The Social Impact Assessment
42 The Council's second argument attacked the Social Impact Assessment, asserting that it did not conform with the requirements of s171D of the Act. That section is in these terms:
"171D Content of social impact assessment
(1) A social impact assessment of an application to which this Division applies is required to assess the likely impact on the local community of the granting of the application.
(2) For the purpose of any social impact assessment, the local community comprises the people in the area or group from which the persons utilising the services and facilities of the hotel are likely to be drawn.
(3) The social impact assessment is to address social and economic impacts and set out any net social and economic benefits to the local community.
(4) The social impact assessment is to contain details of the following:
(a) the number of approved gaming devices already kept in the hotel and the number kept in other hotels having the same or a similar local community (and by any registered clubs in the neighbourhood),
(b) past increases in the number of approved gaming devices so kept,
(c) the public demand for gambling within the local community,
(d) the incidence of problem gambling within the local community,
(e) the availability of problem gambling services in the local community,
(f) the action proposed to be taken by the hotelier to minimise any harm associated with an increase in the number of approved gaming devices available within the local community (including the action proposed to be taken to protect children),
(g) any likely change in the demands on public transport, any likely employment consequences for other businesses in the local community,
(h) the result of consultation about the application with the local council in whose area the hotel premises are or are to be situated, the Department of Community Services, the Department of Health, organisations concerned with the social consequences of gambling and other appropriate bodies.
(i) any other relevant matter.
(5) The regulations may make further provision for or with respect to the furnishing or content of social impact assessments under this Division."
43 That section, on the Council's argument, defined the content of a Social Impact Assessment. The language of the section made it plain that the requirements were mandatory. Providing an assessment was in furtherance of the "primary object" of the Act (s171A). The assessment "is required to assess" (s171D(1)); it is obliged "to address" (s171D(3)); it "is to contain details" of various aspects of the proposal and its impact. Having furnished the Board with the assessment, the applicant "must" do a number of things, including exhibiting the assessment and advertising its availability, inviting submissions.
44 This submission is plainly right. The Social Impact Assessment must conform with the section. Failure to do so will vitiate the process, so as to make impossible compliance with s171E and a valid decision by the Board under s171F. No submission to the contrary was put by the Hotel.
45 The Council suggested two defects in the Social Impact Assessment where it failed to comply with the statutory scheme:
· First, it alleged a failure to address s171D(3), the "net social and economic benefits to the community".
· Secondly, it also alleged a failure to consult, as required by s171D(4)(h), and to set forth the results of such consultation.
46 Dealing with the first matter, the Council adopted and repeated the complaint of its consultant, Judith Stubbs, in her submission (on the Council's behalf) to the Board of 8 October 2000. Ms Stubbs said this: (Exhibit A, p37)
"The social impact assessment prepared by Design Collaborative does not set out the net social and economic benefits to the community. We have identified Social and Economic costs and benefits through a review of their SIA and use of additional information."
47 Ms Stubbs, thereafter, attempted a cost benefit analysis. She inferred from the Minister's Second Reading speech, perhaps not unreasonably, that such an analysis was called for by the wording of the section. The Minister said this:
"It must address the likely social and economic impacts, and the social and economic costs and benefits to the relevant community."
48 It is unsurprising, however, that the Board, both majority and minority, specifically rejected that material as unhelpful. Inevitably the assumptions underpinning the analysis were subjective and questionable, loading the dice in favour of a conclusion which had been reached by other means.
49 Section 171D(5) authorises the making of regulations to further define the content of a Social Impact Assessment. That power has not been exercised. Practitioners in the field, therefore, must rely upon the wording of s171D itself. Section 171D(1) identifies, in a general way, the nature of the task. It is an assessment of the likely impact on the local community of the application, were it successful. Section 171D(4) identifies, rather more precisely, the issues which must be addressed. They are issues which, in the main, may be characterised as either economic or social in their nature. Section 171D(3) permits a broader discussion of the economic and social impacts than the categories of s171D(4) may otherwise permit. The words in s171D(3) which are the focus of the Council's submission, that is, that the assessment should "set out any net social and economic benefits to the local community", simply underline that the assessment should evaluate the information it assembles. The evaluation need not be numerical (as in cost benefit analysis). Indeed it will usually be descriptive, offering a conclusion for the benefit of the Board, as well as those minded to make a submission.
50 The Social Impact Assessment submitted by the Hotel assembled the required information. It also offered opinions in respect of various issues. For instance, having identified public transport services (as required by s171D(4)(g)), the assessment said this:
"4.26 Given the ceiling on the number of persons allowed in the Hotel and its midnight closure, the numbers of patrons in the Hotel late at night is expected to be small. Peak attendance is likely to occur at or about recognised meal times. Neither the employment at, or the number of patrons in, the Hotel is sufficient to be likely to result in any change in the present level of public transport services in Canley Heights. If they did, it would probably result in some improvement of those services."
51 There are many other illustrations. They are conclusions which, to my mind, describe "the net social and economic benefits" to the local community (s171D(3)). The Social Impact Assessment ultimately provided the following view, as its conclusion: (p 81)
"However, given the current level of availability of those devices in the district, it seems unlikely that another 15 would have any appreciable effects, particularly, if the Hotel conforms with responsible gambling protocols in order to provide a 'safety net' for that small number of its patrons who may be, or may be exposed to the risk of becoming, problem gamblers."
52 That was a view rejected by the Council. It was a view, however, which commended itself to the majority of the Board.
53 The second objection by the Council was to the consultation undertaken by the Hotel. It is convenient to repeat, in this context, the obligation in respect of consultation in a Social Impact Assessment. Section 171D(4)(h) is in these terms:
"s171D(4) The social impact assessment is to contain details of the following:
(h) the result of consultation about the application with the local council in whose area the hotel premises are or are to be situated, the Department of Community Services, the Department of Health, organisations concerned with the social consequences of gambling and other appropriate bodies."
54 The Act does not elaborate. No guidance is provided as to the manner of consultation, or its intensity. What is required must depend upon the context, and the evident purpose of the consultation. In Lumber Specialties Ltd v Hodgson (2000) 2 NZL 347, Hammond J said this: (at 365)
"[93] Consultation is best thought of as an element of natural justice. Where an obligation to consult is required by law, the essential reasons for the requirement are to protect the relevant interests of persons affected by a decision, and relatedly, to improve the overall quality of decision making."
55 Consultation, it has been said, "is no empty term" (T V W Enterprises Ltd v Duffy (No 2) (1985) 60 ALR 687 at 694). The "requirement of consultation is never to be treated perfunctorily or as a mere formality" (Port Louis Corp v Attorney-General of Mauritius [1965] AC 111 at 1124). Webster J, in the context of delegated legislation which required consultation, said this in R v Secretary of State for Social Services; Ex parte Assn of Metropolitan Authorities [1986] 1 All ER 164: (at 167)
"But, in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this context, I mean sufficiently informed and considerable information or advice about aspects of the form or substance of the proposals, or their implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
56 Here, the consultants to the Hotel clearly gave some thought to what the statute required. The issue is discussed at Section 6 of the Assessment (Methodology). Various alternatives were canvassed. Some were discarded. Ultimately, the consultants settled upon two strategies. The first was to conduct two focus groups using a person skilled in market research (Mr Tim Lenehan, a former director of A C Nielsen). The objective was described in these words:
"6.16 The form of consultation finally decided upon was to conduct two focus groups, each of about eight people. One group was to consist of 'community leaders' who were taken to be local elected representatives, leaders of local community organisations, local ministers of religion and persons such as the school principal, bank manager, local doctor and the like. The second group were to consist of 'lay persons', i.e. local residents or business people. The theory behind this choice was that - if gambling was a problem in the local community - the community leaders ought to be aware of it. It was considered that local people, forming part of the local community, ought also to be aware of it. In particular, local business people should be conscious of the prevailing attitudes in the local community as the Hotel has been under construction in the business centre for some months and would have been a topic of discussion among their customers."
57 The second strategy was to administer questionnaires to those concerned with problem gambling. The assessment described the questionnaires in the following terms:
"6.19 In order to address two issues which any SIA is required to address - the incidence of problem gambling and the availability of problem gambling services - questionnaires dealing with these issues, with particular reference to Canley Heights, were sent to 28 organisations dealing with problem gambling. These organisations were identified from the listings provided by G-Line and by the Fairfield City Council's Community Services Directory. … Appendix 25 contains a copy of the covering letter, questionnaire and explanatory material sent to each of these organisations together with a list of those organisations. Those which responded are identified on that list. Appendix 26 contains copies of their responses. The assessment of these responses are discussed in Section 7 below."
58 Each strategy met with difficulties. Nineteen community leaders were invited to participate in one of the focus groups. Many refused. Eight ultimately attended. The attendance at the second focus group (consisting of lay persons) was also poor. Further, many of those to whom the questionnaires were sent did not respond.
59 The Fairfield City Council was approached, as required by s171D(4)(h). Material was sent on 10 August 2000, without response. At the prompting of a Council employee, it was again sent on 29 August 2000, again without response. The Council's attitude was one of implacable opposition. It had opposed the development of the Hotel in the Land and Environment Court. It had objected to the application by the Hotel to remove the licence to Canley Heights. Confronted by the Hotel's further application under s161(1), the Council chose to ignore attempts to consult with it. That was unfortunate. The Council plainly had a contribution to make. It knew the area. It provided welfare services. Instead, the Council simply made a submission to the Board. The Hotel's consultant, Mr Smith, responding to that submission, said this:
"1.7 The Response reveals nothing about Council's experience with problem gamblers despite the Council having an extensive network of community involvement and support personnel working in the community welfare field. For instance, the Response does not provide an opinion (much less any facts) on whether or not Council's community workers find that the Canley Heights community (or the Cabramatta district of which it is a part) generates more case work or referrals resulting from problem gambling than other parts of the City do. I would have anticipated that - if problem gambling were a major social issue - those community workers would have, at least, some 'feel' for how its incidence is distributed across the City's population, both spatially and ethnically. Perhaps they do but the Response fails to present it. Possibly, the issue of problem gambling in the City is overshadowed by others deriving from such things as drug use and unemployment or it may not be as great an issue as the media would have us believe."
60 Mr Smith added the following comment, which appears to me reasonable:
"1.8 The Council - by its failure to respond to our questionnaire and through the Response - has failed to make what, I believe, could have been a useful contribution to assist the Board's assessment."
61 Had the Council responded, the Hotel would have been obliged to have included that response in the Social Impact Assessment (s171D(4)(h). The Council's attitude, and the grounds of its opposition, would then have been available to those who examined the assessment on public exhibition. It may have assisted others in framing their submissions, and by this means, assisted the Board.
62 But more than that, had the consultant to the Council made known her misgiving concerning the methodology proposed, the Hotel could have considered the Council's point of view. It may have accommodated that view, if it believed it had merit.
63 The submission made by the Council to the Board trenchantly criticised the Social Impact Assessment and the consultation process which had preceded it. Such was the criticism that the Board felt impelled, as a matter of fairness, to allow the Hotel to respond (cf Wilkie & Anor v Attorney General for NSW & Liquor Administration Board (Foster J, unreported, 9/12/86); Penna v The Liquor Administration Board & Anor [2001] NSWSC 681). It is that response which is the source of one of the complaints made by the Council in these proceedings, which I will deal with shortly. The need for that process may have been avoided had the regime which was envisaged by the Act, which included consultation between the local Council and those responsible for the preparation of the assessment, been followed.
64 I should add that the Council's submission to the Board, was not simply negative. It endeavoured to provide information concerning community attitudes. Random surveys had been undertaken, which were described in these terms:
· "A random street survey at lunch times and after work (18 people)
· A random door knock of residents in 4 streets in the immediate vicinity of the Hotel (30 households)
· A random survey of shops in the Canley Heights Shopping Centre in which the Hotel is located (14 businesses)."
65 All Members of the Board, both majority and minority, said that in their opinion the Social Impact Assessment satisfied the requirements of the Act. That, I believe, was a conclusion open to them. The consultation devised by the Hotel endeavoured to solicit the views of the community concerning the proposal and problem gambling. Its efforts were not perfunctory. It was, I believe, "consultation" for the purposes of the Act. The results of that consultation were then set forth.
66 I believe, therefore, that there is no substance in the second criticism by the Council.