Ritchies Stores Pty Ltd v Kingston City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2021 02019

RITCHIES STORES PTY LTD	Appellant
v
KINGSTON CITY COUNCIL	First Respondent
and
ALH GROUP PTY LTD	Second Respondent
and
ASPENDALE GARDENS RESIDENTS ASSOCIATION	Third Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2022
DATE OF JUDGMENT:	26 August 2022
CASE MAY BE CITED AS:	Ritchies Stores Pty Ltd v Kingston City Council
MEDIUM NEUTRAL CITATION:	[2022] VSC 495

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LOCAL GOVERNMENT – Town planning – Council refused application for planning permit to use and develop land for a supermarket and retail premises – On review, Victorian Civil and Administrative Tribunal set aside Council’s decision and directed grant of a permit, subject to conditions – Application for leave to appeal from Tribunal on questions of law related to Tribunal’s conclusion that proximity to an existing gaming venue was not a reason to reject the proposal – Whether it was unreasonable for Tribunal to find a lack of demonstrated significant social impact – Whether Tribunal misconstrued the Kingston Planning Scheme in relation to permit triggers – Whether Tribunal was wrong to find that the Planning Scheme provided ‘limited guidance’ – Planning and Environment Act 1987 (Vic) ss 60, 77.

ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Whether Tribunal’s reasons were adequate – Victorian Civil and Administrative Act 1998 (Vic), s 117.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N Tweedie SC with Mr J Tito	Planology Pty Ltd
For the First Respondent	Mr B Chessell with Ms K Lyle	Maddocks
For the Second Respondent	Ms S Brennan SC with Ms E Smith	Planning and Property Partners
For the Third Respondent	No appearance

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Planning Act — relevant provisions.......................................................................................... 2
Planning Scheme — relevant provisions................................................................................... 5
Tribunal’s Reasons........................................................................................................................ 9
Key issues............................................................................................................................. 9
Proximity to existing gaming venue............................................................................... 12

Grounds of appeal....................................................................................................................... 16
Were the Tribunal’s reasons adequate?................................................................................... 17
Ritchies’ submissions........................................................................................................ 18
Council’s submissions....................................................................................................... 19
ALH’s submissions............................................................................................................ 19
Consideration..................................................................................................................... 20

Was it unreasonable for the Tribunal to find a lack of demonstrated significant social impact?.............................................................................................................................................. 23
Ritchies’ submissions........................................................................................................ 23
Council’s submissions....................................................................................................... 23
ALH’s submissions............................................................................................................ 23
Consideration..................................................................................................................... 24

Did the Tribunal misconstrue the Planning Scheme in relation to permit triggers?........ 33
Ritchies’ submissions........................................................................................................ 33
Council’s submissions....................................................................................................... 33
ALH’s submissions............................................................................................................ 34
Consideration..................................................................................................................... 36

Was the Tribunal wrong to find that the Planning Scheme provided ‘limited guidance’? 38
Ritchies’ submissions........................................................................................................ 38
Council’s submissions....................................................................................................... 39
ALH’s submissions............................................................................................................ 39
Consideration..................................................................................................................... 40

Disposition................................................................................................................................... 43

HER HONOUR:

Introduction

In December 2019, ALH Group Pty Ltd applied to the Kingston City Council for a planning permit to use and develop the southern part of the site at 1–23 Wells Road, Chelsea Heights for a supermarket and retail premises. The proposed development will involve demolishing the existing bottle shop on the site, and repurposing the existing hardware store as a shopping centre with a large supermarket, a new bottle shop, and eight retail stores. The Chelsea Heights Hotel, located on the northern part of the site, is to be retained. ALH also proposes to reconfigure the car park shared by the Hotel and the shopping centre.

The Council refused the permit application on 21 May 2020. The grounds of refusal included inconsistency with the policies in the Kingston Planning Scheme aimed at protecting the retail role and function of activity centres, and the purpose of the Commercial 2 Zone. Council also considered that the proposal would not provide a net community benefit.

ALH applied to the Victorian Civil and Administrative Tribunal for review of the Council’s decision, under s 77 of the Planning and Environment Act 1987 (Vic) (Planning Act). The application was defended by the Council. Ritchies Stores Pty Ltd and the Aspendale Gardens Residents Association (AGRA) also appeared before the Tribunal to oppose the grant of the permit. There were numerous grounds on which the proposed development was opposed. Ritchies and AGRA both relied on the proximity of the proposed development to the Hotel, as an existing gaming venue with 40 electronic gaming machines or EGMs.

The Tribunal, constituted by Member Wilson and Member Tait, heard ALH’s application over five days in November 2020 and a further three days in January and February 2021. On 11 May 2021, the Tribunal made orders setting aside the Council’s decision and granting the permit with conditions. At the same time, the Tribunal published Reasons for its decision.[1]
[1]ALH Group Pty Ltd v Kingston CC [2021] VCAT 459 (Reasons).

In this proceeding, Ritchies seeks leave to appeal from the Tribunal’s orders. Its application is made under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), which provides for an appeal on a question of law from an order of the Tribunal, with leave of the Trial Division of this Court. The questions of law that Ritchies seeks to raise on appeal all concern the way in which the Tribunal dealt with the proximity of the proposed development to an existing gaming venue. Ritchies seeks orders granting leave to appeal, allowing the appeal and setting aside the Tribunal’s orders, and remitting the proceeding to a differently constituted Tribunal for further hearing and determination according to law.

There were three respondents to the proceeding, each of which took a different position.

(a) The Council supported Ritchies’ proposed grounds of appeal. Its submissions were primarily directed to the proper interpretation and application of the Planning Scheme.

(b) ALH maintained that the Tribunal’s decision was free from error and that the application for leave to appeal should be dismissed.

(c) AGRA advised the Court that it did not wish to participate in the proceeding.

For the reasons that follow, leave to appeal will be granted but the appeal will be dismissed.

Planning Act — relevant provisions

The purpose of the Planning Act is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.[2] Section 4(1) sets out the objectives of planning in Victoria, which relevantly include:
[2]Planning and Environment Act 1987 (Vic), s 1 (Planning Act).

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

…

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

…

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

…

(g) to balance the present and future interests of all Victorians.

The objectives of the planning framework established by the Planning Act, set out in s 4(2), include providing for ‘explicit consideration of social and economic effects when decisions are made about the use and development of land’.[3]
[3]Planning Act, s 4(2)(d).

Part 2 of the Planning Act is concerned with planning schemes. A planning scheme for an area must seek to further the objectives of planning in Victoria within the area covered by the scheme, and may make any provision which relates to the use, development, protection or conservation of any land in the area.[4] Among other things, a planning scheme may set out policies and specific objectives, and regulate or prohibit the use or development of any land.[5] In preparing a planning scheme or an amendment to a scheme, a planning authority must take into account the matters specified in s 12(2), including its social effects and economic effects.[6]
[4]Planning Act, s 6(1).
[5]Planning Act, s 6(2).
[6]Planning Act, s 12(2)(c).

Part 4 of the Planning Act deals with permits. Section 47(1) provides that where a planning scheme requires that a permit be obtained for a use or development of land, the application for the permit must be made to the responsible authority. In most cases, including this one, the responsible authority for the administration and enforcement of a planning scheme for a municipal district is the municipal council for that district.

Section 60(1) sets out the matters that the responsible authority must consider before deciding on an application for a permit:

(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.

Under s 61(1), a responsible authority may decide to grant a permit, to grant a permit subject to conditions, or to refuse to grant a permit on any ground it thinks fit. If the responsible authority decides to refuse to grant a permit, it must provide the applicant with a notice, setting out the specific grounds on which the application is refused.[7]
[7]Planning Act, s 65.

Section 77 provides that an applicant for a permit may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant the permit. In determining an application for review, the Tribunal must consider the matters specified in s 84B, including any matter that the responsible authority was required to take into account in making its decision, the relevant planning scheme, and the objectives of planning in Victoria.[8] After hearing an application for review of a refusal to grant a permit, the Tribunal may grant the permit and direct the responsible authority to issue it, including with any specified conditions.[9]
[8]Planning Act, ss 84B(1)(a), (2)(a)–(b).
[9]Planning Act, s 85(1)(b).

Planning Scheme — relevant provisions

The Planning Scheme is in the standard format for planning schemes under the Planning Act. It comprises both State standard provisions, selected from the Victoria Planning Provisions, and local provisions.[10] The Planning Scheme begins with State and local planning policies, and is then arranged as follows:
[10]Planning Act, s 7. The Victoria Planning Provisions are a set of standard planning provisions prepared and approved by the Minister, to assist in providing a consistent and co-ordinated framework for planning schemes in Victoria: Planning Act, s 4A.

30 Zones

40 Overlays

50 Particular Provisions

60 General Provisions

70 Operational Provisions

The Council drew attention to two specific policy provisions. The first was cl 11 — Settlement, which among other things provides that planning is ‘to prevent environmental, human health and amenity problems created by siting incompatible land uses close together’. The second was cl 13.07-1S — Land use compatibility, which contains an objective ‘to protect community amenity, human health and safety while facilitating appropriate commercial, industrial, infrastructure or other uses with potential adverse off-site impacts’. A related strategy is to ensure that use or development of land is compatible with adjoining and nearby land uses.

The Planning Scheme contains no specific policy in relation to gaming or gaming venues.

The site of the proposed development is within the Commercial 2 Zone or C2Z. The purpose of the C2Z is set out in cl 34.02:

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To encourage commercial areas for offices, appropriate manufacturing and industries, bulky goods retailing, other retail uses, and associated business and commercial services.

To ensure that uses do not affect the safety and amenity of adjacent, more sensitive uses.

Clause 34.02-1 contains a table of uses. Section 1 of the table specifies those uses for which a permit is not required, relevantly:

Use

Condition

Shop (other than Adult sex product shop, Restricted retail premises and Supermarket)

Must adjoin, or be on the same land as, a supermarket when the use commences.

The combined leasable floor area for all shops adjoining or on the same land as the supermarket must not exceed 500 square metres.

The site must adjoin, or have access to, a road in a Road Zone.

Supermarket

The leasable floor area must not exceed 1800 square metres.

The site must adjoin, or have access to, a road in a Road Zone.

Must be on land within the City of Greater Geelong or within an urban growth boundary in metropolitan Melbourne.

Clause 34.02-4 provides that a permit is required to construct a building or construct or carry out works.

Decision guidelines for permit applications in the C2Z are set out in cl 34.02-7, relevantly:

General

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

· The Municipal Planning Strategy and the Planning Policy Framework.

· The interface with adjoining zones, especially the relationship with residential areas.

Use

· The effect that existing uses may have on the proposed use.

There are no Overlays relevant to the application.

Within the Particular Provisions, cl 52.28 of the Planning Scheme deals with gaming. Its purposes are:

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.

Under cl 52.28-3, a permit is required to install or use a gaming machine.

Clauses 52.28-4 and 52.28-5 enable the Council to specify, in a schedule, shopping complexes and strip shopping centres in which the installation and use of a gaming machine is prohibited. Tables 1 and 2 in the schedule to cl 52.28 specify a number of shopping localities within the Kingston municipal district where the installation or use of gaming machines is prohibited.

There is also capacity for the Council to specify in a schedule:

(a) objectives to be achieved in relation to the installation or use of a gaming machine;[11]
[11]Planning Scheme, cl 52.28-2.

(b) guidelines relating to locations for gaming venues and machines;[12] and

(c) guidelines relating to venues for gaming machines.[13]

However, none of these matters are specified in the schedule to this Planning Scheme.

[12]Planning Scheme, cl 52.28-6.

[13]Planning Scheme, cl 52.28-7.

Decision guidelines for an application for a permit to install or use a gaming machine are set out in cl 52.28-9:

Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:

· The Municipal Planning Strategy and the Planning Policy Framework.

· 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.

· Any other matters specified in the schedule to this clause.

The general decision guidelines in cl 65 — which apply to all permit applications — state that because a permit can be granted does not imply that a permit should or will be granted, and that the responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines in the clause. In relation to the approval of an application, cl 65.01 requires the responsible authority to consider, as appropriate, matters including:

· The matters set out in section 60 of the [Planning] Act.

…

· The Municipal Planning Strategy and the Planning Policy Framework.

· 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 on the environment, human health and amenity of the area.

…

In the Operational Provisions, cl 71.02-3 provides for integrated decision-making by planning authorities, in the following terms:

Integrated decision making

Victorians have various needs and expectations such as land for settlement, protection of the environment, economic wellbeing, various social needs, proper management of resources and infrastructure. Planning aims to meet these needs and expectations by addressing aspects of economic, environmental and social wellbeing affected by land use and development.

The Planning Policy Framework operates together with the remainder of the scheme to deliver integrated decision making. Planning and responsible authorities should endeavour to integrate the range of planning 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. ...

Tribunal’s Reasons

Key issues

The Tribunal’s Reasons are prefaced by a useful summary of information relevant to the application.

Description of proposal

Use and development for a supermarket and retail premises, creation of a carriageway easement and reduction in the parking requirements of clause 52.06.

Nature of proceeding

Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.

Planning scheme

Kingston Planning Scheme

Zone and overlays

Commercial 2 zone

Permit requirements

Clause 32.04-1 A permit is required for use of the land for a supermarket and shop (as the supermarket exceeds a leasable floor area of 1800 square metres and the combined leasable area of the shops exceed 500 square metres).

Clause 34.02-4 A permit is required to construct a building or construct or carry out works.

Clause 52.02 A permit is required to create an easement.

Clause 52.06-3 A permit is required to reduce the number of car spaces required under clause 52.06-5.

Land description

The review site comprises an irregularly shaped lot on the south eastern corner of Springvale Road and Wells Road, Chelsea Heights. It has a site area of 4.93 hectares and is occupied by car parking and three premises:

The Chelsea Heights hotel;

Dan Murphy’s liquor shop; and

Mitre 10 hardware store.

Tribunal inspection

The Tribunal inspected the site, visited nearby shopping centres and viewed the wider area on 19 January 2021.

After introducing the subject matter of the application, the Tribunal identified the key issues to be addressed:[14]
[14]Reasons, [7].

· Does the proposal accord with the activity centre hierarchy?

· Is the proposal supported by other provisions of the Planning Scheme?

· Will the proposal create a new activity centre?

· Is there an identified need for additional supermarket floor space in this part of the municipality?

· Will the proposal contribute to employment?

· Will the proposal undermine the viability of existing activity centres?

· Is the loss of the existing hardware store or the proposed supermarket tenant relevant?

· Is the proposal appropriately sited in relation to the existing gaming venue?

· Is adequate car parking proposed?

· Is the landscaping acceptable?

· Will there be a net community benefit?

The Tribunal outlined the physical context,[15] the features of the proposed development,[16] and the Planning Scheme context,[17] before dealing with each of these issues in turn. Ritchies’ appeal concerns only the Tribunal’s reasoning and findings on the issues of whether the proposal is appropriately sited in relation to the existing gaming venue — the Hotel — which was relevant to its assessment of net community benefit. The Tribunal’s conclusions on the other issues can therefore be summarised briefly.
[15]Reasons, [8]–[15].
[16]Reasons, [16]–[17].
[17]Reasons, [18]–[32].

(a) The proposal does not accord with the strong policy direction to locate and consolidate new commercial facilities in existing or planned activity centres. Rather, it would introduce new retail activity in a location that is not identified as an activity centre in the Planning Scheme.[18]
[18]Reasons, [39]–[42].

(b) There is some limited support in the C2Z for out-of-centre development. A purpose of the C2Z encourages retail uses, noting that supermarkets and shops up to a certain size are allowed without a permit. Beyond that, a permit can be granted only if the proposal is of net benefit to the community in the region served by the proposal.[19]
[19]Reasons, [56]–[79].

(c) The site is within an area that operates as a well-established commercial node. The proposal will create a larger commercial node at the intersection, with the inclusion of a full-line supermarket and specialty shops. Whether the proposal effectively creates a new activity centre can be argued both ways. The more important consideration is whether approval of a supermarket and specialty shops will have a detrimental impact on the function and viability of existing activity centres.[20]
[20]Reasons, [85]–[89].

(d) A supermarket on the site will provide residents of the area with an additional and convenient full-line supermarket, although the need is not unequivocal.[21]
[21]Reasons, [103]–[109].

(e) There is economic benefit in the employment created by construction. While the ongoing employment benefits are less clear, on balance there will be positive impacts created by a net employment contribution.[22]
[22]Reasons, [113].

(f) Although there will be a loss in trade experienced by existing supermarkets and nearby activity centres, it will not be to the degree that results in their closure or undermines their continued viability. The proposal will not detract from the advantages that both the Chelsea major activity centre and the Aspendale neighbourhood activity centre will continue to offer.[23]
[23]Reasons, [124]–[131].

(g) No weight should be placed on the ‘loss’ of the existing Mitre 10 hardware store, or on the possible tenant of the supermarket. The Planning Scheme is concerned with the use and development of the site, not with the identity of the business that occupies it.[24]

(h) The proposed car parking will meet the demand generated by the proposal and the Hotel.[25]

(i) The proposal responded inadequately to the landscaping outcomes sought in the Planning Scheme. This concern can be addressed by permit conditions and is not a reason for refusing the application.[26]

[24]Reasons, [132]–[140].

[25]Reasons, [159]–[164].

[26]Reasons, [169]–[173].

Proximity to existing gaming venue

In relation to the proximity of the proposed development to the existing gaming venue, both Ritchies and AGRA submitted to the Tribunal that the location of a supermarket and shops adjacent to the Hotel was an inappropriate outcome strongly discouraged by planning policy. The Tribunal’s findings were, in full:[27]
[27]Reasons, [150]–[158] (citations omitted).

150. The purpose of clause 52.28 is to ensure that gaming machines are situated in appropriate locations, that the social and economic impacts of the location of gaming machines are considered and to prohibit gaming machines in specified shopping complexes and strip shopping centres. A permit is required to install or use a gaming machine. The Schedule to clause 52.28 lists 6 shopping complexes and 40 strip shopping centres in Kingston where the installation or use of a gaming machine is prohibited.

151. The application before us does not propose installation or use of gaming machines and the provisions of clause 52.28 are not triggered.

152. Other than clause 52.28, there are no other specific provisions or policies in the Kingston Planning Scheme relating to gaming.

153. Even in the absence of a permit trigger, the Applicant accepts the relationship between retail and gaming uses is relevant to discern whether adverse social impacts associated with exacerbation of the risks of problem gambling are likely to arise. We proceed on that basis and identify relevant considerations that, at the highest level, call for consideration of the compatibility of use and development:

· the objectives of planning in Victoria which include to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians ...;

· ensuring that, amongst other things, there is explicit consideration of social and economic effects when decisions are made about the use and development of land;

· consideration of any significant social effects and economic effects which the responsible authority considers the use or development may have; and

· the requirements for integrated decision making where the aims of planning include meeting needs and expectations of society by addressing aspects of economic, environmental and social wellbeing affected by land use and development.

154. Mr Quick[28] described the concept of convenience gambling whereby there is a greater risk of issues associated with problem gambling behaviour if gaming machines are located conveniently to other facilities where people go about their day-to-day activities. He referred to the contention as there being a greater risk of a person visiting a location for one reason (e.g., supermarket shopping) and being attracted to gamble when they had not intended to due to the convenience of the two uses, in turn potentially leading to problem gambling behaviour. He said:
[28]Mr Rhys Quick is an economist whose evidence was relied on by ALH at the Tribunal. His relevant evidence is discussed at [71]–[72] below.

Close proximity of gaming venues to shopping facilities is the most commonly cited situation of convenience gambling. The concern typically arises where the is a pedestrian “ant trail” past the gaming venue or room between points of everyday activity. This concept was the foundation for the introduction of clause 52.28 into Victorian planning schemes which prohibits installation of gaming machines in nominated shopping complexes or shopping strips.

155. It is our view that the location of the proposed shopping centre opposite a gaming venue with direct sightline and within approximately 75 metres does not achieve the spatial separation commonly seen to limit the encouragement for convenience gambling and its potential impact on problem gamblers. Although we accept that the opportunity for convenience gambling is only one of the risk indicators of problem gambling, we think it is a key one controlled by planning that aims to ensure the appropriate location of gaming venues.

156. The design of the proposal in relation to the hotel layout contributes to our concerns. An entrance to the hotel that leads directly into the gaming room is located on the south side of the hotel building. It faces towards the northern entry of the proposed shopping centres over a car parking area. Although, the physical separation is over 70 metres, we consider the direct line of sight between entries to each, the open nature of the separation, the shared use of the car park and the hotel advertising adjacent to the entry, results in a proximity and visibility that does not discourage convenience gambling.

157. Notwithstanding our concerns about the potential for convenience gambling and impacts for problem gamblers created by the location of the supermarket near the gaming venue, we do not find this a reason to reject the proposal. We reach this view based on the lack of a demonstrated significant adverse social impact arising from the proposal; the absence of a permit trigger that connects the proposal with proximity to an existing gaming venue; and the limited guidance provided in the Planning Scheme.

158. Although submitted as unnecessary, the Applicant said a screen of vegetation or some more solid structure to limit the direct views between the two entrances and removal of gaming signage could be undertaken. We consider a solid screen on part of a shared car park adjacent to the southern entry of the hotel and removal of the gaming advertising at the southern hotel entrance will assist in limiting direct visibility and is an appropriate inclusion for a permit condition.

On the question of whether the proposal would result in net community benefit, the Tribunal referred to its earlier finding that out-of-centre proposals are only considered where net benefit to the community is demonstrated, and then set out the relevant parts of cl 71.02-3 of the Planning Scheme.[29] It noted that the Planning Scheme requires the decision-maker to decide whether the proposal achieves an acceptable outcome, as distinct from an ideal outcome.[30] The Tribunal then gave its assessment of net community benefit:[31]
[29]See [29] above. The clause was misidentified as cl 71.03-2 at Reasons, [174].
[30]Citing Knox City Council v Tulcany Pty Ltd [2004] VSC 375, [13](e).
[31]Reasons, [176]–[179].

176. There are matters we consider that are relatively neutral or of modest benefit in an assessment of net community benefit. These include the existence of need for a new supermarket which we have found to be equivocal. We agree with the applicant that the loss of the Mitre 10 store is of limited relevance in our balancing of the benefits of the proposal. There is no planning mechanism that compels an existing use to continue.

177. The matters we consider sit on the negative side of an assessment of net community benefit include:

· The poor alignment of the proposal with the Planning Scheme policy relating to activity centres.

· The absence of new residential areas and the lack of any significant expected population growth expected in the catchment. This scenario does not accord with the business strategy that supports new convenience shopping facilities to provide for the needs of the local population in new residential areas.

· Access to the site that relies heavily on private vehicle access and the limited range of services and facilities proposed do not support multi-purpose trips. This is contrary to policy that seeks to reduce private vehicle trips by integrating land use and public transport.

· Although in a commercial node, the nearby uses (other than the hotel) are not easily walkable to other commercial uses due to the two wide and busy arterial roads that act as a barrier to pedestrian connectivity. This limits the effective aggregation of commercial facilities sought in strategies relating to business.

· The location of the proposed shopping centre opposite a gaming venue fails to provide the spatial separation that ‘first principles’ planning would seek in order to limit the encouragement for convenience gambling.

178. In terms of positive aspects, we find the proposal:

· Accords with the purpose of the C2Z that encourages use of commercial areas for retail, noting a supermarket of 1800 square metres and shops up to 500 square metres can establish without a permit.

· Will not undermine the ongoing role and function of existing activity centres in the hierarchy, including Aspendale Gardens, based on the economic evidence.

· Will offer increased choice in shopping opportunity in a location on two main roads, conveniently accessed by car, and to a limited degree by walking, for residents of the area.

· Replaces an existing retail use on a site that is already operating as a commercial node.

· Will generate employment opportunities.

· Provides appropriately for car parking and will offer an accessible at-grade car park that will be convenient for shoppers.

· Acceptably accommodates vehicle access, loading and waste removal and raises no concerns about accommodation of traffic on the nearby road network.

· Results in no adverse amenity or built form impacts for nearby residential or sensitive uses.

· Repurposes an existing building and uses existing parking infrastructure in a sustainable manner and offers an opportunity for enhanced landscaping and pedestrian access around the site (via proposed permit conditions).

179. On balance, having regard to all the matters we are required to consider, we find the proposal is acceptable and will result in a net community benefit. We may have reached a different view if it had been demonstrated that the proposal would undermine the continued viability of existing activity centres or there was support in the Planning Scheme for locational separation of a new retail use from an existing gaming venue.

For those reasons, the Tribunal set aside the decision of the Council and directed the grant of a permit subject to conditions.

Grounds of appeal

Ritchies’ notice of appeal identified three proposed grounds of appeal, with corresponding questions of law.

The first ground of appeal was that the Tribunal erred in law in finding at [157] of the Reasons that there was a lack of demonstrated significant social impact arising from the proposal. Ritchies said that this ground raised two questions of law:

1. Did the Tribunal fail to provide adequate reasons for its conclusion that there was ‘a lack of demonstrated significant social impact arising from the proposal’?

2. Was it unreasonable and/or seriously irrational for the Tribunal to conclude that there was ‘a lack of demonstrated significant social impact arising from the proposal’?

The second ground of appeal was that the Tribunal erred in law by concluding at [157] that there was an ‘absence of a permit trigger that connects the proposal with proximity to an existing gaming venue’. This was said to raise the following question of law:

Did the Tribunal misconstrue the [Planning] Scheme in reaching its conclusion that there existed no permit trigger that connected the proposal with proximity to an existing gaming venue?

The third ground of appeal was that the Tribunal erred by concluding at [157] that its concerns about the potential for convenience gambling and impacts for problem gamblers created by the location of the proposed uses near an existing gaming venue was not a reason to reject the proposal because of ‘the limited guidance provided’ in the Planning Scheme. The two questions of law related to this ground were:

1. Did the Tribunal misconstrue the [Planning] Scheme and fail to perform its statutory task in concluding that the Scheme contained ‘limited guidance’ with respect to a proposal to locate a supermarket and other retail uses proximate to an existing gaming venue?

2. Did the Tribunal fail to engage in an active intellectual process in considering whether to grant a permit for the proposal when it relied upon its conclusion that there was ‘limited guidance provided’ in the [Planning] Scheme as a reason not to reject the proposal despite its concerns about its proximity to an existing gaming venue?

I will address these proposed grounds of appeal and questions of law under the following headings:

(a) Were the Tribunal’s reasons adequate?

(b) Was it unreasonable for the Tribunal to find a lack of demonstrated significant social impact?

(c) Did the Tribunal misconstrue the Planning Scheme in relation to permit triggers?

(d) Was the Tribunal wrong to find that the Planning Scheme provided ‘limited guidance’?

Were the Tribunal’s reasons adequate?

This ground of appeal was concerned with the Tribunal’s reasoning at [157] of the Reasons, where it concluded:

Notwithstanding our concerns about the potential for convenience gambling and impacts for problem gamblers created by the location of the supermarket near the gaming venue, we do not find this a reason to reject the proposal. We reach this view based on the lack of a demonstrated significant adverse social impact arising from the proposal; the absence of a permit trigger that connects the proposal with proximity to an existing gaming venue; and the limited guidance provided in the Planning Scheme.

Ritchies’ submissions

Ritchies submitted that the Tribunal is required by s 117 of the VCAT Act to give reasons for its orders including, where written reasons are given, findings on material questions of fact. It referred me to a number of authorities concerning the need for reasons given by the Tribunal to disclose its path of reasoning, including how it reasoned from the evidence to its findings of fact.[32] Ritchies emphasised that the Tribunal’s reasons must enter into the issues canvassed before it, and explain why it has preferred one case over the other; it is not sufficient to merely recite the evidence and then state conclusions without explaining how one leads to the other.
[32]Authorities relating specifically to the Tribunal were Lucas v Transport Accident Commission [2003] VSC 97, [8]; Caruso v Kite [2008] VSC 207, [32]; Dimatos v Coombs [2011] VSC 619, [20]; Secretary to the Department of Justice v YEE [2012] VSC 447, [91]–[97] (Secretary v YEE); 24 Hour Fitness Pty Ltd v W&B Investment Group Pty Ltd [2015] VSCA 216, [52]. Other relevant authorities referred to by Ritchies were Transport Accident Commission v Kamel [2011] VSCA 110, [70]–[73] and ACN 005 565 926 Pty Ltd v Snibson[2012] VSCA 31, [78]–[82].

Ritchies said that the issue of convenience gambling was squarely raised before the Tribunal, and that it was the subject of expert evidence adduced by Ritchies and ALH. Ritchies relied on the evidence of Robert Milner, an expert planner, while ALH relied on the evidence of another expert planner, Bernard McNamara, and an economist, Rhys Quick. The Tribunal also had before it a Council report about gambling in the City of Kingston (Gambling in Kingston report). Ritchies referred me to the parties’ competing submissions to the Tribunal on the question of convenience gambling: it had argued that the encouragement of convenience gambling would cause a detrimental social impact, while ALH had claimed that the proposed development would not give rise to an unacceptable risk of convenience gambling.

The criticism that Ritchies made of the Tribunal’s Reasons was that they do not disclose how the Tribunal reached the conclusion that there was a ‘lack of a demonstrated significant adverse social impact arising from the proposal’. It said that the Reasons do not identify whether the Tribunal had concluded that any impacts for problem gamblers would not arise from the proposal, or would not be significant, or would not be ‘social impacts’ of the kind contemplated by s 60(1)(f) of the Planning Act. Ritchies submitted that it was not possible to follow the logic of the Tribunal’s decision and the process of reasoning in relation to this conclusion.

Council’s submissions

While the Council supported each of Ritchies’ grounds of appeal, it made no submissions in relation to this ground.

ALH’s submissions

ALH accepted that written reasons given by the Tribunal under s 117 of the VCAT Act must include its findings on material questions of fact, and must disclose the Tribunal’s path of reasoning from the evidence to those findings of fact. It emphasised that the Tribunal’s Reasons had to be read fairly, in context, and as a whole, and should not be subjected to overzealous judicial review.[33] It also referred me to authority to the effect that reasons ‘can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated’.[34] It submitted that, in planning cases, a ‘practical and principled approach’ should be taken to understanding reasons given by the Tribunal.[35]
[33]Residential Aged Care Services Pty Ltd v Stonnington City Council [2018] VSC 652, [66]–[68]; Secretary v YEE, [95].
[34]Secretary v YEE, [94], citing Kamel, [86] and Snibson, [81].
[35]Residential Aged Care Services, [68].

ALH disputed that the Tribunal’s statement, at [157] of the Reasons, that there was a ‘lack of a demonstrated significant adverse social impact arising from the proposal’ was a material finding of fact. That was because s 60(1)(f) of the Planning Act requires the Tribunal to have regard only to significant social effects, and not to social effects generally. Further, even if the Tribunal had found that a significant social impact had been demonstrated, that alone would not be a reason to refuse the permit application, although it would inform the assessment of net community benefit.

Alternatively, ALH submitted that the reasons given by the Tribunal for the impugned finding were adequate, having regard to what was expressly stated and the inferences that necessarily arose from those statements, as well as the way in which the issue was presented to the Tribunal. It pointed out that the Council’s grounds for refusal did not include social effects arising from the proposal’s proximity to an existing gaming venue, and that the Council had declined to adopt the arguments put on that question by Ritchies. ALH said that the Tribunal had accurately set out the evidence in relation to convenience gambling, as one of the recognised risk indicators of problem gambling, and was careful to distinguish between convenience gambling and problem gambling. It referred me to the evidence before the Tribunal and submitted that there was in reality no controversy to be decided regarding significant social impacts.

Consideration

Section 117(1) of the VCAT Act requires the Tribunal to give reasons for a final order that it makes in a proceeding. If the Tribunal gives written reasons, as it did in this case, it must include in those reasons its findings on material questions of fact.[36] The reasons must also disclose the Tribunal’s path of reasoning ‘from the evidence to the findings and from the findings to the ultimate conclusion’.[37] It is generally insufficient for reasons to merely recite the evidence and state the findings, without also explaining how those findings have been reached.[38] A failure to give reasons that meet the standard required by s 117 is an error of law.[39]
[36]VCAT Act, s 117(5).
[37]Dimatos v Coombs, [20], citing Hunter v Transport Accident Commission (2005) 43 MVR 130, [21] (Nettle JA). See also Snibson, [78]–[80]; Secretary v YEE, [91]–[93].
[38]Snibson, [82]; Secretary v YEE, [95].
[39]Secretary v YEE, [90]; Ferris v State of Victoria [2018] VSCA 240, [10]. See also The Hon Justice Kyrou, ‘Adequacy of Reasons’ (Conference Paper, Council of Australasian Tribunals Conference, 30 April 2010).

At the same time, the Tribunal’s reasons for decision must be read fairly, in context and as a whole, without engaging in an overzealous search for error.[40] The relevant context will often include the way in which the proceeding was conducted before the Tribunal. In all cases, this Court should take a ‘practical and principled’ approach to reading reasons for decision given by the Tribunal.[41] I do not consider there is any different rule or approach to be taken in planning cases.
[40]Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] (Ashley JA), [19]–[22] (Redlich JA); Secretary v YEE, [94]. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[41]Residential Aged Care Services, [68].

In this case, the Tribunal was required by s 60(1)(f) of the Planning Act to consider any significant social effects which it considered the proposed development may have. Ritchies submitted to the Tribunal that the detrimental social effects of co-locating gaming machines with a supermarket were a relevant consideration for the Tribunal. Ritchies argued that it was well-known that this would encourage convenience gambling, which it said was a detrimental social impact.[42] It was therefore a material question for the Tribunal whether the co-location of the proposed supermarket with the Hotel may have significant social effects that had to be considered under s 60(1)(f).
[42]Outline of opening submissions on behalf of Ritchies Stores Pty Ltd dated 21 November 2020, [49]–[55].

The Tribunal’s finding, at [157] of the Reasons, was that there was a ‘lack of demonstrated significant adverse social impact arising from the proposal’. The question is whether the Tribunal’s Reasons, read fairly, in context, and as a whole, explain how it reached that finding from the evidence before it.

The Tribunal summarised the evidence and submissions concerning the proximity of the proposed supermarket to an existing gaming venue at [141] to [149] of the Reasons. Ritchies took no issue with this part of the Reasons, which it described as ‘accurate and fair’.[43] In its summary, the Tribunal appropriately distinguished between the evidence and the submissions of the parties.
[43]Transcript, 22 July 2022, 7:15–16.

The only evidence — as distinct from the submissions — about the likely social impact of siting the supermarket near the Hotel was that given by Mr Quick, the economist called by ALH in support of the application. The opinion of Mr Quick was that ‘the venue and location of the Hotel presents a low risk of problem gambling-related harm’, for reasons that were summarised by the Tribunal at [148] of the Reasons. There was no other evidence about the probable social impact of proximity to a gaming venue.

Mr Milner’s evidence, summarised at [143] of the Reasons, focused on the policy direction that could be discerned from the Planning Scheme. His opinion, as an expert planner, was that a fundamental feature of the planning controls applying to gaming venues is that they are ‘either prohibited or strongly discouraged in proximity to shopping complexes and strip shopping centres’. He explained that the rationale for this was harm minimisation, ‘where it is recognised that those vulnerable to problem gambling are not assisted if planning facilitates opportunities to gamble directly opposite shops where a large section of the local community is daily or regularly attracted with money to spend on the staples of living’. His evidence was that it is not good planning to locate a shopping centre directly opposite the entrance to a gaming venue.

Reading the Tribunal’s finding at [157] of the Reasons, together with the earlier summary of the relevant evidence, I have no difficulty understanding how it reached the conclusion that there was a lack of demonstrated significant adverse social impact arising from the proposal. The Tribunal accepted, at [153], that the relationship between retail and gaming uses was relevant to discern ‘whether adverse social impacts associated with exacerbation of the risks of problem gambling are likely to arise’. It also accepted that spatial separation between the two uses was a planning measure commonly used to limit the encouragement of convenience gambling and its potential impact on problem gamblers.[44] However, the only evidence in relation to the likely social impact of the proposal was, as recorded by the Tribunal at [148] of the Reasons, that it presented a low risk of problem gambling-related harm. Having noted that evidence, there was no conflict to resolve, because there was no evidence to the contrary. The logic of the Tribunal’s reasoning is evident from its careful summary of the evidence.
[44]Reasons, [155].

This ground of appeal is therefore not made out.

Was it unreasonable for the Tribunal to find a lack of demonstrated significant social impact?

Ritchies’ submissions

Even if the Tribunal’s Reasons were adequate, Ritchies submitted that it was not open to the Tribunal on the evidence to conclude that there was a ‘lack of demonstrated significant adverse social impact’. It argued that this amounted to an unreasonable or seriously irrational finding that was material to the Tribunal’s ultimate decision.[45]
[45]Referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [135] (Crennan and Bell JJ); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [47]; Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, [59]–[62] (Griffiths and Moshinsky JJ).

Ritchies referred me to the evidence of Mr Milner before the Tribunal, both in his report and in his oral evidence at the hearing, which it said was evidence that the proposal was likely to have a significant adverse social impact. It submitted that Mr Milner was an expert planner with particular expertise in the research that underpins the policies in the Planning Scheme in relation to gaming venues and convenience gambling. It characterised the Tribunal’s conclusion that there was a lack of demonstrated significant adverse social impact as being inherently contradictory to its other conclusions about the desirability of spatial separation between retail and gambling uses.

Council’s submissions

The Council did not make submissions on this question, beyond expressing general support for Ritchies’ position.

ALH’s submissions

ALH argued that the Tribunal’s finding that there was a lack of demonstrated significant adverse social impact arising from the proposal was neither unreasonable nor irrational. It was not a finding at which ‘no rational or logical decision maker could arrive on the same evidence’,[46] and did not involve ‘extreme’ irrationality.[47]
[46]Referring to SZMDS, [130] (Crennan and Bell JJ).
[47]Referring to ARG15, [47].

In ALH’s submission, the impugned finding was not inconsistent with the Tribunal’s earlier finding that the proposed location of the shopping centre did not ‘achieve the spatial separation commonly seen to limit the encouragement for convenience gambling and its potential impact on problem gamblers’.[48] ALH said that a potential impact on problem gamblers was not necessarily a ‘significant’ social effect. Whether that was the case would depend on the Tribunal’s evaluation of all of the relevant considerations, including the probability of the impact occurring and its gravity.[49] Here, the Tribunal’s evaluation was informed by factors other than the proposed spatial separation of the two uses. In particular, Mr Quick’s evidence provided a rational basis for the Tribunal to find that no significant adverse social impact had been demonstrated.
[48]Reasons, [155].
[49]Referring to Hoskin v Greater Bendigo City Council (2015) 48 VR 715, [55] (Hoskin).

Further, ALH submitted, in its ultimate assessment of net community benefit, the Tribunal did in fact consider that the location of the proposed shopping centre did not ‘provide the spatial separation that “first principles” planning would seek in order to limit the encouragement for convenience gambling’.[50] Even if the impugned finding was not open on the evidence, it did not affect the Tribunal’s decision and so did not amount to a vitiating error of law.
[50]Reasons, [177].

Consideration

As the Court of Appeal observed in Hoskin v Greater Bendigo City Council,[51] whether a proposed use may have ‘significant’ social effects that must be considered under s 60(1)(f) of the Planning Act is a question of fact that involves an evaluative judgment of fact and degree. It requires a prospective judgment about the possible effects of the proposed use, which is logically informed by the possible gravity of the effect and the probability of its occurrence. It is therefore proper for the decision-maker ‘to consider the probability of postulated consequences in deciding whether what is in issue is a “significant” possible effect’.[52]
[51]Hoskin, [55](10).
[52]Hoskin, [55](12).

The difficulty with Ritchies’ argument, both before the Tribunal and on appeal, was that it conflated convenience gambling with problem gambling, and assumed that co-location of retail and gaming uses would necessarily have a detrimental social impact. However, the evidence before the Tribunal was not to that effect.

ALH’s planning expert, Mr McNamara, acknowledged the proximity of the proposed shopping centre to the existing gaming venue — the Hotel. He pointed out that the Planning Scheme did not prohibit the co-location of retail and gaming uses at the site, which was already occurring with the existing hardware store and the bottle shop being opposite the Hotel. He said that his experience after the introduction of cl 52.28 was that where shop and gaming premises had been co-located, the uses had been allowed to continue, with the shop use being permitted to change or expand. He referred to an example of another planning scheme that permitted a shopping centre and a hotel with gaming machines in separate buildings on the same site.[53]
[53]Planning Report of Bernard McNamara dated 4 November 2020, [157]–[169].

In his report, tendered by Ritchies at the Tribunal hearing, Mr Milner said:[54]
[54]Planning Report of Robert Milner dated November 2020 (Milner report).

(75) The proposed retail development would share the Site with a gaming venue at the Chelsea Heights Hotel (the Hotel) and a common car park located between the existing and proposed uses.

(76) This relationship makes gaming policy and planning provisions (Clause 52.28) a relevant consideration.

(77) While gaming provisions usually apply to applications to install EGMs, a fundamental feature of those provisions is that gaming venues are either prohibited or strongly discouraged in proximity to shopping complexes and strip shopping centres.

(78) This tension between retail and gaming policy arises from an objective aimed at harm minimisation. It arises from an awareness that those vulnerable to problem gambling are not assisted when the land use planning framework places opportunities to gamble directly opposite shops where a large section of the local community is daily or regularly attracted with money to spend on the staples of living. An unreasonable and inappropriate temptation is created for opportunist gambling, with the potential to redirect some money needed to support families and households to be diverted in the EGMs.

(79) In this matter the policy considerations are relevant, in reverse, with the retail proposal being the ‘agent of change’ seeking to introduce a shopping complex into the immediate environs of a gaming venue.

(80) Clause 52.28 is purposed:

· 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.

(81) In the event the proposed shopping development had predated the establishment of the Chelsea Hotel and its gaming room it is reasonable to speculate it may have been a nominated Shopping Complex for the purposes of Clause 52.28 and gaming would have been prohibited in the hotel. To illustrate this point, it is noted that nearby Lakeview Shopping Centre, Harbour Plaza Shopping Centre at Patterson Lakes and the Aspendale Gardens Shopping Centre are nominated ‘Shopping Complexes’ in the Schedule to Clause 52.28, where gaming is prohibited.

(82) Similarly, Chelsea, Aspendale and Edithvale activity centres and the local shops at Thames Parade (Chelsea Heights) are all nominated as Strip Shopping Centres where gaming is prohibited.

(83) A Strip Shopping Centre is defined as an area that meets all 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.

(84) Schedule 1 to Clause 52.28 to the Kingston Planning Scheme does not identify the Site as a ‘strip shopping centre’ in its current configuration. The introduction of proposed retail uses on the Site and into the Wells Road commercial strip would create characteristics that might result in the locality being defined as a ‘strip shopping centre’.

(85) This application illustrates a short coming with the operation of Clause 52.28 in the context of the reforms associated with Amendment VC100.

(86) This shortcoming does not prevent the Tribunal finding that the Site is not an appropriate location for the proposed use and development, for the sole reason that it is not good planning to place a large full line shopping centre, directly opposite the entrance to a gaming venue.

(87) This point is reinforced when the two uses share a car park which is immediately adjacent to the entrance to both uses and which would create the very conditions for opportunistic problem gambling that the planning provisions seek to explicitly prevent.

Mr Milner expanded on this in his oral evidence in chief at the Tribunal. After referring to Mr McNamara’s point that retail and gaming uses were already co-located on the site, Mr Milner said:[55]

I think some fairly significant things do change in this proposal in that relationship, and that is this: a hardware store, sure generates people, sure, problem gamblers go to hardware stores, but the difference between a supermarket and small specialty shops is I would suggest you are going to find a situation in which there is a greater opportunity, a greater convenience, a greater access to money and to spend money and what we’re going to find is in supermarket and specialty stores we find a more intense use of floor space, we find longer hours of operation. We find visitations occurring more frequently, we have a greater cross-section of the community attending the site on a regular basis, and so, in my mind, sure, there may be a temptation for those who use Mitre 10 to go and game even now, but what this proposal does is ratchet the temptation and the exposure greater and, in my mind, this proposal doesn’t constitute a minimising of harm, it's an escalation of potential harm for those who have a problem.

[It] seems I suspect to a problem gambler this is either their worst nightmare or they’ve hit the jackpot, but here we have a situation that puts them in a car park coming from a shop where they are taking the weekly money to go and do the shopping, they've got some loose change. They’re walking around that car park probably having to park a trolley and what have you, or they are heading off towards a bus, and the temptation becomes greater and for those who are vulnerable to that opportunity I think the land use framework will have let the community down if it put this juxtaposition in place …

[55]Tribunal transcript, 25 November 2020, 228:5–229:7.

During cross-examination by counsel for ALH, Mr Milner agreed that it was relevant to look at the practical potential for problem gambling in this case, which involved consideration of the demographic characteristics of the local community, and the risk factors and protective factors of what was proposed.[56] He did not dispute that he had not undertaken that detailed analysis, and that his opposition was based on a ‘high level strategic opposition to the co-location of convenience retail and a gaming venue’.[57]
[56]Tribunal transcript, 26 November 2020, 305:15–24.
[57]Tribunal transcript, 26 November 2020, 305:25–306:8.

In answer to questions from the Tribunal, Mr Milner acknowledged a shortcoming in the Planning Scheme in relation to the location of retailing near gaming venues. In his opinion, it would be wrong to ignore the issue because it was not a permit trigger.[58] He said that the caution in the Planning Scheme about putting gaming machines next door to retail uses was, in his view, a ‘two way valve’ that works in the opposite direction as well.[59]
[58]Tribunal transcript, 26 November 2020, 340:26–341:11.
[59]Tribunal transcript, 26 November 2020, 342:8–19.

In addition to Mr McNamara’s evidence discussed above, ALH relied on the opinion of Mr Quick. In relation to the potential conflict between the existing gaming venue at the Hotel and the proposed retail use, Mr Quick said in his report:[60]
[60]Economic Report of Rhys Quick dated 5 November 2020, [76]–[87].

5.1. THE CONCEPT OF CONVENIENCE GAMBLING

76. “Convenience Gambling” is a concept that theorises that there is a greater risk of issues associated with problem gambling behaviour if gaming machines are located conveniently to other facilities where people go about their day-to-day activities. The contention is, there is a greater risk of a person visiting a location for one reason (e.g. supermarket shopping) and being attracted to gamble when they hadn’t intended to due to the convenience of the two uses, in turn potentially leading to problem gambling behaviour.

77. At the other end of the spectrum “Destination Venues” are those gaming venues that are removed from all other activity generators, acting as a destination in their own right where visitors must make a conscious decision to visit the venue.

78. Close proximity of gaming venues to shopping facilities is the most commonly cited situation of convenience gambling. The concern typically arises where there is a pedestrian “ant trail” past the gaming venue or room between points of everyday activity. This concept was the foundation for the introduction of Clause 52.28 into Victorian planning schemes which prohibits installation …of gaming machines in nominated shopping complexes or shopping strips. Legacy venues where gaming machines were in operation prior to the introduction of 52.28 are able to continue to operate, although may be restricted from increasing gaming machine numbers.

79. The City of Kingston has nominated prohibited locations, although I note the subject site, which currently houses the Chelsea Heights Hotel with 40 electronic gaming machines (EGMs), has not been nominated a prohibited location.

5.2. PROBLEM GAMBLING RISK INDICATORS

80. The opportunity for convenience gambling is only one of numerous indicators of the extent to which a location or venue presents greater or lesser risk of problem gambling behaviour. I therefore consider here, at a high level, some of the other key indicators that are often reviewed in identifying whether the potential for convenience gambling presents undue risk should additional retail facilities be approved at 1-23 Wells Road.

81. Specifically, this analysis considers the key indicators of problem gambling risk associated with a gaming venue, including the Socio-Economic Index of Disadvantage for residents within the immediate 2.5km and 5km radius catchments and the relative provision of electronic gaming machines (EGMs) within the City of Kingston and the venue itself, and the range of facilities offered.

82. Key findings are summarised as below with the details in charts and tables following.

· Small number of machines and lower expenditure in the Chelsea Heights Hotel. With 40 EGMs, the Chelsea Heights Hotel is considered a small-sized gaming venue. The typical hotel with gaming in Melbourne has 59 EGMs. With expenditure per machine only slightly higher than average, the total level of gaming expenditure is $5.7 million, some 41% below the typical hotel in Melbourne (Table 5.4). The venue presents a reduced risk due to lower than average levels of gaming activity.

· The nature of the hotel offer reduces the risk of problem gambling. Firstly, in addition to the hotel being small in gaming terms, it provides an extensive offer otherwise. A full range of activities besides gaming, including a large bistro, various bars and function facilities, provide patrons with a range of entertainment and socialisation options. This is seen as a protective factor compared to venues where gaming is the predominant use.

Secondly, ALH is the largest gaming operator in the country and an industry leader in managing problem gambling risks. It has a proven track record and has established best practice procedures and programs.

· Little observed social and economic disadvantage within the 5km radius, as shown in Table 5.1, Chart 5.1 and Map 5.1 [contained in the report]. As a well-established middle-ring waterfront municipality, the City of Kingston records an average Social & Economic Index for Areas (SEIFA) disadvantage score of 1,038, above the national median of 1,000. All residential Statistical Areas Level 2 (SA2s) (i.e. excluding industrial SA2s and Moorabbin Airport) recorded an above average SEIFA index score, suggesting very little observed disadvantage relative to most areas in the country. The level of disadvantage is an indicator of how well a population can cope if gambling becomes a problem.

As further illustrated in Chart 5.1, only 3% of residents within the 5km radius are within the top two most disadvantaged SEIFA deciles (deciles 1 and 2). All of those residents are in the Keysborough area, some distance from the site. 72% of residents within 5km were recorded in the least disadvantaged range between the 6th and 10th deciles, above the municipal average of 68%.

· Favourable demographic characteristics within the immediate catchment. As summarised in Table 5.2, relative to the municipal or Melbourne averages, resident population within the immediate catchment is characterised by higher income levels, larger presence of family households and higher proportion of white-collar professionals. While a larger share of households are paying slightly higher mortgage repayments, this is reflective of the attractiveness of the waterfront lifestyle, the higher property prices and a preference to direct excess income to making higher than required mortgage repayments. Rental costs, on the other hand, are lower across the area. Regardless, the municipality only records a moderate level of housing stress, with Chelsea Heights SA2 experiencing below average levels of stress (Chart 5.2).

· Higher total EGM provision and expenditure in Kingston. The municipality has an above average level of EGM provision, measured on an adult population per machine or the number of machines per 1,000 adult population basis, and gaming expenditure per adult (Table 2). This is not unusual for a suburban area where the presence of gaming venues as part of the entertainment offer has long been established. Some venues in Kingston also draw patrons from outside of the municipality given the attractions for visitors to the area. The high provision of EGMs highlights the fact that access to EGMs already exists for local residents in various locations.

While a higher level of access to gaming may be a reason to not increase the supply of machines, the proposed development will not change the general level of access to gaming machines in this case

· Lower than average spend per EGM. While expenditure on gaming is higher than average in total, this is primarily due to the larger number of machines. The expenditure per machine is well below average (Table 5.3), indicating machines in the City of Kingston are used less intensively. This is an indicator of lower risk of problem gambling behaviour.

83. In summary, the venue and location of the Chelsea Heights Hotel presents a lower risk of problem gambling-related harm. The potential for the expansion of retail facilities and the level of activity on the site is only one relevant risk factor to consider. Residents within the 5km radius of the subject location and across the municipality have low levels of disadvantage and favourable demographic characteristics that present a low risk of problem gambling. Residents already have access and exposure to gaming, but machines in the area are not used intensively. The Chelsea Heights Hotel also presents as a lower risk venue given the low number of machines, low gaming expenditure and wide range of alternative activities.

84. The addition of a new Woolworths store on-site will not fundamentally change the way residents use the Chelsea Heights Hotel in conjunction with nearby retail facilities. I note that there is already a high level of activity generated on the site by uses adjacent to the Hotel. The Dan Murphy’s and Mitre 10 stores attract customers who park in the area between the stores and the hotel.

85. Shoppers will make a conscious decision to visit the hotel. As is the case currently, there is no proposed pedestrian ant trail between the proposed retail offer and another use that will require retail customers to walk past the hotel. A definite conscious choice is required for retail customers to attend the hotel, regardless of where they park.

86. Based on my recent observation, the car park, currently shared between the hotel and the other retail outlets, appears to already be very busy during the day. The photos [contained in the report] were taken when the hotel was closed due to lockdown restrictions. There were still large numbers of vehicles in the car park generated solely by Mitre 10 and Dan Murphy’s, not the hotel.

87. I also note there are other examples within the City of Kingston where gaming venues operate within activity centres in high profile areas. For example, Mordialloc Sporting Club and The Bridge Hotel are both located within the Mordialloc activity centre, with the former being directly opposite a newly developed Aldi store. The Longbeach Hotel operates within the retail strip in the Chelsea Major Activity Centre.

Cross-examined by counsel for Ritchies, Mr Quick agreed that the proposed use and development involved an increased risk of convenience gambling. He pointed out that the opportunity for convenience gambling already existed at the site. Mr Quick accepted the accuracy of data set out in the Gambling in Kingston report that he was taken to during the Tribunal hearing. He was not pressed about his opinion that the proximity of the Hotel to the proposal presented a lower risk of gambling-related harm.[61]
[61]Tribunal transcript, 29 January 2021, 79:8–81:21.

From this review of the evidence, it is apparent that the experts agreed that the existing co-location of retail and gaming uses on the site gave rise to opportunities for convenience gambling, and that these opportunities would increase with the addition of the proposed supermarket and specialty retail stores. The experts did not dispute that the increased opportunities for convenience gambling would involve an increased risk of problem gambling and associated harms. However, only Mr Quick undertook an assessment of the degree to which the risk of problem gambling was likely to increase, by reference to specific features of the proposal, the Hotel, and the local community. His opinion was that the proposal presented a ‘low risk of problem gambling-related harm’. In light of that opinion, it was open to the Tribunal to conclude that there was a lack of ‘demonstrated significant adverse social impact arising from the proposal’. That conclusion would have been open to the Tribunal even if there had been a contrary opinion —which there was not.

The Tribunal’s conclusion that a lack of significant adverse social impact had been demonstrated was a judgment that it was required to make about the possible social effects of the proposal. The conclusion was logically informed by the evidence as to the possible gravity of the effect and the probability of its occurrence. It was open on the evidence and so was neither unreasonable nor seriously irrational.[62]
[62]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90–1 (Phillips JA).

This ground of appeal is not made out.

Did the Tribunal misconstrue the Planning Scheme in relation to permit triggers?

Ritchies’ second ground of appeal contended that the Tribunal misconstrued the Planning Scheme in concluding, at [157] of the Reasons, that there was no permit trigger that connected the proposal with proximity to an existing gaming venue.

Ritchies’ submissions

Ritchies argued that a permit was required for the proposed use and development by cl 34.02-1 of the Planning Scheme and that, in considering whether to grant a permit, the Tribunal was obliged by the decision guidelines in cl 34.02-7 to consider the effect that existing uses may have on the proposed use.[63] It followed, in Ritchies’ submission, that the Tribunal’s conclusion that there was no ‘permit trigger’ connecting the proposal with proximity to an existing gaming venue was manifestly incorrect, and a misinterpretation of the Planning Scheme.
[63]See [21] above.

Ritchies said that the Tribunal was not just repeating its earlier observation at [151] that the proposal did not trigger the need for a permit under cl 52.28 of the Planning Scheme. That was because, at [157] of the Reasons, the Tribunal was asserting an absence of any permit trigger connected to proximity to a gaming venue, and was not only referring to cl 52.28. Indeed, even cl 52.28 did not contain any permit trigger connecting a proposal to use or install gaming machines with proximity to an existing gaming venue.

Council’s submissions

The Council commenced its submission on this ground with a consideration of the role of ‘permit triggers’ in the Victoria Planning Provisions. It said that those provisions establish the circumstances in which a permit is required to be obtained for a use or development of land, under s 47(1) of the Planning Act. The Council described permit trigger provisions as mechanical, in the sense that they ‘trigger’ the operation of the permit application process set out in Pt 4, Div 1 of the Planning Act. While permit triggers identify the particular elements of a proposal that require planning permission, the Council submitted that it is typically the provisions associated with the permit trigger that properly inform the exercise of the discretion to grant a permit — in this case, the decision guidelines for the Commercial 2 Zone in cl 34.02-7 of the Planning Scheme.

That being the case, the Council submitted, the existence or otherwise of an explicit ‘permit trigger’ connected to a particular matter could not properly inform the exercise of the discretion. The Council went further and said that, by focusing on the absence of an explicit trigger connecting the proposal to proximity to an existing gaming venue, the Tribunal failed to properly exercise its discretion. The Tribunal was required to consider the effect that existing uses may have on the proposed use, as well as broader considerations of human health and amenity, and any significant social effects of the proposal.[64]
[64]Referring to Planning Scheme, cls 11, 13.07-1S, 34.02-7,65.01; Planning Act, s 60(1)(f).

The Council recognised that the Tribunal did correctly identify the potential impact of the proposal on problem gambling, and the resultant social effects, as matters that it was required to take into account in determining the permit application. However, the Council said that the Tribunal erred in discounting or relegating those considerations on the misconceived basis that there was no permit trigger connecting the gaming and retail premises. The significance of this discount was demonstrated by the Tribunal’s later statement, at [179] of the Reasons, that its decision may have been different if there had been support in the Planning Scheme for locational separation of new retail use and an existing gaming venue.

ALH’s submissions

ALH submitted that the Tribunal’s finding that there was no permit trigger connecting the proposal with proximity to an existing gaming venue did not involve any error of law. It said that a ‘permit trigger’ means a provision in a planning scheme that requires a permit for a proposed use or development of land.[65] It identified the provisions of the Planning Scheme under which a permit was required for the proposal to be:
[65]Referring to Boroondara City Council v 1045 Burke Road Pty Ltd (2015) 49 VR 535, [5], [48] (Warren CJ); Residential Aged Care Services, [19]–[20].

(a) cl 32.04-1, which requires a permit for use of the land for a supermarket and shop because the supermarket exceeds a leasable floor area of 1800 square metres and the combined leasable area of the shops exceeds 500 square metres;

(b) cl 34.02-4, which requires a permit to construct a building or construct or carry out works associated with the use of the land;

(c) cl 52.02, which requires a permit to create an easement; and

(d) cl 52.06-3, which requires a permit to reduce the number of car spaces required under clause 52.06-5.

In ALH’s submission, the Tribunal clearly understood that these were the permit triggers for the proposal. It said that the Tribunal correctly found that:

(a) the provisions concerning gaming in cl 52.28 of the Planning Scheme were ‘not triggered’ because the proposal was not for the installation of gaming machines;[66]

(b) there were no other specific provisions or policies in the Planning Scheme relating to gaming;[67] and

(c) the relationship between retail and gaming uses was a relevant consideration.[68]

[66]Referring to Reasons, [151].

[67]Referring to Reasons, [152].

[68]Referring to Reasons, [153].

ALH cautioned against an overzealous search for error in the Tribunal’s Reasons. It submitted that, fairly read, the Tribunal’s reference at [157] to the absence of a permit trigger merely reiterated its earlier findings at [151] and [152]. ALH also argued that the reference should be understood to address submissions made to the Tribunal by both Ritchies and AGRA that the presence of cl 52.28 in the Planning Scheme was a basis to refuse the application.

Further, ALH submitted, the Tribunal did not disregard the proximity of retail and gaming uses. It said that the Tribunal’s finding at [157] was that this was not a reason to reject the proposal as such, not that it should not be considered — which it went on to do in assessing whether the proposal would result in a net community benefit.

Consideration

The provisions of the Planning Scheme that require a permit to be obtained for the proposal were clearly a relevant consideration for the Tribunal in determining the application. As the Court of Appeal explained in Boroondara City Council v 1045 Burke Road Pty Ltd,[69] where there are multiple triggers for a planning permit for a proposal, a permit may only be granted for the proposal if there is a favourable decision or outcome in respect of each permit trigger. While the Planning Act provides for an integrated permit application and decision-making process, it remains necessary for each permit requirement that applies to a proposed use and development to be considered and determined. There must be a ‘tick’ in every box.[70] In this case, the Tribunal carefully prefaced its Reasons with a statement of the permit requirements for the proposal, and determined each of them.
[69]Boroondara, [48]–[50] (Warren CJ), [56]–[58] (Santamaria JA), [139]–[154] (Garde AJA).
[70]Boroondara, [38] (Warren CJ), [146] (Garde AJA).

Equally, the Tribunal was permitted to have regard to whether a matter did not trigger a requirement for a permit under the Planning Scheme. There was no suggestion by Ritchies or the Council that the absence of a permit trigger related to the proposal’s proximity to an existing gaming venue was an irrelevant or forbidden consideration for the Tribunal.

In this case, the Tribunal needed to address the submission made to it by Ritchies that cl 52.28 was a basis for refusing the permit, because it gives ‘clear direction’ that gaming machines should not be located next to retail centres.[71] The Tribunal’s reference at [157] of the Reasons to the absence of a permit trigger must be read in this light.
[71]Outline of opening submissions on behalf of Ritchies Stores Pty Ltd dated 21 November 2020, [47], [51]; Milner report, [75]–[87] (see [67] above).

In my view, all the Tribunal meant by that reference was that the Planning Scheme did not require a permit for the proposal for the reason that it was located next to an existing gaming venue. This was plainly correct. The permit requirements in cl 52.28 were not triggered by the application, and there were no other permit requirements related to the proximity of the Hotel and its gaming machines. Moreover, as I discuss below, the Planning Scheme does not give ‘clear direction’ as to whether it would be appropriate to permit a new supermarket close to an existing gaming venue.[72]
[72] See [104] below.

The Tribunal did not dismiss as irrelevant the proximity of the Hotel and the Tribunal’s related concerns about convenience gambling and potential impacts for problem gamblers. It just found that these matters were not determinative, for reasons including the absence of a permit trigger connecting the proposal with proximity to an existing gaming venue.

The decision guidelines in cl 32.04-7 of the Planning Scheme, and the other provisions referred to by the Council, did not dictate the rejection of the application. They identified matters for the Tribunal’s consideration. The Tribunal gave specific consideration to those matters, on the negative side of its assessment of net community benefit.[73] I see no indication in the Reasons that the Tribunal impermissibly discounted the matters because there was no relevant permit trigger. In any event, it was for the Tribunal to determine what weight to give relevant matters in its overall assessment of net community benefit.[74]
[73]Reasons, [177].
[74]Boroondara, [121] (Garde AJA).

This ground of appeal is not made out.

Was the Tribunal wrong to find that the Planning Scheme provided ‘limited guidance’?

Ritchies’ final ground of appeal concerned the Tribunal’s statement at [157] of the Reasons that there is ‘limited guidance provided in the Planning Scheme’. It contended that this conclusion misconstrued the Planning Scheme, and involved a failure by the Tribunal to perform its statutory task and to engage in an active intellectual process.

Ritchies’ submissions

Ritchies submitted that the Tribunal’s conclusion that the Planning Scheme provides ‘limited guidance’ suggested that it considered that it did not have sufficient guidance as to how it should deal with a supermarket proposed in such close proximity to an existing gaming venue. Ritchies complained that the Tribunal did not disclose what ‘limited guidance’ the Planning Scheme provides, or where it is to be found within the Planning Scheme, other than referring to cl 52.28.

In Ritchies’ submission, cl 52.28 is chiefly concerned with the impacts of gaming machines, and in particular the impact of problem gaming on the community. It said that the context for the controls in cl 52.28 is clear — they seek to limit the public’s exposure to gaming machines while engaged in shopping and to ensure that gaming machines are situated in appropriate locations and premises. Ritchies contended that the Tribunal did not analyse the content of cl 52.28, despite submissions about its relevance from Ritchies and the Council. It said that the Tribunal should have, but did not, make express findings with respect to those submissions, in particular Ritchies’ submission that cl 52.28 gives ‘clear direction’ that gaming machines should not be located next to retail centres.

Further, even if the Tribunal was correct to find that the Planning Scheme provides only ‘limited guidance’, Ritchies submitted that it was incumbent on the Tribunal to consider the effect of locating a supermarket in close proximity to gaming machines. It was a matter that had to be considered, regardless of the extent of guidance provided by the Planning Scheme, and it was wrong for the Tribunal to diminish its significance.

Ritchies argued that the requirement in s 60(1)(f) of the Planning Act, to consider any significant social effects of the proposal, obliged the Tribunal to engage in an ‘active intellectual process’ directed at that criterion.[75] It contended that the Tribunal had failed to undertake that task.
[75]Referring to Hoskin, [122]–[123]; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [44]–[46]; Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643, [42]–[45] (Rares and Robertson JJ).

Council’s submissions

The Council joined with Ritchies in submitting that the Tribunal did not identify what it meant by the phrase ‘limited guidance’, or where in the Planning Scheme that limited guidance was to be found. It contested the Tribunal’s conclusion that the Planning Scheme provides limited guidance about the locational separation of a new retail use and an existing gaming venue.

The Council accepted that the Planning Scheme contains no specific provision that operates in relation to new retail premises close to existing gaming premises. However, it argued that the Planning Scheme requires consideration of issues of land use compatibility, along with any significant social effects of the proposal, and the potential to exacerbate problem gambling. The Council acknowledged that the Tribunal had engaged with and made findings about the evidence related to those matters. The error that it said appeared from the Tribunal’s Reasons was that it misconstrued the Planning Scheme by finding that it provides only limited guidance about those matters, and used that as a basis to dismiss or relegate their significance.

ALH’s submissions

ALH responded that the Tribunal’s statement about the ‘limited guidance provided in the Planning Scheme’ engaged with the submission made to it by Ritchies that cl 52.28 provides ‘clear direction’ that gaming machines should not be located near retail centres. It said that there was no error in the Tribunal’s finding of ‘limited guidance’, which was an appropriate description of the guidance provided by cl 52.28 in this case. That is because cl 52.28 addresses the specific circumstance of installation and use of gaming machines in proximity to established shopping centres or strips, and not the reverse situation presented by this permit application.

ALH submitted that the Tribunal was correct to find that the guidance provided in the Planning Scheme is limited to the regulation of gaming machines, rather than retail uses and development. It said that the clear inference from the Tribunal’s reasons at [150] to [152], [157] and [179] is that it had rejected Ritchies’ submission that cl 52.28 should be applied in reverse in determining the application. ALH contended that the Tribunal would have erred had it accepted Ritchies’ submission, and applied cl 52.28 in reverse as a basis for refusing the permit.

ALH agreed that the Tribunal had to consider the effect of locating a supermarket in close proximity to gaming machines, and said that it had done exactly that. It argued that the Tribunal’s statement that the Planning Scheme provides ‘limited guidance’ on that matter did not demonstrate a failure to engage in an active intellectual process of considering it. Rather, ALH submitted, the Tribunal considered the relevant evidence about the lack of spatial separation and the increased opportunity for convenience gambling, made findings that were open to it, and considered those in its assessment of net community benefit. It pointed out that the Tribunal’s decision to impose screening and signage conditions was also informed by its consideration of the issue.

Consideration

The Tribunal’s statement at [157] of the Reasons that there is limited guidance provided in the Planning Scheme was, in my view, accurate. I accept the Council’s submission that the Tribunal’s statement concerned the guidance given by the Planning Scheme about the locational separation of retail and gaming uses. I do not accept that it involved any misconstruction of the Planning Scheme.

There is, in truth, very little in the Planning Scheme to guide a decision-maker presented with an application for a permit for a new retail use in close proximity to an existing gaming venue. The following may be noted:

(a) There is no local policy in the Planning Scheme concerning gaming generally, or specifically in relation to the location of other uses close to gaming venues.

(b) Both gaming and retail uses may be permitted in the Commercial 2 zone. Indeed, the use of land for smaller scale retail — supermarkets with a leasable floor area of no more than 1800 square metres, with adjoining shops with a leasable floor area of up to 500 square metres — does not require a permit.[76]
[76]Planning Scheme, cl 34.02-1 – Table of uses, Section 1 – Permit not required.

(c) The decision guidelines for the Commercial 2 zone in cl 34.02-7 direct attention to the effect that existing uses may have on the proposed use. They say nothing about locational separation of gaming from other uses that may be permitted in the zone.

(d) Clause 52.28 applies specifically to gaming, with the purposes of ensuring that gaming machines are situated in appropriate locations and premises, ensuring the social and economic impacts of the location of gaming machines are considered, and prohibiting gaming machines in specified shopping complexes and strip shopping centres.

(e) Clauses 52.28-4 and 52.28-5 enable the Council to designate shopping complexes and strip shopping centres in which gaming machines are prohibited. The Council has specified a number of shopping complexes and strip shopping centres in the schedule to cl 52.28. However, there are other shopping areas in the City of Kingston in which gaming machines may be, or have been, installed. Mr Quick’s evidence was that there are gaming venues in both the Mordialloc activity centre and the Chelsea major activity centre.[77]
[77]See [87] of Mr Quick’s report, reproduced at [71] above.

(f) Under cl 52.28-3, a permit is required to use or install a gaming machine in locations where they are not specifically prohibited.

(g) Clause 52.28-6 enables the Council to specify guidelines relating to locations for gaming venues and machines. However, the Council has not provided any such guidelines in the schedule to cl 52.28.

(h) Clause 52.28-9 provides decision guidelines for an application for a permit under cl 52.28-3. These include the compatibility of the proposal with adjoining and nearby land uses. No specific guidance is given about locational separation between gaming and retail uses, either in the body of the clause or as an ‘other matter’ specified by the Council in the schedule.

I understand the Tribunal’s reference at [157] of the Reasons to ‘limited guidance provided in the Planning Scheme’ to mean that the Planning Scheme did not give much direction to the Tribunal on the question of locational separation between the proposed retail use and the existing gaming use. That statement is unexceptionable, in light of what is — and is not — provided in the Planning Scheme about gaming and gaming venues.

On a fair reading of [150] to [153] and [157] of the Reasons, the Tribunal rejected Ritchies’ submission, recorded at [141], that there is ‘clear direction’ in the Planning Scheme that gaming machines should not be located next to or within retail centres. This conclusion was plainly correct. It would have been an error for the Tribunal to apply cl 52.28 in reverse, as a ‘two way valve’, as it was invited to do by Ritchies, when that is not what the Planning Scheme provides.

At most, cl 52.28 implies that consideration should be given to its purposes in determining a permit application for a new retail use in proximity to an existing gaming venue. Other provisions of the Planning Scheme, including cls 11, 13.07-1S, 34.02-7 and 65.01, required consideration of any significant social effects and the effect of existing uses on the proposed use, although it is not clear that these provisions were specifically drawn to the Tribunal’s attention on this issue.

The Tribunal accepted, at [153] to [156] of the Reasons, that consideration had to be given to the relationship between retail and gaming uses, and whether the proximity of the proposed development to the Hotel was likely to have adverse social impacts associated with an increased risk of problem gambling. While it did not accept that these matters were reasons to reject the proposal outright, it actively engaged with them at [153] to [158] of the Reasons, and again at [177] and [179].[78] The screening condition imposed by the Tribunal was one product of its genuine consideration of these matters.[79] Its finding that there was a lack of demonstrated significant adverse social impact was a second.[80] A third was the specific consideration of the location of the proposed shopping centre opposite a gaming venue, without the spatial separation that would limit the encouragement for convenience gambling, in the Tribunal’s assessment of net community benefit.[81]
[78]Because I am satisfied that the Tribunal did engage in a genuine consideration of the limited guidance given by the Planning Scheme, there is no need to consider the caution recently expressed about this ground of review in PlaintiffM1/2021 v Minister for Home Affairs (2022) 400 ALR 417, [26]–[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
[79]Reasons, [158].
[80]Reasons, [157].
[81]Reasons, [177], final dot point.

This ground of appeal is not made out.

Disposition

I will grant leave to appeal, because each of Ritchies’ grounds of appeal was reasonably arguable. However, none of the grounds has succeeded, and so the appeal must be dismissed. I will hear the parties on the question of costs.

Description of proposal	Use and development for a supermarket and retail premises, creation of a carriageway easement and reduction in the parking requirements of clause 52.06.
Nature of proceeding	Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Planning scheme	Kingston Planning Scheme
Zone and overlays	Commercial 2 zone
Permit requirements	Clause 32.04-1 A permit is required for use of the land for a supermarket and shop (as the supermarket exceeds a leasable floor area of 1800 square metres and the combined leasable area of the shops exceed 500 square metres). Clause 34.02-4 A permit is required to construct a building or construct or carry out works. Clause 52.02 A permit is required to create an easement. Clause 52.06-3 A permit is required to reduce the number of car spaces required under clause 52.06-5.
Land description	The review site comprises an irregularly shaped lot on the south eastern corner of Springvale Road and Wells Road, Chelsea Heights. It has a site area of 4.93 hectares and is occupied by car parking and three premises: The Chelsea Heights hotel; Dan Murphy’s liquor shop; and Mitre 10 hardware store.
Tribunal inspection	The Tribunal inspected the site, visited nearby shopping centres and viewed the wider area on 19 January 2021.

[2022] VSC 495

26 August 2022