Existing use rights and clause 52.28 - a mammoth shift: e-Alert April 2011
July 2011
Planning
On 17 March 2011, the Tribunal (per Deputy President Dwyer) made orders which will have a significant impact on the application of clause 52.28 to gaming venues which had gaming machines prior to 18 October 2006.
In McKinnon Hotels Pty Ltd v Glen Eira City Council, the Tribunal ruled that if a venue had electronic gaming machines prior to 18 October 2006 – that being the date that Amendment VC39 amended clause 52.28 to remove the so-called '25% rule', and provided the area devoted to gaming machines remains below 25% of the floor area of the premises, clause 52.28 cannot operate to regulate the use of gaming machines.
A venue can in those circumstances increase the number of gaming machines without the need for a permit to use the machines (as would otherwise be required by clause 52.28).
But in an unusual twist, the Tribunal said that clause 52.28 continues to apply to the installation of gaming machines. That is to say, in those cases where a venue operator does not require a permit to use additional gaming machines(relying on the venue's existing use rights) the operator will still require a permit to install the machines.
Which begs, the question – what matters would be relevant in assessing such an application if the only trigger is the installation of machines?
As to that issue, the Tribunal said the following:
37. Despite not requiring a permit for use, a permit would therefore still be required under clause 52.28-2 to install additional machines at the hotel.
38.Having reached this conclusion, it is perhaps worth making comment on the practical implications of it. The applicant is required to seek a planning permit merely to install additional gaming machines, even though the planning system does not commonly regulate the internal rearrangement of buildings or the placing of chattels or equipment within them. The broader implications of the use of the additional gaming machines are not a matter for planning consideration given the protection afforded here by existing use rights, albeit that those broader implications can, to some extent, be dealt with by the gaming regulators in any approval process required under the Gambling Regulation Act 2003.
39. I would not go so far as the applicant to say that these outcomes are 'absurd', but they do create a planning control of limited utility where existing use rights are established. It is not however for the Tribunal to change this outcome under the guise of statutory interpretation. Rather it is a matter for the regulators. If it is not intended to create a permit trigger to 'install' gaming machines and regulate that installation separately from 'use', then the words 'install or' should be deleted from clause 52.28-2. Alternatively, the intent should be clarified. If it is the intent that a planning permit should be obtained to use additional gaming machines as the Council here contends, even where existing use rights are established, then s6(3) of the Planning and Environment Act 1987 may require amendment . These are policy matters for government
We could not agree more with the Tribunal's closing comments.
Given the very large number of hotels and clubs that had gaming machines prior to 18 October 2006, and the relevant ease with which those hotels and clubs could add to those machines and still remain below the 25% threshold, clause 52.28 is effectively denuded of any real application. And to the extend that it continues to have limited operation, there will be real confusion as to the relevant matters to take into account.
Maddocks calls upon the Minister for Planning to consider the implication of the Tribunal's decision and examine ways of closing the unintended 'hole' in clause 52.28.
For further information please contact John Rantino or Mimi Marcus.
John Rantino | Partner
Direct 61 3 9288 0694
Mimi Marcus | Senior Associate
Direct 61 3 9240 0871