George Thomas Hotels (Campsie) Pty Ltd v Station House Campsie Pty Ltd

[2018] NSWSC 916

Supreme Court

New South Wales

Medium Neutral Citation:	George Thomas Hotels (Campsie) Pty Ltd & Anor v Station House Campsie Pty Ltd & Ors [2018] NSWSC 916
Hearing dates:	21 May 2018
Date of orders:	13 July 2018
Decision date:	13 July 2018
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The proceedings are dismissed. (2)   The plaintiffs are to pay the defendants’ costs as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – Judicial review – Application for judicial review of decision of Liquor and Gaming Authority to increase gaming machine threshold in hotel premises – Whether hotel premises were situated in the immediate vicinity of a school – Where Authority determined that the hotel premises were not so situated – Where Authority took into account the neighbourhood as a whole – Whether the Authority erred in doing so – Whether the Authority asked itself the wrong question(s) – Whether the reasons of the Authority were inadequate – Whether the decision of the Authority was unreasonable – No error established – Proceedings dismissed   WORDS AND PHRASES – “Immediate vicinity”
Legislation Cited:	Gaming and Liquor Administration Act 2007 (NSW) Gaming Machines Act 2001 (NSW) Gaming Machines Regulation 2010 Liquor Act 1912 (NSW) Liquor Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Buckley v Independent Liquor and Gaming Authority [2016] NSWSC 1533 Co-ordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Dean v Lewitz (1958) 76 WN (NSW) 349 Ex-parte Godkin; re Fitzmaurice (1969) 90 WN (Pt 1) (NSW) 159 Ex-parte Paton (1929) 30 SR (NSW) 67 Hinton v Lane [2009] NSWSC 37 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 Mullens v Norton (1938) VLR 292 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Texts Cited:	Macquarie Concise Dictionary (7th Edition) Oxford Dictionary
Category:	Principal judgment
Parties:	George Thomas Hotels (Campsie) Pty Limited – First plaintiff Golden Corridor Management Pty Limited – Second plaintiff Station House Campsie Pty Limited – First defendant Jarrod Peter Smith – Second defendant NSW Independent Liquor and Gaming Authority – Third defendant
Representation:	Counsel: B A Coles QC – Plaintiffs W G Muddle SC – First and second defendants   Solicitors: Back Schwartz Vaughan – First and second plaintiffs Hatzis Cusack Lawyers – First and second defendants Crown Solicitor for NSW (submitting appearance) – Third defendant
File Number(s):	2018/18820
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By a summons filed on 18 January 2018 the plaintiffs seek:

1. a declaration that the decisions by the third defendant on or about 18 October 2017 granting:

1. the application to remove the Hotel Licence, Licence Number LIQH 400103077 from 590-602 New Canterbury Road, Hurlstone Park to new hotel premises to be located at 203 Beamish Street Campsie, application number 1-5698484695 and to be known as the “Station House Hotel” and the application for the grant of a minors area authorisation at the new location; and

2. the gaming machine threshold increase application in respect of the licence at the new location – application number 1-3549335134,

3. was contrary to law and is void and of no effect.

2. an order that the decisions be quashed and set aside.

3. an order that the third defendant erred in law in determining that the gaming machine threshold increase application satisfied the requirements of cl 36(2) of the Gaming Machine Regulation 2010 (NSW).

4. an order that the first and second defendants be restrained from taking or purporting to take any step, or exercising or purporting to exercise any power or function under the Liquor Act 2007 (NSW) or the Gaming Machines Act 2001 (NSW) in connection with exercising the licence at the new location.

5. an order that the removal application and the GMT application be remitted to the third defendant to be determined according to law.

6. such further or other judgment or order whether under the Supreme Court Act 1970 (NSW) or the Uniform Civil Procedure Rules 2005 as may in the circumstances be just and equitable.

7. an order that the first and second defendants pay the costs of the plaintiffs of and incidental to these proceedings.

2. Although the terms in which the summons was drafted made reference to two separate decisions, judicial review was sought only of the decision referred to in paragraph (1)(ii) of the summons.

3. The summons is supported by an affidavit of Tony Schwartz, solicitor, of 4 April 2018 which was read without objection. That affidavit was included in a Court Book containing the entirety of the evidentiary material which was admitted without objection and marked Exh A.

THE FACTUAL BACKGROUND

The relevant parties

4. George Thomas Hotels (Campsie) Pty Limited (the first plaintiff) is the owner and operator of a hotel located at the corner of Hill and Beamish Streets, Campsie.

5. Golden Corridor Management Pty Limited (the second plaintiff) is the owner and operator of a hotel located at the corner of Beamish Street and Clissold Parade, Campsie.

6. Neville John Buckley (Buckley) was, in February 2015, the licensee of a hotel located at 590 New Canterbury Road, Hurlstone Park (“the Hurlstone Park Hotel”).

7. Station House Campsie Pty Limited (“the first defendant”) is a company operating a hotel known as the Station House Hotel from premises at 203 Beamish Street, Campsie (“the new hotel”)

8. The third defendant, the NSW Independent Liquor and Gaming Authority (the Authority) is a body constituted pursuant to s 6 of the Gaming and Liquor Administration Act 2007 (NSW) whose functions are prescribed by s 9 of that Act.

The previous applications

9. In 2015 the Authority received a series of applications made by Buckley under the Liquor Act 2007 (NSW) (“the LA”) seeking (inter alia):

1. the removal of hotel licence number LIQH 400103077, then attaching to the premises from which the Hurlstone Park Hotel operated, to the premises of the new hotel;

2. the grant of an extended trading authorisation pursuant to s 49(2) of the LA which, if granted, would enable the licence, once it was removed to the new hotel, to trade beyond the standard trading hours prescribed by s 12 of the LA;

3. the designation pursuant to s 121 of the LA, of a specified part of the premises from which the new hotel was to operate as an area able to be used by minors if accompanied by a responsible adult;

4. the increase, pursuant to s 34 of the Gaming Machines Act 2001 (NSW) (“the GMA”), of the gaming machine threshold at the new hotel to 27 (“the GMA application”).

10. The gaming machine threshold is the maximum number of gaming machines that may be kept at any venue that is permitted to keep such machines.

The first decision of the Authority

11. On 16 December 2015, the Authority determined, pursuant to s 34 of the GMA, to refuse the GMA Application (“the first decision of the Authority”). In reasons given on 10 March 2016 the Authority stated (commencing at [221]):

[221] The Authority has determined that the Proposed Premises located at 203 Beamish Street Campsie are situated within the “immediate vicinity” of the Campsie Public School within the meaning of cl 36(2) of the GM Regulation.

[222] Accordingly, pursuant to s 34 of the GM Act, the Authority has refused the Application for gaming machine threshold increase in respect of the Proposed Premises.

[223] This conclusion has been reached primarily on the basis of the close physical proximity of the Proposed Premises to the Campsie Public School. This is evident from the Google map of the site and the submission provided by the consultant, RM Planning indicating that the Proposed Premises is (sic) located less than 50 metres away from the playground of the Campsie Public School. The Authority also gives weight to the local knowledge of Police who have advised that “almost directly behind the [Proposed Premises] is Campsie Public School.

12. Commencing at [224] of its reasons, the Authority reviewed a number of decisions in which the term “immediate vicinity” had been considered. Having done so, and having reviewed other aspects of the material put before it, the Authority concluded (at [252]):

In the context of this suburban setting, which is neither a high density inner city location nor a country town, the authority is satisfied that a distance of between 50 and 70 metres between the two premises is, on the evidence and material before the Authority, sufficiently close to find that the Proposed Premises is (sic) within the “immediate vicinity” of the Campsie Public School, particularly when considered in the context of the foot traffic referred to above.

Proceedings following the first decision of the Authority

13. Buckley, along with the first defendant, commenced proceedings in this Court for judicial review of the first decision of the Authority. Those proceedings were heard by Adams J. On 2 November 2016 her Honour made orders (inter alia) quashing the first decision of the Authority and remitting the matter to the Authority to be determined according to law: Buckley v Independent Liquor and Gaming Authority [2016] NSWSC 1533. Because of the way in which the current matter has proceeded before me, it is necessary to make reference to some aspects of her Honour’s decision.

14. Four grounds of review were advanced in the proceedings before Adams J, namely that the Authority erred:

1. in failing to refer to the existence of conflicting evidence, and in failing to explain the process of its reasoning for accepting one body of evidence over the other;

2. by taking into account the fact that the presence of students from St Mel’s Catholic School was capable of rendering Campsie Public School (“the school”), a different school in a different place, more or less likely to be in the “immediate vicinity of the gaming licence”;

3. in assessing the term “immediate vicinity” by reference to the lot boundary of the site of the new hotel; and

4. in giving weight to the knowledge of police.

15. Commencing at [46] of her judgment, and in the context of the third ground of review, her Honour considered a number of authorities in relation to the meaning of the expression “immediate vicinity”. Her Honour said (at [46]):

[46] The Authority refused the threshold increase application because it was satisfied that the hotel premises in which the machines would operate was “situated in the immediate vicinity of a school, place of public worship or hospital” within the meaning of cl 36(2) of the GM Regulation. That phrase is not defined in either the GM Act or the GM Regulation. Nor has the meaning of cl 36(2) of the GM Regulation been judicially considered. Despite this, the phrase “immediate vicinity” appears in a similar context in other legislation dealing with the operation of licensed premises and has been judicially considered in that context. There was no dispute as between the parties as to the applicability of the principles gleaned from those cases; the plaintiffs’ complaint is that they were not properly applied in some significant respects. It is convenient to consider the relevant authorities concerning “immediate vicinity” before turning to consider each of the four grounds of review.

16. Having considered a number of authorities her Honour then said (at [54]):

The Authority sought to distil a number of principles from the above decisions at [232] – [240] of the reasons, which may be summarised as follows:

(1) The question is one of fact for the decision-maker, in this case the Authority, to determine in all of the circumstances of each case.

(2) The words “immediate vicinity” should be interpreted having regard to their ordinary English meaning and in the statutory context in which they appear.

(3) The decision is a matter for the Authority reasonably to determine on the evidence or material before it. There is no fixed maximum distance, beyond which one place is not in the “immediate vicinity” of another.

(4) The GM Act and GM Regulation do not include any requirement as to visibility of gaming machines with respect to any school, place of worship or hospital when assessing whether or not a licensed premises is in the immediate vicinity of such facilities.

(5) The Authority may have regard to the visibility of the premises or whether students or worshippers must walk past the relevant venue. In Ex Parte Paton, the awareness of worshippers as to the existence of the licensed venue was a matter that could be taken into account by the decision-maker. In Dean v Lewitz, it was held that it was relevant whether the licence premises could be seen from a church and whether the church’s activities could be interfered with by noise or nuisance.

(6) The precise distance between licensed premises and a school, place of worship or hospital will not in itself be determinative. In Ex parte Godkin; Re Fitzmaurice, the fact that premises shared a common boundary did not preclude the decision-maker from determining that the two premises were not in the immediate vicinity of one another.

17. Her Honour then said (at [78]):

[78] The reasons disclose that the Authority accepted that there was no line of sight between the school and the proposed new hotel site and that the premises were as far as 70 metres away. The reasons from [246] to [252] do not disclose that any other matter (besides the actual distance between the school and the proposed hotel site, which is considered further below under Ground 3) was taken into account by the Authority in reaching its decision; in this sense, it was a significant part of the final decision. To put it another way, if the question of foot traffic is taken away from the reasons for the ultimate decision, then the only remaining factor is the distance itself. The relevant authorities, which were not in dispute at the hearing, state that the question of “immediate vicinity” is not merely a matter of distance.

18. In the end result, her Honour:

1. upheld the first ground of review: at [87];

2. upheld the second ground of review: at [102];

3. dismissed the third ground of review: at [119]; and

4. dismissed the fourth ground of review: at [123].

19. In dismissing the third ground of review, her Honour said (commencing at [114]):

[114] The Authority’s conclusion regarding “immediate vicinity” was reached “primarily” on the basis of the “close physical proximity” of the proposed premises to Campsie Public (at [223]). On this basis, the finding as to distance is of significance. In reaching this finding as to actual distance, the Authority relied upon the following material:

(1) The Google map of the site (at [223]);

(2) The submission provided by the consultant, RM Planning, “that the Proposed Premises are [sic] located less than 50m away from the playground of Campsie Public” (at [223]);

(3) Local knowledge of police that “almost directly behind the [“Proposed Premises”] is Campsie Public School” (at [223]) (see Ground 4);

(4) The assessment prepared by the applicant’s planning consultant that the “’nearest doorway’ of the public areas of the Proposed Premises on the South Terrace to the ‘closest corner’ of the Campsie Public School’s grounds ‘would be over 70 metres’ and that there is ‘no line of sight between that doorway’ or any part of the public areas of the Proposed Premises and the School” (at [250]);

(5) That the school yard of Campsie Public “that is likely to be routinely occupied” is only 50 metres away from hotel (at [251]); and

(6) The context of the “suburban setting, which is neither a high density inner city location nor a country town” (at [252]).

[115] Based on the above material, the Authority concluded that a distance of “between 50 and 70 metres between the two premises is, on the evidence and material before the Authority, sufficiently close to make a finding that the Proposed Premises is within the ‘immediate vicinity’ of Campsie Public School, particularly when considered in the context of the foot traffic referred to above” (at [252]).

[116] The Authority was considering the phrase “immediate vicinity” in its statutory context and in light of the relevant authorities summarised above. Those authorities show that the meaning of the phrase involves an evaluative exercise upon which reasonable minds may differ. This Court is exercising its supervisory jurisdiction, not determining the merits of the Authority’s decision. The plaintiffs must establish either jurisdictional error or error on the face of the record in the way in which the Authority assessed the distance of 50 to 70 metres as set out above.

[117] The finding of the Authority, based on undisputed evidence, was that the school was in the street behind the proposed new hotel site and not visible from the hotel. The Authority had regard to this. I have had regard to the Google map relied upon by the plaintiffs, which shows that the licensed part of the premises was not at the rear of the site. The Authority did not suggest that it was. The Authority expressly referred to the evidence of the plaintiff’s expert that the “’nearest doorway’ of the ‘public areas’ of the Proposed Premises on the South Terrace to the ‘closest corner’ of the Campsie Public School’s grounds would be over 70 metres’ and that there is ‘no line of sight between that doorway’ or any part of the public areas of the Proposed Premises and the School”.

[118] The Authority’s reasoning towards the findings regarding physical distance is apparent. I am not satisfied that, by having regard to the lot boundary rather than the distance to the licensed premises, the Authority fell into error. The Authority referred to the material before it and was clearly aware of the relevant distances. The finding of the Authority as to the test of “immediate vicinity” based “primarily” upon physical proximity is one upon which minds may differ, especially given the material concerning lack of visibility of the proposed hotel from Campsie Public, but this Court’s role is to assess the legality of the decision and not its merits. The Authority could have placed more significance on the fact that the relevant distance to the licensed premises was greater than that to the lot boundary, but it did not. Neither jurisdictional error nor error of law on the face of the record is disclosed in the manner in which the Authority assessed the physical proximity from the venue to the school.

The Authority’s determination of the GMA application

20. On 30 December 2016, with the benefit of the determination and observations of Adams J, the solicitors for the first and second defendants made a lengthy written submission to the Authority in respect of GMA application. By reference to paragraphs [46], [54] and [78] of Adams J’s decision set out above, they urged the Authority to find that the premises of the new hotel were not in the “immediate vicinity” of the school, and to determine the GMA application accordingly.

21. The solicitors for the plaintiffs also made submissions to the Authority on 15 December 2016. In urging the Authority to refuse the GMA application, the plaintiffs’ submissions stated the following (commencing at 6.4):

It is the Submitter’s interpretation of the “immediate vicinity” test that Cl. 36(2) of the GM Regulation is a flexible legislative provision permitting the Authority to undertake its function of considering the reasonable requirements of Sensitive Facilities and applying the standards to determine at what point the licensed premises (such as a club or a hotel) would adversely affect their activities (and to a significant extent).

6.5 Consequently, the finding in Ex partePaton is a compelling test to apply. That is, in what factual circumstances will worshippers, patients and school children as well as other Users of the Sensitive Facilities become aware of the operations of the New Hotel through, for example, sight, hearing or contact with the New Hotel and its patrons, which in turn are the probable sources of interference, nuisance, inconvenience and possible objectionable influences. These matters clearly become a relevant consideration to the determination of the “immediate vicinity”.

22. The submissions of the plaintiffs’ solicitors went on to state (commencing at 6.11):

Consequently it is reasonable to interpret that the intention of the Legislation is for the Authority, in determining whether the New Hotel is in the “immediate vicinity” of any of the Sensitive Facilities to –

Acknowledge the actual physical proximity of the Sensitive Facilities and the New Hotel with each other;

Ascertain the potential for annoyance, nuisance, interference, allurement, offence and inconvenience that may be caused to all Users of the Sensitive Facilities by the proximity and operation of the New Hotel;

Ignore the fact that the Gaming Machines will not be seen or their presence be promoted to passers-by; and

Ignore the other pre-existing factors such as other hotels and clubs with Gaming Machines being in the same suburb, neighbourhood or locality or being in close proximity to schools anywhere else in NSW.

6.12 In this case it could not be clearer the Gaming Machines being out of sight and out of hearing are irrelevant considerations on their own, and therefore these factors fall well short of avoiding the consequences of Cl 36(2). This is because all of the relevant criteria (as referred to in 6.11 above) are very likely to be experienced by (at the very least) some of the students (and the other Users) of Campsie Public School and St Mel’s because they sit outside, walk and drive past the New Hotel to travel to and from the school when using public transport. They also do so when accessing other facilities in the Campsie CBD.

6.13 It is the position of the Submitter that it is open to the Authority to find (as it has done so in the Authority’s Decision) that the “immediate vicinity” test has not been satisfied because the New Hotel is situated in the “immediate vicinity” either because of it physical proximity to Campsie Public School…or because of the factual circumstances and evidence now before the Authority…

23. On 7 March 2017 the manager of the Authority wrote to the solicitors for the plaintiffs and the defendants stating the following:

The Authority gave preliminary consideration to the Licence Removal and Gaming Machine Threshold Increase Applications, at its meeting of 25 January and 22 February 2017.

Those Applications are yet to be finalised and remain under consideration.

I can inform you that the Authority as now constituted, is satisfied in principle that it is open to it to consider the merits of the Gaming Machine Threshold Increase Application. On the evidence before it, the Authority is minded to find that the proposed new premises is NOT in the “immediate vicinity” of a school, place of public worship or hospital within the meaning of clause 36 of the Gaming Machines Regulations 2010.

This means that the Authority will proceed to consider the merits of the Gaming Machine Threshold Increase Application, simultaneously when it considers the Licence Removal Application and associated Extended Trading Authorisation and Minors Area Authorisation (“Liquor Applications”).

24. On 10 January 2018, the Authority approved the GMA application and increased the gaming machine threshold at the new hotel to 27. In doing so, the Authority determined that it was not satisfied that that the premises of the new hotel were situated in the immediate vicinity of any school, place of public worship or hospital. It is that determination of which the plaintiffs now seek judicial review.

THE RELEVANT LEGISLATION

25. At this point, it is appropriate to set out a number of legislative provisions which were germane to the Authority’s decision.

26. Section 44(1) of the GMA provides as follows:

44 Prohibition on displaying gambling-related signs

(1) A hotelier or club must not display or cause to be displayed any gambling-related sign:

(a) anywhere outside or in the vicinity of the hotel or the premises of the club, or

(b) anywhere inside the hotel or the premises of the club so that it can be seen from outside the hotel or the premises of the club.

27. Section 44A of the GMA is in the following terms:

44A Location of gaming machines in venues

(1) If the Secretary is of the opinion that any approved gaming machine in a hotel or on the premises of a club is located in a manner that:

(a) is designed to attract the attention of members of the public who are outside the hotel or club premises, and

(b) is contrary to the public interest, the Secretary may, by notice in writing given to the hotelier or club concerned, require the hotelier or club to move or screen the gaming machine in accordance with the notice.

Note. Any such decision is reviewable by the Authority under section 36A of the Gaming and Liquor Administration Act 2007.

(2) A hotelier or club must comply with a notice given to the hotelier or club under this section.

28. Importantly, cl 36 of the Gaming Machines Regulation 2010 (“the Regulation”) is in the following terms:

36 Threshold increase applications—general requirements

(1) A threshold increase application must:

(a) specify the internal floor space (in square metres) of the venue, and

(b) in the case of an application made by or in relation to a new hotel or new club—provide a map showing the location of the venue and the location of any school, place of public worship or hospital within 200 metres of the venue.

(2) The gaming machine threshold for a new hotel or the premises of a new club cannot be increased if the hotel or club premises are situated in the immediate vicinity of a school, place of public worship or hospital.

(3) In the case of a threshold increase application by a registered club, the application must, if the club is proposing to increase the gaming machine threshold for the venue to a number above 450 and the application is not required to be accompanied by a local impact assessment because of section 35 (2) of the Act, demonstrate the following to the satisfaction of the Authority:

(a) that consideration has been given to assessing the impact of the additional gaming machines on the amenity of the local area and the action that will be taken to manage any negative impact,

(b) that appropriate harm minimisation and responsible gambling measures (in addition to those already required by law) are in place at the venue,

(c) that the proposed increase will result in additional benefits to club members or the community.

29. Section 48(5) of the LA is in the following terms:

48 Community impact

(1) The object of this section is to facilitate the consideration by the Authority of the impact that the granting of certain licences, authorisations or approvals will have on the local community, in particular by providing a process in which the Authority is made aware of:

(a) the views of the local community, and

(b) the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application.

(2) In this section:

relevant application means any of the following:

(a) an application for a hotel licence, club licence or packaged liquor licence,

(b) an application under section 59 for approval to remove a hotel licence, club licence or packaged liquor licence to other premises,

(c) an application for an extended trading authorisation in relation to a hotel licence, club licence or packaged liquor licence,

(d) an application for an extended trading authorisation in relation to an on-premises licence (but only if the authorisation will result in trading at any time between midnight and 5 am),

(e) an application for an extended trading authorisation in relation to a producer/wholesaler licence (but only if the authorisation will result in retail trading at any time between midnight and 5 am),

(f) any particular application (or class of application) that is required by the Authority to be accompanied by a community impact statement,

(g) any other application of a kind prescribed by the regulations or made in such circumstances as may be prescribed by the regulations,

but does not include any application for an extended trading authorisation in relation to a special occasion (as referred to in section 49 (5) (b) or (5A)).

(3) A relevant application must be accompanied by a community impact statement.

(4) The community impact statement must:

(a) be prepared in accordance with the regulations and any requirements of the Authority, and

(b) be in the form approved by the Authority.

(5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to:

(a) the community impact statement provided with the application, and

(b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community.

(6) The regulations may make provision for or with respect to the following:

(a) the requirements that must be satisfied in relation to the preparation of a community impact statement (including consultation requirements),

(b) the matters to be addressed by a community impact statement,

(c) the information to be provided in a community impact statement,

(d) the criteria for determining the local and broader community for the purposes of a relevant application,

(e) any other matter relating to the preparation and content of a community impact statement.

THE AUTHORITY’S REASONS

30. Commencing at [233] the Authority made reference to a number of decisions in which the meaning of the term “immediate vicinity” in licensing legislation, both in NSW and in other jurisdictions, had been considered. Having acknowledged that there was no binding superior court decision as to the proper interpretation of that term, the Authority said the following (commencing at [241]):

241.   While the above cases all involved different factual circumstances, the following principles may be distilled from them, as applicable to the Gaming Machines Act.

242.   First, the meaning of "immediate vicinity" is a question of fact for the Authority to determine in all the circumstances of the individual case.

243.   Second, the words should be interpreted having regard to their ordinary English meaning and in the context in which they appear.

244.   Third, the decision is a matter for the Authority to reasonably determine, on the evidence or material before it. There is no fixed maximum distance.

245.   The Authority notes that the Gaming Machines Act and Gaming Machines Regulation do not include any particular requirement as to the visibility or otherwise of gaming machines with respect to any school, place of worship or hospital when assessing whether or not a licensed premise is in the immediate vicinity of such facilities.

246.   Some of the liquor licensing cases noted above indicate that primary decision makers may have regard to such factors as the visibility of the premises, or whether students or worshippers must walk past the relevant venue in reaching a conclusion on immediate vicinity in a particular factual context.

247.   For example, the Court in Ex parte Paton considered that the awareness of worshippers as to the existence of the licensed venue was a matter that could be taken into account by the decision maker.

248.   In Dean v Lewitz, the New South Wales Licensing Court did not err when considering whether the licensed premises could be seen from a church, and whether the church's activities could be interfered with by noise or nuisance.

249.   Similarly, the precise distance between licensed premises and a school, place of worship or hospital will not in itself be determinative. For example, in Godkin, the mere fact that the licensed premises and the place of worship adjoined one another at one point was held not to preclude the decision maker from determining that the two premises were not in the immediate vicinity of one another.

250. The Applicant has provided, pursuant to clause 36(1)(b) of the Gaming Machines Regulation, a map showing the location of the proposed venue and any school, place of public worship or hospital within 200 metres of the venue. Material showing the proximity of the Proposed Premises to relevant facilities was provided in a letter from the Applicant's legal representative dated 2 October 2015 and in plans 140476/G and 140476/D (prepared by Design Collaborative and provided as an attachment to First Design Collaborative Report).

251.   The submissions from the Applicant and Commercial Objectors focus upon the physical proximity between the Proposed Premises and Campsie Public School and the scope for interaction between persons using those two properties. The Commercial Objectors contend that the hotel is in the immediate vicinity of this school while the Applicant contends that it is not.

252.   For the avoidance of doubt, notwithstanding that various submitters have made observations on social impact in respect of several local churches and two local schools, the Authority has only considered the extent of interaction between users of the Campsie Public School and the Proposed Premises as an aspect of its inquiry into whether the Proposed Premises is in the "immediate vicinity" of a school, hospital or place of worship. The Authority is satisfied that Campsie Public School is the only sensitive site that is potentially close enough to warrant scrutiny in this particular context.

253.   On the scope for Campsie Public School children to interact with the site while walking to and from the school, the Authority prefers the advice of the NSW Department of Education, in consultation with Campsie Public School dated 12 April 2017. The Department is best placed to have this knowledge. The Authority is satisfied that there are over 700 students enrolled at the Campsie Public School and that approximately 25% of them will walk past the hotel site when walking to or from school on each school day.

254.   The Authority notes the observations made in the First Rogerson Hanley Report that "many" of the "school children" they observed walking by the hotel site were in the company of an adult while traversing the near vicinity of the Proposed Premises. The authors contend that approximately 60% of the infant and primary age children were from Campsie Public School with 40% attending St Mel's Catholic School.

255.   The Authority finds it credible, on the basis of this Report, to conclude that many of those primary school children from Campsie Public School will be accompanied by adults or older persons if walking by the Proposed Premises, noting that the Applicant does not seek licensed trading prior to 10:00 am on the basis of Removal Application as amended.

256.   The Authority accepts the Commercial Objectors' submissions dated 29 April 2015 and the First RM Planning Report, supported by information provided from the Department of Education, that there are additional uses of the Campsie School site, including after-hours uses of the premises in early evenings and on weekends. Those uses are noted above.

257.   The proximity of the Campsie Public School to the Proposed Premises is a matter that warrants careful consideration as the Authority accepts the contention made in the RM Planning submission dated April 2015 that the closest point of the boundaries of the two properties are separated by a distance or around 50 metres.

258.   The Authority also finds credible the contention made by the Commercial Objectors that in light of nearby bus stops and the Campsie Railway Station there will be pupils, parents or carers and staff of the schools who use the public buses, the train station and frequent the shops in the Campsie CBD who will, on a daily basis, walk past the Proposed Premises, going to and from school in the morning and afternoons.

259.   The Authority accepts that there is potential for the hotel's operation to offend those who would prefer primary school children not to walk past a licensed premises of this kind on school days. The Authority accepts the contentions made by the Commercial Objectors in a submission dated 29 April 2015 that hotel patrons are more likely than not to cause some level of nuisance to children, parents, carers and teachers over time.

260.   The Authority also accepts the contentions made by the Commercial Objectors in their submission dated 29 April 2015 that hotel patrons may cause some level of noise and interference to others because of the hotel's location on a route that must be used by persons who use the trains buses and shops in the Campsie CBD.

261.   However, the Authority finds that the scope for adverse interaction with Campsie Public students will predominantly occur at or around school closing times in the early afternoon, while the scope for interaction between hotel patrons and others using the School premises will predominantly occur in the late afternoon, early evening and on weekend day time hours. Such interactions will not occur during higher risk times, later in the evening.

262.   With regard to the physical proximity and configuration of the two properties, the Authority agrees with the factual analysis provided by planning lawyers Mills Oakley, who were also engaged by the Applicant to provide advice on the "immediate vicinity" issue. They observe in a submission dated 16 November 2016 that: The area of the Station House premises to be utilised for the purpose of a licensed hotel is disconnected both physically and visually from the School. The physical barriers between the licensed area and the School combines with the orientation of the licensed hotel area materially affect the premises relationship to the school. Despite physical proximity to a comer of the School grounds the relationship and accessibility of the premises to the School cannot be considered to be immediate.

263.   While the Authority accepts RM Planning's contention that the property boundaries are separated by a distance of only 50 metres at their closest point, the configuration of the properties is somewhat indirect. The properties are not immediately adjacent to each other in that the rear part of the school yard that is closest to the hotel is in an "L" configuration to the hotel, down a laneway (Beamish Lane) separating the two properties.

264.   The Authority further accepts the observation made in the First Design Collaborative Report that the properties on which the Proposed Premises and Campsie Public School are situated are separated by a service laneway (Beamish Lane) that is in poor condition with no footpath and is little used. While the School grounds extend along Beamish Lane to around 30 metres from the nearest point separating the school land from the hotel property, the distance from the nearest doorway of the public areas of the new hotel building (on the South Terrace) to the closest comer of the School's grounds is over 70 metres. There is no line of sight between that doorway or any part of the public areas of the Proposed Premises and the Campsie Public School.

265. This is a matter with respect to which reasonable minds may differ. On balance, in circumstances where the two properties are not directly adjacent; when the nearest entry point to the public areas of the hotel will be around 70 metres away from the School boundary; when there will be no line of sight between the public areas of the hotel and school and when the locus of interaction between Campsie Public School users and hotel patrons will likely occur on a common high street within the Campsie CBD, the Authority is not satisfied that the Proposed Premises is (sic) in the "immediate vicinity" of Campsie Public School for the purposes of clause 36(2) of the Gaming Machines Regulation.

266. For the purposes of clause 36(1)(a) of the Gaming Machines Regulation, the Applicant's legal representative has specified, in a letter dated 2 October 2015, that the internal floor space of the proposed venue is: "If one includes the whole of the area, the figure is 446 square metres"; "if one excludes the porches outside the 3 doorways, the fire stair down to Beamish Street and the lift shaft, the total is 428.8 square metres" and "if one were to

further exclude the unroofed "void" area between the gaming room louvres and the wall fronting South Parade, the total floor area becomes 412.3 square metres".

267. The Authority accepts this information and is satisfied that the restrictions prescribed by clause 43 of the Regulation upon the granting of gaming machine threshold applications for venues with a floor space below 400 square metres do not apply in this case.

268. The Commercial Objectors have also questioned whether the Proposed Premises is in a "retail shopping centre" within the meaning of section 37B of the Gaming Machine Act, which restricts the increase of a gaming machine threshold for premises that are part of an actual or proposed retail shopping centre. The Applicant and Commercial Objectors have referred to a decision by the then New South Wales Administrative Decisions Tribunal in Goodlink Pty Limited v Sing & Others [1999] NSWADT 71, where the tribunal described a shopping centre as entailing a substantial collection of shops which are together identified as forming part of a central place for shopping.

269. The Authority is satisfied that the Proposed Premises is not part of a "retail shopping centre" within the meaning of section 37B of the Gaming Machines Act, there being no evidence capable of reasonably satisfying the Authority that this new hotel, which will operate as a stand-alone business on Beamish Street, among a variety of other premises, forms part of a location that is configured as, promoted as, or identified by the community as a "shopping centre".

270.   Noting that this GMT Application did not require a local impact assessment, the Authority is satisfied that this application satisfies all relevant legislative requirements.

271. The Authority has determined, pursuant to section 34 of the Gaming Machines Act, to increase the gaming machine threshold of the Proposed Premises from zero to 27.

272. The Authority has also determined, pursuant to section 19 of the Gaming Machines Act, to approve the transfer of 27 gaming machine entitlements from the Current Premises to the Proposed Premises.

THE GROUNDS OF REVIEW BEFORE THIS COURT

31. Paragraphs 10 and following of the summons pleaded several grounds of review in terms which might be described as “all-encompassing”. In the course of oral argument, senior counsel for the plaintiff submitted that the Authority had determined that:

1. there were over 700 students enrolled at the school, and that approximately 25% of them would walk past the site of the new hotel when walking to or from school on each school day: at [253];

2. many of the children who were observed walking by the site of the new hotel were in the company of an adult while traversing the near vicinity of the new hotel, 60% of whom were from the school and 40% of whom were from St Mel’s Catholic School: at [254];

3. many of the primary school children from the school would be accompanied by adults or older persons if they walked by the new hotel: at [255];

4. there were additional uses of the school site, including after-hours uses of the premises in early evenings and on weekends: at [256];

5. the proximity of the school to the new hotel was a matter that warranted careful consideration in light of the fact that the closest point of the boundaries of the two properties were separated by distance of around 50 metres: at [257];

6. there would, in light of nearby bus stops and the Campsie Railway Station, be pupils, parents or carers, and staff of the school, who used the public buses, the train station, and who frequented the shops in the Campsie CBD and who would on a daily basis, walk past the new hotel going to and from the school in the morning and afternoons: at [258];

7. there was potential for the new hotel’s operation to offend those who would prefer that primary school children not walk past licensed premises: at [259];

8. hotel patrons are more likely than not to cause some level of nuisance to children, parents, carers and teachers over time: at [259];

9. hotel patrons could cause some level of noise and interference to others because of the new hotel’s location on a route that must be used by persons who use the trains, buses and shops in the Campsie CBD: at [260];

10. the scope for adverse interaction with students from the school would predominantly occur at or around school closing times in the early afternoon, while the scope for interaction between patrons of the new hotel, and others using the school premises, would predominantly occur in the late afternoon, early evening and on weekend daytime hours, and not during higher risk times later in the evening: at [261].

32. It was submitted that in these circumstances, the Authority had erred in:

1. asking itself the wrong question, and/or taking into account an irrelevant consideration, concerning the fact that:

2. the area of premises of the new hotel was disconnected, both physically and visually, from the school: at [262];

3. the physical barriers between the new hotel, and the school, combined with the orientation of the new hotel area, materially affected the relationship between the premises of the new hotel and the school: at [262];

4. the relationship and access ability between the premises of the new hotel and the school could not be considered to be immediate, despite physical proximity to a corner of the school grounds: at [262];

5. the new hotel premises and the school were not immediately adjacent to each other, in that the rear part of the school yard that was closest to the new hotel was an “L” configuration to the hotel and located down a laneway separating the two properties: at [263];

6. taking into account a series of irrelevant considerations, namely that:

7. the two properties were not directly adjacent: at [263];

8. the nearest entry point to the public areas of the new hotel would be around 70 metres away from the school boundary: at [264];

9. there would be no line of sight between the public areas of the new hotel and the school: at [264]; and

10. the locus of interaction between the school users and hotel patrons would likely occur on a common street within the Campsie CBD: at [264];

11. failing to give adequate reasons for its decision, in circumstances where it had departed from a previous decision in relation to the same issue;

12. reaching a decision which was “plainly irrational”, and thus unreasonable; and

13. asking itself the wrong question, namely whether it was satisfied that the new hotel premises were in the immediate vicinity of the school.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiffs

33. Senior counsel for the plaintiffs commenced his submissions by referring to the fundamental principle that the task of statutory construction begins with a consideration of the text itself, and that the language which has actually been employed in that text is the surest guide to legislative intention: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] per Hayne, Heydon, Crennan and Kiefel JJ. He submitted, by reference to the definition in the Macquarie Dictionary (7th Edition) that the plain and ordinary meaning of the term “vicinity” was:

The region near or about a place; the neighbourhood or vicinage.

34. Senior counsel also relied upon the Oxford Dictionary definition of the word “vicinity”, namely:

The area near or surrounding a particular place” or “proximity in space of relationship.

35. By reference to these definitions, senior counsel submitted that for the purposes of determining whether the new hotel was in the immediate vicinity of the school, cl 36(2) of the Regulation did not allow for the consideration of any discretionary factors, but required the Authority to ascribe a plain English meaning to the term “immediate vicinity”. It was submitted that as a matter of plain English, the premises of the new hotel were located within the “immediate vicinity” of the school, and that the Authority erred in finding to the contrary. It was submitted that the fact that the two premises were between 50 and 70 metres apart was, of itself, a sufficient basis upon which to conclude that the new hotel premises were in the immediate vicinity of the school within the meaning of cl 36(2).

36. Senior counsel for the plaintiffs submitted that cl 36(2) made no provision for, and did not permit, consideration of any matter other than physical proximity. It was submitted that questions such as whether or not there would be any interference with, or impact upon, the use of other facilities by the operation of the new hotel or the behaviour of its patrons, were irrelevant to the determination that the Authority was required to make, and that by impermissibly taking such considerations into account, the Authority had erred.

37. Senior counsel for the plaintiffs submitted that for the purposes of cl 36(2), the sole consideration was whether or not something was “very near” or “close”, and that questions of nuisance, inconvenience or distraction to persons using nearby facilities were irrelevant. He submitted that in determining whether the premises of the new hotel were in the immediate vicinity of the school, the relevant inquiry was not directed to issues of effect, inconvenience, bystander observations or impact. He submitted that although, under other statutes, an issue may arise as to whether the impact upon persons having resort to the premises may affect the exercise of a discretion, there was no room for such a consideration in respect of cl 36(2) because the premises of the new hotel either were or were not in the “immediate vicinity” of the school.

38. Senior counsel further submitted that the fact that the new hotel and the school were not adjacent to each other did not mean they were not in the immediate vicinity of each other. It was submitted that the application of the legislation was not limited to properties which were adjoining, and that to rely upon the fact that the properties were not immediately adjacent as a factor supporting a conclusion that they were not in the immediate vicinity of each other was erroneous. This, it was submitted, was because such factors distracted from the enquiry demanded by cl 36(2), and demonstrated the fact that primacy was given by the Authority to a consideration which was irrelevant.

39. Senior counsel further submitted that the various considerations which had been impermissibly taken into account by the Authority said nothing about the issue raised by cl 36(2), namely the physical proximity or distance between the new hotel premises and the school. It was submitted that in taking into account matters of social impact in the way in which it did, the Authority had erred.

40. It was further submitted that cl 36(2) required the Authority to make a positive finding, one way or the other, about whether premises were in the immediate vicinity of each other. It was submitted in these circumstances that the conclusion expressed by the Authority at [265] of its reasons, in terms that it was “not satisfied” that the new hotel premises were in the immediate vicinity of the school for the purposes of cl 36(2), reflected the Authority having asked itself the wrong question.

41. Finally, and in reliance upon his previous submissions, senior counsel for the plaintiffs submitted that the decision of the Authority was irrational in the sense of being unreasonable, and that its reasons were inadequate. He submitted that if I were to find in favour of the plaintiffs, it would necessarily follow that the premises of the new hotel were in the immediate vicinity of the school, and that there would therefore be no utility in the matter being remitted to the Authority for its further consideration. In these circumstances it was submitted that the appropriate order would simply be to quash the Authority’s decision in respect of the GMA application.

Submissions of the defendants

42. The primary submission advanced by senior counsel for the defendants was that the issue of “immediate vicinity” in cl 36(2) required the Authority to engage in an evaluative, multi-factorial assessment of the relationship between the site of the new hotel and the school. It was submitted that depending upon the circumstances of a particular case, but necessarily in the present case, the determination of this issue properly included the Authority making an assessment of matters such as the general neighbourhood, the potential interactions between the two premises, and other similar factors.

43. Senior counsel submitted that in order to obtain the relief sought, it was incumbent upon the plaintiffs to establish that it was not open to the Authority to have regard to anything other than the lineal distance between the two premises for the purposes of determining whether or not the new hotel was in the immediate vicinity of the school. It was submitted that the Authority was not required to find that the two premises were in the immediate vicinity of each other merely because there was a distance of somewhere between 50 and 70 metres between them and that in these circumstances, the reasons of the Authority disclosed no error.

44. In developing these submissions, senior counsel for the defendants emphasised that when these issues were most recently before the Authority, the plaintiffs had in fact urged the Authority to take into account the various factors which they now argued had been wrongly considered. It was submitted that this was relevant, not only to an understanding of why the Authority reached the decision that it did, but to the exercise of this Court’s discretion to refuse relief to the plaintiffs even if error was established. It was submitted that in commencing these proceedings, the plaintiffs had completely departed from the position they had adopted before the Authority, and were now taking issue with the fact that the Authority had taken into account the very matters which they themselves had urged were relevant.

45. Senior counsel for the defendants further submitted that properly understood, the complaint made by the plaintiffs was that the Authority had failed to give proper weight to the lineal distance between the new hotel premises and the school. It was submitted in those circumstances that it was necessary to proceed with caution, lest this Court exceed its supervisory jurisdiction by engaging in a review on the merits: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33.

46. Senior counsel for the defendants further submitted that both the terms of cl 36(2) and a number of authorities were inconsistent with the central tenet of the plaintiffs’ submissions, namely that questions of lineal distance essentially determined whether or not premises were in the immediate vicinity of each other. It was submitted that far from taking into account considerations which were irrelevant, the entirety of the considerations taken into account by the Authority were material to the assessment of the neighbourhood as a whole. In this respect, senior counsel submitted that a principal flaw in the plaintiffs’ position was that it sought to substitute, for the term “immediate vicinity”, synonyms such as “close to”, “very near”, “sufficiently close” and “physically proximate”, in circumstances where such terms did not reflect the terms of cl 36(2).

47. Finally, to the extent that it was submitted that the reasons of the Authority were inadequate, senior counsel for the defendants submitted that the reasons for any administrative decision were not to be minutely and finely construed with an eye attuned to error. It was submitted that such reasons were not required to be lengthy or elaborate, and that their content would necessarily depend upon the particular case under consideration, and the matters in issue. It was submitted that the fundamental requirement was that such reasons disclosed the essential ground(s) upon which the relevant decision rested, and that this test had been met in the present case.

CONSIDERATION

48. In the course of argument I was taken to a number authorities in which the term “immediate vicinity” has been considered. It is appropriate that I commence my consideration of the issues by reference to those authorities.

49. In Ex-parte Paton (1929) 30 SR (NSW) 67, the respondent was the holder of a publican’s licence in respect of premises in the city of Sydney. He applied to the Metropolitan Licensing Court for an order for the removal of that licence to other premises. His application was refused. On appeal, the order was set aside and the removal was granted, subject to conditions. A group of objectors then made an application for a writ of certiorari to remove and quash that decision. One of the grounds relied upon was that the premises were in the immediate vicinity of a place of public worship, and that therefore the jurisdiction of the Court was ousted. As to that ground Ferguson ACJ said (at 70):

…The matter is clearly one for determination by the Court below. It is appears that the premises are about eighty yards from St Steven’s Church on the other side of the road. I think it is impossible to say as a matter of law that a place at that distance must be held to be in the immediate vicinity of the Church. I can conceive of cases where any other finding would be obviously unreasonable; I can conceive of other cases where I think it would be equally unreasonable to hold that it was in the immediate vicinity. A place eighty yards from a Church, in another street for example, might be practically so far removed that no single worshipper would ever be aware of its existence. The question is one of fact which the licensing court must have jurisdiction to decide.

50. In Mullens v Norton (1938) VLR 292, the applicant applied to the Licensing Court for the grant of victualler’s licence for certain premises. It was an available ground of objection to the grant of such a licence that the premises for which the licence was sought were in the immediate vicinity of a place of public worship, hospital or school. The application was opposed on the ground that the premises from which the licence was proposed to operate were in the immediate vicinity of a place of public worship. It was not in dispute that the rear of the licensed premises was contiguous to church property incorporating a parsonage, that at the side of the parsonage site (and contiguous thereto) was other church property which was vacant except for a small garage, and that contiguous to that land was the land upon which the church stood. There was also no dispute that the distance between the nearest point of the church site and the nearest portion of the proposed hotel site was 72 feet. By majority, the Licensing Court disallowed the objection and concluded that the site of the proposed premises was not in the immediate vicinity of the place of public worship.

51. Before the Full Court of the Supreme Court of Victoria the question for determination depended upon the meaning to be assigned to the term “the immediate vicinity”. Lowe J (with whom Mann CJ agreed) observed that the relevant legislation did not reveal any clear indication of the purpose which was sought to be achieved by the inclusion of that term. His Honour concluded (at 295) that the Court was, as a consequence, “thrown back upon their meanings simply as English words in the context used” before saying:

Etymologically “immediate” means “not mediate” and indicates that there is nothing “intermediate” between the objects to which the adjective relates. But the notion of several vicinities one of which is immediate to an object and the other or others not immediate, i.e., severed from the object by one or more intermediate vicinities, much in the way that the various rings surround the centre of a target, is a highly artificial one, and one which it is difficult to attribute to the Legislature. There is, on the other hand, a perfectly well known use of the word “immediate”, in relation to place, to indicate “something of little importance”. The Oxford English Dictionary gives “Immediate…3…In reference to place often used loosely of a distance which is treated as of no account”. In my judgement that is the meaning to be attached to the word in sec. 98 of the Licensing Act. “In the immediate vicinity” therefore simply means “very near”. The determination of the question is consequently one of fact in every case. If there is evidence upon which reasonable men might come to the conclusion challenged and the Licensing Court has not misdirected itself that conclusion will not be disturbed by this Court.

52. His Honour then said (at 295):

Unless, therefore, the majority misdirected themselves in arriving at this conclusion it must stand. It was strongly contended before us that they had misdirected themselves inasmuch as they later state "The reasoning we apply is that no single worshipper would be aware of its existence and would certainly not have the hotel obtruded on his sensibilities any more than if the Church were on the opposite side of Maude Street and facing the Mechanics Institute increasing the distance the site is away by the width of the street' '. This suggests that the majority were treating the matter as if the Legislature were providing against the creation of a nuisance or some unpleasant sight to worshippers in the immediate vicinity, of the place of public worship. Such a test is, I think, not warranted by the language of the Act and if thought that the proper construction of the special case was that this was the sole ground of the majority view I should think it was illfounded and that the matter should be considered afresh. But I do not think that the special case should be so construed. I have already drawn attention to the language of the specific finding of fact made by the majority. That finding follows a recital of all the relevant facts as to distance and the relative position of surrounding objects. The majority then say:-" We are fortified in our opinion by the dictum of Ferguson A.C.J. in that case, Ex parte Paton". They are then led into a comparison of the case before them with the New South Wales case and to apply the same test as the language of Ferguson A.C.J. suggests and as a result of the application of the test to come to the same conclusion that they had already announced as a question of fact. They were probably influenced too in applying this test by the circumstance that their dissenting colleague also applied the same test, though it led him to a different conclusion. I do not think that the addition of an unsound reason to fortify a conclusion properly arrived at vitiates that conclusion.

I think then that the question-" Was the determination of the Licensing Court erroneous in point of law in finding as a fact that the proposed site was not in the 'immediate vicinity of a place of public worship' ... ?"-should be answered, "No".

53. In a dissenting judgment, Gavan Duffy J said (at 297):

The words "in the immediate vicinity of" are not apt to express any exact idea. "In immediate vicinity to" would I think clearly meant "next to" but the word "the" introduces an idea of some territory within which a thing is to be found which is practically incompatible with giving the words "immediate vicinity" their primary meaning of next in space. "Immediate" is said in Webster's New International Dictionary to mean (of space) colloquially, "not far apart or distant; as, hidden in the immediate neighbourhood". I think the words in the Licensing Act may be paraphrased as "close to" and that no more definite guide can be obtained from them for those who have to try the question of fact.

When asking what is "not far distant" or "close" the standard may perhaps vary in varying places, and a house that is close to another in the country might not be held to be so in a congested town. It may even be open to argument that the distance to be considered is that which would have to be traversed by a man going from one place to another rather than the distance

between them in space, though I do not agree that such a view is right, but the test cannot be whether the propinquity is annoying or not.

The fact that here the Church and the proposed hotel, although in point of fact close to one another, were so situated and circumstanced that worshippers would not be aware of or offended by the evidence of propinquity of licensed premises could only be properly taken into account. if the words "in the immediate vicinity" connoted something of nuisance or inconvenience. Such a connotation is quite alien to their ordinary meaning and can only be found by importing reasons of convenience that it is supposed' must have affected the Legislature in using them. In my opinion such a method of interpretation is not justified, though it perhaps receives some support from language used by Ferguson A.C.J. in Ex parte Paton, where he says, speaking of similar Torts in a New South Wales Act:

"As to the second of these grounds, the matter is clearly one for determination by the Court below. It appears that the premises are about eighty yards from St. Stephen's Church on the other side of the road. I think it is impossible to say as a matter of law that a place at that distance must be held to be in the immediate vicinity of the church. I can conceive of cases where any other finding would be obviously unreasonable; I can conceive of other cases where I think it ,would be equally unreasonable to hold that it. was in the immediate vicinity. A place eighty yards from a church, in another street for example, might be practically so' far removed that no single worshipper would ever be aware of its existence".

With great respect these words seem to me to replace the test of propinquity laid down by one of inconvenience. A place may be next door and invisible, four hundred yards away and an eyesore.

If my view of the meaning of the words. of the section is correct, the majority of the Licensing Court based their judgment on matters not pertinent for consideration in deciding whether the proposed site was "in the immediate vicinity" of the Methodist Church.

The question asked should, therefore, in my opinion, be answered, Yes.

54. In Dean v Lewitz (1958) 76 WN (NSW) 349, Ferguson J considered the provisions of s 29 of the Liquor Act 1912 (NSW) (“the 1912 Act”) which dealt with objections to the granting of liquor licences. An available objection under s 29(f) was that the licensed premises were in the immediate vicinity of a place of public worship, hospital or public school. In reference to the decision in Mullens v Norton his Honour said (at 351):

With great respect to the view expressed by Lowe J that the Act fails to reveal any clear indication of the purpose sought to be achieved by the use of the words “in the immediate vicinity” I am unable to agree with it, at least as applying to the New South Wales Act. The objection contained in s. 29(f) is in the following terms “that the premises are in the immediate vicinity of a place of public worship, hospital, or public school.” To my mind the very nature of the institutions specified provides a clear indication of what the legislature sought to achieve. Had the clause specified such institutions as brick yards or iron foundries I would agree that they would provide no indication; but the objection is to having a public house in close proximity to a place of worship, or a hospital, or a public school. It is common knowledge that public houses, not infrequently induce unseemly conduct, drunkenness and rowdysim. That the legislature had such matters in mind is obvious from the objection contained in s. 29(g) which follows immediately after the one under discussion. That objection reads “that the quiet and good order of the neighbourhood in which such premises are situate will be disturbed if the licence is granted”. It seems to me that the inference is irresistible that the purpose that the legislature sought to achieve was to protect persons resorting to those institutions from annoyance, nuisance, and possible objectionable influences. With a public house within easy sight of hearing worshippers might well be offended, the sick disturbed and school children corrupted. If such consequences are unlikely to flow by reason of the fact that the hotel, though in close proximity to a specified institution is situate as to be out of sight or hearing, that is a factor, it seems to me material to be considered on the question as to whether it is in the immediate vicinity of such institutions within the meaning of the Act. In my opinion the Court did not apply any wrong principle.

As to the second ground I think that the scope of the sub-regulations referred to is confined to the applications and persons referred to therein, and that the Court was correct in holding that compliance with their requirements is unnecessary in an application for the conditional grant of a removal.

55. In reaching those conclusions, his Honour followed the earlier decision of Ferguson ACJ in Ex-parte Paton.

56. In Ex-parte Godkin; re Fitzmaurice (1969) 90 WN (Pt 1) (NSW) 159, the Court of Appeal again considered the provisions of s 29(f) of the 1912 Act. Wallace P (with whom Walsh and Holmes JJA agreed) said (at 161):

For the mere fact that there is a common boundary line or, as here, a common boundary line to the extent of forty-seven feet, cannot of itself lead to the view that in law a “place of public worship” must be deemed to in the “immediate vicinity” of the site of a proposed licensed premises. By way of illustration one can take the cases of a church standing in several acres of land or a chapel which members of the public are permitted to attend, but which stands in some enclosed military, hospital, or scholastic area; in each of these cases the issue of “immediate vicinity” would remain a question of fact even if a proposed site for licensed premises was adjoining the particular boundary.

57. Walsh JA observed (at 162) that the words “in the immediate vicinity” were ordinary English words which had no defined statutory meaning and no technical legal meaning. His Honour concluded (at 163) that whether a place of public worship was in “the immediate vicinity” of a proposed licensed area was a question of fact and that it could not be laid down, as a matter of law, that some particular distance may be specified as that which is described by the expression “the immediate vicinity”. His Honour went on to say (at 164):

I do not regard the reference by the Licences Reduction Board to the case of Dean v Lewitz (6) as indicative of an error of law.

It has not been argued for the applicant here that a consideration of whether the place of public worship and the licensed premises are so placed in relation to one another that the activities on the licensed premises will cause a nuisance to or an interference with the users of the place of public worship is always irrelevant to an objection under s. 29(f). What is submitted is that Dean v Lewitz was a very different case on its facts, and that on the facts of the present case a consideration of nuisance or annoyance could not assist in the determination of the question. It may be, as was suggested to the court, that this is a consideration which may be more relevant to the exercise of a discretion which, was submitted by counsel for the respondent Cooper, the Licenses Reduction Board has to grant an application, notwithstanding that it finds the Licensed premises are in the immediate vicinity of a place of public worship, than it is to deciding whether that finding should be made. But in my opinion this is not the occasion for us to decide whether such a finding is an absolute bar to a grant or whether it leaves a discretion in the board to grant or refuse the application.

I am not prepared to hold that the considerations discussed in Dean v Lewitz (7) are wholly irrelevant to the decision of the board on the question whether or not the objection has been sustained, or to hold that their reference to those consideration demonstrates that they misdirected themselves as to the construction of the provisions of the act.

58. Finally, in Hinton v Lane [2009] NSWSC 37 Hoeben J (as his Honour then was) considered the provisions of s 37 of the GMA which provided (inter alia) as follows:

37(1) An application to which this Division applies cannot be granted unless the Board has approved the social impact assessment provided in connection with the application.

…

(3) The Board may approve the social impact assessment only if the Board is satisfied that:

…

(c) In the case of an application involving a new hotel or a new club – there is no school, place of public worship of hospital in the immediate vicinity of the hotel or club…” (my emphasis)

59. His Honour said (commencing at [33]):

[33] What is within the “immediate vicinity” will vary according to the context. What might be regarded by the Board as the “immediate vicinity” in a sparsely populated country town will be different when considering a densely populated area of the CBD dominated by tall buildings. The Board as a specialist tribunal must take into account the neighbourhood as a whole. In this case a matter which the Board may have taken into account was the fact that the plaintiffs’ competing licensed premises physically adjoined the church in question.

[34] The decided cases amply illustrate this point. In the Phillip Street of Sydney in 1929 the Court was not prepared to say that a distance of 80 yards to St Stephens Church must as a matter of law be held to be in its immediate vicinity: Ex parte Paton (1929) 30 SR (NSW) 67 at 70. The Court held:

“The question is one of fact which the Licensing Court must have jurisdiction to decide.”

[35] So also in Ex parte Godkin: Re Fitzmaurice (1969) 90 WN (NSW) 159 at 161 the Court of Appeal was not prepared to hold that the Board had made an error of law in not finding “immediate vicinity”, even though the properties under consideration shared a common boundary. See also Dean v Lewitz (1958) 76 WN (NSW) 349.

60. Some of these authorities were also considered by Adams J in Buckley. At [78] her Honour concluded that they supported the proposition that the question of “immediate vicinity” was not merely a matter of distance. Her Honour further concluded (at [83]) that a consideration of whether premises were in the “immediate vicinity” of other premises involved an evaluative assessment, based upon all relevant material. I respectfully agree with those observations.

61. The principal proposition advanced by the plaintiffs, namely that the question of whether the new hotel was in the immediate vicinity of the school was to be determined by reference to the lineal distance between the two premises, runs completely contrary to the weight of the authorities to which I have referred. Perhaps with the exception of the decision in Mullens, those authorities overwhelmingly support the view that such determination is one in respect of which it is open to have regard to a variety of factors. That approach recognises, as Hoeben J pointed out in Hinton v Lane and as Ferguson ACJ pointed out in Ex-Parte Paton, that whether premises are in the immediate vicinity of one another will vary according to context. Such approach runs entirely contrary to the proposition advanced on behalf of the plaintiffs that the question is to be determined by nothing more than lineal distance. Lineal distance is but one relevant consideration. The weight to be given to it is a matter for the Authority.

62. The rationale which underlies such an approach is easily understood. Cl 36(2) is directed, at least in part, to ensuring that persons who attend certain places (in this case, the school) are protected from any interference which might emanate from licensed premises. The matters considered by the Authority at [253] and following of its reasons were relevant to that evaluation. It was necessary for the neighbourhood as a whole to be taken into account. The Authority’s approach was consistent with the line of authority to which I have referred and no error has been demonstrated.

63. I am also unable to accept the submission that the reasons of the Authority were inadequate. It is well settled that reasons of this nature are not to be minutely and finely construed, but are to be given a beneficial construction: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6. The reasons in the present case were comprehensive, and reflected a proper consideration and evaluation of the authorities to which I have referred. They also reflected the Authority having taken into account a number of matters which the plaintiffs urged were relevant, but with which the plaintiffs now seek to take issue.

64. I am also not persuaded that the Authority’s conclusion, expressed in terms that it was “not satisfied” that the new hotel was in the immediate vicinity of the school for the purposes of cl 36(2) (at [265]), is indicative of it having asked itself the wrong question. The fact that the particular requirement of cl 36(2) is expressed objectively is not decisive: Co-ordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44] per Basten JA, citing Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 at 391; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [72].

65. Finally, I am unpersuaded that the Authority’s determination is unreasonable in the relevant sense: see the discussion in Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 commencing at [54]. This is particularly so where the determination was, as I have said, approached in a manner consistent with a well settled line of authority.

CONCLUSION

66. For the forgoing reasons, I make the following orders:

1. The proceedings are dismissed.

2. The plaintiffs are to pay the defendants’ costs as agreed or assessed.

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Decision last updated: 13 July 2018