The "Core Area"
98 Under this ground, the Club made three complaints:
· First, the "core area" was ill-defined. Insofar as it was given definition, it took in areas outside the catchment of the local community. The Court, in reaching its conclusion, impermissibly took into account those areas.
· Secondly, there was no basis for the finding that the "core area" had 1,700 machines, such that an additional 600 machines would be a 35% increase.
· Thirdly, the Court placed an "improper emphasis" upon the "core area", such that it supplanted its proper consideration of the local community as a whole (written submissions paras 27, 65(a)).
99 It is convenient to deal with the first and second issues together. I have, to some extent, referred to the evidence already. The expression "core area" was first used by Mr Chambers of BBC Consulting Planners to refer to "the eastern part of the Liverpool LGA, being the part most urbanised". The expression was taken up by Mr George Smith, consultant to the objecting clubs. He purported to adopt the definition of Mr Chambers, but included "nearby rural parts" of the City of Liverpool.
100 The waters were muddied still further, according to the Club, by the cross examination of Mr Ball (of KPMG) by Mr Costigan of counsel (appearing for the objecting clubs). Counsel asked the following questions of Mr Ball: (Exhibit C, p 997)
"COSTIGAN: Can I suggest to you that as at today the total number of machines in that area is in the order of 1,700 machines ....
BALL: In the Liverpool LGO?
COSTIGAN: No in the area postulated by Mr Smith.
BALL: Which is the City of Liverpool.
COSTIGAN: It equates with Mr Ball with respect to the Liverpool local government area, - LGA.
BENCH: Tell me just where that is on p.9?
COSTIGAN: Page 9 Your Worship, the paragraph which immediately precedes "6, Neighbourhood", [sorting through papers etc]. Do you accept that Mr Ball, in the order of 1,700 poker machines?
BALL: If you say so, yep."
101 The cross examination continued (Exhibit C, p998)
"COSTIGAN: In terms of this application, if the application is granted and the club is given the ability to keep in the first year of poker machine operation 600 machines which would increase in the local community postulated by Mr Smith the total number of machines to something in the order of 2,300 machines.
BALL: That is the ##
COSTIGAN: An increase in percentage terms of 35%.
BALL: In that order."
102 The Court adopted that analysis in para 299, which, for convenience, I repeat:
"299. This core area currently has 1700 machines and a 600 increase will be about 35% whereas for the local community as a whole there are 10,390 and the increase would only be 5.8%. These are telling figures."
103 The Club submits, however, that Mr Smith did not define the area as "the Liverpool LGA". Rather, he referred to "those living in the urban area and nearby rural parts of the City of Liverpool". More importantly, the "local community", which should have guided the Court, did not include the whole of the Liverpool LGA. Rather, it included, according to the description given by BBC Consulting (supra 64), "almost all the developed parts of the Liverpool LGA".
104 Further, Mr Ball did not, according to the Club, give evidence that there were 1700 machines "in the area" (whatever the "area" may be). He was asked by counsel to make an assumption, in order to answer a question about percentage increases. Mr Ball responded by saying: "If you say so, yep". In these circumstances, the Club made the following submissions: (paras 53-54)
"53. There is no other reference in the evidence to the club providing an increase of 600 machines to an existing supply of 1700 within a 'core area'.
54. This evidence, it is submitted, provides no basis for a finding that one or other of the possible 'core areas' has 1700 machines which will increase by 35% if the application is granted. It is entirely unclear from the evidence as to what 'area' was the subject of the evidence."
105 There is some force in these submissions. There was imprecision by the Court in the identification of the "core area", being the area most affected. The area identified by Mr Chambers was not the area identified by Mr Smith, and may not have been coextensive with the Liverpool Local Government Area, referred to by Mr Costigan. The areas identified by Mr Smith and Mr Costigan were not wholly within the catchment of the "local community". The basis for the 1700 figure in Mr Costigan's question was not explained. The judgment of the Court does not provide an explanation. No explanation has been provided on this appeal. I would infer that Mr Costigan took the figures appearing in Table 7.1 of the Social impact assessment (Exhibit A, p88) (being the location of the 10,390 machines in the catchment area), and made a rough approximation of the number of machines within the Liverpool Local Government Area.
106 Given that there was imprecision in the identification of the "core area", did that give rise to an error of law? Did it lead the Court, impermissibly, to use material which was irrelevant to the question it was required to address?
107 In answering these questions, it is important to understand the place of the "core area" in the court's analysis. The "core area" was important for two reasons. First, it defined the area of greatest impact. Although the "local community" included people who drove 20 minutes to reach the Club, the bulk of the Club's membership would be drawn from a much smaller "core area". The magnetism of the Club could be likened to a series of concentric circles, like ripples on a pond. The closer the person to the Club, the greater the pull of the Club (Exhibit C, p1135). Professor McMillen spoke of a study in Victoria by KPMG. People ordinarily travelled between 2.5 and 3.5 kilometres to reach their local club (Exhibit C, p1128). So, most members could be expected to come from the area in the near vicinity of the Club, the area described by Mr Chambers as the "core area", which was the urbanised part of Liverpool. Most of the problem gamblers would also come from the ranks of that group.
108 The Court obviously knew the boundaries of the catchment. It appreciated the area from which members of the Club would be drawn. Any imprecision in its description of the "core area" did not affect its reasoning in respect of that aspect.
109 The second way in which the Court used the "core area" was in respect of the concentration of machines. This was the area where it was proposed to locate a further 600 machines. In para 299, the Court appeared to adopt the reasoning under-pinning Mr Costigan's questions. Since Mr Costigan presumably made his calculation (of 1700 machines) by reference to the Liverpool Local Government Area, and since part of that area was geographically outside the "local community", does it follow that the Court, on an important issue, had regard to irrelevant material? Was there, upon this basis, an error of law?
110 The machines were located in clubs and hotels. The catchment area included "the eastern part of the City of Liverpool, being the most urbanised". The Appellant did not point to any particular area in the Liverpool Local Government Area, but not the catchment area, which may have distorted the figures. The difference between Mr Chambers' definition of the "core area" (which was wholly within the catchment) and that of Mr Smith and Mr Costigan (which extended beyond the catchment) appears to have been rural land. If that be right, the differences in definition of the "core area" would appear to have no relevance to the issue which the Court was addressing (which concerned the concentration of gaming machines).
111 Even if that be wrong, the Court in para 299, and especially 301, ultimately used, as the basis for its conclusion, the figure 5.8% (rather than 35%). That figure was unquestionably referable to the catchment area, that is, the "local community". I do not believe that there was an error of law on this aspect.
112 I should, in this context, deal with a further submission made by the Club. The submission was directed at para 300 (supra 93), where the Court referred to the socio-economic characteristics of the Fairfield, Liverpool and Bankstown districts, which were characterised as "fragile communities with multiple social problems". In respect of that paragraph, the Club made the following written submission: (para 44)
"This demonstrates a further misconception by the Court. SIA, page 51 (table 3.1) shows that indeed, about two thirds of the 'local community' of the proposed club is to be drawn from persons who reside within the Local Government areas of Liverpool, Fairfield and Bankstown. However, it is clear, that only some of the residents from those LGAs are included within the 'local community'. There are significant areas of the LGAs which are outside the 'Local Community' boundaries."
113 Evidence was given concerning the characteristics of the Local Government Areas, or the statistical subdivisions. The characteristics attributed to each involved a level of generalisation. In my view, it was appropriate for the Court to use these characteristics, and attribute them to so much of the Local Government Areas as fell within the catchment. I do not believe there is substance in the Club's complaint.
114 Moving to the third aspect of the first ground (supra 98), the Club suggested that the Court had placed "improper emphasis" upon the "core area", such that it supplanted its proper consideration of the local community as a whole. The Club submitted that the Court was bound by the terms of s88AL to consider the whole of the local community. Whilst areas within the local community may have different characteristics, and the impact of the proposal may differ from one location to another, the statutory test remained. The way in which the Court should have approached its task was identified in these terms: (para 26)
"It is however submitted that as a matter of construction of the legislation, the correct approach is for the totality of the local community to be considered and weighed and that there ought not be and the legislation does not permit a concentration upon any particular part of that community."
115 The question, according to the Club, was not the effect of the proposal on any part of the local community. Rather, it was the effect of the proposal on the whole of the community. The Club neatly encapsulated the difference in these words: (para 27)
"While the whole is undoubtedly made up of parts, it is the whole which must be considered and weighed."
116 The Director, in response, drew attention to the fact that the Court had referred to the relevant statutory provisions (paras 249-250). It examined the "local community". It made findings in respect of its characteristics (para 260-261, 263-266, 270-273). Particular locations within the catchment area were also relevant, as the Club acknowledged. The Court said this: (para 255)
"... the Director, criticised the approach of passing evenly over all the area and all the people in it. He directed attention to special areas - more affected and more vulnerable - in closer proximity to the new premises. In reply counsel for the applicant conceded that any such matters would be considered by the Court in the weighing exercise which it is required to make."
117 I accept that the Court was conscious of the need to consider the whole community, not simply the impact upon the "core area". In para 296, for instance, the Court said this:
"We acknowledge that the statutory test requires us to consider the whole local community and we expressly do so."
118 The Court stated, accurately in my view, the relevance of localised effects within the local community. It said this: (para 259)
"... If granting the application would have a serious effect on a significant part of the 'local community', then that also has to be taken into account in exercising the power conferred by s88AN."
119 An adverse (or beneficial) local impact was relevant. Such an impact, however, was not determinative. It was something "to be taken into account" (see also para 306).
120 I do not believe that the Club has established the first error which it identified.