detrimental to the wellbeing of the Moreland City community.
17.The Commission’s findings are not a complete answer to our task because, despite the overlapping nature of some considerations, we are making a decision under a different legislative regime. Nonetheless, we place considerable weight, but not overriding weight, on the Commission’s findings.
18.We do so for the following main reasons. First, the application was not contested by the Council. Second, there is no special reason to revisit the Commission’s findings. Third, the Commission had before it more expert evidence on social and economic impacts than was before us. Fourth, the Commission considered the narrower context of impacts, being impacts on the area within a 2.5 km radius of the premises and did so with the benefit of expert evidence.
19.In relation to the second of these reasons, the Council submitted there is a special reason, being the status of its policy. The policy is now part of the scheme. We do not find this a special reason that warrants giving the Commission’s findings less weight. There is no difference in substance between the Council’s policy before the Commission and the policy now before us that is included in the scheme.
20.So, we now turn to the Commission’s findings. We summarise the relevant findings as follows:
(a)Moreland has a population growth above the Victorian average.
(b) Part of Moreland, that does not include the premises, is subject to a regional cap of 640 EGMs and the remaining part of Moreland, that does include the premises is subject to a municipal cap of 445 EGMs. The additional 10 EGMs would result in the EGMs in the municipal cap area rising to 139 which would remain under the 445 EGM cap.
(c) The current EGM density in Moreland of 5.2 EGMs per 1,000 adults is lower than the Melbourne metropolitan average of 5.4 and Victorian average of 5.7, and would remain lower than both of those averages if the additional EGMs were installed.
(d) EGM expenditure per adult in Moreland is $468 or 18.8% lower than the Melbourne metropolitan average and 15.5% lower than the Victorian average, and the additional EGMs would result in expenditure per adult rising by 0.9%.
(e) In the area within a 2.5 km radius of the premises, 65% of the SA1s (the smallest unit for release of Census data) are in the two most disadvantaged quintiles of the SEIFA index of relative socio-economic disadvantage score in Moreland.
(f) Unemployment decreased in Moreland in the previous twelve months but remained 0.8% above the Melbourne metropolitan unemployment rate of 6.6%.
(g) The low level of anticipated new expenditure (about $54,000) from the new EGMs, the Moreland demographic profile and the age profile of the premises’ patrons are indicative of the potential increase in problem gambling being low.
(h) The area around the premises is undergoing urban renewal and demographic and socio-economic change.
(i) On balance, the additional EGMs will have a minor but positive economic impact on the Moreland community.
(j) The Glenroy RSL’s status as a club and its members’ older demographic profile may decrease the risk of problem gambling and the additional EGMs do not affect these factors.
(k) Moreland is not particularly vulnerable to problem gambling and the potential for increased problem gambling in Moreland resulting from the additional EGMs is low.
The Tribunal’s consideration of the Moreland Planning Scheme
The Tribunal considered the clauses of the Moreland Planning Scheme which concerned gaming: clauses 52.28 and 22.10. Under the heading ‘Relevant Considerations’, it noted that a permit was required under clause 52.28-2 of the Scheme to install or use the ten additional gaming machines. It stated:
The main relevant considerations under the scheme are the matters in section 60 of the PE Act, relevant State and local planning policy, the purposes of clause 52.28 and the decision guidelines under clause 52.28. Also relevant are various policies adopted by the Council, including the Glenroy Structure Plan 2008.
The Council’s grounds on which it relies in opposing any review of conditions 1 (a) and 6 in the amendments to the 2001 permit relate to inconsistency or poor response to local policy in the scheme. At the hearing, submissions and evidence about local policy occupied the most time at the hearing.
These considerations may be distilled to two main questions. First, are the additional EGMs in an acceptable location? Second, do the additional EGMs have an acceptable social and economic impact?[7]
[7]VCAT Reasons [24]-[26].
It is important for the determination of this proceeding to emphasise that the Tribunal identified two separate issues: the first locational issues and the second social and economic impacts. Although, these issues may overlap, the Tribunal correctly identified them as separate issues.
The Tribunal decided that clause 52.28 of the Moreland Planning Scheme, which deals with ‘appropriate locations and premises’ did not prevent the grant of a permit for the additional gaming machines and found that they would not be located in specified prohibited shopping complexes and in strip shopping centres.[8]
[8]VCAT Reasons [29]-[38].
The Tribunal considered clause 22 of the Moreland Planning Scheme in a lengthy section of its decision, which formed part of its consideration of the suitability of the location of the premises. Clause 22.10 commenced on 14 January 2016 and was not contained in the Moreland Planning Scheme when the Commission made its decision, but was when the Council decided the RSL’s planning application on 23 May 2016.
The Council informed the Tribunal that the local policy contained in clause 22-10 ‘was informed by the Moreland City Council Local impacts of electronic gaming machine [EGM] gaming in Moreland, April 2011 and Responsible Gaming Strategy 2010-2014’.[9]
[9]Joint Court Book 136 [75] (‘CB’).
The Tribunal addressed the local policy contained in clause 22.10-3 which had the objective of discouraging new gaming machines in ’[s]uburbs of socio-economic disadvantage as defined by the SEIFA index of Relative Socio-economic disadvantage’.[10] An additional objective of the local policy was:
To ensure that the location, design and operation of a gaming machine premises minimises the social and economic impacts caused by gaming machines and delivers a net community benefit.[11]
[10]VCAT Reasons [39].
[11]Moreland Planning Scheme cl 22.10-2.
This second objective was reflected in the first of the decision guidelines contained in clause 22.10-5 which ‘the responsible authority must consider, as appropriate’:
Whether there is a net community benefit to be derived from the application.
The Tribunal considered the socio-economic disadvantage of the area in which the Glenroy RSL’s land was situated and having inspected the site described the area as ‘far from well-to-do’.[12] It also decided that Moreland was not a suburb with a concentration of gaming machines[13] and that the additional machines would not be located in ‘core areas’ but on the activity centres’ ‘periphery’ and therefore would respond positively to that aspect of local policy.[14]
[12]VCAT Reasons [43].
[13]VCAT Reasons [48]-[51].
[14]VCAT Reasons [52].
The Tribunal found that the use of the additional gaming machines did not respond positively to the local policy to [e]ncourage a mix of …entertainment uses to be located within activity centres’.[15] Nor did the additional gaming machines respond positively to the local policy to discourage machines ‘[o]n sites within 800m of sensitive uses such as community health services, welfare agencies or public, community or social housing’.[16] It found that the additional machines would ‘not facilitate convenience gaming in the sense of confronting people moving about a centre doing their convenience shopping’[17] and that the premises exhibited more ‘destination attributes’ than ‘convenience attributes’ as a gaming machine venue.[18] It also found that the additional machines responded to the ‘hours and venue features’ of local policy.[19] Finally, it found that the impact of the proposal on the area was not unreasonable, stating that it was ‘significant that the Glenroy RSL is an existing gaming venue with a successful operating record’.[20]
[15]VCAT Reasons [57]-[61].
[16]VCAT Reasons [62]-[66].
[17]VCAT Reasons [67]-[71].
[18]VCAT Reasons [70].
[19]VCAT Reasons [72]-[76].
[20]VCAT Reasons [77]-[80].
The Tribunal ultimately concluded in respect of ‘locational considerations’ that:
Mr Milner’s overall opinion is that condition 1(a) and 6 should be retained in the amended 2001 permit because, despite the upgrade and refurbishment of the premises providing better facilities to the activities centre and local community, the location of the premises for the additional EGMs is strategically inappropriate and would be a poor planning outcome. We have given careful consideration to this opinion.
In relation to locational considerations, the additional EGMs respond positively to most of the relevant considerations. We accept that the additional EGMs do not respond particularly well to those aspects of local policy discouraging EGMs in SEIFA areas of relative disadvantage and discouraging EGMs within 800 metres of specified sensitive uses.[21]
An unsatisfactory response to those aspects of local policy does not mean that the application should be refused. It must be remembered that a policy is not a requirement and must be applied flexibly having regard to policy context as a whole and to the circumstances of a particular case. We are satisfied that the location of the additional EGMs is acceptable mainly because the location consists of an existing gaming venue that has operated successfully, there is no increase in the size of the gaming room or the permitted number of gaming room patrons, and the premises are an RSL club. As well, the additional EGMs respond positively to other, indeed the majority of, locational policies or decision guidelines.[22]
[21]VCAT Reasons [83]-[84].
[22]VCAT Reasons [85].
The Tribunal then considered the second issue that it had identified: Social and Economic Impacts in paragraphs 86 to 101 of its reasons. In part it stated:
The relevant social and economic considerations are those specified in the PE Act and in the purposes and decision guidelines of clause 52.28. There is no local policy directly relating to social and economic impacts. Local policy, as considered earlier in these reasons, relates solely to locational considerations. Nonetheless, we acknowledge that one of the decision guidelines under local policy relates to such impacts.
Before we address those considerations, we refer to the Commission’s consideration of such impacts.[23]
[23]VCAT Reasons [86]-[87].
Commission’s consideration of social and economic impacts
Earlier in these reasons, we referred to some [of] the Commission’s findings in relation to these impacts. We also referred to clause 52.28 requiring a narrower ‘locational’ focus to these impacts than the focus required to be given by the Commission. This is a factor that requires us to give weight to our earlier locational considerations.
We also referred to the weight that should be given to the Commission’s findings having regard to the Council’s ultimate decision to not contest the Commission’s decision nor to seek review of it, the absence of any special reason to review any of the Commission’s findings, and the Commission’s consideration of impacts proximate to the subject land.[24]
[24]VCAT Reasons [88]-[89].
The Tribunal then referred to the Commission’s findings on economic impacts of the additional machines and of additional community contributions by the Glenroy RSL and to social impacts. It noted that the Commission found:
[o]n balance, that there would be minor, but positive economic and social impacts of the additional EGMs. As previously stated, we give weight to this finding, although it is not a complete answer to our task.[25]
[25]VCAT Reasons [93].
The Tribunal then considered in turn ‘Section 60’ of the Planning Act matters, clause 52.28 and local policy. It stated that there was no express provision of local policy relating to consideration of social and economic impacts, but accepted that those impacts were acknowledged and to be considered by an objective of local policy and a decision guideline. It stated that:
As this objective and decision guideline does not specify the location of the net community benefit, it is open to us to give weight to the Commission’s consideration of both the benefits in both a broader and narrower location.[26]
[26]VCAT Reasons [99].
Under the heading ‘Conclusion’ the Tribunal stated:
There [are] no submissions or evidence before us that suggest[s] the Commission’s findings of a minor positive overall economic and social impact of the additional EGMs ought to be doubted.
The Council is taken to have accepted, by its withdrawal of the Council’s objection to approval of the additional EGMs by the Commission based on agreed conditions (that were ultimately included by the Commission) that the net economic and social impacts would not be detrimental to the well-being of the Moreland community. As the Commission considered the impacts at the municipal wide and immediate area level, the merit of the Council’s refusal to amend the permit to allow the additional EGMs is diminished.[27]
[27]VCAT Reasons [100]-[101].
The Tribunal then considered whether the additional gaming machines would be an acceptable planning outcome stating:
The scheme requires us to balance conflicting policies in favour of net community benefit. Local policy seeks to ensure that ‘the location…of [EGM] premises delivers a net community benefit’. We adopt the findings in other Tribunal proceedings that net community benefit is a consideration and not a test. There is no widespread community opposition to the application of the type on display in the Ramsey Hotel proposal.
Having regard to our findings that the location of the additional EGMs is satisfactory and that we have considered the social and economic impacts of the additional EGMs, we find the location of the additional EGMs is more likely than not to deliver a net community benefit and would be an acceptable planning outcome.[28]
[28]VCAT Reasons [102]-[103].
The Commission’s decision
To understand the context in which the RSL made the planning application and to understand the Tribunal’s reasons it is necessary to consider the Commission’s decision. The RSL’s application before the Commission was to amend its venue operator’s licence to increase the number of gaming machines permitted on the premises from 40 to 50. The Commission granted the application on 22 October 2015.
The relevant provisions of the Gambling Regulation Act 2003 that the Commission was required to apply are contained in ss 3.4.18 to 3.4.20 which state:
Proposal of amendment by venue operator
s 3.4.18 (1)A request by a venue operator for an amendment of licence conditions—
…
(c)in the case of… an amendment to increase the number of gaming machines permitted in an approved venue, must be accompanied by a submission—
(i)on the net economic and social benefit that will accrue to the community of the municipal district in which the approved venue is located as a result of the proposed amendment; and
(ii)taking into account the impact of the proposed amendment on surrounding municipal districts—
in the form approved by the Commission and including the information specified in the form.
Submissions on proposed amendments
s 3.4.19 (1)Subject to this section, after receiving a copy of a request for an amendment referred to in section 3.4.18(2), a municipal council may make a submission to the Commission—
(a)addressing the economic and social impact of the proposed amendment on the well-being of the community of the municipal district in which the approved venue is located; and
(b)taking into account the impact of the proposed amendment on surrounding municipal districts.
Consideration and making of amendment
s 3.4.20 (1)Without limiting the matters which the Commission may consider in deciding whether to make a proposed amendment the Commission must not amend a venue operator’s licence unless—
…
(b)if the proposed amendment will result in an increase in the number of gaming machines permitted in an approved venue, the Commission is satisfied that the regional limit or municipal limit for gaming machines for the region or municipal district in which the approved venue is located will not be exceeded by the making of the amendment; and
(c)if the proposed amendment will result in an increase in the number of gaming machines permitted in an approved venue, the Commission is satisfied that the net economic and social impact of the amendment will not be detrimental to the well-being of the community of the municipal district in which the approved venue is located; …
Section 3.4.20(1)(c) requires the Commission to be satisfied that there is no net detriment arising from the approval of the additional gaming machines through it being positively and objectively established that the net economic and social impact will not be detrimental to the well-being of the community. The Commission stated that although the term ‘no net detriment’ was not defined, ‘the statutory sign posts’ were provided by the test itself.[29] Applying the Court of Appeal decision in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[30] the Commission stated that it must consider the likely economic impacts of approval; the likely social impacts of approval and the net effects of those impacts on the well-being of the relevant community.
[29]Victorian Commission for Gambling and Liquor Regulation, decision of 22 October 2015 concerning Glenroy RSL Sub Branch Inc’s application to amend venue operator’s licence (‘Commission Reasons’) [13].
[30]Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 434 [42]–[43] (‘Macedon Ranges’).
The Court of Appeal in the Macedon Ranges Case also stated that:
‘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 definition indicate that well-being is to be measured (at least) by the extent to which the community is a healthy, happy, contented and/or prosperous.
It follows, in our view, that if the approval of gaming at a 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.[31]
[31]Ibid 434-435 [43]-[44].
The Commission concluded its consideration of the ‘no net detriment test’ by stating:
As such, the ‘no net detriment’ test is a composite test requiring consideration of a single net impact in economic and social terms on the well-being of the community. The test will be satisfied if, following the weighing of any likely impacts, the Commission is satisfied that the net economic and social impacts of approval on the well-being of the relevant community will be either neutral or positive.[32]
[32]Commission Reasons [14].
The Commission considered the evidence before it and the economic and social impacts of the amendment. The Commission described the economic impacts of the additional machines as including the part of the new expenditure not attributable to problem gambling. On the other hand, the portion that was attributable to problem gambling was an economic disbenefit, but there was a very low level of anticipated new gambling expenditure and that was indicative of a low potential increase in problem gambling.[33]
[33]Commission Reasons [82].
The Commission noted that the RSL was located in a disadvantaged area based on statistics for the 2.5 kilometre area surrounding the premises. Any increase in problem gambling was likely to be minor.[34] The approval of the additional gaming machines would be likely to improve the RSL’s financial position and enable it to redevelop the premises and provide employment, whilst expanding its financial contributions to the community. The Commission considered other economic benefits and disbenefits, most of which were given a low weighting, such as the likely increase in competition and gaming in Moreland and the diversion of trade from other segments of the economy. The Commission concluded that:
Overall, the Commission considers that there will be a minor, but positive, economic impact on the Moreland community if the Application was to be approved.[35]
[34]Commission Reasons [86].
[35]Commission Reasons [91].
In its consideration of the social impacts of the additional gaming machines, the Commission accepted that there was a potential for negative social costs flowing from a possible increase in problem gambling expenditure, although the potential increase was very low. The increased number of gaming machines at the premises would better serve the needs of gaming patrons by providing a wider range of machines from which to choose. It would also enable the RSL to renovate and enhance the facilities at the premises while permitting it to maintain and expand its level of community contributions, which were a significant social benefit.
The Commission noted that because the Council had withdrawn its objection and did not appear at the hearing, it did not hear its evidence about the Symplan Report, which was a social and economic impact assessment or submissions about issues such as community apprehension about the additional machines. The Commission described the circumstances of the Council’s withdrawal from the application process in the following terms:
By letter to the Commission dated 31 July 2015, the Council indicated that it would make submissions in opposition to the Application. On 25 August 2015, Council made their submissions to the Commission.
By letter to the Commission dated 7 September 2015, Council indicated their intention to withdraw the objection to the Application, after having negotiated with the Applicant in relation to the imposition and particular conditions for approval should the Commission grant the Application.[36]
[36]Commission Reasons [3]-[4]
The Council’s letter stated:
Discussions have recently taken place between the Glenroy RSL and Council regarding the Application. As a result, Council hereby withdraws its objection on the basis that it has been agreed with the Glenroy RSL that the following 2 conditions be imposed if the Application is approved:
1.The Glenroy RSL agrees to contribute $20,000.00 per annum (for the life of the entitlements) towards initiatives for community support and education within Moreland, as agreed in consultation with Council.
2.If the works proposed in [the] application to amend planning permit MPS/2000/1057/A are not substantially completed within 2 years of the date on which the corresponding planning permit is granted, this approval will lapse and the number of electronic gaming machines that may be operated by the Glenroy RSL will revert to 40.
We respectfully request that the Commission take this into account in determining the application.[37]
[37]Commission Reasons [23].
The Commission considered that on balance there was likely to be a minor, but positive social impact from the additional gaming machines.[38] In summarising its assessment of their net economic and social impact, the Commission concluded:
That there is likely to be a minor net positive social and economic impact to the well-being of the community in the municipal district in which the Premises is located if the Application is approved.[39]
[38]Commission Reasons [101].
[39]Commission Reasons [103].
The planning legislation and planning scheme
Introduction
The Court of Appeal in Hoskin v Greater Bendigo City Council[40] stated that the underlying objectives of planning in Victoria are implemented through the mechanism of planning schemes which facilitate and regulate different forms of land use. This is done through a system of zones provided by standard planning provisions. The Court of Appeal stated that:
In determining whether a permit should be granted, the Council, as responsible authority in the first instance, and the Tribunal, in turn, when carrying out a merits review, must ultimately consider whether the proposed use and development is in the public interest in the sense that it will result in net community benefit.
Clause 10.04 of the planning scheme articulates this test as follows…[41]
Clause 10.04 as considered by the Court of Appeal was in the same terms as clause 10.04 of the Moreland Planning Scheme which is set out below.
[40](2015) 48 VR 715.
[41]Hoskin at 727 [45].
The parties agreed that the planning decision required consideration of a narrower geographical area than the Commission’s decision, which required consideration of municipal wide impacts of the additional gaming machines. However, the parties agreed that there was no definitive position as to the appropriate geographical area to consider in making the planning decision. Clause 52.28 of the Moreland Planning Scheme required consideration of the impact of the machines’ location. The local gaming policy of Moreland contained in clause 22.10 sought to discourage gaming machines.
The planning legislation
Sections 60 of the Planning and Environment Act 1987
60 What matters must a responsible authority consider?
(1) Before deciding on an application, the responsible authority must consider—
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria; and
(c) all objections and other submissions which it has received and which have not been withdrawn; and
(d) any decision and comments of a referral authority which it has received; and
(e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and
(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.
The planning scheme
The relevant parts of the Moreland Planning Scheme are as follows:
10 OPERATION OF THE STATE PLANNING POLICY FRAMEWORK
10.01 Purpose
The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State planning policy which they are to take into account and give effect to in planning and administering their respective areas. The State Planning Policy Framework provides a context for spatial planning and decision making by planning and responsible authorities.
The State Planning Policy Framework is dynamic and will be built upon as the government develops and refines policy, and changed as the needs of the community change.
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.
10.02 Objectives
The State Planning Policy Framework seeks to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.
10.03 Application
The State Planning Policy Framework sets out the planning policies which apply to all land in Victoria. The Victoria Planning Provisions includes nine regionally specific policy clauses in Clause 11 of the State Planning Policy Framework. This scheme includes only the regionally specific policies that apply to the area covered by this scheme.
These policies must be taken into account when a planning authority prepares an amendment to this scheme or a responsible authority makes a decision under this scheme.
Planning and responsible authorities must take account of and give effect to the policies applicable to issues before them to ensure integrated decision making.
10.04 Integrated decision making
Society has various needs and expectations such as land for settlement, protection of the environment, economic well-being, various social needs, proper management of resources and infrastructure. Planning aims to meet these by addressing aspects of economic, environmental and social well-being affected by land use and development.
Planning authorities and responsible authorities should endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.
Consistent with the objectives of local government under the Local Government Act 1989, municipal planning authorities are required to identify the potential for regional impacts in their decision-making and co-ordinate strategic planning with their neighbours and other public bodies to achieve sustainable development and effective and efficient use of resources.
10.05 Structure
The State Planning Policy Framework is structured around the following themes:
·Settlement
·Environmental and landscape values
·Environmental risk
·Natural resource management
·Built environment and heritage
·Housing
·Economic development
·Transport
·Infrastructure
Each policy includes:
·An objective that sets out the aim of the policy.
·Strategies that outline how the policy is to be achieved.
Each policy may also include:
·Policy guidelines that provide guidance about specific strategies, legislation and other matters to be considered in planning decisions.
65 Decision Guidelines
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
65.01 Approval of an application or plan
Before deciding on an application or approval of a plan, the responsible authority must consider, as appropriate:
·The matters set out in Section 60 of the Act.
·The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
·The purpose of the zone, overlay or other provision.
·Any matter required to be considered in the zone, overlay or other provision.
·The orderly planning of the area.
·The effect of the amenity of the area.
·The proximity of the land to any public land.
·Factors likely to cause or contribute to land degradation, salinity or reduce water quality.
·Whether the proposed development is designed to maintain or improve the quality of stormwater within and exiting the site.
·The extent and character of native vegetation and the likelihood of its destruction.
·Whether native vegetation is to be or can be protected, planted or allowed to regenerate.
·The degree of flood, erosion, or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.
This clause does not apply to a VicSmart application.
Then there are clauses 22.10, which contains the local policy and 52. 28 dealing with gaming:
22.10 GAMING
This policy applies to all planning permit applications to install or use a gaming machine, or use the land for the purpose of gaming, where a permit is required pursuant to Clause 52.28 of the Moreland Planning Scheme.
22.10-1 Policy Basis
Land use planning at the local level has a significant role in addressing and regulating the use of electronic gaming machines (EGMs). Council wishes to ensure that the location of gaming machines takes into account local characteristics which make a community more vulnerable to the negative effects of gaming. Council has prepared guidelines to assess the Social and Economic Impact of gaming machines.
22.10-2 Objectives
To discourage new gaming machines in disadvantaged areas as defined by the SEIFA index of Relative Socio-economic Disadvantage (IRSD). To ensure that the location, design and operation of a gaming machine premises minimises the social and economic impacts caused by gaming machines and delivers a net community benefit.
22.10-3 Policy
It is policy to:
Discourage gaming machines in the following locations:
·Suburbs of socio-economic disadvantage as defined by the SEIFA index of Relative Socio-economic Disadvantage (IRSD).
·In or immediately adjacent to suburbs with a concentration of gaming machines above the Victorian average.
Encourage gaming machines to be transferred from areas of low socio-economic disadvantage to areas of higher advantage.
Discourage gaming machines in the following locations:
·The core areas of activity centres where people congregate for daily convenience and social activities.
·Suburbs where there are no alternative non-gambling entertainment opportunities, such as hotels, clubs, cinemas, restaurants and bars operating at similar hours.
·On sites within 800m of sensitive uses such as community health services, welfare agencies or public, community or social housing.
Ensure gaming machines are located:
·On the periphery of Activity Centres, outside the main shopping, transport, community and civic functions of the centre.
·On sites that can reasonably be considered as a destination in their own right, separated from shopping centres, railway stations and community facilities where people congregate on a daily basis.
Ensure gaming machines are located in venues which:
·Have a maximum 18 hours operation and have a shutdown period for a minimum of 6 hours, starting no later than 2am.
·Are designed to ensure patrons are not required to enter the gaming lounge in order to access any other activity or area of the venue.
·Have a range of other non-gambling entertainment activities.
·Already have gaming machines, rather than creating a new gaming venue.
Ensure that the operations of gaming venues do not detrimentally affect the amenity of the surrounding area through the hours of operation, the management of patrons and the generation of noise and disturbance.
22.10-4 Application Requirements
An application should be accompanied by the following information, as appropriate:
·Details of the design and layout of the premises.
·A detailed Social and Economic Impact Assessment to determine if the proposal will produce a net community benefit. The assessment should include:
o A clear definition of the local community which will be affected by the application.
o Assessment of any vulnerable populations within the defined local community.
o Assessment of the socio-economic disadvantage of the suburb, including SEIFA Relative Socio-economic Disadvantage (IRSD).
o Assessment of surrounding context, including location of activity centres, transport routes, areas of congregation, sensitive uses and location of alternative non-gambling entertainment options.
o Evidence of the impact of the proposal on community wellbeing. This may be provided through a community survey or other appropriate qualitative data.
22.10-5 Decision guidelines
Before deciding on an application the responsible authority must consider, as appropriate:
·Whether there is a net community benefit to be derived from the application.
·Whether the net economic and social impact of approval is likely to increase the social disadvantage of an area of the City of Moreland.
·Whether the location of the gaming machines or gaming premises will facilitate or discourage convenience gaming.
·Whether residents will have a choice of gaming and non-gaming entertainment and recreation venues in the local area.
·The impact of the proposal on the amenity of the area.
22.10-6Reference documents
Gambling in Moreland 2015-2020, Moreland City Council
Local impacts of electronic gaming machine (EGM) gambling in Moreland, Moreland City Council, April 2011.
…
52.28 GAMING
52.28-1 Purpose
To ensure that gaming machines are situated in appropriate locations and premises.
To ensure the social and economic impacts of the location of gaming machines are considered.
To prohibit gaming machines in specified shopping complexes and strip shopping centres.
52.28-2 Permit requirement
A permit is required to install or use a gaming machine.
This does not apply in either of the following circumstances:
·Clause 52.28-3 or Clause 52.28-4 specifically 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.
52.28-3 Prohibition of a gaming machine in a shopping complex
Installation or use of a gaming machine is prohibited on land specified in a schedule to this clause.
This does not apply to a gaming machine in an approved venue under the Gambling Regulation Act 2003 on 18 October 2006; and the maximum number of gaming machines for the approved venue on 18 October 2006 is not exceeded.
52.28-4Prohibition of a gaming machine in a strip shopping centre
Installation or use of a gaming machine is prohibited in a strip shopping centre if:
·the strip shopping centre is specified in the schedule to this clause.
·the schedule provides that a gaming machine is prohibited in all strip shopping centres on land covered by this planning scheme.
This does not apply to a gaming machine in an approved venue under the Gambling Regulation Act 2003 on 18 October 2006; and the maximum number of gaming machines for the approved venue on 18 October 2006 is not exceeded.
A strip shopping centre is an area that meets all of the following requirements:
·it is zoned for commercial 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 Decision guidelines
Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:
·The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
·The compatibility of the proposal with adjoining and nearby land uses.
·The capability of the site to accommodate the proposal.
·Whether the gaming premises provides a full range of hotel facilities or services to patrons or a full range of club facilities or services to members and patrons.
Town planning evidence before the Tribunal
In the four day Tribunal hearing both the Council and the RSL called town planners to give evidence to the Tribunal about the application of the planning scheme, including the geographical areas that the Tribunal should consider. The evidence was relevant to the social and economic impacts of the additional gaming machines.[42]
[42]The Secretary of the Moreland RSL also gave evidence.
Mr Robert Milner gave evidence on behalf of the Council. He has had a long association with preparing gaming policy for inclusion in local planning schemes and has given evidence on many occasions concerning applications for the use and installation of gaming machines pursuant to clause 52.28 of the Victorian Planning Provisions. He concluded that:
Access to more gaming machines in this location would not positively contribute to a net community benefit. In essence the addition of ten machines runs contrary to many of the considerations and sensitivities addressed by the local gaming policy objectives.[43]
[43]CB 202.
Mr Nick Anderson gave evidence on behalf of the RSL. He had assisted the Glenroy RSL in the present application and had been engaged by the RSL in respect of other gaming applications. He acted for the Glenroy RSL in the gaming application to the Commission and stressed the significance of the Council’s change of position from withdrawing opposition to the application to the Commission but later refusing to amend the permit to increase the number of permitted machines. He concluded:
In my opinion, when assessed against the purposes and decision guidelines of Clause 52.28 and the policy intent of Clause 22.10, the site is an appropriate location for the additional 10 EGMs.[44]
[44]CB 268.
The essence of the Council’s submissions before the Tribunal was that:
Overall, Council submits that the Land is an inappropriate location for additional gaming machines when measured against a number of locational attributes and the potential impact of this on the community outweighs any benefit associated with the proposal.[45]
[45]CB 150.
The essence of the RSL’s submissions was that:
Council concludes that the potential impact of the additional EGMs outweighs any benefit associated with the proposal. It queries the benefit to be subscribed to the refurbishment works and the link to the additional 10 EGMs. The complete answer to this and its submissions re the role of community contributions is that it agreed to conditions requiring both the works to be undertaken and the community contribution to be paid. On that basis it withdrew its objection to the Commission process. It is reasonable for this Tribunal to conclude that it did so because it was satisfied that the correct balance had been reached.[46]
[46]CB 237 [71].
The Council’s submissions on question one - constructive refusal to exercise jurisdiction
The Council’s case in respect of this first question of law and proposed grounds was that the Tribunal had wrongly assumed that it should adopt the Commission’s findings about social detriment, unless the Council could demonstrate a ‘special reason’ or ‘special reasons’ for it not to do so. The Tribunal thereby failed to exercise its jurisdiction and committed an error of law by substituting the Commission’s finding of no net detriment for the finding that the Tribunal was obliged to make about net community benefit or an acceptable planning outcome. The Tribunal’s task was to carry out a de novo review of the Council’s decision,[47] but it had substituted the Commission’s finding for its own assessment of net community benefit.
[47]Victorian Civil and Administrative Tribunal Act 1998 s 51; Planning and Environment Act 1987 s 80.
The Council argued that the Tribunal erred by imposing a requirement that it demonstrate special reasons for not applying the Commission’s conclusions. As previously mentioned, the Tribunal stated:
Although the application regime under the GR Act and the PE Act are separate and distinct, they overlap. This overlap is illustrated by the Commission’s task to consider whether the net economic and social impact of approval would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. The Commission’s primary focus is accordingly on the municipal district.[48]
…
In relation to the second of these reasons, the Council submitted that there is a special reason, being the status of its policy. The policy is now part of the scheme. We do not find this a special reason that warrants giving the Commission’s findings less weight. There is no difference in substance between the Council’s policy before the Commission and the policy now before us that is included in the scheme.[49]
[48]VCAT Reasons [14].
[49]VCAT Reasons [19].
The Tribunal also stated:
We also referred to the weight that should be given to the Commission’s findings having regard to the Council’s ultimate decision to not contest the Commission’s decision nor seek review of it, the absence of any special reason to review any of the Commission’s findings, and the Commission’s consideration of impacts proximate to the subject land.[50]
[50]VCAT Reasons [89].
The Tribunal then stated:
The Commission found, on balance, that there would be minor, but positive economic and social impacts of the additional EGMs. As previously stated, we give way to this finding, although it is not a complete answer to our task.[51]
[51]VCAT Reasons [93].
The Commission’s statutory task was to decide whether it was satisfied that there would be no net detriment derived from the additional gaming machines, whereas the Council, and therefore the Tribunal, had to consider whether the additional gaming machines would provide a net community benefit. The overlap between the tests was not complete and the Tribunal was not entitled to give deference or considerable weight to the decision of the Commission.[52] The weight if any to be given to the Commission’s decision depended on the issues that the Tribunal was required to decide. The Tribunal could of course inform itself on any matter as it sees fit, but must perform its statutory function.[53]
[52]The Council relied on Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
[53]Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(c).
Early in its decision, the Tribunal stated that it intended to give ‘considerable weight’ to the Commission’s findings, stating that there was ‘no special reason’ to revisit the Commission’s findings, thereby deferring to those findings. The ‘special reason’ test reflected a submission made on behalf of the RSL.[54] Later, when the Tribunal turned to the questions of the social and economic impacts of the additional gaming machines, under the heading ‘Commission’s consideration of social and economic impacts’, the Tribunal again deferred to the Commission’s findings. In effect, the Tribunal placed an onus on the Council to displace the Commission’s findings about community benefit or detriment. The Tribunal adopted this approach in substantial part because the Council did not contest the Commission proceeding and had not identified a ‘special reason’ for reconsidering its findings.
[54]Transcript of Proceedings, Glenroy RSL Sub Branch Inc v Moreland CC (Victorian Civil and Administrative Tribunal, P1435/2016, 28 February 2017) 395; CB 1188.
In addressing the social and economic impacts of the additional gaming machines under s 60(1)(f) of the Planning Act, and clauses 52.28 and 22.10 of the Moreland Planning Scheme, the Tribunal referred repeatedly to the Commission’s findings and made little express reference to any other evidence. The Tribunal concluded that nothing before it persuaded it that the Commission’s findings of a ‘minor positive overall economic and social impact’[55] ought to be doubted, and referred again to the Council’s failure to contest the application before the Commission.
[55]VCAT Reasons [100].
The Council submitted that this statement contained an error of law as the planning scheme and legislation required focus on the specific location of the additional gaming machines and their impact in that location. But in determining net community benefit, the Tribunal’s task was to consider a narrower geographical area than the Commission had been obliged to consider. The Commission had acknowledged that the local area surrounding the RSL’s premises was considerably more disadvantaged than the City of Moreland taken as a whole.[56]
[56]VCAT Reasons [116]-[118].
The RSL’s submissions on the first question of law
The RSL submitted that the legislative regimes governing the introduction of gaming machines required the grant of two discrete, linked, overlapping permissions following the assessment of socio-economic factors, one related to gaming and the other to planning. The Council had not sought to dispute the findings of the Commission, but only challenged the weight to be given to them.
The RSL did not argue that the Council had been estopped from refusing or contesting the review of its planning application because it withdrew from participating in the Commission proceeding. It agreed that it was not the Tribunal’s task to treat the RSL’s review application as a de facto appeal from the Commission’s decision. The RSL submitted that the Tribunal’s task was to decide if its application was an acceptable planning outcome having regard to the provisions of the Moreland Planning Scheme and its assessment of net community benefit.
The RSL submitted that the Commission had considered the impacts of the additional gaming machines on the whole municipality – a municipal wide approach, whereas the Tribunal considered the impacts on a 2.5 km radius from the premises. The geographical focus was narrower under the planning legislation, but the radius of about 2.5 kilometres was an appropriate distance to determine the planning application.
The RSL contended that the Tribunal had not treated the Commission’s findings as determinative of the planning question. Rather, as it was obliged to do, it had considered whether the additional gaming machines provided a net community benefit and its findings about that issue were open to it on the evidence and were made after ‘intellectually engaging’ with the material before it. It had preferred Mr Anderson’s evidence to Mr Milner’s.
The RSL also submitted that the Tribunal was entitled to conclude that the Council’s withdrawal of opposition to its application to the Commission and the suggested conditions that it advanced, indicated that it was satisfied that the Commission had validly considered the gaming test of no net detriment. Very considerable weight ought to be given to the Commission’s decision unless there was a special reason to revisit its findings, even though the Tribunal was obliged to apply a different statutory test. The Commission has particular expertise in gaming regulation and there is a public interest in consistency of decision-making by bodies with statutory responsibilities for approval of gaming machines.
The Council’s second question of law
The Council’s second ground challenges the Tribunal’s statement that:
The scheme requires us to balance conflicting policies in favour of net community benefit. Local policy seeks to ensure that ‘the location… of [EGM] premises delivers a net community benefit’. We adopt the findings in other Tribunal proceedings that net community benefit is a consideration and not a test. There is no widespread community opposition to the application of the type on display in the Romsey Hotel proposal.[57]
[57]VCAT Reasons [102].
The Council submitted that the Tribunal had erred in deciding that the requirement of net community benefit contained in the Moreland Planning Scheme was a consideration and not a test, as the reverse was the case. This followed from the Court of Appeal decision in Hoskin v Greater Bendigo City Council.[58]
[58](2015) 48 VR 715.
The RSL submitted that the Tribunal did not err in law in finding that the concept of ‘net community benefit’ contained in clause 10.04 was a ‘consideration and not a test.’
Analysis of the Council’s proposed questions of law
The first question of law
I consider that the Council has established its first question of law and proposed ground of appeal because, in my opinion, the Tribunal did not perform its statutory task of considering the social and economic impacts of the additional gaming machines in the manner required by the Planning Act and the Moreland Planning Scheme. Instead it applied the Commission’s findings without making its own assessment of, and reaching its own findings about, the social and economic impacts of the proposal and whether it would deliver a net community benefit.
The Tribunal was not entitled to defer to the Commission’s findings.[59]
[59]Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135, 151-6; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, 140 [47]; The Hon Stephen Gageler, Deference, (2015) 22 AJ Admin L 151 and, Deference in Neil Williams (ed) Key Issues in Public Law (The Federation Press, 2017) 1.
It is true that the Tribunal accurately described its statutory duty and stated that the Commission’s decision did not mean that it was obliged to allow the RSL’s review application and that although the gaming and planning regimes overlapped, the Council’s task, and therefore its task, was more confined and narrowly focused than the Commission’s task. At an early point in its reasons it correctly stated:
We agree with Ms Hick’s submissions that our task is not a de facto review of the Commission’s decision. The Commission’s decision does not in any way mean that we must allow the Glenroy RSL’s review application. In essence, we must decide if the Glenroy RSL’s application to amend the 2001 permit is an acceptable planning outcome, having regard to the provisions of the scheme, without the inclusion of the two disputed conditions in the notice of decision.[60]
[60]VCAT Reasons [13].
I have found no error in the Tribunal’s consideration of the first issue, the ‘locational considerations’ issue raised by the Moreland Planning Scheme that affected the additional gaming machines. In that regard, the Tribunal after considering the town planning evidence, concluded that ‘in relation to “locational considerations”, the additional EGMs respond positively to most of the relevant considerations’.[61] I have previously summarised the Tribunal’s findings on the key ‘locational considerations’. In making those findings the Tribunal did not give any impermissible weight to the Commission’s decision. It made its own findings which were open on the evidence. To repeat a passage previously quoted, the Tribunal stated:
An unsatisfactory response to those aspects of local policy does not mean that the application should be refused. It must be remembered that a policy is not a requirement and must be applied flexibly having regard to the policy context as a whole and to the circumstances of a particular case. We are satisfied that the location of the additional EGMs is acceptable mainly because the location consists of an existing gaming venue that has operated successfully, there is no increase in the size of the gaming room or the permitted number of gaming room patrons, and the premises are an RSL club. As well, the additional EGMs respond positively to other, indeed a majority of, locational policies or decision guidelines.[62]
[61]VCAT Reasons [84].
[62]VCAT Reasons [85].
But I reach a different conclusion in the case of the second issue, the social and economic impacts of the additional gaming machines, in respect of which, in my respectful opinion, the Tribunal did not perform its statutory review function. The Tribunal correctly acknowledged that it was required to consider those impacts and there was evidence which concerned them. Previous VCAT decisions had reached a similar conclusion about its statutory duty on such reviews.[63] The Tribunal stated that it inferred from the Council’s withdrawal of objection or opposition to the RSL’s application to the Commission that it was satisfied that the economic and social impacts of the additional gaming machines would not be detrimental to the City of Moreland’s well-being. Although, the Tribunal stated that the Council’s conduct was not a complete answer to its submissions on the planning issues, it said that it placed considerable, but not overriding, weight on the Commission’s findings. The content of this ‘considerable weight’ is clear from paragraphs 18 and 19 of the Tribunal’s reasons, which I will again set out:
We do so for the following main reasons. First, the application was not contested by the Council. Second, there is no special reason to revisit the Commission’s findings. Third, the Commission had before it more expert evidence on social and economic impacts than was before us. Fourth, the Commission considered the narrower context of impacts, being impacts on the area within a 2.5 km radius of the premises and did so with the benefit of expert evidence.
In relation to the second of these reasons, the Council submitted there is a special reason, being the status of its policy. The policy is now part of the scheme. We do not find this a special reason that warrants giving the Commission’s findings less weight. There is no difference in substance between the Council’s policy before the Commission and the policy now before us that is included in the scheme.
[63]Melbourne CC v Kingfish Victoria Pty Ltd [2013] VCAT 1130, [40]-[41]; Bright Newbay Pty Ltdv Bayside CC [2010] VCAT 1347, [9].
I do not consider that the statement in the passage that ‘there is no special reason to revisit the Commission’s findings’ considered in the abstract and by itself involved error by the Tribunal. The Tribunal was saying that the Commission’s findings stood, having not been appealed and reviewed and that the Council had withdrawn from those proceedings. Indeed it had suggested conditions to be imposed on the approval if it was granted. In those circumstances, how could the Commission’s findings be revisited? But the use that the Tribunal made of the ‘special reason’ test did lead it into error as I discuss below.
The critical question was the weight that the Tribunal gave to the Commission’s findings and reasons in carrying out its function and whether it performed its own statutory function by making an independent assessment and determination of the social and economic impacts of the additional gaming machines.[64] As I later state, I consider that the Tribunal did not perform that task and used the ‘special reasons’ test to give the Commission’s decision impermissible weight in its decision thereby not making its own assessment of, and decision on, the evidence.
[64]Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 591 (Bowen CJ and Deane J) and 607 (Smithers J).
The Court of Appeal discussed the test of net community benefit and of acceptable outcomes in terms of the decision guidelines in Hoskin v Greater Bendigo City Council as follows: [65]
[65](2015) 48 VR 715, [47]-[50].
The test of net community benefit implicitly recognises that a proposal may have both benefits and disbenefits which must be jointly evaluated.
It follows that it will not be sufficient for objectors to simply establish that a particular proposal will or may cause some planning disbenefit in order to demonstrate that a permit should be refused. Conversely, it will not be sufficient for a permit applicant to simply demonstrate that a proposal will or may convey some planning benefit in order to establish that a permit should be granted.
To like effect, cl 65 of the planning scheme requires a responsible authority to decide whether a proposal for which a planning permit is sought will produce ‘acceptable outcomes’:
Decision Guidelines
Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.
In Rozen v Macedon Ranges Shire Council, Osborn J addressed the test of ‘acceptable outcomes’ as follows:[66]
The test of acceptable outcomes stated in the clause is informed by the notions of net community benefit and sustainable development. An outcome may be acceptable despite some negative characteristics. The outcome may be acceptable because on balance it results in net community benefit despite achieving some only of potentially relevant planning objectives and impeding or running contrary to the achievement of others.
This test was recently approved by the Court of Appeal in Boroondara City Council v 1045 Burke Road Pty Ltd.[67]
[66](2010) 181 LGERA 370, 408 [171].
[67](2015) 49 VR 535 [32], [34] (Warren CJ), [102]–[103] (Garde AJA).
As previously mentioned, the Tribunal acknowledged that the Commission’s findings were entitled to weight but were not determinative of the issue of net community benefit. For instance in considering social and economic impacts, it wrote:
The Commission found, on balance, that there would be minor, but positive economic and social impacts of the additional EGMs. As previously stated, we give weight to this finding, although it is not a complete answer to our task.[68]
[68]VCAT Reasons [93].
In my opinion, the Tribunal was entitled to give some weight to the fact that the Commission had granted gaming approval to the additional gaming machines. The two Acts and the schemes they enact may be assumed to be intended to have complementary, but separate, roles. In addition the Council and the Tribunal were to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.[69] However, the Tribunal was obliged to make its own assessment of the issues including the social and economic impacts of the additional gaming machines and to make its own findings of fact upon the material before it.[70]
[69]Moreland Planning Scheme cl 10.04.
[70]Supra footnotes 1-4.
When considering the social and economic impacts of the additional gaming machines, the Tribunal discussed the Commission’s consideration of the social impacts of the additional gaming machines. As I have previously mentioned, it referred to the significance of the Council’s withdrawal from the Commission proceedings.[71] It then set out the Commission’s findings on the economic and social impacts of the additional gaming machines.[72]
[71]VCAT Reasons [89].
[72]VCAT Reasons [90]-[91].
Then under the heading ‘section 60 matters’, the Tribunal stated:
Having regard to the Commission’s findings and the submissions and evidence in this proceeding, the additional EGMs will have some social effects and economic effects, but do not find either of those effects to be significant.[73]
[73]VCAT Reasons [95].
In respect of clause 52.28, the Tribunal said that it had considered the social and economic impacts of the location of the gaming machines. However, that passage does not contain any findings concerning that consideration.
Then the Tribunal proceeded to consider the local policy contained in clause 22 under the heading ‘Local policy’. It referred to an objective of clause 22, being:
To ensure that the location, design and operation of a gaming machine premises minimises the social and economic impacts caused by gaming machines and delivers a net community benefit.[74]
[74]Moreland Planning Scheme cl 22.10-2.
The parties in considering this objective focused their attention on the word ‘location’ rather than the following words ‘design and operation’.
A decision guideline in clause 22.10-5 which the decision maker was to consider ‘as appropriate’ was:
[w]hether there is a net community benefit to be derived from the application.
The Tribunal referred to a further local policy decision guideline contained which related to social and economic impacts and which stated:
[w]hether the net economic and social impact of approval is likely to increase the social disadvantage of an area of the City of Moreland.
The Tribunal stated:
As this objective and decision guideline does not specify the location of the net community benefit, it is open to us to give weight to the Commission’s consideration of both the benefits in both a broader and narrower location.[75]
[75]VCAT Reasons [99].
As previously noted, in its ‘Conclusion’, the Tribunal stated:
There is no submissions or evidence before us that suggests the Commission’s findings of a minor positive overall economic and social impact of the additional EGMs ought to be doubted.
The Council is taken to have accepted, by its withdrawal of the Council’s objection to the approval of the additional EGMs by the Commission based on agreed conditions (that were ultimately included by the Commission) that the net economic and social impacts would not be detrimental to the well-being of the Moreland community. As the Commission considered the impacts at the municipal wide and immediate area level, the merit of the Council’s refusal to amend the permit to allow the additional EGMs is diminished.[76]
[76]VCAT Reasons [100]-[101].
These paragraphs contain a clear statement about the very significant role that Commission findings played in the Tribunal’s decision. But, it is important to note that rather than suggesting that the Commission’s findings were in error, the Council had presented its own case including presenting expert town planning evidence which had addressed the social and economic impacts of the additional machines in their proposed location.
Under the heading of ‘Acceptable Planning Outcome?’, the Tribunal in the penultimate paragraph of its reasons stated:
Having regard to our findings that the location of the additional EGMs is satisfactory and that we have considered the social and economic impacts of the additional EGMs, we find the location of the additional EGMs is more likely than not to deliver a net community benefit and would be an acceptable planning outcome.[77]
[77]VCAT Reasons [103].
Taken in isolation, this paragraph might be regarded as the Tribunal’s own assessment of the net community benefit to be derived from the additional gaming machines and of their social and economic impacts. But although it states that ‘we have considered the social and economic impacts of the additional EGMs’, the reasons in paragraphs 86 to 103 dealing with those impacts when read as a whole, reveal that the Tribunal’s consideration of them amounted to the adoption of the Commission’s findings. As previously stated, the Tribunal was entitled to give weight to the Commission’s findings, but was required to make its own findings on the evidence of social and economic impacts presented to it. The paragraphs of the Tribunal’s reasons which deal with social and economic impacts all show the effect of the Commission’s findings, which it describes in paragraphs 90 to 92 and lack a clear statement of the Tribunal’s independent assessment of this issue. This is clear from:
(a) paragraph 89, particularly the phrase ‘the absence of any special reason to review any of the Commission’s findings’, which without scrutinising the words ‘over-zealously’[78], appears to place an onus on the Council to establish a special reason, whereas the Tribunal’s task was to make its own assessment of the issue, being entitled to give due weight to the Commission’s findings but not elevating them to the level of importance that it did;
[78]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
(b) the statement in paragraph 95 ‘having regard to the Commission’s findings and the submissions and evidence in this proceeding’, when no submission and evidence were specifically identified in the reasons;
(c) the whole of paragraph 99;
(d) the statement in paragraph 100 that ‘there is no submissions or evidence before us that suggests the Commission’s findings of a minor positive overall economic and social impact of the additional EGMs ought be doubted’;
(e) the whole of paragraph 101.
While the Tribunal correctly stated that it was entitled to give weight to the Commission’s findings, I consider that in fact it placed overriding weight on the Commission’s findings with the effect that it made no independent assessment of the social and economic impacts and the net community benefit of the proposal.
I have taken into account that the locational considerations, which I consider the Tribunal correctly addressed, overlap to some degree with the social and economic impacts. The Tribunal noted this in stating that this was a factor ‘that requires us to give weight to our earlier locational considerations’.[79] But the existence of that overlap did not remove the Tribunal’s obligation to make its own findings about the social and economic impacts of the proposal.
[79]VCAT Reasons [88].
The Court of Appeal in Hoskins Case[80] stated that the planning authority and the Tribunal had to consider whether the proposed use and development, in this case the additional gaming machines, would result in a net community benefit and acceptable planning outcome. In my respectful opinion, the Tribunal did not do that, but relied on the Commission’s conclusions made in respect of a different statutory test and the wider geographical area of Moreland, to reach the conclusion that the net economic and social impacts would not be detrimental. The Commission’s findings could not be used as a substitute for its own findings as to whether the additional gaming machines would deliver a net community benefit.
[80](2015) 48 VR 715.
The Council’s withdrawal from the Commission proceedings and its agreement on conditions to be imposed by that Commission did not remove its right to consider and decide on its merits and in accordance with policy the planning application for approval of the additional gaming machines. At first glance it might appear incongruous that the Council, having withdrawn its objection in the Commission and having agreed to conditions if the application was successful could then oppose the planning application. But, the statutory schemes differed. By the time of the Council decision and the Tribunal review, the Moreland Planning Scheme had commenced and contained a new local policy, although it may have overlapped with previous policies. The Council participated in the Tribunal proceedings, whereas it had not participated in the Commission proceedings, and led town planning evidence and made submissions which concerned social and economic impacts.
The error identified in the first question of law and associated grounds of appeal has been established. Its essence is that the Tribunal constructively failed to exercise its jurisdiction by its reliance on the Commission’s findings.
The second question of law
So far as the second question of law is concerned, as previously mentioned, the Tribunal stated that ‘the net community benefit’ was a consideration and not a test.[81] It also said that ‘a policy is not a requirement and must be applied flexibly having regard to the policy context as a whole and to the circumstances of the particular case.’[82] In my opinion, the Tribunal meant by those words that the establishment of net community benefit was not a mandatory pre-condition to the grant of planning approval. The Tribunal referred to a statement in a previous Tribunal decision to the effect that a planning scheme clause referring to net community benefit:
‘…does not set out a particular test, rather it sets out policy considerations as guidance and does not require the applicant, in planning terms, to demonstrate the proposal will lead to a net community benefit’.[83]
[81]VCAT Reasons [102].
[82]VCAT Reasons [85].
[83]CK & Sons Pty Ltd v Bayside City Council [2010] VCAT 505, [16] referring to Prizac Investments Pty Ltd v Maribyrnong City Council [2009] VCAT 2616, [139]-[140].
In my opinion, net community benefit was a consideration to which the Tribunal was required to have regard if, as appears to have been the case in the present matter, it considered it appropriate to do so. In my opinion, it did have regard to and assess that consideration, although, in my opinion it impermissibly adopted the Commission’s conclusions, rather than acting on its own assessment. Despite that error, I do not consider that the Tribunal erred in describing net community benefit as a consideration.
Therefore, I consider that the error alleged by the Council in its second question of law is not established.
The effect of the error of law
I have to consider whether the errors of law identified in the first question of law materially affected the Tribunal’s decision in the sense of vitiating it and that it is not an error that would have made no difference to the outcome of the proceeding.[84] I have considered whether the Tribunal’s conclusions about locational matters inevitably meant that it would have found that on the evidence and submissions the social and economic impacts of the additional gaming machines would produce a net community benefit. I do not consider that I can reach that conclusion and I therefore must conclude that the error of law identified in question one made by the Tribunal was material and vitiated the decision and that leave to appeal must be granted and the appeal succeed.
[84]Forster v Legal Services Board (2013) 40 VR 587, 615 [137]; Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295, [121], [124].
Conclusion
I conclude that the error of law identified in question one has been established. I therefore grant leave to appeal in respect of that question and associated grounds and allow the appeal. The relevant parts of the orders of VCAT of 19 April 2017 are set aside and the application to VCAT is remitted for rehearing before a differently constituted Tribunal.
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