Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority - [2022] NSWCATAD 255 - NSWCATAD 2022 case summary — Zoe

NSWNSWCATAD

Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority

[2022] NSWCATAD 255

NCAT Administrative and Equal Opportunity|2022-05-04|Before: Haw J, Victoria J

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Court

NCAT Administrative and Equal Opportunity

Decision date

2022-05-04

Before

Haw J, Victoria J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Application for extension of hours

On 12 May 2021, the Independent Liquor and Gaming Authority, the respondent refused to grant an extended trading authorisation (ETA) for an existing licenced hotel at Victoria Street Wetherill Park, trading as the New Victoria Tavern (the Hotel or the applicant), which sought to trade from 10am to 4am Monday to Saturday and from 10am to midnight on Sundays. Currently the Hotel is licenced to trade from 5 am to midnight Monday to Saturday and from 10 am to 10 pm on Sundays.
The applicant seeks a review of the decision made by the respondent to refuse an ETA. The review is conducted pursuant to s 63(3) of the Administrative Decisions Review Act 1997 (NSW). The Tribunal's role is "to decide what the correct and preferable decision is having regard to the material then before it."
To grant an ETA, the Tribunal had to be satisfied "that the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community": S48(5) of the Liquor Act 2007 (NSW) (the Act). I must identify the overall social impact and then ask whether that impact will be detrimental to the well-being of the local or the broader community.

[2]

Background to the Application

The applicant, Taphouse Investments Pty Limited, is the present licensee of the Hotel but has exchanged contracts for the sale of the Hotel together with the licence to Nelmeer Ashfield Pty Ltd as trustee for the Nelmeer Ashfield Trading Trust.

[3]

Views of the Independent Liquor and Gaming Authority

The application was referred to the Secretary of Liquor and Gaming NSW for consideration and recommendation, pursuant to Section 42 of the Act. The Authority's officers reviewed the application and recommended that the application be considered for approval. The officers concluded: On balance, it is assessed that the Authority may have a reasonable level of confidence that the granting of this application will not be detrimental to the well being of the local or broader community.
However the Authority resolved to refuse the application. The Board indicated: The Authority noted this application is for a new ETA for the existing hotel licence to permit the premises to trade until 4.00am Monday to Saturday, which represents an additional 24 hours per week of late-night gaming. The Authority noted the premises was located in a Band 2 SA2 within Fairfield LGA, which is in close proximity to a problematic Band 3 SA2 in the Fairfield area. The Authority noted that gaming at the venue was relatively intense, with the average profit per gaming machine being more than three times that of comparable metropolitan hotels and compromising 84% of the revenue of the premises. The Authority noted that relevant alcohol-related crime statistics were generally lower than comparable NSW averages and that households in Wetherill Park and Fairfield LGA were socio-economically disadvantaged. The Authority further noted and discussed the objectives to the applications received from both NSW Health and NSW Police and the applicant's response to these submissions.
Late night gaming in a venue that generated three times more than a comparable metropolitan hotel profit per gaming machine, comprising 84 percent of the revenue for the premises was a key concern of the Authority.
On 5 November 2021 the respondent provided the applicant with the reasons for the decision to refuse the application for an ETA. The Authority noted that the gaming machines industry is a related industry within the meaning of s3(1)(c) of the Act which requires 'responsible development' and that adverse social impacts would be generated by late trading at the venue.
The Authority concluded at [37] of its decision: Given the number of gambling risk factors and the overall economic vulnerability of the local community and especially the financially constrained broader community to sustain gambling losses, the Authority is satisfied that maintaining the status quo is the more responsible approach to the development of the gaming machines industry. This will ensure a longer effective shutdown of machines across the course of the week in this local community, giving "at risk" or "problem" gamblers a meaningful opportunity to stop gambling for the night.
In refusing the application the Authority was concerned about gaming related harm to 'at risk' gamblers and 'problem' gamblers in the late-night period (particularly after 2.00am), taking into account the high socioeconomic disadvantage of the Fairfield area.

[4]

The Statute

The objects of the Act are set out in s 3: (1) The objects of this Act are as follows: (a) To regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) To facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) To contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following: (a) The need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) The need to encourage responsible attitudes and practices towards promotion, sale, supply, service and consumption of liquor, (c) The need to ensure that the sale, supply and consumption of liquor contributes to, and does not detract from, the amenity of community life.
For the purpose of s 3(1)(c) of the Act, the gaming machines industry constitutes a 'related' industry. The operation of gaming machines on hotel licensed premises is regulated by the Gaming Machines Act 2001 (NSW) and the Act.
The objects of the Act are reflected in s 48(5) of the Act which provides as follows: (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 (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, 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.
Section 49 deals specifically with extended trading authorisation. Section 49(8) of the Act states: (8) Restrictions on granting extended trading authorisation The Authority must not grant an extended trading authorisation in respect of licensed premises unless the Authority is satisfied that-- (a) practices are in place, and will remain in place, at the licensed premises that ensure as far as reasonably practicable that liquor is sold, supplied or served responsibly on the premises and that all reasonable steps are taken to prevent intoxication on the premises, and (b) the extended trading period will not result in the frequent undue disturbance of the quiet and good order of the neighbourhood of the licensed premises.
Subclause 34(6) of the Gaming Machines Regulation 2019 (NSW) defines 'local community' for the purpose of subclause 34(5) of the Regulation as: "local community" comprises the following-- (a) the people in the area (or in the group) from which the persons using the services and facilities of the venue concerned are likely to be drawn, (b) the people in the area (or in the group)-- (i) that is to derive, or that the Authority considers is likely to derive, social or economic benefit if the threshold increase application is approved, or (ii) that is to suffer, or that the Authority considers is likely to suffer, social or economic detriment if the threshold increase application is approved.

[10]

Identification of the local and broader community

The Hotel is located in South Western Sydney in an industrial area in Wetherill Park Industrial which falls within the Fairfield Local Government Area (LGA). Wetherill Park Industrial is surrounded by the suburbs of Horsley Park, Abbotsbury, Bossley Park, Prairiewood and Smithfield. There are 27 suburbs in the Fairfield LGA.
Fairfield LGA was nominated as a vulnerable area for the purposes of gaming harm during the 2018 changes to the Gaming Machines Act 2001 (NSW). It is the only LGA in NSW that is subject to a specific cap on gaming machines.
Section 48(3) of the Act requires the Tribunal to consider the Community Impact Statement (CIS). The Guideline indicate that a CIS requires the applicant to identify community buildings, facilities or areas located near the licensed premises. The CIS form explains that this is required 'to better understand the local community'. The applicant identified an occupational health practice, and an educational centre in Wetherill Park. Both facilities are outside the Wetherill Park industrial area but within the suburb of Wetherill Park.
The CIS form also required the applicant to identify local Aboriginal community in the area along with any organisations providing gambling related counselling or treatment services. The applicant identified the Deerubbin Local Aboriginal Land Council and the Gandangara Local Aboriginal Land Council; they also noted the Vietnamese Community in Australia, Uniting Care Mental Health - South West Sydney, Wesley Community Services - South West Sydney, and the Arab Council Australia Inc. South Western Sydney.
The Authority considered the 'local community' to be the community within the suburb of Wetherill Park, and the 'broader community' to be the LGA of Fairfield.
The applicant submits that the 'local community' is workers who are employed in the industrial area, and that the 'broader community might be said to take in the small number of additional persons who also reside in the industrial area.' According to the 2016 Census referred to in the affidavit of Mr Hatzis, only 35 persons resided in the Wetherill Park Industrial area.
The applicant submitted that the Tribunal should determine the overall social impact by reference to benefits and disadvantages of the ETA upon that 'community of workers'.
The applicant submitted that the local area was a 'Statistical Area Level 2' as defined by the Australian Bureau of Statistics: Statistical Areas Level 2 (SA2) are medium-sized general purpose areas build up from whole Statistical Areas Level 1. Their purpose is to represent a community that interacts together socially and economically. There are 2310 SA2 regions covering the whole of Australia without gaps or overlaps.
The applicant suggested that it is more appropriate in this case to consider the 'local community' as the industrial area, and not the suburb, of Wetherill Park because persons at either end of the larger area would not necessarily interact with one another or identify with each other as members of the same community but were connected because they were patrons of the Hotel.
The applicant pointed out that s 36(3) of the Gaming Machines Act 2001, cls 34(5)(6) of the Gaming Machines Regulation 2019 and the Independent Liquor and Gaming Authority Guideline 12 pp 4 and 7 use the SA2 as best representing a 'local community'.
Subclause 34(1) refers to the local statistical area in which the venue is situated as well as the names of other local statistical areas within 5km of the venue. It requires a map of 1 km radius showing other licensed premises, any schools, hospitals or places of public worship, and any sporting or community facility.
The applicant submitted that for the purposes of s48(5) of the Act the terms 'local community' and 'broader community' in any given case must be determined as a question of fact; Smith v Independent Liqueur and Gaming Authority [2018] NSWCATAD 224 (Smith) at [28] and are not confined to a 'geographic' definition. The respondent did not submit otherwise.
In support of its submission the applicant referred to the object of s 48(5) of the Act, which is to have regard to the 'overall social impact' and employs the use of the word 'community' as opposed to other words such as 'region' or 'area'.
The applicant submitted that in determining the local and broader community, weight must be given to the fact that the Hotel is located in an industrial area, and that about 50 percent of patrons, as evidenced in the petition, reside in the Fairfield LGA.
The applicant submitted that the 'local community' was the workers employed in the industrial complex, and that the 'broader community' was the additional residents of the Wetherill Park Industrial area. They argued that the Tribunal in determining the 'overall social impact' should do so by reference to benefits and disbenefits of the ETA upon that 'community of workers.'
In response to the applicant's submissions, the respondent submits that its submissions are contrary to the evidence offered by the respondent that some of the patrons of the Hotel are drawn from the Smithfield industrial area in the adjoining suburb of Smithfield, and that about 50 percent of the patrons are from the broader Fairfield LGA and the remaining 50 percent of the patrons are from outside the Fairfield LGA.
The respondent submitted that the applicant's definitions of local, and broader, community created an 'artificial boundary' and that the broader community must be wider than the Wetherill Park Industrial area. The respondent drew attention to the small number of persons residing in the suburb (based on the evidence from Mr Hatzis) and also to the data indicating that about 50 percent of the signatories of the petition proffered by the applicant came from the Fairfield LGA (based on the evidence from Mr Light-Smith).
The parties agreed that the patrons are substantially shift workers from the industrial area and that about 50 percent of them reside outside the Fairfield LGA.
SEIFA data (2016 census) indicates that the resident population of Wetherill Park is 'relatively disadvantaged' and that the resident population of the Fairfield LGA is 'highly disadvantaged', due to higher than average levels of unemployment. Wetherill Park households fall within the bottom 36 percent of Australian household income, while households in Fairfield LGA fall within the bottom six percent.

[16]

Location and operation of the Hotel

The Hotel is located within the industrial area of Wetherill Park. The nearest residence is located more than 800 metres away from the Hotel. The industrial area is zoned by the Fairfield City Council as 'general industrial'. The objective of this zoning is to provide a wide range of industrial and warehouse land uses.
The Fairfield City Council website stated that: The Smithfield-Weatherill Park Industrial Estate is one of the largest in the Southern Hemisphere…. The industrial area is home to nearly 3 000 businesses and 20 000 jobs.
The industrial area is predominantly comprised of manufacturing, construction, wholesale trade, transport, postal and warehousing types of businesses.
Mr Vescio's evidence was that: The industrial area includes a wide array of different businesses, including service stations, freight companies, producers, recyclers and other mixed use industrial businesses. The area includes a mixture of large scale industrial premises and smaller industrial unit complexes.
The Hotel primarily serves those industrial premises which surround the Hotel and operate on a basis of 24 hours 7 days a week. Patrons are primarily workers from the industrial premises located in the vicinity of the Hotel.
The Hotel is a single story building comprising of the main bar area with large television screens, two pool tables, TAB betting services and seating for about 50 to 60 patrons, a gaming room and an outside terrace area.
Both Mr Purcell and Mr Vescio observed patron numbers in the sports bar and the gaming room.
Mr Purcell's evidence is in regard to November and December 2021. His observations were taken at 10pm, 10.30pm, 11.00pm and 11.30pm. The attendance at the Hotel reduced after 10.30pm.
On Friday night there was substantially more patrons in the sports bar compared to the gaming room and this was reversed on the Monday night. On the Wednesday and Saturday night, more of the patrons were in the gaming room from 11pm.
Mr Vescio's evidence is in regard to February 2022. He and other inspectors undertook observations at 9.45pm, 10.30pm, 11.00pm and at 11.30pm on Friday, Saturday, Monday and Wednesday evenings. For the four evenings, the patron numbers reduced as the evening wore on. The busiest time at the Hotel was at the earliest time observed apart from one of the evenings which had one extra person at 10.30pm (at 9.45pm 12 patrons were present and at 10.30pm 13 persons were present.)
Apart from Saturday evening, the significant majority of the patrons were in the gaming room. Observations made by Mr Vescio and Mr Purcell indicate that the significant majority of the patrons at the Hotel at closing time are gaming patrons.
The food offerings at the Hotel are pre-prepared and heated on order at the bar. These included food items including pizzas, fish and chips, meatballs and chips and other pre-prepared hot snack items. The pizza bases are pre-prepared. There are four different types of pizzas and they are made to order by bar staff.
Mr Purcell's evidence was that he ordered a meat pie and was told by a Hotel employee that he was not required to pay for it because he intended to gamble on the gaming machines.
In paragraph 41 of Mr Vesscio's affidavit, it is stated that an inspector was informed by an employee of the Hotel that food service ceases at 10.30pm. Mr Smith-Light's evidence was that this was not the case and that hot food is available for order at any time.
Mr Vescio's evidence was that on Monday 14 February 2022, about 30 percent of the businesses in the vicinity were open at 10.25pm. After midnight, one of the inspectors observed three separate warehouses, and other businesses open after midnight. A number of heavy vehicles were being refuelled about 600 metres from the Hotel. It was noted that some large scale businesses were operating after 10.00pm on weeknights on Franks street, which is not in the immediate vicinity of the Hotel.
Mr Crozier drove around the Smithfield and Wetherill Park Industrial area on Thursday 11 March 2021 from 11.00pm to 2.30am and observed that over 70 businesses 'that appeared to be open and operating'. During cross examination, Mr Crozier agreed that some of those businesses may have had lights on for security purposes but were not in fact operating and open at this time. Mr Crozier's evidence also did not make clear whether some of those businesses may have shut down by midnight.
Mr Purcell who like Mr Vescio conducted the investigation over four evenings, noted that the majority of the patrons seemed to be from businesses within the industrial area. He observed that the sparse number of patrons on Saturday evening reflected that there was less business operating on the weekend. Mr Purcell observed that a number of people were seen arriving for short periods only and abstaining from drinking alcohol which indicated to him that these patrons may have been on meal breaks before returning to work.
Both Mr Purcell and Mr Vescio observed that nearly all patrons arrived and left the Hotel in private vehicles.

[19]

Gaming at the Hotel

The Hotel had 19 gaming machines. The revenue figures showed that income from gaming machines was ($256K/machine/annum) comprising 84 percent of the total revenue. This is lower than that for Fairfield LGA ($288K/machine/annum) however it was more than three times that of the average for comparable metropolitan hotels of the same size ($65K/machine/annum).
The Hotel submitted that there is no evidence before the Tribunal to demonstrate that there has been problem gambling at the Hotel or that the approval of the ETA would lead to problematic gambling at the Hotel. In fact, according to the Hotel's submission, patrons would receive better support and assistance at the Hotel as compared to other hotels and clubs as its patrons are well known to staff and the gaming area is comparatively small.
The closest Hotels and Clubs to the Hotel are licensed to trade much later than the Hotel and have larger numbers of gaming machines. Club Marconi trades until 4 am Sunday to Thursday and to 6 am on Friday to Saturday and operates 59 gaming machines. Greenfield Hotel trades until 4 am Monday to Thursday and to 6 am on Friday to Saturday and to midnight on Sunday and operates 30 gaming machines.
The applicant has developed a Gaming Plan of Management (GPOM) which included measures recommended by the Office of Responsible Gaming as well as measures over and above these recommendations. The applicant has consented to the imposition of a GPOM condition being imposed on the licence. The GPOM would be implemented from Monday to Sunday: midday to 4.00am and on Sunday from 10.00pm to midnight.
The GPOM states that: A minimum of two staff members will be present in the gaming room, who will report to a duty manager. The staff members will be required to circulate (sic) the gaming room routinely throughout peak and shoulder trading times. This practise will ensure staff members regularly engage with patrons and will have the opportunity to make observations for problem gambling signs and develop relationships with those patrons present. Any sign of problem gambling observed is to be relayed to the duty manager and logged in the gaming incident report logbook.
The GPOM requires the applicant to: 1. Provide staff with additional training and resources, this includes: 1. Regular in-house training on policies and procedures; 2. Training and resources on the signs of risky and problematic gambling behaviour; and 3. Communication skills training to support staff to approach patrons identified as at risk. 1. Support staff to identify and assist patrons by having a presence of supervisors in the gaming room, documenting issues reported, having structured systems for staff to do welfare checks, encourage breaks and suggest alternatives to gambling and increasing these measures after midnight. 2. Create a strong culture of gambling harm minimisation. 3. Encourage breaks in play. 4. Promote local support services. 5. Break down stigma associated with gambling problems.
The Hotel as per the GPOM proposes to implement strategies beyond the minimum legislative requirements. These include: 1. Communication skills training to support staff to approach patrons identified as problematic and/or at risk. 2. Not provide food or drink service at gaming machines. 3. Appoint dedicated staff to provide specialist responsible gambling support to staff and patrons. 4. Training or resources on the signs of risky and problematic gambling behaviour.
The Authority acknowledges that the GPOM somewhat mitigates the risk of gaming-related harm as it includes a number of intermediate and advanced level harm minimisation strategies from the Office of Responsible Gambling's 'Going above and beyond - Responsible conduct of gambling for venues', NSW Government 2000.
However overall, the Authority is of the view that the numerous gambling risk factors and the overall economic vulnerability of the local and broader community are not sufficiently mitigated by the harm minimisation measures proposed by the applicant.
Mr Barrett's evidence is that gambling can be better monitored at the Hotel because the number of the gambling machines in the Hotel is lower as compared to the other locations in close vicinity as set out in paragraph 60 and 62.

[22]

Identification of the local and broader community

The parties disagree about the identification of the local and broader community within the meaning of s 48(5) of the Act. However the parties are in agreement that the relevant 'local community' and 'broader community' in any given case is a question of fact. The following facts are in not in dispute: 1. The Hotel is situated in the Wetherill Park industrial area. It is zoned as industrial and there are no residential areas in proximity to the Hotel; 2. The Hotel is situated in the Fairfield LGA; 3. The patrons of the Hotel are predominantly employed as shift workers at the industrial area and to a lesser extent, as workers from the Smithfield industrial area; 4. The patrons of the Hotel in broadly equal numbers reside inside and outside of the Fairfield LGA.
It is not in dispute and I find that the Hotel is located in Wetherill Park Industrial Area and predominantly serves shift workers from the industrial areas located in the vicinity of the hotel. I am satisfied that some of the businesses in the industrial areas operate on the basis of 24 hours 7 days a week. I am also satisfied that about 50 percent of the patrons reside in the Fairfield LGA.
Based on the addresses provided in the petition, I find that the vast majority of the locations outside of the Fairfield LGA are in greater Sydney, predominantly in the South West Sydney.
I accept the applicant's submission that based on the facts in this case, the term community is not limited to the geographical location of the Hotel but includes the characteristic of a person working at, or around, the industrial area of Wetherill Park who uses the services and facilities of the Hotel. However, I reject the applicant's submission that the term community is confined to the characteristic of the person who patronise the Hotel. The term 'local community' has a broader meaning consistent with cl 34(6) of the Gaming Machines Regulation 2019 (NSW).
I reject the applicant's submission that the broader community is limited to those persons living in the suburb of Wetherill Park Industrial (35 persons) as it in fact comprises a far smaller pool of persons to those working at the Wetherill Park industrial area (some 12 000 persons).
Based on these facts and consistent subclause 34(6) of the Gaming Machines Regulation 2019 (NSW) and Guideline 12, I find that the 'local community' within the meaning of s 48(5) of the Act is not limited to the geographical location to the Hotel. Local community, in this case also includes the group of persons performing work in and around the industrial area in Wetherill Park who use the services and facilities of the venue.
About 50 percent of the persons within the local community are drawn from the broader Fairfield LGA. These are the people who are likely to derive a benefit or a detriment as a result of an ETA.
The broader community is the Fairfield LGA as this is the geographical area in which the Hotel is located and this view is consistent with the guidance in Guideline 6.
The facts in this case demonstrate that the focus of the inquiry in determining whether there is detriment to the well-being of the local community is not confined to relying on an analysis of the demographics in the Fairfield LGA as these demographics do not take account of the fact that some people in the local community group under consideration are workers, who may not typify the average resident.
The identification of the local and broader community in question focuses attention on the people who use the services of the Hotel as well as people and organisations in the geographical area who do not use the facilities. The Tribunal must consider the likely social benefit or detriment to the persons within the local and broader communities.
Based on the evidence, the hotel's local community are overwhelmingly people who are in some form of work. I find that this local community is not 'significantly disadvantaged'. SEIFA data is based on areas and not individuals and indicates the average socio-economic characteristics of persons and households in the geographical area. The data takes into account the relatively high levels of unemployment in the Wetherill Park and Fairfield LGA which does not apply to the typical patrons who frequent the Hotel.
The applicant submitted that the Tribunal should find that the patrons of the Hotel are not low paid workers based on ABS data for Fairfield LGA and average payments for different types of employment. There is insufficient data to make a finding about the levels of income earned by the patrons. There was no evidence as to the demographics, mode of employment, that is whether employment was full time, part time or casual employment, whether persons were engaged as contractors or employees or the income levels earned by the patrons.

[24]

Negative social impacts

I consider the negative social impact to be the risk of gaming related harms. The ETA if approved would result in an additional 24 hours of post-midnight gaming availability per week Monday to Saturday.
The Hotel is located in Band 2 SA2, a medium risk as to gaming machine density, expenditure and prevailing levels of relative socio-economic disadvantage. There are both high risk and low risk areas existing in the Fairfield LGA and both high risk and low risk suburbs adjoin the Wetherill Park Industrial area.
There are a significant number of venues in the Fairfield LGA that have late night gaming, post 2.00am with a large number of EGMs. The Hotel is relatively out of the way in an industrial zone. There is no evidence to suggest that persons who currently patronise other venues would migrate to the Hotel if the ETA was granted.
The Hotel has a relatively small number of gaming machines, 19 in total. Mr Barrett's evidence that problem and at risk gamblers are less likely to be attracted to gambling at the Hotel because it gives them no anonymity and does not have a glitzy Las Vegas look due to the relatively small number of EGMs. This evidence was not significantly challenged by the respondent.
The respondent did not directly challenge Mr Barrett's evidence that the Hotel is better placed to monitor and provide assistance to problem and at risk gamblers because of the measures proposed in the GPOM and the small size of the gaming room although the respondent pointed to the fact that the proposed measures had not yet been implemented.
I accept the evidence by the Productivity Commission Inquiry on Gambling that higher risk gamblers are significantly more likely than any other group to be gambling after midnight and to be playing for longer periods overall and that this risk is higher post 2.00 am.
There is clear evidence from the analysis conducted by Mr Purcell and Mr Vescio that a greater percentage of patrons are gambling as the evening continues. If the ETA is granted these patrons are likely to continue gambling.
Based on the evidence from Mr Purcell and Mr Vescio, only a small percentage of persons (if any) migrated to other venues. Even on Mr Purcell's evidence, only a small number of patrons migrated to gamble elsewhere. I am not satisfied that there is substantial migration of patrons to surrounding clubs and hotels. I do not consider this to be a significant, important factor as it was in Bun v Independent Liquor and Gaming Authority [2020] NSWCATAD 60 (Bun). In Bun the evidence was that on Friday and Saturday nights, 75 percent of the gaming patrons were sighted at other gaming rooms. On Sunday the equivalent figure dropped to 50 percent.
I infer from the evidence that the patrons are more likely to stop gambling when the Hotel closes and not migrate to other venues such as the Greenfield Tavern and Marconi Club.
At closing time (currently midnight) over 50 percent of the patrons were gambling. I infer from this fact that many of those patrons would continue to gamble if the closing time was extended.
I accept that the GPOM goes some way to mitigate the risks for gambling related harm, however the fact remains that if the ETA was granted the majority of the patrons who gamble prior to the current closing time are likely to continue to engage in gambling.
Even with the conditions proposed, the Tribunal is satisfied that if granted, the ETA would lead to patrons gambling for longer during the higher risk period post-midnight. Taking into account the measures in the GPOM and the views of patrons does not sufficiently mitigate the risk of gambling harm to the patrons or to the broader Fairfield LGA community.
My overall conclusion is that the applicant's proposed course does not serve the responsible development of the gaming machine industry as it will likely to lead to increased levels of problem gambling.
I am satisfied that the applicant has agreed to significant controls that are over and above the minimum standards regarding the service of alcohol and the address of problem gambling. However the harm minimisation and responsible gambling measures are not yet in place at the Hotel. The Tribunal has no evidence before it as to the impact of the proposed harm minimisation and responsible gambling measures set out in the GPOM.
The Tribunal observes that past practice at the Hotel is contrary to its stated policies that free food is not available to patrons gambling and that hot food is available for purchase up to closing time. As noted earlier, a free meat pie was offered to Mr Purcell on the basis that he intended to gamble and Mr Vescio's evidence indicated he was informed by an employee that hot food was not available after 10.30 pm.

[25]

Conclusion

In determining this application, the Tribunal must consider the likely overall social impact of the ETA on the local and broader community, that is, it must weigh up the benefits and disbenefits to find whether there is a net benefit or detriment, as expressed in s48(5) an 'overall social impact'. The Tribunal must make factual findings about whether the ETA, if approved, would be detrimental to the well-being of the local or broader community. In determining the application the Tribunal must consider the objects of the Act.
I have considered and weighed all the evidence. Section 3(1) and s 48(5) of the Act require the Tribunal to consider whether granting the ETA is in the public interest and to consider the overall social impact of the ETA to the well-being of the patrons of the Hotel and the Fairfield LGA more broadly.
Any extension of trading hours of a venue which serves alcohol and has EGMs will self-evidently lead to a greater number of people potentially consuming more alcohol and spending longer periods gambling. As such, any approved ETA will potentially lead to increased risk of social harms such as alcohol related crime and problem gambling and be detrimental to the well-being of the local or broader community. However, the Tribunal is not dealing with potential consequences. As this Tribunal has stated, it is necessary to identify objective facts and any available inferences so as to make factual findings as to the causation of social impacts: Kallin Pty Ltd v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 at [138]; Smith at [25] and [31]; Bun at [73] and Bellesty and Anor v Director of Liquor and Gaming and Ors [2002] NSWSC 1102 at [147].
The detriment of the ETA is the social harm generated from gambling after midnight and particularly so after 2.00 am. I accept that problem gamblers and moderate risk gamblers are far more likely to be harmed by gambling after midnight, particularly after 2.00 am. I am satisfied that granting the ETA would lead to an irresponsible development of the availability of EGMs which is not consistent with the concept of 'responsible gambling'.
The Tribunal is well satisfied that the overall social impact of the ETA, were it granted, will be detrimental to the well-being of the patrons of the Hotel and to that of the broader community of the Fairfield LGA. I am satisfied that the neither the positive social impacts nor the conditions proposed by the Hotel will sufficiently mitigate the negative contribution to the overall social impact.
After identifying and weighting the detriments and benefits to the well-being of the local or the broader community, the Tribunal is not satisfied "that the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community": S48(5) the Act. Accordingly the ETA must not be granted and the decision under review should be affirmed.

Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (5)

Cases Cited (4)

Cited By (6)