The Romsey Decision – What it did and what it means John Rantino | Partner

“... not everything you can count counts and you cannot count everything that counts” [Romsey Hotel Pty Ltd -v- VCGR and Macedon Ranges SC [2009] VCAT 2275 at para. 449]

The Road to Victory  Council refusal to grant permit for development  VCGR application for approval  VCAT review of VCGR decision (Morris J)  Court of Appeal  Remitted VCAT review of VCGR decision (Bell J)

What error of law did VCAT (No. 1) make  Community opposition – including opposition by people who did not gamble – was relevant matter which Tribunal is bound to take into account  Tribunal made its decision without taking evidence of community opposition into account

What error of law did VCAT (No. 1) make cont...  Error was made even though Council did not lead evidence on community opposition  The VCGR had clearly regarded it as a central reason for it refusing the application

The accepted elements of the no net detriment test  Net impact involves balancing of positive and negative impacts  Focus is on marginal impact of approval, not with existing or average impacts  Much overlap between social and economic impacts

The accepted elements of the no net detriment test cont...  It is the impact on the wellbeing of the community that is being assessed  Responsible gambling is legal and enjoyable to those who wish to gamble  The spatial impact of approval is a relevant consideration

What elements of the no net detriment test were in dispute  The status of the relevant council  Is it one test or two tests  The scope of power to impose conditions

The status of the relevant council In order to understand the role of local government in making submissions in applications concerning gaming machines under the Gambling Regulation Act, it is appropriate to take into account the interlocking statutory setting in which councils are obliged to deal with the issue of community wellbeing. [per Bell J at para. 301]

The status of the relevant council cont...  Section 74A(1) Constitution Act 1975  Health Act 1958  Local Government (Democratic Reform) Act 2003  Public Health and Wellbeing Act 2008

The status of the relevant council cont...  The interlocking obligations creates expectation that councils would engage in consultation and make submissions  “Community wellbeing is embedded in the function of local government”

The status of the relevant council cont...  In Macedon Ranges’ case, Council’s submission was properly informed by its council plan and municipal health plan  “... although I would have welcomed submissions which were more explicitly explained and developed along these lines”

The status of the relevant council cont...  Councils’ functions give them a foundation from which to make informed submissions  Consideration of such submissions is statutorily mandatory  Council submissions are neither exclusive or decisive and may be tested by the usual means

The other elements in dispute  The no net detriment is one test not two  VCGR and Tribunal can impose conditions relating to the premises  VCGR and Tribunal cannot impose conditions requiring community donations

Where does community wellbeing fit into the no net detriment test? Once the likely economic and social impacts have been identified, it is necessary to consider the net effect of these impacts on the wellbeing of the relevant community. Identifying the impacts is not an end in itself, but a step towards understanding whether the wellbeing of that community will not be detrimentally affected. [per Bell J at para. 353]

What the Court of Appeal said about community wellbeing  “The well-being of a community is a very broad concept”  “... measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous”

What the Court of Appeal said about community wellbeing cont...  “... approvals likely to cause unhappiness or discontent in the community (or any part or parts of it) will cause a social impact which is detrimental to its wellbeing”

What the Court of Appeal said about community wellbeing cont evidence of the subjective views of the community – of community attitudes – must be relevant to the impact of approval on the wellbeing of the community, whether and however such views are explained.

What the Court of Appeal said about community wellbeing cont together with evidence of the nature of the community, ‘may give rise to an inference as to the impact that a gaming proposal is likely to have upon the social character of that community.’

What the Tribunal said about wellbeing  “... has social, cultural, economic and environmental elements”  includes “the level of community engagement and connectedness, the extent of local social infrastructure and the strength or capacity of people in the community...”

What the Tribunal said about wellbeing cont...  “... participation builds capacity, an aspect of wellbeing is democratic participation by people at the local level in decision making about issues affecting them”

Can community wellbeing be measured?  “Community wellbeing is an evidence based concept”  Can be measured by indicators (machine density, gaming expenditure, indices of disadvantage etc)  It includes elements that cannot always be measured (“counted”)

What the Court of Appeal said about the role of community opposition  Evidence of community opposition to the application is a relevant matter  Evidence of opposition in principle to gaming machines is also relevant

What the Court of Appeal said about the role of community opposition cont...  The subjective perceptions of the community are relevant, even if the perceptions reflected philosophical, moral or religious views  The weight to be given is for the Tribunal to consider

What the Tribunal said about the role of community opposition  Community opinion is not a decisive consideration but must be considered  The nature of the questions asked in a survey may be relevant to the weight to be given to the result

What the Tribunal said about the role of community opposition cont... Many people in local communities have views – sometimes strong views – about these issues. Such views give some insight into the kind of community in which people wish to live, which is an aspect of their wellbeing. The aspirations of a community in this regard reflect a whole variety of interests, values, beliefs and experiences. Views between communities may differ on this subject. The no net detriment test is not one size fitting all on this subject. The local focus of the test ensures that it is the view of the community affected which is taken into account, because it is their wellbeing which is at stake. [per Bell J at para. 404]

What the Tribunal said about the role of community opposition cont... Under the Gambling Regulation Act, the views of people about the impact of gaming machines on the wellbeing of their community are relevant, whether they are relatively advantaged or disadvantaged in socio-economic terms. Further, the weight to be given to their views is not affected by the socio- economic character of the community. [per Bell J at para. 415]

Why the Tribunal ruled in favour of Council  Found that the economic impact of proposal was slightly positive  Found that the social impact of the proposal was strongly negative  Hence net economic and social impact would be detrimental to community wellbeing

What guidance does the case offer?  Community wellbeing is an evidence based concept capable, at least in part, of being measured  Aim is to measure level of happiness, contentment and prosperity and the impact the gaming machine will have on those elements

What guidance does the case offer? cont...  Tribunal will look to whether the Council’s submissions are informed by the council plan and the municipal health plan  Council’s submissions can be tested

What guidance does the case offer? cont...  The more robust the community survey the more weight it is likely to be given  The socio-economic status of the community does not affect the relevance or weight of the community’s views but affects the impact of the proposal

What guidance does the case offer? cont...  The community’s views are relevant but not decisive  Ultimately it is on case by case basis  Other relevant social and economic indicators and impacts need to be explored and tendered

Presentation Title John Rantino | Partner Direct