In its recent decision, Gaming Machine Association of New Zealand Incorporated v Feed Families Not Pokies Aotearoa Incorporated [2025] NZCA 16, the Court of Appeal has emphatically confirmed the role of territorial authorities in relation to the location of pokie machine venues in their districts.

Context: pokie machine venue licences

Operators of electronic gaming machines, commonly known as pokie machines or pokies, must hold a venue licence (a “class 4” licence) under the Gambling Act 2003. That Act provides for councils to adopt a policy relating to class 4 venues. This gambling policy sets out whether class 4 venues can be established in the district or not, and if so their location; and may restrict the maximum number of pokie machines at a venue. 

Applications for venue licences are made to the Secretary of Internal Affairs, however an application must have the council’s consent for matters covered by its gambling policy. Consent is given or refused in accordance with the policy.

The law and practice prior to the Court of Appeal decision

Venue licences relate to a particular “venue”. In 2013, the High Court ruled^[1] that certain minor changes in location of class 4 premises did not amount to a change of venue. This case is known as the Waikiwi decision, after the name of the tavern in question. Waikiwi Tavern in Invercargill was proposing to shift to a new site very close by - separated from its existing site by only one intervening property.  Whether this amounted to a change of venue had implications for the permitted number of gaming machines at the new location: if the shift was not a change of venue, the Tavern could take with it its existing licence for 18 gaming machines; but if the shift was a change in venue, the Tavern would only be entitled to the then maximum 9 machines at the new site. 

The Court held this was not a change in venue because (1) the change in location was minor; (2) the name of the tavern would remain the same; (3) the ownership and management of the tavern would not change; and (4) patrons and the public would regard the tavern as being the same venue.

Shortly after this decision, the Gambling Act was amended to say that a council’s gambling policy may cover relocation: if and when a class 4 venue may change its location. Council consent was now required for relocation.

Nevertheless, the Secretary of Internal Affairs took the view, at least initially, that the Waikiwi decision continued to apply to minor changes in location. Such changes were not changes in “venue” and therefore council consent to relocation was not necessary. Although the change in premises in Waikiwi itself was very minor, there was some “mission creep” in the way it was applied by the Secretary – for example, one relocation was to a site 600 meters away. 

Following reconsiderations in 2018 and again in 2023, the Secretary announced a revised position, saying that any shift in premises was a change of location requiring council consent. The Gaming Machine Association challenged this approach and was unsuccessful in the High Court. It appealed to the Court of Appeal.

Court of Appeal decision

The Court rejected the appeal. It held that any shift in physical location is a change in venue, requiring council consent. There is no room for “Waikiwi relocations”. The Court’s decision could not have been clearer:

If the gambling is going to take place in a different location or place, no matter how far away or close by, that move can only be permitted through the relocation regime introduced by the 2013 amendments. At that point… the consent of the territorial authority is required. In the event that the territorial authority has not developed a relocation policy, or the relocation policy adopted does not permit any relocation, this means consent will not be able to be obtained and any proposed relocation will not be permitted.

In reaching its conclusion, the Court emphasised the Act’s policy of placing the question of “if and when” a venue can be relocated in the hands of the council through its gambling policy, thereby facilitating community involvement.   

Take-outs from the decision

The decision is important in definitively ruling out any possibility of the Secretary treating “minor” relocations (including deciding what is a minor relocation) as not amounting a change in venue, thereby removing the need for council consent. It restores local decision-making in all relocation proposals, however small. 

Of course, council consent must still be decided in accordance with its gambling policy. Councils may wish to check that minor venue changes are adequately covered in their policies, which may have been drafted on the basis that, under Waikiwi, such applications would not have reached them for decision.

Please get in touch with one of our experts to discuss any aspect of this article and its potential impact on your business.