Waugh Hotel Management v Marrickville Council

Consumo Pty Ltd v Fairfield City Council (2003) 126 LGERA 103; Kulin Holdings Pty Limited v Penrith City Council (1999) 103 LGERA 402; CASES CITED: Oceanic Life Limited v Chief Commissioner of Stamp Duties (1999) 168 ALR 211; Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500; Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255; Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276;

APPLICANT Mr P McEwen SC with Ms V Culkoff SOLICITORS JPR Legal LEGAL REPRESENTATIVES: RESPONDENT Mr M L Wright SOLICITORS Marrickville Council

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: A. Introduction 1 In December 2006 the applicant, Waugh Hotel Management (presumably a corporation), applied for development consent to make alterations and additions to and to use premises at 252 - 254 Illawarra Road, Marrickville (the site) for hotel purposes. The applicant appealed against Marrickville Council's deemed refusal of the application. The Council subsequently refused the application in July 2007. In response to the appeal, the Council maintained that the application should be refused consent having regard to the inadequate provision of parking and unacceptable social impacts of the development in the locality.

2 Section 79C(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) regulates the assessment of development applications. The parking and social impacts of "the development the subject of the development application" are relevant considerations under s 79C(1)(b), (c) and (e) of the EPA Act. Various issues raised by the applicant and the Council, however, complicate assessment of this application.

3 First, the applicant submitted (in various forms) that the provisions of the Liquor Act 1982 and Gaming Machines Act 2001 regulate all impacts of hotels and gaming identified in those statutes and their associated regulations to the exclusion of the regime established by s 79C of the EPA Act. Accordingly, social and parking impacts of the development were irrelevant to the determination of the development application given the social impact assessment provisions in the Liquor Act and Gaming Machines Act and the reference to parking in the Liquor Regulation 1996 (cl 18E(4)(a)). Alternatively, and at least, all social impacts of the development were irrelevant. The Council rejected that submission and maintained that the statutes each had their own fields of operation within which they had full force and effect.

4 Secondly, the Council identified as part of the social impacts of the development the effects of the applicant's proposal to transfer the liquor licence and gaming entitlements from the existing Henson Park Hotel to the site. The applicant submitted that the transfer of the licence and gaming entitlements was not a part of the "the development the subject of the development application" within the meaning of s 79C(1) of the EPA Act. Accordingly, the effects of any such transfer were irrelevant to assessment of the development application.

5 Dr Judith Stubbs and Ms Rose Saltman gave evidence about the social impacts of the development. Mr Christopher Hallam, a parties' single expert, gave evidence about the parking impacts. Residents living near the development and who frequented the Henson Park Hotel also gave evidence during the view (which included the site, a large part of the Marrickville business district, other hotels in that area, as well as the Henson Park Hotel).

6 Commissioner Hoffman assisted in the hearing of this appeal.

7 The statement of environmental effects accompanying the development application described the site as having an area of 942 sqm with a two level commercial building and rooftop parking for 24 cars. The hotel would occupy the ground floor area of one of the three existing tenancies (a shoe shop) with upgraded access arrangements. The site is within the Marrickville central shopping area and is zoned General Business 3(A) in which hotels are permissible with consent. The zoning map shows that the residential area to the rear is zoned 2(B) although the 3(A) zone extends part way along Petersham Road, including the site of at least one residential building.

8 The ground floor area to be fitted out as a hotel occupies 550 sqm with a total public area of about 367 sqm (a bar area of 185 sqm, a gaming area of 90 sqm, a TAB of 50 sqm and an outdoor area to the street frontage of 42 sqm). Of the rooftop car spaces six would be allocated to the hotel development (agreed in the hearing to be staff parking only). The hotel was proposed to operate from 5.00pm on all days except Sundays (with a 10.00am opening) and to midnight on Mondays and Tuesdays, to 1.30am on Wednesdays and Thursdays, and to 2.00am on Fridays and Saturdays. The applicant 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 Fridays and Saturdays. Management operations would be conducted in accordance with a plan of management submitted as part of the application.

9 Dr Stubbs' holds professional qualifications and has extensive academic and other involvement in social and strategic planning. She is a member of the NSW Government's Social Impact Assessment Review Panel providing peer reviews of social impact assessments under the Gaming Machines Act and Liquor Act. Dr Stubbs has developed social and economic impact assessment methodologies for state and local government. She is an Adjunct Professor, Australian Housing and Research Institute, University of New South Wales and holds many other positions connected with her expertise and experience in urban renewal, community planning, housing policy, and social and economic impacts (including gaming impacts).

10 Dr Stubbs' principal report included a detailed literature review of research into alcohol and gaming impacts. Dr Stubbs explained that substantial research demonstrates the following: (1) There is a relationship between the density of licensed premises in an area, the socio-economic characteristics of the population inhabiting that area and a variety of social impacts (including violent and other types of crime, accidents and injuries, health impacts, increased anti-social behaviour and other amenity impacts).

(2) There is a strong positive relationship between the number of electronic gaming machines per adult in an area and an increase in the amount spent on gaming per adult. Further, a range of socio-economic characteristics is associated with higher per capita expenditure on gaming machines and an increased likelihood that regular users displaying those characteristics will become problem gamblers. These "at risk" populations more likely to become problem gamblers and spend excessively on gambling are also typically those who can least afford to bear the social and economic costs of gambling. Hence, the most important step in managing the adverse social and economic impacts associated with gaming machines involves identifying "at risk" populations and preventing geographic concentrations of gaming machines in those areas.

11 Dr Stubbs observed that there are five premises serving or retailing alcohol within 300 metres of the site (Marrickville Tavern, The Royal Exchange Hotel, Marrickville RSL, Liquorland and Pub Mart).

12 Dr Stubbs described the site as within walking distance of a number of significantly disadvantaged areas and of the shopping precinct (which is a major attractor for local residents). The site will be next to "Banana Joe's", a major retailer of staple goods in the locality, equivalent to a Coles or Woolworths. Banana Joe's has the largest floor space of retail premises within 0.8 - 1km of the site and caters for the niche market of Asian vegetables, being a significant trip generator.

13 Dr Stubbs carried out a detailed analysis of the social and economic characteristics of the area surrounding the site by reference to the Australian Bureau of Statistics (ABS) Socio-Economic Indexes for Areas 2001 (known as SEIFA 2001). SEIFA 2001 provides 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. SEIFA 2001 provides information and rankings for small areas (such as a collection district) to large areas (such as a statistical division or state). This information discloses that the site is 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.

14 Dr Stubbs identified the site as within the heart of a high exposure and highly disadvantaged area, which already has a significant clustering of such venues within walking distance. She concluded that the immediate locality exhibited socio-economic characteristics indicating a high vulnerability to risks associated with alcohol and gaming machines (that is, at risk of alcohol related harm, problem gambling and suffering disproportionately from the effects of both). This includes people from particular cultural groups, the unemployed, low income households, low skilled or under qualified residents, divorced or separated persons, and indigenous persons.

15 Although the development would have a neutral effect on the concentration of premises serving alcohol within a wider area (measured within either a 1km radius or at local government area level) Dr Stubbs concluded that 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.

16 With respect to gaming risks, Dr Stubbs noted that 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. Dr Stubbs calculated this additional expenditure by reference to the applicant's plans as filed. These plans were amended late in the hearing to reduce the number of gaming machines. Nevertheless, it is clear that the reduction in machines from 29 to 19 would not materially affect the substance of Dr Stubbs' opinions.

17 Ms Saltman is a town planner specialising in social planning and housing. Ms Saltman has prepared social impact assessments for the various development proposals. She has also prepared social impact assessments specifically for gaming legislation.

18 Ms Saltman's principal report noted that the Council had not adopted any specific controls for the assessment of social impacts. In Ms Saltman's view Dr Stubbs' report drew heavily, if not exclusively, on the requirements applying to category B and class 2 social impact assessments under the Liquor Act and Gaming Machines Act. Ms Saltman considered this methodology inappropriate because of the provisions of the Gaming Machines Act (particularly s 209) and the Liquor Act (dealt with in section C below). The consequence was Ms Saltman considered that large parts of Dr Stubbs' report should be disregarded. Ms Saltman said s 209 excluded consideration of social impacts associated with gaming machines under the EPA Act. Further, the social impact assessment required under the Liquor Act and Gaming Machines Act would assume the socio-demographic characteristics of the local community around the site to be the same as those around the Henson Park Hotel because the proposal was for a transfer of the licence and gaming machine entitlements to a site within 1km of the Henson Park Hotel. Accordingly, Ms Saltman concluded that the "effects of alcohol and gaming related harm are not relevant matters for consideration by the Court".

19 Ms Saltman considered that, in any event: (1) The studies discussed in the literature review carried out by Dr Stubbs provided insufficient grounds to justify impacts in relation to crime, nuisance and annoyance in the locality of the site by reason of the development. Existing problems are likely to have resulted from inadequate management control of patron behaviour and lack of activity and poor surveillance in the vicinity of the site. The plan of management submitted with the application contains procedures for management of the hotel including patron behaviour. Further, the police had recommended regular security patrols of the area north to Marrickville Road, south to Tuohy Lane and along the pedestrian pathway adjacent to the site at night. Ms Saltman supported these recommendations as reasonable and considered they would be a disincentive to anti-social behaviour and provide benefits to other local businesses.

(2) Dr Stubb's conclusions about gaming impacts should be treated with caution, as there was insufficient information to assess player behaviour, amounts wagered and distinctions between recreational and problem gamblers.

(3) Proximity to residential development was an insufficient reason to refuse consent. The Henson Park Hotel was surrounded on all sides by residential development and managed to co-exist appropriately. In this sense the proposal involved a social benefit by moving the liquor licence and gaming machine entitlements to a location with reduced proximity to housing. The plan of management took all reasonable measures to avoid adverse impacts on the surrounding area and would be reinforced by the Council's proposed conditions of consent. (4) Dr Stubbs had overstated the clustering effect as The Royal Exchange and the Marrickville Tavern Hotel are about 200m from the site and the Anzac Memorial Club about 500m. In Ms Saltman's views the limited activities in the vicinity of the site after dark and poor surveillance were likely to be contributing factors to the existing problems Dr Stubbs identified. The development would mitigate those circumstances. (5) Dr Stubbs' arguments that the development would lead to significant adverse impacts on the locality were not persuasive as: - (i) Dr Stubbs had not proved the clustering effects, (ii) there is scant evidence of any adverse impacts from other licensed premises in the locality, (iii) the development of the site would reduce the potential for anti-social behaviour due to increased activity and surveillance at night, and (iv) the potential for impacts would be ameliorated by the plan of management and conditions of consent. If accepted, Dr Stubbs' arguments could lead to communities being denied access to certain land uses which, for the majority, are likely to have little or no social impact or where impacts may be effectively mitigated.

20 Dr Stubbs and Ms Saltman prepared a joint report. Insofar as this document addressed additional issues, Ms Saltman considered that the potential loss of the Henson Park Hotel was irrelevant to the assessment of the application. Dr Stubbs noted that the widespread opposition to the development was itself an aspect of the public interest.

21 In oral evidence Dr Stubbs agreed that a survey of local businesses in her principal report was not statistically reliable due to the small sample number. It is clear from the report that Dr Stubbs' opinions were not dependent on this survey. Ms Saltman mentioned the possibility that the data from SEIFA 2006 (not yet available) might show some differences from SEIFA 2001 but that was speculation. Otherwise the conclusions of Dr Stubbs and Ms Saltman remained as set out in their principal reports.

22 The parties appointed Mr Hallam, traffic and transport engineer, as the parties' single expert to address traffic and parking issues. In his first report Mr Hallam primarily assessed the statement of environmental effects lodged on the applicant's behalf and the report to the Council recommending the grant of consent to the application. The statement of environmental effects, prepared by John Coady Consulting Pty Ltd, included consideration of parking demand.

23 Mr Hallam noted that the site contains a retail shoe shop and café on the ground floor, offices on the first floor and a rooftop car park of 24 spaces. These spaces are not available to the public as they are controlled by security gate and suitable for staff parking only. The same position applies to the roof top parking associated with Banana Joe's next door. Mr Hallam also considered that it was not appropriate to include parking supply in Silver Street and Petersham Road in his assessment as these are residential streets, use of which would cause potential night time noise impacts. On this basis Mr Hallam calculated that there were 109 on street parking spaces available and an additional 38 spaces in the Council's Calvert Street car park (directly opposite the site). On street parking is at 90% capacity on Fridays and Saturdays until 5.00pm. The Calvert Street car park is effectively at capacity until 7.00pm on Friday and Saturday nights. In other words, the existing parking demand in the area is heavy until well into the evening.

24 If assessed under the Council's Development Control Plan No 19 - Parking Strategy (DCP 19) the existing shop generates a demand for 13 spaces. The proposed development requires 62 spaces if assessed under DCP 19. Use of the rooftop parking on site by people other than staff is impractical and hence the entire customer demand for parking would need to be met by the Calvert Street car park and in the streets. Mr Hallam observed that the statement of environmental effects proposed that the supply of parking was adequate as the peak demand for the hotel would be at night with the daytime demand not significantly different from that of a shop. However, Mr Hallam noted that the statement of environmental effects did not provide justification for the assessment of daytime patron accumulation based on survey material. Survey information requested by Mr Hallam and provided by the applicant involved hotels at Woollahra not Marrickville. Mr Hallam considered that the substantial departure from DCP 19 meant that the applicant should justify that its development would not have unacceptable parking impacts. Mr Hallam characterised the information in the statement of environmental effects about daytime patronage as the "weakest point in the analysis" in circumstances where there was very high demand at that time for parking in the vicinity of the site. Applicable Roads and Traffic Authority Guidelines recommend that estimates of patronage for hotels be based upon "similar existing development". Using the Woollahra survey information (which Mr Hallam evidently considered inadequate) Mr Hallam estimated daytime patronage well in excess of that in the statement of environmental effects (110 compared to 50 patrons).

25 In his first report Mr Hallam concluded that the development application was supported by inadequate information on patronage and parking demands of hotels in the inner west and Marrickville areas and thus failed to justify such a significant departure from DCP 19. He described the change of use from shop to hotel, at a site that already has inadequate parking, in an area where there is a high demand for parking during the day, as an inappropriate intensification of use.

26 In his second report Mr Hallam considered additional surveys carried out by John Coady Consulting Pty Ltd in response to Mr Hallam's concern about inadequate information. These surveys involved two local hotels, the Marrickville Tavern and The Royal Exchange. Mr Hallam described these surveys as useful but was concerned about the survey data on patron transport mode as the sample sizes were relatively low. Mr Hallam commissioned another survey of The Royal Exchange on a Friday between 2.00pm and 8.00pm. He selected The Royal Exchange as more comparable to the new development because it is a well-presented modern hotel whereas the Marrickville Tavern is a much older style of inner urban hotel. Mr Hallam then assessed the parking demand of the development having regard to the additional surveys and his own survey.

27 For the additional surveys, Mr Hallam calculated hourly patronage levels excluding the patrons in the bistro, overflow dining area and the bottle shop in The Royal Exchange. Adjusting for the proportional floor areas of the surveyed hotels compared to the proposed development, Mr Hallam estimated the likely patronage on an hourly basis. The additional surveys included interviews with patrons about transport modes. Mr Hallam allowed what he described as a discount of 11% on his projections to account for patrons who were parked in a private car park and making a trip for multiple purposes rather than merely to visit the development. He used these adjusted figures to estimate the likely additional parking demand for the development (assuming all staff parked in the six spaces in the rooftop car park to be allocated to the development).

28 Mr Hallam applied this same method of assessment to his own survey data. This data showed a higher proportion of patrons driving to the Royal Exchange before 5.00pm on the Friday than disclosed by the Coady surveys (some 28.9% compared to a weekday average of 17.4% in the additional surveys referred to above).

29 From these reviews Mr Hallam concluded that the parking demand from the hotel in the evenings after 7.00pm was not a concern as the vacant spaces in the Calvert Street car park exceeded the demand for all sets of survey results.

30 Mr Hallam's main concern was the parking demand in the daytime. At that time parking in Marrickville is at a premium. Up to and including 4.00pm on Saturdays the Calvert Street car park has zero vacant spaces, with only two vacant spaces at 6.00pm. On Fridays there are virtually no vacant spaces in this car park before 7.00pm. Mr Hallam had observed at least four drivers waiting in the aisles for a space in the Calvert Street car park in preference to finding a space on the streets (which generally had a parking utilisation exceeding 90%, making spaces hard to find). Mr Hallam concluded that the development was unacceptable on these grounds, subject to consideration of parking credits.

31 With respect to parking credits, the survey data showed that the DCP rates for the hotel were substantially too high. Mr Hallam observed that the rate for the retail use could also be too high but accepted it for the purposes of comparison (no other data, I note, being available on the parking demand associated with the current retail use). He calculated a peak parking demand of 23 spaces for the hotel based on the survey data compared to 13 spaces for the retail use based on DCP 19. In Mr Hallam's view, although the situation was not clear cut, on the available material, he considered it inappropriate to change the use of the site to a hotel in circumstances where the site already had inadequate parking and is in an area where there is a high demand for parking during the day.

32 In oral evidence Mr Hallam confirmed that his conclusions about parking demand were based on two critical factors - the number of patrons and the percentage of patrons who would drive to the site. He explained that part of his concern about the interviews carried out by John Coady Consulting Pty Ltd was that the co-operation of management was necessary for effective interviews but the manager of The Royal Exchange told Mr Hallam he was unaware of the Coady surveys. Mr Hallam knew how the surveys he caused to be carried out had been executed and was more confident in those results that showed a marked difference in the percentage of car drivers before 5.00pm.

33 Mr Hallam did not accept that the Coady surveys were more reliable just because they involved a larger sample size. He explained that his survey had been tailored to focus on the overlap between the use of the retail shops and the development. Circumstances at 10.00am and 10.00pm were not the issue. Hence, his survey had been targeted to the period 2.00pm to 8.00pm on a Friday and involved every patron during that period. He did not accept the suggestion that the Marrickville Tavern would be more comparable to the development in not offering a bistro, beer garden or bottle shop. The development involved a new hotel whereas the Marrickville Tavern is much older in style. The new development could be expected to be far more modern and inviting than the Marrickville Tavern. Further, the Marrickville shopping area offers equivalent attractions. For example, a patron could have a meal near the proposed development as readily as in the bistro within The Royal Exchange. Nor, on the same basis, did Mr Hallam accept that his survey was likely to inflate the number of patrons. He stressed that the site is not a freestanding location in the middle of nowhere. It is in the middle of the Marrickville shopping area.

34 Mr Hallam did not accept that the consistency of the Coady surveys (showing about 17% of patrons using their car in the daytime) was an indicator of reliability. Based on his experience he expected a rate of about 25% car drivers in the daytime. His survey disclosed about 29% car use. He rejected an analysis of his survey based on the percentage of car drivers within hourly blocks as opposed to the overall percentage as the sample sizes in the hourly blocks were too small. For this reason he used the total patrons between 2.00pm and 5.00pm (45) and the total number of drivers from that sample (13) to derive his figure of 29%. He agreed that sample size was important, but the method of setting up the samples was equally important.

35 Mr Hallam confirmed that he had excluded parking at Banana Joe's as it is not public parking. He had observed signs making this clear. He considered the exclusion of the parking on two residential streets (Silver Street and Petersham Road) appropriate for the reasons given above. He said that comparing the estimates for parking demand generated by the development with the DCP rates for the retail areas was theoretical as he suspected the DCP retail rate was too high for the existing shop (as it had been for the hotel rate). He could not comment on the possibility of some patrons being attracted to the development from the Marrickville Tavern and The Royal Exchange, saying that a broader analysis would be required to warrant such a conclusion.

36 A number of residents gave evidence. Four residents (Mr and Mrs Pickering, Mrs Baumann, and Mr Vuga) all lived in residential flat buildings opposite the rear of the site with frontages partly to Tuohys Lane (including balconies overlooking the lane). Consistent with their letters of objection, 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) and from air conditioning and refrigeration equipment was a particular concern (resolution of the latter of which were agreed to be deferred if the application otherwise warranted consent). Two other hotels were located nearby and thus there was no need for another hotel on the site. Mrs Pickering referred to the development making the existing parking difficulties worse. Mr Vuga referred to the existing traffic and parking situation and the extension of the period of impacts along Tuohy Lane given the proposed hours of operation of the development. He was concerned about access to their building gained from the lane. He thought an additional gambling facility unnecessary and inappropriate. He did not accept that management procedures could really address either that issue or the impacts on residential peace and quiet caused by the proposed hours of operation.

37 Mr McGoldrick, Ms Sharkey, Mr Roach, Mr Corrigan and Mr Kennewell are patrons of the Henson Park Hotel. Their major concern was the proposed transfer of the licence to the site from the Henson Park Hotel. They said that the Henson Park Hotel is at the centre of that community as a place for people to meet and socialise. It offers facilities that would not be present in the development including low cost accommodation and a beer garden. The Henson Park Hotel building is a purpose built hotel of heritage significance. Over 600 people signed a petition objecting to the transfer in recognition of the integral role the Henson Park Hotel plays in the area. The development could not replace the Henson Park Hotel as it would not offer the same facilities, being a shopfront location likely to cater to a much smaller section of the community. Mr Roach and Mr Corrigan were also aggrieved at the applicant's treatment of the Henson Park Hotel and thought the applicant had run that hotel down to facilitate transfer of the licence to the site and thus tap into the market for gambling in the shopping precinct. Mr Kennewell referred to the traffic and parking congestion at the front of the site given its high car and pedestrian use presently. He was also concerned about the security at the rear of the site given the different access routes to the rear, noise from bottle removals at the rear, as well as the juxtaposition of the development with people doing their shopping.

38 The statement of environmental effects included an assessment of parking referred to by Mr Hallam. That assessment was based on the experience of the authors rather than any site specific surveys tailored to the particular proposed development (such surveys, as noted above, being conducted later given Mr Hallam's concerns). The assessment expected a lower than average use of cars given the shopping centre location of the site. It concluded that there was ample parking available to accommodate the demand of the hotel. The survey and related data provided to Mr Hallam for the purpose of preparation of his second report was also in evidence.

39 The NSW Police commented on the proposed development noting that if extended security patrols, additional lighting and modifications to ensure pedestrian safety were provided as required, there was no objection to the development. The applicant accepted those requirements.

40 The report to the Council on 3 July 2007 recommended that the Council grant consent to the application. Amongst other issues, this report dealt with car parking. It noted that most hotels in the business centres of Marrickville relied on public or on street parking and concluded that the assessment in the statement of environmental effects had merit. The report noted the availability of public transport and on street parking and an assumption that the Calvert Street car park should have sufficient capacity given the likely peak trading hours of the hotel compared to retail uses. The report recommended a 10.00am opening time having regard to the operation of other hotels in the vicinity, with a one year trial period for trading past midnight. With respect to noise, the report concluded that the layout, principal entrances and recommended conditions would limit impacts to an acceptable level. The report said socials impacts were relevant but largely controlled at other levels of government. Given that the proposal involved transfer of a licence the report concluded that the social impacts would be neutral and, in any event, assessed at the licensing stage of the process. As noted, the Council refused consent on grounds relating to parking and social impacts.

41 The plan of management and recommended conditions of consent (which the applicant accepted) identified management and operational requirements for the development including with respect to hours of operation, noise generation, security, patron behaviour (as far as practicable), deliveries, waste removal and occupational health and safety.

42 The objects of the EPA Act are set out in s 5 as follows: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

43 When s 5(a)(i) refers to "promoting the social and economic welfare of the community and a better environment" it does so in a context where "environment" is defined by s 4(1) as follows: environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings

44 Pt 4 of the EPA Act regulates development permissible with and without consent. One of its principal provisions is s 76A(1) providing as follows: If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.

45 The Marrickville Local Environmental Plan 2001 zones the site General Business 3(A). In that zone the development permissible only with consent is in subcl (4) of the table specified as "development not included in subclause (3) or (5)". Development for the purpose of "hotel" is not included in subcl (3) or (5) and is thus permissible with consent. Sch 1 to the LEP defines "hotel" as follows: hotel means the premises to which a hotelier's licence granted under the Liquor Act 1982 relates.

46 Consents are obtained in accordance with Div 2 of Pt 4 of the EPA Act. Section 79C(1) is in Div 2 of Pt 4 and provides as follows: 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.

47 The Liquor Act specifies in s 2A a primary object of liquor harm minimisation. This means "minimisation of harm associated with misuse and abuse of liquor (such as harm arising from violence and other anti-social behaviour)". Pt 2 of the Liquor Act establishes the Licensing Court. Pt 3 regulates licenses the Licensing Court may grant including, relevantly, a hotelier's licence (s 18(2)(a)). Div 4 of Pt 3 regulates the making of applications for a licence. Div 6A of Pt 3 was inserted by the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Act 2004. Div 6A applies to applications for the grant or removal of a hotelier's licence and off-licence to sell liquor by retail. Section 62C(1) and (2) is as follows: (1) The court must not grant a relevant application unless: (a) a social impact assessment has been provided to the Board in connection with the application, and (b) the Board has approved the social impact assessment. (2) A social impact assessment must comply with this Division and the regulations.

48 The Board is the Liquor Administration Board constituted by s 72 and which has the functions in s 74. Under s 62D the regulations may provide for (a) the requirements that must be satisfied in connection with a social impact assessment, (b) the matters to be assessed or addressed by a social impact assessment, and (c) the information to be provided by a social impact assessment. Section 62E requires social impact assessments to be advertised. Under s 62F(1) the Board may approve a social impact assessment that is provided in connection with a relevant application only if the Board is satisfied that (a) the social impact assessment complies with Div 6A and the regulations and (b) the overall social impact of the application being granted by the court will not be detrimental to the local community or to the broader community. Section 62F(3) provides for the issue of Ministerial guidelines for the assessment process. Under s 62F(4) the Board is subject to the guidelines issued by the Minister in exercising any of its functions in relation to a social impact assessment.

49 Div 3 of Pt 2 of the Liquor Regulation 1996 deals with social impact assessment. It creates two categories of assessment (category A and category B). Category A assessments are required for nominated applications including where a hotelier's licence is to be removed to premises within 1km of the previous premises in a metropolitan area. The assessment requirements for category A matters are less onerous than for category B. For example, a category B (but not category A) assessment must address (amongst other things): ( a) the extent of the impact that the granting of the relevant application would or might have on noise, parking and traffic levels and on the amenity of the local community (including the potential for increased littering, vandalism and public drunkenness), (b) whether the relevant application, if granted, would or might result in a significant change to the character or identity of the local community, (c) the potential for increased social and community amenity, including regeneration of the locality and buildings, employment opportunities, expansion of entertainment (apart from drinking and gambling) and details of any sponsorships of, or contributions to, local community and sporting groups or projects.

50 The removal of the hotelier's licence from the Henson Park Hotel to the site will require a category A assessment only as the distance between the premises is about 900m.

51 The second reading speech for the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Bill explained that the social impact assessment provisions were intended to address the great harm that unrestricted availability of alcohol can impose on communities and the State (Hansard, 4 May 2004, p 8257).

52 The Gaming Machines Act specifies its primary objects in s 3 as (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. Pt 2 regulates the overall number of gaming machines. Pt 3 regulates poker machine entitlements. Under Div 1 of Pt 5 a hotelier must not keep an approved gaming machine unless authorised by the Liquor Administration Board constituted under s 72 of the Liquor Act. Pt 4 (gambling harm minimisation measures) applies to certain applications under Pt 5 including authorising gaming machines to be kept in a new hotel. Under s 33(1) a social impact assessment must be provided to the Board in connection with an application to which Div 1 of Pt 4 applies. The social impact assessment must comply with Div 1 and the regulations. Section 34 identifies the required classes of social impact assessment (class 1 and class 2). Under s 34(2)(b) a class 1 assessment is required where the application relates to the transfer of poker machine entitlements from one hotel to another hotel within 1km. Under s 35 the regulations may provide for the matters to be addressed in a class 1 or 2 social impact assessment. Section 36 regulates the advertising of such assessments. Under s 37(1) the Board cannot grant an application unless it has approved the social impact assessment. Section 37(3) provides: 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.

53 Div 4 of Pt 4 of the Gaming Machines Act contains other provisions concerning gambling harm minimisation including the regulation of promotional material, provision of problem gambling counselling services and industry codes of practice.

54 Section 209 of the Gaming Machines Act (which is in the miscellaneous provisions in Pt 15) is as follows: (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, 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.

55 Div 3 of Pt 3 of the Gaming Machines Regulation 2002 concerns social impact assessments. The assessment requirements for a class 1 social impact assessment are less onerous than for a class 2 assessment and do not include (for example) "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" (required for class 2 assessments by cl 35(3)(b) of the regulations).

56 The second reading speech for the Gaming Machines Act referred to the legislation as "one comprehensive package" (Hansard, Legislative Assembly, 30 November 2001, p 19275). When the mandatory shutdown provisions of the Act were amended to remove any requirement for local council approval, the second reading speech noted that the requirement was "in direct contrast to s 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".

57 The applicant's submissions about the interaction between the EPA Act, the Liquor Act and the Gaming Machines Act took various forms, not all of which were directly referable to the three items in the document filed by the applicant headed "questions of law". Those three questions asserted that any alcohol related and gaming/gambling impacts of the development were irrelevant to the determination of the development application.

58 The applicant submitted that the Liquor Administration Board constituted by the Liquor Act had exclusive jurisdiction over all liquor related impacts. This Court should not trespass on that exclusive jurisdiction through the "back door" of s 79C(1) of the EPA Act. The Council's approach invited consideration of the very matters that would not be required for transfer of the hotelier's licence and gaming machine entitlements given the location of the site within 1km of the Henson Park Hotel. By implication, the scheme in the Liquor Act prevailed to the exclusion of the EPA Act. The Council's submission to the contrary based on Kulin Holdings Pty Limited v Penrith City Council (1999) 103 LGERA 402 was misconceived as this argument had not been put to the Court in Kulin.

59 Section 209 of the Gaming Machines Act made the same position clear for gaming impacts (see Consumo Pty Ltd v Fairfield City Council (2003) 126 LGERA 103). Section 209 precluded refusal of a development application for any reasons relating to the installation, keeping or operation of approved gaming machines. The words "any reason" take their ordinary meaning and extend to any matter having any nexus whatsoever with the operation of a gaming machine. Second reading speeches and parliamentary debates supported the applicant's submissions.

60 These conclusions affected both Dr Stubbs and Mr Hallam's evidence. The whole of Dr Stubbs' evidence constituted a category B or class 2 social impact assessment, which was impermissible. Category B social impact assessments required an assessment of parking (cl 18(4)(a) of the Liquor Regulation). Hence, the concerns about parking raised by Mr Hallam were excluded by implication from assessment of the hotel under s 79C(1) of the EPA Act. Alternatively, Mr Hallam's parking analysis included people attending the site for gaming purposes. Under s 209 of the Gaming Machines Act those people had to be excluded from the assessment under s 79C(1) of the EPA Act. Based on the counts of people playing poker machines a 35% reduction of patrons and associated parking impacts would be required if the applicant's principal submissions about the Liquor Act and s 209 of the Gaming Machines Act were rejected (as the scheme of assessment for the Gaming Machines Act did not refer to parking impacts).

61 In any event, the evidence of Dr Stubbs and Mr Hallam did not provide reasonable grounds for refusal of the application. With respect to Dr Stubbs, it could be expected that a proportion of patrons of the Henson Park Hotel would attend the site. The density of licensed premises and gaming machines within a 1km radius would remain the same. The Council report recommended approval of the development application. The police had no concern subject to certain conditions that the applicant was willing to implement. Ms Saltman was not persuaded of any deleterious impacts. Ms Saltman's analysis of the objections from residents as not warranting refusal of the application should also be accepted.

62 With respect to Mr Hallam, the applicant relied on detailed written submissions the principal components of which were to the effect that: - (i) the Coady surveys were more extensive and thus more reliable, (ii) Mr Hallam's reliance on The Royal Exchange was inappropriate as the bistro and beer garden are integral to its functioning and not replicated in the proposed development, which is similar to the Marrickville Tavern, (iii) analysis of the survey results shows that the only "out of kilter" car driver rate is Mr Hallam's 28.9%, (iv) the survey founding this rate ignored the lunchtime trade (as it commenced at 2.00pm) and involved a small sample size giving a distorted picture of car driver rates, (v) Mr Hallam ignored the parking in Banana Joe's when some people might make a multi-purpose trip, as well as the parking on Silver Street and Petersham Road as they are residential streets, which is unreasonable, (vi) if the Coady surveys are used the proposed development generates a parking demand similar to the existing shop rate under DCP 19 so that there will be no noticeable effect on public parking in the vicinity of the site, and (vii) the Court should accept that perhaps one third to one half of the patrons of the development will come from the existing hotels in the vicinity thereby further reducing the parking demand.

63 Evidence concerning impacts alleged to arise from the possible closure of the Henson Park Hotel is irrelevant as that is not part of the proposed development.

64 The Council submitted that there was no necessary inconsistency between the EPA Act (on the one hand) and the Liquor Act and Gaming Machines Act (on the other hand). Each has effect to the full extent of its terms within its own field of operation. The fact that, in so doing, the statutes may touch upon the same subject matter is insufficient to create contrariety.

65 The applicant's case for inconsistency between the Liquor Act and the EPA Act was both strained and contrary to authority (Kulin Holdings). The requirements for consent and a hotelier's licence were cumulative. "Amenity" is a wide concept and is certainly broad enough to call up under s 79C(1)(b) and (e) assessment of the social impacts of development as addressed by Dr Stubbs.

66 The applicant's approach to s 209 of the Gaming Machines Act was also flawed. The social impact assessment provisions in that legislation concerned an entitlement to keep gaming machines. Section 209 needs to be read in that context. It cannot operate as contended for by the applicant. A consent authority cannot pretend that the floor space for the gaming area does not exist for any assessment purpose. Nor could the legislation, properly construed, require that result. Consumo concerned an LEP provision and is not analogous.

67 The applicant's arguments on construction were incongruous. The applicant emphasised the harm minimisation provisions of the Liquor Act and Gaming Machines Act, then advocated a construction of those statutes and the EPA Act which, if accepted, would ensure the social impacts of the proposed development were never assessed. They could not be assessed under the EPA Act because, according to the applicant, s 79C(1) was impliedly repealed or to be read down by the later more specific statutes. They could not be assessed, however, under those later specific statutes either because the transfer of the licence and gaming machine entitlements would be to a site within 1km of existing premises. The applicant's arguments, moreover, assumed inconsistency not between statutes but between the EPA Act and the regulations made under the Liquor Act and Gaming Machines Act. Delegated legislation could not effect implied repeal, at least not in these circumstances.

68 Section 209 has a limited field of operation (the installation, keeping and operation of gaming machines) and did not effect a wholesale repeal of s 79C(1) of the EPA Act. The width the applicant sought to give to this field is untenable.

69 The applicant had misconceived the relationship between the statutory provisions. The EPA Act did not call for any particular kind of social impact assessment. The assessment required under the EPA Act (if any) would be dictated by the proposed development. The applicant's reliance on second reading speeches and parliamentary debates was also ill founded. The Court had to construe the text of the statute.

70 Ms Saltman's evidence was of no assistance. Ms Saltman had taken the view that alcohol and gaming machine impacts were irrelevant. It is not possible to separate that view and its effects from the criticisms she made of Dr Stubbs' evidence. Ms Saltman had not carried out any social impact assessment of the proposed development. Dr Stubbs' evidence should be accepted. The neutral effect of the development over the wider area is not the point. Dr Stubbs' evidence focused on the immediate vicinity of the site (within 300m) as a particular centre of disadvantage and vulnerability. The analysis of social impacts under the EPA Act is driven by that fact and the concentration of licensed premises and gaming facilities within that particular centre of disadvantage and vulnerability. The applicant chose not to address those impacts.

71 The applicant's written submissions about parking were an attempt to introduce evidence from Mr Coady who had not been called as a witness. Mr Hallam was the only expert called on this issue. He was cross-examined at length and did not depart from his conclusions. The applicant failed to provide sufficient information in the statement of environmental effects. This is why Mr Hallam relied on DCP 19 in his first report. The applicant then provided some survey material, which Mr Hallam found inadequate. This prompted Mr Hallam's targeted survey in October 2007. His conclusions were sound and should be accepted. The applicant never provided any information based on survey of the demand generated by the existing shops. Hence, the comparison of actual demand of the development and of the DCP rates for the existing shop was unrealistic. This does not merely involve a numerical shortfall in parking spaces but an unacceptable impact on the functioning of this part of the retail centre.

72 The significant objections showed the community's concerns about the development in this location. Those objections were well founded. The impacts on the area around the Henson Park Hotel were relevant given the definition of "hotel" in the LEP referred to the hotelier's licence. On the facts of this case the licence was to be transferred, and the hotel use thus established on the site, because of the capacity for transfer from the Henson Park Hotel. It followed that the impacts of that transfer on the community near the Henson Park Hotel had to be taken into account under s 79C(1) of the EPA Act.

73 As noted, the social impact provisions within the Liquor Act (Div 6A of Pt 3) and regulations were inserted by the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Act 2004. Div 6A of Pt 3 and the associated regulations provide a more detailed scheme for the assessment of social impacts of licensed premises than that considered in Kulin. The harm minimisation objective of the Act, however, pre-dated these amendments and was referred to by Bignold J in Kulin at 409.

74 The applicant's submissions about the relationship between the EPA Act (specifically, s 79C(1) and the obligation to consider such of the nominated matters as are relevant to the proposed development) and the Liquor Act and regulations are not reconcilable with: - (i) the legislative schemes embodied in those Acts, (ii) legal principles associated with implied repeal, or (iii) such use as can be made of explanatory material.

75 The EPA Act contains a scheme for the assessment of development that requires development consent. The proposed development requires consent and is thus subject to that scheme. Section 79C(1) is a central provision imposing a duty of consideration on consent authorities. The duty is expressed in mandatory terms - "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". Unlike the Gaming Machines Act (s 209) no provision of the Liquor Act expressly affects the EPA Act. To the contrary, ss 40 and 60 (relating to the grant or removal of any licence) assume that consent under the EPA Act, if required for the use of land or the erection of any building, has or will be obtained.

76 It is well established (as recognised in Kulin) that the one activity (hotel) may require more than one approval, consent or licence by reason of concurrent or cumulative statutory schemes (see, for example, the discussion in Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276 at [130] and [131] and Parramatta City Council v Stauffer Chemical Co (Aust) Pty Ltd [1971] 2 NSWLR 500 at 508 - 509 (affirmed [1973] 1 NSWLR 229). Applying those principles, it is apparent that there is no actual contrariety between the EPA Act and the Liquor Act. Both are capable of full operation within their respective spheres. Pt 4 of the EPA Act regulates development (which includes, relevantly, the use of land and the erection of buildings). The Liquor Act regulates licensing requirements for premises selling liquor. The fact that considerations relevant to the assessment of a development application (such as the social impacts of a use of land for licensed premises in a particular location) may be identified as relevant or not relevant to assessment of an application for or dealing with a licence does not establish contrariety or inconsistency.

77 It follows from these considerations that the applicant's principal submissions about the relationship between the Liquor Act and the EPA Act must be rejected. The applicant's subsidiary submissions, about parking being an issue identified as relevant to a category B social impact assessment (cl 18(4)(a) of the Liquor Regulation) and therefore excluded from the operation of s 79C(1) of the EPA Act, also cannot be accepted. Review of the matters specified for category B social impact assessments in Div 3 of Pt 2 of the Liquor Regulation discloses the untenable nature of the applicant's submission that topics there specified are impliedly excluded from assessment under s 79C(1) of the EPA Act. Matters required to be disregarded under s 79C(1), on the applicant's case, would include trading hours (irrespective of the sensitivity of surrounding uses), public transport facilities nearby (irrespective of the anticipated number of patrons), change to the character of the local community, and potential for increased social and community amenity. Where a new use is proposed on land those considerations are central to an assessment of whether the use warrants the grant of consent. Yet the applicant's approach to the statutory regimes would exclude consideration of these (and other) issues under the EPA Act. Nothing in the provisions of the statutes supports that approach. In this case, because the licence is proposed for transfer from the Henson Park Hotel (some 900m from the site) the applicant's approach would effectively result in these matters (and more) not being assessed at all.

78 The applicant's general approach to explanatory material was also unorthodox (with the applicant seeking to rely on selective extracts from debates in addition to the speech of the responsible Minister). In any event as Giles JA observed in Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 at [83]: Be that as it may, the Parliamentary intention as expressed in the words of the Act, not the words of the responsible Minister, must govern its construction. As was said by Mason CJ and Wilson and Dawson JJ in re Bolton; ex parte Beane (1987) 162 CLR 514 at 518, while the Minister's speech is available as an aid to interpretation, it is not determinative: "The words of a Minister must not be substituted for the text of the law". The primacy of the words of the statute has recently been emphasised by Gleeson CJ and Gummow, Hayne and Heydon JJ in GLG Australia Pty Ltd (2006) 225 ALR 643 at [22]; the concluding sentence of the paragraph is, "The words of the statute, not non-statutory words seeking to explain them, have paramount significance". Kirby J said at [82] - This Court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this Court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law. 79 Nothing in the second reading speech for the National Competition Policy Liquor Amendments (Commonwealth Financial Penalties) Bill 2004 (Hansard, 4 May 2004, p 8257) supports the conclusion that the social impact assessment provisions inserted into the Liquor Act were intended to make all social impact considerations under s 79C(1) of the EPA Act legally irrelevant to the assessment of any development application for licensed premises. The evidence of Dr Stubbs, Mr Hallam, the residents and otherwise concerning alcohol related social impacts of the development is relevant to the assessment under s 79C(1).

80 The applicant's submissions about the Gaming Machines Act require separate consideration because of the presence of s 209 in that Act. Contrary to the applicant's submissions s 209 does not call up for consideration principles relating to implied repeal. Section 209 expressly regulates the relationship between the Gaming Machines Act and the EPA Act. Section 209 is the key provision and the meaning of it is in dispute in this appeal. To give meaning to the provision it must be construed in context. Critical aspects of the context include the provisions of the EPA Act emanating from the same legislature and the provisions of the Gaming Machines Act. Consistent with the observations in Trust Company Limited v Chief Commissioner of State Revenue, explanatory material may assist in ensuring that effect is given to Parliament's purposes but the statutory provisions must remain the focus of the task at hand.

81 The applicant's principal submissions about s 209 were 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. The applicant's principal submission was that the effect of the proscription on refusing consent for any reason relating to the installation, keeping or operation of approved gaming machines requires a consent authority under Pt 4 of the EPA Act 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.

82 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. Specifically, s 209(3)(a) proscribes the imposing of any 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. Section 209(3)(b) proscribes the refusing of consent for 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.

83 Fitzgerald JA in Oceanic Life Limited v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 noted at [56] as follows: The width of the phrase relating to'' is undoubted. Lord Macnaghten stated that [t]here is no expression more general or far-reaching'': Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. See also Fountain v Alexander (1982) 150 CLR 615 at 629 ; 40 ALR 441; Colakovksi v Australian Telecommunications Corp (1991) 100 ALR 111; Secretary, Department of Foreign Affairs and Trade v Boswell (1992) 108 ALR 77; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 131 ALR 377 at 398, although the addition of the words or depending on'' was presumably intended to give the combined phrase relating to or depending on'' a wider operation than relating to''. The difficulties of construction presented by such language have also been noted. Taylor J observed that … the expression `relating to' … is … vague and indefinite …'' and … leaves unspecified the plane upon which the relationship is [to be] sought and identified'': Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not bedirect'' or direct and immediate'': see, for example, Ausfield Pty Ltd v Leyland Motor Corp of Australia Ltd (No 2) (1977) 14 ALR 457 at 460, 462; Re Dingjan; Ex parte Wagner (1995) 128 ALR 81 at 110, 115; Joye v Beach Petroleum NL (1996) 137 ALR 506 at 514. See also Perlman v Perlman (1984) 51 ALR 317. Overall, the position judicially adopted has been that the operation of the phrase relating to'' is determined by the statutory context and purpose: Butler v Johnston (1984) 55 ALR 265 at 268; Hatfield v Health Insurance Commission (1987) 77 ALR 103 at 106-7. 84 There are strong indicators in the language of s 209 and the overall context inconsistent with the applicant's principal submissions.

85 First, s 209 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.

86 Secondly, s 209 pre-supposes the existence of premises within which gaming machines may be located (the hotel, registered club or other premises). This is hardly surprising. 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.

87 Thirdly, 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.

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.

89 These observations do not exhaust consideration of s 209 of the Gaming Machines Act. The evidence included opinions (of Dr Stubbs and Ms Saltman) and concerns (of residents) about: - (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. Is the Court, exercising the functions of the consent authority, able to have regard to these matters in determining whether to grant or refuse consent, or are they within the scope of the proscription in s 209 (that is, "any reason that relates to the installation, keeping or operation of approved gaming machines in a hotel")?

90 These social effects are more closely connected to the subject-matter of the statutory proscription than any of the examples referred to above. The Council, however, has correctly noted that the primary object of the Gaming Machines Act is minimising harm from the misuse and abuse of gambling activities. But the scheme of that Act would not require consideration of the matters raised by Dr Stubbs due to the proposal to transfer entitlements from the Henson Park Hotel to the site (within a distance of 1km). That is, despite Dr Stubbs' evidence that the population surrounding the site is different from that surrounding the Henson Park Hotel and far more vulnerable to the misuse and abuse of gambling activities, the assessment process in the Gaming Machines Act would assume no real difference in the populations or potential impacts between the two locations (based on the distance criteria). As such, only a class 1 social impact assessment would be required. In consequence, if s 209 applies, there would be no assessment of these social effects under either the EPA Act or the Gaming Machines Act. The Council observed that construing s 209 in a manner that permits this outcome would be inconsistent with the harm minimisation object of the Gaming Machines Act.

91 The Council's concerns are not difficult to understand. Dr Stubbs' evidence (as discussed further below) contains a thoroughly researched, thoughtful and careful analysis of the particular vulnerability of the population in the immediate vicinity of the site to the misuse and abuse of gambling activities and the multiplier effect on that capacity for harm caused by increased density of gaming machines within such a population centre. Neither factor applies in the same manner or to the same extent with respect to the Henson Park Hotel. Section 209, nevertheless, must be given meaning in its context. 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. In particular: (1) The social effects arising from the density of gaming machines in the vicinity of the site and their contribution to problem gambling in that locality are a direct product of the installation and keeping of gaming machines.

(2) Problem gambling is a direct product of a person operating gaming machines. (3) The Gaming Machines Act contains a comprehensive scheme for the installation, keeping and operation of gaming machines including: - (i) the primary object of gambling harm minimisation (s 2A), (ii) limitations on overall numbers of gaming machines (Pt 2), (iii) specific gambling harm minimisation measures (Pt 4) extending to such matters as social impact assessment of gaming machines (Div 1 of Pt 4), mandatory shutdowns (Div 2 of Pt 4), and prohibitions on types of advertising, the provision of counselling services by hotels and registered clubs, industry codes of practice for responsible gaming, and self exclusion orders (Div 3 of Pt 4). (4) Although s 32 provides that Div 1 of Pt 4 applies to certain applications under Pt 5 and Pt 5 deals with authorisations to keep or dispose of gaming machines, such authorisations are the essential preliminary to the installation, keeping and operation of any gaming machine. (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.

(6) In a legislative scheme where there is a cap on the maximum number of gaming machines in the state (as there is in s 10 of the Gaming Machines Act) a provisions such as s 209, construed as indicated above, makes sense. If it were otherwise it is difficult to envisage how fairness or consistency could be achieved as between competing hotels and registered clubs and as between communities. This is because Pt 4 of the EPA Act necessarily involves site specific development control decisions. While the Gaming Machines Act treats applications requiring a class 1 social impact assessment as not having the potential for significant social impacts, that is part of the package of statutory provisions the legislature determined was appropriate. It is not for the Court in an appeal under s 97 of the EPA Act to attempt to fill a perceived gap in the social impact assessment provisions of the Gaming Machines Act in the face of the proscription in s 209(3)(a) and (b). (7) Insofar as it is necessary or permissible to have regard to extrinsic material, the second reading speech for the Gaming Machines Bill (Hansard, 30 November 2001, p 19275) supports this conclusion by referring to the bill as containing a "package of proposals" representing a "balanced approach to curtailing the growth of gaming machines in New South Wales while at the same time ensuring that the hotel and club industries will not be driven into the ground and are allowed to continue to trade profitably". This idea of the Gaming Machines Act embodying a package of proposals is reinforced by a reference in the second reading speech for the Gaming Machines Amendment (Shutdown Periods) Bill (Hansard, 7 May 2003, p 382) where the responsible Minister said that the removal of the requirement for the agreement of the local council to varied shutdown arrangements was "in direct contrast to section 209…which essentially removes any power from local consent authorities to regulate or restrict gaming machine operations through development consents or other planning powers". (8) If this construction of s 209 is not adopted, it is difficult to identify any meaningful field of operation of the provision or, at the least, that part of the provision dealing with the operation of gaming machines. People use gaming machines for recreational and other purposes. Some people operating gaming machines may be at risk of becoming problem gamblers. Problem gambling, as the evidence discloses, 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. 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. 92 The remaining question that should be dealt with is whether evidence about the effects of transfer of the liquor licence from the Henson Park Hotel to the site is a matter "of relevance to the development the subject of the development application" within the meaning of s 79C(1) of the EPA Act. The Council submitted that it was on the facts of this case. The development involves the use of the site for a hotel. The LEP defines hotel as premises to which a hotelier's licence under the Liquor Act relates. It follows that the existence of a licence is fundamental to the proposed use. The applicant proposed to obtain a licence for the site by transfer from the Henson Park Hotel. Without a licence the Henson Park Hotel could no longer be used as a hotel. Accordingly, the cessation of use of the Henson Park Hotel and the associated impacts on the community were matters of relevance to the development the subject of the development application within the meaning of s 79C(1) of the EPA Act.

93 The weakness in this reasoning process is that the applicant's intention to obtain a licence for the site by transfer from other premises is not a part of the development the subject of the development application. The use "hotel" is concerned with the objective character of the premises (is there or is there not a hotelier's licence relating to those premises), not the source of the hotelier's licence (original grant or transfer). It would be different if, for example, an application were lodged to change the use of the Henson Park Hotel from hotel to some other use. In that circumstance the closure of the Henson Park Hotel would be part of the development the subject of the development application. In this case, however, the connection between the development and the closure of the Henson Park Hotel is a result not of the development the subject of the development application but of the applicant's present intentions about obtaining a hotelier's licence with respect to the site. For these reasons I do not accept that the closure or likely closure of the Henson Park Hotel and its consequences is a matter relevant to the "development the subject of the development application". I do not consider that weight should be given to this factor in the assessment of the development application.

94 The development application must be assessed under s 79C(1) of the EPA Act against this background and having regard to the Council's contentions as to why consent should be refused. It follows from the conclusions above that only one aspect of the Council's second contention with respect to social impacts is capable of constituting a reason for refusal of the application (namely, particular (d) to the extent that it refers to another alcohol facility in the Marrickville town centre being an inappropriate concentration of such uses). It also follows that, insofar as objections from members of the community were in evidence, those parts of the objections relating to concerns about gaming machines and the closure of the Henson Park Hotel are subject to the findings above about (respectively) s 209(3) and the scope of the development the subject of the development application. I note that although Dr Stubbs and Ms Saltman's evidence referred to matters that I have decided cannot be used as grounds of refusal of the application the evidence contained other information about the locality and development relevant to assessment of the issues. Assessment under s 79C(1) 95 I propose to deal with the parking issue first. The site is directly opposite the Calvert Street car park on a busy street in the Marrickville town centre. It adjoins Banana Joe's, which is a major retailer of staple products in the area (according to Dr Stubbs equivalent to a Coles or Woolworths). Banana Joe's has the largest retail floor space for a radius of about 0.8 to 1km. All of the evidence supports the conclusion that this part of the Marrickville town centre is a busy node of activity where parking close to the shops and the other conveniences offered is in high demand during ordinary retail shopping hours. The development involves a change of use of the existing shoe shop to the proposed hotel.

96 DCP 19 applies. The objects of the DCP include providing convenient and safe parking and ensuring an appropriate level of public parking in the Marrickville business centres (cl A2). Car parking requirements are identified in section B of DCP 19. Requirements are identified by reference to the type of development. Hotels are treated as their own category of development. If parking demand is calculated in accordance with the DCP then the existing shop requires 13 spaces and the hotel 62 spaces. Although there are 24 spaces on site a total of 6 can be made available for the hotel (agreed to be suitable for staff). The statement of environmental effects submitted that the rates for hotels in the DCP were inappropriate and parking demand should be assessed by reference to similar hotels (consistent with the guidelines of the Roads and Traffic Authority). Based on the survey information ultimately available with respect to hotels in the Marrickville CBD, Mr Hallam agreed. I accept on the evidence that the mere fact that the development would breach the numerical requirements of DCP 19 is not a reasonable basis upon which to refuse this development application. The objectives of the DCP, nevertheless, remain relevant.

97 Mr Hallam assessed all of the available information and concluded that the development would generate a higher parking demand than the existing retail use during the afternoon peak period in circumstances where, first, the parking provided on site was already inadequate to meet the existing demand and, secondly, the site was located in an area of high demand for parking during the day. Whilst acknowledging that the matter was not clear cut, he considered this an inappropriate intensification of the use of the site. None of the matters put to him by the applicant in examination materially altered his opinion. His answers were cogent and disclosed the expertise and care with which he undertook the tasks required of him by both parties.

98 The matters on which the applicant sought to rely in relation to parking, in contrast, were not persuasive. Specifically: (1) There cannot be any question that the area around the site has an existing high demand for parking. Mr Hallam described parking in the retail peak hours as at a premium, which was borne out by the evidence. Hence, Mr Hallam's focus on the overlap between this period and the operation of the hotel.

(2) It was reasonable (indeed necessary) for Mr Hallam to exclude from his assessment the parking available at Banana Joe's. That parking is available for customers of Banana Joe's only and signage threatening to tow away other vehicles is in place. In circumstances where the applicant sought consent to development providing on site parking suitable for staff only (the 6 spaces on the roof) it was for the applicant to provide sufficiently cogent evidence about multi-purpose trips to Banana Joe's and the hotel to enable some meaningful assessment of that potential. A potential for such trips sufficiently material to affect Mr Hallam's conclusions is not adequately demonstrated by the evidence. In any event, Mr Hallam allowed a discount of 11% to account for people who might drive to the town centre and park in a private parking area for multiple purposes of which the hotel was only one. Mr Hallam explained why such multi-purposes trips could not be relevant for parking in public areas because the issue is parking not traffic generation (namely, staying in a public parking space for an extra hour to enable a visit to the hotel still occupies that space for the hour). There is insufficient justification for concluding that this allowance was inadequate. (3) It was reasonable for Mr Hallam to exclude from consideration the parking available in the residential streets (Silver Street and Petersham Road). Circumstances forcing patrons to park in these residential streets are undesirable because of the potential for noise and disturbance to residences. This is particularly so for the hotel having regard to the proposed hours of operation. (4) The criticisms of Mr Hallam's survey techniques were not well founded. Mr Hallam's survey was targeted to his particular concern about the overlap between the existing parking demand and the demand generated by the hotel in the daytime. As Mr Hallam said, the development will be modern and built to current standards and (presumably) reasonable amenity expectations. Although it will not offer a bistro or beer garden like The Royal Exchange comparison with the Marrickville Tavern (an older style tavern without the quality or amenity that would reasonably be expected in a new development) would not have been as meaningful in the context of the Marrickville town centre. The Marrickville town centre has many restaurants and the site is well located to take advantage of that proximity. Mr Hallam's reasons for selecting The Royal Exchange for the further survey work were sound. Further, Mr Hallam made appropriate adjustments to his estimates having regard to the differences between the proposed development and the other facilities surveyed. (5) With respect to Mr Hallam's car driver rate between the critical hours of 2.00pm and 5.00pm, it must be recognised that Mr Hallam said he would have expected a rate of about 25% car drivers based on his experience and expertise. His experience with respect to parking demand must be very considerable having regard to his work on land use traffic generation and s 94 contributions plans (referred to in Appendix A to his first report). Mr Hallam's targeted survey showed a car driver rate of 28.9% which is generally consistent with his expectations. Moreover, Mr Hallam had justifiable confidence in the survey technique used in the survey he arranged. The survey instructions were annexed to his second report and were clearly expressed and directed towards the accumulation of information relevant to the period of overlap. The applicant's submissions on that survey information were not convincing. Mr Hallam did not use disaggregated figures but rather an average of car driver rates over the entire period of 2.00pm to 5.00pm. Given that Mr Hallam was concerned about the overlap period between high demand for the retail uses and the hotel, focussing on the average car driver rate over that period was appropriate. In contrast, adopting the applicant's approach of more generalised surveys over a longer period would not be as meaningful having regard to the particular site context in a high activity retail strip. (6) The applicant's attempts to compare the parking demand for the hotel based on survey results with the parking demand for the existing shop based on DCP 19 were unhelpful. As Mr Hallam said the DCP rates for the hotel were too high by a substantial margin and he suspected the same with the shop rates. Mr Hallam, therefore, recognised that this comparison was not on the same basis. The applicant, however, sought to place weight on this comparison that I do not consider it could reasonably bear without knowing more about the parking demand of the shop. Accordingly, I do not accept the submission that the proposed development will have no noticeable effect on parking demand in the vicinity. On the evidence, the development will materially exacerbate an existing parking problem in the vicinity. It will do so in circumstances where other hotels exist within reasonable walking distance. Hence, the exacerbation of the inadequate parking situation in this part of the Marrickville town centre is not mitigated in this case by some other consideration (such as a new development fulfilling an otherwise unsatisfied need or demand in the town centre). (7) The applicant's other criticisms of Mr Hallam's evidence (which were many and varied) did not effectively undermine the basis for, or effect of, his conclusions. In some cases, they were based on speculation (such as the assertion that about one third to one half of the patronage of the hotel would come from the existing hotels). In others, they were based on a selective reading of Mr Hallam's evidence (for example, the comparison between the parking rates for shops in the DCP with the surveyed rate for the hotel).

99 I accept Mr Hallam's evidence. I do not consider that the evidence relied on by the applicant provided a sufficient basis to conclude to the contrary either by reference to the Coady survey and related material, the report to the Council which accepted the arguments in the statement of environmental effects or the criticisms of Mr Hallam's approach. Mr Hallam's evidence presented a careful, thorough and reasonable assessment of the parking issues associated with this development in the particular context of the site. The Council submitted that Mr Hallam's evidence provided a ground sufficient to warrant the refusal of the application. I agree. On the evidence, 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.

100 It follows that it is not necessary to consider the balance of the evidence relevant to the assessment of the development application. I propose, however, to record my conclusions about those matters (albeit as briefly as possible).

101 The concerns of residents about the configuration of the laneways around the site and the potential for anti-social behaviour carry material weight. It is true that the police had no difficulty with the application subject to certain conditions being imposed (which the applicant accepted). Nevertheless, the proposed development will introduce a new use on a site backing onto a lane overlooked by a number of residential flat buildings. It will do so in circumstances where, outside the time of the security patrols, the environment (that is, the service lane adjacent and the different configurations of the rear of the various buildings backing onto Tuohys Lane) creates a real risk of increased activity, anti-social behaviours and disturbance. A plan of management can only do so much. The applicant's plan of management, presumably in recognition of this fact, qualified some of the critical obligations for protecting amenity to that which the hotel management could practically achieve. More would be required than a generalised plan of management and acceptance by the applicant of the draft conditions of consent to reach a state of satisfaction that these material potential impacts could be effectively ameliorated and managed. The evidence supporting the reasonableness of the application in this regard (particularly that of Ms Saltman) was insufficient. Ms Saltman's analysis of these concerns of residents was inappropriately dismissive, possibly because of her opinion that most of the evidence was legally irrelevant to the assessment. Ms Saltman was too sanguine about the benefits of the development due to increased lighting at the rear and additional surveillance compared to the introduction of a use onto the site (with its difficulties due to the relationship with the surrounding laneways and the residential flat buildings at the rear) with the potential to result in material adverse impacts. These matters provide a further reason to refuse this application. Insofar as the residents raised concerns about adverse parking impacts, they are borne out by the conclusions with respect to Mr Hallam's evidence.

102 The Council helpfully provided a version of Dr Stubbs' report highlighting the different subject matters (gaming, alcohol and residents' submissions). 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. Ms Saltman's approach to this evidence was not helpful because her fundamental premise was that all such harm was irrelevant to the assessment under s 79C(1) of the EPA Act. Ms Saltman provided some opinions about alcohol related harm (despite her principal view of it being irrelevant) but these opinions were in the form of generalised assertions seeking to rebut Dr Stubbs' reasoned conclusions. The opinions of Ms Saltman were not based on independent research and were not directed to Dr Stubbs' detailed analysis of the characteristics of the particular community in the immediate vicinity of the site and its particular vulnerability to alcohol related harm. Dr Stubbs presented a wealth of information specifically addressing the risk of alcohol related harm from increasing the density of licensed premises within vulnerable communities. She presented a comprehensive and compelling assessment of the high level of disadvantage and associated vulnerability of the community in the immediate vicinity of the site to alcohol related harm and the serious adverse community consequences with which it is associated.

103 Separate from Dr Stubbs' analysis, there is a real issue about adopting an approach to development applications for land uses such as hotels that could lead to communities being denied access to facilities likely to function for the majority of people as a recreational resource. Ms Saltman made this important point in the conclusion of her report. However, consistent with the report overall this important issue was not adequately explored by Ms Saltman and her evidence did not provide any meaningful basis upon which this issue could be factored into the assessment under s 79C(1)(b) of the EPA Act. In consequence, the debate in this case about the risk of alcohol related harm by increasing the density of licensed premises in the centre of a particularly disadvantaged community weighed overwhelmingly in favour of the detailed analysis Dr Stubbs presented. Accordingly, on the rather one sided evidence available in this case 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.

F. Orders 104 For the reasons given above, the orders of the Court are as follows: (1) The appeal is dismissed.

(2) The development application lodged in December 2006 to make alterations and additions to and to use premises at 252 - 254 Illawarra Road, Marrickville for hotel purposes is refused. (3) The exhibits are returned.

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