Hinton v Lane

[2009] NSWSC 37

CITATION:	Hinton and Anor v Lane & Ors [2009] NSWSC 37
HEARING DATE(S):	16/12/2008
JUDGMENT DATE :	16 February 2009
JUDGMENT OF:	Hoeben J at 1
DECISION:	The Statement of Claim/Summons is dismissed. The plaintiffs are to pay the costs of the first defendant.
CATCHWORDS:	ADMINISTRATIVE LAW - decisions of Liquor Administration Board to approve a Gaming Social Impact Assessment and a Category A Liquor Social Impact Assessment - whether decisions beyond power - whether decisions properly applied legislation.
LEGISLATION CITED:	Gaming Machines Act 2001 Liquor Act 1982 Liquor Act 2007 Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 526 Bruce v Cole (1998) 45 NSWLR 163 at 183-184. Buck v Bavone (1976) 135 CLR 110 at 118-119 Buckley & Ors v May & Ors [2007] NSWSC 1519 Coles Myer Limited & Anor v O’Brien & Ors (1992) 28 NSWLR 525 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44] Craig v South Australia (1994-1995) 184 CLR 163 at 175-176 Cross v McHugh [1974] 1 NSWLR 500 at 503 Dalgety Wine Estate v Rizzon (1979) 141 CLR 552 at 574 Dean v Lewitz (1958) 76 WN (NSW) 349 Ex parte Godkin: Re Fitzmaurice (1969) 90 WN (NSW) 159 Ex parte Paton (1929) 30 SR (NSW) 67 at 70 Martin & Anor v Kelly & Ors [2008] NSWSC 577 at [13] – [23] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Rayjon Properties Pty Limited v Director General, Department of Housing, Local Government and Planning [1995] 2 QD R 559 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25] Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27] Winners Circle Pty Limited v Liquor Administration Board [2007] NSWSC 442 Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79]
PARTIES:	Benjamin Hinton - First Plaintiff Crescent Hotel 1898 Pty Limited - Second Plaintiff Scott Patrick Lane - First Defendant Liquor Administration Board - Second Defendant Licensing Court of NSW - Third Defendant
FILE NUMBER(S):	SC 30130/2008
COUNSEL:	Mr JB Costigan - Plaintiffs Mr WG Muddle SC/Mr KD Ginges - Defendants Mr S B Lloyd SC - Attorney-General of NSW
SOLICITORS:	Grant Cusack & Associates - Plaintiffs Bruce Stewart Dimarco - Defendants IV Knight, Crown Solicitor - Attorney-General of NSW
LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday 16 February 2009

30130/2008 – Benjamin HINTON & Ors v Scott LANE & Ors

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
This claim is brought pursuant to s 69 of the Supreme Court Act 1970. The plaintiffs claim prerogative relief in respect of two decisions of the second defendant (the Board) approving a Class 1 Gaming Social Impact Assessment (SIA) on 14 December 2007 and approving a Category A Liquor SIA on 28 May 2008. The originating process while purporting to be a Statement of Claim is in effect a Summons and the factual basis for the relief sought has not been pleaded. The plaintiffs allege that the approvals were contrary to the Gaming Machines Act 2001 and the Liquor Act 1982 and as such involved errors of law and were in excess of power.

Factual Background

2 The plaintiffs own and operate licensed premises in George Street, Sydney. The first defendant is the holder of an Hotelier’s Liquor licence (the licence) in respect of premises at 111-113 Regent Street, Chippendale known as the Black Market Hotel. The first defendant wishes to remove that licence from those premises to 661-663 George Street, Sydney (the George Street premises) where it is intended that a hotel development will take place.

3 Before approval could be given for the removal of the licence to the George Street premises, the first defendant was required to have a Liquor SIA pursuant to the Liquor Act 1982 and a Gaming SIA pursuant to the Gaming Machines Act 2001 approved by the Board in respect of those premises.

4 In relation to the Gaming SIA, the first defendant made application for approval on 26 May 2006 (the first Gaming SIA). Thereafter, submissions in favour and submissions from the plaintiffs and others against the approval were received by the Board. On 31 May 2007 the first Gaming SIA was approved by the Board. The first Gaming SIA was subsequently marked “withdrawn (no jurisdiction)” in October 2007. This occurred as a result of the decision of Brereton J in Winners Circle Pty Limited v Liquor Administration Board [2007] NSWSC 442 which held that there had to be an application for removal of licence filed with the Licensing Court of NSW before a Gaming SIA approval could be granted by the Board.

5 On 18 October 2007 the second Gaming SIA was lodged by the first defendant with the Board. The plaintiffs once again objected. The Board advised that it would treat the submissions made in respect of the first Gaming SIA as submissions in the second Gaming SIA when considering whether or not to approve it. On 14 December 2007 the Board approved the second Class 1 Gaming SIA.

6 In relation to the Liquor SIA, the first defendant filed a Category A Liquor SIA with the Board on 7 February 2008. Thereafter submissions were received from the plaintiffs opposing the grant of approval. On 28 May 2008 the Board approved the Category A Liquor SIA. In relation to each SIA there was no obligation on the Board to give reasons.

7 By way of further background, the Black Market Hotel appears to have been conducted as a conventional hotel with trading hours 5am to 5am six days per week and 5am to 10pm on Sundays. It seems to be common ground that due to the style and management of that hotel, there were numerous conditions attached to its licence.

8 The proposed hotel development of the George Street premises encompassed the basement, ground floor, a proposed mezzanine level between the ground and first floor, and part of the first floor of the building. The rest of the first floor and the remaining four floors of the building would be developed as offices unconnected to the hotel. The first defendant intended that the style and clientele of the proposed George Street premises would be radically different to that of the former Black Market Hotel and much more up-market.

Attorney-General’s Submissions

9 Submissions were made on behalf of the Attorney-General of New South Wales appearing as Amicus Curiae. The submissions did not address the substantive issues between the parties but the consequences of certain legislative amendments which had occurred.

10 By s 161 of the Liquor Act 2007, the Liquor Act 1982 was repealed. The repeal took effect on 1 July 2008. This meant that as of that date the Board was abolished.

11 The Attorney-General submitted that notwithstanding that the Board had been abolished, it continued to have power until 1 January 2009 in relation to liquor matters, i.e. in relation to “any matter” that was being dealt with by it but had not been “determined” by 30 June 2008. From 1 January 2009 the Board would not have any power under the Liquor Act even in respect of pending matters. From that time onwards any matter under the Liquor Act pending before the Board would be taken to be a matter before the Casino Liquor and Gaming Control Authority (the Authority) to be determined under the corresponding provisions of the current Act.

12 The Attorney-General submitted that if it were established to the satisfaction of the Court before 1 January 2009 that the Board had acted in excess of power, or made a jurisdictional error in the course of approving either or both the SIAs, the matters would still be relevantly pending before the Board. That would be the only circumstance in which the Board would have any possible relevant existence. It is for this reason that the Board had not filed an appearance.

13 Unless and until orders were made establishing that the Board acted in excess of power or made a jurisdictional error, the matters the subject of these proceedings were not pending and the Board had no relevant existence. It followed that if the Court were to make a decision for the plaintiffs prior to 1 January 2009 the matters would still be pending before the Board. If a decision were made for the plaintiffs after 1 January 2009 the matters would be pending before the Authority. If a decision were made that the Board did not make any decision in excess of power or made a jurisdictional error, then there would be no pending decision at all and the Board could never have been a party.

Lack of standing

14 The first defendant submitted that the plaintiffs did not have standing to bring these proceedings. It submitted that the statute did not identify any class of sufficiently interested persons. In those circumstances he submitted that a private individual could not sue to enforce a public right and relied upon the statement of principle by Gibbs J in Australian Conservation Foundationv The Commonwealth (1980) 146 CLR 493 at 526:

“For the reasons I have given, the action was not brought by the Foundation to assert a private right. It is brought to prevent what is alleged to be a public wrong. The wrong is not one that causes or threatens to cause, damage to the Foundation, or that affects, or threatens to affect, the interests of the Foundation in any material way. The Foundation seeks to enforce the public law as a matter of principle, as part of an endeavour to achieve its objects and to uphold the values which it was formed to promote. The question is whether, in these circumstances, it has standing to sue.
It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.”

15 The first defendant submitted that the plaintiffs were unable to bring themselves within the two exceptions to that principle. He submitted that the Statement of Claim did not allege any private right which had been interfered with because the Board’s decisions did not impose any restriction on the plaintiffs.

16 In relation to the second exception, the first defendant submitted that the plaintiffs had not pleaded that they had suffered any special damage peculiar to either of them. Specifically, the first defendant submitted the law did not recognise the interest of a competitor in having his rival hindered, frustrated or delayed as sufficient to give standing to bring proceedings. The first defendant relied upon Rayjon Properties Pty Limited v Director General, Department of Housing, Local Government and Planning [1995] 2 QD R 559, a decision of Thomas J.

17 In answer the plaintiffs relied upon s 62E of the Liquor Act 1982 which set out how the SIA was to be advertised and placed on public exhibition and which required the Board (subs (5)) to take into account written submissions made within a specified thirty day period. They also relied upon the decision of Brereton J in Buckley & Ors v May & Ors [2007] NSWSC 1519.

18 I have concluded, not without some reservations, that the plaintiffs have standing to bring this application. The plaintiffs’ position, however, has not been helped by the fact that despite the Court requiring the matter to proceed by way of Statement of Claim, the document filed is not a Statement of Claim and does not plead the matters of fact and law upon which the plaintiffs rely.

19 As a preliminary point little assistance is provided by the Buckley decision. This was an application for expedition in which the standing of the objector/competitor was not raised as an issue. It was assumed by both sides that the objector had standing and his Honour was not required to turn his mind to the question.

20 The decision in Rayjon Properties is also of limited value. Its outcome was determined largely by the legislation which his Honour had to consider. Under that legislation a developer could apply to the Chief Executive of the Local Government Department for an exemption from obtaining an Environmental Impact Statement. The Act did not allow for any objections to be made or considered as part of that process. As his Honour pointed out:

“The prescriptions of the Act make it abundantly clear that this preliminary procedure is one between the potential applicant and the chief executive officer of the Department of Housing, Local Government and Planning. The persons and departments with whom the CEO must consult are prescribed. No intention can be discerned to convert this preliminary decision process into an invitation to potential objectors to be heard, or to invoke a further adversarial procedure.”

21 This significant difference in the two procedures operates to distinguish the Rayjon Properties decision from the facts of this case.

22 The decision which I have found to be of most assistance is Coles Myer Limited & Anor v O’Brien & Ors (1992) 28 NSWLR 525. I accept that the case was concerned with the words “persons aggrieved by an adjudication” as used in a particular statute. In the course of reaching their conclusion, however, the Court of Appeal examined what it described as the “widening law of standing”. In construing those words Kirby P said:

“It is therefore impossible to approach the problem tendered to the Court in the instant case divorced from this important and in my view beneficial, development in the approach of the common law courts throughout the world to the general question of standing and to the particular meaning of the phrase “person aggrieved”. (530.C)

“Applying that approach to s 62E of the Liquor Act 1982 it is clear that the legislature had in mind bringing to the attention of as wide a group as possible that a SIA had been submitted for approval so as to enable persons who had an interest to make a submission. That provision has the effect of granting to a person who has made such a submission a right to challenge the outcome if the submission is based on a real interest which the person has in the outcome. In that sense the plaintiffs have a real interest in challenging the approval of the SIA in the sense that they would be appreciably disadvantaged in a practical if not a legal sense if the approval stands.” (Sheller JA 533.C)

Gaming SIA

23 The plaintiffs relied upon s 37 of the Gaming Machines Act 2001. This relevantly provided:

“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:
(a) the social impact assessment complies with the requirements of this Division and the regulations in relation to the social impact assessment, and
(b) the social impact assessment has demonstrated that the gambling activities involving approved gaming machines in the hotel or on the premises of the club concerned will be conducted in a responsible manner, and
(c) in the case of an application involving a new hotel or a new club – there is no school, place of public worship or hospital in the immediate vicinity of the hotel or club …”

24 The plaintiffs submitted that in accordance with s 37(3)(c) the Board could only grant the gaming SIA if it were satisfied that the George Street premises, to which the licence was to be removed, were not in the immediate vicinity of a place of worship. They submitted that the undisputed evidence was that there was a catholic church in George Street and that the distance between its boundary and the boundary of the George Street premises was in the order of 36 metres. The Court was directed to photographs which showed the comparative position of the two buildings.

25 The plaintiffs submitted that on any view of the objective facts before the Board, it was not open to it to come to any other decision than that the George Street premises were within the immediate vicinity of a place of public worship, namely St Peter Julian’s Catholic Church.

26 The plaintiffs also relied upon an internal note made by the Senior Magistrate, Mr Armati and endorsed by the other two Magistrates comprising the Board, which indicated that they had had a view of the George Street premises and of the church on 16 May 2007.

27 On the internal note his Honour Mr Armati recorded that he had carried out a detailed view of the area, including the church and surrounding buildings. He formed the opinion that the church was not in the immediate vicinity of the George Street premises. He made some additional observations that in respect of the daily activities which would be conducted at the church, there was a foyer which would permit the congregation to remain inside the building before and after services and that in such circumstances they would be even less likely to see or hear what was happening in the premises proposed for the hotel.

28 It was submitted that this internal note indicated that the Board had not properly considered the question in accordance with s 37(3)(c) and that its decision in this regard was so unreasonable as to give rise to the error identified in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. i.e. that the Board’s decision on its face was so unreasonable that it could not have been made by a reasonable decision maker and that the decision could only have been made if the Board had taken into account irrelevant considerations in its reasoning.

29 Before analysing these submissions it is useful to set out the principles which the Court should apply when considering such questions. These were usefully collected by Johnson J in Martin & Anor v Kelly & Ors [2008] NSWSC 577 at [13] – [23]:

“13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. 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: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

Relief in the Nature of Certiorari

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

18 The face of the record includes the reasons expressed by the LAB for its ultimate determination: s.69(4) Supreme Court Act 1970 .

19 In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:
“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]:
“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. The language used in s19(3)(c) GM Act is a commonly used drafting device to ensure that judicial review is restricted although the LAB’s opinion is nevertheless examinable according to the principles in Buck v Bavone at 118-119: Jabetin at 617 [37].”

30 Applying those principles, I am not persuaded that the kind of error identified in Craig has occurred, i.e. jurisdictional error, denial of procedural fairness, fraud or error of law on the face of the record. As s 37(3)(c) makes clear what is required is that the Board be “satisfied” that there is no place of public worship in the immediate vicinity of the proposed hotel. The complaint which is made does not come within any of those well-recognized grounds, except perhaps for jurisdictional error.

31 There is no material which has been identified which would indicate that the Board identified a wrong issue, asked itself a wrong question, ignored relevant material or relied upon irrelevant material so as to arrive at a mistaken conclusion.

32 The concept in relation to which complaint is specifically made is that of “immediate vicinity”. This is not defined in the Act and as indicated, the Act specifically provides that it is the opinion of the Board on that question which is determinative. The Board is a specialised tribunal and this Court has no jurisdiction to substitute its own opinion for that of a specialized tribunal. There are strong policy reasons why this Court should not intervene in such circumstances.

“First, a superior court should hesitate before granting an injunction restraining a party from commencing or maintaining proceedings in a court or tribunal which has been specially constituted by statute with a jurisdiction to entertain and determine proceedings of that kind, the more so when the proceedings relate to rights or privileges which depend for their existence on the statute. The Act creates the licence and regulates what may be done with it by way of transfer or removal. And as we have seen, the Act has constituted the Licensing Court with an exclusive jurisdiction in licensing matters.” (Dalgety Wine Estate v Rizzon (1979) 141 CLR 552 at 574.)

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.

36 It follows that I am not satisfied that the plaintiffs’ challenge to the Gaming SIA has been made out.

Category A Liquor SIA

37 In order to understand the plaintiff’s submissions, it is necessary to set out the statutory provisions which applied at the time. Section 62F of the Liquor Act 1982 relevantly provides:

“62F(1) The Board may approve a social impact assessment that is provided in connection with a relevant application only if the Board is satisfied that:
(a) the social impact assessment complies with this Division and the Regulations; and
(b) the overall social impact of the application being granted by the court will not be detrimental to the local community or to the broader community …
(3) The Minister may issue written guidelines to the Board in relation to the following matters:
(a) the factors that are to be taken into account by the Board in determining a social impact assessment;
(b) the criteria for determining the local community and broader community for the purposes of subsection (1)(b);
(c) the manner in which the Board is to exercise its functions in relation to a social impact assessment;
(d) the appropriate form for a social impact assessment.
(4) In exercising any of its functions in relation to a social impact assessment the Board is subject to the guidelines issued by the Minister under subsection (3).”

38 Section 18B of the Liquor Regulations 1996 relevantly provided:

“18B …
(2) A “Category A” SIA is required to be provided if:
(a) the relevant application is for:
…
(ii) the removal of a hotelier’s licence to premises that, in the case of a metropolitan area, are or will be situated within one kilometre of the previous premises, or
…
(b) the trading hours of the relevant premises are to be the same as, or more restricted than, the trading hours of the previous premises, and
(c) the conditions of the licence concerned are not being varied (unless the variation relates to a condition that, in the opinion of the Board, relates to a matter that is specific to the location of the previous premises), and
(d) the total area of the licensed premises to which the licence is to be removed does not exceed the area of the previous premises by more than 10%.
…
(5) In deciding, for the purposes of subclause (2)(c), whether or not a condition of a licence is a condition that is specific to the location of the previous premises, the Board is, without limiting the operation of section 62F(4) of the Act, subject to the guidelines furnished by the Minister under section 62F(3) of the Act. …”

39 The relevant guideline issued by the Minister was:

“ Category A Social Impact Assessment
1.1 For the purposes of clause 18B(5) variations to a location-specific condition of the licence may be made, but only if such a condition is not relevant to the new premises (such as a requirement to patrol a certain street, where that street is no longer near the new premises). In considering such a variation the Board should consider replacement of the relevant condition with a new location-specific requirement, in preference to the full removal of the condition.”

40 It was common ground that on 5 July 2007 the first defendant filed a Variation of Conditions Application with the Board to have removed from the Licence conditions 3 to 35 (inclusive) as then appearing. As part of the first defendant’s application for a Category A Liquor SIA on 7 February 2008, the first defendant put forward a list of replacement licence conditions. That list of replacement licence conditions was subsequently amended and filed with the Board on 19 May 2008. The original conditions and proposed conditions are conveniently set out in the affidavit of the first defendant sworn 4 June 2008.

41 It was against that background that the plaintiffs submitted that at the time the Board was considering the first defendant’s application for a Category A Liquor SIA, he was seeking the deletion of conditions 3-35 from the licence. The plaintiffs submitted that it was implicit in the Board’s approval of the Category A Liquor SIA that it also approved either the deletion or variation of those conditions.

42 The plaintiffs submitted that the Board acted in excess of jurisdiction when it approved the Category A Liquor SIA in that it was clear on the face of the application that the conditions of the licence were to be varied and that the variation did not relate to a matter specific to the location of the previous premises (s18B(2)(c) and s18B(5) Liquor Regulations 1996).

43 The plaintiffs submitted that most of the conditions sought to be deleted or varied were not location specific. The plaintiff supported that submission by reference to some of those conditions. The most striking example, the plaintiff submitted, was the variation of the standard noise condition. The Court was told that this was a condition which had been imposed in that form on just about every licence which was granted to licensed premises in New South Wales be they in a country town or in the Sydney CBD.

44 The plaintiffs accepted that for this submission to be made out, they would have to establish that the conditions sought to be varied could in no way be construed by any reasonable decision maker to be location specific nor, in the words of the Ministerial guideline, could they be regarded as relevant to the new premises.

45 The other conditions to which the Court’s attention was drawn were those relating to CCTV surveillance, the provision of security personnel, how the licence was to be operated and how the premises were to be maintained and cleaned. The plaintiffs submitted that no fair-minded Board was capable of finding that such conditions were location specific as referred to in the Liquor Regulation and in the Ministerial guideline. If that submission were made out, it was clear that the Board had acted beyond power in purporting to approve the Category A Liquor SIA on 28 May 2008.

46 The first defendant reminded the Court that while it was clear from the application for a Category A Liquor SIA that the first defendant wished to delete and vary the conditions of the licence, such deletion or variation had not yet taken place. Argument concerning that issue would take place before a court in due course.

47 In relation to the variation of the standard noise condition, the first defendant submitted that the basis of the application was the replacement of the old standard noise condition with the latest form of noise condition which the Board was now applying to the granting of licences. The first defendant was not seeking to avoid the imposition of a noise condition, but simply wished to update the existing condition.

48 The first defendant submitted that insofar as the standard noise condition was concerned, the question was whether it was open to the Board to replace an out of date standard condition with an updated condition. This raised the question of whether the Board could properly hold the opinion that a variation of that kind to the standard noise condition previously in force could be characterised as specific to the location of the previous premises.

49 On that particular question (which represented the high point of the plaintiffs’ challenge to the granting of the Category A Liquor SIA) I am not persuaded that in the particular circumstances of this case it was not open to the Board in accordance with s 18B of the Licensing Regulation and the ministerial guideline, to hold such an opinion. One had a standard form noise condition which applied to the old hotel premises. What was being proposed were newly constructed hotel premises in another location. In those circumstances the replacement of the old standard form noise condition with an updated standard form noise condition to apply to the newly constructed premises could “relate to a matter that is specific to the location of the previous premises”. Similarly in such circumstances the old standard noise condition could be regarded as “not relevant to the new premises”.

50 It follows from the above analysis that I accept the submission of the first defendant that s 18B of the Liquor Regulation and the ministerial guideline 1.1 should not be interpreted narrowly or literally. I accept that the example given in the ministerial guideline (of a condition relating to a specific street) is illustrative only and does not limit the matters which can be taken account by the Board to that particular example. The success of the plaintiffs’ submissions on this question requires such a narrow interpretation but such an approach is not warranted by the wording or apparent purpose of the legislation and the ministerial guideline. This is particularly so when one has regard to the wide discretion given to the Board by s 62F(1) – (“if the Board is satisfied”) and s 18B(2)(c) – (“in the opinion of the Board”).

51 The first defendant submitted that the plaintiffs’ complaint that he had not demonstrated to the Board that the conditions sought to be varied were location specific, misconceived the nature of the application before the Court. An application under s 69 was not a merits review nor did it involve the exercise of a right of appeal. What the plaintiffs had to establish was an error of law of the kind identified in [30] and [31] hereof.

52 There is force in that submission. As the plaintiffs accepted in the course of argument, provided it was open to the Board to find that the conditions of the licence that were sought to be varied were location specific then this ground of challenge by the plaintiffs must fail.

53 The thrust of the submissions made on behalf of the first defendant for changing the conditions was that they were specific to the conduct of the licensed premises under the previous operators at the previous location. It seems to be common ground that the operation of the hotel at the previous location had given rise to a number of disciplinary complaints which in turn resulted in conditions being imposed on the conduct of the hotel at those premises. The suggested replacement conditions were appropriate (it was submitted) for the conduct of a high quality, upmarket hotel quite different to that conducted at the previous premises. It was in that context that variations were sought to conditions which related to CCTV surveillance, the provision of security personnel, the way in which the licence was to be operated and how the premises were to be maintained and cleaned.

54 If one approaches the question in that way, I am not persuaded that it was not open to the Board to find that the previous conditions were location specific in the sense that they related specifically to the operation of that particular hotel in that particular location. What the first defendant was proposing was an entirely different style of hotel in a new location. Whether this Court would have reached the same conclusion on the same material is irrelevant.

55 There is nothing in the material before the Court to suggest that the Board did not consider the correct question or considered some other question. Such has not been suggested by the plaintiffs. The sole basis of their challenge is that it was simply not open to the Board to find that the conditions which the first defendant sought to vary were location specific. For the reasons set out above, I am not persuaded that this proposition has been made out. That being so, the plaintiffs’ challenge to the approval of the Category A Liquor SIA must fail.

Conclusion

56 For the reasons set out above, I am not persuaded that the plaintiffs have established a basis for judicial review of either decision of the Board. As the authorities make clear, the reasons for an administrative decision are not to be minutely and finely construed with a view to detecting error. In this case no errors were established and the only question raised in relation to each of the two issues was whether it was open to the Board to make the findings which it did and approve the two SIA’s. I have not been satisfied that these decisions were not open to the Board and consequently the plaintiffs’ application must fail.

57 The orders which I make are as follows:

(1) The Statement of Claim/Summons is dismissed.

(2) The plaintiffs are to pay the costs of the first defendant.

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