The Judge's Reasoning About Permissible Reasons for Refusing Consent
97 Against the background of that consideration of the statute, I turn to consider the detail of how the judge approached the matter.
98 The role of this Court in considering the judge's reasons is somewhat different to its role in most appeals, because the role that the judge was playing in the L & E Court was not the usual judicial role in civil litigation of deciding disputes among citizens according to law. Pursuant to section 82 EPA Act there had been a deemed refusal of the development application that the Appellant had made to the Council when the Council did not deal with it within the time required by the regulations. The appeal to the L & E Court was brought under section 97 EPA Act. On that appeal the L & E Court had the powers under section 39 L & E Court Act, including:
"(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly."
99 Thus, the L & E Court was exercising all the powers of the Council, and was subject to the limits of power to which the Council was subject. The judge was acting not as a judge usually acts, but as a substitute administrative decision-maker. The judge was restricted by section 209(3)(b) G M Act in making her decision in exactly the same way that a consent authority would be. The task for this Court is to decide whether the reasons that the judge had for refusing the development application are reasons that infringe section 209(3)(b).
100 The reasons that the judge gave for rejecting the development application, that I have referred to at paras [28]-[30] above, were given only after she had first considered what reasons were open to her consistently with section 209(3) G M Act.
101 At [81], the judge summarised the argument that had been presented to her as being that section 209(3)(b) required a consent authority:
"… to disregard each and every fact, matter or circumstance associated in any way whatsoever with a gaming machine being present on land and used. Hence, and for example, the consent authority must pretend that the floor space occupied by a gaming machine does not exist. It must pretend that the people who come to use a gaming machine do not exist. It must pretend that the vehicles (if any) used by those people to reach the gaming machines do not exist."
102 Her Honour rejected that submission as being:
"… pitched too high and without apparent regard to:- (i) the meaning of the words in s 209 ('installation, keeping or operation of approved gaming machines'), (ii) the nature or closeness of connection of the required relationship between the 'any reason' (emphasised by the applicant) and the 'installation, keeping or operation of approved gaming machines' or (iii) the practical consequences of the operation of the statutory regimes in the real world."
103 Concerning the first of those matters, the judge noted, at [82], that:
"The field of operation of s 209 is primarily marked out by the words the 'installation, keeping or operation of approved gaming machines' in hotels, registered clubs or other premises."
104 She noted how those words appear in both section 209(3)(a) and 209(3)(b) and the two different types of proscription that arise under those two different paragraphs.
105 At [83]-[87], her Honour considered matters that relate to the second and third of the ways in which she found that the Appellant's submission was pitched too high. She noted authority that the kind of relationship that is conveyed by the phrase "relating to" depends upon statutory context and purpose. She noted various aspects of section 209 that were, in her view, inconsistent with the Appellant's submission. She draws attention to some of the limitations of section 209(3). One is that it says nothing about the operation of the EPA Act with respect to the building within which the gaming machines are located, other than that to attract the operation of the section the premises must be a hotel, registered club or other premises. What I take her Honour to be there pointing out is that there is a vast array of topics that can be relevant under the EPA Act in deciding whether to grant or refuse a development consent, or to grant it subject to conditions, with which section 209 does not deal. Indeed, section 209(3) presupposes that consent authorities will continue to consider applications for development consent under the EPA Act, including concerning buildings that are hotels, registered clubs or other premises within which gaming machines are located, or are proposed to be located.
106 Next, her Honour drew attention to the fact that section 209 presupposes the existence of the premises within which the gaming machines may be located. She says, at [86]:
"If the applicant's approach to s 209 were correct then, for example, the area used to house gaming machines and the people using them would have to be disregarded when assessing such matters as building safety. The EPA Act regulates the fire safety of buildings primarily through s 79C(1)(a)(iv) (referring to 'the regulations (to the extent that they prescribe matters for the purposes of this paragraph)) and Div 8 of Pt 6 of the Environmental Planning and Assessment Regulation 2000 . The idea that s 209 operates to ensure that applicants seeking consent and consent authorities may disregard the safety of users of gaming machines when, for example, calculating the appropriate paths of travel to exits, the necessary widths of those exits, the location of sprinklers and the like need only be stated to be rejected."
107 It needs to be remembered that the context in which her Honour was making these remarks was the specific argument that had been put to her, that section 209(3)(b) was a legislative direction to the consent authority to consider an application for development consent, for a development that would involve the installation, keeping or operation of approved gaming machines in a hotel or registered club, on the counterfactual basis that the gaming machines were not there, the floor space that the gaming machines occupied was not part of the premises, the people who used the gaming machines did not exist, and the vehicles (if any) used by those people to reach the gaming machines did not exist. Division 8 of Part 6 of the EPA Regulation to which her Honour refers, sets out matters that have been prescribed pursuant to section 79C(1)(a)(iv) EPA Act, and which are therefore matters that a consent authority is required to take into account if relevant. Clause 93 is part of Division 8 of Part 6. It applies to a development application for a change of building use for an existing building, where the applicant does not seek the rebuilding, alteration, enlargement or extension of the building. It includes:
"(2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed new use.
(3) Consent to the change of building use sought by a development application to which this clause applies must not be granted unless the consent authority is satisfied that the building complies (or will, when completed, comply) with such of the Category 1 fire safety provisions as are applicable to the building's proposed new use."
108 That Regulation had already been published and commenced (see Reg 2) at the time the G M Act was passed by the Parliament. Thus, the practical matters concerning safety, that her Honour instanced, were ones that under the pre-existing law were mandatorily required to be taken into account by a consent authority in deciding whether to grant a development consent. What her Honour was pointing out was that it was extraordinarily unlikely that it was the Parliamentary intention that these practical matters should be dealt with by a consent authority on the basis, contrary to the facts, for which the Appellant had contended. Particularly is that so when there is no obligation on the Board to consider such fundamental safety matters, even if one takes into account the provisions of the G M Regulation, and the social impact assessment required is a class 2 assessment. It might be possible for the Board to take such matters into account under Reg 35(6)(c), "such other matters as the Board thinks relevant", but first, it is far from clear that the Board would be able to do so, as the scope of the "such other matters" would need to be decided by reference to the overall scope and purpose of the G M Act and the G M Regulation, and second, even if it was within power for the Board to take it into account, there is still no obligation on it to do so. I agree with her Honour in this respect.
109 Next, at [87], her Honour noted that:
"… s 209(3) identifies the required character of the proscribed condition or reason for refusal. This is perhaps best demonstrated by example. Assume a consent authority imposes a consent condition that the noise level at the boundary must not exceed the background. Noise from patrons attending premises to play gaming machines may contribute to the overall noise level. To comply with the condition it may be necessary for patrons (including those playing gaming machines) to be directed by management to leave the premises by one exit but not another. Assume further a consent authority imposes a condition requiring a hotel to provide a minimum number of parking spaces on site. Unless those spaces can be provided the development cannot be carried out other than in breach of the EPA Act (s 76A(1)(b)). Patrons wishing to play gaming machines will generate the need for some of those spaces. Both conditions have some connection (albeit tenuous) with the operation of gaming machines. But neither is a condition that prohibits or otherwise regulates or restricts the installation, keeping or operation of approved gaming machines within the meaning of s 209(3)(a). The same considerations must apply to s 209(3)(b). A consent authority that refuses development consent to a hotel or registered club because, for example, the building will be too big, part of the building will overshadow other land, noise levels will exceed what is reasonable or parking provision is inadequate will not have refused consent for any reason within the meaning of s 209(3)(b) merely because some part of the building will house and some of the patrons will operate gaming machines. The connection is simply too tenuous and indirect to attract the statutory proscription."
110 As counsel for the Appellant below conceded at the trial there was no evidence that fixed the percentage of patrons of the hotel who would be likely to come just to play the machines. There was some evidence, relating to a survey conducted at a different hotel, that 35% of the total number of patrons at that hotel were playing gaming machines. Mr Hallam, a traffic and transport engineer, had given expert evidence on how the demand for parking likely to be generated by the development compared with available parking spaces in the vicinity. The submission that the Appellant put to her Honour was that section 209(3)(b) required that the parking demand generated by gaming machine use not be taken into account by the consent authority. Her Honour rejected that submission at [88]:
"For these reasons the applicant's submission that Mr Hallam's evidence about parking demand had to be reduced by 35% to remove the potential influence of patrons using the gaming machines or was otherwise infected by matters within the scope of s 209 was misconceived. Section 209 has no effect on the assessment of the parking demand of the hotel by reference to the whole floor space of the proposed development (including the gaming machine area) and the whole anticipated patronage (including patrons anticipated to attend in whole or part to play gaming machines). Mr Hallam's evidence must be considered in its own terms along with all other evidence relevant to the issue of parking demand."
111 Her Honour went on, at [89]-[91], to give some further consideration to section 209. That further consideration was for the purpose of deciding what, if anything, she should do to take into account expert evidence and concerns expressed by residents on three topics:
"(i) the social impacts associated with the location of the gaming machines on the site, (ii) their contribution to the overall density of gaming machines in the vicinity of the site, and (iii) the interaction of these factors with the highly vulnerable and disadvantaged community within that vicinity, particularly in terms of problem gambling and the associated direct and indirect costs to the community."
112 Her Honour noted, at [90], that "These social effects are more closely connected to the subject-matter of the statutory proscription than any of the examples referred to above." Her Honour said, at [91]:
"There are strong indicators in the statutory scheme that concerns about the density of gaming machines and their contribution to problem gambling within a particular locality are within the statutory proscription in s 209(3)(a) and (b) and thus cannot found either the imposition of a condition of consent or refusal of consent under the EPA Act ."
113 Later in para [91], she expressed what I take to be the same thought in somewhat different words:
"Section 209(3)(b) operates so that problem gambling cannot constitute a reason for refusal of the development application. In the face of that statutory proscription the potential contribution of the development to problem gambling cannot be factored into the assessment of the development application."
114 Mr Reynolds submitted that her Honour's construction of section 209(3) was to be found within para [91] of her reasons, and that her Honour incorrectly narrowed the scope of section 209(3) to matters concerning problem gambling. I do not accept that submission. In para [91], her Honour was dealing with a specific submission that the Council had put below, concerning the manner in which the court could take into account the three matters I have referred to at para [111] above. Her Honour rejected that submission. When she said that "concerns about the density of gaming machines and their contribution to problem gambling within a particular locality are within the statutory proscription in s 209(3) …", her Honour was not purporting to state the full extent of the statutory proscription in section 209(3).
115 There is one part of her Honour's reasoning in para [91] which involves her Honour considering the correct construction of section 209(3):
"(5) The language and context of s 209 indicate that the social effects of problem gambling are within the scope of the proscriptions in s 209(3)(a) and (b). This conclusion can be tested by examples. The cause of the adverse social consequences identified by Dr Stubbs is that the presence of gaming machines on the site will increase their availability and density in the centre of a highly vulnerable population. The adverse social consequences could be avoided by a condition to the effect that no gaming machines may be kept within the hotel. Such a condition, however, would offend s 209(3)(a). The adverse social consequences could also be avoided by refusing consent to the application on the ground that it included proposed gaming machines. Such a refusal would be for a reason relating to the installation, keeping and operation of gaming machines in the hotel. The examples show that there is a clear and direct relationship between the social effects of gaming machines and their installation, keeping and operation. The same conclusion cannot be reached with respect to (for example) an assessment of the parking demand to be generated by the hotel as a whole."
116 Mr Reynolds submitted that, if the judge's construction of section 209(3) could emerge only from paras [81]-[88] of her judgment, she nowhere stated that construction clearly. While this submission is suspiciously close to an "inadequate reasons" ground of appeal, rather than the single ground of appeal contained in the Notice of Appeal, I shall consider it. Her Honour gave explicit consideration to "the nature or closeness of connection of the required relationship between the 'any reason' … and the 'installation, keeping or operation of approved gaming machines'". She did so in para [87], and again by examples in the portion I have quoted from para [91].
117 Her Honour recognises at [87] that some connections between conditions that might be imposed on development consents, or reasons for refusal of consent, might have a connection with the operation of gaming machines, but that connection is too tenuous and indirect to attract the statutory proscription. In para [91], she accepted that the adverse social consequences of the presence of gaming machines on the site could be avoided by refusing consent to the application "on the ground that it included proposed gaming machines", but that such a refusal "would be for a reason relating to the installation, keeping and operation of gaming machines in a hotel". In such a case there would be a "clear and direct relationship" of a kind that was proscribed.
118 While Mr Reynolds put it more politely than this, the substance of his submission was that a judge is not performing his or her judicial duty if he or she in substance says "I have thought about the nature, object and purpose of the legislation in which this generally described statutory test applies, and its context, and I say that the particular example before me falls within/falls outside the statutory test." He submits that, to proceed properly, her Honour should have explained what kinds of relationship between a reason for refusing to grant development consent, and the installation, keeping or operation of approved gaming machines in a hotel or registered club, were prohibited by section 209(3)(b). He proposed a formula that the appropriate relationship was whether there was "a practical and substantial connection between the reason given and the installation (etc) of the gaming machines." He submitted that those judges whom we admire would have proceeded in that way.
119 I reject this submission about how judicial method should proceed. The task of the first instance judge in the present case involved deciding whether a reason for rejecting a development consent, that the Council was urging her to adopt, fell within the prohibition in section 209(3)(b). Insofar as construction of section 209(3)(b) was involved, the task of the judge was not to give a paraphrase of the statutory words. The law that she was required to apply was the law that Parliament has enacted, not a judicial rewording of the law. A time-honoured judicial technique is to arrive at an understanding of concepts expressed in general words through a series of examples that illustrate when those general words apply, and when those general words do not apply. This process of ostensive definition, of gathering the meaning of a general term through examples, is by no means peculiarly judicial - it is fundamental to how humans come to understand the meaning of language, and starts as early as when a child comes to understand what is "red", or "a car" by having examples pointed out. Similarly, a judge can come to understand the meaning of a general expression in a statute by considering a series of examples, and whether those examples would, or would not, fall within the purpose of the statute, or the context within which it must operate. That is exactly what the judge in the present case has done by, for example, considering how the topic of fire safety of the premises would be dealt with, on the construction that the Appellant was submitting she should adopt. Considering such examples is part of the movement between the general and the particular, and back again, that is involved in the task of construction of a text.
120 There is one aspect of her Honour's reasoning that gives me a little concern. I put it that way not because I am of the view that it is actually wrong, but it could mislead. It is that her Honour might be read as saying that some reasons that have a connection that is "tenuous" or "indirect" with the installation, keeping or operation of gaming machines are not proscribed, while others that concern a "direct product" of the installation keeping or operation of gaming machines, or that have a "clear and direct relationship" with the keeping installation or operation of the machines, are proscribed. Yet in para [91] (8) she said:
"Problem gambling … has serious direct and indirect social consequences. But problem gambling, and the risk of creating the circumstances in which problem gambling is likely to arise, is inescapably a matter relating to the operation of gaming machines. Section 209(3)(b) operates so that problem gambling cannot constitute a reason for refusal of the development application." (emphasis added)
121 I think that, properly understood, her Honour was not seeking to impose a gloss on the statute to the effect that a proscribed reason must be one that has a direct connection to the installation, keeping or operation of gaming machines. If that were her approach, she would not have referred in para [91] (8) to taking into account the indirect social consequences of problem gambling as being a reason that is proscribed.
122 The statutory test is not cast in terms of whether the reason for refusal of the development consent has a direct, an indirect, or a tenuous connection with the installation, keeping or operation of gaming machines. Rather, the test is one that requires an identification of the reason that, but for section 209(3)(b), would be adopted for refusal, and a characterisation of whether that reason relates to the installation keeping or operation of gaming machines. I have earlier explained what is involved in a reason having that relationship.
123 The reasons that her Honour actually adopted for rejecting the application for development consent occur in a later section of her judgment to that in which she considered the construction of section 209(3)(b). I have set out the substance of those reasons at paras [28]-[30] above. The first two reasons that her Honour adopted are not ones that relate to the installation, keeping or operation of gaining machines, in the sense I have explained it. In arriving at the third reason, her Honour was deliberately focusing on a harm created by alcohol alone, after excluding any harm arising from gaming. Her third reason is not a proscribed one either.
124 Even if her Honour had come to the reasons for which she refused consent to the development application by a process of reasoning that involved some legal error in construction of section 209, the appeal to this court would succeed only if the three reasons on which her Honour ultimately relied for refusing consent were proscribed reasons. They are not. The appeal to this court must be dismissed.