Section 77 of the Planning & Environment Act 1987; Darebin Planning Scheme; Heritage Overlay (HO 36); Buildings and works; installation and use of gaming machines; consideration of economic and social impact; acceptability of location of premises.

Victorian Commission for Gambling and Liquor Regulation

Darebin CC v Victorian Commission for Gambling and Liquor Regulation & Anor (Includes Summary (Red Dot) [2013] VCAT 1389

1. In Proceeding No. P3619/2012 pursuant to Section 127 and Clause 64 of Schedule 1 Victorian Civil and Administrative Tribunal Act 1998 Plan No. GVH 1207/TP01.01 Rev. P11 is substituted for the ground floor plan and site plan which accompanied the application for permit.
2. In Proceeding No. B218/2012 the decision of the Victorian Commission for Gambling and Liquor Regulation is affirmed. Additional conditions of approval are set out in Appendix A to this decision.
3. In Proceeding No. P3619/2012 the decision of the Responsible Authority is set aside. A permit is granted and directed to be issued for alterations and additions including exterior painting to the Grandview Hotel, 429 Heidelberg Road, Fairfield, together with the installation of 50 electronic gaming machines, all generally in accordance with the plans tendered at the VCAT hearing being Plans No. GVH 1207/ECD 01.01 Rev. P8, 01.02 Rev P5, 01.03 Rev P2, 01.01 Rev. P11, 01.02 Rev P9 and 01.03 Rev. P3 subject to the conditions set out in Appendix B to this decision.

For Victorian Commission for Gambling and Liquor Regulation

Ms Susan Brennan, of Counsel with Ms Sarah Porrit of Counsel instructed by Bazzani, Scully, Priddle solicitors.

Ms Brennan and Ms Porrit called the following expert witnesses:

• Ms Colleen Peterson, planner, Ratio Consultants
• Ms Sophie Jordan, planner, Sophie Jordan Consulting
• Mr Rhys Quick, economist/planner, Urbis Consulting
• Mr Timothy Marks, acoustic engineer, Marshall Day Acoustics.
• Mr Leigh Barrett, gaming consultant.
• Mr Tony Hood, chartered accountant, William Buck (Vic) Pty Ltd
• Mr Gareth Rogers, community researcher, IPSOS ASI Australia
• Mr Ian Macklin, architectural designer, TM Design Group.

• Mr Anthony Spielvogel, of Dominion Hotel Group and a director of the applicant.
• Mr Daniel el-Fahkri, a director of the applicant and of the hotel licensee.

Witness statements were filed by Mr Richard Whitehorse, gaming consultant, Mr Bruce Weddington, gaming consultant, Mr Stephen Hunt, traffic engineer and Mr Bryce Rayworth, heritage architect, but they were not called upon to give evidence or to be cross examined.

Ms Louise Hicks, of Counsel, instructed by Maddocks Lawyers

• Ms Bonny Rosen, social planner, Rosen Consulting
• Ms Karen Linden, community researcher, of Darebin City Council.

The witness statement of Dr Susan Rennie and her partly-given evidence were withdrawn.

A written statement was filed by Mr Colin Gill, forensic accountant, but he was not called upon to give evidence or to be cross examined.

A written submission opposing the grant of a planning permit was filed on behalf of the Yarra City Council and was taken into consideration by the Tribunal.

Proceeding No B218/2012. The approval of the premises as suitable for the installation of 50 electronic gaming machines.

Proceeding No P3619/2012. Substantial reconfiguration and renovation of the interior of the Grandview Hotel, particularly the ground floor. Cleaning, restoration and repainting of the exterior, and installation of 50 electronic gaming machines (EGMs).

A new gaming room to accommodate 50 EGMs on the western boundary of the site. The room will be fully internalised with no direct access from the street but will have access to an adjoining terrace where smoking will be permitted.

A larger bistro (to accommodate 150 patrons) on the Station Street side of the building with access from the car park and Station Street. The bistro will have access to a non-smoking courtyard area with a retractable awning. A new kitchen is to be incorporated adjoining the bottle shop for easier service access.

A new lounge bar and sports bar with TAB facility on the Heidelberg Road frontage with additional access from Station Street.

Function rooms on the first floor will also be upgraded and serviced directly by a new lift to be installed near the Heidelberg Road frontage. The lift will also provide access to the second floor accommodation.

Current second floor accommodation will not be affected.

B218/2012, application for review under Section 3.3.14 Gambling Regulation Act 2003

Application P3619/2012, application for review under Section 77 Planning and Environment Act 1987.

Development Contributions Overlay - Schedule 1 (not triggered by the application)

Public Acquisition Overlay - Schedule 1 extending across Heidelberg Road frontage

Clause 33.03-4 (IN3) - permit required for buildings and works

Clause 43.01-1 (HO) - permit required for demolition, alterations, buildings and works including painting.

Clause 45.01 (PAO) - permit required for buildings and works

Clause 52.28 ( Gaming) - permit required for the installation of gaming machines

Clause 63 (Existing Uses) - permit required for buildings and works

Clauses 10, 15.01-1, 15.03, 17.01, 19.03-1, 21.02, 21.05-3, 21.05-4 and 65

The Grandview Hotel is located on the north-west corner of the intersection of Heidelberg Road and Station Street, Fairfield. The main three-storey building represents Victorian 'boom-style' architecture and incorporates a prominent corner tower feature. To the rear is a carpark which can accommodate 42 cars.

The site is roughly L-shaped with a frontage to Heidelberg Road of 21.5 metres and to Station Street of 64 metres with an overall site area of 1907 sq.m.

The ground floor accommodates a bistro for about 80 patrons with access to a beer garden on the western boundary, a TAB facility and a large bar with smoking terrace. A drive-through bottle shop has access from Station Street.

The first floor incorporates two small function rooms which are currently not in use together with some residential accommodation. The top floor incorporates a number of rooms which are rented to long-term residents.

The hotel is currently licensed to accommodate up to 780 patrons.

As its name implies, Heidelberg Road is a main arterial road linking the suburbs of Heidelberg and areas to the north of the city via Hoddle Street and Queens Parade. The stretch adjoining the Grandview Hotel includes a range of what might be described as restricted retail uses, showrooms, light commercial premises including a vacant car yard, highway orientated businesses and two service stations. A permit has recently been issued for a Hungry Jacks fast food premises on the site of the Shell service station.

To the south, across Heidelberg Road, Station Street ends in a T-junction with Park Crescent which backs on to the Yarra River. The small enclave of residential properties between Heidelberg Road and the river lie within the City of Yarra.

To the north along Station Street properties are primarily residential in nature until the Fairfield Shopping Centre is reached some 500 metres to the north. The centre includes a wide range of shops and community services and the Fairfield railway station adjoins the southern boundary of the centre.

The Fairfield and Alphington RSL, the nearest current gaming venue, is on Railway Parade close to station and the shopping centre. This venue has 30 gaming machines.

Due to the alignment of Heidelberg Road, the Yarra River and Darebin Creek, the hotel lies close to the boundaries of four municipalities, Darebin, Yarra, Banyule and Boroondara.

An unaccompanied inspection of the area was made on 14 July 2013

Ocean Grove Bowling Club v Victorian Commission for Gaming Regulation [2006]VCAT 1921 (26 September 2006)

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd & Anor [2008] VCSA 45 ( 19 March 2008)

Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation & Anor (Occupational and Business Regulation) [2009] VCAT 2275 (12 November 2009)

Mt Alexander Shire Council v Victorian Commission for Gambling and Liquor Regulation Ltd (Red Dot) [2013] VCAT 101(14 February 2013)

Branbeau Pty Ltd v Victorian Commission for Gambling and Liquor Regulation (Occupational and Business) [2005] VCAT 2606 (16 December 2005)

Whittlesea CC v George Adams Pty Ltd [2011] VCAT 534 (7 April 2011)

Francis Hotel Pty Ltd v Melbourne CC (includes Summary) (Red Dot) [2012] VCAT 1896 (12 December 2012)

Bright Newbay Pty Ltd v Bayside CC [2010] VCAT 1347 (11 August 2010)

Pink Hills Hotel Pty Ltd v Yarra Ranges SC & Ors [2013] VCAT 1055 (24 June 2013)

Melbourne City Council v Kingfish Victoria Pty Ltd (2013) VCAT 371 (Exchange Hotel Case)

1. The Grandview Hotel is an imposing three storey building in the Victorian Italianate style located at the intersection of two busy roads, Heidelberg Road and Station Street, in Fairfield. It has served the local community and workforce for 125 years. It is the only public house in Fairfield. It is deserving of that much misused modern colloquialism-iconic.
2. The hotel is owned and operated by interests associated with the el-Fahkri family, long standing residents of Northcote. In recent years it has fallen into disrepair and currently presents a somewhat shabby appearance both externally and internally. As with any large 19th century building the cost of maintenance is high. The return from the hotel has been insufficient to defray this cost.
3. The present owners and occupiers of the hotel are proposing a substantial renovation project, details of which are set out above. An important element of the project, and the element which is central to these proceedings, is the establishment of a gaming room with 50 electronic gaming machines (EGMs). The cost of the project is estimated to be $2.9 million.
4. We were informed that the cost of the project could not be afforded without revenue from the gaming machines and entering into a joint venture agreement with the Dominion Hotel Group, an arrangement which is contingent upon approval of the gaming machines. The Dominion Hotel Group owns and manages a number of hotels with gaming rooms attached.
5. We have no reason to doubt this claim. Evidence was called from Mr Anthony Hood, a chartered accountant. He stated that without the renovation project the hotel was not a viable long term business operation. It would in due course be forced to close and the site would be redeveloped, presumably for apartments or some highway orientated use similar to adjacent uses in Heidelberg Road. The renovation would enable the hotel to survive, but the cost or debt could not be sustained without income from the EGMs, which he estimated at $3.9 million per annum based on the Richard Whitehouse model. This would result in a net income from gaming of $1.4 million in the 2015 financial year. With the gaming revenue the hotel could be a viable business returning a net profit margin of 9.6 percent, slightly above the average for hotels which is 7.4 percent.
6. The decision whether to approve the 50 gaming machines must therefore be made in an economic scenario in which if the renovations proceed the local community would enjoy the benefit of an improved entertainment and recreational facility. On the other hand if the renovations do not proceed the community will not simply be left with the present somewhat run down hotel. The hotel will likely close in due course and the facility will be lost to the community altogether. This loss would be exacerbated by the fact that there is no other hotel conveniently located to serve the local community.

1. There are two approvals required for the installation of gaming machines, and they give rise to two proceedings before the Tribunal.
2. Proceeding No. B218/2012 is an application by the Darebin City Council under s.3.3.14 Gambling Regulation Act 2003 (the GR Act) to review the decision of the Victorian Commission for Gambling and Liquor Regulation (VCGLR) to approve the Grandview Hotel as premises suitable for gaming with permission for 50 EGMs.
3. The grounds for review are as follows.

The Commission erred in coming to the view that the economic and social impact of granting the application to approve the subject premises as suitable for electronic gaming machines will not be detrimental to the well-being of the community of the City of Darebin.

The commission erred in finding that granting this approval would bring a net social and economic benefit to the municipality

The Commission ought to have come to the view that the negative aspects of the proposal, namely, the likely harm to be suffered by the community of the City of Darebin by the increase in numbers of electronic gaming machines, outweigh the benefits of the proposal.

In exercise of its general discretion, the Commission ought to have refused the application.

1. Proceeding No. P3619/2012 is an application by Grandview Hotel Victoria Pty Ltd under s.77 Planning and Environment Act 1987 (the PE Act) to review the refusal of the Darebin City Council to grant a permit under the Darebin Planning Scheme for the proposed hotel renovation and the installation and use of gaming machines at the Grandview Hotel.
2. The Council's grounds of refusal were as follows:

The proposed electronic gaming machines would be contrary to the purpose of clause 52.28(Gaming) of the Darebin Planning Scheme, in that they would be inappropriately located, and the impacts of their location would adversely affect the social and economic well-being of the community of the city of Darebin and adjoining municipalities.

The proposed electronic gaming machines would not be compatible with the adjoining and nearby land uses as per the decision guidelines of Clause 52.28 of the Darebin Planning Scheme, having regard to the proximity of sensitive land uses (in addition to another electronic gaming machine venue) and areas of disadvantage.

The proposed electronic gaming machines will have a detrimental social and economic impact on the area and will not achieve a net community benefit in accordance with clauses 10.02, 10.04, and 17.01 of the Darebin planning Scheme.

An increase in the number of electronic gaming machines in the City of Darebin, their proposed hours and the number of machines per person is excessive and unreasonable.

1. The two proceedings arise under different legislation and raise different issues for determination. The evidence adduced by the parties covered the relevant issues in both proceedings and so they were conveniently heard together. However, to avoid confusing the issues in the respective proceedings it is appropriate to deal with them separately.

1. The considerations relevant to a decision to approve premises as suitable for gaming are set out in s.3.3.7 GR Act. The section provides as follows:

3.3.7 Matters to be considered in determining applications

(1) The Commission must not grant an application for approval of premises as suitable for gaming unless satisfied that -

(a) the applicant has authority to make the application in respect of the premises; and

(b) the premises are, or on the completion of building works will be, suitable for the management and operation of gaming machines; and

(c) the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located.

(2) In particular, the Commission must consider whether the size, layout and facilities of the premises are or will be suitable.

(3) The Commission must also consider any submission made by the relevant responsible authority under section 3.3.6.

(5) The Commission cannot approve an area as a gaming machine area unless that area is wholly indoors.

1. It was not contested that the application satisfied subsection (1)(a) and (b) and sub-section 5 above. The main focus of consideration in this case, as indeed with most cases arising under the GR Act, is subsection (1)(c) which sets out what has become known as the "net detriment test".
2. It is to be noted that under the net detriment test the well-being to be considered is that of the community of the municipal district in which the premises are located, which in this case is the municipality of Darebin. This might be thought to introduce some artificiality into the test where, as in this case, the subject premises lie on the municipal boundary with Yarra City Council and very close to the municipal boundaries with Boroondara and Banyule.
3. However, s.3.3.6 GR Act empowers the relevant responsible authority, in this case the Darebin City Council, to make a submission to the VCGLR on an application for approval of premises:

(a) addressing the economic and social impact of the proposal for approval on the well-being of the community of the municipal district in which the premises are located; and

(b) taking into account the impact of the proposal on surrounding municipal districts.

Under s.3.3.7(3) a submission by the responsible authority must be considered by the VCGLR.

1. So, even though the economic and social impact that may be addressed under s.3.3.6(a) is the same as specified in s.3.3.7(1)(c) GR Act, the fact that the responsible authority's submission may also deal with "the impact of the proposal on surrounding municipalities" means that even if the net detriment test is satisfied there remains an overriding discretion to approve or refuse approval having regard to the impact on surrounding municipalities. The nature of that impact is not qualified or restricted in any way, so there is no reason to exclude economic and social impacts. Curiously, economic and social impacts detrimental to a community outside the relevant municipal district can be considered only if the responsible authority of that municipal district chooses to make a submission under s.3.3.6 GR Act. In this case, the City of Yarra filed a written submission with the Tribunal and the City of Boroondara was represented at the hearing by Mr Kerr, both directed to the question of social impact under clause 52.28 of the Darebin Planning Scheme.
2. The exercise of the overriding discretion may also be influenced by other factors such as broad policy considerations drawn from the Act itself or other government pronouncements such as the Minister's second reading speech when introducing the Bill to Parliament (Ocean Grove Bowling Club v Victorian Commission for Gaming Regulation[2] per Morris J at para 32; and Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[3] per Court of Appeal at para 7 (the Romsey Hotel case)).
3. In making its decision the Tribunal must also give weight to the VCGLR's decision. In the Romsey Hotel case the Court of Appeal said (at para 53):

[53] Although the review proceeding was a hearing de novo, the Commission's reasons should have been given considerable weight. As we noted earlier, the Commission has the administrative responsibility for the GR Act. It has both specialist expertise and unique experience in dealing with the issues which arise under the Act. So much was acknowledged by Morris J in Branbeau.

But as Dep. Pres. Dwyer remarked in Mt Alexander Shire Council v Victorian Commission for Gambling and Liquor Regulation[4] (the Castlemaine case) "'considerable weight' is not to be equated with overriding weight."

1. The Romsey Hotel case provides strong guidance as to how the net detriment test is to be applied. The Court of Appeal said (at paras 42-44):

[42] The power under the GR Act to approve premises as suitable for gaming is exercisable only if the decision-maker is satisfied that the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located.

The GR Act does not specify the matters which the decision maker must consider in deciding whether this 'no net detriment' test is satisfied. (There is an express requirement to consider any submission made by the responsible authority concerning the economic and social impact of the proposal, but this takes the matter no further). The identification of the matters which the decision-maker is bound to consider is, accordingly, a matter of implication from the subject-matter, scope and purpose of the Act.

[43] In the present case, the statutory signposts are provided by the test itself. The decision-maker must consider:

• The likely economic impacts of approval;
• The likely social impacts of approval; and
• The net effect of those impacts on the well-being of the relevant community.

'Social impact' means the impact on the society or community (or some part or parts of it) in which the gaming machines are proposed to be located. The 'well-being' of a community is a very broad concept. Dictionary definitions indicate that well-being is to be measured (at least) by the extent to which the community is healthy, happy, contented and/or prosperous.

[44] It follows, in our view, that if the approval of gaming at particular premises is likely to cause unhappiness or discontent in that community (or any part or parts of it), that consequence is a 'social impact of approval' which will be 'detrimental to the well-being of the community'. It will be detrimental to well-being because it diminishes the citizens' sense of happiness with, or contentment in, their community. Evidence tending to show a detriment of that kind as the likely or probable consequence of approval must, therefore, be taken into account by the decision-maker in determining whether the statutory 'no net detriment' test is satisfied. (The weight to be given to the evidence is, of course, a matter for the decision-maker, and will depend upon the nature, extent and cogency of the evidence.) It follows that the Commission was clearly correct when it said -

[In] considering the issue of net social and economic detriment the Commission must be influenced by its conclusion as to the effect which the granting of the application would have upon this community.

1. It follows from what the Court of Appeal said that the "net detriment" test is a composite test, and this was confirmed by Bell J in Romsey Hotel Pty Ltd v Victorian Commission for Gambling and Liquor Regulation[5]. So it is not necessary for there to be no net economic impact and no net social impact. The two types of impact must be weighed together. Indeed many impacts may be of both an economic and social nature and may be taken into account under both headings. Given that the test cannot be reduced to a quantitative formula the risk of double counting does not arise.

1. In the Castlemaine case the Tribunal said (at para 56)

[56] The most obvious way to follow the 'statutory signposts' referred to in Romsey is to first establish the positive and negative impacts of approval - i.e. separately establish the likely economic benefits and disbenefits of the proposal and the social benefits and disbenefits. Surprisingly, this does not always occur.

[60] I note that in Royal Benalla Hotel v Victorian Commission for Gambling Regulation, a decision delivered since the hearing in this case, the Commission's counsel had provided the Tribunal in that case with a table of likely economic and social benefits and disbenefits, and with some comments relevant to the relative weight to be given to particular factors. The table is replicated in that Tribunal's decision. It is a useful way of transparently dealing with the 'no net detriment' test, and might perhaps be considered for wider application. Indeed, it would be beneficial if all parties in a proceeding where the 'no net detriment' test is in issue provided a clear list of the likely economic and social benefits and disbenefits that each party relied upon - if not at the Commission level, then certainly at the Tribunal. It would force parties to properly identify relevant factors, isolate the substantive areas of disagreement, and to direct their evidence to the determinative issues arising from the 'no net detriment' test. It also allows the Tribunal to offer greater transparency in its decision in being seen to deal with each of these factors, albeit that the relevance and weight it attaches to particular factors may differ from the parties.

1. We propose to adopt this approach in this case. We received submissions from all parties in this form and have given these due consideration . From our consideration of these tables and the other evidence and submissions made to us we set out hereunder a matrix which lists the economic and social benefits and disbenefits, both actual and alleged, and our assessment of their importance. As mentioned, where the same factor is listed as both an economic and social factor we have weighed it only once. We have given particular attention to the primary subject of debate between the parties, which is the weight to be given to the likelihood that problem gambling in the municipality, and the trade area of the hotel, will increase as the result of the installation of 50 EGMs at the Grandview Hotel.
2. The table is, by its very nature, a summary and the comments are amplified as appropriate in the following sections of these reasons.

An iconic feature of the local scene for 125 years. The only public house in Fairfield. Gaming investment will ensure its survival although direct benefit restricted to users.

Building is a fine example of its type and a local landmark. Retention is a clear heritage benefit.

New and enhanced entertainment facilities for the community and visitors.

Hotel currently tired and badly in need of renovation and repair. New and upgraded facilities, including restoration of function rooms on first floor, will provide local community with a much improved hotel. Introduction of gaming room will provide additional recreational facility.

Potential to assist growth of 'feature nights' which are currently an important 'attractor' to the hotel Consistent with government policy on competition. Offset to some extent by potential for increased problem gambling and by loss of non-gaming venue.

$100,000 annual community contribution in addition to existing $20,000 annual contribution made by hotel to local groups.

Direct benefit to local community if administered effectively and transparently. Small proportion of gambling revenue.

Experienced management including enhanced RSG Package

RSG code of practice required by legislation. Dominion Hotels an experienced manager, commitment for increased RSG package an advantage. Some restriction in hours of gaming room. However depends on successful implementation.

Increased gaming opportunities for those interested in gaming

Consistent with government policy but benefit limited to players and offset by potential increase in problem gambling

Always present. Darebin has high ratio of EGMs per head but trade area encompasses only small part of municipality. Some additional costs to local support services but potential limited due to higher socio-economic status for trade area, limited sensitive uses nearby, existing EGMs in more 'convenient ' locations and enhanced RGG package.

Survey shows strong support for individual facilities but negative overall attitude when gaming machine involvement indicated. Both survey techniques have inbuilt deficiencies. Responses of general rather than direct applicability. Other direct community objection very limited.

Other non-gaming venues do exist but this will mean all major hotels are gaming venues.

Evidence poor. Potential appears limited. No link established between uses/clients and risk of problem gambling.

Presence on main road aids accessibility. Offset by lack of 'convenience shopping' in adjoining properties. Limited public transport and other competing gaming venues in much more convenient locations.

Limited loss with some residents able to stay on after the renovation or being assisted to relocate by hotel management.

Redevelopment expenditure of $2.9 million to give local economic stimulus during construction phase

Increase in gaming expenditure (not attributable to problem gamblers)

Positive benefit to the specific venue with potential flow-on effects to local economy. Potentially offset by losses from other local venues.

Construction employment limited in extent and time. 13 EFT jobs after completion of project although no guarantee that locals will be employed.

Increase in complementary activity (e.g supply contracts)

Some increase possible but no guarantee of local contracts.

Increased revenue to local area. (retention of escape gaming expenditure)

A figure of $2.2 - $2.7m agreed but this is less than 2 percent of Darebin expenditure on EGMs. Again offset by potential loss of revenue by existing local venues and any costs of dealing with problem gambling.

Amount is likely to be small in proportion to the total spent on gaming in Darebin and adjoining areas, given the trade area is across municipal boundaries. Could possibly result in limited job loss at other venues although not possible to quantify. In line with Government policy on competition.

Positive but potentially diluted by loss of revenue from other venues. Offset to small extent by cost of problem gambling.

$100,000 additional cash contribution to local groups in addition to existing $20,000 annual contribution by hotel to local groups

Direct benefit to local community if administered effectively and transparently. Small proportion of gambling revenue. No evidence that a proportion will be directed to problem gambling.

Potential gaming revenue represents less than 0.12 per cent of Darebin retail expenditure. Impact on any one trader likely to be insignificant. Possible offset by increased visitors.

1. As mentioned above, if the proposed renovations do not proceed the community will not simply be left with a run down hotel badly in need of maintenance and repair. The probability is that the local community will be left with no hotel at all. The survival of the hotel is a significant benefit. However, in determining the net detriment balance the Tribunal has discounted this factor to "moderate" to allow for the possibility that the hotel may remain in operation even if there is no gaming and the renovations do not proceed.

1. The Tribunal in Branbeau indicated that venue architecture may have some relevance to minimising the risk of problem gambling. In that context Ms Brennan submitted that the Grandview provided a much more responsible design than, for example, the Albion Charles Hotel or the Harp of Erin Hotel where there is direct entry to the gaming room from the Street.
2. Mr Leigh Barrett's evidence was that the proposed design was a good model in that it provided:
   • a fully internalised gaming room with entry only through the bistro or other functioning areas of the hotel.
   • a gaming room layout which provides for patron surveillance by gaming staff
   • gaming room hours of operation less than that of the hotel
   • a Management Code which provides for measures in addition to the applicable Code of Practice. These include:
     • a commitment to 2 staff present in the gaming room at all times
     • the provision of daily reports from gaming room staff to the hotel management
     • prohibition on staff gambling at the hotel
     • engagement with the Darebin Task Force and Problem Gambling Services.
3. While we accept that there is a demonstration of a responsible approach, the proof will be in the implementation of such measures. We do not intend to put any particular weight on this issue but support the earlier comments of Deputy President Dwyer in the Castlemaine case.

I might say that I expect nothing less from a gaming premises applicant such as MHS - i.e. the implementation of best practice RSG guidelines, self-exclusion programs, and other responsible gambling initiatives, and with provision for continuous review and improvement. That must be taken as a given, such that it is not a social benefit unique to this proposal but an absolute necessity in all proposals. A requirement for a responsible gambling code of conduct (to be approved by the Commission) was also introduced by the Gambling Legislation (Problem Gambling and Other Measures) Act 2007.

1. The Council's opposition to the proposal is based primarily upon its concern that the installation of gaming machines at the Grandview Hotel would lead to an increase in problem gambling. This was the major subject of debate between the parties, and in deference to the Council's focus on this issue we deal with it in some detail.
2. The Council's case was built around the following key assertions
   • That the location of the Grandview Hotel should be considered as a 'convenient' location and therefore potentially attractive to problem gamblers.
   • That the socio-economic profile of the community of the City of Darebin was in the lower quartiles of the SEIFA scale ( Socio Economic Index for Areas) and there was general acceptance that EGMs should not be located in such communities where the incidence of problem gambling is higher.
   • That the hotel is close to a number of 'sensitive' land uses and the long-term residents of the hotel would be subject to increased risk of harm from problem gambling.
   • That little weight should be given to the management of the hotel as providing any mitigation of its attraction as a venue to problem gamblers.
3. Ms Hicks submitted that in the light of these factors

Council asserts that this application poses a real and considerable risk of an increase in problem gambling to the City of Darebin and in particular to the vulnerable communities proximate and in the hotel.

1. In Branbeau Pty Ltd v Victorian Commission for Gambling and Liquor Regulation[6] the Tribunal attempted to set decisions regarding the installation of EGMs into a wider context.

When it comes to problem gambling there is a risk that too much faith can be placed in decisions to approve particular venues as suitable for gaming, on the theory that such decisions will have a substantial impact on the incidence and seriousness of the problem. I am sure that it will never be possible to eliminate problem gambling - unless gambling itself is eliminated. The task of minimising problem gambling requires a multi-dimensional approach. It goes well beyond the approval of venues or the regulation of the number of gaming machines. It is likely to include education, venue architecture, control over operating hours, the availability of electronic teller machines, the method of paying prizes, the provision of support services, community partnerships, advertising control and government advertising designed to discourage problem gambling

1. In the local context the need for a multi-dimensional approach is supported by the Banyule Nillumbik Primary Care Alliance (BNPCA) in the Health Promotion Guide for Problem Gambling Prevention in Melbourne's North. (the BNPCA Guide) which in Figure 6 identifies the following as potentially contributing to the risk of problem gambling:

• Government behaviour
• Industry behaviour
• Accessibility
• Venue features

• Games features
• Gambler characteristics and behaviour
• Help services
• Information

1. The study suggests that, taking the community as a whole, there is some evidence that groups of people more vulnerable to gambling include
   • those with lower education and income levels
   • those in lower skilled occupations and shift workers
   • those who live in areas with a high concentration of EGMs
   • those who live in areas with fewer alternative recreation and social opportunities.

1. The submissions and evidence of all parties demonstrated broad agreement on the size of the main trade area of the hotel. Mr Quick's evidence identified primary, secondary and tertiary trade areas in Map 2.1. of his Statement of Evidence. It indicates that the primary trade area comes from the suburbs of Alphington/Fairfield, Clifton Hill and Kew with the secondary and tertiary areas spreading northwards and eastwards into Darebin and Banyule. Ms Peterson reported the findings of a postcode survey of the normal residential address of patrons of the hotel bistro over a period of two weeks. The postcode survey showed that 65 percent of the trade comes from three postcodes, 3078 (Alphington Fairfield), 3070 (Northcote) and 3072 (Preston), with the remainder spread across a range of postcodes most of which are outside the City of Darebin. Mr Brown, who appearedfor the Victorian Commission for Gambling and Liquor Regulation, submitted that a primary trade area with a radius of 2.5 km was consistent with previous findings of the Commission.

1. There is no dispute that the City of Darebin has one of the highest concentrations of EGMs in metropolitan Melbourne with a density of 6.71 EGMs per 1000 population based on current attached entitlements. This compares with metropolitan Melbourne which has 5.71.
2. The total number of existing EGMs is 787, significantly lower than the municipal 'cap' of 963 potential EGMs. A significant reduction in numbers occurred following the 2010 gaming auction.
3. Council is opposed to any further increase in EGMs within its boundaries. While this is a legitimate concern, it must be recognised that the GR Act recognises gaming as a legitimate activity and that it is a pastime enjoyed by a significant proportion of the population.
4. The map on p 35 of Mr Quick's evidence which shows that within the 2.5km trade area of the hotel there is only one gaming venue - the Fairfield and Alphington RSL. The Albion Charles Hotel, the Croxton Park Hotel, the Ivanhoe Hotel and the Furlan Club are just outside that radius. In Table 3.2 Mr Quick shows that the Northcote SLA has four venues with 175 EGMs out of a total of 14 venues with 787 EGMs for the city as a whole.
5. This does not mean that we should seek to 'fill the gap' but it does show that the location of this hotel lies in a trade area where current densities are low
6. Given that the current 'cap' exceeds the existing supply by a substantial margin, any specific application must be considered on its individual merits and the risks associated with problem gambling considered in conjunction with other benefits or disbenefits of the proposal to obtain a balanced decision.
7. As we have illustrated above, all parties acknowledged that the trade area of the hotel included parts of four municipalities, Darebin, Banyule, Boroondara and Yarra with less than one-third of the trade area within Darebin itself. Consequently any impact or risk will be shared between those municipalities.
8. We now turn to the other factors affecting the level of risk.

1. In a number of cases the Tribunal has generally accepted the proposition put forward in the Castlemaine case:

that problem gambling is more likely to arise, albeit without clear correlation, in areas of socio-economic disadvantage,

and this was the position put by all expert witnesses in this case.

1. When we come to consider the socio-economic data we find considerable differences between the profile of the City of Darebin as a whole and that of the postcodes/suburbs which make up the trade area of the hotel. The city has been identified, relative to all Victorian municipalities, as having a high level of disadvantage whereas the profile of the trade area of the hotel demonstrates significantly lower levels of disadvantage.
2. All parties used the SEIFA Index of Relative Socio-Economic Disadvantage to illustrate the differences in the profile of the municipality and the trade area of the hotel.
3. Mr Quick's evidence, which was supported by Ms Peterson, shows that the median score for Victorian municipalities is 993 (where scores below 1000 show increasing levels of disadvantage and scores above 1000 show decreasing levels of disadvantage). The City of Darebin has a score of 990 and is ranked 39th out of 79 Victorian municipalities (where 1st = a high level of disadvantage). This indicates that it is not significantly more or less disadvantaged than Victoria as a whole. By comparison the three other municipalities which form part of the trade area, Boroondara, Banyule and Yarra are ranked 79, 68 and 58 respectively.
4. When Statistical Local Areas (SLAs) are considered the difference between the northern part of the city and the south is marked. The Northcote SLA is ranked 156th out of 207 SLAs, (where 1st = high disadvantage and 207th = low disadvantage) whereas the Preston SLA is ranked 43.
5. A more accurate comparison is given by looking at postcodes. Ms Peterson, using the postcodes identified in the bistro survey as providing more than 2 percent of the patrons, demonstrated that only two postcodes, Preston (3072 with 8 percent of the trade) and Reservoir (3073 with 2 percent of the trade) had SEIFA scores of less than 1000. The postcodes of Fairfield (3078), Northcote (3072) and Heidelberg (3084), which together made up over 65 percent of the bistro trade, had SEIFA scores of 1068, 1047 and 1081 respectively.
6. In paragraphs 95-96 of her key findings in Section 4.3 of her statement of evidence Ms Rosen describes various groups which she suggested were at low, moderate or high risk of problem gambling. She concludes in paragraph 97 that, overall, the following groups of people are at risk of problem gambling
   • Young people ages 18-24
   • Males aged 25-49, 50-64, and females ages 25-64
   • Older people and retirees aged 65 +.

It is to be noted that this 'group' embraces the entire adult population of the State, which raises a question as to its probative value.

1. She submits in paragraph 99, that relative to Greater Melbourne as a whole the City of Darebin displays a higher proportion of those groups which she says are at risk of problem gambling, namely
   • people employed part-time or unemployed
   • people with an individual income in the medium lowest quartile and households in the medium highest quartile
   • high level of socio-economic disadvantage (undefined)
   • high proportion of seniors aged 70+
   • higher proportion of recent arrivals, people born in non-English speaking countries, people with low proficiency in English

• low levels of people who volunteer or participate in community engagement.

1. By contrast, in paragraph 100 she points out that the profile of Northcote SLA (which forms the main component of the hotel trade area) shows a low proportion of groups which would potentially be at risk of problem gambling, namely
   • Aboriginal or Torres Strait Islanders
   • people aged 18-24
   • people aged 60-84
   • people who are unemployed
   • technicians, trade workers
   • labourers and machinery operators and drivers.
   • socio-economic disadvantage (undefined)
2. She concludes in paragraph 103 that

This analysis indicates that the subject site is located in an area that as a whole displays relatively low proportions of disadvantage and has low concentrations of groups that are typically at risk of problem gambling.

1. She qualifies this finding with the additional comment that

However that analysis indicates that there is some vulnerability in the community due to pockets of disadvantage and high proportions of people who are vulnerable due to their occupation, proficiency in English, ethnicity and cultural background.

1. The Tribunal notes that in Figure 3 - Location of the subject site in relation to areas of disadvantage, she has used a radius of 5km to identify the relevant area because this was the threshold identified by Council in its request for further information and the threshold that includes venues from which expenditure is expected to be transferred. That radius includes areas such as West Heidelberg, an area of significant disadvantage but which is well outside the primary trade area of the hotel and much closer to other gaming venues.
2. We find that, when considered together, there is actually a high level of agreement in the evidence of the experts that the hotel and its principal trade area are located in an area of low disadvantage, an area where any potential correlation with the incidence of problem gambling is likely to be low.

Proximity of sensitive uses and impact on long term residents of the hotel

1. What is a 'sensitive use'? This is an issue which has been presented to Tribunals on many occasions but as yet there is no significant evidence which can assist in identifying uses where there is a clear relationship with problem gambling.
2. Council, through the expert evidence of Ms Rosen, identified a list of what it considered to be 'sensitive uses' close to the hotel, including the following within 400 metres. Those in italics are closer to Fairfield-Alphington RSL than the Grandview Hotel:
   • Fairfield railway station
   • Two chiropractic clinics
     • Fairfield Chiropractic Clinic, 436 Heidelberg Road
     • Classic Chiropractic, 2/27 Railway Place
   • Marjorie Oke Rooming House, 43 Station Street
   • Five mental health services
     • Melbourne Holistic Health Group, 35 Station Street
     • Fairfield Psychology, 5 Railway Place
     • Perinatal Psychology, 5 Railway Place
     • Lisa Fettling Counselling Service, 62 Station Street
     • Gestalt Therapy, 333 Heidelberg Road
     • Grandal accommodation house located on the corner of Park Crescent and Arthur Street

Together with an additional list of uses within 800 metres

• Mental Illness Fellowship, 276 Heidelberg Road
• St Anthony's School
• Malakite Church and youth centre, 40 Gillies Street,
• Fairfield Shopping Strip (including kindergarten, library, community centre, maternal and child health centre, Holmes and Agg St older persons units)
• Elizabeth House Aboriginal Women's Refuge
• Fairfield Primary School
• Northern Melbourne Institute of TAFE.

1. As with the _Laurimar[7]_case no evidence was provided to establish any link between the location of primary schools and potential increases in problem gambling. Even if there was, in this case both primary schools are well to the north of the site with the Fairfield Primary School located on the north side of the railway and much closer to the Fairfield and Alphington RSL.
2. The sort of uses identified by Council are, on the whole, community or medical-related services that are common throughout residential areas in the metropolitan area.
3. Ms Rosen's evidence was that

The subject site is located within close proximity to a number of mental health services and the Station Street Shopping precinct which is used by people residing in social housing and are experiencing a number of health and well-being issues. Problem gambling is often associated with other mental and physical issues and risky lifestyles behaviours such as excessive alcohol use, smoking and depression.

1. Ms Rosen conceded that she had not, with one exception, made any direct enquiries of any of the above organisations to obtain a clearer identification of their operations or the nature of their clients. She had made one phone call to the Mental Illness Fellowship the day before she gave evidence from which she deduced that the organisation provided counselling services to clients who may be potential problem gamblers. She provided no direct evidence that the 'risky lifestyles' which she identified were particularly prevalent in the area.
2. We prefer Ms Jordan's evidence. She indicated that her contact with the Mental Illness Fellowship informed her that the building in Heidelberg Road provided a head office function for a statewide organisation that arranges the provision of a range of services to people with mental illness through a wide range of other bodies. Approximately 80 people were employed at that site but counselling was not offered on site. She referred us to the relevant web site which confirms her advice. A Tribunal site visit established that the office is only open during normal business hours Monday - Friday 9.00am to 5.00pm.
3. Mr Andrew Kerr, who appeared for Boroondara City Council, submitted that the site of the Kew Cottages in Boroondara provided accommodation for a number of residents who might be considered vulnerable to problem gambling. He was unable to provide us with any information as to numbers of residents, their state of health or the way in which care was provided. Again Ms Jordan was more helpful, indicating that her enquiries of the organisation showed that the residents required high levels of care and that they would not normally leave the site without the company of a carer.
4. Ms Jordan's enquiries of the Marjorie Oke Rooming House found that it provided long-term residential accommodation for women who were over eighteen, had suffered some form of domestic trauma, had limited income or assets and in 75 percent of cases relied on Centrelink benefits. We agree with Ms Brennan's submission that a more likely 'ant trail ' for Marjorie Oke residents would be towards the Fairfield Village Shopping Centre where the Fairfield RSL would provide a more 'convenient' gaming venue.
5. While we fully understand the need for client privacy, we agree with Ms Jordan and Ms Peterson that the other 'sensitive uses' such as chiropractic clinics, medical centres and the like cannot be described as 'sensitive uses' without more information about their operations.
6. Unlike the Exchange Hotel case[8], where evidence was given by support workers of the adjoining local community, no community groups and none of the organisations or businesses referred to in the Council's submission made a submission to the Tribunal, and no person associated with those groups or organisations was called to give evidence that approval of EGMs at the Grandview Hotel might have an adverse impact on persons to whom they provide a service.
7. Consequently, while there may be individuals who live in, or are clients of, some or all of the organisations identified above, we have no evidence that might lead us to a conclusion that there is any link between the 'sensitive uses' identified by Ms Rosen and the potential incidence of problem gambling at the Grandview Hotel.
8. It is disappointing that Council with the resources of its social planning department has been unable to provide more information about these 'sensitive uses'. It is really doing no more than advising the Tribunal to draw conclusions based on the name of the organisation.
9. In relation to the potential impact on hotel residents, the hotel currently provides twenty rooms on the first and second floors as low-cost accommodation for long-term residents and approximately nineteen of these rooms are currently occupied. The refurbishment of the hotel will reduce the number of rooms available to five.
10. Mr el-Fahkri gave evidence that the residents are very self-reliant and use the hotel as a base but do not frequent the current facilities. He indicated that the residents were well known to his staff who would be well-equipped to respond to any unusual behaviour. Letters were tabled from two of the residents supporting that view and indicating that the people involved were not interested in the 'pokies' and would be perfectly willing to sign a self-exclusion agreement if necessary.
11. Clearly the presence of the EGMs in the hotel does present a risk but we believe that the risk is small. Current residents are aware of the risk but do not frequent the hotel facilities and the management of the hotel is capable of dealing with the issue appropriately.
12. In dealing with this important issue of the relationship between gaming venues and 'sensitive uses' we feel a similar level of frustration to that experienced by Senior Member Byard in the Queensberry Hotel [9]case where he commented:

Need there be thousands (of socially or financially disadvantaged people ) within a couple of hundred metres, or is it enough if there is one or a dozen residing at a distance of a kilometre? Should a contour of 400-500 metres be relied upon or should it be a kilometre, or what distance? Even if such an approach is adopted, is not accessibility more important. A kilometre's distance on a convenient tram route might be more relevant than a 100 metres across an impassable river if the nearest crossing point should be several kilometres away. In the present case are the people living in the high rise public housing between Johnson Street and Princes Street Carlton relevant? Are the institutions of Common Ground and The Drill Hall close enough and populus to warrant refusal? Do the few rooming houses scattered about the residential area generally containing more prosperous residents, sufficient to tip the scales? These seem to us to be rather difficult questions made more difficult by the absence of clear criteria and reliable evidence

1. We further emphasise the remarks of Members Naylor and Cook in the Bright Newbay[10] case.

At a minimum, causal linkages between sensitive uses and gaming venues should be investigated further through research, including the sensitivity of uses such as a library, medical centre and the like.

1. The location of premises in which gaming machines are installed is controlled by Clause 52.28 of the Darebin Planning Scheme. The application of this clause to the present case is dealt with below.
2. A rationale which underlies Clause 52.28 is to discourage gaming machines in locations which may tempt impulse gambling by passing pedestrians or others who are visiting the locality for other reasons. It is for this reason that gaming machines are prohibited in strip shopping centres. The preference is to place gaming machines in locations which are trip destinations rather than associated with other activities.
3. We adopt, with respect, what was said by the Tribunal in Pink Hills case:

Confronting and tempting gamblers is said to be avoided by preventing the establishment of gambling venues in and about places where people will go for other convenience shopping, for example, people frequenting supermarkets, convenience shops, milkbars, hairdressers, newsagents and so on to buy daily, weekly or other regular needs. Many people need to frequent their local strip shopping centres and perhaps other shopping centres, for such purposes. Generally speaking it is policy to avoid them being confronted, at the same time, with electronic machine gaming opportunities

1. We do not accept that there can be a clear separation between 'convenience' venues and 'destination' venues. A more realistic classification would take the view that any venue will lie somewhere in a spectrum which at one extreme might include a location in the heart of a local shopping centre to the opposite extreme where a much more isolated location is used.
2. It is useful in this context to look at the characteristics of other gaming venues in the general vicinity of the Grandview. The Ivanhoe Hotel sits right in the middle of the Ivanhoe Shopping Centre. Similarly, Croxton Park Hotel in High Street, Thornbury also sits in the middle of a long shopping strip which includes a high proportion of convenience shopping and is directly served by a tram line outside the door. The Harp of Erin is located at the end of the Kew High Street shopping strip. By contrast, the Albion Charles Hotel, at the corner of Westgarth Street and St Georges Road, while closely surrounded by residential areas is not associated with any adjoining convenience shopping facilities.
3. While clubs may have a more selective entry process, the Fairfield and Alphington RSL is very 'conveniently' located immediately adjoining the Fairfield Village Shopping Centre with the Fairfield railway station exit only 20 metres from the front door. By contrast, the Furlan club, in the north of the municipality, is located in an industrial area well separated from any local shopping and more clearly represents a 'destination' venue.
4. In the case of the Grandview, the surrounding area is residentially zoned, and would probably be the most convenient hotel for residents in the small residential precinct between Heidelberg Road and the River Yarra. The hotel is 500 metres from the Fairfield Village Shopping Centre and its adjoining railway station which would be well-served by the Fairfield and Alphington RSL. Bus services are available on Heidelberg Road but these are not particularly frequent in the late evenings or weekends.
5. The uses adjoining the hotel along Heidelberg Road are basically service business and highway orientated uses. A site visit confirms that the neighbourhood includes two petrol filling stations with associated convenience shops, a Mercedes-Benz car showroom on both sides of Heidelberg Road, an architects' office, an outlet providing supplies for disabled people, an Iron Lace showroom and workshop, a tile gallery, two fabric and interior design showrooms, the Gestalt Therapy Training Centre, an office furniture supplies showroom, a bike shop and repair centre and a power tools supplier. These are hardly the sorts of uses that people would visit in the course of their everyday shopping.
6. We note that the zoning of the area is either Industrial 3 or Residential 1. This means that 'retail premises' is a prohibited use in the Residential 1 Zone and 'shop' is prohibited in the Industrial 3 Zone.
7. We understand that a permit has been granted by the Tribunal for a Hungry Jacks fast food establishment on the site of the Shell petrol filling station but this is essentially a 'take-away' operation with only eight seats inside the premises. No construction has as yet occurred on the site. It would be most unlikely that patrons of the Grandview gaming room would be permitted to bring in their take-away burger from Hungry Jacks!
8. Mr el-Fahkri's evidence was that a significant component of the hotel trade is derived from its speciality mid-week events, a comedy night, a trivia night and a poker night, when as he indicated "people come from everywhere".
9. When all these factors are considered we find that the Grandview should be placed much closer to the 'destination' end than the 'convenience' end of the spectrum. The hotel is on a corner that is unlikely to experience much pedestrian movement, and residents of Darebin would have no occasion to walk past the hotel other than for recreation.

1. A further factor acting to assist problem gamblers and thus constrain the incidence of the problem is the active role of the council in cooperation with adjoining municipalities to deal with problem gambling in the northern suburbs. Council is to be commended for its actions in this area. We note that it has an adopted policy on gambling but has not yet developed this to a stage where it is included in the planning scheme unlike some other councils. We encourage it to do so.

1. This is an area where black and white conclusions are difficult to draw. Shades of grey predominate in terms of linkages between population groups and problem gambling and between the location of EGMs and the incidence of problem gambling.
2. We acknowledge that any gaming venue has the potential to attract potential problem gamblers, but from the evidence we have heard about this specific location we see a number of factors which would contribute to mitigating the potential level of problem gambling.
   • As a gaming venue, the hotel is not in a 'convenient' location compared to competing venues such as the Ivanhoe Hotel, Croxton Park Hotel, the Harp of Erin Hotel and the Fairfield and Alphington RSL, all of which are closely associated with substantial local shopping and commercial centres and are readily accessible by public transport.
   • The adjoining commercial premises and highway orientated uses can reasonably be described as service retail with a sprinkling of commercial and community services. None of these would generate significant pedestrian activity and the vast majority have no evening or weekend opening.
   • Public transport is limited to bus services and late hours are not particularly well-served.
   • The trade area of the existing hotel includes part of four municipalities, Darebin, Banyule, Yarra and Boroondara. This area, on the SEIFA scale is considerably less disadvantaged than Darebin as a whole and the northern area of Darebin (Preston) in particular. This is less likely to generate a significant problem gambling population.
   • Any loss of revenue to existing gaming venues will be spread but this is consistent with overall Government policy to allow a competitive gaming environment. Any loss to other businesses has been, to our satisfaction, measured as insignificant.
   • The evidence does not show any significant presence of 'sensitive uses'. Most are medical-related services which are common throughout residential areas. Major uses such as the Mental Illness Fellowship operate a head office function 9-5 Monday to Friday while the Gestalt Centre is a training centre for students seeking qualifications in the technique. The Marjorie Oke Rooming House is the nearest facility which could be considered sensitive but it is almost half-way between the existing Fairfield RSL and the Hotel. Its residents are limited in number and their selection criteria do not warrant the label of a 'community at risk'.
3. While in any summation of benefits and disbenefits we must see the risk of problem gambling at this venue as a negative, the above factors suggest that a low weight must be given to that issue in any decision.

1. Surveys of community attitudes to the installation of the EGMs were carried out by IPSOS ASI Australia on behalf of the applicant and by Ms Karen Linden, a council officer attached to the Community Planning Partnership and Performance Department of the Darebin Council.
2. Both surveys were criticised as having deficient methodological techniques, but ultimately there was little difference in the result. Ms Linden's survey explored the important question of community well being in the area within a 2.5 kilometre radius of the hotel. She advised that some 89 percent of residents had a 'high/very high' sense of well-being from living/working in the community and that 74 percent felt that the installation of the 50 EGMs at the Grandview would have a negative effect on that sense of well-being. However there was no question which allowed residents to define what they meant by 'the community' or what constituted 'well-being'.
3. While the IPSOS survey found support for specific aspects of the renovation such as an expanded bistro, better function rooms, etc, its overall findings on community attitude towards the installation of EGMs was similar to that of the Council Survey.
4. We note, however, that these views essentially echo the general views of the Victorian community as a whole as elicited in the 2003 Longitudinal Study. In other words, the 2003 studies found a general opposition to gaming machines, and these surveys display a similar sentiment, including specifically about this proposed venue.
5. It is also significant that this 'very high sense of well-being' indicated in the Council survey is being experienced by a community in which there are at present no less than 235 gaming machines in or just outside the survey area. Clearly these machines have little or no impact on this community's sense of well-being. It is difficult to see how the introduction of a further 50 machines could alter that community attitude.
6. It is also significant that the application for a planning permit, although extensively advertised, attracted only 34 objectors, and that only one resident objector, Ms Avtzoglu, appeared before us on grounds that had little to do with gaming machines. In the Tribunal's experience this is a very low level of opposition to a proposal to install gaming machines in any venue, particularly when compared to the reaction commonly experienced in non-metropolitan locations, for example, Romsey and Castlemaine.
7. In Castlemaine what was telling for Deputy President Dwyer was

not the raw statistic of surveyed community opposition, within what might be considered normal levels, but the 'range and intensity of the opposition'.

1. The Grandview Hotel is a prominent landmark and recreational outlet which provides a range of facilities for local residents and visitors. The operators are attempting to make the venue lively and interesting by providing special events and themed evenings. However the hotel is tired and run down, and the trade is insufficient to support its ongoing viability.
2. Our conclusions can be summarised as follows.
   • The hotel is a prominent social and physical landmark and its retention as a functioning venue will be of general benefit to the community. The restoration of the building will retain a significant local landmark which is of heritage value.
   • There will be limited but positive short-term construction benefits to the local economy and in the longer term 13 full-time equivalent positions will be a useful contribution to the area.
   • The upgraded venue will provide a much better range and quality of services to the local community and visitors.
   • There may be some small loss of revenue by other existing gaming venues. This is consistent with a competitive market as promoted by Government policy.
   • The developer has a sound reputation as an experienced venue manager and an enhanced package of 'Responsible Gaming Management Practices' is to be provided.
   • A community contribution of $100,000 per annum in addition to the current $20,000 contribution is offered with indexation in accordance with CPI.
   • Our conclusions in relation to the problem gambling issue have already been set out.
3. As required by the decision of the Court of Appeal in Romsey we have, in reaching our conclusion, given weight to the findings of the VCGLR in the light of its recognised expertise in the field of gaming regulation.
4. As will be clear from the summary above, we find, consistently with the decision of the VCGLR, that the approval of the premises as suitable for gaming will not have a net economic and social impact that is detrimental to the well-being of the community of Darebin or that part of the community of other municipalities within the trade area of the hotel. On the contrary we consider that the economic and social impact of approval will, on balance, be quite positive.
5. Accordingly the application for review will be dismissed, and the decision of the VCGLR is affirmed

1. Important elements of the positive impact of approval are the proposed renovations which will significantly improve the hotel as a recreational facility and, to a lesser extent, the proposed annual contribution of $120,000 for community purposes.
2. We considers that the applicant should be held to these commitments, and that this can be done by way of conditions of approval.
3. Section 3.3.9 GR Act provides that approval of premises as suitable for gaming may be conditional. Section 3.3.9(3) authorises certain types of conditions and provides in paragraph (c) the catchall "any other conditions the VCGLR thinks fit". Sub-section (4) provides:

(4) Without limiting the matters to which conditions may relate, the conditions of an approval may relate to any matter for which provision is made by this Act but must not be inconsistent with a provision of this Act.

1. There has been some debate as to whether this power extends to imposing a condition requiring an annual contribution to a community based organisation or organisations. The debate is succinctly summarised by Dep. Pres. Dwyer in the Castlemaine case (see paras 101-109). The Tribunal adopts, with respect, what was said in that case by the learned Deputy President. We regard the matter as now settled on the basis that the Commission does have that power, but that it should be exercised with caution.
2. In the present case the VCGLR opposed the imposition of a community contribution condition that was self-executing in the sense that if the VCGLR is not satisfied that the required contribution has been made within the specified period the approval is suspended until the payment is made. However, we consider that the most effective mechanism is to require the Applicant to provide evidence to the VCGLR that the requisite payment or payments have been made within the specified time. In the absence of such evidence being provided by 31 July in each year the approval will be suspended until the evidence is provided. We appreciate that this regime may have consequences in terms of civil or criminal penalties, but the remedy is in the hands of the Applicant. We would add that it is appropriate that the approval be suspended rather than lapse totally as was at one stage suggested.
3. The full conditions of approval are set out in Appendix A.

1. Reference has already been made to Clause 52.28 of the Darebin Planning Scheme.

• 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.

The decision guidelines set out in Clause 52.28-5 are:

• Clause 65, SPPF and LPPF, MSS and local policies.
• Compatibility of the proposal within adjoining and nearby land uses.
• The compatibility 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 or patrons.

1. At the outset it should be noted that the planning control is concerned with the appropriateness of the proposed location of the gaming machines and the premises in which they are to be installed rather than with gaming itself as a land use.
2. In this case we consider that the premises themselves are appropriate. The Grandview Hotel is a large hotel which will provide a full range of facilities and services to patrons. This satisfies the fourth criterion set out in Clause 52.28-5.
3. The characteristics and attributes of the location have already been discussed in connection with the gaming case, as have the social and economic impacts of the location, which overlap the analysis of the social and economic impacts of approval of the premises for gaming.
4. We are satisfied that the location is compatible with adjoining and nearby land uses which are of a restricted retail and highway orientated type. More importantly, as mentioned earlier, there is likely to be little pedestrian traffic passing the hotel so it does not present a significant temptation to impulse gambling. Patrons of the gaming room will go there as the result of a pre-determined decision to engage in gaming activity.
5. The application to review the refusal of the Darebin City Council to grant a permit will be allowed. We will direct the grant of a permit to install gaming machines at the Grandview Hotel subject to conditions. The conditions are set out in Appendix B to this decision. It should be noted that the permit conditions were agreed to by the permit applicant.
6. We have altered the conditions regarding the timing of installation of the EGMs to synchronise with the timing of completion of the overall development.

CONDITIONS ATTACHING TO APPROVAL OF PREMISES FOR GAMING

1. The maximum number of electronic gaming machines (EGMs) that may be operated at the premises is 50.
2. The use of any EGM on the premises must not commence until the buildings and works authorised by Planning Permit D404/2012 directed to be granted by the Tribunal in Proceeding No. P3619/2012 have been completed to the satisfaction of the Commission.
3. If the buildings and works referred to in Condition 2 are not substantially completed by 31 December 2017 this approval will lapse.
4. The Commission may upon the request of the owner or operator of the approved 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 31 August 2017. Any request for an extension of time must include an explanation as to why the buildings and works have not been substantially completed.
5. The operator of the premises (the Venue Operator) must make payments totalling $120,000 in each year ending 30 June (indexed each year to CPI) for so long as any of the 50 gaming machines permitted by this approval are in operation for community purposes as identified in Condition 6 of this approval (the Contribution).
6. If the Council is prepared to participate, a committee (the Committee) is to be established to facilitate the allocation and distribution of $100,000 of the contribution. The Committee is required to recommend the appropriate distribution of the $100,000 for the purpose of benefiting residents within the City of Darebin. The Committee may recommend allocations to not-for-profit community groups, sporting organisations, cultural groups or problem gambling service providers providing services to residents of the City of Darebin.
7. The Committee will consist of the following members:
   1. a person nominated by Council (if the Council is prepared to nominate a person to be part of the Committee);

ii) one person nominated by the Venue Operator; and

1. a community representative agreed upon between the Venue Operator and Council.

1. The Committee will provide its recommendations to the Venue Operator and the Venue Operator will distribute the $100,000 in accordance with the recommendations of the Committee except where the recommendations are inconsistent with the objects or purposes of the Venue Operator in which case, the Venue Operator will distribute the $100,000 or so much thereof as is inconsistent with the objects and/or purposes of the Venue Operator, to not-for-profit community groups, sporting organisations, cultural groups or problem gambling service providers providing services to residents in the City of Darebin which the Venue Operator selects.
2. The Committee is required to meet at least once per year and otherwise as requested by two members of the Committee. The Committee may regulate its own proceedings. The quorum for a meeting will be two members of the Committee.
3. The Venue Operator may allocate and pay the balance of the Contribution ($20,000), or if the Committee is not established, the whole of the Contribution, to the same type of community groups, sporting organisations or service providers referred to in Condition 6 in such manner as it thinks fit.
4. The Venue Operator must report to the VCGLR annually by 31 July in each year demonstrating to the VCGLR that payments in accordance with these conditions have been made in the year ending the previous 30 June.
5. If any of the 50 electronic gaming machines permitted to operate at the premises ceases to operate as a result of any legislative requirements, including, but not limited to, the imposition or amendment of any regional cap or municipal limit, the Contribution is to be reduced on a pro-rata basis.
6. If the Contribution or any part of it is not made by the end of each financial year ended 30 June as set out in Condition 5, the use of the gaming machines must immediately cease for so long as the Contribution or the outstanding part remains outstanding.

1. Before the development hereby approved commences, three copies of amended plans dimensioned and drawn to scale 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 generally in accordance with the plans submitted with the permit application.
2. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.
3. No more than fifty (50) electronic gaming machines are permitted to be used or installed in the gaming area.
4. Except with the prior written consent of the Responsible Authority, the use of the gaming room is only permitted between the hours of:

1. Monday to Friday (not being Anzac Day) between 9a.m. and 1 a.m. the day following.

c) Saturday between 10 a.m. and 1 a.m. the day following.

1. The 50 electronic gaming machines must not be installed until the building and works hereby permitted are completed to the satisfaction of the Responsible Authority.

1. the café/bar area (adjacent to the gaming room), sports bar/TAB and lounge bar areas on the ground floor must also be operational; and
2. food must be available for purchase at a minimum in the café/bar area (adjacent to the gaming room).

1. At all times the gaming room is operational a minimum of two (2) staff members must be present in the gaming room at any one time.
2. Before the use starts, three copies of a Venue Management Plan (VMP) must be submitted to and approved by the Responsible Authority. The VMP must be to the satisfaction of the Responsible Authority. When approved, the VMP will be endorsed and will then form part of this permit. The VMP must include the following information to the satisfaction of the Responsible Authority:

1. Procedures to be undertaken by staff in the event of complaints by a member of the public, the Victoria Police, an 'authorised officer' of Council or an officer of the Victorian Commission for Gambling and Liquor Regulation;

1. The measures to be taken by management and staff to ensure patrons depart the premises and the surrounding area in an orderly manner;

1. The measures to be taken by management and staff to ensure that patrons queue to enter the premises in an orderly manner;
2. The measures to be taken by management and staff to ensure that patrons do not cause any unreasonable or adverse impact to persons beyond the land. This will include, inter alia, ensuring that the surrounding properties are not impacted upon by the presence of litter, urine, faeces, or vomit or by unreasonable noise emissions;

1. Security camera surveillance within the venue and at entrances and exits; and
2. Any other measures to be undertaken to ensure minimal amenity impacts from the premises.

1. The approved VMP must be complied with at all times to the satisfaction of the Responsible Authority.
2. A sign must be displayed at the exit of the premises advising patrons to respect the amenity of the nearby residential area and to leave the premises in a quiet and orderly manner, to the satisfaction of the Responsible Authority.
3. Before the use and installation of 50 gaming machines commences, a Responsible Gambling Policies and Procedures Manual (RGPPM) is to be submitted to the satisfaction of the Responsible Authority. The RGPPM must provide details of access to the gaming room and include:

b) details of the training of staff in the responsible service of gambling.

The RGPPM, including the matters specified herein, must not be amended unless with the consent of the Responsible Authority.

When endorsed, the approved RGPPM will form part of this permit and must be complied with at all times.

1. The RGPPM must be audited twice annually by a person with suitable qualifications and experience in responsible service of gambling practices.
2. No more than 780 patrons are permitted on the Subject Land at any one time.
3. Prior to the use commencing, a report prepared by a suitably qualified acoustic consultant must be provided to the Responsible Authority demonstrating that noise from all equipment including mechanical services equipment, complies with the noise limits detailed in accordance with State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (SEPP N-1).
4. All external plant and equipment must be acoustically treated and/or insulated to the satisfaction of the Responsible Authority to minimise noise and vibration and to ensure compliance with noise limits as determined by the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1.
5. Once the venue is operational, commissioning measurements must be performed to demonstrate that compliance with SEPP N-1 has been achieved. If noise emitted from the subject site exceeds SEPP N-1 noise limits, then additional noise control treatment will be required.
6. Noise levels emanating from the Premises must not exceed the noise levels as determined by the State Environment Protection Policy (Control of Music Noise from Public Premises) No. N-2.
7. No external sound amplification equipment or loud speakers are to be used for the purpose of announcement, broadcast, or similar purpose without the consent of the Responsible Authority.
8. Prior to the commencement of use, a report must be submitted to the satisfaction of the Responsible Authority outlining the following:
   1. The applicable SEPP N-2 music limits for the day, evening and night-time periods
   2. Details of allowable internal and external music noise levels in the hotel areas to enable the SEPP N-2 noise limits to be achieved.
9. Within 6 months of the commencement of use a report must be submitted to the satisfaction of the Responsible Authority outlining the following:

1. Background noise level measurements and details of appropriate patron noise criteria; 2. Measurements of patron noise from the new outdoor dining area must be taken at the nearest residential dwellings. Patron numbers must be validated during the measurement survey and if required measured levels adjusted to represent the outdoor dining area at full capacity; and

1. Compliance with the relevant patron noise criteria must be demonstrated. If compliance is not achieved then further engineering/managerial controls should be installed/implemented to the satisfaction of the Responsible Authority.
2. Before the development starts, a schedule of materials, external finishes and colours to the satisfaction of the Responsible Authority, must be submitted to and approved by the Responsible Authority. When approved, the schedule will be endorsed and will then form part of the permit.
3. The exterior treatment of the buildings must be maintained to the satisfaction of the Responsible Authority.
4. The use and development, as approved, must be managed so that the amenity of the area is not detrimentally affected, through the:

a) the transport of materials, goods or commodities to or from the land;

b) the appearance of the building, works or materials; and

1. the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, soot, ash, dust, waste water, waste products, grit or oil.

1. External lighting must be designed, baffled and located so as to prevent any adverse effect on surrounding land to the satisfaction of the Responsible Authority.
2. All security alarms or similar devices installed on the Subject Land must be of a silent type in accordance with any current standard published by Standards Australia International Limited and be connected to a security service.
3. Signage must be displayed near all entrances/exits requesting patrons to leave the Premises in a quiet and orderly manner so as not to disturb nearby residents to the satisfaction of the Responsible Authority.

27. This permit will expire if one of the following circumstances applies:

1. The development is not started within two years of the issued date of this permit.
2. the development is not completed within four years of the issued date of this permit.

In accordance with Section 69 of the Planning and Environment Act 1987, an application may be submitted to the responsible authority for an extension of the periods referred to in this condition.

[1] The Tribunal has considered all submissions presented by the parties although not all of the contents are recited in these reasons

[4] (2013) VCAT 101

[5] (2009) VCAT 2275 (Romsey No.2)

[6] (2005) VCAT 2606

[7] [2011] VCAT 534

[8] [2013] VCAT 371

[9] [2013] VCAT 444

[10] [2010] VCAT 1347