Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ireson and Anor v Independent Liquor and Gaming Authority [2023] NSWCATAD 77 Hearing dates: 5 December 2022 Date of orders: 28 March 2023 Decision date: 28 March 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) The decision of the respondent dated 20 June 2022 is varied. (2) The extended trading authorisation (ETA) for the second applicant is approved in the original terms but with the following variation: (i) Trading on Monday to Wednesday evenings is extended to 2:00am. (ii) Trading on Sunday evenings is extended to 12 midnight. (3) All other Licence conditions to be imposed on the Ophir Hotel by schedule 1 of the decision of ILGA dated 20 June 2022 are affirmed. Catchwords: ADMINISTRATIVE LAW – Liquor and Gaming –– responsible gaming – partial approval – extension of trading hours- local and broader community - overall social impact – whether detrimental to wellbeing of local or broader community - balance objects of legislation – public interest. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Gaming and Liquor Administration Act 2007 Gaming and Liquor Administration Regulation 2016 Gaming Machines Regulation 2019 Liquor Act 2007 Cases Cited: Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394 Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 Ballesty v Director of Liquor and Gaming (2002) NSWSC 1102 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Kallin v Independent Liquor and Gaming Authority [2019] NSWCATAD 36 La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798 Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2022] NSWCATAD 255 Texts Cited: Nil Category: Principal judgment Parties: Timothy Michael Ireson (First Applicant) Ophir Tavern Business Pty Ltd (Second Applicant) Independent Liquor and Gaming Authority (Respondent) Representation: Counsel: C Ireland (Applicants) A Zheng (Respondent) Solicitors: Hatzis Cusack Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2022/00190809 Publication restriction: Nil Reasons for decision What these proceedings are about 1. These proceedings concern the decision of the delegate of the respondent, the Independent Liquor and Gaming Authority (ILGA) to refuse the full scope of the applicant's application for extended trading authorisation (ETA). 2. The applicant Mr Tony Ireson is the licensee of the Ophir Tavern, which is located in Orange in the Central West of New South Wales. Mr Ireson is also a director of the company which owns and operates the business and has been licensee since mid 2018. 3. In June 2020 Mr Ireson applied to ILGA for a change to the trading hours in effect to extend them due to a perceived customer demand. The application sought to extend the trading hours from 5:00am to midnight Monday to Saturday and 10:00am to 10:00pm Sunday, to 9:00am – 3:00am Monday to Saturday and 10:00am to midnight on Sundays. 4. ILGA after considering the application gave a partial approval to the application in that they approved and extension of trading hours until 2:00am Thursday, Friday and Saturday evenings, and until 11:00pm on Sundays. 5. The current application before the Tribunal agitates a contest that the trading hours should be extended in accordance with the initial application (that is until 3:00am six nights a week and until midnight on Sundays) contrasted with the position of the regulator that the current partial approval strikes the right balance having regard to the Legislative and policy considerations in place balanced against the evidence in the specific application. Background 1. On 20 June 2022 ILGA made a decision to approve the application in part under section 49 of the Liquor Act 2007 (the Liquor Act). The approval authorised the sale and supply of liquor for consumption on the licensed premises in the gaming room, TAB, sports bar and sanitary facilities for the extended period 12 midnight to 2:00am Thursday to Saturday and from 10:00pm to 11:00pm on Sunday. The cessation trading hours for Monday to Wednesday remained unchanged. In respect of the sale or supply of liquor at the premises the opening hours were moved back to 10:00am (from 5:00am) in order to prevent the sale and supply of liquor at the premises before that time. Determination of the application by ILGA 1. The application to ILGA was lodged on 17 June 2020 and considered at their meeting on 16 June 2021 with the decision of partial approval conveyed to Mr Ireson's Solicitors on 20 June 2022. 2. The application falls under the provisions of s 51 of the Liquor Act which provides: 51 General provisions relating to licence-related authorisations (1) This section applies to the following authorisations granted by the Authority under this Act— (a) an extended trading authorisation, (b) a drink on-premises authorisation, (c) any other authorisation that may be granted by the Authority under Part 3 (other than a licence), (d) a minors area authorisation, (e) a minors functions authorisation, (f) a minors authorisation. (2) An application for an authorisation to which this section applies must— (a) be in the form and manner approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary), and (b) be accompanied by the fee prescribed by the regulations and such information and particulars as may be prescribed by the regulations, and (c) if required by the regulations to be advertised—be advertised in accordance with the regulations, and (d) comply with such other requirements as may be approved by the Authority (or, in the case of an application for an extended trading authorisation for a small bar, by the Secretary) or prescribed by the regulations. (3) In determining an application for an authorisation, the Authority has the same powers in relation to the application as the Authority has in relation to an application for a licence. The Authority may determine the application whether or not the Secretary has provided a report in relation to the application. (4) If, before an application for an authorisation is determined by the Authority, a change occurs in the information provided in, or in connection with, the application (including information provided under this subsection), the applicant must immediately notify the Authority of the particulars of the change. (5) Any person may, subject to and in accordance with the regulations, make a submission to the Authority in relation to an application for an authorisation. (6) If any such submission is made to the Authority, the Authority is to take the submission into consideration before deciding whether or not to grant the authorisation. (7) The regulations may prescribe, or provide for the determination of, a fee in respect of the granting of an authorisation. If any such fee is prescribed or determined, the authorisation does not take effect unless the fee has been paid. (8) The Authority may, in granting an authorisation, specify requirements that are to be complied with before the authorisation takes effect. The authorisation does not take effect until such time as any such requirements have been complied with. (9) An authorisation— (a) is subject to such conditions— (i) as are imposed by the Authority (whether at the time the authorisation is granted or at a later time), or (ii) as are imposed by or under this Act or as are prescribed by the regulations, and (b) may be varied or revoked by the Authority on the Authority's own initiative or on application by the licensee, the Secretary or the Commissioner of Police. (10) Any such application by a licensee to vary or revoke an authorisation (including any conditions to which the authorisation is subject that have been imposed by the Authority) must be accompanied by the fee prescribed by the regulations. (11) For the purposes of this Act, any condition to which an authorisation is subject is taken to be a condition of the licence to which the authorisation relates. (12) An authorisation has effect only while all the conditions to which it is subject are being complied with. (13) The Authority must not impose a condition on an authorisation, or revoke or vary an authorisation, other than a variation made on application by a licensee, unless the Authority has— (a) given the licensee to whom the authorisation relates a reasonable opportunity to make submissions in relation to the proposed decision, and (b) taken any such submissions into consideration before making the decision. (14) This section does not authorise the revocation or variation of a condition to which an authorisation is subject if the condition is imposed by this Act or is prescribed by the regulations. 1. The Statement of Reasons worked through the legislative framework, and made a number of findings. These findings relate to the information before ILGA and the legislative requirements. Validity, procedural and trading hour requirements 1. ILGA found that the application met the procedural requirements of s 51 of the Liquor Act. A Community Impact Statement (CIS) also met the requirements of s 49 of the Liquor Act and ILGA was satisfied that the applicant was a fit and proper person to meet the responsible service and development consent requirements under s 45 of the Liquor Act. 2. In respect of community impacts of the proposed extension to trading hours ILGA considered the density of hotel licences late trading outlets and clustering of these in Orange. They also considered crime data. The town (City) of Orange recorded a higher core on these criteria than the State average but Orange exhibited a lower than State average score of alcohol related health data. On social economic factors the suburb had a higher level of disadvantage whereas the Local Government Area (LGA) was advantaged compared to State averages for LGA's. 3. Crime data, alcohol related health data and licence density matters were also considered by ILGA. As part of the review ILGA was required to balance the purported benefits of the application with negative social impacts. NSW Police did not oppose the application. Local Government (Council) raised issues consequential on the granting of the application being increased likely noise impacts on nearby dwellings from later trading after 10:00pm, and the potential for increased levels of alcohol related violence as well as other alcohol related crime such as malicious damage. 4. ILGA also considered public submissions with seven submissions opposing the application and seven supporting the application as well as a 60-signature petition. Matters against included noise and potential crime, similar to the Council response, whereas matters in favour addressed the position that the Hotel is well run and provides a service to customers as well as catering for an older crowd or patron mix unlike other late night venues in Orange. 5. In determining the matter ILGA made the following findings: Overall Social Impact 28. … the Authority finds that Orange suburb and LGA had a density of full hotel licences that is above the state average, were subject to relatively high levels of alcohol-related non-domestic assault, late night alcohol related non-domestic assault, alcohol-related non-domestic serious assault, alcohol-related domestic assault, alcohol-related offensive conduct and malicious damage to property offences, and that there were some alcohol-related health issues in the broader community. The Authority considers that there is a risk that the liquor sold at the Premises may contribute to the existing alcohol-related problems in the community and over time, an increase in alcohol-related crime, health and other social and amenity issues in the local and broader communities. … 34. The Authority finds credible the prospect that the Premises will have the capacity to attract late-night patrons, not only within the suburb but also from nearby suburbs and rural areas in the broader community, and considers that these factors increase the scope for adverse social impacts generated by late trading at the venue. 35. … The Authority remains particularly concerned that granting the full period of extended trading hours sought by the Applicant into the late-night period may have an adverse social impact on 'problem' or 'at risk' gamblers in the local and broader communities, especially those that are socio-economically disadvantaged. Full approval would allow such persons to engage in gambling activities for longer periods of time seven days a week, including during the higher risk post 2:00am periods. … 37. Given the number of gambling risk factors and the overall economic vulnerability of the local community, and especially the financially constrained elements of the community to sustain gambling losses, the Authority is satisfied that a partial grant of the Application is the more responsible approach to the development of the gambling machine industry. 1. When considering whether to grant a licence ILGA must have regard to the objects of the governing legislation (the Liquor Act) and the specific provisions of s 48(5). The statutory framework 1. Section 48 of the Liquor Act relevantly provides the following in respect of the granting (or otherwise) of any licence application: 48 Community impact (1) The object of this section is to facilitate the consideration by the Authority of the impact that the granting of certain licences, authorisations or approvals will have on the local community, in particular by providing a process in which the Authority is made aware of— (a) the views of the local community, and (b) the results of any discussions between the applicant and the local community about the issues and concerns that the local community may have in relation to the application, and (c) whether the granting of the application would provide employment in, or other opportunities for, any of the following— (i) the live music industry, (ii) the arts sector, (iii) the tourism sector, (iv) community or cultural sector. … (5) The Authority must not grant a licence, authorisation or approval to which a relevant application relates unless the Authority is satisfied, after having regard to— (a) the community impact statement provided with the application, and (a1) any published cumulative impact assessment that applies to the area in which the premises the subject of the application are located, and (b) any other matter the Authority is made aware of during the application process (such as by way of reports or submissions), that the overall social impact of the licence, authorisation or approval being granted will not be detrimental to the well-being of the local or broader community. … 1. In exercising their functions under s 48 the decision maker (ILGA) must also have regards to the objects of the Liquor Act as set out at s 3 which provides: 3 Objects of Act (1) The objects of this Act are as follows— (a) to regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, (b) to facilitate the balanced development, in the public interest, of the liquor industry, through a flexible and practical regulatory system with minimal formality and technicality, (c) to contribute to the responsible development of related industries such as the live music, entertainment, tourism and hospitality industries. (2) In order to secure the objects of this Act, each person who exercises functions under this Act (including a licensee) is required to have due regard to the following— (a) the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour), (b) the need to encourage responsible attitudes and practices towards the promotion, sale, supply, service and consumption of liquor, (c) the need to ensure that the sale, supply and consumption of liquor, and the operation of licensed premises, contributes to, and does not detract from, the amenity of community life, (d) the need to support employment and other opportunities in the— (i) live music industry, and (ii) arts, tourism, community and cultural sectors. 1. As can be seen from s 48(5) of the Liquor Act, the decision maker must conduct a balancing exercise as to whether the overall social impact was positive or negative if the licence was granted. Jurisdiction 1. The application was approved in part by ILGA pursuant to s 49 of the Liquor Act. Under s 13A of the Gaming and Liquor Administration Act 2007 (the GLA Act) the s 49 decision is reviewable by the Tribunal. 2. Section 13A provides: 13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (2) (Repealed) (3) An application for administrative review made under subsection (1) must— (a) be made within 28 days of notice of the decision being published on the website of the Department, and (b) be accompanied by the fee prescribed by the regulations. Note— Section 36C requires notice of the decision to be published on the Department's website. (4) Subsection (1) does not apply in relation to a decision of the Authority that confirms, varies or revokes a decision made by a designated Public Service employee or other Public Service employee acting under a delegation given by the Authority. (5) In this section, relevant person in relation to a prescribed application means— (a) the applicant, or (b) a person— (i) who was required to be notified of the prescribed application, and (ii) who made a submission to the Authority or the Secretary in respect of the prescribed application. 1. The Gaming and Liquor Administration Regulation 2016 (the Regulation), prescribes at cl 7 which decisions are appealable to the Tribunal under s13A of the GLA Act. The clause provides: 7 Administratively reviewable decisions For the purposes of section 13A of the Act, the following applications made on or after 1 March 2016 are prescribed— (a) an application for the granting or removal under the Liquor Act 2007 of— (i) a hotel licence, or (ii) a club licence, or (iii) an on-premises licence that relates to a public entertainment venue (other than a cinema or a theatre), or (iv) a packaged liquor licence (other than a packaged liquor licence that is limited to the sale of liquor only by means of taking orders over the telephone, by facsimile or mail order, or through an internet site), (b) an application for an ongoing extended trading authorisation in relation to a licence referred to in paragraph (a) that would result in trading after midnight, (c) an application to vary or revoke a condition of a licence imposed by the Authority that would result in trading after midnight, in relation to a licence referred to in paragraph (a) (i)–(iii), (d) an application to increase a gaming machine threshold under section 34 of the Gaming Machines Act 2001 that is required to be accompanied by a class 2 LIA under section 35 of that Act, (e) an application specified in clause 6 in respect of which a delegation given by the Authority to a designated Public Service employee to exercise the Authority's decision-making function is in force. 1. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The Tribunal has jurisdiction under the Liquor Act by the provisions of the GLA Act and Regulation as noted above. 2. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Administrative Review by the Tribunal 1. The parties agree that the application for Administrative review filed on 30 June 2022, ten days after notification of the decision, was filed within the period provided to lodge an administrative review application with the Tribunal. What issues do these proceedings raise for determination? 1. On my assessment the issues are as follows: * Does the evidence and material before the Tribunal show that the appropriate balance has been achieved to enable the approval to be granted in the terms initially applied for by the applicant? * Does (after applying the s 48(5) test), the application satisfy the objects of the legislation having regard to the evidence and material before the Tribunal. 1. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law. Applicant's written evidence * Exhibit 'A-1'. Affidavit of Adam Michael Purcell sworn 12 September 2022. * Exhibit 'A-2': Affidavit of Timothy Michael Ireson sworn 12 September 2022. * Exhibit 'A-3' Affidavit of Timothy Michael Ireson sworn 1 December 2022. * Exhibit 'A-4' Applicant's bundle concerning Government and Academic research / information on community issues relating to licencing including eight community statements in support of the application. * Exhibit 'A-5' Orange Local Environment Plan 2011 including map. * Exhibit 'A-6' Curriculum Vitae of witness (exhibit 'A-1'). Respondent's written evidence * Exhibit 'R-1' Documents filed under s 58 ADR Act. * Exhibit 'R-2' Respondents further bundle concerning Community Impact data and NSW Police statistics. * Exhibit 'R-3' Two maps showing walking route to private residences subject of objections 1. Both parties were legally represented by Counsel and provided detailed written submissions and made oral submissions at hearing. Both witnesses for the applicants gave evidence and were subject to cross-examination at hearing. Mr Ireson's evidence at hearing 1. In evidence in chief Mr Ireson adopted his affidavit except for a minor amendment to [49] where he clarified that additional Gaming Management measures are currently being implemented rather than merely proposed as well as clarifying that the minimum period for self exclusion was six months. 2. In cross-examination Mr Ireson confirmed that the six bullet points at [49] of his affidavit (the Gaming Plan of Management Measures) had been implemented since July 2021. He said that he took over the Hotel in late May 2018. 3. In answer to questions about the food service in the Hotel Mr Ireson stated that the last orders in the bistro are at 8:30pm and between 9:30pm and midnight all patrons must move to the gaming room. In respect of food he said there is an air fryer in the bar and the staff serve heated food from that set up in the later evening. 4. In respect of the period midnight to 2:00am on Thursday to Saturday evening Mr Ireson said that there is one gaming attendant on duty, one duty manager and between one and three bar staff. The past midnight trading was an extension of the operating hours following the partial approval of the application by ILGA. On those evenings with 2:00am trading 'last drinks' are called at 1:45 am. There is also a limit of two drinks per customer during this period. 5. In his written evidence the witness refers to the operators seeking to make the Hotel as appealing as possible to the wide cross section of the community, including family groups, sporting groups and workers who come to the Hotel at the conclusion of their shift. Reference was also made to engagement with the wider community including support in finance or kind for at least eight sporting and community groups. Charity support was also referred to in the written evidence. 6. Particular reference to the Cadia Goldmine as made at [9] of Exhibit 'A-2. 9. We are particularly popular with employees of the Cadia Goldmine operated by Newcrest, which is approximately half an hour drive away to the south-west. The mine to my knowledge operates 24 hours a day and we draw a wide variety of employees and contractors who work or provide services to the mine. This includes people engaged in engineering services, drivers, electricians, scaffolders, civil engineers, mechanics, surveyors and security personal. Health workers from the Orange Base Hospital are also known to frequent the establishment often following their shifts. 10. A point of difference between us and other later trading hotels in Orange is that we do not offer DJs or bands. We occasionally offer a soloist or duo as light entertainment, which is generally finished by midnight. Our competitors like to cater and focus on the younger crowd who are looking for a nightclub experience. 11. Our offer is very much geared towards family and sporting groups and people being able to come in for a quiet drink with mates after work, often to watch sport or to play our gaming machines. Mr Purcell's evidence 1. In evidence in chief Mr Purcell explained that he was currently a consultant specialising in Liquor consulting. His CV was adopted after tender and noted his previous career in Policing. 2. In 2018 he became qualified and authorised to provide the accredited Licensee and Advanced Licensee course on behalf of Liquor and Gaming NSW. Mr Purcell was asked about the purpose of these courses and explained that they are mandatory for high risk licensee and that for any premises open after midnight RCG or 'responsible conduct of gambling' training and adherence is compulsory. 3. In cross-examination Mr Purcell explained that he holds a Certificate IV in training. He was asked about the 'RCG' refresher course and was show a live laptop whilst giving evidence. He said that the course is done 'on-line' and once completed a link is sent to the training provider. 4. When asked about RCG Mr Purcell confirmed that self-exclusion is a critical component of the policy. He confirmed the period of six month self-exclusion and that the policy was focused towards 'harm minimisation'. 5. The Tribunal was told that the Harm Minimisation Bill is currently in draft form. He said that when observing patrons one looks for tell tale signs of problem gambling with patrons. The Tribunal was also advised that the current RCG has several pages dedicated to 'problem gamblers'. ILGA's evidence 1. The respondent ILGA did not call any witnesses but relied on their material as outlined at [27] above. Significant reliance was placed on academic and research evidence, crime statistics and the relevant policies and guidelines (as contained within the s 58 documents). Applicant's submissions 1. Counsel for the applicants submitted that the Tribunal should have regard to the actual evidence concerning the premises and that is the real evidence that should be relied upon, not the academic evidence. It was submitted that if the respondent wishes to draw out evidence that an extension of hours would lead to a detrimental impact on the community then such evidence should be put before the Tribunal. 2. It was submitted that the evidence demonstrates that the business is well regarded in the community and that there are no issues or problems with problem gambling or gamblers. 3. Reference was made to the case of Taphouse Investments Pty Limited v Independent Liquor and Gaming Authority [2022] NSWCATAD 255 (Taphouse) which it was submitted was relevant to the issues in the approval process and that even though it dealt with significantly different facts the Tribunal should take heed of the expert evidence of Mr Purcell. Taphouse is authority for the proposition that the Tribunal should link expert evidence to a particular premises in arriving at its decision. 4. The applicants submitted that no impact for the broader community arose in respect of the proposal, and whilst ILGA tenders research papers and other academic studies material they are not strictly applicable to the current application and the circumstances of the application. 5. Counsel submitted that the s 48(5) test from the Liquor Act is the only test to apply to the application. It was also submitted that the observational matters made by the Tribunal in Taphouse cannot be uprooted from the circumstances of particular application. 6. The applicants relied on the detailed observations form Mr Purcell as set out at [14] of their closing submissions. Contrary to ILGA's submissions the applicants maintained that Mr Purcell's conclusions were based on careful observations and was not challenged by competing evidence or any significant cross examination of Mr Purcell. The applicants reiterated in submissions that there was no adverse Police material linking any criminal incidents with the Hotel. 7. In addition, the applicants submitted that since the grant of partial extended trading hours in 2021 there had been an overall improvement or reduction in incidents arising from the premises. The only exception being some matters characterised as lost property matters. It was put to the Tribunal that contrary to ILGA's concerns there was no worsening of the situation by the partial extension of trading hours. 8. The applicants referred to their closing written submissions at [20] where the following submission was made: 20. The density of licences in the suburb or LGA will not be increased by the grant of the ETA. In any event, the concentration of hotel licences is only correlated with an increase in non-DV assaults from a rate of 2 per 1000 head of population (see Applicant's additional material). The concentration of hotel licences at the subject premises is 36.7 per 100,000 people in the suburb of Orange (Schedule 2, Decision T20). 1. The applicants pointed to ILGA's own evidence (Exhibit 'R-2' page 10) being the NSW Bureau of Crime Statistics and Research material, to show that the two year trend in non-DV assaults was stable. 2. Reference was made to the case of Smith v Independent Liquor and Gaming Authority [2018] NSWCATAD 224 at [25]. 25 … Common sense and experience are not sufficient to conclude that granting an extra packaged liquor licence in Kurri Kurri will increase the rates of assault in the area or have any other negative social impact. There must be some objective facts from which the inference that there will be a particular social impact can be drawn. 1. The applicants submitted that there was no evidence of any particular social impact in terms of an increase in demand for gambling, or any issue of problem gambling. At [25] of their closing submissions the applicants stated: The persons who may use the gaming room during extended hours may already gamble elsewhere in the other hotel and clubs in the wider area that do currently trade after midnight. In any event, the numbers involved are very small: Purcell report, page 15. There were only two patrons in the gaming room at 1am on Saturday, for example. The low numbers involved, even if 50% of these patrons using the gaming room after midnight are problem gamblers, is not capable of constituting an adverse impact on the local community, as distinct from a very few individual(s) (or on that Saturday, one person). As the trade figures accompanying the second Ireson affidavit suggest, the number of patrons using the hotel bistro and general facilities is likely to be much greater as the premises is well patronised generally. 1. The applicants noted that no inquiries of patrons had been undertaken by ILGA and restated that there was no evidence to support a reasonable inference that the additional hours sought will increase problem gambling in the area. 2. Reference was made to ILGA's reliance on the Snapcracker Report concerning problem gambling, and noted that the issue was less significant in regional areas. The applicants also submitted that such a report was of lesser weight than evidence about the premises as the basis of the report was an online survey of 73 problem gamblers. 3. Reference was made to the case of Ballesty v Director of Liquor and Gaming (2002) NSWSC 1102 concerning whether the likely harm of an increase in trading hours would outweigh the likely benefits. In that matter the Court was considering the issue of poker machines and gaming impact. At [149] the Court observed: 149 Where there was a significant number of machines in the local community, or a significant part of the local community, and where the incidence of problem gambling was already high, or the projected increase likely to be major, these matters would obviously be relevant. They would alter the character of the disbenefit, clearly making it worse. However, that disbenefit, with that character, would still have to be compared with the social and economic benefits to the local community. Did the disbenefit, in that aggravated form, so outweigh the benefits, that the application should be refused? 1. The applicants submitted that the benefits provided to the community were not in doubt. It as submitted that any negative social impacts of the ETA was not demonstrated by objective evidence. In addition no precautionary principles were applicable as to how the discretion in s 48 (5) of the Liquor Act was applied as per the finding in Kallin v Independent Liquor and Gaming Authority [2019] NSWCATAD 36. At [30] of Kallin the Tribunal observed that precautionary principles did not apply because the legislative test was considered sufficiently clear in a Liquor Act application. 2. In the absence of any demonstrated detrimental impact caused by what was proposed in the ETA, the applicants made submissions about the positive factors. Matters included economic benefits by greater employment hours, recreation and relaxation benefits, as well as greater choice for consumers. The choice issue was emphasised in respect of shift workers in particular from the Candia Gold Mine. 3. The applicants tendered a 'comparison table' of benefits and detriments by the ETA application as an aide-memoire and submitted that the overall impact of the ETA was not adverse and as this was the only issue then the Tribunal should grant the application. 4. The applicants in closing submitted that ILGA's concerns are based on assumptions about the potentiality of alcohol related harm, and s 48(5) when applied indicates that the evidence does not support such a position. The same applies for problem gambling when the evidence is applied to the section of the Liquor Act. ILGA's Submissions 1. The respondent noted in submissions that the applicants do not challenge the change to the morning opening times of the Hotel, moving it back from 9:00am to 10:00am or the other conditions imposed. The respondent submitted that the narrowed issue was to grant or refuse an extra 13 trading hours, 12 of which would be after midnight. The case of La La Land Byron Bay Pty Ltd v The Independent Liquor and Gaming Authority [2014] NSWSC 1798 (La La Land) was put as authority for the proposition that any trading after midnight was considered exceptional, because of the requirement for the regulator to determine that in approving such trade the regulator is satisfied that that the granting of the application will not be detrimental to the overall social impact of the local or broader community. 2. ILGA in submissions referred to the Ophir Hotel being in a hotspot for incidents related to malicious damage to property, alcohol related domestic assaults and assaults generally. 3. ILGA submitted that Mr Purcell's evidence was of limited weight as it included opinions based only on observations. In addition on the question of Mr Ireson's evidence concerning a demand from shift workers and that workers from the Mine seek out the Hotel, no specific evidence as to how many workers actually used the Hotel's late night services was adduced. 4. ILGA also made submissions concerning the analysis of the Ophir Hotel dropping out of the 'top three' licenced premises in Orange concerning reports of criminal incidents. ILGA submitted that the other premises had extended trading hours and the statistics were from prior to the Ophir Hotel's partial extended trading hours being granted. 5. In respect of alcohol consumption ILGA recognised the measures that had been taken by the Hotel to address concerns about consumption in late trading hours. However logically they noted that such measures would be further tested should hours be further extended into the early morning. 6. The main issue that ILGA made submissions about concerned adverse impacts of the ETA related to gambling. At [56] of their final submissions ILGA submitted that: 56. The Authority relies on a growing body of research regarding gambling in NSW that substantiates concerns that an increase in gaming machine availability after midnight, and in particular in the hours after 2:00am, and on weekdays, poses risks of harm to problem gamblers. 1. ILGA submitted that an enhanced Gaming Plan of Management now advanced by the applicants during these proceedings, has not been able to demonstrate that it can provide effective measures because the measures are not in place. As such the Tribunal could not be satisfied that they would be effective in minimising harm. 2. Reference was made to the main thrust of the applicant's Gaming Plan of Management being based around 'self-exclusion'. Criticism was made of the effectiveness of such a provision generally having regard to research which it was submitted showed that self exclusion had limited impact on problem gamblers. 3. ILGA submitted that overall the evidence does not indicate that the measures put in place will effectively mitigate the impact on problem gambling of greater access to gaming machines through extended hours. 4. In weighing the positive factors ILGA submitted that in making their partial approval they considered the benefit to patrons of extended hours and that an older demographic would not be required to move to another venue catering for younger patrons generally. The submissions from the community in support and the economic benefits through increased employment were all noted. ILGA reserved its position on benefits to shift workers due to placing minimal weight on the available evidence. 5. On the negative side ILGA referenced Orange LGA's higher saturation of liquor licences than the State average. The Ophir Hotel is in a hotspot for alcohol related crime and offensive behaviour and these maters are considered socially detrimental. Arrivals and departures later at night would occur in a partially residential area. 6. Of major negative concern is the impact that the ETA would have on responsible gambling. The area is seen a socially disadvantaged (compared to the State average) and research points to post midnight and further post 2:00am gambling as being particularly problematic. 7. In oral submissions ILGA referred to three main impacts of the ETA in its full form. One the detrimental effect of alcohol late at night. Two, the loss or reduction in amenity, and three, problem gambling. 8. LGA submitted at hearing that the s 58's and other material tendered on their behalf showed that Orange LGA has a greater crime rate than the State average. 9. It was submitted that if the Tribunal looked at all of the statistical data then it cannot take the same comfort from that material that the applicants do and that it paints a different picture. The question for the Tribunal is really developed along from the central test under the Liquor Act and becomes 'did ILGA get the balance right'. Consideration 1. Having carefully considered the evidence and submissions of the parties, it appears that the main basis of the application concerns the refusal of ILGA to approve the requested closing times sought by the applicants in their ETA. 2. The following factors were submitted in the hearing as relevant to the determination, and they are analysed below: * Amenity of Neighbourhood: Positive to the ETA no additional complaints since the extended trading hours from June. Negative to the ETA concerns expressed by seven local residents and two Council officers when ETA still under consideration – concerning possible increased anti social behaviour. In this regard I note that some of the objections arise from residents who live some distance from the premises. I also note that no Police opposition was made to the ETA. There is also a 24 hour trading fast food restaurant with a shared car park adjacent to the Hotel. * Crime: Positive to the ETA is the unchallenged evidence of Mr Purcell, he has policing and licence compliance experience. Whilst his opinions were challenged in submissions his evidence was not diminished under cross examination. The Alcohol Plan of Management addresses anti social behaviour and disturbances. In some ways such measures also go to diminishing the risk of crime. The compliance history of the Hotel is positive in that it is accepted as non problematic. Whilst hotspot data places the Hotel in a hotspot there was no objection by Police to the ETA. Negative to the ETA is the statistical data concerning alcohol related assault and malicious damage to property. It is accepted that some types of crime (e.g. Malicious Damage to Property), are higher in Orange than the State average whereas other crimes such as alcohol related disorderly conduct are equivalent to the State average. In considering this matter I again note that there is a 24 hour trading fast food restaurant adjacent to the Hotel as well as a shared car park. * Licence density / saturation: Positive to the ETA the statistics are only slightly higher than the State averages but below those for inner regional NSW. The ETA will not alter the licence density of the suburb or LGA. Negative to the ETA is the slightly higher density. * Demography: Positive to the ETA is evidence that the Orange LGA has an average level of relative social-economic advantage / disadvantage compared to the State as a whole. Negative to the ETA Orange suburb is in the bottom 31% of social economic advantage. * Alcohol-related Hospitalisations and Deaths: Positive to the ETA is data that rates are lower than the State and the Inner Regional NSW band. Negative to the ETA is the data showing a higher rate of alcohol related deaths than the State average. * Community Expectations: Positive to the ETA is the evidence of support for the proposal. 60 Members of the public have officially supported the application. Additionally seven formal letters of support and eight letters from businesses and community groups supporting 3:00am closing hours six nights a week were tendered. Negative to the ETA were seven submissions form local residents and two local council planners. In considering the matter I note some objectors were located further away from the Hotel than some of the supporters. It was also unclear to me in what capacity the Council planner objections were being raised. * Demography of Ophir Tavern Patrons: Positive to the application was the evidence that the demographic using the Hotel late at night is an older demographic. In considering this matter I note the crime statistic data accepted by Courts in sentencing and criminologists in respect of planning that offending in respect of violence decease with age. * Gaming Intensity: Positive to this factor of the ETA impact was data that profit per machine is slightly less than the average for county hotels with a similar number of machines. Police had expressed no objection. The Applicants submitted that higher spend illustrates popularity of premises which in turn creates a demand for greater hours of operation. Average profit per machine as slightly less than average profit per gaming machine state-wide. Negative to the ETA is the already high gaming intensity for the locality. Average profit per machine is 1.8 times that of the nine local hotels. In considering this issue the Tribunal must balance the demand for further trading especially that supported by patron evidence with the level of social harm that gaming machines are acknowledged to create. The responsible gaming strategies put in place focus on self exclusion but further updated strategies were submitted during the hearing. * Problem Gambling Rates: Positive to the ETA, rates not significantly above other areas. 2019 problem gambling statistics a State average. ETA not objected to by the local service funded by Responsible Gambling Fund. Whilst Western NSW LHD has higher problem gambling rates (2.4% above 1.4% State average) WLHD is a very large geographic area with significantly different demographics overall than Orange. Report for Orange (pg 355 s -58 documents) found only three of the six negative risk factors present. Evidence of Purcell conducting covert observations did not identify problem gambling behaviour / indicators. Negative to the application are the high problem gambling rates for WLHD. In my view the issue of problem gambling (including play in later hours) and the impacts of extending gambling hours are the main factor in considering the ETA. This issue is addressed further below. * Problem Gambling and Late Play: The 2019 Gambling Study shows similar portions of low risk and high risk gamblers to be present after midnight. Problem gamblers are more likely to 'venue hop'. In support of the ETA the Purcell evidence noted a very low number of 'venue hoppers' during the observational evidence. Uniform shutdown times were noted as a method of preventing 'venue hoping'. Negative to the ETA is the evidence that there is a higher proportion of problem gamblers after midnight and higher again (as a proportion) after 2:00am. Reference to the 'Snapcracker' report verifying this and that research establishes that longer gaming hours attract problem gamblers. * Effectiveness of Gaming Mitigation Measures: Positive to the ETA - Gambling Plan of Management (GPOM) accepted by ILGA seen as positive to the ETA. GMOP in place (as required as a condition of licence) since July 2021 and includes staff intervention as well as self exclusion. Additional measures proposed were accepted by the applicants in proceedings before the Tribunal. Self exclusion accepted as model set out in clause 45 of the Gaming Machines Regulation 2019 – as such supportive measure of ETA. Lack of evidence to contrary of gaming mitigation measures being sufficient. 1. Criticism is made by the applicants that ILGA did not obtain and tender any significant evidence of their own in respect of the ETA application, merely relying on a 'desk based' evaluation of data, material, including reports statistics and public submissions. The applicants submitted that the main evidence that should be applied by the Tribunal in the merits review is the evidence that relates directly to the Ophir Tavern. 2. The main submission of the applicants was that the Tribunal should apply the test from Taphouse to the central consideration under s 48 (5) of the Liquor Act. Reliance was placed on Auld v Independent Liquor and Gaming Authority [2018] NSWCATAD 25 that generalised research cannot be used to notionally infer against the weight of specific evidence to the contrary. 3. In Auld the Tribunal was considering the relocation of a liquor licence from an on licence premises to a supermarket as an off licence. On the matter raised at [77] above, the Tribunal observed at [105]-[111] of Auld that: 105. I accept that Young is an area of disadvantage based on the SEIFA score. That, as shown by Mr Smith's analysis, many other comparable regional towns record similar levels of disadvantage, does not change that fact in relation to Young. This brings into play the propositions put forward by Dr Morrison. 106. I accept that increased availably of alcohol can lead to an increase of alcohol related harm. I also accept that, in the Australian context, and as demonstrated through the BOCSAR statistics, there is more likely to be elevated levels of domestic and non-domestic assault and other crimes, such as malicious damage, in disadvantaged areas. There is also more likely to be increased levels of problematic alcohol consumption. That may be particularly the case if cheap alcohol is readily available. 107. The difficulty exists, however, in extrapolating broad propositions, to particular circumstances. Some information was presented about ALDI's pricing structure and this indicated that ALDI has the same price structure across all outlets in the State. There was also some evidence that other liquor outlets rely on "specials" to entice customers into their stores. While there were some submissions that price competition can be good for customers, there were other submissions that such competition can have detrimental effects by making liquor more cheaply available with resulting detrimental effects. There was a lack of empirical evidence, however, on the actual effect of the introduction of so called "chain" liquor outlets on pricing generally. 108. In a number of respects the evidence of Dr Morrison was unsatisfactory and he expressed some contradictory views. There is also other evidence available that does not support some of his propositions with respect to the sale of packaged liquor. 109. I also have some difficulty with the information provided by the Authority on existing density of licensed premises. The Authority contends that existing density is higher than the State average but includes premises no longer operating or with a particularly limited licence such as Bluestill. While the analysis may reflect the number of licences, it gives a somewhat unrealistic picture of the availability of alcohol. Furthermore, Dr Morrison could not state at what point outlet density becomes problematic. The applicant points to other research which puts that point much higher than the current State average. 110. There is therefore no reliable evidence before the Tribunal to indicate whether the addition of a packaged liquor outlet at the ALDI supermarket in Young will increase the density of such liquor outlets to the point where there is a detrimental effect upon the community. This is particularly the case where the proposed store is small and caters to people doing their grocery shopping at ALDI. Presumably ALDI shoppers presently buy their alcohol elsewhere, but in future may buy it at ALDI if this application is approved. There is no reliable information that overall sales or consumption of liquor in Young would change if the application was granted. 111. I should mention that I do not consider the applicant's argument that there is a significant public benefit in removing the licence to ALDI as this means that the Mill Tavern (or some other premises) will not re-open as a hotel with any attendant anti-social problems. I agree with the submissions of the respondent that, as the Mill Tavern licence is dormant, what is at issue is the opening of another packaged liquor outlet in Young if the application is granted. Whether or not the licence for the Mill Tavern may start operating again if the removal application is not granted, is a matter of pure speculation. 1. Whilst the generalised research is of some weight, particularly in respect of significant closely examined issues such as problem gambling and the impact of it on individuals and the broader community, in general I apply greater weight to the evidence that is directly relevant to the premises subject of the ETA. 2. In this regard I do not agree with the applicant's submission that there is no significant or cogent evidence before the Tribunal to deny the ETA, rather that greater weight will attach too much of the Applicant's specific evidence. Whilst not privy to the approach generally taken by ILGA when determining an ETA or any application, it would appear that any decision to rely on evidence obtained through third party research, their own generalised research and official statistical data rather than monitoring the premises directly might relate to resources. ILGA is responsible for all ETA's across the State in addition to a large number of other statutory functions and resultant responsibilities. 3. I note that the applicants accept the conditions imposed by ILGA in the current partially approved ETA. Any decision of this Tribunal will therefore mandate those conditions by consent. 4. Whilst the Tribunal agrees in respect to the Purcell evidence that it (not Mr Purcell) is the finder of fact and in a position as such to give the final opinion on the matter, having regard to his background experience and expertise, in the absence of any specific evidence to the contrary concerning the premises, his evidence has some weight. 5. I also note that the Gambling Plan of Management meets the requirements of Guideline 16. 6. The case of Taphouse whilst dealing with a similar application was dealing with entirely different facts. That case concerned an application in South Western Sydney. Trading was sought to continue from the current close of midnight Monday to Saturday until 4:00am, and from 10:00pm to midnight on Sundays. In addition the Hotel was already opening at 5:00am. 7. Unlike the current matter Police opposed the application. The application related to an area with the highest concentration of gaming machines in the State. Mr Purcell and another provided observational evidence of gambling patrons. That evidence indicated that patrons keep gambling until closing time at that venue. 8. In the current application the Hotel is already allowed to trade until 2:00am Thursday Friday and Saturday evenings under the patrial ETA and I note that Mr Purcell's surveillance took place on Wednesday, Friday and Saturday after the partial ETA was granted, therefore covering two out of three aspects of the application. 9. In Taphouse the Tribunal set out the balancing exercise at [3]: 3. To grant an ETA, the Tribunal had to be satisfied "that the overall social impact of the licence ... will not be detrimental to the well-being of the local or broader community": S48(5) of the Liquor Act 2007 (NSW) (the Act). I must identify the overall social impact and then ask whether that impact will be detrimental to the well-being of the local or the broader community. and summarised the original basis of ILGA for refusal at [9] and [10]: 9. The Authority concluded at [37] of its decision: Given the number of gambling risk factors and the overall economic vulnerability of the local community and especially the financially constrained broader community to sustain gambling losses, the Authority is satisfied that maintaining the status quo is the more responsible approach to the development of the gaming machines industry. This will ensure a longer effective shutdown of machines across the course of the week in this local community, giving "at risk" or "problem" gamblers a meaningful opportunity to stop gambling for the night. 10. In refusing the application the Authority was concerned about gaming related harm to 'at risk' gamblers and 'problem' gamblers in the late-night period (particularly after 2.00am), taking into account the high socioeconomic disadvantage of the Fairfield area. 1. In concluding the Tribunal determined in weighing the balance at [154] - [155] as follows: 154. The detriment of the ETA is the social harm generated from gambling after midnight and particularly so after 2.00 am. I accept that problem gamblers and moderate risk gamblers are far more likely to be harmed by gambling after midnight, particularly after 2.00 am. I am satisfied that granting the ETA would lead to an irresponsible development of the availability of EGMs which is not consistent with the concept of 'responsible gambling'. 155.The Tribunal is well satisfied that the overall social impact of the ETA, were it granted, will be detrimental to the well-being of the patrons of the Hotel and to that of the broader community of the Fairfield LGA. I am satisfied that the neither the positive social impacts nor the conditions proposed by the Hotel will sufficiently mitigate the negative contribution to the overall social impact. 1. I have also had regard to the evidence in Exhibit 'A-4' being the letter from Newcrest dated 8 November 2022. The Hotel both accommodates and feeds some of the workforce of the Cadia Valley mine operation. The PCYC supports the ETA as do a number of local businesses and sporting associations. 2. In balancing these matters and noting the objects of the Liquor Act, I find that the main factor impeding the ETA relates to high level gambling and problem gambling in particular. In that area I have regard to the general evidence produced by ILGA concerning gambling. However I have specific regard to Guideline 6 Clauses 25 – 31 'Consideration of social impact under section 48 (5) of the Liquor Act 2007', as well as specific regard to Guideline 16 'Late-night gaming applications'. 3. I note that the extended hours to 2:00am Thursday to Saturday do not appear to have raised any issues of significance. The Hotel had been trading in that form for some time at the date of the hearing and continues to do so. 4. The evidence of the need and support for extended trading hours is in contrast to the evidence in Taphouse. So to is a significant portion of the evidence of the factors impacting on the premises and the locality / saturation of licences and machines and other factors. I also note that Taphouse sought in effect an ambit claim of ETA. 5. The current application demonstrates a need or basis for the ETA (as required) but that basis is also supported by evidence. The level of opposition in the community and local authorities is much less than the level of support. The fact that ILGA granted partial approval shows that the application had merit. 6. In determining the application as a merits review the Tribunal can refuse the ETA application in its entirety (see Adamson v Independent Liquor and Gaming Authority [2022] NSWCATAD 394), affirm the decision, grant the application or vary the decision under review. 7. In Taphouse at [141] the Tribunal accepted the following: I accept the evidence by the Productivity Commission Inquiry on Gambling that higher risk gamblers are significantly more likely than any other group to be gambling after midnight and to be playing for longer periods overall and that this risk is higher post 2.00 am. 1. The academic evidence as well as Government Policy as set out in the s 58 documents support the position put above in the Productivity Commission Report. 2. Under Clause 28 of the Liquor Regulation 2018 when conducting a merits review de novo I must have regard to those issues in any ETA. 28 CIS to address matters relating to gambling activities in hotels during extended trading periods (cf 2008 reg cl 10A) In the case of an application for an extended trading authorisation in relation to a hotel licence, the matters to be addressed by a CIS are to include matters relating to gambling activities on the licensed premises during the period that the authorisation is proposed to be in force. 1. As noted above at [90] the problem gambling issue is the main factor impacting the ETA after consideration of the evidence. 2. I find in applying the balance concerning the overall social impact of the licence, problem gambling especially after 2:00am will be the main area of concern, detrimental to the well being of the local or broader community. 3. In this regard I determine that the ETA should not allow trade beyond 2:00am on any day of operation. In balancing the positive matters against the negative matters I find that the balance is properly found by extending the trade from midnight until 2:00am Monday to Wednesday and from 11:00pm until midnight on Sundays. 4. In making this finding I accept all of the conditions imposed by ILGA in their partial approval including the later commencement of trade hours each day and the more stringent conditions of operation as set out at Schedule 1 of the Decision under review dated 20 June 2022. Conclusion 1. Because of the findings that I have made, it is appropriate to make the following orders: Orders 1. The decision of the respondent dated 20 June 2022 is varied. 2. The extended trading authorisation (ETA) for the second applicant is approved in the original terms of 20 June 2022 but with the following variation: 1. Trading on Monday to Wednesday evenings is extended to 2:00am 2. Trading on Sunday evening is extended to 12 midnight. 1. All other Licence conditions to be imposed on the Ophir Hotel by Schedule 1 of the decision of ILGA dated 20 June 2022 are affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 06 April 2023 - Amended name of counsel for respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2023