Fairfield City Council v Liquor Administration Board

[2001] NSWSC 870

CITATION:	Fairfield City Council v Liquor Administration Board & Ors [2001] NSWSC 870
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30007/01
HEARING DATE(S):	05/09/01 06/09/01
JUDGMENT DATE:	9 October 2001
PARTIES :	Fairfield City Council (Pl/Appl) Liquor Administration Board (1 Def/1 Resp) Actwane Pty Limited (2 Def/2 Resp) James Michael Edward Spradbrow (3 Def/3 Resp)
JUDGMENT OF:	Kirby J

COUNSEL :	Dr G A Flick SC/T Thawley (Pl/Appl) Submitting Appearance (1 Def/1 Resp) S Austin QC/T Hatzis (2 & 3 Defs/2 & 3 Resps)
SOLICITORS:	Kencalo & Ritchie (Pl/Resp) I V Knight, Crown Sol (1 Def/1 Resp) Back Schwartz Vaughan (2 & 3 Defs/2 & 3 Resps)
CATCHWORDS:	Administrative Law - Appeal against decision of Liquor Administration Board - Whether Board addressed right question - Wrong section of Act referred to - Meaning of consultation - Statutory scheme under Liquor Act with respect to gaming provisions - Procedural fairness - Right to respond to material provided to Board under the Act and at Common Law
LEGISLATION CITED:	Liquor Act, 1982 Gambling Legislation Amendment (Gaming Machine Restrictions) Act, 2000 Registered Clubs Act, 1976
CASES CITED:	Jackson v Director-General of Corrective Services (1990) 21 ALD 261 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 590 Hart & Ors v Bell & Ors (unreported, C of A, 6.11.92) Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 Lumber Specialties Ltd v Hodgson (2000) 2 NZL 347 T V W Enterprises Ltd v Duffy (No 2) (1985) 60 ALR 687 Port Louis Corp v Attorney-General of Mauritius [1965] AC 111 R v Secretary of State for Social Services; Ex parte Assn of Metropolitan Authorities [1986] 1 All ER 164 Wilkie & Anor v Attorney General for NSW & Liquor Administration Board (Foster J, unreported, 9/12/86) Penna v The Liquor Administration Board & Anor [2001] NSWSC 681 Kioa v West (1985) 159 CLR 550
DECISION:	Ref para 87

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

KIRBY J

Tuesday 9 October 2001

30007/01 - FAIRFIELD CITY COUNCIL v LIQUOR ADMINISTRATION BOARD & ORS

JUDGMENT

The Fairfield City Council (“the Council”) seeks a Declaration that a decision of the Liquor Administration Board (“the Board”) in favour of the owners and licensee of the Canley Heights Hotel (“the Hotel”) is null and void. The decision gave the Hotel permission to use 15 gaming machines at the premises.

Background

2 Under the Liquor Act, 1982 (“the Act”), a person with a hotelier’s licence may seek its removal from premises at one location to premises at another. An application was made to the Licensing Court to transfer a hotelier’s licence to premises at Canley Heights. The application attracted a number of objections. The objectors included the Fairfield City Council.

3   A hearing was conducted by the full bench of the Licensing Court (Mr D B Armati, Mr D A Collins and Mrs D A Kok). Plans of the proposed hotel were tendered. The plans identified a gaming room and other facilities. The substantial issue was whether there was a need for an hotel of the type proposed within the Canley Heights area. On 29 November 1999, the Court gave its decision. It determined there was such a need. It said this:

“83. Whilst the applicant’s witnesses are said not to have demonstrated a need by the objectors we come to a different conclusion. Allowing for the deficiencies in their evidence, which we have summarised, there nevertheless is an overwhelming case presented by their evidence, and that of the other applicant’s witnesses, which demonstrate the meeting of the need outlined by the applicant.
84. We do not find that the outlets in and outside the neighbourhood which we have described in considerable detail meet that need.”

4   An order was made permitting the conditional removal of the hotelier’s licence to the premises at Canley Heights.

5   The owner of the hotelier’s licence was a company, Actwane Pty Limited (the second defendant). That company fitted out the premises. It then made application to the Licensing Court for a final order under s60 of the Act, permitting it to trade. On 25 August 2000, the Court made such an order. Mr James Spradbrow (the third defendant) was the licensee.

6   On 7 September 2000 application was made to the Liquor Administration Board under s161(1) of the Act, for permission to use 15 approved gaming devices at the premises. The Board, at that time, had the power to impose a condition on a hotelier’s licence authorising the licensee to acquire, keep and use up to 30 approved gaming devices at hotel premises.

7 Applications under s161(1) were subject to Pt.11 Div.1A of the Act (s171B(1)(b)), headed “Social Impact Assessment of Gaming Devices”. That Division was introduced by the Gambling Legislation Amendment (Gaming Machine Restrictions) Act, 2000, which came into operation on 9 May 2000. The object of the Division is stated in these words:

“s171A(1) The provisions of this Division are a means (but not the only means) of giving effect to the primary objects of this Act referred to in section 2B (Gambling harm minimisation and responsible conduct of gambling activities are primary objects of the Act).”

8   The reference to s2B is a reference to the following section:

“ s2B. Gambling harm minimisation and responsible conduct of gambling activities are primary objects of the Act
(1) Other primary objects of this Act are:
(a) gambling harm minimisation, that is, the minimisation of harm associated with the misuse and abuse of gambling activities, and
(b) the fostering of responsible conduct of gambling activities.
(2) The court, the Board, the Director, the Commissioner of Police and all other persons having functions under this Act are required to have due regard to the need for gambling harm minimisation and to foster the responsible conduct of gambling activities when exercising functions under this Act. In particular, due regard is to be had to the need for gambling harm minimisation when considering for the purposes of this Act what is or is not in the public interest.”

9 Part 11 Div.1A introduced a regime which a person making an application under s161(1) of the Act was obliged to follow:

· First, the application had to be accompanied by a Social Impact Assessment (s171C(1)), describing the likely impact on the local community, were the application granted (s171D(1)). A number of issues had to be addressed (s171D(3) and (4)). The assessment had to include the results of consultation with the local community, the local Council and specified Government departments (s171D(4)(h)). The applicant was obliged to provide a copy of the assessment to the local Council and the Director of Liquor and Gaming (s171E(1)(c)).

· Secondly, the applicant was obliged to place the assessment on public exhibition (s171E(1)(a)).

· Thirdly, at the same time, the applicant was required to lodge an advertisement in the local newspaper drawing attention to the exhibition, and inviting submissions within 30 days (s171E(1)(b) and s171E(2)).

10   The Board could not make a determination in respect of an application until after the expiration of the 30 day period (s171E(3)). In making its decision, the Board was obliged to take into account the Social Impact Assessment and any written submissions made within the 30 day period (s171F(1)). The obvious purpose is to provide the Board with information relevant to its decision, including informed debate on the application.

11   The application by the hotel on 7 September 2000 was accompanied by a “Social Impact Assessment” in two volumes. The assessment was prepared by consultants, Design Collaborative Pty Limited (Mr G W Smith). A copy was served on the Council and the Director of Liquor and Gaming on the same day. The application and assessment were put on public exhibition for a period of 30 days from 8 September 2000. Advertisements, drawing attention to the exhibition, and inviting written submissions, appeared in the local newspaper and the Daily Telegraph.

12   The Board received a number of submissions, including a submission from the Council dated 8 October 2000. The Council’s submission was prepared by consultants, Judith Stubbs & Associates.

13   On 6 October 2000, the consultants to the Hotel wrote a further letter to the Board. When compiling the Social Impact Assessment, questionnaires had been distributed to a number of organisations concerned with community welfare and the provision of counselling services to problem gamblers. Responses had been incorporated in the assessment, as required by s171D(4)(h), annexing copies of each response as an appendix in volume 2. However, three parties, including the Department of Community Services, had responded after the lodgment of the application on 7 September. The letter of 6 October attached these responses. At the same time it provided a brief commentary and a short conclusion. This material was not served on the Council either by the consultants to the Hotel or the Board.

14   On 23 October 2000, Mr Russo, solicitor for the Council, spoke to the Secretary of the Board, Mr Howard. The Board had foreshadowed that it would deal with the application at its meeting on Friday 20 October 2000. Mr Russo enquired whether it had done so. Mr Howard responded with these words: (Russo: Aff 31.08.01)

“The Board considered the gaming licence application on Friday. In view of the strong attack on the S.I.A. by Judith Stubbs, Mr Smith has been given 14 days to submit a reply. A letter is being handed to the Applicant’s Solicitors today. A copy will be sent to you.”

15   Mr Russo enquired whether Council would be given the opportunity to respond to Mr Smith’s reply. Mr Howard said this: (Russo: Aff. 31.08.01)

“Depending on the replies to Stubbs’ submissions, the Board might give Council a right to reply. The reason the Board is giving the Applicant an opportunity to reply to Stubbs’ submission is to accord the Applicant natural justice.”

16   The Board, as foreshadowed, sent the Hotel’s consultant a copy of the Council’s submission. On 31 October 2000 the consultant, Mr Smith, provided the Board with an elaborate response (25 pages). The response attached a letter from a subcontracting consultant (Mr Tim Lenehan). Mr Lenehan had been given the task of arranging consultation with the community and other organisations for the purposes of the Social Impact Assessment. Again, neither the Hotel nor the Board furnished the Council with a copy of this material.

The Board’s Decision

17   On 8 November 2000 the Board announced its decision. It gave approval to the Hotel to use 15 approved gaming devices at its premises at Canley Heights. The Board was asked by the Council to provide reasons. On 1 December 2000 it did so. The majority (Mr D A Collins and Mrs Kok) said this:

“In relation to the application for gaming machines at Canley Heights Hotel the Board has been asked to indicate the reasons for its decision whereby it granted authorisations to keep, use and operate 15 gaming machines.
The following are the reasons of Mr D A Collins and Mrs D A Kok, Board Members, in granting the application.
The Board was provided with a Social Impact Assessment prepared on behalf of the applicant which in accordance with s88AF is required to address certain specific matters and we were satisfied that it in fact did so. The Board also considered a detailed written submission and a reply provided by the Fairfield City Council.
We noted the high incidence of gaming and gaming turnover in the local area particularly around Fairfield and Canley Heights but also that only a minimal number of persons was in receipt of gaming counselling locally.
The Board took into account:

· that the premises would operate only during extremely restricted hours having regard to those usually available to a hotel and actually available to other premises in which gaming was available in the local area;

· the House Policy which had been provided and the Plan of Management which had been prepared in accordance with Council’s requirements;

· the small size of the premises and limited number of persons who could be admitted thereto at any given time;

· that the premises would be limited to no more than 15 machines unlike other premises in the local area where gaming was conducted.

We did not accept the findings in the material provided in Judith Stubbs & Associates submission under the heading of ‘Cost Benefit Analysis’ (pages 17-20) for the reasons advanced by the applicant in Design Collaborative Pty Ltd response at pages 2 and 13 to 16.
On the basis of all of the material provided we concluded that there was unlikely to be any identifiable impact on the local community from the granting of the application for authorisation of 15 poker machines at this hotel.”

18   The Chairperson, Mr Armati, determined that the application should be refused. His reasons were somewhat longer. They included the following:

“I was particularly persuaded by the survey material lodged by the Fairfield City Council and of the answers given on that survey material which indicated very high problems in relation to gambling in the local community. I accepted that the survey material is subject to a number of criticisms not the least of which is the nature of the questions asked and that many of the answers are based upon word of mouth or hearsay material.”

19   In respect of the Cost Benefit Analysis undertaken by consultants for the Council, Mr Armati said this:

“I placed no weight upon the net cost analysis conducted by Fairfield City Council as I believed it to be flawed for a number of reasons and to be too simplistic in its method of calculation. However, the rejection of this material is not of any weight in my final determination.”

20   The conclusion reached by the Chairman was expressed in these words:

“In determining whether the social impact assessment material had properly indicated the likely impact on the local community I was satisfied that it did. In the balancing exercise between social and economic impacts and net social and economic benefits to the community, I found that the applicant had not placed material before the Board to overcome my concerns in relation to the socio-demographic characteristics of this community.
I was therefore satisfied that the granting of this application, despite all the matters referred to above, particularly the low number of machines compared to the number in the local community would exacerbate problem gambling in the local community.
I therefore was not satisfied that the applicant had overcome the primary object of the Act relating to gambling harm minimisation.
I would therefore have rejected the application for the 15 devices.”

The Complaints of the Plaintiff

21   The attack upon the Board’s decision by the Council was directed to three matters. It submitted:

· First, that the reasons provided by the majority manifested error.

· Secondly, that the Social Impact Assessment, accompanying the application, was deficient in a number of respects, as was the consultation process which had preceded it.

· Thirdly, that the Council had, in various ways, been denied procedural fairness.

22   I will deal with each argument in turn.

The Majority Decision

23   There was no statutory obligation upon the Board to provide reasons for its decision (cf s171C(3)). However, having provided reasons, they are available for scrutiny to see whether they manifest error (Holland J in Jackson v Director-General of Corrective Services (1990) 21 ALD 261 at 264).

24   Such an examination must be undertaken with a degree of latitude. In Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 590, Brennan CJ, Toohey, McHugh and Gummow JJ made the following observations, concerning the principles to be applied when reviewing a statement of reasons provided by an administrator: (at 271-272)

“When the Full court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language … nor with unhappy phrasing’ of the reasons of an administrative decision-maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

25   In the context of the Licensing Court, Kirby P (when sitting in the Court of Appeal) in Hart & Ors v Bell & Ors (unreported, C of A, 6.11.92), said this:

“… the Court will not approach its functions with a view to combing through the reasons of the administrative body in a way which is artificial, unduly technical or excessively hypercritical. See Cross v McHugh and Ors [1974] 1 NSWLR 500 (CA), 503.”

26   His Honour added:

“ … the Court will give appropriate respect to the exercise of jurisdiction by a specialist administrative body allowing a proper leeway for the exercise of the administrator’s powers as he or she thinks fit. See Mark v Green and Ors [1984] 1 NSWLR 148 (CA), 151.”

27   It was submitted by the Council that, even approaching the reasons of the majority in the benign way required, a number of errors were manifest. They were:

· First, the majority had considered the wrong statutory provision, s88AF of the Registered Clubs Act, 1976.

· Secondly, the majority had failed to consider the correct statutory provisions, namely Pt.11 Div.1A of the Liquor Act, 1976, and in particular, s171A (Gambling harm minimisation).

28 The Hotel acknowledged that the reference to s88AF of the Registered Clubs Act, 1976 was an error. It asserted, however, that it was a slip. The majority inadvertently quoted the wrong section. The terms of their judgment made it plain, according to the Hotel, that they were considering an application under Pt.11 Div.1A of the Liquor Act.

29 I will examine the terms of the judgment shortly. The Council, however, asserted that the reference to s88AF was not inadvertent. First, the majority had been led into error by the terms of the Social Impact Assessment. The assessment had repeatedly and misleadingly focused upon the wrong question, that is, the viability of the Hotel were it refused permission to use the gaming machines. The assessment, for instance, included the following statement: (p 46)

“6.6 In these circumstances, when considering the social impact of the proposal to establish a new or relocated hotel with gaming machines, it is necessary to consider the impact of the entire proposal and not just of the gaming machines. Put bluntly, if the impact of the proposed gaming machines is considered sufficiently adverse that they should not be permitted, the hotel proposal in its entirety would not proceed.”

30 It was no accident, according to the Council, that the majority should have referred to a section where viability was the central issue. Section 88AF of the Registered Clubs Act is in these terms:

“ 88AF Exceptions to the freeze
(1) This Part does not prevent an increase in the maximum number of approved gaming devices that a registered club is authorised to keep under this Act if the club establishes that its financial viability will be seriously threatened during the period of the freeze if it is unable to keep the additional devices.
(2) The applicant is required to establish such a serious threat to its financial viability to the satisfaction of the Licensing Court or the Board (whichever is dealing with the application under this Act for the additional devices).”

31   Secondly, the Council suggested that there was scant reference to gambling harm minimisation in the Social Impact Assessment. It was unsurprising, therefore, that the majority should have failed to advert to this fundamental matter.

32 I am not persuaded by either of these arguments. The reference to s88AF was a slip. There can be no doubt, in my view, that the majority was well aware of the issue.

33   First, the terms of the majority’s judgment make it clear that they well understood the issue. The opening words were as follows:

“In relation to the application for gaming machines at Canley Heights Hotel the Board has been asked to indicate the reasons for its decision whereby it granted authorisations to keep, use and operate 15 gaming machines.”

34   The discussion which followed was accurate and relevant. It referred to the social impact assessment and relevant aspects of that assessment, including gaming turnover. Each of the dot points in the body of the judgment is relevant to gambling harm minimisation. For instance, the house policy was a reference to the measures proposed by the Hotel to reduce or eliminate problem gambling (Social Impact Assessment, Section 9, p76). The concluding words of the majority reasons repeat the wording of s171D(1), being the issue which the Board was ultimately required to address.

35 Secondly, the Social Impact Assessment did not, in my view, distract the Board from the right question. It analysed, appropriately, the issues under Pt.11 Div.1A and specifically s171A and s171D of the Liquor Act. The reference to the viability of the Hotel, were the application refused, was appropriate. The Licensing Court had found that there was a need for the Hotel. The Social Impact Assessment was required to include details of a number of matters (s171D(4)). Scope was provided, however, for the inclusion of “any other relevant matter” (s171D(4)(i)). The viability of the Hotel was, in my view, a relevant matter (cf s171D(3)). The Council did not suggest that the inclusion of this material so distracted the majority that it imagined it was dealing with a club. Such a submission was plainly not open, given the opening words of the majority reasons and the repeated references to “hotel”. Rather, the suggestion was that the material engendered a preoccupation with viability, rather than the likely impact on the community of granting the application. The reasons, to my mind, dispel that suggestion. The Board (both majority and minority) well knew that it was considering the likely impact of 15 additional machines in the Canley Heights area in the context of 1,924 machines within a short distance.

36   Thirdly, it is also not accurate, in my view, to suggest that the Social Impact Assessment did not deal with gambling harm minimisation. It did so repeatedly. In Section 2 it dealt with the legislation and the purpose of the amendments in 2000, which it described in these words: (p 8)

“2.1 As stated in the introduction to this report, the Gambling Legislation Amendment (Gaming Machine Restrictions) Act 200 (GLA Act) came into effect on 9 May 2000. This Act made amendments to the Registered Clubs Act, 1976; the Casino Control Act, 1992, and – of relevance to this report – the Liquor Act, 1982. Part 10C ‘Social impact assessment of gaming devices’ introduced into the Liquor Act 1982 by the GLA Act – is the means of giving effect to the primary objects in Section 2B of the Act, i.e. gambling harm minimisation and responsible conduct of gambling activities.”

37 The Minister’s Second Reading speech was then set out. When describing the proposal, the Assessment said this: (p 14)

”3.10 The document (Appendix 9), which will be displayed in the gaming room of the Hotel setting out the Hotel’s policy on responsible gaming if it is permitted to install machines, is intended to inform its patrons of those parts of that policy which affect them directly.”

38   The Assessment continued:

“The applicant’s commitment to the responsible service of gaming, in its entirety is set out in a draft affidavit of Mr Spradbrow dealing with that issue. A copy of that affidavit forms Appendix 10.”

39   Section 9, as mentioned, was devoted to the measures which would be taken to minimise harm from gambling and to promote responsible gambling activity (cf s171A).

40 The Council complained that nowhere in the majority reasons do they refer to Pt.11 Div.1A, or the sections which they were obliged to apply. However, there was no need for them to do so. Toohey J, in Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180, said this: (at 184)

“In many cases it will be clear whether or not the decision-maker has taken a relevant consideration into account. That is not to say that the mere assertion by a decision-maker that he has done so will conclude the matter. It may be possible to demonstrate from a consideration of all the reasons leading to the decision, or indeed from the decision itself, that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not inevitably lead to the conclusion that it was not taken into account. An examination of the reasons for the decision and the decision itself may justify the inference that it was.”

41 Here, I believe the reasons make it clear that the Board had the framework of the Liquor Act in mind. There is, in my view, no substance in the first argument of the Council.

The Social Impact Assessment

42   The Council’s second argument attacked the Social Impact Assessment, asserting that it did not conform with the requirements of s171D of the Act. That section is in these terms:

“171D Content of social impact assessment
(1) A social impact assessment of an application to which this Division applies is required to assess the likely impact on the local community of the granting of the application.
(2) For the purpose of any social impact assessment, the local community comprises the people in the area or group from which the persons utilising the services and facilities of the hotel are likely to be drawn.
(3) The social impact assessment is to address social and economic impacts and set out any net social and economic benefits to the local community.
(4) The social impact assessment is to contain details of the following:
(a) the number of approved gaming devices already kept in the hotel and the number kept in other hotels having the same or a similar local community (and by any registered clubs in the neighbourhood),
(b) past increases in the number of approved gaming devices so kept,
(c) the public demand for gambling within the local community,
(d) the incidence of problem gambling within the local community,
(e) the availability of problem gambling services in the local community,
(f) the action proposed to be taken by the hotelier to minimise any harm associated with an increase in the number of approved gaming devices available within the local community (including the action proposed to be taken to protect children),

(g) any likely change in the demands on public transport, any likely employment consequences for other businesses in the local community,
(h) the result of consultation about the application with the local council in whose area the hotel premises are or are to be situated, the Department of Community Services, the Department of Health, organisations concerned with the social consequences of gambling and other appropriate bodies.
(i) any other relevant matter.
(5) The regulations may make further provision for or with respect to the furnishing or content of social impact assessments under this Division.”

43   That section, on the Council’s argument, defined the content of a Social Impact Assessment. The language of the section made it plain that the requirements were mandatory. Providing an assessment was in furtherance of the “primary object” of the Act (s171A). The assessment “is required to assess” (s171D(1)); it is obliged “to address” (s171D(3)); it “is to contain details” of various aspects of the proposal and its impact. Having furnished the Board with the assessment, the applicant “must” do a number of things, including exhibiting the assessment and advertising its availability, inviting submissions.

44   This submission is plainly right. The Social Impact Assessment must conform with the section. Failure to do so will vitiate the process, so as to make impossible compliance with s171E and a valid decision by the Board under s171F. No submission to the contrary was put by the Hotel.

45   The Council suggested two defects in the Social Impact Assessment where it failed to comply with the statutory scheme:

· First, it alleged a failure to address s171D(3), the “net social and economic benefits to the community”.

· Secondly, it also alleged a failure to consult, as required by s171D(4)(h), and to set forth the results of such consultation.

46   Dealing with the first matter, the Council adopted and repeated the complaint of its consultant, Judith Stubbs, in her submission (on the Council’s behalf) to the Board of 8 October 2000. Ms Stubbs said this: (Exhibit A, p37)

“The social impact assessment prepared by Design Collaborative does not set out the net social and economic benefits to the community. We have identified Social and Economic costs and benefits through a review of their SIA and use of additional information.”

47 Ms Stubbs, thereafter, attempted a cost benefit analysis. She inferred from the Minister’s Second Reading speech, perhaps not unreasonably, that such an analysis was called for by the wording of the section. The Minister said this:

“It must address the likely social and economic impacts, and the social and economic costs and benefits to the relevant community.”

48   It is unsurprising, however, that the Board, both majority and minority, specifically rejected that material as unhelpful. Inevitably the assumptions underpinning the analysis were subjective and questionable, loading the dice in favour of a conclusion which had been reached by other means.

49   Section 171D(5) authorises the making of regulations to further define the content of a Social Impact Assessment. That power has not been exercised. Practitioners in the field, therefore, must rely upon the wording of s171D itself. Section 171D(1) identifies, in a general way, the nature of the task. It is an assessment of the likely impact on the local community of the application, were it successful. Section 171D(4) identifies, rather more precisely, the issues which must be addressed. They are issues which, in the main, may be characterised as either economic or social in their nature. Section 171D(3) permits a broader discussion of the economic and social impacts than the categories of s171D(4) may otherwise permit. The words in s171D(3) which are the focus of the Council’s submission, that is, that the assessment should “set out any net social and economic benefits to the local community”, simply underline that the assessment should evaluate the information it assembles. The evaluation need not be numerical (as in cost benefit analysis). Indeed it will usually be descriptive, offering a conclusion for the benefit of the Board, as well as those minded to make a submission.

50   The Social Impact Assessment submitted by the Hotel assembled the required information. It also offered opinions in respect of various issues. For instance, having identified public transport services (as required by s171D(4)(g)), the assessment said this:

“4.26 Given the ceiling on the number of persons allowed in the Hotel and its midnight closure, the numbers of patrons in the Hotel late at night is expected to be small. Peak attendance is likely to occur at or about recognised meal times. Neither the employment at, or the number of patrons in, the Hotel is sufficient to be likely to result in any change in the present level of public transport services in Canley Heights. If they did, it would probably result in some improvement of those services.”

51   There are many other illustrations. They are conclusions which, to my mind, describe “the net social and economic benefits” to the local community (s171D(3)). The Social Impact Assessment ultimately provided the following view, as its conclusion: (p 81)

“However, given the current level of availability of those devices in the district, it seems unlikely that another 15 would have any appreciable effects, particularly, if the Hotel conforms with responsible gambling protocols in order to provide a ‘safety net’ for that small number of its patrons who may be, or may be exposed to the risk of becoming, problem gamblers.”

52   That was a view rejected by the Council. It was a view, however, which commended itself to the majority of the Board.

53   The second objection by the Council was to the consultation undertaken by the Hotel. It is convenient to repeat, in this context, the obligation in respect of consultation in a Social Impact Assessment. Section 171D(4)(h) is in these terms:

“s171D(4) The social impact assessment is to contain details of the following:
(h) the result of consultation about the application with the local council in whose area the hotel premises are or are to be situated, the Department of Community Services, the Department of Health, organisations concerned with the social consequences of gambling and other appropriate bodies.”

54   The Act does not elaborate. No guidance is provided as to the manner of consultation, or its intensity. What is required must depend upon the context, and the evident purpose of the consultation. In Lumber Specialties Ltd v Hodgson (2000) 2 NZL 347, Hammond J said this: (at 365)

“[93] Consultation is best thought of as an element of natural justice. Where an obligation to consult is required by law, the essential reasons for the requirement are to protect the relevant interests of persons affected by a decision, and relatedly, to improve the overall quality of decision making.”

55   Consultation, it has been said, “is no empty term” (T V W Enterprises Ltd v Duffy (No 2) (1985) 60 ALR 687 at 694). The “requirement of consultation is never to be treated perfunctorily or as a mere formality” (Port Louis Corp v Attorney-General of Mauritius [1965] AC 111 at 1124). Webster J, in the context of delegated legislation which required consultation, said this in R v Secretary of State for Social Services; Ex parte Assn of Metropolitan Authorities [1986] 1 All ER 164: (at 167)

“But, in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this context, I mean sufficiently informed and considerable information or advice about aspects of the form or substance of the proposals, or their implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer.”

56   Here, the consultants to the Hotel clearly gave some thought to what the statute required. The issue is discussed at Section 6 of the Assessment (Methodology). Various alternatives were canvassed. Some were discarded. Ultimately, the consultants settled upon two strategies. The first was to conduct two focus groups using a person skilled in market research (Mr Tim Lenehan, a former director of A C Nielsen). The objective was described in these words:

“6.16 The form of consultation finally decided upon was to conduct two focus groups, each of about eight people. One group was to consist of ‘community leaders’ who were taken to be local elected representatives, leaders of local community organisations, local ministers of religion and persons such as the school principal, bank manager, local doctor and the like. The second group were to consist of ‘lay persons’, i.e. local residents or business people. The theory behind this choice was that – if gambling was a problem in the local community – the community leaders ought to be aware of it. It was considered that local people, forming part of the local community, ought also to be aware of it. In particular, local business people should be conscious of the prevailing attitudes in the local community as the Hotel has been under construction in the business centre for some months and would have been a topic of discussion among their customers.”

57   The second strategy was to administer questionnaires to those concerned with problem gambling. The assessment described the questionnaires in the following terms:

“6.19 In order to address two issues which any SIA is required to address – the incidence of problem gambling and the availability of problem gambling services – questionnaires dealing with these issues, with particular reference to Canley Heights, were sent to 28 organisations dealing with problem gambling. These organisations were identified from the listings provided by G-Line and by the Fairfield City Council’s Community Services Directory. … Appendix 25 contains a copy of the covering letter, questionnaire and explanatory material sent to each of these organisations together with a list of those organisations. Those which responded are identified on that list. Appendix 26 contains copies of their responses. The assessment of these responses are discussed in Section 7 below.”

58   Each strategy met with difficulties. Nineteen community leaders were invited to participate in one of the focus groups. Many refused. Eight ultimately attended. The attendance at the second focus group (consisting of lay persons) was also poor. Further, many of those to whom the questionnaires were sent did not respond.

59   The Fairfield City Council was approached, as required by s171D(4)(h). Material was sent on 10 August 2000, without response. At the prompting of a Council employee, it was again sent on 29 August 2000, again without response. The Council’s attitude was one of implacable opposition. It had opposed the development of the Hotel in the Land and Environment Court. It had objected to the application by the Hotel to remove the licence to Canley Heights. Confronted by the Hotel’s further application under s161(1), the Council chose to ignore attempts to consult with it. That was unfortunate. The Council plainly had a contribution to make. It knew the area. It provided welfare services. Instead, the Council simply made a submission to the Board. The Hotel’s consultant, Mr Smith, responding to that submission, said this:

“1.7 The Response reveals nothing about Council’s experience with problem gamblers despite the Council having an extensive network of community involvement and support personnel working in the community welfare field. For instance, the Response does not provide an opinion (much less any facts) on whether or not Council’s community workers find that the Canley Heights community (or the Cabramatta district of which it is a part) generates more case work or referrals resulting from problem gambling than other parts of the City do. I would have anticipated that – if problem gambling were a major social issue – those community workers would have, at least, some ‘feel’ for how its incidence is distributed across the City’s population, both spatially and ethnically. Perhaps they do but the Response fails to present it. Possibly, the issue of problem gambling in the City is overshadowed by others deriving from such things as drug use and unemployment or it may not be as great an issue as the media would have us believe.”

60   Mr Smith added the following comment, which appears to me reasonable:

“1.8 The Council – by its failure to respond to our questionnaire and through the Response – has failed to make what, I believe, could have been a useful contribution to assist the Board’s assessment.”

61   Had the Council responded, the Hotel would have been obliged to have included that response in the Social Impact Assessment (s171D(4)(h). The Council’s attitude, and the grounds of its opposition, would then have been available to those who examined the assessment on public exhibition. It may have assisted others in framing their submissions, and by this means, assisted the Board.

62   But more than that, had the consultant to the Council made known her misgiving concerning the methodology proposed, the Hotel could have considered the Council’s point of view. It may have accommodated that view, if it believed it had merit.

63   The submission made by the Council to the Board trenchantly criticised the Social Impact Assessment and the consultation process which had preceded it. Such was the criticism that the Board felt impelled, as a matter of fairness, to allow the Hotel to respond (cf Wilkie & Anor v Attorney General for NSW & Liquor Administration Board (Foster J, unreported, 9/12/86); Penna v The Liquor Administration Board & Anor [2001] NSWSC 681). It is that response which is the source of one of the complaints made by the Council in these proceedings, which I will deal with shortly. The need for that process may have been avoided had the regime which was envisaged by the Act, which included consultation between the local Council and those responsible for the preparation of the assessment, been followed.

64   I should add that the Council’s submission to the Board, was not simply negative. It endeavoured to provide information concerning community attitudes. Random surveys had been undertaken, which were described in these terms:

· “A random street survey at lunch times and after work (18 people)

· A random door knock of residents in 4 streets in the immediate vicinity of the Hotel (30 households)

· A random survey of shops in the Canley Heights Shopping Centre in which the Hotel is located (14 businesses).”

65   All Members of the Board, both majority and minority, said that in their opinion the Social Impact Assessment satisfied the requirements of the Act. That, I believe, was a conclusion open to them. The consultation devised by the Hotel endeavoured to solicit the views of the community concerning the proposal and problem gambling. Its efforts were not perfunctory. It was, I believe, “consultation” for the purposes of the Act. The results of that consultation were then set forth.

66   I believe, therefore, that there is no substance in the second criticism by the Council.

Denial of Procedural Fairness

67   The third complaint of the Council is that it was denied procedural fairness. It will be remembered that there were two letters sent by the Hotel’s consultant to the Board, which were not provided to the Council. The first was a letter of 6 October 2000. It enclosed three late responses to questionnaires which had been distributed as part of the consultation process. The letter included a summary of the views expressed within each questionnaire, and a short conclusion.

68   The second document was rather more important. The consultant to the Hotel, Design Collaborative Pty Limited (Mr G W Smith), was furnished by the Board with a copy of the Council’s submission (prepared by Judith Stubbs and Associates). The Hotel was invited to respond. It did so on 31 October 2000.

69   Was there an obligation to furnish the Council with either or both of these documents? The Council asserted that there was, relying upon a number of arguments:

· First, it was suggested that each document was, in truth, part of the Social Impact Assessment. The Council was entitled to be consulted in respect of the whole of the Social Impact Assessment, not simply part (s171D(4)(h)). The process required by s171D and s171E had not, therefore, been followed.

· Secondly, even if that be wrong, there was an obligation under Pt 11 Div 1A of the Liquor Act, 1982, to allow the Council to be heard. The obligation related to all material furnished by the Hotel to the Board.

· Thirdly, if no such obligation was created by Statute, it arose under the Common law.

70   The first argument is an offspring of an earlier submission by the Council. The Council submitted that the Social Impact Assessment was defective in various ways, and in need of supplementation (to meet the requirements of s171D(3)). I have rejected that submission. The Council was consulted in respect of the Social Impact Assessment, as required by s171D(4)(h).

71 The second argument depended upon the proper construction of Pt 11 Div 1A. In Kioa v West (1985) 159 CLR 550, Mason J said this: (at 584/5)

“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation ((1963) 113 CLR 475 at 503/4), Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission: Ex parte Angliss Group ((1969) 122 CLR 546 at 552/3); National Companies and Securities Commission v News Corporation Ltd ((1984) 156 CLR 296 at 311, 319-321).”

72 The Council submitted, and I accept, that the statutory regime is concerned with an issue of some importance. The Council is recognised by s171D(4)(h) and s171E(1)(c) as having an important contribution in respect of issues arising under an application made pursuant to s161(1). That may be acknowledged. However, does that impose an obligation upon the Board to ensure that all material submitted by an applicant hotel is furnished to the Council? There is no express obligation in those terms. Should it be implied? The decision is that of the Liquor Administration Board. We are not here concerned with the Licensing Court (cf Pt 3 Div 5 of the Liquor Act, 1982). I have already described the regime contemplated by Pt 11 Div 1A (supra para 9). The Social Impact Assessment must be served upon various parties, including the Council. It is placed on public exhibition. The public is told of the exhibition by advertisement, and invited to make submissions. The submissions are made to the Board. There is no requirement that the submissions be placed on public exhibition, or that they be made available to others who have made submissions. In practice, the Board does neither. The Board is simply required to take such submissions into account (s171F(1)).

73   The Hotel submitted that these provisions identify very precisely the Council’s rights. It had the right to be consulted in the preparation of the Social Impact Assessment and to have the substance of its response included in that assessment (s171D(4)(h)). It had the right to be served with a copy of the assessment (s171E(1)(c)). However, if the Council chooses to make a submission, it has no greater rights than anyone else who makes a submission.

74   There is some force in that submission. I do not believe that the obligation to be heard in respect of anything submitted by the Hotel can be implied from the terms of the Statute. Was there the right to be consulted under the Common Law? Mason J, in Kioa v West (supra), expressed the Common law rule in these words: (at 582)

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

75   Can it be said that the Council had a “legitimate expectation” that the Board would provide the Council with any response to its submission? Mason J, in the same case, said this: (at 583)

“The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision.”

76   Here, it is necessary to differentiate between the letter of 6 October 2000 and the response of 31 October 2000. The letter of 6 October 2000 was divided into three sections. The first dealt with the late responses to questionnaires (and, specifically, the response of Professor Blaszczynski). Secondly, the letter included a brief paragraph dealing with the submission of the Department of Community Services, which again was received well after the completion of the Social Impact Assessment. The third was a brief conclusion. Attached to the Hotel’s letter were copies of the completed questionnaires.

77   The receipt of this material posed a dilemma for the consultants responsible for the Social Impact Assessment. When the questionnaires were distributed, the need for despatch was made clear. A time limit was imposed. The responses arrived too late for inclusion in the Social Impact Assessment. By the time of their arrival, the assessment had been served and exhibited. In these circumstances, the consultants would have been justified in ignoring or returning the questionnaires. However, they chose, responsibly, to forward them to the Board. By this means the Board was, at least, apprised of the views expressed. As it happens, the Council had already spoken to both the Department of Community Services and Professor Blaszczynski, and had incorporated their views in its submission. I do not accept that, either under the Statute, or the common law, the Council had any reasonable or legitimate expectation that it should be heard in respect of that material.

78   The response by the Hotel to the Council’s submission (dated 31 October 2000) is, I believe, in a different position. The Council knew that its submission had been furnished to the Hotel. It knew that the Hotel had been invited to respond. It had been told by the Board that it may be given the opportunity to furnish a rejoinder, depending upon the nature of the Hotel’s reply (supra: para 13). I am prepared to accept that such a statement created a legitimate expectation that the Council would be heard if the Hotel’s submission went beyond a reply to the Council’s submission and contained new matter. I do not otherwise accept that there was a right to be heard in respect of the Hotel’s response. So the issue is, did the response travel beyond reply into new matter? The response was accompanied by a letter from the Hotel’s consultants which included the following outline of the reply:

“I have structured my comments into three parts in the accompanying report. The first deals with the issues raised by Ms Stubbs, the Council’s consultant, in the broad context of the Act and the public interest. The second is a detailed commentary on her submission. I apologise for having to impose this on the Board but, while I accept that the SIA was, and is, open to criticism, Ms Stubbs has presented incorrect data and, it seems, deliberately misconstrued or misquoted the SIA in order to advance her arguments. The third part deals specifically with the executive summary of the Response.”

79   The letter added:

“... Appended to them is a letter from Mr T Lenehan of Quality St commenting upon Ms Stubbs’ observations about his work and upon her survey of shoppers, workers and residents.”

80   Speaking generally, the Hotel’s response to the Council’s submission appears to be a reply rather than the introduction of new matter. It directs attention to particular paragraphs of the Council’s submission and then furnishes an answer. Three matters were identified by the Council as illustrations of new material:

· First, the reference to the Tasmanian Gaming Commission statistics (Exhibit A: p 153).

· Secondly, the impact of such statistics on household income (Exhibit A: p 153).

· Thirdly, the reference to intangible benefits provided to the community through the Hotel (Exhibit A: p 150).

81   Each topic was introduced to answer aspects of the Cost Benefit Analysis, that being an important part of the Council’s submission. In relation to the Cost Benefit Analysis, the Hotel said this: (Exhibit A: p 150)

“Stubbs has attempted to put dollar values against various factors in a cost benefit analysis. My principal criticisms are that her approach is too simplistic in that it omits a number of the more intangible matters and that her approach is based on some very dubious assumptions.”

82   These were, to my mind, matters which could legitimately be put in reply. Had they been put by an advocate in the context of a court case, with the Council’s advocate present, I would not, with one possible exception, have regarded them as raising new matter giving a right of rejoinder to the Council. The possible exception was the introduction of the statistics from the Tasmanian Gaming Commission. The Council’s consultant, when making certain calculations, had assumed an average household expenditure on gambling of 10% or more. The consultant for the hotel responded to that suggestion with these words: (Exhibit A: p 153)

“The Tasmanian Gaming Commission estimated that, in NSW, in 1997-8, gambling consumed about 3.5% of household income. If households in the two Cities spend about $2,900/annum on gaming devices in hotels and clubs alone (i.e. $840 x 3.45 p/household) that represents around 7% of average household income (taken to be $800/week). After allowing for other forms of gambling, I find it difficult to believe that the average household spends, probably, 10% and, possibly, more of its gross weekly household income on gambling.”

83   The Council was not given the opportunity of verifying that statistic, nor putting the Tasmanian Gaming Commission’s finding in context. It had no opportunity of referring to other research which may have qualified the finding by the Tasmanian Gaming Commission.

84   However, no evidence has been placed before me that the statistic quoted by the Hotel was wrong, or that it was quoted out of context. No reference has been made to other research which the Council may have wished to place before the Board, had it been given the opportunity.

85   The Board, moreover, both majority and minority, rejected the Council submission on Cost Benefit Analysis. They did so for reasons which had nothing to do with the Tasmanian Gaming statistics.

86   In the circumstances, I do not believe that the Council can be said to have been denied procedural fairness. There is, in my view, no substance in the Council’s third complaint.

Order

87   I therefore make the following orders:

1. The Summons is dismissed.

2. The Council should pay the costs of the second and third defendants.

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Last Modified: 10/10/2001