Victorian Civil and Administrative Tribunal|2012-08-28

The applicant seeks the review of the failure of the Port Phillip City Council to determine to grant a permit for the use of the land for 29 electronic gaming machines (EGMs), and internal buildings and works to the existing hotel to provide function rooms to the upper level. The Council advises that if the application had not been lodged, it would refuse the grant of a permit.
The grounds upon which the Council relies focus on the use of the land for gaming machines. The Council asserts that the installation of gaming machines would not create a net community benefit, they are contrary to the purposes of Clauses 52.28 and 22.07, they are inappropriately located in a Major Activity Centre, will increase convenience gambling and would adversely affect the social and economic well being of the local community as they are in close proximity to social housing.
In February 2012, the Victorian Commission for Gambling Regulation (VCGR)[2] determined to approve 29 EGMs on the subject land[3]. In reaching this conclusion, the Commission found the benefits would comprise improvements to the hotel; the provision of additional entertainment on the periphery of an Activity Centre, employment possibilities, further gaming and community contributions.
Although not parties to the proceeding, we heard submissions from Mr Brearley and Mr Musgrove, both of whom are nearby residents and express support for the introduction of the 29 EGMs at the hotel. They support having a vibrant and diverse entertainment sector in the area and note considerable works undertaken by the hotel owners to revive the premises into a pleasant venue.
A number of persons lodged statements of grounds with the Tribunal opposing the 29 EGMs; however, Ms Bakogiannis was the only objector to appear to support her statement[4] . Ms Bakogiannis lives nearby and submits that the hotel operations have had adverse impacts on amenity, mainly from drunkenness, fights and noise when patrons leave the venue. She is of the view that the addition of EGMs into the hotel as well as the refurbishment of the upper level into function rooms will lead to an increased number of patrons attending the premises with resultant impact on noise, general disruption to amenity and more pressure on kerbside parking within the area.

A permit is required for the use of the proposed EGMs under Clause 52.28 of the planning scheme. The purposes in clause 52.28 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 the Schedule to clause 52.28-3, gaming machines are specified as prohibited in the Port Melbourne shopping complex at 191-219 Bay Street, Port Melbourne. Under the schedule to clause 52.28-4 gaming machines are also prohibited at specified locations within the Bay Street Shopping Centre[5]. The subject land is not located within any of the prohibited areas and, accordingly, discretion exists for a permit to be granted.
Under Section 3.3.7 (1) (c) of the Gambling Regulation Act 2003, the VCGR is required to consider 'the net economic and social impact of approval would not be detrimental to the well-being of the community of the municipal district in which the premises are located'. In contrast, the Council and in turn the Tribunal's considerations are under clause 52.28 of the planning scheme, as stated in Bells Hotel Pty Ltd v Port Phillip CC, is 'a more confined focus than the test under the Gambling Regulations Act 2003... it is for the responsible authority (and Tribunal on review) to decide what constitutes a relevant impact in a particular case and what constitutes the appropriate locality within which to consider the impact'[6].
Clause 52.28-5 provides:

In considering an application in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:

The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.
The compatibility of the proposal with adjoining and nearby land uses.
The capability of the site to accommodate the proposal.
Whether the gaming premises provides a full range of Hotel facilities or services to patrons or a full range of club facilities or services to members and patrons.

On considering the submissions and evidence, the key issues to be decided are:
- Is the proposal supported by the policies within the Planning Scheme?
- Will the proposal have unreasonable impacts on the amenity of nearby residential properties?

Is the proposal supported by the policies within the Planning Scheme?

The Council contends that, broadly speaking, there is one key issue in this matter. That issue is whether the proposal is appropriate having regard to the policies set out in both the State and Local Planning Policy Frameworks.
The Council submits that under Clause 10.02 of the SPPF, policy directs that there is a need to integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development. It submits that the need to demonstrate a net community benefit is reinforced by local policy, particularly the proposed new Clause 22.07 which requires a proposal to demonstrate the overall net community benefit to be derived. It contends that the net community benefit "test" applied in planning applications is different to that to be applied under the Gambling Regulation Act 2003 which requires that the VCGR be satisfied that "the net economic and social impact of approval would not be detrimental to the well-being of the community. In short, the Council contends that in a planning application, the onus rests with the applicant to demonstrate that there will be a net community benefit before a permit is granted rather than simply demonstrating that there is no detriment which is the test applied by the VCGR under the Gambling Act.
In support of this proposition, the Council relies on the views of the Tribunal in Beretta's Langwarrin Pty Ltd v Frankston CC[7] when the Tribunal said:

The important point for our purposes is that pursuant to Clause 11, where a planning permit applicant puts forward its case as to the planning merits of a proposal, it must do more than demonstrate that the proposal will not cause any net planning detriment. Similarly, it is not enough for an applicant to demonstrate that the proposal will maintain a break even situation in terms of its net community impacts. Rather, it is clear that an applicant must demonstrate that the proposal will go beyond 'break even" to create a net community benefit i.e. a positive planning outcome.

However, we also note the subsequent analysis of the policy situation in Bright Newbay Pty Ltd v Bayside CC[8] as follows:

One of the objectives of the policy is "to ensure that gaming venues achieve a net community benefit". In our opinion, this objective is contrary to clause 11 of the State Planning Policy Framework, which contains an endeavour to integrate the range of policies relevant to the issues to be determined and to balance conflicting objectives within those policies in favour of net community benefit and sustainable development. We agree with the findings in Prizac Investments Pty Ltd v Maribyrnong CC[9] and CK & Sons Pty Ltd v Bayside CC[10] that clause 11[11] does not set out a particular test, unlike the provisions contained within section 3.3.7 of the Gambling Regulation Act 2003 - that the net economic and social impact will not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. We agree with Prizac that there are different roles and responsibilities under the gaming application and the planning application. It appears to us that this 2010 policy objective may be contrary to the gaming legislation that mandates no net community detriment (as opposed to achieving a net community benefit). Ultimately, we agree with the findings in Prizac and CK & Sons that a proposal does not necessarily fail if an applicant cannot demonstrate a net benefit, particularly in a case where there may be a neutral outcome[12]. At the same time, the objective to balance policies in favour of net community benefit where possible is generally relevant to planning permit applications for the use of land for gaming.

We agree with the above analysis. While we are required to have regard to whether the proposal delivers a net community benefit, it does not follow that the delivery of a net benefit is fundamental to the grant of a permit, particularly in cases where it is demonstrated that the outcome will not deliver a detriment or is "neutral" in terms of its impact on the community.
Planning policy also highlights the potential social and economic detriment associated with gaming. At Clause 21.04-8, the MSS notes:

There is a need to continue to support the disadvantaged, disabled and low income to remain in the city through appropriately designed and located housing.

Pressure for licensed premises and gaming venues is also growing. Both have an important entertainment role in the municipality, however, they need to be appropriately sited and managed to ensure their social impacts on the community are minimised.

Amendment C88 to the Port Phillip Planning Scheme proposes the introduction of an updated policy in respect of gaming machines in the municipality at clause 22.07. The amendment also proposes the listing of the Port Phillip Responsible Gaming Policy (2011) as a reference document. The amendment was exhibited in October 2011 and considered by a Panel on 27 April 2012. The Panel's report has been released. The amendment has been largely adopted in line with the Panel's recommendations, however, one significant departure from the panel's recommendations is that the Council has modified the policy so that the buffer distance of 500m (rather than 400m) to social housing is required. The amended policy is a seriously entertained proposal albeit that, to some extent, the version adopted by the Council was neither exhibited nor does it accord with the Panel's recommendations. Nonetheless, we consider that it should be afforded some weight given that the adopted version is largely consistent with the Panel's recommendations.
The policy basis under the proposed policy states:

While gambling is a legal activity, the policy acknowledges that there are links between vulnerable communities, problem gambling and proximity to gaming venues. The Port Phillip Responsible Gambling Policy seeks to discourage the location of gaming machines in proximity to vulnerable communities.

The objectives of clause 22.07 as proposed under amendment C88 have been enlarged to include:
- To reduce the impact of gaming machines on vulnerable communities.
- To minimise opportunities for convenience gaming and the incidence of problem gambling.
To achieve these objectives, the policy (as adopted by the Council) requires gaming venues to be located more than 500 metres from social housing developments and support/referral services servicing vulnerable communities. Further, it requires gaming venues to be located on sites where there is minimal likelihood of people passing the venue as part of their usual business or every day activities. Quite clearly, there is an emphasis in the proposed local policy to locate new and or expanded gaming venues in locations which are some distance from areas which house 'vulnerable communities' or which provide support services.
The Council recognises the Bay and Bridge is within the Bay Street Activity Centre, and physically and functionally operates as part of Bay Street. However, it submits that the hotel is located in close proximity to community housing and support services and, therefore, in proximity to 'vulnerable communities' who will need to pass the venue for their shopping needs thus exposing them to convenience gambling.
Underlying this submission is the notion that members of the community on low incomes who reside in areas with higher than average unemployment, high rates of public housing tenants, a high proportion of people on low incomes, a high proportion of lone households and a high proportion of people who do not speak English well or at all, are more susceptible to being problem gamblers.
At clause 21.04-6, the MSS recognises the entertainment role of gaming venues in the municipality; however it also says:

...gaming venues need to be appropriately sited and managed to ensure that the amenity, social and economic impacts of gaming on the community are minimised.

The Port Phillip Community Centre is located on the corner of Liardet and Nott Streets approximately 350 to 400m from the Bay and Bridge. This centre is already 300m from an existing venue at The Rex with 57 EGMs. The Bay and Bridge is on the edge of a 400m radius from two social housing developments on Ingles Street, to the north east, and Nott Street, to the south west (measured as the crow flies), although walking distance is a little further.
In our view, it is clear that the Bay and Bridge is located some distance from sites occupied by concentrations of social housing and providing support services to those communities. From a practical viewpoint, the walking distance exceeds 400 metres, a distance that is considerable and provides significant separation between the location of social housing and the Bay and Bridge.
We also take into account that the municipality is considered to be highly economically and socially advantaged with low levels of disadvantage, few gaming machines and relatively low expenditure. Under the ABS SEIFA Index of Disadvantage the City of Port Phillip is ranked 73 out of 80 municipalities in Victoria. The Council however points out that 21.5% of the municipality's households are living in the lowest income quartile of metropolitan Melbourne and of this 21.5% , 31% are in public housing, 41% in private rentals and approximately 30% are owner-occupiers and likely to be retirees.
The Council submits that:

Port Phillip has 9 Census Collector Districts (CCDs) with a SEIFA score of less than 900 that is, in the bottom 15% of collector districts in Australia. All 9 CCDs are within 2.5km of the venue and of which 4 are within the suburb of Port Melbourne. The 4 within Port Melbourne all contain public housing estates: 44 Raglan Street, 186 Stokes Street, 16-46 Barak Road and 2 Tom Hills Court.

We acknowledge that there is a portion of the municipality that falls within the low income bracket. However, overall, the municipality is relatively affluent, as evidenced by its ranking in the SEIFA Index. Further, it cannot be said that Port Phillip is a municipality which is inundated with EGMs. On the whole, the number of EGMs in Port Phillip is well below the metropolitan average.
It was acknowledged that patrons to gaming venues mostly come from within a 2.5km radius. Within 2.5km of the Bay and Bridge 7% of the population is in the lower two deciles, which is less than 16% for Melbourne. In this case the lower decile is some 400m away. The Bay and Bridge is not considered to be overly convenient with the lower decile areas in close proximity to other machines at Crown Casino and the Rex Hotel.
We do not consider, after taking into account the SEIFA Index and Statistical Local Area (SLA) rankings that the municipality, particularly in the Port Phillip-West area, is experiencing social - economic disadvantage sufficient for us to consider it inappropriate to locate 29 EGMs at the Bay and Bridge. The municipality has a very small share of residents on low incomes compared to the Melbourne average with 21% compared to 25%. We also recognise that low income households may not necessarily be disadvantaged with low average size households in the municipality so average household income will be lower. We also acknowledge residents within this area are already exposed to gaming opportunities at Crown Casino and the Rex Hotel.
The Council submits the new expenditure generated from the proposal would come from problem gamblers. We are unable to reach this conclusion, no evidence was provided to us on behalf of the Council to support this contention, and there was nothing in either Mr Quick or Mr Milner's evidence that would lead us to that conclusion.
We acknowledge that a portion of the population are what is termed 'problem gamblers'. We consider that in reaching our decision the issues of problem gamblers should be taken into account and this should be balanced with the ability to permit an entertainment whilst minimising harm to the community. However, the identification of a problem gambler is difficult with research not providing clear relationships between demographic characteristics and problem gambling. 'People develop gambling problems due to a combination of factors that include social, physiological, psychological and environmental factors'[13].
We refer to the comments made by the Tribunal in the Bells Hotel determination relating to a proposal for 40 EGMs in a hotel located directly opposite public housing:

An additional complication for the responsible authority's case in terms of evidence is that Mr Weston did not satisfy us of the increased risk that might be posed to the public housing community compared with that which already exists by their ability to access thousands of similar machines at Crown Casino, less than 700 metres away. While we might assume that a local venue may be more attractive to these people for a number of reasons and/or likely to be used more frequently, there was no reliable evidence presented on this issue. Similarly, there was no persuasive evidence presented that increased availability or more frequent use would necessarily equate to higher numbers of problem gamblers or other social/ economic vulnerabilities in this case.

We do not consider that the introduction of 29 EGMs will lead to increased problem gambling. The size of the gaming venue is small and residents of the municipality, whether they are problem gamblers, or not are already exposed to gaming venues.
We agree with the applicant that the proposal currently satisfies all the criteria set out in the policies except for one and that is its proximity to social housing. We would however adopt the view expressed by both Mr Quick in his evidence and the VCGR which stated:

The evidence shows that the proposed premises is within 400m of social housing. The Commission accepts that there are pockets of disadvantage in the municipality but finds that overall the municipality is affluent and can absorb, without net detriment, the additional machines.

In our view, it is appropriate to place weight on the VCGR's decision. Firstly, it is clear that the VCGR came to its conclusion taking into account the context of the proposed venue, particularly with respect to its proximity to social housing. Secondly, as noted by the Tribunal in Branbeau Pty Ltd v VCGR[14]:

Although the tribunal must proceed without any presumption as to the correctness of the decision under review[16] , it will usually be appropriate for the tribunal to give weight to the Commission's decision in the matter. There are two reasons for this. First, the Commission has particular expertise in the area of gaming. Second, there is a public interest in consistency of decision making in the exercise of powers under the Act and this may be advanced if weight is given to Commission decisions.

We consider that it is appropriate to give weight to the VCGR's decision, specifically its conclusion about the additional EGMs can be absorbed without net detriment to the community. Specifically we note the VCGR's conclusion that:

In this case, the egm market in the municipality is mature, and the addition of 29 more egms into such a market is unlikely to increase the probability of problem gambling.

Thirdly, given the above, we are unable to conclude that the proposal will deliver a net detriment to the community. The VCGR has already concluded that the proposal is unlikely to increase the probability of problem gambling and that the additional EGMs can be absorbed without net detriment to the community. Further, the location of the EGMs in the Bay and Bridge will, in our view, add to the diversity of entertainment within the Bay Street Activity Centre. We recognise that gaming, as stated by Mr Milner:

........is a lawful, regulated activity that is intended to be accessible to the Victorian community and visitors to the State. It is recognised as a source of recreation, entertainment and social interaction and enjoyed by many members of the community without harm and ill effects. It is also seen as a means of promoting tourism, employment and economic development within the State'.

The applicant proposes to make a contribution to the community of $60,000 per year from the revenue generated by the EGMs. This is proposed to be divided between a $30,000 contribution to the Heartwell Foundation, a registered Children's Charity and a $30,000 contribution to be distributed according to a strategy committee intended to include representatives from the Bay and Bridge, City of Port Phillip and the general community. We were provided with a signed 'Contribution Agreement' between the Bay and Bridge and the Heartwell Foundation recognising the contribution.
The applicant also submitted 3 to 5 full time jobs would be created if EGMs were approved and it would be expected that at least another 2 full time jobs would be created due to the proposed construction works.
We consider such contributions to be beneficial to the community. Given the VCGR's conclusion that EGMs can be absorbed without net detriment and that an increase in problem gambling is unlikely, we consider that the proposal achieves a net benefit, albeit a small one.
Fourthly, we note that the VCGR's decision on this matter has not been challenged by the Council.
Fifthly, it is overly simplistic to rely on "distance" between a proposed gaming venue and pockets of social housing and support services as a sound basis on which to determine the suitability of the location of a new or expanded gaming venue. Clearly, other factors will come into play such as the nature and size of the venue, the overall context of its location, the level to which the residents of the municipality are already exposed to EGMs, the proximity to other gaming venues as well as the community's level of disadvantage.
We now turn to the specifics of the location.
There appears to be a certain disparity between the policies under the planning scheme which support the location of entertainment venues into Activity Centres but then a clear discouragement under proposed clause 22.07 for EGMs. When a map is viewed showing a 400m radial distance from social housing it appears that all locations were gaming machines can be located are discouraged occupying the entire length of the Port Melbourne and St Kilda Activity Centres. This is despite clear support for the location of entertainment facilities in Major Activity Centres including Bay Street.
At a broad level, clause 21.04-2 of the MSS recognises that Activity Centres are appropriate locations for 'leisure' activities, they 'play an important role in hosting visitation, including local and regional entertainment uses', are 'at a mature stage of development and perform a complex range of retail, commercial and entertainment functions'. Under this clause "entertainment" uses are discouraged outside designated activity centres whilst regional entertainment/tourism uses[15] as well as local entertainment uses[16] form part of the strategic role and function of Bay Street, Port Melbourne which is identified as a Major Activity Centre.
Under Clause 22.07-3 it is policy to 'ensure that gaming premises are located in existing licensed premises such as a Hotel'. It is also policy to 'ensure that gaming premises are located outside residential zones (including the Mixed Use Zone)'.
The Bay and Bridge is located on the periphery of the activity centre, approximately 300 - 400m from what would be described as the busier part of the centre where there is more of a focus on shops and retail. The area in which the Bay and Bridge is located generally includes businesses such as accountants, service retail and offices. Whilst the Bay and Bridge is within the Residential 1 zone it is physically separated from the residences being bound on three sides by roads and on its eastern boundary are commercial premises. There is some merit to the argument that the Residential zoning of this land is somewhat of an anomaly in this context.
The MSS recognises that gaming venues form part of the entertainment facilities available within the municipality. We find the location of this venue, at the periphery of a Major Activity Centre, to be appropriate. It is away from the heart of the activity centre where people go about most of their daily business. It is also sufficient distance away from social housing developments and the location of support services. The subject land is on a corner, buffered by roads on three sides and set amongst commercial uses on bay Street. It is separated from residential uses. All these factors favour the grant of the permit.
Further, we regard the peripheral location of the venue to be appropriate, being remote from the busier parts of the activity centre where residents are likely to attend to their daily shopping needs. The peripheral location reduces the potential for convenience gambling.
While the proposal may not strictly meet every requirement of the proposed policy at Clause 22.07 adopted by the Council under Amendment C88, we do not regard the failure to meet aspects such as the distance between the proposed venue and social housing to be an appropriate basis on which to reject this proposal. It will be very difficult, almost impossible to find a site in Port Phillip that will meet all the prescriptions of the proposed policy.
When the applicant took possession of the Bay and Bridge it had a number of issues, was not in good repair and had a bad reputation. The applicant has since spent a considerable amount of money on refurbishing the Bay and Bridge making it more family friendly with a focus on meals. A survey of patrons showed that the majority of people dine at the venue at lunch time, reflecting the location in a business precinct with only 37% from the Port Melbourne area. Mr Quick referred to anecdotal evidence to suggest patrons included travellers passing through Port Melbourne on their way to the nearby ferry terminal at Station Pier.
The number of EGMs proposed is small and the area in which they will be located will not dominate the Bay and Bridge. The Bay and Bridge provides dining facilities, café/bistro and function rooms. It is clearly a hotel that provides for a broad range of facilities for its patrons, and does not simply rely on gaming as its sole activity. This also favours the grant of the permit having regard to the relevant criteria in clause 52.28 and policy.

Will the proposal result in unreasonable impacts on the amenity of nearby residential properties?

While Ms Bakogiannis expresses concerns about the impact that patrons will have on amenity, in our experience, the type of venue proposed in this case will not lead to problems such as noise or unruly behaviour.
We do not expect that the use of the Bay and Bridge for 29 EGMs will result in amenity impacts on the nearby residents. The applicant has indicated the proposed operating hours for the gaming venue would be 10.00am to 1.00am on Thursday, Friday and Saturday and 10.00am to 11.00pm every other night. We do not consider these hours to be unreasonable and likely to result in amenity impacts to nearby residents.
The Bay and Bridge is proposing to internally refurbish its upper level and create a function room. We consider this will add to the facilities currently provided by the Bay and Bridge and is in keeping with the activities associated with a Hotel.
We do not consider that the addition of the function rooms will result in any increased amenity impacts to the nearby area, as these are internal changes to a Hotel with existing use rights there is no requirement for the consideration of car parking. We expect as well, that with the Bay and Bridge having undergone a considerable change in the patrons it attracts, it is unlikely that the problems experienced in the past by Ms Bakogiannis will continue.

Draft conditions were provided by the Council for discussion. We note that there is no reference within the draft conditions to hours of operation of the gaming venue and we consider such a condition to be appropriate.
A permit is required pursuant to clause 52.27 to use and sell or consume liquor on the footpath area in front of the Bay and Bridge, even when the Council has a local law that controls footpath trading[17]. We consider what the permit allows should reflect this permission. No issue was raised with regard to this permission.
Discussion was held regarding whether a condition could be imposed requiring the giving of contributions as proposed by the applicant. A possibility is the imposition of a section 173 Agreement under the Planning and Environment Act 1987, such an agreement is with the owner of the land and the Council. In this case, the applicant is the lessee and has already signed an agreement with the Heartwell Foundation but has not negotiated any agreement with the Council. It is unclear as to whether the Council would engage and be party to an agreement to formalise the applicant's undertaking to the Tribunal that it will make community contributions of the type described in our reasons.
Given this, we consider the provision of an undertaking by the applicant pursuant to section 130 of the Victorian Civil and Administrative Tribunal Act 1998 to endeavour to enter into an agreement with the Council is more appropriate in the circumstances than a condition. Under section 130, the power of the Tribunal to make an order can be subject to any conditions which may include at subsection 2(d) 'a condition or order that a person give an undertaking to the Tribunal'.

We consider the proposal to use the existing hotel for 29 EGMs is appropriate, as it is well located at the periphery of the Bay Street Activity Centre and is a sufficient distance from social housing.
We acknowledge that vulnerable residents within the Port Phillip-West SLA are exposed to gaming; however, we do not consider that approving this venue will result in an increase in problem gambling. In coming to this view we give substantial weight to the conclusions of the VCGR and the lack of evidence from the Council to support its contention that the proposal will lead to increased problem gambling. We are satisfied that the proposal is acceptable having regard to the relevant matters under the planning scheme, including both existing and proposed planning policies. Further, the proposed buildings and works are minor and do not lead to the need for more parking. We are unable to conclude that the introduction of 29 EGMs within an existing hotel will lead to unreasonable impacts on the amenity of the area.

We will therefore set aside the Council's decision. A permit is granted.

Use and development of the land for the purpose of building and works to the existing Hotel, internal rearrangement to provide function rooms to the upper level, use of 29 electronic gaming machines, and use of a footpath area to sell or consume liquor, generally in accordance with the endorsed plans.

Before the development starts, two (2) complete sets of amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans submitted with the permit application but modified to show, to the satisfaction of the Responsible Authority:
- (a) The area nominated as 'gaming area' to be renamed 'gaming room'.

The development and layout of the uses, including the layout of the gaming room, as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

Once the development has started it must be continued and completed to the satisfaction of the Responsible Authority.

No more than 29 gaming machines are permitted to be used in the gaming area.

Except with the further written consent of the Responsible Authority, a maximum of 250 patrons are permitted on the subject land at any one time

Except with the written consent of the Responsible Authority the gaming machines must only be used between the hours of:

10.00am - 1.00am the following day - Thursday to Saturday.

Before the use and installation of gaming machines commences, a Patron Access & Management Plan is to be submitted to the satisfaction of the Responsible Authority. The Plan must provide details of:
- (a) Measures to identify problem gamblers within the Gaming Area;
- (b) Measures designed to ensure the orderly arrival and departure of patrons;
- (c) Signage to be used to encourage responsible off-site patron behaviour;
- (d) The training of staff in the management of patron behaviour;
- (e) Staff communication arrangements;
- (f) measures to ensure use of footpath trading areas do not unreasonably impact on amenity of area.

The Plan, including the matters specified herein, may be amended to the satisfaction of the Responsible Authority. When approved, the Plan is to be implemented to the satisfaction of the Responsible Authority.

Noise levels must not exceed the permissible noise levels stipulated in State and Environment Protection Policy N-1 (Control of Noise from Industrial Commercial and Trade Premises within the Melbourne Metropolitan Area) and State Environment Protection Policy N-2 (Control of Music Noise from Public Premises).

The amenity of the area must not be unreasonably detrimentally affected by the use or development through the:
- (a) Transport of materials, goods or commodities to or from the land;
- (b) Appearance of any building, works or materials;
- (c) Emission of artificial light, vibration, smell, fumes, smoke, steam, soot, ash, dust, waste water, waste products, grit or oil;
- (d) Presence of vermin; or
- (e) In any other way.

All lighting of external areas must be suitably baffled so as not to cause nuisance or annoyance to nearby properties and/or roads.

No goods are permitted to be stored or left exposed outside the building so as to be visible from any public area, except with the prior written permission of the Responsible Authority.

This permit will expire if one of the following circumstances applies:
- (a) The use is not commenced within two (2) years of the date of this permit.
- (b) If the use is commenced the use is then discontinued for a period of two (2) years.
- (c) The development is not started within two (2) years of the date of this permit.
- (d) The development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The undertaking set out in order 4 may be included as a permit note.

[1] We have considered all submissions although we do not recite all of the contents in these reasons.

[2] From February 2012, the VCGR role of administering and regulating the gaming industry was incorporated into the VCGLR - Victorian Commission for Gaming and Liquor Regulation.

[3] In the Matter of the Bay and Bridge Hotel, VCGR (3 February 2012)

[4] Ms Bakogiannis was joined as a party under Section 60 of the Victorian Civil and Administrative Tribunal Act 1998

[5] Bay Street properties 145-415 (odd numbers) (excluding land at the rear of 159-163 (odd numbers) and at the rear of 181), 178-312 (even numbers) (excluding land at the rear of 202), 350-372 (even numbers), 456 and 462 Bay St; 81, 83, 82-86 (even numbers) Raglan St; 78-134 (even numbers) Heath St; 112-120 (even numbers) and 121-125 (odd numbers) Bridge St; 8, 14 and 30 Lalor St; 96-100 (even numbers) Spring St North; 101 Spring St South; 1-27 (odd numbers) Crockford St.

[11] The provisions referred to are now in clause 10.

[13] Destination Gaming - evaluating the benefits for Victoria - Department of Justice, Victoria May 2008

[14] [2005] VCAT 2606 paragraph 39

[15] For example nightclubs and taverns

[17] Tan v Kingston CC (includes Summary ) (Red Dot) [2011] VCAT 470

Environment Act 1987

Gambling Regulations Act 2003

Gambling Regulation Act 2003

Bay & Bridge Hotel Pty Ltd v Port Phillip CC & Ors [2012] VCAT 1343 (28 August 2012)

Bells Hotel Pty Ltd v Port Phillip CC [2010] VCAT 569:

Branbeau Pty Ltd v Victorian Commission for Gambling Regulation & Shire of Baw Baw [2005] VCAT 2606.

Tan v Kingston CC (includes Summary ) (Red Dot) [2011] VCAT 470

Bright Newbay Pty Ltd v Bayside CC [2010] VCAT 1347

Bay & Bridge Hotel Pty Ltd v Port Phillip CC & Ors [2012] VCAT 1343

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Bay & Bridge Hotel Pty Ltd v Port Phillip CC & Ors [2012] VCAT 1343 (28 August 2012)