Waugh Hotel Management v Marrickville Council

Waugh Hotel Management v Marrickville Council - [2007] NSWLEC 775 - NSWLEC 2007 case summary — Zoe

[62]

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.

[88]

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).

[100]

(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.

[101]

(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.

[107]

(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).

[110]

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.

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