1. In Application B182/2010:
   • (a) The application is amended to refer to 25 electronic gaming machines.
   • (b) The decision of the Victorian Commission for Gambling Regulation dated 9 July 2010 is varied to allow a maximum of 25 gaming machines.
2. In Application P1341/2010:
   • (a) Leave is given to the Applicant to amend permit application no. PADC/759/2009 to clarify the following permissions sought:
     • (i) A maximum of 25 electronic gaming machines;
     • (ii) Hours of operation from 11am to 1am the following morning;
     • (iii) Demolition, buildings and works under Clauses 43.01 and 43.05; buildings and works under Clause 32.01; signage under Clause 52.05; waiver of parking under Clause 52.06; dispensation from loading facilities under Clause 52.07; permission to supply and consume liquor under Clause 52.27.
   • (b) The decision of the responsible authority in relation to permit application no. PADC/759/2009 is set aside. A permit is granted and is to be issued. The permit relates to the land at No. 2 Old High Street, Golden Square. The permit will allow:
     • (i) The installation and use of 25 electronic gaming machines;
     • (ii) Demolition, buildings and works under Clauses 43.01 and 43.05;
     • (iii) Buildings and works under Clause 32.01;
     • (iv) Signage under Clause 52.05;
     • (v) Waiver of parking under Clause 52.06;
     • (vi) Dispensation from loading facilities under Clause 52.07;
     • (vii) Permission to supply and consume liquor under Clause 52.27;

(c) The permit is subject to the conditions contained in Appendix 2.

Mr J Larkins and Ms S Porritt of counsel instructed by BSB lawyers. They called expert evidence from:

• Mr R Quick, economist, Ratio Consultants.
• Mr M Clyne, gaming consultant.
• Mr L Barrett, gaming and liquor consultant.
• Ms C Peterson, town planner, Ratio Consultants.
• Mr K Twite, town planner, SJB Planning.

• Mr S Davies, heritage consultant with Urbis.
• Mr R Symons, traffic engineer with Ratio Consultants.

Neither was called to present their evidence. No party sought to cross-examine them.

Evidence was also called from Mr M Kuchel, General Manager, Foundry Hotel.

Mr R Appadurai, solicitor of Russell Kennedy on Days 1, 2 and 3. Mr A Sherman, solicitor of Russell Kennedy, on Days 4 and 5. Mr Appadurai called expert evidence from:

• Ms C Wallace, Acting Director Community Wellbeing, City of Greater Bendigo.
• Mr C Gill, accountant, Ferrier Hodgson Forensics.

A statement of evidence by Ms A Jean, heritage consultant, was tendered. She was not called to present her evidence. No party sought to cross-examine her.

Demolition of an outbuilding and construction of a two storey extension to the existing Hotel. A new gaming lounge would provide for 25 electronic gaming machines ["EGMs"] operating from 11am to 1am the following morning. No change is sought to patron numbers. The parking layout is proposed to be revised.

Based on plans tendered during the proceedings the proposal has been revised to single storey with a total of 46 on-site car spaces.

Application under Section 3.3.4 of the Gambling Regulation Act 2003 ["GRAct"] by the City of Greater Bendigo seeking review of a decision by the Victorian Commission of Gambling Regulation to allow 30 gaming machines.

Application under section 77 of the Planning and Environment Act 1987 ["PEAct"] by Drayton Manor seeking review of a decision by the City of Greater Bendigo to refuse a planning permit.

Residential 1 Zone. Neighbourhood Character Overlay (NCO1). Heritage Overlay (HO451).

Permission to install 25 electronic gaming machines under Clause 52.28; demolition, buildings and works under Clauses 43.01 and 43.05; buildings and works under Clause 32.01; signage under Clause 52.05; waiver of parking under Clause 52.06; dispensation from loading facilities under Clause 52.07; and permission to supply and consume liquor under Clause 52.27.

The review site is 3,300 square metres and is located on the south-west corner of Old High Street and Shamrock Street. It contains a single storey heritage Hotel with car parking. The Hotel is licensed for 744 patrons. Residences adjoin the site to its north-west and south-west (two of which are owned by the Hotel operator). The opposite side of Shamrock Street includes a supermarket and, further north-east, Hungry Jacks.

24 February 2011 including the review site and other gaming facilities within the City of Greater Bendigo.

1. The Foundry Hotel in Golden Square is a landmark heritage building in Bendigo. A Hotel has operated from the land since the late 19th century. It is a well established premise with a range of facilities including its bar, bistro, function room and conference facilities. It is common ground between the parties in both proceedings that it is a quality, well-managed, venue.
2. The two proceedings before us relate to a proposal to introduce 25 electronic gaming machines ["EGMs"] at the Foundry Hotel. This is part of an expansion of the Hotel on its site. One proceeding is brought by the City of Greater Bendigo seeking review of a decision by the Victorian Commission for Gambling Regulation ["VCGR"] to allow 30 EGMs. Another proceeding is brought by Drayton Manor seeking review of the Council's decision to refuse a planning permit for the proposal including 30 EGMs.
3. In summary:
   • The Council challenges the determination made by the VCGR because (among a range of matters) it considers the proposal will have a detrimental net social and economic impact, does not meet the Council's gaming policy, is opposed by some 74% of respondents to a survey of residents within five kilometres of the Hotel, and new data provided through Mr Gill's evidence shows the transfer of expenditure will be lower than estimates provided in evidence to the VCGR. Drayton Manor disagrees based on evidence it relied upon.
   • In relation to the second proceeding, the Council has determined to refuse the planning permit on grounds relating to the failure of the proposal to comply with the gaming policy in the Greater Bendigo Planning Scheme, the failure to produce a net community benefit, expressed community opposition, and contended detrimental social and economic impacts. The decision is challenged by the permit applicant on grounds that the proposal will produce an acceptable planning outcome. That position is based on evidence it relied upon. Ms Grygierczyk supports the Council's decision.
4. The proposal in both proceedings before the Tribunal has been amended to reduce the number of EGMs to 25 and to limit hours of operation to 11am to 1am the following morning. During the hearing revisions to the plans were also proposed primarily to respond to heritage evidence brought by the Council and permit applicant but also dealing with some other matters relating to the proposed gaming room and car parking.
5. The Tribunal must decide if the decisions made by the respective decision-makers should be affirmed, varied or set aside.

1. We are required to consider and weigh different matters in each proceeding.
2. Section 3.3.7 GRAct sets out the matters to be considered in determining applications for gaming machines. Section 1(c) is central to the proceeding brought by the Council against the VCGR's decision.[3] The Commission must not grant an application for approval of premises as suitable for gaming unless 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". There are no decision criteria to define this test or assist in deciding if the test is met.
3. Section 60 PEAct sets out the relevant matters in determining a planning permit application. The test set by the Greater Bendigo Planning Scheme is whether the proposal will achieve acceptable outcomes based on the relevant provisions including the purpose of the Residential 1 Zone; Overlays; particular provisions Clauses 52.06, 52.07, 52.28; Clause 65; and relevant policies such as Clauses 21.07 and 22.28. Clause 10.04 states responsible authorities should endeavour to "integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations".
4. Unlike the GRAct where an application must be found to not be detrimental to the well-being of the community of the municipality[4], Clause 10.04 of the Scheme does not mandate proof of net community benefit. Rather, Clause 10.04 sets policy considerations to guide the decision-maker[5]. In the case of the Greater Bendigo Planning Scheme, Clause 22.28 includes a decision guideline requiring consideration of whether there is "a net community benefit" to be derived from an application for gaming machines. This is part of the policy assessment and balance we must undertake.
5. Tribunal decisions have sought to distinguish other differences between relevant matters in each type of proceeding as summarised in Bright Newbay[6]:

The planning permission is focused upon whether it is an appropriate location suitable for gaming and, secondly, the social and economic impacts of the location. The gaming considerations include whether the net economic and social impact of the machines would or would not be detrimental to the wellbeing of the community of the municipal district in which the premises are located. Hence, it is our view that a more detailed analysis of the economic and social impacts upon the community is a matter that is best dealt with as part of the consideration under the Gambling Regulation Act rather than as part of the planning application.

DOES THE PROPOSAL PRODUCE ACCEPTABLE PLANNING OUTCOMES?

1. In this part, we address Application for Review No. P1341/2010.

What is the Planning Scheme seeking to achieve at this site?

1. The review site is located in a Residential 1 Zone wherein a purpose is to allow a limited range of non-residential uses to serve local community needs. This does not preclude uses with a wider catchment but the focus is on uses that are compatible with a residential environment. Impacts with respect to parking and amenity are relevant to this. The Hotel already exists and the current application only seeks approval for buildings and works in this Zone. No use permission is sought for the expanded Hotel (installation and use of gaming machines is discussed below) but Clause 22.27 is triggered given the expanded licence area.
2. Buildings and works approval, and demolition, require permission under the Heritage Overlay (HO451) and Neighbourhood Character Overlay (NCO1). The HO and NCO each cover part of the site without overlapping. The HO seeks to conserve and enhance heritage places and ensure development does not adversely affect the significance of the heritage place (HO451). The NCO adopts an existing and preferred character based on the frequency of pre-World War I and Inter-war era buildings. Collectively the buildings are considered to contribute to the broader heritage and understanding of the historical development of Bendigo and surrounding areas. Clearly, these Overlays are focused on how a proposed development responds to the heritage fabric and existing and preferred historic character. The local policy at Clause 22.15 reflects the same emphasis with the desired future character being to maintain and strengthen the heritage character and distinctive characteristics of the streetscapes.

What planning outcomes are sought for the location of gaming machines?

1. Clause 52.28 contains the provisions for assessing an application to install or use gaming machines. It is agreed between the parties that the site is not one where gaming machines are prohibited[7]. Thus, the relevant parts of the purpose of Clause 52.28 are:

To ensure that gaming machines are situated in appropriate locations and venues.

To ensure the social and economic impacts of the location of gaming machines are considered.

1. In addition to considering the State and Local Planning Policy Frameworks, the decision guidelines require consideration of:
   • 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.
2. Clause 22.28 is a local policy relating to gaming and is relevant to an assessment under Clause 52.28. Its policy basis states that it implements the objectives and strategies of Clause 21.07 of the Municipal Strategic Statement by setting out how and where gaming venues should be sited. It states the policy will guide decision making by implementing the findings of the City of Greater Bendigo Gaming Policy Framework 'Accessible but not Convenient' 2007. Clause 21.07 has the objective to ensure entertainment and recreation uses, including gaming machines, are located to meet local needs and minimise any potential harm to the community. Relevant strategies are:

Encourage the location of gaming machines, which are associated with other complementary recreation and entertainment uses and established in venues that:

• Have a range of entertainment and leisure options; and
• Offer social and recreational opportunities other than gaming as the primary purpose of the venue.

• In areas of above average socio-economic disadvantage as defined by the Socio Economic Index For Areas (SEIFA) index of relative disadvantage and shown on the Greater Bendigo Discouraged Gaming Areas Plan.
• In areas that have high levels of pedestrians that can lead to "convenience gaming" where the location of electronic gaming machines increases the likelihood of spontaneous decisions to play.
• ...

1. Local policy is to be used to ensure gaming machines are located in accordance with the criteria set out in Clause 22.28 (Gaming Policy). In addition to the policy basis to which we have referred above, Clause 22.28 states that it is based on an understanding that problem gambling affects a small proportion of gamblers and that locating gaming venues in locations that are convenient, but not highly accessible, the incidence of "convenience gaming" will decrease.
2. We address the objectives and criteria included in the policy later as well as the five decision guidelines that focus on net community benefit; the likelihood of increased social disadvantage; the potential to facilitate or discourage convenience gaming; accessibility by various transport modes; and the availability of a choice of gaming and non-gaming entertainment and recreation venues in the local area.

Does the proposal achieve an acceptable outcome with respect to Clause 52.28 and relevant policies including Clauses 21.07 and 22.28?

1. The proposal satisfies many of the strategies and policies with respect to the appropriate location and venues for gaming machines because:
   • The site is located outside the areas shown as prohibited and strongly discouraged on the Greater Bendigo Discouraged Gaming Areas Plan[8].
   • The site is within walking distance of, and proximate to, the "higher order" activity centre of Golden Square referred to in Clause 52.28-4.
   • The site is located where the community has available and accessible non-gaming entertainment and recreation venues.
   • The premise is high quality, well-managed, and offers a range of co-located entertainment and dining opportunities which the addition of gaming machines can complement.
   • The venue is not a 24 hour facility and the proposed gaming component would not be a predominant activity.
   • The venue would not create significant adverse off-site amenity impacts in terms of design, location or operating hours given it already exists, no more patrons are proposed, and the operating hours are limited to 1am.
2. The key issues in dispute focus on:
   • Whether the proposal will increase social disadvantage and is appropriate in the locality based on:
     • the existing level of social disadvantage represented in the SEIFA index score, the density of EGMs, and the potential for increased incidence of problem gambling; and
     • the total density of gaming machines in adjoining suburbs that is more than the regional Victorian average.
   • Whether the review site will encourage convenience gaming because it is too accessible to, and close to, a supermarket and car park[9].
3. The Scheme discourages gaming machines in areas of socio-economic disadvantage and seeks to create some separation between nominated shopping centres, including the CBD, and activity centres. In this proceeding, the Council's position is that the proposed location for EGMs has the capacity to encourage impulsive convenience gaming contrary to its policy.

1. The Council's case with respect to social disadvantage focus on the existing level of social disadvantage and the extent to which that will be increased mindful of the prospect of transferred expenditure and the density of EGMs.
2. Reliance was placed on the evidence of Mr Gill and Ms Wallace including the results of a community survey where significant opposition to the proposal for 30 EGMs was expressed by people living within five kilometres of the Foundry Hotel who replied to the survey.
3. The original application was premised on the basis that there would be no new EGMs as the proposed machines would be transferred from an existing location. This was not required in the VCGR approval[10] and, based on Ms Peterson's evidence, can not be assumed having regard to the auction process that has occurred.
4. It is very difficult to predict with any certainty as to whether, and to what extent, the proposal would increase social disadvantage. The evidence of Ms Wallace, Ms Peterson, Mr Quick, Mr Clyne and Mr Gill is all based on a range of variables and assumptions that have varying degrees of certainty in themselves. For example, there are varying approaches to the geographic areas used as a basis for assessment including ABS collector districts, postcodes and suburbs (these having varying relevance in the two proceedings before us). There is also the proposal for additional EGMs at the Kangaroo Flat Sports Club which have not been approved but which, we understand, will not be opposed by the Council. This has been factored into some evidence but not consistently across the witnesses given there is no approval.
5. However, the following can be discerned from the evidence with certainty as relevant to our consideration of the permit application:
   • The EGM cap for the City of Greater Bendigo is 756. There are currently 547 EGMs. The auction process has resulted in 615 entitlements being purchased. No entitlements have been purchased for the 25 EGMs proposed at the Foundry Hotel meaning, if approved, the 25 EGMs would be new (total of 640 EGMs) or could be transferred. We have assumed the "worst case" that all 25 EGMs would be new to the municipality in assessing impacts.
   • The City of Greater Bendigo has 10 gaming venues. Nine are within approximately five kilometres of the Foundry Hotel. Two postcode areas comprise the primary catchment area.
   • The catchment for the Foundry Hotel is primarily within a 20 kilometre radius (75%) with 51% being from within five kilometres.[11]
   • The SEIFA Index for the City of Greater Bendigo is 984; below the Victorian LGA median of 993 based on Ms Peterson's and Mr Quick's evidence. The two postcode areas that comprise the primary catchment area show similar signs of some disadvantage at 957 for postcode 3555 and 978 for postcode 3550.
   • These postcode areas also provide the primary catchment for most of the other existing gaming venues.
   • Postcode 3551 also falls within the Foundry's catchment of five kilometres but it has a SEIFA Index of 1,058.
   • At collector district level, the area immediately around the site is generally between 970 and 1,025 on the SEIFA Index other than the area to the immediate south. The more disadvantaged areas within postcode 3555 include Kangaroo Flat where there are existing gaming options.
   • The density of EGMs for the City of Greater Bendigo is 6.91 EGM per 1,000 adults (at June 2010). This is higher than the Victorian country average of 6.65 EGMs per adult. The proposal would increase that density to 7.23 (assuming all new EGMs) or 4.57%. The increase may be counterbalanced by population growth particularly given the EGMs would not be operational until 2012. The calculations will further fluctuate with any other changes in EGM numbers and population.
   • The density of EGMs in adjacent suburbs to the Foundry Hotel is above the Victorian country average.
   • The proposed 25EGMs would be the smallest venue in Bendigo compared with the existing premises with EGMs such as Rising Sun and Windermere Hotels.
   • As expressed through a mail survey of residents within 5 kilometres of the review site conducted by the Council, significant community opposition to 30 EGMs at the Foundry Hotel and perceived negative impacts on respondents' well-being, happiness, contentment and the area's social character.
   • There will be some transfer of expenditure from existing gaming venues and, on the evidence of Messrs Gill and Clyne, that might be less than 50% or up to 80%. [We discuss this again below].
   • The Applicant is proposing to introduce responsible gaming measures as set out in the evidence of Mr Barrett.
6. The local policy prefers EGMs where the total density of gaming machines in the suburb and its adjoining suburbs is less than the regional Victorian average.
7. The proposal would comply with that policy insofar as the proposed EGMs would be in the suburb of Golden Square where the density of EGMs is below the regional average. However, it would not meet the second part of that policy with respect to adjoining suburbs that have higher than the regional average density of EGMs.
8. This part of the policy was criticised in evidence[12] as being impossible to comply with and commented upon by the VCGR[13] as being too restrictive. It is not our role to review the policy but we regard it as one of a number of parts of the policy requiring consideration and, consequently, failure to comply with it is not a "knock-out" point.[14]
9. The Applicant emphasised the nature of the venue and the new initiatives proposed by the operator with respect to responsible gaming. The accessibility of EGMs is affected by considerations such as density, location, the size of a venue and nature of the venue.[15] These are factors we have considered in our decision. The package of responsible gaming initiatives endeavours to manage the venue in a way that minimises problem gambling and equips the venue to deal with problem gambling. They are a positive part of the proposal and can contribute to a culture of more responsible gaming albeit the potential for problem gambling cannot be prevented entirely.
10. The addition of a new venue is at the core of the Council's concern. By adding a new venue at the location proposed:
    • The distribution of EGMs in the locality would change.
    • The gaming machines would be introduced into an area that is already well exposed to, and has ready access to, EGMs.
    • A sizeable proportion of custom would be drawn from beyond five kilometres (around 49% based on the patron survey referred to in Ms Peterson's evidence). This proportion could be expected when taking into account the location of the site in a major regional centre and the fact that the venue operates conferences and functions that could reasonably include a wider catchment than, for example, a local pub.
11. We consider these factors would lessen the risk and negative impact upon the community resident within five kilometres of the Foundry Hotel.
12. While not expressly referred to as a consideration in the local policy, we have taken into account the views expressed in the community survey. This was influential to the Council's decision to refuse a planning permit. [16] We have not sought to critique the survey methodology or "drill down" into views or perceptions it contains. We are aware of the reasonable response rate and strength of view expressed (around 75% opposition) including responses to open-ended questions. We do not consider it proves increased social disadvantage. However, we accept it as an indicator of concern and impacts on the image of the locality that are relevant to a decision.
13. We also observe Ms Peterson's evidence that research shows 85% of Victorians see gaming as a problem and therefore opposition amongst this community to gaming is consistent with the Victorian perception generally.
14. We have not yet identified and acknowledged the positive elements of the proposal referred to in submissions and evidence. They are relevant to our consideration of whether the proposal would derive "a net community benefit" as specified in one of the decision guidelines of Clause 22.28. Examples include increased opportunities for responsible gaming in the locality as a legitimate past time, returns through flow-on purchases to businesses, some additional employment, and an annual community donation of $50,000.
15. To conclude, the proposal does not fully comply with the local policy as it relates to social disadvantage and the density of EGMs in adjacent suburbs but the specific circumstances of the site, venue and locality are relevant to how this non-compliance is weighed in balancing all relevant considerations as we discuss below. It is significant that the site is not within the area expressly discouraged for gaming by the local policy.

Is the location likely to encourage convenience gaming?

1. The Council's submission referred to the review site being highly visible, in a gateway to Bendigo, metres from a bus stop, and opposite a supermarket. It submitted the entry to the gaming room would be convenient and accessible from Shamrock Street opposite the supermarket car park. It recognised the low pedestrian volumes identified in Ms Peterson's pedestrian survey but said the supermarket attracts significant numbers of people and the location has the potential to result in more impulsive convenience gaming. The Council remained critical of the entry arrangements from Shamrock Street, however, submitting the entry would not result in patrons passing through the bistro before becoming aware of the gaming room. These submissions were challenged by Drayton Manor primarily through the evidence of Mr Twite and Ms Peterson.
2. Policy seeks to minimise the potential for spontaneous decisions to game and convenience gaming within the broader context of reducing the incidence of problem gambling. Sites with large numbers of pedestrians passing in the course of their daily activities or where there are high concentrations of people undertaking daily activities are discouraged for these reasons.
3. We find:
   • The site is within walking distance of, and proximate to, the "higher order" activity centre of Golden Square but is not within that centre. The site is closer to the Business 1 Zone containing a supermarket but not physically linked with that stand-alone supermarket and petrol station. It is physically separated from the police station and bulky goods precinct that are on the opposite side of the Calder Highway east/north-east of the site.
   • The existing volume of pedestrian traffic past the Hotel is relatively low based on the evidence of Ms Peterson[17] and observations made by others in submissions and evidence[18]. Evenings and weekends appear busier than weekdays. Our inspections have been consistent with this material. That contrasts with the area of much higher pedestrian activity within the supermarket itself and car park.
   • There is no significant people-attractor abutting the review site on the same side of the Calder Highway. The supermarket is separated by a road and angled car parking spaces. Supermarket customers from the nearby residential area may walk past the Foundry Hotel but the numbers are not large or concentrated. The same appears to be the case with respect to the use of the bus stop. Pedestrian signals to access the supermarket are at Thistle Street.
   • The new development would be visible from the supermarket and its car park but the Hotel is already apparent and the new works, particularly the ground level form of the addition, would not change the appearance so as to specifically draw attention to the presence of gaming machines in the premises. Importantly, that is assisted by the fact that signage drawing attention to the presence and availability of gaming machines will be restricted under the gaming regulations.[19] While local people will be likely to know about the presence of gaming machines, the visual cues would not be readily apparent. [We note that the relationship is of a much lesser order than, for example, the physical relationship between the Windermere Hotel and an Aldi supermarket].
   • There is access to the facility by two bus services and the Calder Highway but it is offset from the main road. The Foundry is more of a destination venue than a convenience venue.
4. The Council placed some reliance on the findings of the VCGR about the proximity of the review site to the supermarket that was said to be a "problematic aspect of this application" [20]. We note, however, that the Commission's concerns were substantially allayed as it explained in the same paragraph:

Inspection of the site somewhat mitigates concern about proximity to the supermarket, although it is a problematic aspect of this application. The roadway separates the supermarket from the hotel. While the entrance to the bistro is well defined, entry to the gaming room would be either through the bistro or via the entry on the opposite side to the supermarket. An existing single gate in a brick wall opposite the supermarket is to be closed off. A patron would make a deliberate decision to visit the premises, rather than stumble on it.

1. Based on the application plans, the entry to the gaming room would be available from[21]:
   • The bistro entry which comprises a main door and then a second door leading directly into the northern side of the bistro with a feature screen wall marking one side of the gaming room.
   • The rear car park from which two entries would be available - one direct to the gaming lounge and the other into a corridor leading to the western end of the bistro.
   • Entries that lead into the public bar.
2. The site has a relatively high profile even though it is off-set from the Calder Highway and is no doubt well-known in the area and region. We agree with the Council that the relationship with the supermarket is particularly sensitive even though there appears to be limited pedestrian flow between the Hotel and the supermarket and its car park. Most specifically, the proposed layout in the original plans caused some concern with respect to the bistro entry that is prominent in Shamrock Street. This was because the gaming room was proposed immediately to the right of the entry with machines visible from only a few metres inside the second door.
3. We considered this aspect of the proposal could be further improved and has been in the revised plans. The layout has been modified to provide a lounge close to the bistro before then entering the main gaming room/s. This ensures a much reduced level of visibility. The plans also show 25 EGMs rather than 30.
4. We have also considered the potential visibility of, or apparent presence of, EGMs given the courtyard with window panel that abuts Shamrock Street. The visibility of EGMs should be masked. Noise associated with the gaming room may be presented to the courtyard and emitted beyond the site. This was not, however, a concern raised by the Commission with respect to the earlier design (which had a similar layout but smaller courtyard). We consider the detailed design can be addressed in the endorsement of plans so that the potential for any noise emissions can be resolved in association with the Council including any covering over all or part of the courtyard mindful of the requirements for external smoking areas under the Tobacco Act 1987. The suggestion for a pergola is referred to in the later material but that is something that can be resolved with the Council. We note the provision of an operable screen gate in the courtyard that would separate gaming patrons in the courtyard from other patrons.
5. For the above reasons, we find the location of the proposed gaming machines would (with some revisions) be sufficiently separated from areas of high pedestrian activity and that the location, design and layout would sufficiently minimise opportunities for convenience gaming.

1. In conclusion on the gaming component of the planning permit application, we find the proposal achieves an acceptable level of compliance with the local policy. While it fails one arm of the density considerations, it performs satisfactorily against all other location criteria with respect to appropriate areas and venues as set out above and summarised in Appendix 1.

1. The Foundry Hotel is graded 'C' in the local heritage study. The proposal involves some demolition and buildings and works for which a permit is required under the HO and NCO. Based on discussions between the Council and Applicant, the revised proposal lowers the addition to be single storey and sets back the addition behind a brick wall. It extends the development closer to No. 33 Shamrock Street which is owned by the Applicant. We understand that the revised layout, built form and elevations meet the concerns of both heritage experts who had prepared witness statements in this proceeding. This was not a matter raised in the grounds filed by Ms Grygierczyk.
2. Having regard to the purposes and decision guidelines of the Residential 1 Zone, HO, NCO1 and applicable policies such as Clause 22.15, we find the proposed demolition and buildings and works to be acceptable (based on the revised plan and conditions proposed by the Responsible Authority) for the following reasons:
   • The single storey form and setback from Shamrock Street limit the extent to which the development would obscure, compete with or detract from the heritage significance of the Hotel.
   • The contemporary design and materials will sufficiently complement the existing Hotel and previous addition.
   • The revised design retains wall elements from the 1920s and will replace some altered fabric but the details are not fully resolved.
   • The form will be respectful of the adjacent areas that are within HO11 or NCO1.
3. There is no dispute between the parties with respect to the proposed internally illuminated signage (for which details are required and compliance with the relevant regulations with respect to gaming must be achieved).

Is an acceptable outcome achieved with respect to car parking?

1. We understand from the material presented to the Council that parking has become an issue for the local community given the patron capacity permitted under the liquor license. The proposal before us will not increase the permitted number of patrons but would change the lounge area, and add offices and a function facility in addition to the proposed gaming lounge.
2. The expanded floor area would require 26 additional car spaces based on the requirements of Clause 52.06. Those plans would result in a loss of two car spaces. The revised plans result in fewer car spaces (total 46) and a larger floor area (by around 110 square metres).
3. Mr Symons' evidence assesses the application plans and concludes the amount of parking available to service the expanded Hotel is acceptable and notes the potential to create more parking by revising the parking layout as shown in Figure 3.1 of his evidence to achieve 59 spaces - a net increase compared with the existing 51 spaces. That also requires relocation of a fence. Based on that revised parking layout, and the revised Hotel layout, the 59 spaces would fall to 46 spaces.
4. We accept the Hotel can be busy but we are satisfied that the proposed expansion to the floor area, without any change in patron limits, is acceptable as there is sufficient public parking capacity in the immediate environs to absorb overflow when required. That does not mean people will always park in the Hotel car park on-site but we are satisfied that the impacts and impost on the public realm are acceptable.
5. We consider the revised parking layout on-site is appropriate with the disabled car space being conveniently positioned relative to the rear bistro entry.
6. We note the Council did not raise any concerns about this aspect of the permit application and said any parking impacts associated with the revised plans would be minimal.

1. For the above reasons, when considered overall, we find the proposal would produce acceptable outcomes with respect to the range of considerations we are required to balance. The proposal complies with most aspects of the local gaming policy. While there is potential for increased social disadvantage as occurs through any application for more gaming machines we are satisfied that potential can be minimised.
2. We are influenced in this conclusion by the small number of gaming machines, the scale and extent of other activities associated with this established venue, and the ability to refine the proposal to further reduce the potential that exists mindful of the presence of the nearby supermarket. There are also other elements of the proposal such as responsible gaming initiatives. Other elements of the proposal are not contentious based on plan revisions to which we have referred and accept subject to conditions.

SHOULD THE DECISION OF THE VCGR BE VARIED OR SET ASIDE?

1. In this part, we address Application for Review No. B182/2010.

1. The VCGR found the proposal would meet the "no net detriment" test in referring to the advantages as[22]:
   • Provision of gaming for locals and visitors in addition to the range of other options already provided.
   • A small number of jobs that would be created (six).
   • The presence of two other hotels in the immediate vicinity which do not have EGMs so non-gaming options are available to those who do not wish to gamble.
   • A contribution of $50,000 per annum to community groups (although it observed that this was "not a large amount"[23]).
2. The Commission also referred to the high regarded and well run venue and the management's intention to adopt a Responsible Gaming Policy.
3. It considered the views of the community and evidence of Ms Wallace.
4. The major negative effect identified by the Commission was the relative social disadvantage of Golden Square and the two postcode areas that are within the Foundry Hotel's primary catchment. However, the impact was found to be "less than might at first appear" because of the existing exposure to EGMs and the fact that the major of venues within the municipality are located in areas of equal or greater disadvantage when compared at collector district level.[24] The Commission also gave weight to Bendigo's role as a tourist and regional centre, and the Foundry Hotel itself, meaning that high density of EGMs and EGM expenditure per adult is "diluted" by the fact that a high proportion of patrons are likely to come from outside the primary catchment.
5. The Council seeks a review of this approval on the basis that the Commission failed to give weight, sufficient weight, or proper regard to a range of matters including the conditional nature of Ms Peterson's support for the proposal, the Council's gaming policy, the community survey, the concentration of existing gaming machines within a five kilometre radius of the Foundry Hotel, the average distribution of gaming losses and distribution of EGMs per head of population in the municipality when compared with the regional average, the level of socio-economic disadvantage and social stress.

1. The proposal before the VCGR was for 30 EGMs. It was supported by Ms Peterson on the basis that the EGMs would be relocated within the municipality and thus there would be no net increase in EGMs.
2. This was said to be important in her evidence and in reaching a favourable assessment.
3. With respect to this evidence and a condition proposed by the Applicant that there be no net increase in the number of gaming machines in the locality, the VCGR said[25]:

...The Commission noted her view, which indicates the extent of the negative socio-economic aspects of the application, and the degree to which this application is finely balanced. However, the Commission does not consider that the condition proposed would be appropriate or capable of implementation in the new gaming environment. Provisional data published by the Department of Justice indicate that a total of 615 gaming machine entitlements (GMEs) were purchased for the City of Greater Bendigo, which is 68 in excess of the number of egms currently in the city but is still 141 below the municipal limit of 756. In the Commission's view, it would not be equitable for the holders of those additional GMEs to be denied venue approval solely in order to prevent an increase in the total number of egms in the municipality.

1. Since the VCGR decision:
   • The proposal has been amended so that it comprises a total of 25 EGMs operating between 11am and 1am the following morning.
   • The auction process has seen entitlements purchased above the existing number of EGMs which was not an expected outcome based on Ms Peterson's opinion to the VCGR.
   • Updated information is available with respect to gaming expenditure in the City of Greater Bendigo which shows a reduction from 2009 figures (also noting that 2009 coincided with Federal Government stimulus measures).
   • The contribution of $50,000 remains part of the proposal but the likely recipients have changed.
2. These and related changes referred to in Ms Peterson's evidence[26] would result in a reduction in gaming expenditure to off-set the potential disadvantage and have provided the basis for her current position that the proposal is acceptable and results in no net detriment. That contrasts with the opinion expressed to the VCGR that there would be "a slightly positive benefit to the local community and the City of Greater Bendigo"[27]. She also said in questioning by the Tribunal that the current form of the proposal would not have a net benefit.

What are the relevant considerations in the "no net detriment" test?

1. The decision by the VCGR examines whether the net economic and social impact of approval will be detrimental to the well-being of the community of the municipal district in which the premises are located. As other Tribunal decisions have indicated, analysis of part of the municipality as part of the assessment can be reasonable particularly with respect to the primary catchment.
2. The key considerations in the VCGR decision, and matters raised in the Council's grounds, are the density of EGMs, existing and projected levels of expenditure on gaming, the existing and projected levels of social disadvantage, other indicators of community well-being, community views, economic impacts, and the proposal's response to the Council's gaming policy. We have substantially dealt with spatial and location considerations relating to accessibility in the context of the planning permit application including in the context of the Council's gaming policy.
3. We were presented with evidence from some of the same witnesses as appeared before the VCGR (Ms Peterson and Mr Clyne for Drayton Manor and Ms Wallace for the Council). We were also presented with evidence from Mr Gill for the Council who did not appear before the VCGR whereas the Commission received evidence on behalf of the Council from Messrs Nichol and Pinge. We do not intend summarising all of the evidence before us as it is all retained on file and has been fully considered.

What are the likely impacts on EGM density and EGM expenditure?

1. Changes in EGM density and EGM expenditure are indicators of EGM accessibility and potential harm from gambling.
2. We have indicated that the density of EGMs for the City of Greater Bendigo is higher than the Victorian country average and, assuming no transfer of EGMs, the proposal would increase that density by 4.57%. The municipal ranking would be changed from 32nd to 31st of the 39 country LGAs (ascending order). We have also stated that the increase in density may be counterbalanced by population growth particularly given the EGMs would not be operational until 2012. These calculations will further fluctuate with any other changes in EGM numbers and population.
3. Above, we have acknowledged the range of variables and assumptions that underlie the evidence about the amount of EGM expenditure that would be transferred from existing gaming machines to the new machines. The impact of the 2009 economic stimulus package, changes in population numbers, the base number of EGMs referred to in an analysis are just a few examples. Each expert analysis has a purpose that is of relevance and we are not prepared to conclude either is fatally flawed.
4. A transfer of expenditure will occur to some degree but there can be no certainty as to actual amount. The data presented by Mr Gill seeks to demonstrate the actual transfer of expenditure in three cases compared with projections. This is of interest insofar as the projections appear to over-estimate transferred EGM expenditure. There are, however, circumstantial differences in those three examples compared with the situation of the Foundry Hotel and Bendigo. Even so, we are persuaded to accept that an estimate of 80% transferred expenditure adopted by Mr Clyne is too high and that a lower figure is more likely. We consider it unlikely that the Foundry would under-perform other venues to the extent an 80% figure suggests or that the offer of 25 new EGMs will cause a significant transfer from other venues in the primary catchment. There are also the tourism and regional roles of the venue and Bendigo that further suggest that 80% is too high. Further, Mr Clyne's analysis includes an amount for new responsible gaming initiatives and while we accept that there can be expected to be new responsible gaming regulations we find those impossible to quantify as their nature, extent and timing are uncertain.
5. Whether we adopt 50% or another figure such as 70%, we consider the increase in expenditure is such as to be a potential concern when also considered with the fact that gaming expenditure in the municipality is above the regional average, the existing level of social disadvantage (as reflected through the SEIFA Indices at postcode, suburb and collector district) and the proposal would introduce a new venue. The lower the transfer rate the greater the likely negative impact. But, in overall terms, the degree of impact will still be low regardless of which figure or range of figures might be adopted and must be seen in the context that although there is some level of disadvantage at the municipal and sub-municipal levels that disadvantage is not, in relative terms, high.
6. There is also a negative impact on the way some members of the community will perceive the venue and their local area. We have referred to the survey previously as one indicator of an impact on well-being. The individual survey responses listed through Ms Wallace's evidence demonstrate general concerns with gambling and gaming, concerns about gaming in Bendigo, and concerns about gaming at the Foundry. Because there are amply non-gaming venues in the area, it is relevant that people will have a choice not to dine or drink at the Foundry Hotel because they oppose gaming machines in this location.
7. We also are mindful of the higher level of concern compared with, for example, a similar survey for the Kangaroo Flat Sports Club proposal.[28] We have also taken into account the Council's different positions in each application which demonstrates to us that it is seeking to balance all relevant considerations and not saying "no" to any proposal[29].
8. However, there are counter-balancing factors to these negative outcomes. They include the small size of the proposed gaming facility, the small component of the Foundry's facilities that the gaming component would represent, the existing level of accessibility of EGMs nearby, the tourism and regional roles of the venue and Bendigo that will bring patrons from locations well outside the primary catchment and the ongoing growth of Bendigo (albeit the Foundry is not within a specified growth area). There are several other positive social impacts. The proposed facilities will benefit responsible gamblers through choice and accessibility although we accept that gambling and gaming are not desired by many but are legitimate and lawful pursuits. In addition, the financial contributions that will be to groups in the local community including a provider of responsible gambling counselling.

1. The types of the economic impacts of the current proposal are similar to many other proposals for gaming machines. In positive terms, they focus on additional employment and flow-on expenditure as a consequence of new expenditure including for local goods and services through local suppliers.
2. Negative impacts have been referred to above including an increase in EGM expenditure and the loss of some revenue from existing businesses.

How does the proposal respond to the Council's gaming policy?

1. We have essentially dealt with this matter above. Our consideration is not changed from the findings we have previously made and that are summarised in Appendix 1.

1. Balancing social and economic factors is not an easy task. The relative weighting is a matter of judgement and relative impacts. In this case, it is relevant that the proposal has a high level of compliance with the local gaming policy, involves a modest number of EGMs at a destination venue, is in an area that has some social disadvantage but not a high level of such disadvantage, and will be at a venue and location that will draw custom from beyond the areas of relative disadvantage thereby limiting the degree of risk of a potential increase in problem gambling.
2. For these, and the above reasons, when considered overall, we find 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.

1. For the above reasons, we find:
   • The decision by the Victorian Commission for Gambling Regulation dated 9 July 2010 should be varied to allow 25 EGMs.
   • The decision by the City of Greater Bendigo to refuse planning permit application no. PADC/759/2009 should be set aside and the permit should issue.

The Tribunal's conclusions against the objectives of Clause 22.28-2 are:

To discourage new gaming machines in disadvantaged areas.

The site is in a locality and area experiencing some social disadvantage. The level equates to other parts of the municipality. The impact of new EGMs will be mitigated by the existing level of access and exposure to EGMs within 2.5 - 5 km and the patronage that includes a sizeable proportion of custom would be drawn from beyond 5 km.

To ensure the location of gaming machines and design and operation of facilities containing gaming machines minimise opportunities for convenience gaming and the incidence of problem gambling.

Subject to some modifications to the internal layout and limits on courtyard access, the proposal complies.

To ensure that gaming machines are located where the community has a choice of non-gaming entertainment and recreation activities within the venue or in the local area.

To protect the amenity of existing uses surrounding gaming venues.

The conclusions of the Tribunal's assessment against the policy of Clause 22.28-2 with respect to "Appropriate areas" are:

Gaming machines should not be located in areas identified in Greater Bendigo Discouraged Gaming Areas Incorporated Document.

Gaming machines should be located in areas that meet at least one of the following criteria:

∗ The total density of gaming machines in the suburb and its adjoining suburbs is less than the regional Victorian average.

Complies with respect to the suburb of Golden Square but does not comply with respect to adjoining suburbs.

∗ The area is identified as a future residential growth area in the Municipal Strategic Statement.

The area is not a designated future residential growth area in the MSS at Clause 21 but some modest growth can reasonably be expected based on the development policies within the Scheme.

Gaming machines should be located proximate to higher order activity centres shown on the map attached to the schedule to clause 52.28-4.

Complies with respect to Golden Square activity centre shown in Clause 52.28-4.

Gaming machines should be located where there is a reasonable choice of alternative non-gaming entertainment and recreation facilities, including facilities proposed within 12 months. Alternative non-gaming entertainment and recreation facilities include hotels, clubs, cinemas, restaurants, bars and indoor recreation facilities operating at the same times as the proposed gaming venue will operate.

The conclusions of the Tribunal's assessment against the policy of Clause 22.28-2 with respect to "Appropriate sites" are:

Gaming machines should not be located on sites where large numbers of pedestrians are likely to pass in the course of their daily activities, increasing the likelihood of spontaneous decisions to play gaming machines.

Gaming machines should be located on sites that meet at least one of the following criteria:

∗ The site is towards the periphery of an activity centre, outside of the main shopping, transport, community and civic functions of the centre, or within walking distance of the edge of an activity centre,

∗ The location could reasonably be perceived as a destination in its own right separate from high concentrations of people undertaking daily activities, or

∗ At a sports or recreation club with a land holding of more than 2 hectares.

Does not comply but two of the other criteria are met consistent with the policy.

The conclusions of our assessment against the policy of Clause 22.28-2 with respect to "Appropriate venues" are:

Gaming machines should not be located in venues that have 24 hour a day operation or have a gaming floor area of more than 25 per cent of the total floor area of the venue.

Gaming machines should not be located where the gaming or any associated use will detrimentally affect the amenity of the surrounding area by way of design location or operating hours.

• The installation and use of 25 electronic gaming machines;
• Demolition, buildings and works under Clauses 43.01 and 43.05;
• Buildings and works under Clause 32.01;
• Signage under Clause 52.05;
• Waiver of parking under Clause 52.06;
• Dispensation from loading facilities under Clause 52.07;
• Permission to supply and consume liquor under Clause 52.27;

1. Before the development & use commences, 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 show:
   • (a) Changes generally in accordance with the plans as provided to the Tribunal under cover of letter of 15 March 2011 - Leave is given to the Applicant to substitute for the application plans the plans marked as TP01_A (07/02/2011), TP02_A (07/02/2011), TP03_A (26/10/20091), TP03_B (26/10/2009), TP04_A (11/02/2011), TP05_B (07/02/2011), TP06_A (26/10/2009), TP07_A (26/10/2009) and TP07_B (26/10/2009);
   • (b) Complete and correct dimensions;
   • (c) A notation that the existing sandstone section of the in-filled façade must be retained;
   • (d) Modifications to show correct window shapes and proportions on the parts of the building to be retained and the parts of the new building;
   • (e) If the brick wall extending from the existing north-west corner of the building on Shamrock Street, to No. 33 Shamrock Street is to be removed, then it must be replaced with a brick wall of no greater than 2 metres in height of similar style to that currently existing;
   • (f) A full schedule (including samples) of construction materials, external finishes and colours;
   • (g) A landscape plan in accordance with Condition 2;
   • (h) A Construction Management Plan in accordance with Condition 8;
   • (i) Any treatment required to ensure that there is no potential for noise escape of gaming machines off the site notably along the Shamrock Street frontage adjacent to the courtyard;
   • (j) Any treatment associated with the courtyard to enable non-gaming patrons to access the courtyard without entering the gaming room;
   • (k) The courtyard to comply with the requirements of the Tobacco Act 1987;
   • (l) All signage to comply with the requirements and restrictions of the Gambling Regulation Act 2003;
   • (m) A demolition plan including appropriate protective measures for, in particular, the north-west corner of the building and its abuttals;
   • (n) Bicycle parking to comply with Clause 52.34.
2. Before the development starts, a landscape plan to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plan will be endorsed and will then form part of the permit. The plan must be drawn to scale with dimensions and three copies must be provided. The landscaping plan must show:
   • (a) A survey (including botanical names) of all existing vegetation to be retained and/or removed;
   • (b) Details of surface finishes of pathways and driveways; and
   • (c) Planting schedule of all proposed trees, shrubs and ground covers, including botanical names, common names, pot sizes, sizes at maturity, and quantities of each plant.

All species selected must be to the satisfaction of the Responsible Authority.

1. The use and development as shown on the endorsed plans must not be altered without the written consent of the Responsible Authority.

1. No more than 25 gaming machines are permitted to be installed or used in the gaming area. The gaming machines must only be available for use between the hours of 11am and 1am the following morning and only when the Hotel is permitted to open under its liquor license.
2. Before the use and installation of gaming machines commences, a Responsible Service of Gambling Management Plan is to be submitted to the satisfaction of the Responsible Authority. The Plan must provide details of access to gaming lounge and include:
   • (a) Measures to identify problem gamblers; and
   • (b) The training of staff in the responsible service of gambling.

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.

1. No more than 744 patrons are permitted on the Subject Land at any one time.

1. Before the development commences, a Construction Management Plan (CMP) to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the CMP will be endorsed and will then form part of the permit.

1. 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.
2. 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.
3. No music, of a background level or otherwise, may be played in the external courtyard adjacent to the gaming lounge after 10pm on any day.

1. 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.
2. 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
   • (c) the emission of noise, artificial light, vibration, smell, flumes, smoke, vapour, soot, ash, dust, waste water, waste products, grit or oil.
3. 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.
4. 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.
5. 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.
6. The venue must ensure that all advertising in relation to the Premises contains the words 'Free parking provided on site. Enter from Shamrock Street'.
7. The site must be drained to the satisfaction of the Responsible Authority. Storm water run-off from the site must not cause any adverse impact to the public, any adjoining site or City of Greater Bendigo asset. Stormwater from all paved area must be drained to underground storm water system. Any cut, fill or structure must not adversely affect the natural storm water runoff from and to adjoining properties.
8. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into the City of Greater Bendigo's drains or watercourses during and after development.

1. Prior to demolition of the relevant parts of the building, the Responsible Authority must receive not less than 72 hours notice of the proposed demolition so that the Responsible Authority (through its authorised representatives) may be present to inspect the internal fabric of the roof and any related areas with a view to recording same for interpretative purposes relating to the heritage status of the building.

1. This permit will expire if:
   • (i) the development and use are not started within four years of the date of this permit; or
   • (ii) the development is not completed within five 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.

[1] The permit applicant agreed to plan changes to show bicycle parking in accordance with Clause 52.34.

[2] We have considered all submissions, evidence and other material presented by the parties although we do not recite all of the contents in these reasons. This includes submissions filed and served with our leave subsequent to the hearing.

[3] The other sub-sections are generally agreed between the parties.

[4] The "no net detriment" test referred to by the Tribunal in Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364. Amendment VC71 replaced the SPPF but the point is the same for this part of the Scheme that is now found at Clause 10.04.

[5] Sayers Property Holdings Pty Ltd v Wyndham CC [2010] VCAT 1364 at paragraph 18.

1. [6] Bright Newbay Pty Ltd v Bayside CC [2010] VCAT 1347 at paragraph 9.
2. [7] The review site is not located in a shopping complex or a strip shopping centre and is not prohibited under Clause 52.28.

[8] 2008. The plan is based on 2006 ABS data which is relevant today. The same data was used by Ms Peterson and Mr Quick.

[9] These are located within a Business 1 Zone and separated from the review site by Shamrock Street. A Business 4 Zone is located on the south-east side of the Calder Highway/High Street, east of the review site.

[10] Paragraph 52 of the decision dated 9 July 2010 explains why such a condition was not considered appropriate.

[11] Based on Ms Peterson's evidence at page 26. While only one survey, the profile is not unusual and is not challenged by the Council as being atypical for this type of facility in this locality.

[12] Mr Twite's evidence at 18. Ms Peterson's evidence at page 65 notes an inconsistency of that outcome with the municipal cap.

[13] Paragraph 55 of the decision dated 9 July 2010.

[14] That point is underscored by the fact that the Council has resolved not to oppose 12 additional EGMs at the Kangaroo Flat Sports Club that would result in a total of 60EGMs at that facility. Each case must be assessed on its own merits. The report to the Council states, in part, that the change in EGM density if the Kangaroo Flat proposal proceeds will be small and that the growth in the number of EGMs will be offset by strong population growth in the area. It also notes community opposition at 49.6% based on a survey it conducted.

[15] Ms Peterson's evidence at pages 58-61 identifies these and related matters.

[16] Paragraph 4.3 of the Council's written submission with respect to the planning permit application.

[17] Appendix C of Ms Peterson's statement of evidence.

[19] Gambling Regulation (Signage) Regulations 2005.

[20] Paragraph 42 of the decision dated 9 July 2010.

[21] As noted in the extract above, the gate facing Shamrock Street would be removed

[22] Paragraph 53 in the decision dated 9 July 2010.

[23] Paragraph 54 in the decision dated 9 July 2010.

[24] Paragraph 57 in the decision dated 9 July 2010.

[25] Paragraph 29 in the decision dated 9 July 2010.

[26] Section 16 at pages 74 - 75 of the statement of evidence.

[27] Page 61 of the statement of evidence dated November 2009.

[29] As some of the criticisms about its local policy might suggest.