Waugh Hotel Management Pty Ltd v Marrickville Council

Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Gaming Machine Tax Act 2001 Gaming Machines Act 2001 Gaming Machines Amendment (Shutdown Periods) Bill 2003 Gaming Machines Amendment (Shutdown Periods) Act 2003 LEGISLATION CITED: Gaming Machines Amendment Act 2002 Gaming Machines Bill 2001 Gaming Machines Regulation 2002 Interpretation Act 1987 Land and Environment Court Act 1979 Liquor Act 1982 Registered Clubs Act 1976 Unlawful Gambling Act 1998

Amaca Pty Ltd v Novek [2009] NSWCA 50; [2009] Aust Torts Reports 82-001 (62,797) Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 Fountain v Alexander [1982] HCA 16; 150 CLR 615 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Joye v Beach Petroleum NL (1996) 67 FCR 275 Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 Nepean Engineering Pty Ltd v Total Process Services Pty Ltd [2005] NSWCA 409; 64 NSWLR 462 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 CASES CITED: O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356 Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129; 43 ATR 158 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 R v Sheffield Crown Court; Ex parte Brownlow [1980] 1 QB 530 Thomas v State of New South Wales [2008] NSWCA 316 Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 Trust Company Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255; (2007) 13 BPR 25,019; 70 ATR 505 Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775; (2007) 156 LGERA 414 Wonall Pty Ltd v Clarence Property Corporation Ltd [2003] NSWSC 497; (2003) 58 NSWLR 23

TEXTS CITED: Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, (2006) LexisNexis Butterworths

PARTIES: Waugh Hotel Management Pty Ltd (Appellant) Marrickville Council (Respondent)

COUNSEL: G O'L Reynolds SC; V Culkoff (Appellant) N J Williams SC; M E Wright (Respondent)

SOLICITORS: JPR Legal, Bondi Junction (Appellant) Marrickville Council, Petersham (Respondent)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT JUDICIAL OFFICER: Jagot J - Hoffman C

LOWER COURT DATE OF DECISION: 27 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40865/07 LEC 10263/07

HODGSON JA CAMPBELL JA YOUNG JA

3 DECEMBER 2009 WAUGH HOTEL MANAGEMENT PTY LTD v MARRICKVILLE COUNCIL Judgment 1 HODGSON JA: I agree with the order proposed by Campbell JA, and I agree substantially with his reasons. I would add the following reasons of my own. 2 The appellant's argument is to the effect that, if the installation, keeping or operation of approved gaming machines in a hotel contributes to any environmental effects of (or indeed any other issue concerning) a development relating to the hotel, then refusal of development consent cannot be grounded on any reason referrable to that contribution. 3 In relation to parking, for example, the appellant's contention was that any additional requirement for parking referrable to the installation, keeping or operation of approved gaming machines must be disregarded in any consideration by the consent authority whether to refuse consent for a reason based on inadequate provision for parking or excessive parking impact on the area surrounding the hotel. This would mean that the consent authority, in addressing this question, would have to base its consideration not on the parking requirements actually expected from the development but on some lesser requirement arrived at by deducting something. 4 This deduction could conceivably be: (1) The parking requirements of persons expected to actually use the gaming machines; or (2) The incremental parking requirements of persons who have gone to the hotel or stayed longer because the gaming machines were there, as compared with the gaming machines not being there and there being no alternative attractions there; or (3) The incremental parking requirements of persons who have gone to the hotel or stayed longer because the gaming machines were there, as compared with the position where there was some alternative attraction there instead of gaming machines. 5 Each of these three alternatives has peculiar difficulties. For example, the first could not be considered a measure of increased requirements due to the gaming machines; and while the second and/or third might be considered such a measure, there seems no reasonable basis to choose between them and both, particularly the third, would raise extreme evidentiary difficulties, especially for anyone opposing the development who would not have access to relevant material. More importantly, all these alternatives are highly objectionable in that they would require the consent authority to make a decision concerning environmental impacts based on a false assumption as to what those environmental impacts would actually be: this would be such an unreasonable requirement that one would not readily attribute it to the legislature. 6 A requirement to base a decision on a false assumption in relation to parking requirements would be extremely unreasonable; but it should be appreciated that there would, on the appellant's approach, be a similar requirement in relation to other issues as well, including safety measures and provision of facilities. For a development application to be refused on the basis of inadequate provision for safety, for example inadequate emergency exit doors, or on the basis of inadequate toilet facilities, the appellant's argument would mean that the consent authority would have to disregard the requirements of whatever additional people were to be on the premises because of the presence there of gaming machines. 7 In my opinion, the wording of s 209(3)(b), considered in its context and in the light of the objects of the legislative scheme of which it is part, cannot support such an approach. A refusal of development consent to a hotel by reason of parking impacts, or by reason of inadequate provision for safety or for toilet facilities, is not a refusal "for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel" simply because it is based on the number of people actually expected to attend at the hotel, without any falsification of that figure by some deduction referrable to the presence of gaming machines. 8 CAMPBELL JA:

Nature of the Appeal 9 The Appellant applied to the Respondent ("the Council") in December 2006 for development consent to enable it to make alterations and additions to and to use premises at 252-254 Illawarra Road, Marrickville ("the Site") for hotel purposes. When there was a deemed refusal of that consent, the Appellant appealed to the Land and Environment Court ("L & E Court"). There, Jagot J ordered that the appeal be dismissed, and that the development application be refused: Waugh Hotel Management v Marrickville Council [2007] NSWLEC 775; (2007) 156 LGERA 414. 10 The appeal to the L & E Court was made under section 97 Environmental Planning and Assessment Act 1979 ("EPA Act"). Thus, it was a Class 1 appeal, pursuant to section 17(d) Land and Environment Court Act 1979 ("L & E Court Act"). The appeal from the L & E Court to this Court concerning it is thus, pursuant to section 57 L & E Court Act, an appeal "on a question of law". 11 There is a single ground of appeal, namely: "The primary judge erred in that her Honour refused to grant the development consent for the hotel for reasons that relate to the installation, keeping or operation of approved gaming machines in a hotel, contrary to s 209(3)(b) of the Gaming Machines Act 2001 (NSW)." 12 The statutory provision invoked by that ground of appeal is: "A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979 ) cannot: … (b) refuse to grant any such development consent to a hotel or registered club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or on premises of a registered club."

The Factual Background 13 The Site was located in the Marrickville central shopping area. Under its zoning, hotels were permissible with (but only with) consent. The Site was the ground floor area of a two-level commercial building that had some rooftop parking. At all relevant times it was used as a shoe shop. 14 A laneway, Tuohy Lane, ran at the rear of the Site. On the other side of Tuohy Lane were residential flat buildings with frontages partly to Tuohy Lane, including balconies overlooking the lane. A pedestrian pathway ran along one side of the Site between buildings, joining Illawarra Road and Tuohy Lane. 15 On the opposite side of Illawarra Road to the Site was a council operated car park, the Calvert Street car park. 16 The hotel development that was proposed for the Site included a bar area, a gaming area, and a TAB. In the course of the hearing in the L & E Court, the number of gaming machines proposed to be available was reduced from 29 to 19. It was initially proposed that the hotel would operate from 5:00am on all days except Sundays, on which day it was proposed there would be a 10:00am opening. It was initially proposed that the hotel would operate to midnight on Mondays and Tuesdays, to 1:30am on Wednesdays and Thursdays, and to 2:00am on Fridays and Saturdays. By the time of the hearing below, the Applicant had accepted conditions restricting trading hours to between 10.00am and 12 midnight with a trial period of extended trading hours to 1.30am on Wednesdays and Thursdays, and 2.00am on Fridays and Saturdays. 17 Any of the rooftop parking spaces that were available for the Site would be occupied by staff, not patrons. 18 The Applicant proposed to obtain a liquor license and gaming machine entitlements for the Site by transferring them from an existing hotel, the Henson Park Hotel, that is located about 900 metres from the Site.

The Council's Grounds of Opposition 19 In the L & E Court, the Council opposed the granting of development consent by relying on evidence concerning several different types of effect that it submitted would arise from the granting of the development consent. 20 The first type of evidence related to the effect that the development would have on parking. The proposed new use would generate more demand for parking than was generated by the existing use of the Site. On the evidence that the judge accepted, that increase in demand could adequately be catered for after 7:00 pm by the Calvert Street car park, but neither the Calvert Street car park, nor the parking reasonably likely to be available in nearby streets, could absorb the increased demand for parking prior to 7:00 pm. 21 A second category of evidence concerned social effects of there being another liquor and gaming machine outlet in the immediate vicinity. An expert called by the Council, Dr Stubbs, drew upon a publication of the Australian Bureau of Statistics called Socio-Economic Indexes for Areas 2001, that the judge described (at [13]) as providing: "… a method of determining relative social and economic well-being in areas, with indices relating to a continuum of advantage and disadvantage, economic resources and education and occupation variables." 22 That information showed that the Site was: "… within the centre of a cluster of some of the most disadvantaged collection districts within NSW. In contrast, the Henson Park Hotel is at the edge of this area and equally accessible to the socio-economically advantaged areas of other collection districts." 23 Dr Stubbs expressed a view that the judge summarised, at [16], as: "… within a 1km radius of the site (which would include the existing Henson Park Hotel) there is a much higher density of gaming machines than in the area generally (50% higher), placing this area within the upper 15% of density for gaming machines in NSW. Per capita expenditure on gaming machines in this area is 30% higher than the average for the local government area, which is itself 11% higher than the average for NSW. Dr Stubbs noted that existing gaming machines within this shopping precinct already had a very high rate of play. The increased density of gaming machines within this high exposure and high risk shopping precinct could be expected to result in significantly disproportionate expenditure on gaming by the highly disadvantaged social groups that are least able to afford it." 24 The Council particularised the undesirable social impacts that it submitted would arise from the development as being: "(b) The internal design of the proposed development is such as to maximise gambling revenue for the establishment and will be a destination venue for patrons. (c) To grant consent to the development would exacerbate the gambling related problems that exist in the locality. (d) The proposed development would result in another alcohol/gaming facility in the Marrickville Town Centre and is an inappropriate concentration of such uses. (e) The Applicant has failed to provide any real analysis of the potential social impacts of the proposed development." 25 A third category of evidence concerned the particular effect on the residents on the other side of Tuohy Lane. There was evidence from residents in the lane that (as the judge recorded at [36]): "… they were concerned about the development being out of character with other commercial and retail uses, particularly with the long hours of operation extending into the late evening and early morning. Noise and anti-social activities associated with the development late at night (including people walking along Tuohys Lane) … was a particular concern …" 26 Dr Stubbs, gave evidence that the judge summarised at [15] as: "… the development would also create an increased risk of anti-social behaviour, and public and domestic violence in the immediate vicinity of the site and a 500m radius. This impact would be limited to the immediate area because it was associated with the clustering of premises serving alcohol and the particular demography of that area. The expected impacts would be intensified because of the character of other surrounding land uses including: - (i) the close proximity of high density residential flat buildings, (ii) shops already experiencing crime and nuisance behaviour, (iii) the secluded pedestrian pathway and rear access laneway heavily used by shoppers adjacent to the site, and (iv) the proximity to Council and rooftop car parks and the railway station. These expected increased risks would operate against a background of existing problems in the immediate area and the local government area generally, including a 40 - 50% higher than average rate of hospitalisation related to alcohol and a very high crime rate." 27 A fourth category of evidence related to the disadvantageous effects on the area serviced by the Henson Park Hotel of losing a well-used social facility.

The Judge's Reasons for Rejection 28 The judge did not rely on all these matters in deciding to reject the development application. Her Honour relied only on three matters. One of them - that her Honour held was sufficient by itself to warrant refusal of the application - was the effect of the development on parking. She held, at [99]: "… I am satisfied that the development will not provide adequate parking to meet its demand. Parking is already at a premium in this area. There will be a period of overlap during peak shopping hours when the development will materially exacerbate the difficult parking situation in this part of the town centre. Nothing in the development application and accompanying documents (including the plan of management) is capable of mitigating that impact. The development does not involve factors that might, in other cases, warrant lesser weight being given to parking issues (such as provision of a facility not presently available within the town centre). Managing parking availability may readily be inferred to be important to the functioning of the Marrickville town centre. The objectives of DCP 19 support this inference. I am satisfied the development application should be refused consent on this ground." 29 A further reason that the judge adopted was, at [101], that the development "creates a real risk of increased activity, anti-social behaviours and disturbance" in Tuohy Lane. 30 The third reason that her Honour adopted was (at [102]-[103]): "Dr Stubbs made a powerful case that a concentration of licensed premises in this particularly disadvantaged location involves a risk of disproportionate alcohol related harm. … … the risks of alcohol related harm from increasing the density of licensed premises in this highly disadvantaged community would be a further independent ground for refusal of this application."

The Appellant's Argument in Summary 31 Mr G Reynolds SC, counsel for the Appellant, submitted that each of these reasons given by the judge contravened section 209(3)(b). His written submissions put it thus: "15. First, so far as parking is concerned, the need for parking is generated by the clientele of the hotel. As the judge notes … '[p]atrons wishing to play gaming machines will generate the need for some of those [parking] spaces'. Thus the need for parking relates to the presence of gaming machines. Indeed, … the primary judge concedes that the need for parking has 'some connection (albeit tenuous) with the operation of gaming machines' but notes that there is no 'clear and direct relationship'. … 16. Secondly, the disturbances, increased activity and anti-social behaviour (eg crime) at late hours generated by the clientele of the establishment necessarily relates (at least in part) to the presence of gaming machines on the site. For example, crime is likely to be caused by drinking and gambling (or a combination thereof) …. Indeed, … the primary judge concedes that noise levels 'have some connection (albeit tenuous) with the operation of gaming machines' and … notes that the social effects of the installation of gaming machines are connected to the 'subject-matter of the statutory proscription'. 17. Thirdly, 'alcohol-related harm' caused by clients attending the establishment is harm which is likely to relate to the presence of gaming machines on the site. The primary judge did not specify the 'alcohol related harm' which would be caused. However, there are several references in [102]-[103] of the judgment to the disadvantaged and vulnerable nature of the local community …. This clearly suggests a concern about indigent patrons losing their money … Moreover loss of money at this establishment would be likely to be caused (at least to some extent) by a combination of drinking and gambling (which often go hand in hand). Indeed, the connexion between the alcohol related and gambling related harm which would be caused to patrons at the proposed establishment (and others in the community) can also be seen from Dr Stubbs' report …. And it is difficult to say that the 'alcohol related harm' envisaged by the judge is not also 'gambling related' harm particularly where the judge has not specified the precise harm referred to and where her Honour … noted the social impact of problem gambling with its associated direct and indirect costs to a 'highly vulnerable and disadvantaged community'."

This quotation deletes only pinpoint references to evidence and passages in the judgment below.

Section 209 32 The text of the whole of section 209 Gaming Machines Act 2001 ("G M Act"), the provision on which this appeal depends, is: " Relationship with Environmental Planning and Assessment Act 1979 "(1) An environmental planning instrument (whether made before or after the commencement of this section) under the Environmental Planning and Assessment Act 1979 cannot prohibit or require development consent for, or otherwise regulate or restrict, the installation, keeping or operation of approved gaming machines in hotels, registered clubs or any other premises. (2) If an environmental planning instrument contains any provision in contravention of subsection (1), the provision is taken to have no effect. (3) A consent authority (within the meaning of the Environmental Planning and Assessment Act 1979 ) cannot: (a) as a condition of any development consent under that Act, prohibit or otherwise regulate or restrict the installation, keeping or operation of approved gaming machines in a hotel or on the premises of a registered club or any other premises, or (b) refuse to grant any such development consent to a hotel or registered club for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or registered club. (4) The installation, keeping or operation of an approved gaming machine in a hotel or registered club is not an activity for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 . (5) Any approval or authorisation under this Act to keep an approved gaming machine in a hotel or registered club is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979 ." 33 I shall approach the matter by first considering for myself the construction of section 209(3)(b), with such assistance as might be derived from its context, and then turn to some more detailed matters concerning the judge's process of reasoning and errors alleged to be contained in it. In so doing, I will be applying the notion that I expressed in Thomas v State of New South Wales [2008] NSWCA 316 at [22] that the process of statutory construction: "… is a particular application of the concept of the hermeneutic circle, familiar in other areas of discourse. That concept is that understanding of the parts is dependent upon understanding the larger whole, but the larger whole can only be understood on the basis of the parts, so that arriving at an understanding of any particular part involves movement to and fro between the parts and the whole. In the context of statutory interpretation, the 'whole' that can influence understanding of one of the parts includes not only the entire text of the particular statute in question, but also matters such as the historical circumstances from which it sprang, and the purpose it is intended to achieve. That is because a statute is not a text that can be understood in isolation. It is a type of text that is intended to form part of a wider body of law, so the meaning of a particular statutory expression can be influenced by parts of the law that are beyond the statute. A statute is a type of text whose role is to regulate certain types of human activities, so the manner in which the relevant type of activity is carried out, and the purposes for which the statute seeks to regulate that type of activity, can also influence the meaning given to a particular statutory expression." 34 I shall start by considering the text of section 209(3) by itself.

Construction of Section 209(3) in Isolation 35 Section 209(3) is in substance two separate prohibitions, each of which is directed to a consent authority. The first prohibition, contained in section 209(3)(a), relates to the action of the consent authority in granting a development consent. In carrying out that action, the consent authority is forbidden to impose a condition that prohibits or otherwise regulates or restricts the installation, keeping or operation of approved gaming machines in a hotel, registered club or any other premises. 36 The second prohibition, contained in section 209(3)(b), is directed to the consent authority's refusal of development consent, in particular circumstances. Those circumstances are defined by having two different attributes.

"To A Hotel …" 37 The first attribute is that the refusal of development consent is "to a hotel or registered club". There is some unclarity about what that means. When one bears in mind that, under the definition that is applicable (section 4(1) G M Act incorporating by reference the definition in the Liquor Act 1982), a "hotel" means "the premises to which a hotelier's licence relates", a "hotel" is not a juristic person. Thus, the prohibition on refusing development consent "to a hotel" could not mean that the hotel is the applicant for consent. If the phrase meant "for use of premises as a hotel or registered club", the prohibition in section 209(3)(b) would not apply to an application for consent to carry out alterations or some other development to premises that were already used as a hotel or registered club, which may not be the statutory intention. If it meant "to the operator of a hotel or registered club", it would not catch the initial application for use as a hotel or registered club. It may be that the phrase is intended to refer to both of the last two types of situation. However, it is not necessary to reach any concluded view about that in this case. The only conclusion I draw from the discussion in this paragraph is that section 290(3)(b) is not a model of clear drafting.

" For Any Reason That … " 38 The second attribute is that the development consent is refused "for any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or registered club". In construing that phrase, one needs to bear in mind that the prohibition is one that is directed to the consent authority, and the "reason" that is referred to is a reason that the consent authority has. 39 The shade of meaning that is involved in the consent authority refusing a development consent "for a reason that relates to …" is conveyed by the first two senses of "reason", when used as a noun, given by the Macquarie Dictionary: "1. a ground or cause, as for a belief, action, fact, event, etc.: the reason for declaring war. 2. a statement in justification or explanation of belief or action." 40 Similar senses recognised in the Oxford English Dictionary are: "A statement of some fact (real or alleged) used to justify or condemn an action, or to prove or disprove some assertion, idea, or belief. … A fact or circumstance forming, or alleged as forming, a motive sufficient to lead a person to adopt or reject some course of action or belief, esp. one stated as such." 41 So understood, the prohibition contained in section 209(3)(b) is a prohibition that is directed to the grounds on which the consent authority reaches a conclusion that it should refuse a development consent. A consent authority that is contemplating refusing a development consent to a hotel or registered club, but that is also seeking to comply with section 209(3)(b) must ask itself: "what is the reason why, if I were not constrained by section 209(3)(b), I would refuse this development consent?". If the answer to that question is, or includes, a reason that relates to the installation, keeping or operation of approved gaming machines in a hotel or registered club, then that reason is not one that the consent authority is permitted to act on. 42 It is to be noted that the prohibition in section 209(3)(b) is on refusing to grant a development consent for any reason that relates, etc. If there are several reasons why the consent authority, unconstrained by section 209(3)(b), would refuse the development consent, and one of them (but not others) relates to the installation, keeping or operation of gaming machines, the consent authority is forbidden from acting on the reason that relates to the installation, keeping or operation of the gaming machines. If (as it must) the consent authority then leaves out of account the reason that relates to the installation, keeping or operation of the gaming machines it might, or might not, find itself in a situation where the remaining reasons are ones that are sufficient to justify refusal of the development consent. Section 209(3)(b) has nothing to say to a consent authority about how it deals with an application for development concerning a hotel or registered club, once the consent authority has discarded any reason for refusal of the development consent that relates to the installation, keeping or operation of approved gaming machines. 43 It is also to be noted that the prohibition in section 209(3)(b) is on refusing a development consent for any reason that relates, etc; it is not on refusing to grant a development consent through any process of reasoning that relates, etc. It is the reason itself that must not relate to the installation, keeping or operation of approved gaming machines, not the process of reasoning by which that reason has been arrived at.

"Relates To" 44 In what sense should one understand the requirement that the forbidden reason "relates to" the installation, keeping or operation of approved gaming machines? In Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, the High Court considered an exemption from stamp duty for "all instruments relating to the services of apprentices, clerks and servants". The question at issue was whether a trust deed establishing a pension fund for employees of Tooheys and its related companies fell within the exemption. The majority (Dixon CJ, Taylor and Windeyer JJ) held that the deed did not fall within the exemption. Dixon CJ, at 613, noted that the fund was open only to people who served the company, that one of the purposes of the fund was to make service of the company more beneficial and attractive to employees, to attract people to the service of the company, to induce them not to leave its service, and that the benefits were calculated by reference to periods of service, and rates of remuneration while in the service. But these connections with service were not enough. Dixon CJ said, at 614, that he understood the exemption: "… as meaning primarily an instrument dealing with the relationship of master and apprentice, master and clerk, or master and servant. It may affect one term or all the terms of the relationship. It may govern or regulate the relationship or it may affect it less directly perhaps and still relate to it. But it is that with which it must deal. A trust deed devoted to the establishment and administration of a fund and to rights in relation to the fund of the man who is superannuated and operating when his services have ceased seems to me another thing, whatever motives may have led to its establishment and whatever motives the existence of the fund and the prospects of its benefits may inspire in those who give their services." 45 Taylor J, at 620, said: "... the expression 'relating to' is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used ... It is … not open to argument that 'relating to', in the context in which it appears, is equivalent to 'referring to' and the 'relationship' must be based upon some more substantial ground. It is, in my opinion, equally clear that the relationship must appear upon an examination of the instrument itself for it is the character of the instrument which is the material question and this cannot be resolved by an examination of extraneous matters in order to determine the purpose of the parties."

Analogously in the present case, the relationship between the contemplated reason for refusal of the development consent, and the installation, keeping or operation of the gaming machines, must appear if one considers the reason itself. 46 In Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285, Beaumont and Lehane JJ approved the statement of Taylor J in Toohey that I have set out, and continued: "Other decisions of the High Court have acknowledged that, ordinarily, 'relates to' is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J). Tooheys' case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J)." 47 In PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313, Brennan CJ, Gaudron, and McHugh JJ had said: "Inevitably, the closeness of the relationship required by the expression 'in or in relation to' in s 48 of the Act - indeed, in any instrument - must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears." 48 In PMT at 331, Toohey and Gummow JJ had said: "The connection which is required by the phrase 'in relation to' is a question of degree. There must be some 'association' which is 'relevant' or 'appropriate'. The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context." 49 In Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 at 462 [65], McHugh Gummow and Hayne JJ approved the statement made by Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW). 50 In Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129; 43 ATR 158 at [56], Fitzgerald JA made observations to similar effect. 51 In a similar way, "in respect of" and "in connection with" are each phrases capable of having a meaning indicating any type of connection or relation between the two subject matters to which the words refer, though the precise shade of meaning of the phrase on any particular occasion when it is used in a statute must be gathered from the context in which it is used: Wonall Pty Ltd v Clarence Property Corporation Ltd [2003] NSWSC 497; (2003) 58 NSWLR 23 at 44-5 [41]-[43], and cases there cited; Thomas v State of NSW at [19]-[21] and cases there cited. Similarly, whether a particular connection that can be perceived between the two subject matters, in the facts of any particular case, is a relevant and appropriate one for the purpose of applying a particular statute, must be gathered from the context in which the phrase is used in the statute. 52 As the heart of the dispute in this case is whether any of the three reasons the judge gave for rejecting the development application is one "that relates to the installation, keeping or operation of approved gaming machines in a hotel" within the meaning of section 209(3). I turn to the context to see what, if any, assistance can be obtained.

Assistance from the Rest of Section 209? 53 The immediate context in which section 209(3) occurs is the rest of section 209. Section 209(1) and (2) operate together. They are concerned with the content of "environmental planning instruments" under the EPA Act. Section 4 EPA Act defines an "environmental planning instrument" as meaning: "… a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument." 54 In so far as there is any prohibition involved in section 209(1), it is a prohibition directed to the institutions that make environmental planning instruments. While consent authorities sometimes (but not always) have a role in that process, they do not make environmental planning instruments by themselves. Thus, the target of the prohibition in section 209(1) is different to the target of the prohibitions in section 209(3). 55 Fairly clearly, for an environmental planning instrument to prohibit or require development consent for the installation, keeping or operation of the gaming machines necessitates that there is a prohibition or requirement that can be seen on the face of the environmental planning instrument. I am also inclined to think that before a provision of an environmental planning instrument could "regulate" the installation, keeping or operation of gaming machines it would need to do so on its face. However, it might be possible, just as a matter of the words, for a provision of an environmental planning instrument to "restrict" the installation, keeping or operation of approved gaming machines by doing so indirectly. There would be a question of construction about whether, in the context of the Act, "regulate" in section 209(1) was intended to cover a regulation by indirect or incidental means. Whichever way that question of construction might be answered, I do not find section 209(1) and (2) of any help in understanding section 209(3). 56 Section 209(4) and (5) each modify the operation of Part 5 of the EPA Act. 57 Part 5 of the EPA Act runs from section 110 to section 115S. It is the Part whose broad concern is to ensure that there is an orderly process for assessing whether activity by a Minister or public authority has deleterious environmental effects. Section 110(1) EPA Act defines "activity" using words that bear a close similarity (though with some additional exemptions) to the definition of "development" in section 4 EPA Act. Section 110 EPA Act defines "approval" as, broadly, any consent, licence, permission or any form of authorisation, and certain provisions of financial accommodation. 58 Of the provisions in Part 5 EPA Act, it is only sections 111 and 112 (and sections 113 and 114, that are consequential on the operation of section 112) that have a realistic prospect of being potentially applicable to an activity concerning gaming machines in hotels or registered clubs. Sections 111 and 112 set out a procedure for requiring environmental impact of any "activity" that a Minister or public authority (a "determining authority") is contemplating carrying out, or any approval that it grants. The obligation under section 111(1) EPA Act is: "For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall, notwithstanding any other provisions of this Act or the provisions of any other Act or of any instrument made under this or any other Act, examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity." 59 Section 112(1) prohibits a determining authority from carrying out an activity or granting an approval in relation to certain kinds (but not all kinds) of activity unless it has complied with various prerequisites, one of which is considering an environmental impact statement in respect of that activity. 60 If sections 111 and 112 applied concerning installation, keeping or operation of an approved gaming machine, or granting approval or authorisation to keep an approved gaming machine, it would have been necessary for the Board to comply with the requirements of Part 5 EPA Act before permitting the installation, keeping or operation of the approved gaming machine, or the granting of the approval or authorisation to keep an approved gaming machine. The effect of section 209(4) and (5) is that the Board is freed from any such requirements. Thus, the entity that section 209(4) and (5) is intended to affect is different to the class of entities that section 209(3) is intended to affect. I do not find section 209(4) or (5) of assistance in understanding section 209(3).

Broader Statutory Context 61 The G M Act operates in conjunction with a number of other pieces of legislation to provide a means of regulating, and taxing, particular types of gambling activity that would otherwise be illegal. Section 15 Unlawful Gambling Act 1998 prohibits possessing a prohibited gaming device, and permitting the use or operation of a prohibited gaming device. A "prohibited gaming device" includes, under section 6, a device that "is designed or used for the purposes of gambling". A gaming machine would clearly fall within that definition. However, section 7(f) Unlawful Gambling Act provides that the Act does not prohibit "keeping or operating an approved gaming machine within the meaning of the Gaming Machines Act 2001 in a hotel or registered club in accordance with that Act". Section 7 G M Act reiterates that it is lawful to keep or operate an approved gaming machine in a hotel or on the premises of a registered club if that machine is kept or operated in accordance with the Act. The Gaming Machine Tax Act 2001 imposes a tax on the profits from gaming machines kept in a hotel or on the premises of a registered club, and provides machinery for recovering it. 62 The G M Act makes clear in its terms that it presupposes the existence and operation of particular other pieces of legislation. It applies to hotels and registered clubs, entities that are themselves regulated under the Liquor Act 1982 and the Registered Clubs Act 1976. There are numerous specific references in the G M Act to those pieces of legislation. Section 72 Liquor Act 1982 establishes a Liquor Administration Board, that is the entity referred to as the "Board" in the G M Act (section 4(1)). Section 6A Liquor Act 1982 makes provision for the appointment of a Director of Liquor and Gaming, who is the person referred to as the "Director" in the G M Act (section 4(1)), and to whom the G M Act gives various functions concerning licensing, discipline and prosecution. As the text of section 209 makes clear, it is also contemplated that the G M Act will operate in at least some contexts in which the EPA Act is operating or would otherwise operate. 63 There are various ways by which the G M Act regulates the use of gaming machines. One is that there is a limit on the number of machines in the State, in any one hotel, and in any one club (sections 10-12). There is a detailed set of provisions for allocating and transferring entitlements to gaming machines (sections 14-31C). There is a prohibition on a hotelier or a registered club keeping or disposing of a gaming machine without the consent of the Board, and controls on the circumstances in which the Board can grant that consent (sections 56-61). Gaming machines themselves must be the type that is approved by the Board (sections 62-66). There are various criminal offences created concerning a variety of manners of operating or dealing with gaming machines (sections 68-81). Various different types of activities concerning gaming machines are required to be licensed (sections 82-126). There is a regime for the making an investigation of complaints concerning activities connected with gaming machines (sections 127-131). There are provisions regulating the manner in which gaming machines may be checked on by a centralised monitoring service, or linked together (sections 132-177). 64 An important feature of the G M Act, insofar as it applies to hotels, is that there is a clear legislative policy that the presence of gaming machines will be only incidental to the operations of the hotel. Section 6 G M Act sets out a "primary purpose test" that applies to hotels, namely: "(a) the primary purpose of the business conducted in a hotel is to be the sale of liquor by retail, (b) the keeping or operation of approved gaming machines in a hotel is not to detract unduly from the character of the hotel or from the enjoyment of persons using the hotel otherwise than for the purposes of gambling." 65 Section 59 provides: "(1) An approved gaming machine cannot be authorised to be kept in a hotel unless the Board is of the opinion that the primary purpose test in respect of the hotel is satisfied. … (3) It is a condition of a hotelier's authorisation to keep approved gaming machines that the hotelier complies with the primary purpose test in respect of the hotel. (4) If the Director is of the opinion that a hotelier has failed to comply with the primary purpose test in respect of the hotel, the Director may give a direction in writing to the hotelier requiring the hotelier to take remedial action specified in the direction within the time specified in the direction. (5) The hotelier must comply with any such direction." 66 Section 129(3)(c) contains specific provision empowering a complaint to be made to the Licensing Court that a hotelier has failed to comply with the primary purpose test. Section 130 empowers the Licensing Court to hear such a complaint. Section 131 empowers that Court to impose penalties if the complaint is made out. 67 The primary objects of the Act are stated by section 3(1) to be: "(a) gambling harm minimisation, that is, the minimisation of harm associated with the misuse and abuse of gambling activities, and (b) the fostering of responsible conduct in relation to gambling." 68 Some specific gambling harm minimisation measures are set out in Part 4 of the Act (sections 32-55). These include procedures for assessing the social impact of activities concerning gaming machines (sections 32-37A), provisions requiring the shutting down of gaming machines during a certain period each day (sections 38-42), limitations on advertising, signs and promotional schemes, and requirement for hoteliers and clubs to provide problem gambling counselling services and the ability of people to exclude themselves from gaming (sections 43-49), and some specific provisions to limit the ability of minors to engage in gaming (sections 50-55). It can be seen that the circumstances in which authorised gaming machines can be installed, kept and operated in hotels and registered clubs is a topic of central concern to the G M Act.

Social Impact Assessment Provisions of G M Act 69 Mr Reynolds drew our attention in particular to the provisions concerning social impact assessment of gaming machines. 70 Section 32(1) G M Act provides: "This Division applies to an application under Part 5: (a) that would, if granted by the Board, increase the SIA threshold for the hotel or the premises of a registered club to which the application relates, or (b) in the case of temporary premises - that would, if granted by the Board: (i) initially authorise the keeping of approved gaming machines on those premises by the applicant, or (ii) once approved gaming machines have been initially authorised to be kept on those premises - increase the SIA threshold for those premises, or (c) in the case of a new hotel or new club - that would, if granted by the Board: (i) initially authorise the keeping of approved gaming machines in the hotel or on the premises of the club, or (ii) once approved gaming machines have been initially authorised to be kept in the hotel or on those premises - increase the SIA threshold for the hotel or those premises." 71 The expression "SIA threshold" appearing in section 32(1)(a), (b) and (c) is defined in section 4(1) as meaning: "… the maximum number (as determined by the Board) of approved gaming machines that may be authorised to be kept in the hotel or on those premises before the provision of a social impact assessment under Division 1 of Part 4 is required."

While there is some mention of the SIA threshold for a hotel in section 16(3), section 20(5) and section 60A, none of those provisions state how or by reference to what criteria the Board determines the SIA threshold for any particular hotel or registered club, nor indeed whether the Board is required to determine an SIA threshold for every single hotel or registered club. 72 The expression "new hotel" appearing in section 32(1)(c) is defined in section 4 G M Act as including a hotel:

"in respect of which the licence under the Liquor Act 1982 was or is removed after [26 July 2001] to other premises (whether or not those other premises are outside the neighbourhood of the previous premises)." 73 Section 33 G M Act provides: "(1) A social impact assessment must be provided to the Board in connection with an application to which this Division applies. The social impact assessment may be provided before the application is made or at the same time as the application is made. (2) The social impact assessment must comply with this Division and the regulations." 74 Section 34 divides social impact assessments into class 1 social impact assessments and class 2 social impact assessments. Section 34(2) provides: "Classes of social impact assessment … (2) Subject to the regulations, a class 1 social impact assessment is required to be provided if: (a) the application relates to the keeping, over a period prescribed by the regulations, of a number of approved gaming machines that is less than the number prescribed by the regulations for the purposes of this paragraph, or (b) the application is made in connection with the transfer of poker machine entitlements from another hotel or other premises of a registered club and the other hotel is, or the other premises are, situated within 1 kilometre of the hotel or premises to which the application relates." 75 That provision has been modified by the regulations (para [93] below), but under both section 34(2) as originally enacted and as modified by the regulations, a class 1 social impact assessment was required for the transfer of poker machine entitlements from the Henson Park Hotel to the Site. 76 Section 35 G M Act enables regulations to be made concerning the requirements of a social impact assessment, the matters to be assessed or addressed and the information required to be provided by a social impact assessment, and the criteria for determining whether a social impact assessment is to be a class 1 or a class 2 social impact assessment. 77 Section 36 contains a requirement for the social impact assessment to be placed on public exhibition at the premises, advertised, and for a copy to be provided to the Director and the local council. The advertisement must invite the making of written submissions. The Board cannot determine (presumably, the acceptability of) the social impact assessment until 30 days have expired from the advertisement, and the Board is required to take into account any written submissions made to it within that 30-day period. In this way, a local council is provided with the means of making its views known concerning a social impact assessment. 78 Section 37 G M Act provides: "(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 club concerned will be conducted in a responsible manner, and (c) in the case of an application involving a new hotel or new club - there is no school, place of public worship or hospital in the immediate vicinity of the hotel or club, and (d) in the case of a class 2 social impact assessment - the overall economic and social impact of granting the application will not be detrimental to the local community. (4) For the purposes of subsection (3) (d), the local community comprises, subject to the regulations, the people in the area or group from which the persons utilising the services and facilities of the hotel or registered club concerned are likely to be drawn."

Provisions of EPA Act and Regulations 79 Section 78A EPA Act empowers a person to make application to a consent authority for consent to carry out development. Section 78A(9) enables the making of regulations which "specify other things that are required to be submitted with a development application". Regulation 50(1) Environmental Planning and Assessment Regulation 2000 ("EPA Regulation") provides: "A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, …" 80 Part 1 of Schedule 1 of the EPA Regulation includes, in clause 2(1)(c) a requirement that a development application be accompanied by "a statement of environmental effects (in the case of development other than designated development)". 81 Clause 2(4) of Schedule 1 provides: "A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters: (a) the environmental impacts of the development, (b) how the environmental impacts of the development have been identified, (c) the steps to be taken to protect the environment or to lessen the expected harm to the environment, (d) any matters required to be indicated by any guidelines issued by the Director-General for the purposes of this clause." 82 In construing that requirement, the broad definition of "environment" contained in section 4 EPA Act would be applicable, namely that it: "… includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings." 83 Section 79C(1) EPA Act provides: " Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest."

Discussion of Legislative Context of Section 209(3) G M Act 84 From this general consideration of the legislative context, one can conclude that the legislature has a clear realisation that the keeping and operation of gaming machines in a hotel has the capacity to cause harm. The statement of primary objects in section 3(1) says as much. The provisions of the G M Act concerning compulsory shutdown periods each day (section 38-42), significant limitations on advertising and promotions (section 43-45), the requirement for a hotelier to enter into arrangements for problem gambling counselling services to be made available to patrons of the hotel (section 46), and the provision for a self-exclusion scheme to be operated concerning any hotel or club (section 49) are all recognitions of that potential. From the intrinsic nature of gambling, one of the forms that harm could take is that the patron loses money. The profits from gaming machines that are taxed by the Gaming Machine Tax Act 2001 are the other side of the losses that patrons suffer. 85 If a consent authority were of the view that the presence of gaming machines in a hotel was in itself objectionable because they were ugly and vulgar and thus out of keeping with the character of the neighbourhood, that would clearly be a reason for rejection, the ground of which was the very presence of the machines. Such a reason is clearly prohibited by section 209(3)(b). If a council were of the view that, while two or three gaming machines might be acceptable in a particular hotel, the presence of as many as 10 or 12 would be out of keeping with the character of the neighbourhood, that would likewise be a reason for refusal of development consent that was based on the very presence of the machines, and thus likewise be prohibited by section 209(3)(b). Further, if a consent authority were minded to reject an application for development consent on the ground that it thought it undesirable that the consequences that are an intrinsic part of gambling using such machines would occur in the locality in which it was proposed to have the machines installed, that would likewise be a rejection for a reason that was prohibited by section 209(3)(b). 86 While the G M Act shows a legislative policy that the approval of the Board is necessary before gaming machines can be installed in any hotel or registered club, it cannot be said that there is a legislative policy shown by the legislation that a social impact assessment will be required on absolutely every occasion when an additional gaming machine is installed. The Act is silent about when or how the Board allocates an "SIA threshold" to a hotel or registered club, or indeed about whether it must allocate an "SIA threshold" to a hotel or registered club at all. Consistently with section 32(1), the social impact assessment provisions of the G M Act do not apply at all in those circumstances in which the installation of an additional gaming machine will not increase the SIA threshold of the hotel or registered club. 87 Even in those circumstances where the G M Act requires a social impact assessment to be provided to the Board, the legislation provides very little guidance about what sort of social impact assessment should be made, or in what circumstances. Section 35 leaves virtually all matters of importance concerning a social impact assessment to be determined by the Regulations. Even the provision in section 34(2) about when a class 1 social impact assessment is required to be provided is subject to the possibility that the Regulations might make some different provision on that topic. The requirements of section 37(3)(a)-(c), that all social impact assessments must meet before they can satisfy the Board, go nowhere near dealing with all of the possible consequences that there might be of gaming machines being operated in a hotel or registered club. 88 Even in relation to the requirement of section 37(3)(d) (which has itself a scope of operation that is not at all clearly defined by the legislation, because of the way that the circumstances in which a class 2 social impact assessment is required are left to be decided by the Regulations) the "overall economic and social impact of granting the application" requires only that the Board form a view about the net balance of economic and social consequences of granting the application. I say this because the possible answers that the Board could come up with to the question it is required by section 37(3)(d) to consider are only: "satisfied it will not be detrimental to the local community", "satisfied it will be detrimental to the local community", and "insufficiently well informed or uncertain, and for that reason not satisfied that the application will not be detrimental to the local community". The process required by section 37(3)(d) does not call for a consideration and individual evaluation of particular benefits, or detrimental effects, of an economic and social type. Further, the process of evaluation under section 37(3)(d) leaves out of account any consequences of the installation and operation of the gaming machines that could not be descried as an "economic or social impact". 89 In this way, the assessment of the consequences of a proposal to install gaming machines in a hotel or registered club is less extensive than the assessment that is called for under the EPA Act and Regulations. In contrast, the full range of environmental impacts must be stated, and considered, to comply with clause 2(4) EPA Regulation. In further contrast, the matters required to be considered by the consent authority under section 79C(1) EPA Act, and in particular paragraphs (b), (c), (d) and (e) cover the full range of possible consequences of carrying out the development. 90 For these reasons, I do not see in the G M Act a legislative policy that assessment of all consequences of installation keeping and operation of gaming machines in hotels and registered clubs is the exclusive province of the Board. 91 A consequence of the primary purpose test is that when gaming machines are installed in a hotel they will only be an incidental aspect of the operation of the hotel. While the prospect of a hotelier making a profit from the gaming machines themselves being played is, in the manner I have earlier outlined, part of the G M Act's contemplation, the primary purpose test means that the operation of the machines will always take place in the context of the ongoing primary purpose of the hotel. It well may happen that a hotelier will calculate that the presence of gaming machines will produce benefits in the non-gaming part of the hotel operation, by attracting people to the hotel, encouraging them to stay, and, while there, being a source of potential profit in the non-gaming part of the business through the sale of drink and perhaps food. However, there may well be different methods of running a hotel that did not involve gaming but could similarly attract people, cause them to stay, and thus be a potential source of profit to the non-gaming part of the hotel business - cultivating a reputation for the hotel as a place frequented by the type of person who other potential patrons would want to be with, provision of music, topless waitresses, jelly wrestling, or whatever else might appeal to the particular market segment the hotelier is aiming to attract. 92 If a consent authority wishes to refuse a development consent on a ground the substance of which is an aspect of the operation of the business that might possibly be produced or contributed to by the presence of gaming machines, but might also have been produced by some alternative mode of conducting the hotel, that is not refusing the development consent for a reason that relates to the installation, keeping or operation of approved gaming machines, within the meaning of section 209(3)(b). The presence of people on the premises, and their staying there, can give rise to consequences that fall to be considered by a consent authority regardless of the reason why those people are there. Such consequences could be ones concerning parking, adequacy of garbage removal or toilet facilities, adequacy of public transport access, safety, or noise generation. If the reason that a consent authority has for wanting to reject a development application is that there is inadequate provision for parking, or inadequate provision for noise control, its reason is the inadequacy of the parking, or the inadequacy of the noise control. When those are situations that could arise through the presence of gaming machines, or could arise in other ways, the reason is not one that relates to the installation, keeping or operation of approved gaming machines, within the meaning of section 209(3)(b).

Social Impact Assessment Under the Gaming Machines Regulation 2002 93 Mr Reynolds also drew our attention to the detailed provision that is made concerning social impact assessments under the Gaming Machines Regulation 2002 ("G M Regulation"). These include: " 33 Classes of social impact assessment (1) For the purposes of section 34 (2) (a) of the Act: (a) the prescribed period is 10 years, and (b) the prescribed number of approved gaming machines in relation to that 10-year period is 11. (1A) The 10-year period referred to in subclause (1) commences, in the case of any particular hotel or premises of a registered club, on the date on which the first class 1 social impact assessment provided in relation to that hotel or those premises is approved (regardless of whether that date is before or after the commencement of this subclause). (2) A class 1 social impact assessment is required to be provided if: (a) the application for authorisation to keep approved gaming machines is made in connection with: (i) the removal of a hotelier's licence to other premises situated within 1 kilometre of the previous premises, or (ii) the removal of a registered club to other premises situated within 1 kilometre of the previous premises, and the number of approved gaming machines that are proposed to be kept in the other premises is no more than the number kept in the previous premises, or (b) the application is made in connection with the transfer of poker machines entitlements from another hotel, or from other premises of a registered club, and the other hotel is, or the other premises are, situated within 1 kilometre of the hotel or club premises to which the application relates. (2A) Subclause (2): (a) applies instead of section 34 (2) (b) of the Act, and (b) is subject to subclause (4). (2B) If: (a) a hotelier's licence is cancelled under section 56C of the Liquor Act 1982 but is subsequently reinstated under that section, and (b) the hotelier applies under Part 5 of the Act for authorisation to keep a number of approved gaming machines that is no more than the SIA threshold for the hotel immediately before the licence was cancelled, the social impact assessment that is required to be provided in connection with the application is to be a class 1 social impact assessment. (3) Except as provided by clauses 40A (3) and 40B, a class 2 social impact assessment is required in connection with any other application to which Division 1 of Part 4 of the Act applies. (4) Without limiting subclause (3), a class 2 social impact assessment is required in connection with such an application if: (a) one or more social impact assessments have, in the period of 10 years preceding the date of the application, been approved in respect of the hotel or registered club concerned, and (b) were the application to be granted and added to the number of additional gaming machines approved in that 10-year period - the total number of additional gaming machines so approved would be more than 10. (5) The 10-year period referred to in subclause (4) commences, in the case of any particular hotel or premises of a registered club, on the date on which the first social impact assessment provided in relation to that hotel or those premises is approved (regardless of whether that date is before or after the commencement of this subclause)." 34 Class 1 social impact assessment (1) The following information must be included in a class 1 social impact assessment: (a) details of the measures that the hotelier or registered club has taken, or proposes to take, to ensure that gambling activities in the hotel or club will be conducted in a responsible manner, (b) the internal floor space (in square metres) of the hotel or the premises of the club, (c) in the case of an application by a new hotel or new club - a list of the schools, places of public worship and hospitals that may reasonably be considered to be in the immediate vicinity of the hotel or club premises, including a map showing the location of the hotel or club premises and the location of those schools, places of public worship and hospitals. … 35 Class 2 social impact assessment (1) The following information must be included in a class 2 social impact assessment: (a) the information referred to in clause 34 (1), (b) the total number of gaming machines that are authorised to be kept for the time being in all hotels and registered clubs in the local government area in which the hotel or registered club is situated, (c) the total number of gaming machines resulting from the Board's approval of social impact assessments in respect of hotels and clubs in that area but which are not yet authorised to be kept, (d) the total gaming machine expenditure for all hotels and registered clubs in that area, (e) an estimate of median individual wage and salary income for that area, (f) the unemployment level for that area, (g) an estimate of the resident population in that area of persons aged 18 years or over. … (3) A class 2 social impact assessment must also include the following: (a) a map of the local government area in which the hotel or club is situated indicating the location of the hotel or club, (b) an identification of the negative social and economic impact on the local community that would or might result from the granting of the application to which the social impact assessment relates, (c) an identification of the social and economic benefit to the local community that would or might result from the granting of the application, (d) a statement, supported by data provided in the social impact assessment, addressing whether there is likely to be an overall net social and economic benefit to the local community if the application were granted, (e) a statement outlining and identifying the source and date of all data and information provided in the social impact assessment, (f) a statement, supported by data provided in the social impact assessment, indicating: (i) the number of persons (aged 18 years or over) per gaming machine that would be available in the local community if the application were granted, and (ii) the level of expenditure per person (aged 18 years or over) on gaming machines in the local community over a period of time specified by the Board, (g) if it is impracticable to provide the information referred to in paragraph (f) - a statement, supported by data provided in the social impact assessment, indicating: (i) the number of persons (aged 18 years or over) per gaming machine that would be available, if the application were granted, in the local government area in which the venue is situated, and (ii) the level of expenditure per person (aged 18 years or over) on gaming machines in the local government area in which the venue is situated over a period of time specified by the Board, (h) a comparison of the gaming machine density and level of gaming machine expenditure (as referred to in paragraph (f) or (g)) with other relevant areas, as specified by the Board, and with the State as a whole. (4) For the purposes of subclause (3) and section 37 (3) (d) of the Act, the local community includes, in addition to the people in the area or group from which the persons utilising the services and facilities of the hotel or registered club concerned are likely to be drawn, those people in the area or who belong to a group: (a) that is to derive, or that the Board considers is likely to derive, social or economic benefit if the application to which the social impact assessment relates is granted, or (b) that is to suffer, or that the Board considers is likely to suffer, social or economic detriment if the application is granted. … (6) In determining a class 2 social impact assessment in accordance with section 37 (3) (d) of the Act, the Board is to take into consideration: (a) the information provided under this clause, and (a1) in the case of a class 2 social impact assessment provided in accordance with clause 138A (2) - the fact that the hotel is, or the premises of the club are, part of a retail shopping centre, and (b) any relevant information provided by the Department of Gaming and Racing concerning the level of utilisation of gambling-related counselling services in the local government area in which the hotel or registered club is situated, and (c) such other matters as the Board thinks relevant. 36 Submissions in relation to class 2 social impact assessment (1) If a class 2 social impact assessment is provided to the Board in connection with an application as referred to in Division 1 of Part 4 of the Act, the applicant must provide a copy of the social impact assessment to each of the following: (a) the local council for the area in which the hotel or registered club is situated, (b) the Council of Social Service of New South Wales, (c) the Department of Community Services, (d) the area health service in respect of which the hotel or club is situated, (e) the Director, (f) any body that is located in the local government area in which the hotel or registered club is situated and that receives funding from the Responsible Gambling Fund under the Casino Control Act 1992 for the specific purpose of providing gambling-related counselling or treatment services. (2) A person or body that is provided with a copy of the social impact assessment is to be given an opportunity to make submissions to the Board on the social impact assessment within 30 days of receiving the copy of the assessment or such later time as the Board may approve. (3) The Board may also invite submissions on the social impact assessment from such other persons or bodies as it thinks relevant. (4) In determining the social impact assessment, the Board is to take into account any submissions made to it under this clause." 94 The G M Act was assented to on 19 December 2001 and most of its provisions (including, relevantly, section 209) commenced on 2 April 2002. The G M Regulation was published on 28 March 2002 (New South Wales Government Gazette No 67 of 28 March 2002, p 1847) and commenced (clause 2) on 2 April 2002. While the commencement date of the Act and Regulations was the same, the Regulations were not part of a package presented to Parliament as a whole, and indeed were not published until after Royal assent had been given to the Act. In those circumstances, the preferable view seems to me to be that the Regulations cannot be looked at as an aid to construction of section 209 (Pearce and Geddes, Statutory Interpretation in Australia, 6th ed, (2006) LexisNexis Butterworths, at para [3.41], pp 104-5 and cases there cited.) It is for that reason that I have considered the Regulation in any detail only after construing section 209. 95 However, even if I were wrong in that view, the Regulations would not assist the Appellant's case. The Regulations show that the sort of matters that are required to be taken into account by the Board in deciding whether to approve a social impact assessment focus, as one would expect, on the effects of the activity of gambling itself. While Mr Reynolds drew our attention to clause 35(6)(c) of the Regulations, entitling the Board to take into consideration "such other matters as the Board thinks relevant", it could not be said that such a power in the Board was indicative of a Parliamentary intention that all consequences whatsoever, including indirect consequences of the installation, keeping or operation of approved gaming machines in a hotel or a registered club were to be taken into consideration by the Board, and denied in their totality to a consent authority considering an application for development consent for a hotel or registered club.

Assistance From Extrinsic Materials? 96 An argument was presented that certain extrinsic materials assisted in construction of section 209(3). The argument fails. So as not to distract from the main flow of the reasoning in this judgment, I deal with it in a Schedule at the end of these reasons.

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.

Orders 125 I propose that the appeal be dismissed with costs. Schedule - Assistance from Extrinsic Material? 126 Mr Reynolds placed some reliance (though not, it should in fairness be said, strong reliance) on some "Parliamentary materials" as being inconsistent with the judge's construction of the section. An unusual feature of the "Parliamentary materials" relied upon is that they post-date the enactment of section 209. Section 209, in the form it had when the judge below made her decision and that I have quoted at para [32] above, was contained in the G M Act when it was first enacted. (It has since been amended in a respect not relevant to this appeal.) 127 The Second Reading Speech for the Bill that was ultimately enacted (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 30 November 2001, at 19275) said nothing about section 209 or the topic with which section 209 deals. 128 The "Parliamentary materials" that Mr Reynolds relied upon are three in number. The first of them is a statement by the relevant Minister on 7 May 2003 in the course of his Second Reading Speech when introducing legislation to amend the G M Act, namely the Gaming Machines Amendment (Shutdown Periods) Bill 2003 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 May 2003 at 382). 129 When the G M Act had been first enacted, one of the gambling harm minimisation measures contained in Part 4 of the Act was provision, in sections 38-42, for gaming machines to be not operated for a period of time each day. Sections 38 and 39 imposed a general rule that the shutdown period would be three hours between 6 am and 9 am on each day of the week for the period ending 30 April 2003, and thereafter six hours, between 4 am and 10 am, on each day of the week. Section 40 enabled the Board to approve a shorter shutdown period on or after 1 May 2003 for a particular hotel or registered club, subject to certain conditions. One of those conditions, contained in section 40(3)(a) was that the Board's approval to the shorter shutdown period could only be given if the Board was satisfied: "that the local consent authority for the area in which the hotel or club is situated has agreed to the hotel or club operating approved gaming machines between 4 am and 6 am, and between 9 am and 10 am on the days on which the 3-hour shutdown period is to operate ..." 130 There was also provision, in section 41 as originally enacted, for the Board to approve a three-hour shutdown period in the time up to 30 April 2003 that was different to the prescribed 6 am to 9 am, or a six-hour shutdown period in the time thereafter that was different to the prescribed 4 am to 10 am, for particular hotels that were early openers. A condition of the Board granting such approval, under section 41(5)(a) was "that the local consent authority for the area in which the hotel or club is situated has agreed to the hotel or club operating approved gaming machines during the approved period concerned." 131 The original section 41(5) had been replaced by the Gaming Machines Amendment Act 2002 with a provision that said nothing about the consent of the local authority being required. 132 One of the amendments made by the Gaming Machines Amendment (Shutdown Periods) Act 2003 was to omit section 40(3)(a) and replace it by "the Board has taken into consideration such guidelines as may be approved by the Minister for the purposes of this section, and". 133 Under the G M Act as originally enacted, any condition of a development consent that limited or in any way defined the hours of operation of approved gaming machines in a hotel or registered club could have run foul of section 209(3)(a). Similarly, any refusal of a development consent for a reason that related to the hours of operation of approved gaming machines in the hotel or registered club could have run foul of section 209(3)(b). The evident policy of the original section 40(3)(a) and 41(5)(a) was that, notwithstanding the general policy contained in section 209, the local consent authority should be able to have its view prevail about the limited topics concerning operating hours of authorised gaming machines in particular hotels or registered clubs, to which section 40(3)(a) and section 41(5)(a) related. 134 It was in the context of the removal of the original section 40(3)(a) that the Minister said (at 383), of the old section 40(3): "The requirement to obtain local consent authority - council - agreement is in direct contrast to section 209 of the Gaming Machines Act , which essentially removes any power from local consent authorities to regulate or restrict gaming machine operations through development consents or other planning powers. It is clear from recent reports that many local consent authorities are having some difficulty with the new requirement to provide agreement to a shorter shut down period. Local consent authorities are not the most appropriate level of government to make important decisions about gaming operations. It is not appropriate to split the control and regulation of gaming operations between local and State governments. This Bill will correct this anomaly by removing the requirement for local consent authority agreement to a three-hour shutdown on Saturdays, Sundays and public holidays." (emphasis added) 135 The second item of "Parliamentary materials" relied upon also occurred in the debate concerning the Gaming Machines Amendment (Shutdown Periods) Bill 2003. Debate on that Bill had been adjourned on 7 May 2003 after the Minister had finished his Second Reading Speech. When the debate resumed, on 27 May 2003, one contribution to the debate was made by Mr Stewart, the Member for Bankstown (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 May 2003 at 1199). Mr Stewart was not the relevant Minister. In the course of his speech he said (at 1200): "… some local councils have indicated their unwillingness, or lack of expertise, to determine gaming machine shutdown exemptions. The requirement to gain local authority agreement is in contrast with section 209 of the Gaming Machines Act , which removes any power from local consent authorities to regulate or restrict gaming machine operations through development consents or other planning powers. Councils … are hardly the place to deal with the determination of exemption applications. Gambling addiction issues are complex. That is why this Government, along with the industry, wants to tackle these concerns proactively and determinedly but in a way that delivers a win for community need and a win for the industry, which is a very large and responsible employer. Currently, with no guidelines in place, there is too much risk of inconsistent decision-making by councils across New South Wales on this most important social issue. In fact, decision making has become fairly ad hoc: some councils have a grasp of the issues, some do not. An independent process that can draw on experts as necessary to determine any exemption application is the appropriate way forward." (emphasis added) 136 The third item of "Parliamentary materials" on which Mr Reynolds relies arose in the course of the Second Reading Speech in the Legislative Council for the Gaming Machines Bill 2001, as originally introduced. The Bill was introduced into the Legislative Council on 6 December 2001 by the relevant Parliamentary Secretary obtaining leave to have a printed Second Reading Speech incorporated in Hansard (New South Wales Legislative Council, Parliamentary Debates (Hansard), 6 December 2001, at 19705). Unsurprisingly, its substance closely follows that of the Second Reading Speech that had earlier been given in the Legislative Assembly. It says nothing about section 209 or the topic with which section 209 deals. 137 The portion on which Mr Reynolds relies occurs in the speech of the Honourable Dr Arthur Chesterfield-Evans. He was a representative of the Australian Democrats in the Legislative Council. In the course of a wide-ranging speech he said (at 19724): "Section 209 is a blanket exclusion of local government planning powers , and that is a bit rough, given the social impact of misapplication of resources and consequent misery." (emphasis added) 138 In each of the above quotations from the "Parliamentary materials" the italicised portions are those that were contained in Mr Reynolds' written submissions. 139 The statutory justification for recourse to extrinsic material in interpreting State legislation is found in section 34 Interpretation Act 1987 which provides: "(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes: (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer, (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made, (c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made, (d) any treaty or other international agreement that is referred to in the Act, (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage." 140 In my view, all of the "Parliamentary materials" relied on are incapable of assisting in the ascertainment of the meaning of the provision of legislation that is in question. 141 In Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380, consideration was given to the circumstances in which statements made in Parliament could possibly elucidate the meaning of legislation that Parliament has enacted. 142 Mason P (with whom Spigelman CJ, Beazley and Giles JJA agreed on this point) referred, at 389 [159] to authority to the effect that legislation must be construed by reference to what Parliament has said in the legislation, that the task of courts is to give effect to the intention of Parliament "only as it is expressed in legislation" (at 399 [160] per Mason P), and that the task of courts in construing legislation is to ascertain not what Parliament meant but the true meaning of what Parliament said through its enactment. Mason P then said, at 399 [162]: "Statements in Parliament, even by ministers during the Second Reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another." 143 His Honour said, at 401 [172]: "However broadly the notion of 'purpose' or even 'intent' is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appears to be giving to it." 144 Similarly, Spigelman CJ said, at 384 [16] (omitting his Honour's extensive citation of authority): "The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. … The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say." 145 Spigelman CJ had earlier said, at 384 [12]: "Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, 'capable of assisting in the ascertainment of the meaning of the provisions' within s 34(1) of the Interpretation Act 1987 . I only refrain from using the word 'never' to allow for a truly exceptional case, which I am not at present able to envisage." 146 In Amaca Pty Ltd v Novek [2009] NSWCA 50; [2009] Aust Torts Reports ¶82-001 (62,797) at [78], I said, with the agreement of Giles and Tobias JJA: "Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material 'is capable of assisting in the ascertainment of the meaning of the provision' . The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision involved in the case being decided and the particular item of extrinsic evidence involved in the case being decided. Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister's understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision."

See also Trust Company Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255; (2007) 13 BPR 25,019; 70 ATR 505 at [83]; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at 538 [22], 555-6 [82]. 147 The 2003 speeches relied upon were made after the legislation in question had been enacted. While it is conceivable that sometimes extrinsic materials arising later than the legislation whose construction is disputed could provide a legitimate aid to interpretation - such as if a speech in Parliament credibly identified the mischief with which earlier legislation had been seeking to deal - the first of the 2003 statements relied upon do not, it seems to me, do anything more than purport to state the Minister's understanding of how section 209 works. Further, that statement of understanding was given for a very narrow and particular purpose, of explaining the amendment made by the 2003 legislation, and did not purport to be a complete account of the rationale or policy of section 209. I see no way in which it is even arguable that it casts light on the meaning of section 209(3), enacted 18 months or so earlier. 148 The case for the second of the 2003 Parliamentary statements casting light on the meaning of section 209(3) is, if anything, even more difficult. It suffers from all the deficiencies, as an aid to interpretation of section 209(3), as does the Minister's 2003 statement. Worse, the speaker was just one member of one chamber of the legislature, and not the Minister who was propounding the Bill. 149 I also find it quite impossible to derive any assistance on the meaning of section 209 from Dr Chesterfield-Evans' statement in 2001, particularly bearing in mind that he was a member of a minority party in the Upper House. How a statement, of that type, made by such a person, in those circumstances, could cast light on the meaning of legislation passed by both Houses of Parliament is quite beyond me. 150 The entire submission based upon these "Parliamentary materials" was not, in my view, even arguable. However, when it has been put forward, it has been necessary to deal with it. 151 YOUNG JA: I have read with great interest the draft reasons of Campbell JA. Because of the great detail in which his Honour has set out the material facts and applicable legislation, it is not necessary for me to do so. 152 I agree with his Honour's conclusion that the appeal must be dismissed with costs. 153 I agree with [38]-[52], [64], [91] - [92] and [123]-[125] of his Honour's reasons. 154 I consider I do not need to say anything about the remainder of the reasons with two exceptions. 155 First, with respect, I would prefer to be more precise about the statement in the third sentence in [99] that the L & E Court is restricted by s 209(3) (b) of the Gaming Machines Act 2001 in exactly the same way as the consent authority would be. 156 The Court is not a consent authority. Section 39(2) of the Land and Environment Court Act 1979 confers all the functions of a consent authority on the Court, but that does not make it a consent authority directly subject to the commands of s 209(3)(b) of the Gaming Machines Act. However, almost by way of analogy, the Court looks to the fact that the Council from whom the appeal was brought was subject to that section so that the Court should deal with the appeal as if it were the council operating subject to s 209(3)(b). 157 The second matter is that the appellant submitted that each of the reasons given by the primary judge for refusing the application were reasons which relate to the installation etc of gaming machines and thus should not have been considered. 158 Appellant's counsel invited us to give some guidance to councils and persons interested in or affected by land development as to whether the words "reasons that relate to" the installation etc of gaming machines included any connection between the reason and the installation etc of gaming machines no matter how tenuous or whether the statutory prohibition only applied if there was a reasonably direct relation. 159 The words "in relation to" are often said to be words of wide operation and to include whatever directly or indirectly affects the subject matter; see eg Fountain v Alexander [1982] HCA 16; 150 CLR 615 at 629; O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; 169 CLR 356; PMT Partners Pty Ltd v Australian National Parks and Wildlife Service [1995] HCA 36; 184 CLR 301 at 313 and 331; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd [2005] NSWCA 409; 64 NSWLR 462 at 481. 160 However as Campbell J (as his Honour then was) rightly said in Wonall Pty Ltd v Clarence Property Corporation Ltd [2003] NSWSC 497; 58 NSWLR 23 at 44, whilst the words "in respect of" may have a wide meaning, it is not necessary that they have it. 161 I have often found guidance in what Lord Denning said in a dissenting judgment in R v Sheffield Crown Court; Ex parte Brownlow [1980] 1 QB 530 at 540 where his Lordship noted that the words "relating to" could denote a direct or close relationship on the one hand or a more indirect relationship on the other. The context of the statute in the case before him showed a close relationship only was intended. 162 In the present case, Jagot J said at [76] that it was not to be wondered that one activity, such as a hotel, might require more than one approval; see eg Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402. Indeed this proposition is verified by the mere fact that the appellant sought development consent. 163 Basically, the primary Judge ruled:

(a) On the purposive construction of the relevant legislation "relating to" in s 209 of the Gaming Machines Act was not to be given a wide interpretation;

(b) The provisions of the Liquor Act 1982, particularly ss 40 and 60 reinforced that view ([75]);

(c) It was inappropriate to argue from ministerial speeches in Parliament on later legislation as the appellant had done at first instance. In this regard her Honour followed what Giles JA said in Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 at [83]. 164 The primary judge pointed out that s 79C of the EP&A Act was a central provision imposing a duty of consideration on consent authorities and was not to be lightly put aside: [75]. 165 I agree with the rulings that the primary judge made. 166 Appellant's counsel found themselves unable to formulate an exact formula to answer the question, "What degree of relationship does s 209(3)(b) of the Gaming Machines Act cover?" That is understandable because the answer is really a matter of common sense application of the facts in any particular situation. A very tenuous connection was rightly rejected by the primary judge at [84]-[87]. However, it is unwise to endeavour to make a categorical statement as to exactly where one draws the line on the degree of connection between the reason for refusal and the installation etc of gaming machines. **********

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