1. Mr Sebastiano anticipates employment of 20 extra ongoing EFT jobs in the redeveloped Hotel including 1 extra EFT job in the gaming room. We accept his evidence because of his experience in staffing hotels. Mr Quick's evidence is that the redevelopment will also create up to 49 full or part time temporary jobs during an estimated one-year construction period.
2. We ascribe a medium weighting to this benefit. Although there is no guarantee local people will be employed, the weighting should be more than low because unemployment in Braybrook is relatively high, Mr Sebastiano's evidence is that local staff would be preferred and some of the transferred employment will be from outside Maribyrnong. We accept that the benefit of construction jobs is low given short term nature and unlikelihood that many jobs will be locally based.

1. Additional supply contracts of an estimated $680,000 per year are not a medium benefit because the amount is not significant and, unlike jobs, there is less preference likely for local contractors.

1. The original application included cash contributions of $100,000 per year to local community and sporting organisations. The Applicant proposed to contribute up to 25% of this total to local problem gambling service providers. These contributions are unchanged in the amended application.
2. Community contributions are largely a social benefit. However, there is a limited economic benefit if contributions help local organisations purchase locally-sourced goods and services and employ locally-resident persons. We weigh this economic benefit as low.

1. Our summary of economic benefits appears below.

Findings of and weighting given by the Tribunal

Additional total expenditure in the range of $1.09 m to $1.23 m per year

Additional new expenditure in the range of $140,120 to $158,866 per year

Additional new expenditure not attributable to problem gambling in the range of $84,000 to $95,000 per year

This benefit carries some weight because competition is a relevant statutory purpose, especially given the mature City of Maribyrnong market and the regional cap. But the number of machines is small in the overall market.

20 extra EFT jobs in the redeveloped Hotel including 1 extra EFT job in the gaming room plus up to 49 temporary construction jobs

There will be contracts valued at $680,000 per year

$100,000 per year, of which 25% would be available to problem gambling service providers in the City of Maribyrnong

Additional taxation is unlikely to be targeted in the City of Maribyrnong so outcome is likely to be neutral

1. As we have already stated, we accept that there will be a high degree of transferred expenditure in the use of the additional gaming machines. The amount of this expenditure is about $1 m per year. We ascribe a low weighting to this disbenefit. First, increased competition is an objective under the GR Act and is therefore to be expected. Second, the amount is relatively low and reflects the operation of just 14 machines. Third, the lower expenditure in the City of Maribyrnong will be mitigated by some of the lower spending occurring at venues outside the City of Maribyrnong.

1. Problem gambling is mainly a social, not economic, disbenefit. However, there can be economic disbenefits. First, there can be additional costs to local health and service providers (including problem gambling service providers). Second, there can be impacts on the local economy from lower spending on local goods and services by problem gamblers and their dependents. In areas of relatively high disadvantage, such as the Hotel's trade area, the impact can be magnified.
2. The level of disbenefit is difficult to quantify. There was no expert evidence. We give it a medium weighting, given the relatively small number of additional machines and the offset of lower costs arising from the use of the existing 31 gaming machines following implementation of protective factors in the amended application.

1. Our summary of economic disbenefits appears below.

Findings of and weighting given by the Tribunal

Lower spending at other gaming venues in Maribyrnong

Total lower gaming expenditure of between $0.95 m and $1.07 m per year.

No particular finding. Impact will be low because all venues must keep minimum staffing levels, despite some spending being transferred

Lower spending in, and job losses from, local (non-gaming) businesses (not attributable to problem gambling)

No particular finding. We agree with the Council that any disbenefit may trigger innovation by or improvement in those businesses

There is a disbenefit, albeit uncertain in size, in higher costs to health and service providers and lower spending on local goods and services

1. The Commission recognised the potential for problem gambling disbenefits. The Commission found there was 'overwhelming disadvantage in the area' around the Hotel and there would be 'a significant detrimental social impact on the community of the Application were to be approved'.[33] As well as relying on a low SEIFA score for Braybrook, the Commission was also concerned about the proximity of the Hotel to 'the largest cluster of social housing in Maribyrnong' because, although not determinative in itself, it 'increases the risk profile'.[34]
2. We are considering an amended application. Despite this, this potential for problem gambling disbenefits is not in dispute. The potential exists because of a number of factors.
3. First, the Hotel's trade area exhibits relatively high levels of disadvantage. Second, the Hotel has relatively high levels of gaming expenditure, despite a 'tired' gaming room, relatively few gaming machines, and a relatively low gaming machine utilisation rate.[35] Third, Braybrook, Sunshine, the City of Brimbank and the City Maribyrnong all have above average gaming expenditure and above average numbers of machines per 1,000 adults.
4. We are not persuaded that proximity to social housing significantly raises the potential for disbenefit. The parties made few submissions about this issue. The only evidence about social housing before us was Mr Roberts-Palmer's report. In that report, he states that 19.3% of Braybrook housing is social housing based on the 2011 Census and this is about three times higher than the City of Maribyrnong rate and about six times higher than the metropolitan Melbourne rate. He relies on a definition of social housing being, in essence, people with low incomes renting from a public housing body or a housing cooperative.
5. We do not accept that the nature of the tenancy or the form of housing is a risk factor. No party urged upon us this finding. The only risk factor is therefore low income. We consider the risk does not go beyond the risk level associated with low incomes.[36]
6. The Council sought to ascribe a high risk profile on two further factors that we do not accept.
7. First, it submitted the Hotel is in a highly accessible location. The Hotel abuts a main road, Ballarat Road, with bus services. However, the accessibility risk factor is higher if the venue is in an area of high pedestrian volumes. The Council relied on the Hotel adjoining a strip shopping centre to the west as evidence of higher risk, but the centre is small and has few convenience shops.[37]
8. Second, it submitted the Hotel is in the 'North and West region' of Melbourne. This is a broad area containing a wide variety in social and economic standing.

1. There is no primary evidence before us about the amount of problem gambling expenditure currently at the Hotel. The Productivity Commission estimates that between 22% and 60% of gaming expenditure is attributable to problem gambling. Given the relative social and economic disadvantage of the Hotel's trade area and the relatively poor quality of other facilities at the Hotel, we do not think it unreasonable to infer, as a starting point, that a mid-point of the range or about 40% of additional expenditure may associated with problem gambling.
2. We do not accept Dr Livingstone's opinion that between $1.5 m and $4 m of problem gambling expenditure at the Hotel can be expected (based on financial year ending 30 June 2013) if the amended application is approved. It focuses on total and not marginal impacts and therefore fails to focus on the effects of the amended application. It assumes the currently relatively high-intensity use of the existing 31 gaming machines will continue for each of the additional machines.
3. We prefer the opinion of Mr Whitehouse, based on his carrying out of and experience with top-up case studies, that net machine revenue falls for both additional and existing gaming machines after a top-up. Dr Livingstone's estimate is likely to be over-stated.

1. In summary, we do not accept the Council's contentions that the redevelopment of the Hotel will make the Hotel more attractive to problem gamblers, that the protective factors in the amended application will not lower the risk (and, in any event, could be separately implemented), and that the weighting of the social disbenefits must be extremely high.
2. We do not accept the Council's contention that, to the extent that the Hotel redevelopment and the other protective factors may mitigate problem gambling, they should be discounted because they could be undertaken by the Applicant now and separate from the outcome of the amended application. This contention fails to recognise that our task is to assess the amended application. The amended applications includes these factors. We also give weight to the sworn evidence of Mr Sebastiano that, absent the approval of the amended application, the Hotel redevelopment and protective factors cannot and will not separately occur for business reasons.
3. While the percentage increase in additional machines may be relatively high, the absolute number of additional machines is relatively small. The impact on the City of Maribyrnong will not be high because existing gaming machine density and overall expenditure on gaming machines is relatively high in the City of Maribyrnong. In other words, there are many other accessible venues for problem gamblers in the City of Maribyrnong, if the amended application is refused.
4. It is relevant that, in a capped area such as the City of Maribyrnong where all entitlements are taken up, there is potential for additional machines to be moved to venues in which the number of gaming machines is less than the number approved for that venue.[38] It is relevant to consider the potential for backfill of gaming machines in a capped area.[39]
5. The main proposed protective factors are improving the range of other facilities and services at the Hotel, reducing hours in the gaming room, changing the layout of the gaming room, and increasing staff numbers in the gaming room. We address each of these factors shortly in these reasons.
6. We agree with the Council that the adherence to the Hotel's responsible service of gaming (RSG) measures, in respect of the additional machines, should not be counted as a benefit. The Applicant accepts that compliance with the Code of Conduct prepared by Mr Barrett is a given. We nonetheless accept Mr Sebastiano's evidence that he has a strong commitment to RSG practices.

1. The Hotel redevelopment significantly adds to and improves on the range of facilities and services at the Hotel. The Hotel will be more attractive to non-gamblers. Gaming machine users will be able take a break from gaming and, for example, take a meal in the bistro. Gamblers will be less anonymous in a venue with more non-gamblers.
2. The Council relies on the evidence of Dr Livingstone that research is inconclusive about the effect of added and improved Hotel facilities and services on problem gambling. Even if this is so, the benefit of other facilities and services is recognised in the Council's recent policy document (the Council's policy),[40] is recognised under the Maribyrnong Planning Scheme,[41] and by the Tribunal in other cases.[42]

1. The gaming room is currently open between 7 am and 3 am each day. In the original application, total hours would be cut by 19 each week to 8 am to 1 am (Sunday to Thursday) and to 8 am to 2 am (Friday & Saturday). In the amended application, the Applicant will accept conditions cutting a further two hours each week (a total of 21 hours) to 8 am to 1 am each day. Many of the other nearby gaming venues trade until 3 am or even 5 am.
2. The main cut in hours is in the early morning. The Productivity Commission found cuts to early morning hours reduces a risky period for problem gambling. We do not take it to mean that all or even most problem gambling occurs after 1 am. However, we do accept that a higher proportion of patrons after 1 am will be problem gamblers. Some research has found that most problem gamblers in a venue will leave and go home if the gaming room closes early.[43] The Tribunal has previously recognised that cuts to early morning hours is a protective measure.[44]

1. The current entry to the gaming room is via the rear entrance vestibule, off the car park. Effectively, a gaming room patron does not enter the Hotel to access the gaming room. The amended layout has the entry to the gaming room from within the Hotel, via a broad passage about 13 m from the rear wall of the Hotel. Before reaching the entry, a patron will pass the function room and part of the bistro. There will be more people in the passage because it is the main thoroughfare to the function room and bistro.
2. The existing gaming room has an adjoining outdoor smoking area between the gaming room and the car park. The wall between the gaming room and the smoking room is glazed, allowing viewing into the gaming room. The smoking area is unattractive. These factors deter patrons taking a material break from gaming. In the redevelopment, there is a new internal smoking courtyard and patrons must leave the gaming room to access this area. There is no view of the gaming room from the area. The courtyard will be used by patrons of the other Hotel facilities. The proposed gaming room 'soft' lounge adjoins but is external to the gaming room. Screens limit the vision of the gaming room from this lounge. The courtyard and soft lounge encourage and enable more effective patron breaks than at present.
3. The current bar and cashier's station is on the wall furthest (about 17 m) from the gaming room entry. The new layout relocates them to the northern edge of the gaming room, about 5 m from the entry.[45] Staff at these locations will have better surveillance of the entry. The gaming machines are positioned in the gaming room so that there is improved surveillance from staff located at the bar and cashier's station.
4. The modified layout plan shows an opaque glass entry door and a solid screen behind to remove visual access from the passage and other parts of the Hotel into the gaming room. This lowers the risk of casual gambling.
5. Finally, the cash dispenser is to be relocated from adjoining and visually within the gaming room to a location outside the gaming room within the soft lounge. From that location, there is limited visual access back into the gaming room and better visual access of other Hotel facilities (especially the bistro). The new cash dispenser location will help patrons reconsider accessing additional cash for gaming.
6. We prefer the opinion of Mr Barrett, who has significant experience with responsible gambling practices, that all these layout changes are useful protective factors and will reduce the risk of problem gambling.
7. None of the other gaming venues we inspected had all the above layout features. We therefore infer the layout of the proposed gaming room is a better protective factor than the layout in the others we inspected.

1. We were informed that staffing requirements under the GR Act in the existing and proposed gaming room were for one FTE staff and one staff elsewhere on the premises who attends the gaming room from time to time. Under the amended application, there is to be two FTE staff in the gaming room at all times. We accept Mr Barrett's opinion that interaction between staff and patrons is a protective factor and the additional staff, if properly trained, will facilitate that interaction.

1. Even if we accept a relatively conservative estimate that 40% of additional new (ie non-transferred) expenditure will be associated with problem gambling, the various protective factors that are part of the amended application will result in materially less than 40% being so associated. This means, based on Mr Whitehouse's expenditure estimates, that less than between $56,000 and $62,000 per year will be associated with problem gambling.
2. We weight this as a medium to high disbenefit. The Braybrook area remains an area of relative disadvantage with relatively low incomes. People on low incomes are not more likely to be problem gamblers but, if they are, they and their families are more likely suffer harm. We do not weight it as high or extremely high given the protective factors and given the estimated reduced additional patrons per week.[46]
3. We observe the protective factors will also apply to the existing gaming machines and will operate to mitigate problem gambling on those machines. However, this does not factor into our assessments under the no net detriment test for the additional gaming machines.

1. This is not a case in which there was community disquiet about the application in the same manner as in the Romsey Hotel or the Castlemaine cases.[47] The Commission made no finding about community attitude. We agree with the results of Ms Peterson's surveys and with the Council's submissions that people in the municipal district and in Braybrook area were indifferent to the original application. Logically, this state of indifference continues for amended application. This disbenefit has a low weighting.

1. Our summary of social disbenefits appears below.

Findings of and weighting given by the Tribunal

Problem gambling expenditure of no more than $56,000 per year

People in the City of Maribyrnong and in Braybrook area are indifferent to the amended application.

1. Even though the scale of the Hotel redevelopment is reduced under the amended application, there will still be significantly improved facilities at the Hotel. For example, there is no other function room of the proposed size in the Braybrook area.
2. We agree with the Commission that the redevelopment will dilute the current emphasis on gaming at the Hotel.
3. We do not accept the Council's contention that the weighting of the benefit must be low because the improved facilities would not be available to problem gamblers. As we understood the contention, it was that problem gamblers will not be attracted to the redeveloped Hotel. To the extent the Council's contention relied on the evidence of Dr Livingstone, we have difficulty with that reliance given Dr Livingstone's evidence that he has no expertise in relation to the benefit of Hotel redevelopments.
4. The Commission ascribed a medium benefit because the improved facilities would not benefit the Maribyrnong community and would only benefit Hotel patrons. This is an overly narrow approach because any Braybrook resident can enter the Hotel or use its facilities.

1. The application does not represent material benefits for recreational gamblers given the limited number of additional gaming machines, the mature market in the City of Maribyrnong, the number of nearby venues and the regional cap on gaming machines. This is a low benefit.

1. Under the original application, the Applicant proposed to make community cash contributions of $100,000 per year. The Commission did not refer to these contributions in its assessment under the no net detriment test. Under the amended application, the Applicant proposes no change to the contributions.
2. There has been some uncertainty about whether a contribution may be secured by conditions of approval. We adopt the views of the Tribunal in the Castlemaine decision that, if a contribution has been made in good faith for a proper purpose in an application and is a significant benefit in the balancing of social and economic factors, it may be secured by conditions.[49]
3. There is no evidence that the contribution has not been made in good faith. The evidence of Mr Sebastiano and the lay witnesses is that he has made strenuous efforts to re-engage with the Braybrook community. While we accept the Council's contention that such efforts are, in part, marketing efforts this does not detract from their potential benefits. We also accept the evidence of Mr Sebastiano that he is committed to supporting local problem gambling services.
4. We do not accept the Council's contention that the contribution is low having regard to overall expenditure in the new gaming room. The Council relied on the evidence of Dr Livingstone in this contention whose opinion was that the contribution could not offset disbenefits of problem gambling expenditure between $1 m and $4.5 m at the venue. We agree with Mr Tweedie that this evidence is based on three errors. First, the no net detriment test must examine marginal impacts of the amended application and not total expenditure. Second, it should not include transferred expenditure because such expenditure cannot exacerbate problem gambling.[50] Third, it is unnecessary for one benefit (here, community contributions) to offset detriment from one disbenefit (here, problem gambling).
5. We prefer Ms Peterson's evidence that the contributions, at over $7,000 per additional machine per year, are more generous that what is usually proposed in top up or new venue applications.
6. We weight this benefit as medium given the relative disadvantage of the Braybrook area and the resulting greater benefit of each unit of contribution and to the lay evidence which points to particular unmet needs for local sporting clubs.

1. Additional employment may be a social as well as an economic benefit. Under the no net detriment test, it is important there is no doubling counting. Neither the Council nor the Commission assessed additional employment as having a social benefit. The Applicant claimed a medium social benefit.
2. Increased jobs for local people are a potential social benefit in an area of higher unemployment and higher relative disadvantage. As additional jobs cannot be guaranteed for local people under the amended application, we weight this benefit as low.

1. Restoration of a historic hotel is a potential social benefit.[51] There is limited remaining heritage fabric, but it does adjoin Ballarat Road. All of the bluestone wall fabric will be restored, along with the window and door openings. We ascribe this as a low benefit.

Findings of and weighting given by the Tribunal

Facilities for community in the Hotel redevelopment

The facilities are improved (eg expanded bistro, improved bar and outdoor area, new function room, improved childrens play area) and this improves social capital in local community

Increased opportunities for recreational gaming (ie non-problem gambling)

The addition of only 14 machines in mature market with a number of nearby venues and that has a regional cap represents limited opportunities for additional recreational gaming

Community contributions of $100,000 per year to problem gambling services, community groups and sporting groups

Additional jobs for local people have a greater potential social benefit in areas of higher unemployment and higher relative disadvantage

1. The no net detriment test is a composite test. We must determine the social and economic impacts of the proposal and then weigh those impacts to determine the net effect. The test is satisfied if we are satisfied the net impact of approval on the well-being of the community of the City of Maribyrnong will be either neutral or positive.[53]
2. The no net detriment test is focused on the City of Maribyrnong and not on the locality of Braybrook that surrounds the Hotel. This focus recognises the gaming in Braybrook is not a closed system. The evidence is that most of the Hotel's patrons reside outside Braybrook. Some of the patrons reside outside the City of Maribyrnong. The benefits and disbenefits of the amended application will, accordingly, extend beyond Braybrook. Having said that, we have nonetheless taken into account impacts that are more particularly felt in Braybrook.
3. We agree with Ms Batten's submissions that balancing the impacts is not amenable to expert evidence. To the extent that any expert witness has expressed an opinion about the net impact, we have disregarded such opinions.[54]
4. It is relevant that the Commission found that the economic and social impact of the original application was 'relatively finely balanced'.[55]
5. In the previous section of these reasons, we set out our findings on the relevant impacts in relation to the amended application. As there are material changes in the amended application, it is unsurprising that the impacts may change. The main changes to the impacts of most relevance in this proceeding are -
   • The social disbenefit of problem gambling is reduced from high (as found by the Commission in relation to the original application) to medium.
   • The social benefit of community facilities is increased from medium (as found by the Commission in relation to the original application) to medium to high.
   • The social benefit of community contributions is medium (as opposed to no finding on weight by the Commission in relation to the original application).
   • We give little weight to the potential additional disbenefit of the proximity of the Hotel to areas of social housing referred to by the Commission.
6. These key changes result us finding that the net impact under the no net detriment test moves from one finely balanced in favour of a net detrimental impact to one that is neutral or slightly positive. Accordingly, we are satisfied that the net impact of the approval of the amended application will not be detrimental to the well-being of the community.

1. In deciding whether or not to approve the amended application, the Tribunal may take into account other relevant matters.[56] These include broader policy considerations, drawn from the content and objectives of the GR Act as a whole.[57]
2. As the Hotel is located close to the boundary of the municipal district of the City of Brimbank and as gaming expenditure will be transferred from some venues in that district, we agree with the Commission that impact on that City is a relevant consideration. We accept Mr Whitehouse's evidence that the economic disbenefit to venues in that district will be very small in percentage terms and that impacts of this nature should not be given significant weight because of the competition objectives of the GR Act.
3. Another relevant consideration is the consequences of refusing approval, including 'the otherwise likely imminent future conditions affecting gambling in the municipal district'. This includes 'the potential for gaming machines to be located in other venues [in a capped area] if not at the venue seeking approval'.[58] The City of Maribyrnong is a capped area. All gaming machine entitlements in the capped area have been purchased. The capped numbers are not operational, mainly because the proposed Club Edgewater venue is not yet open.
4. Mr Whitehouse's opinion is that if the application is refused, the additional machines are most likely to be reintroduced into the Victoria on Hyde Hotel. Having inspected that Hotel, we would not be prepared to make a finding to accept his opinion. Nonetheless, we observe that the Highpoint Taverner venue and the Club Leeds venue have approvals exceeding the numbers of gaming machines attached to those venues. We accept that it is relevant to consider the additional gaming machines in the amended application could be 'backfilled' at a number of venues in the City of Maribyrnong without consideration of the net social and economic impact of the backfilling. We give some weight to the likelihood of this outcome.

1. We have considered the submissions of the parties on various drafts of conditions of approval that were tendered on behalf of the Applicant. We do not refer to each of the detailed submissions and our findings about the various issues raised in those submissions.

1. Condition 2 of the approval we intend to grant relates to the need to complete the Hotel redevelopment before the additional machines are operational. Mr Tweedie informed us that the Council had issued a permit under the Maribyrnong Planning Scheme for the building and works under the original application. If the amended application is approved, he confirmed the Applicant would seek an amended consent from the Council in relation to the buildings and works shown in the modified layout plan tendered at the hearing. We have therefore drafted condition 2 with the intention that the redevelopment must be completed before the additional gaming machines are operational and must be generally consistent with the amended consent and the modified layout plan.
2. It otherwise suffices to state the conditions set out in Appendix B represent our conclusions on what are appropriate conditions.

1. We are reviewing the Commission's decision to refuse to approve the original application to allow 19 additional gaming machines at the Braybrook Hotel.
2. We amended the original application and the amended application includes five fewer gaming machines ie an additional 14 gaming machines.
3. We have given the Commission's decision considerable weight. However, in doing so, we must also give weight to the fact that the amended application is materially different to the original application assessed by the Commission.
4. We discern the central element of the Commission's reasoning was the application of the no net detriment test. We must explain why we have come to a different conclusion in applying that test to the amended application.[59] In the 'social and economic impacts' section of these reasons, we have explained why we have ascribed various weightings to the relevant benefits and disbenefits and how they differ from the weightings we discern the Commission ascribed to them in relation to the original application.
5. Three of the most relevant impacts have changed such that the direction of the change is to increase the relevant benefit or decrease the relevant disbenefit. We have found the extent of change affects the net impact to one that is neutral or slightly positive. This is the central finding which explains why we have come to a different conclusion to the Commission in relation to the no net detriment test.

1. For all the above reasons, the decision of the Commission will be set aside and approval will be granted subject to conditions.

SUMMARY OF DIFFERENCES BETWEEN ORIGINAL APPLICATION

Supply contracts in next 12 months & percentage from suppliers in municipal district

Complementary expenditure (ie spending in other parts of the Hotel) in next 12 months

Percentage of annual gaming expenditure transferred from other venues; annual new gaming expenditure

Numbers of patrons who currently attend the Hotel weekly

Numbers of patrons who currently use gaming room weekly

1. The maximum number of electronic gaming machines (EGMs) that may be operated at the Braybrook Hotel, 353 Ballarat Road, Braybrook (the Premises) is 45.
2. The operation of any additional EGMs over and above 31 EGMs at the Premises (the Additional EGMs) must not commence until the buildings and works -
   • (a) generally in accordance with the ground floor layout plan of the Premises prepared by Workroom Design Pty Ltd drawing no. TP06 revision M dated 12 June 2014, and
   • (b) authorised under permit no. TP265/2013 issued by Maribyrnong City Council (the Council) under the Maribyrnong Planning Scheme,

have been substantially completed to the satisfaction of the Victorian Commission for Gambling and Liquor Regulation (the Commission).

1. If the buildings and works referred to in condition 2 are not substantially completed by 30 June 2016 the approval to operate the Additional EGMs at the Premises will lapse.
2. The Commission may, on the request of the owner or operator of the Premises agree to extend the time for completion of the buildings and works referred to in condition 2. The request must be made no later than 1 April 2016. Any request for an extension of time must include an explanation as to why the buildings and works have not been substantially completed.

1. Subject to condition 14, the operator of the Premises (the Venue Operator) must make cash payments totalling $100,000 (the Contribution) in each year (ending 30 June) commencing from the date any of the Additional EGMs commence operation (the Commencement Date) with the Contribution to be applied in accordance with the formula set out in condition 9.
2. The first payment to be made for the first financial year following the Commencement Date must be a proportionate payment with the proportion being equal to the proportion that the number of days from the Commencement Date to the following 30 June bears to 365.
3. The Contribution must be increased each year by the increase in the Consumer Price Index All Groups Melbourne during the preceding year.
4. The Venue Operator must establish a committee (the Committee) to facilitate the allocation and distribution of the Contribution. The Committee must consist of the following members -
   • (c) One person being a community representative nominated by the Council, if the Council agrees to make such a nomination.
   • (d) One person nominated by the Venue Operator.
   • (e) One person being a community representative agreed between the Venue Operator and the Council. If there is no agreement between the Venue Operator and the Council about the representative, the person is to be a community representative nominated by the Venue Operator.
5. Except if the circumstances set out in condition 10 apply, the Committee must allocate the Contribution as follows -

(a) 25% of the Contribution to not-for-profit community groups, sporting organisations or cultural groups providing services to residents of the City of Maribyrnong, with preference being given to those not-for-profit community groups, sporting organisations or cultural groups providing services to residents of Braybrook.

(b) 50% of the Contribution to problem gambling services providers providing services to residents of the City of Maribyrnong and the City of Brimbank.

(c) 25% of the Contribution to not-for-profit community groups, sporting organisations or cultural groups providing services to residents of postcodes 3020 and 3021 (being areas within the primary trade area of the Premises within the City of Brimbank).

1. If no problem gambling services providers providing services to residents of the City of Maribyrnong and City of Brimbank agree to accept a proportion of the Contribution under condition 9(b) in any year that the Contribution is payable, the Committee must allocate the Contribution as follows -
   • (a) 75% of the Contribution to not-for-profit community groups, sporting organisations or cultural groups providing services to residents of the City of Maribyrnong, with preference being given to those not-for-profit community groups, sporting organisations or cultural groups providing services to residents of Braybrook.
   • (b) 25% of the Contribution to not-for-profit community groups, sporting organisations or cultural groups providing services to residents of postcodes 3020 and 3021 (being areas within the primary trade area of the Premises within the City of Brimbank).
2. The Committee must provide its recommendations to the Venue Operator. The Venue Operator must distribute the Contribution in accordance with the recommendations of the Committee, except if the recommendations are inconsistent with the objects or purposes of the Venue Operator. If the recommendations are inconsistent, the Venue Operator must distribute the Contribution or so much thereof as is consistent with the objects or purposes of the Venue Operator in accordance with conditions 5, 6, 7, 9 & 10.
3. The Committee must meet bi-annually and otherwise as requested by two members of the Committee. The Committee may regulate its own proceedings. The quorum for a meeting is two members of the Committee.
4. The Venue Operator must provide a report to the Committee, the Commission and to the Council annually by 31 July in each year, demonstrating that the Contribution has been made, in accordance with these conditions, in the previous financial year.
5. If any of the Additional EGMs permitted to operate at the Premises cease to operate as a result of any circumstance, including, but not limited to, the imposition of amendment of any regional cap or municipal limit, the Venue Operator may reduce the Contribution up to, but not exceeding, a pro-rata basis.
6. If the Contribution or any part of it is not made by the end of each financial year, the operation of the Additional EGMs must immediately cease for so long as the Contribution or the outstanding part remains outstanding.

1. The gaming room may only operate during the following times -
   • (a) On Anzac Day, between 12 noon and 1 am the following morning.
   • (b) On any other day of the year, between 8 am and 1 am the following morning.

1. On and after the day any one or more of the Additional EGMs commences operation, during the hours that the gaming room is operational -
   • (a) The lounge area adjacent to the gaming room and the courtyard must be operational and available to gaming patrons.
   • (b) Food must be available for purchase and consumption by gaming patrons in at least the lounge area adjacent to the gaming room.

In this condition, the 'lounge area adjacent to the gaming room' and the 'courtyard' are the areas shown for those purposes on the plan referred to in condition 2(a).

1. When the gaming room is operational, a minimum of two staff members must be on duty in the gaming room.

1. Except with the consent of the Commission, the Venue Operator must make no material change to either the layout of the gaming room or the range and extent of non-gaming facilities available to the public at the Premises.

1. No receipt of cash pursuant to EFTPOS withdrawals must take place in the gaming room.

[1] Gambling Regulation Act 2003 s 3.4A.5(3A)(b); Victoria Government Gazette no. G37 dated 13 September 2012 p 2042-6.

[2] According to the Commission's submissions and as at 18 August 2014.

[3] According to Applicant's data as at 14 July 2014. In particular, Footscray Football Club Ltd holds 70 entitlements for its proposed Edgewater venue.

[5] There are a range of amendments to the application that are consequential upon the variation to the number of gaming machines. We summarise these in a table set out in Appendix A.

[6] Whether the Tribunal has the power to amend an application is a question of law. Member Code is a legal practitioner. The question is therefore determined solely by him. For consistency with the balance of the reasons, 'we' instead of 'I' is used in this section of the reasons. The question of whether the application should be amended as to its merits is not a question of law and is determined by both of us.

[7] See eg Drayton Manor Pty Ltd v Greater Bendigo CC [2011] VCAT 628.

[17] Victorian Commission for Gambling and Liquor Regulation, Application to vary the number of gaming machines at the Braybrook Hotel from 31 to 50 gaming machines, Decision dated 31 October 2013 and Reasons dated 19 November 2013 (Commission's decision).

[18] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422 at [53].

[19] See eg Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101 at [111].

[20] Closing submissions on behalf of the Commission, at [41].

[22] Commission's decision at [4]-[8].

[23] Monash CC v L'Unico Pty Ltd [2013] VCAT 1545 at [20].

[24] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 435.

[25] Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101 at [118]- [124].

[26] Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101 at [118]- [124].

[27] Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101.

[28] Attached to Mr Sebastiano's statement statement was a preliminary architect's estimate of $4.2 m.

[29] Total expenditure in Victoria and in the City of Maribyrnong was almost static in absolute terms in the same period.

[30] We also accept Mr Whitehouse's evidence that expenditure transferred from venues in the City of Brimbank offsets this increase by between 0.42% and 0.49%.

[31] The Commission's weighting relates to the original application.

[32] The Commission's weighting relates to the original application.

[35] We accept the results of Mr Quick's 2014 utilisation rate survey of the Hotel's existing gaming machines - see his statement of evidence at p 8.

[36] We observe that public housing or housing cooperative rents are usually lower than private market rents. It is therefore possible that proximity to social housing could be less of a risk factor for a given level of income.

[37] The Hotel's car park is partly on the west side and adjoins the driveway entry to the strip centre off Ballarat Road. There is no restriction on users of the centre parking in the Hotel car park. The Hotel redevelopment includes the construction of a 1.5 m high fence along the driveway. We agree with Mr Quick, based on our inspections, that the Hotel car park is not well integrated with the strip centre due to the latter's poor convenience function. The fence would reinforce the existing separation.

[38] For example, Club Leeds, Highpoint Taverner, and the Victoria on Hyde Hotel.

[39] Club Italia Sporting Club Inc v Brimbank CC [2011] VCAT 2378 at [32]- [33].

[40] Maribyrnong City Council, Electronic Gaming Machines - Reference Document and Local Planning Policy, August 2012.

[41] Maribyrnong Planning Scheme cl 22.06, cl 52.28-5.

[42] See eg Pink Hills Hotel Pty Ltd v Yarra Ranges SC [2013] VCAT 954 at [81]- [85].

[43] Adam Tuffin & Victoria Parr, Evaluation of the 6 hour shutdown of electronic gaming machines in NSW, Report prepared by Blue Moon Research & Planning Pty Ltd for NSW Office of Liquor, Gaming & Racing (April 2008), p 16 - 18.

[44] Prizac Investments Pty Ltd v Maribyrnong CC [2009] VCAT 2616.

[45] The modified plan tendered by Mr Tweedie near the end of the hearing shows a solid barrier between the bar and cashier removed and this further improves surveillance of the entry.

[47] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422; Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101.

[48] The Commission's weighting relates to the original application.

[49] Mount Alexander SC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 101 at [107]- [108].

[50] Kilsyth and Mountain District Basketball Association Inc v Victorian Commission for Gambling Regulation [2007] VCAT 2 at [40].

[51] Commission's decision regarding the Bells Hotel, 24 July 2009, para 69; Darebin CC v Victorian Commission for Gambling and Liquor Regulation [2013] VCAT 1389 at [25] (table).

[52] The Commission's weighting relates to the original application.

[53] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 435.

[54] For example, Mr Quick expressed the opinion that the social and economic benefits 'to be positive [or] at worst have a neutral impact on problem gambling' in the City of Maribyrnong (his statement of evidence, p 1).

[57] Ocean Grove Bowling Club v Victorian Commission for Gambling Regulation [2006] VCAT 1921.

[58] Club Italia Sporting Club Inc v Brimbank CC [2011] VCAT 2378 at [32]- [33].

[59] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422 at [53].

[60] Application states '1,400' but is presumed to be an error.