Castle Constructions Pty Ltd v North Sydney Council - [2007] NSWCA 164

No judgment structure available for this case.

Reported Decision: 155 LGERA 52

Appeal Outcome: Special leave application discontinued - 4 October 2007

New South Wales

Court of Appeal

CITATION: Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

HEARING DATE(S): 5 April 2007

JUDGMENT DATE:
27 July 2007

JUDGMENT OF: Tobias JA at 1; Basten JA at 104; Bell J at 143

DECISION: (a) Appeal allowed; (b) Set aside Order 2 made by Talbot J on 3 August 2006 and in lieu thereof order that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of North Sydney Local Environmental Plan 2001 shall have no application to that determination; (c) Order (b) to take effect as of 3 August 2006; (d) The respondent to pay the appellant’s costs of the summons for leave to appeal and of the appeal

CATCHWORDS: LOCAL ENVIRONMENT PLAN – Interpretation – Whether building height provisions are inconsistent – North Sydney Local Environment Plan 2001 cll 28A, 28D, 29, 30, 31, 32 - LAND AND ENVIRONMENT COURT – Appeals – Apprehended bias – Where Senior Commissioner expressed strong opposition to the application – Whether matter should be remitted to a Commissioner other than the Senior Commissioner

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
North Sydney Local Environment Plan 2001
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Antoun v The Queen (2006) 80 ALJR 497
[2006] HCA 2
Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339
[2003] NSWCA 189
Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 5
Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 468
Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324
Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389
[1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
[1993] FCA 456
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63
Emanuele v Australian Securities Commission (1997) 188 CLR 114
[1997] HCA 20
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
[2006] HCA 5
Hartley Poynton Ltd v Alley (2005) 11 VR 568
[2005] VSCA 53
House v The King (1936) 55 CLR 499
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
[2003] HCA 11
Rajski v Wood (1989) 18 NSWLR 512
Re Refugee Review Tribunal
Ex parte Aala (2000) 204 CLR 82
[2000] HCA 57
Roads and Traffic Authority v Damjanovic (2006) 146 LGERA 403
[2006] NSWCA 166
Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1
[2005] NSWCA 208
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sweedman v Transport Accident Commission (2006) 224 ALR 625
[2006] HCA 8

PARTIES: Castle Constructions Pty Ltd
North Sydney Council

FILE NUMBER(S): CA 40533/06

COUNSEL: Cl:.T F Robertson SC / J E Lazarus
Opp: M Craig QC / Heather Irish

SOLICITORS: Cl: Aitken McLachlan Thorpe Lawyers, Sydney
Opp: Mallesons Stephens Jaques, Sydney

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 11010/05

LOWER COURT JUDICIAL OFFICER: Talbot J

LOWER COURT DATE OF DECISION: 3 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468

CA 40533/06
LEC 11010/05

TOBIAS JA
BASTEN JA
BELL J
Friday 25 July 2007

CASTLE CONSTRUCTIONS PTY LTD v NORTH SYDNEY COUNCIL

Castle Constructions Pty Ltd applied to develop a property in Walker Street North Sydney (the Site). The property was within, but on the edge of, an area defined in the North Sydney Local Environment Plan 2001 (the LEP) as the “North Sydney Centre” (the Centre).

Division 4 of the LEP contained provisions related to the Centre, Div 4A related to Commercial zones outside the Centre and Div 5 related to Mixed Use zones. The Site was zoned Mixed Use. Clause 28A in Div 4 provided that:

“[t]he provisions of this Division prevail over all other provisions of this plan, to the extent of any inconsistency, except for Part 4-Heritage provisions.”

If the building height provisions in Div 4 were applied to the planned development on the Site it would permit a much taller building than if cl 30 in Div 5 was applied. The primary questions on the appeal were, therefore, whether the two sets of building height provisions were inconsistent, so that to the extent of any inconsistency the provisions in Div 4 prevailed, or whether cl 30 could be read as a proviso or supplement to Div 4 as it only applied to sites within Mixed Use zones which adjoined a residential zone.

A secondary issue before the Court was whether the primary judge was correct in remitting the matter to the Senior Commissioner of the Land and Environment Court. The Senior Commissioner had found against the appellant’s development and, in doing so, had expressed his dislike of the proposed development in trenchant and powerful terms and had appeared to have given his individual preferences priority over the provisions and intent of the LEP. The appellant submitted that this was sufficient to establish an appearance of apprehended pre-judgment bias and that any remitter should have excluded the Senior Commissioner.

Held per Tobias JA, Bell J agreeing:

1. Incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the “appearance of exhaustiveness” on the same subject matter of cl 28D with respect to development within the Centre.

2. Clause 30 is in substance inconsistent with cl 28D of the LEP with the consequence, as mandated by cl 28A, that cl 28D must prevail to the point that cl 30 had no application to the Site.

3. It was insufficient for the primary judge to leave the determination as to whether there was a reasonable apprehension of pre-judgment to the Chief Judge.

4. This Court has the power to make an order that is to take effect as of a date earlier or later than that on which it was made. It also has the power to make an order nunc pro tunc upon the basis that this Court will be doing now what the primary judge ought to have done then.

5. An order should be made setting aside the original remitter and substituting one which excludes the Senior Commissioner, antedated to the original date of judgment; such an order will render the exercise by the Chief Judge of administrative power to direct the remitted proceedings be heard by the Senior Commissioner a nullity.

Dissenting per Basten JA:

1. Clauses 28D and 30 were able to, and were intended to, operate concurrently. They were, therefore, not inconsistent for the purposes of cl 28A.

2. The question in the present case is not whether the Court should have been differently constituted for the purposes of the remittal, but whether Talbot J erred in law in failing to order that the Court be differently constituted. The fact that the Chief Judge did remit the matter to the Senior Commissioner cannot demonstrate any error of law on the part of the primary judge.

3. It was insufficient for the primary judge not to address the criterion on which the exclusionary order was sought where he had accepted that he had the power to make the order and also accepted the factual premise upon which it was sought.

4. It was not appropriate for this Court to exercise the power conferred on the Land and Environment Court, despite the absence of any express fetter on the discretion granted to this Court to make “such other orders in relation to the appeal as seems fit”.

CA 40533/06
LEC 11010/05

TOBIAS JA
BASTEN JA
BELL J
Friday 25 July 2007

CASTLE CONSTRUCTIONS PTY LTD v NORTH SYDNEY COUNCIL

Judgment

1 TOBIAS JA: The primary issue in this appeal, if leave to appeal be granted, relates to the interplay between two provisions of North Sydney Local Environment Plan 2001 (the LEP). The question of construction, which is determinative of that issue, is whether cl 30 of the LEP (which provides for a building height plane (BHP) control with respect to the erection of buildings upon land to which that provision applies) is inconsistent with cl 28D which relates to building heights and massing within the North Sydney Centre (the Centre). If it is, then as a consequence of cl 28A of the LEP, cl 28D will prevail over cl 30 to the extent of the inconsistency.

Background

2 The issue referred to in the preceding paragraph arises out of a development application made by the claimant to the opponent (the Council) to demolish the existing buildings on the property known as Nos. 136-140 Walker Street, North Sydney (the site) and to erect thereon a 31 storey commercial/residential building comprising basement parking, a podium of five commercial floors and a tower of 26 residential floors (the development). The new building as a proposed height of 97m above Walker Street to an RL of 162.5m.

3 The site has an area of 1,176m² and is located on the western side of Walker Street between Berry Street to its south and McLaren Street to its north. The site is zoned Mixed Use under the LEP and is within an area identified on the LEP zoning map (the map) and marked “North Sydney Centre”. The Centre generally comprises the Central Business District of North Sydney. Located opposite the site on the eastern side of Walker Street, bounded on the south by Berry Street, on the north by Hampden Street and on the east by the Warringah Expressway, is an area of land zoned Residential C.

4 On 31 August 2005 the Council notified the claimant’s architect that the development application had been determined by refusal of consent. The claimant then appealed to the Land and Environment Court (the LEC). The appeal was heard by Senior Commissioner Roseth who, on 12 January 2006, dismissed the appeal and confirmed the Council’s refusal of he development application: Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 5.

5 The claimant then instituted an appeal by way of Notice of Motion to a judge of the LEC pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) alleging that the Senior Commissioner had made a number of errors of law. In this respect a s 56A appeal is confined to questions of law. On 3 August 2006 Talbot J upheld the claimant’s appeal and ordered that the proceedings be remitted to a Commissioner for determination in accordance with his Honour’s reasons: Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 468.

6 The claimant’s Amended Notice of Motion in fact identified 14 grounds of appeal in respect of which it was alleged that the Senior Commissioner had erred in law. However, his Honour found that the Senior Commissioner had erred in only three respects which were nevertheless sufficient to vitiate his decision.

7 There were two issues debated before the primary judge in respect of which he found in favour of the Council and it is against his decision on those matters that the claimant seeks leave to appeal to this Court. Those issues are as follows:

(a) Whether cl 30 of the LEP is inconsistent with cl 28D so that by virtue of cl 28A, cl 28D must prevail over cl 30; and

(b) Whether when ordering that the proceedings be remitted to a Commissioner for determination in accordance with his Honour’s reasons, his Honour ought to have also ordered that the proceedings be so remitted to a Commissioner other than the Senior Commissioner.

8 During the course of argument it became apparent that the issues were such as to justify a ground of leave. An order granting leave was therefore made conditional on the claimant filing its draft Notice of Appeal within seven days. Accordingly, I shall hereafter refer to the claimant as the appellant.

The relevant provisions of North Sydney Local Environmental Plan 2001

9 The LEP was gazetted on 1 June 2001. As originally made, the area identified on the map as the “North Sydney Centre” was excluded from the LEP (the excluded area) by the Minister pursuant to s 70(4) of the Environmental Planning and Assessment Act 1979 (the EPA Act). However, the excluded area was the subject of North Sydney Local Environmental Plan 2001 (Amendment No. 9) – North Sydney Centre which was gazetted on 28 February 2003. That amendment inserted new Divisions 4 and 4A into the LEP. The former related to the Centre (being an area smaller than the excluded area under the LEP as gazetted in 2001) and the latter related to the Commercial Zones outside the Centre. Under Amendment No. 9 the site was zoned Mixed Use.

10 The aims of Amendment No. 9 were, relevantly, to amend the LEP

“(i) to provide that that plan extends the area known as the ‘North Sydney Centre’, and

(ii) to zone the land previously known as the ‘North Sydney Centre’ under that plan, and

(iii) to redefine the ‘North Sydney Centre’ and introduce objectives and development controls for the ‘North Sydney Centre’ …”

11 Prior to Amendment No. 9, the excluded area continued to be subject to the zoning controls in North Sydney Local Environmental plan 1989 which was otherwise repealed by the LEP. Amendment No. 9 introduced for the first time the Commercial Zone into the LEP which applied to what is referred to as the core of the Centre. The site is outside that core and was zoned together with other land generally north of Berry Street as Mixed Use. That zone was introduced into the LEP as originally gazetted and applied to the retail and commercial areas of Crows Nest, Neutral Bay and Milsons Point and, upon the gazettal of Amendment No. 9 to parts of the Centre.

12 It is therefore convenient to refer first to the relevant provisions of Division 5 of the LEP which apply to the mixed use zone before referring to Division 4.

13 Clause 29(1) in Division 5 sets out the specific objectives of the building height controls in the mixed use zone. Relevantly they include

“(a) [to] ensure compatibility between development in the mixed use zone and adjoining residential areas and open space zones, and

...

(d) [to] provide ventilation, views, building separation, set back, solar access, light and avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like and

(e) [to] promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient …”

14 Clause 29(2) provides as follows:

“A building must not be erected in the mixed use zone in excess of the height shown on the map.”

15 The relevant part of the map is sheet 2 which provides for the maximum height of development in the mixed use zone. As I have indicated, those zones are located not only in the Centre but also at Neutral Bay, Crows Nest and Milsons Point. The legend to sheet 2 sets out differential maximum heights in respect of different parts of the mixed use zone in those locations. It is of significance that with respect to the mixed use zone within the Centre, no maximum height limit is provided. Accordingly, cl 29 has no application to land within the mixed use zone within the Centre which includes the site.

16 Clause 30 is headed “Building Height Plane” and is in the following terms:

“(1) Building height plane objectives

The specific objectives of the building height plane controls in the mixed use zone are to:

(a) ensure compatibility between development in the mixed use zone and adjoining residential or open space zones, and

(b) minimise adverse effects on land in adjoining residential or open space zones in relation to ventilation, views, building separation, solar access and light and to avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like.

(2) Building height plane controls

on land that adjoins or is adjacent to land within a residential or open space zone

(a) commencing 1.8 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site that adjoin land within the residential A1, A2, B or F zone or open space zone, or

(b) commencing 1.8 metres above existing ground level, and projected at an angle of 45 degrees, from the centre of any road that separates the land from land within the residential A1, A2, B or F zone or open space zone, or

(c) commencing 3.5 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site that adjoin land within the residential C zone, or

(d) commencing 3.5 metres above existing ground level, and projected at an angle of 45 degrees, from the centre of any road that separates the land from land within the residential C zone, or

(e) commencing 1.8 metres above existing ground level, projected at all points from each of the boundaries adjoining a laneway or other road of a similar width and character referred to in Schedule 14 that separates the land from land within the Residential A1, A2, B, D or F (McMahons Point) Zone or the Public Open Space Zone, or

17 In the present case, if cl 30 applies to the development, the relevant BHP control is that referred to in cl 30(2)(d) as Walker Street separates the site from the land on the eastern side of that street which is zoned Residential C. According to the appellant, the effect of the application of cl 30 to the site was that the maximum height of a building which could be erected upon the site would be 30m and the maximum achievable height would be 19m in contrast to the a proposed height of the development of 97m. A further effect of applying the BHP would be to eliminate the tower element of the development as the 45º angle of the plane would require any building upon the site to be stepped back to the west.

18 Division 5 also contains cls 31 and 32 of the LEP. The former is a floor space control and cl 31(1) provides, relevantly, that the specific objective of the control in the mixed use zone is to

“(a) ensure a diverse mix of uses in each building in a mixed use zone.”

19 The relevant control is set out in cl 31(2) in the following terms:

“A building must not be erected in the mixed use zone if the floor space ratio of the part of the building to be used for non-residential purposes is not within the range specified on the map.”

20 Sheet 2 of the map also sets out the range of floor space ratios for non-residential purposes within the mixed use zone by reference to colour coding. So far as the mixed use zone within the Centre is concerned, most of the land so zoned, including the site, has a range of non-residential floor space ratio of 3:1 to 4:1 with the balance having a range of 4:1 to 5:1. Accordingly, in its application to the site, cl 31 requires that there be a minimum non-residential floor space of 3:1. The development so provides within the five floors of the podium which contains precisely 3,528m² of commercial floor space.

21 Clause 32 in Division 5 provides controls with respect to the design of development within the mixed use zone. Relevantly, two of its specific objectives are to

“(a) promote development containing a mix of residential and non-residential uses, and

…

(c) concentrate the non-residential component of development in the mixed use zone at the lower levels of a building.”

22 Clause 32(2) is headed “Design controls” and relevantly provides as follows:

“A new building in the mixed use zone must not be erected unless:

(a) the building contains both residential and non-residential uses, and

(b) the non-residential component of the building is provided at the lower levels of the building and the ground level is not used for residential purposes, except access, and

(c) …

23 Clause 32(4) provides that:

“Development that contravenes subclause (2)(a) is prohibited development.”

24 Accordingly, cl 32(2)(a) mandates that a new building in the mixed use zone must contain both residential and non-residential uses. In other words, any new building such as the development is required not only to contain residential uses but also non-residential uses to a minimum floor space ratio of 3:1. It must follow that if the effect of the application of the BHP pursuant to cl 30(2) is to disable a new building from complying with the combined requirements of cls 31 and 32, then the development is prohibited either as a consequence of cl 31(2) insofar as the effect of the application of the BHP is to disable any new building from achieving the minimum 3:1 floor space ratio for non-residential uses or, if that minimum floor space ratio can be achieved but the effect of doing so is that no residential uses can be provided, then the development is prohibited by cl 32(4).

25 In the context of the foregoing provisions of Division 5, I turn now to a consideration of the provisions of Division 4 which relates specifically to the Centre. Pursuant to cl 28 that Division applies to land edged with a heavy black line and marked “North Sydney Centre” on Sheet 2 of the map. The area so marked is smaller than the excluded area which was deferred when the LEP was originally made in 2001. It is probably for that reason that Division 4A was inserted by Amendment No 9. Clause 28B then sets out the specific objectives of Division 4 of which the following are relevant:

“(a) to maintain the status of the North Sydney Centre as a major commercial centre within Australia,

…

(f) to allow for 250,000 square metres (maximum) non-residential gross floor area in addition to the estimated existing (as at the commencement of this Division) 700,000 square metres non-residential gross floor area,

…

(h) to encourage the provision of high-grade commercial space with a floor plate, where appropriate, of at least 1000 square metres,

…

(l) to promote high quality urban environments and residential amenity,

(m) to provide significant public benefits such as open space, through-site linkages, childcare and the like,

…
(o) to protect the amenity of residential zones and existing open space within and nearby the North Sydney Centre,

(p) to prevent any net increase in overshadowing of any land zoned residential or public open space or identified as a special area,”

26 I interpolate here that objectives (o) and (p) generally do not appear to be qualitatively different to objectives (a) and (b) of cl 30 although there are some subtle differences to which I refer later in these reasons. The protection of the amenity of residential zones nearby the Centre which would include the Residential C zone on the eastern side of Walker Street opposite the site is a concept of sufficient width to include objective (a) of cl 30(1) and so much of objective (b) as seeks to minimise adverse effects on land in adjoining residential zones in relation to ventilation, views, building separation, solar access and light. The adverse effect of a proposed development on each of those matters would relate to the amenity of the land within the residential zone. Similarly, objective (p) is qualitatively similar to the second part of objective (b) of cl 30(1).

27 Clause 28D is headed “Building heights and massing” and as it is central to the primary issue on the appeal, I set it out in full:

“(1) Building heights and massing objectives

The specific objectives of this clause are as follows:

(a) to achieve a transition of building heights generally from 100 Miller Street (Northpoint) and 79–81 Berry Street (being the location of the tallest buildings) stepping down towards the boundaries of the North Sydney Centre,

(b) to promote a height and massing that has no adverse impact on land in the public open space zone or land identified as a special area on Sheet 5 of the map marked “North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre” or on heritage items,

(c) to minimise overshadowing of land in the residential and public open space zones or identified as a special area on Sheet 5 of the map marked “North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre”,

(d) to protect the privacy of residents within and around the North Sydney Centre,

(e) to promote scale and massing that provides for pedestrian comfort, in terms of weather protection, solar access and visual dominance,

(f) to encourage consolidation of sites for provision of high grade commercial space and provision of public benefits.

Consent must not be granted to the erection of a building within the North Sydney Centre, unless:

(a) the height of the building will not exceed RL 195 AHD, and

(b) there is no net increase in overshadowing of any land between the hours of 9am and 3pm, 21 June outside the composite shadow area, as shown on the map marked “North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre” (except land that is in the Road or Railways Zone), and

(c) there is no net increase in overshadowing, between 10am and 2pm, at any time of the year, of any land that is within the North Sydney Centre and is within the public open space zone or within a special area as shown on Sheet 5 of the map marked “North Sydney Local Environmental Plan 2001 (Amendment No 9)—North Sydney Centre”, and

(d) there will be no increase in overshadowing that would reduce the amenity of any dwelling that is outside the North Sydney Centre and falls within the composite shadow area referred to in paragraph (b), and

State Environmental Planning Policy No 1—Development Standards

(4) Minor variation of overshadowing controls

The consent authority may make a determination to vary, to a minor extent only, the operation of subclauses (2)(b) or (c), or both, in respect of a particular development application, but only if:

(a) it is satisfied that the variation is justified due to the merits of the development application and the public benefit to be gained, and

(b) it is satisfied that any increase in overshadowing will not reduce the amenity of any land, and

(c) in relation to a variation of the operation of subclause (2)(b), the variation will result in not more than 2 hours net increase in overshadowing of land referred to in that paragraph between the hours of 9am and 3pm, 21 June, and

(5) Building design and public benefits

When determining whether or not to grant consent to a development application in respect of land within the North Sydney Centre, the consent authority must consider:

(a) the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and in particular lower scale development adjoining the North Sydney Centre, and

(b) whether the proposed development provides public benefits such as open space, through-site linkages, community facilities and the like, and

(c) whether the proposed development preserves important view lines and vistas, and

28 The composite shadows area referred to in cl 28D(2)(b) is depicted on sheet 5 of the map and identifies what appears to be the shadow effect of existing development within the Centre on the land surrounding but outside the boundaries of the Centre between 9am and 3pm on 21 June.

29 The primary issue on the appeal, and a significant issue before the primary judge, was the relationship between cl 28D in Division 4 and cl 30 in Division 5 given that cl 28A in Division 4 provides that:

“[t]he provisions of this Division prevail over all other provisions of this plan, to the extent of any inconsistency, except for Part 4-Heritage provisions.”

30 The effect of cl 28A is to give primacy to the provisions of cl 28D to the extent to which it is inconsistent with cl 30. Both the Senior Commissioner (impliedly) and the primary judge (explicitly) held that there was no inconsistency and it was the correctness of that finding that formed the primary question in the appeal.

The decision of the Senior Commissioner

31 The Senior Commissioner had before him a number of issues including whether the development complied with the requirements of cl 28D on the one hand and cl 30 on the other. He found (in [23] and [24]) that although the development overshadowed the northwest façade of the Century Plaza building located within the Residential C zone on the corner of Walker and Berry Streets, that shadow nevertheless fell within the composite shadow area on sheet 5 of the map so that, as I understand his finding, the development complied with the requirements of cl 28D(2)(b). However, he also found that the shadow cast by the development affected the bedrooms on all 20 floors of the Century Plaza building for 1.5 hours in the afternoon, which I assume is a reference to 1.5 hours after 3pm, on 21 June and, therefore, outside the hours referred to in cl 28D(2)(b).

32 However, the Senior Commissioner found that the development breached cl 28D(5) in that it was:

“out of scale with almost everything around it, including the Century Plaza building, which itself its out of scale with its surroundings. It dominates the street and destroys any remnant of character left in Walker Street. Its impact, in terms of scale, form and massing within the context of the locality, landform and neighbouring development, and in particular lower scale development adjoining the North Sydney Centre, is unacceptable.”

33 The Senior Commissioner then considered the effect of cl 30 of the LEP and, at [29], concluded that only the five storey podium of the development was within the BHP while all 26 residential floors were in breach of it. This is literally true although as illustrated on an annexure to his judgment, the BHP passed at a 45º angle through the first eight floors of the residential tower above the podium providing for an ever-diminishing floor plate area given the necessity to step up the site to the west which the BHP dictates. The floor plates would therefore appear sufficient to permit only five partial floors for residential use.

34 After considering other issues such as setbacks, the Senior Commissioner’s conclusions with respect to the development were as follows:

“39. With the exception of the overall height requirement of RL 195, this proposal breaches almost all of the Council’s numerical planning controls with respect to scale, height and bulk. It breaches most of the qualitative controls aimed at producing a harmonious relationship between streets and buildings. It has a devastating effect on solar access to the bedrooms in the Century Plaza building and on views from a minority of dwellings in 79-81 Berry Street.

35 It is to be noted that the Senior Commissioner did not, at least expressly, determine whether there was any inconsistency between cl 28 on the one hand and cl 30 on the other. However this was a live issue before the primary judge in the appellant’s appeal pursuant to s 56A of the Court Act.

The decision of the primary judge

36 The primary judge noted (at [18]) the submission of the appellant that the effect of cl 28A was that it was an express paramountcy clause that called for a test of inconsistency to be demonstrated either by direct conflict between two provisions or an intention that one provision was to state exhaustively or comprehensively the application to a particular topic.

37 In essence, the appellant submitted to his Honour that:

(a) The specific objectives and controls in cl 28D(1) and (2) left no room for an entirely different control such as a BHP; accordingly, cls 28D and 30 were incompatible insofar as the former made it plain that it was its intention to control height in the Centre by reference to overshadowing of specific land but to otherwise leave height uncontrolled unless the site area was less than 1000 square metres or the height of any proposed building exceeded RL 195;

(b) Conversely, the BHP resolves its objectives of achieving compatibility with adjoining residential and open space zones and minimising overshadowing in an entirely different manner which had a presumptive operation whether or not the land within those zones was already overshadowed;

(c) Moreover the matters to which cl 28D(5)(a) and (c) requires consideration by the consent authority are to be balanced against the public benefits achieved by the particular development cl 28D(5)(b) whereas cl 30 was directed solely towards protecting amenity. In other words, cl 28D rejected the primacy of a control such as the BHP which gives preference to an adjoining residential zone at the edge of the Centre;

38 The Council submitted that cl 30 provided for the application of a BHP only to land within the mixed use zone which adjoined a residential zone, as was the case at hand. Division 5, and in particular cl 30, could be read as a proviso or supplement to Division 4 so that the provisions were capable of independent existence without any inconsistency. Furthermore, cl 30 was not otherwise “subject to” the provisions of Division 4 (this argument would seem to be flawed given the provisions of cl 28A). It was thus submitted that the BHP control in cl 30 had work to do in determining the appropriate height, bulk and scale of a building in a mixed use zone within the Centre which adjoined a residential zone without conflicting with the negative controls in cl 28D(2).

39 The primary judge accepted the submission of the Council that cls 28D and 30 were not two inconsistent provisions that could not be reconciled as a matter of ordinary interpretation. Thus the requirement in cl 28D(2)(a) to not exceed RL 195 AHD could be reconciled with the BHP provision in cl 30 as a matter of ordinary interpretation. That conclusion of his Honour was supported by the following reasoning:

(a) Clause 28D facilitated the erection of buildings in accordance with the height and massing objectives set forth in subclause (1), including the specific objective of achieving a transition from the highest buildings stepping down towards the boundaries of the Centre;

(b) Clause 30 complemented that objective by specifying how the transition was to be achieved at the edges of the Centre where land in the mixed use zone adjoined a residential zone as in the present case;

(c) The controls in cl 28D recognised that taller buildings could impact in a general sense on overshadowing and privacy beyond the boundaries of the Centre;

(d) Clause 30 was confined to that impact around the perimeter of the Centre where it adjoined residential areas where the issues of ventilation, views, building separation, solar access, light and overshadowing were likely to be more pronounced;

(e) Clause 30 was consistent with objective (o) in cl 28B for the Centre, namely, “to protect the amenity of residential zones and existing open space … nearby the North Sydney Centre”; furthermore objectives (o) and (p) of cl 28B as well as objectives (a), (c) and (d) as stated in cl 28D(1), combined with cl 28D(5), were all generally directed to the impact on residential areas;

(f) Clause 30 was entirely consistent with, and indeed responsive to, those objectives in order to ensure an acceptable transition from and compatibility between the mixed use zone in the Centre and the adjoining residential zones. It imposed a specific control to be applied to the actual height of a specific building at the edges of the Centre subject to the exercise of a consent authority’s discretion under SEPP1;

40 As I understand his Honour’s reasoning, it was based upon three critical factors. The first was that objectives (o) and (p) of cl 28B, as well as three of the four objectives referred to in cl 28D(1) and the matters which the consent authority was required to consider under cl 28D(5), were all directed to the protection of the amenity of land within the residential and open space zones not only within but also nearby the Centre. Second, cl 30 did not apply to every site within the mixed use zone in the Centre but only to those sites within that zone which adjoined Residential or Open Space zones located within or on the edge of the Centre. Third, cl 30 was therefore no more than part of the total bundle of controls designed to ensure that development within the mixed use zone in the Centre did not cause adverse impacts on nominated sensitive areas.

The submissions on the appeal in respect to the primary issue

41 It was ultimately common ground that the term “inconsistency” in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term “inconsistency” in s 36 of the EPA Act was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Australian Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word “inconsistency” be give its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms:

“Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition' with another environmental planning instrument.”

42 The appellant submitted that the controls in both cls 28D and 30 on their face applied to the site and both effectively controlled the height of any building upon the site. There was therefore a clear potential for conflict. The possibility of that conflict was recognised by cl 28A. On the basis of the analysis of Kirby P in Coffs Harbour, the question which arose in the present case was whether there was a want of consistency, a lack of harmony or an incompatibility between the controls provided by cl 28D(2) on the one hand and that provided by cl 30(2) on the other.

43 It was submitted that the fundamental conflict between the two provisions related to the objective in each to control building height and massing. It was, so it was submitted, permissible to look at the practical effect as well as the legal operation of the two provisions in order to determine whether the operation of the dominant provision (in this case cl 28D) would be compromised. Properly applied, cl 30 would have restricted the height of the building on the site to 5 storeys (the height of the podium) whereas the application of cl 28D would produce a much higher building. Accordingly the two provisions could not operate harmoniously with respect to the site and there was, therefore, a fundamental discord between them.

44 It was further submitted that cl 28D(1) expressed an intention, in the context of the special provisions in Division 4 with respect to the Centre, to provide an exhaustive set of controls with respect to height, massing and overshadowing as well as building design with the Centre in the context of the impact of a building which complied with those controls on surrounding residential and public open space zones. It left no room for an entirely different control such as a BHP. That conclusion was supported by a reference to cl 29(2) and sheet 2 of the map (as amended by Amendment No. 9) which imposed differential height restrictions on all land within the mixed use zones other than that in the Centre where the height restriction was specifically provided by cl 28D(2)(a).

45 The appellant further submitted that the conflict between the two provisions was highlighted in the present case by contrasting the extremely detailed provisions of cl 28D with its composite shadow area as illustrated on sheet 5 of the map and its requirement, for example, that there be no net increase in overshadowing of any land between the hours of 9am and 3pm on 21 June outside the composite shadow area subject to the closely confined exceptions provided for by cl 28D(4).

46 On the other hand, the BHP in cl 30 applied generally and indiscriminately in all the mixed use zones where there was an adjoining or adjacent residential or open space zone. It was an entirely different control to the mix of controls provided by cl 28D(2) and (5). Although the specific objectives of the BHP were not dissimilar to those of cl 28D, cl 30 had a presumptive operation whether or not the adjacent or adjoining residential zoned land was already overshadowed between the hours of 9am and 3pm on 21 June. Clause 28D was not so simplistic. Thus the specific objective of cl 28D(1)(b) promoted a height and massing which was to leave no adverse impact on land or any land within the Centre or within the public open space zone or the special use areas identified on sheet 5 of the map (noting that this objective did not apply to adverse impacts on land in a residential zone). By way of contrast, the objective of cl 28D(1)(c) only sought to minimise overshadowing of land in the residential and public open space zones by a control which provided for no net increase in overshadowing between the hours of 9am and 3pm on 21 June outside the composite shadow area as shown on sheet 5 of the map.

47 A further inconsistency which, the appellant submitted, existed between the two provisions was founded in a comparison between the provisions of cl 28D(5) with those of cl 30(1)(b). The effect of the former was that, notwithstanding compliance with the relevant controls set forth in cl 28D(2), nevertheless the consent authority was required, when determining whether or not to grant consent to a development application in respect of land within the Centre, to consider the impact of the proposed development in terms of scale, form and massing within the context of the locality and landform, the natural environment and neighbouring development and, in particular, lower scale development adjoining the Centre (such as, for example, within the Residential C Zone opposite the site).

48 Even so, such amenity considerations are to be balanced against whether the proposed development provided public benefits such as those referred to in cl 28D(5)(b). On the other hand, cl 30 relates exclusively to protecting amenity and applied an inflexible and mechanical standard which leaves no room, unlike cl 28D(5), to a balancing of the factors required by consent authority to be taken into consideration under that provision. In other words, the latter imposes qualitative standards whereas the BHP is a broad numerical or quantitative control, which is not only different but also incompatible, and lacking harmony with the nature of the control provided by cl 28D(5).

49 The Council submitted that in drafting Division 4 of the LEP the draftsman must have appreciated first, that Amendment No. 9 imposed zones within the excluded area under the LEP which were quite different to the zonings prevailing under the 1989 LEP up to the time that Amendment No. 9 was gazetted. Second, the draftsman must have also appreciated the juxtaposition between the new mixed use zone in the Centre and the existing residential zones adjacent to or adjoining its boundaries such as the Residential C zone on the eastern side of Walker Street opposite the site. The relevance of the first of these points is difficult to discern whereas the second is apparently relied on as an indication that the draftsman could have intended cl 30 to apply to the Centre’s mixed use zone where it adjoins a residential zone. However, this is far from self evident given the insertion by the draftsman of cl 28A.

50 Furthermore, the Council contended that the appellant could gain no comfort from cls 31 and 32 of the LEP for although those provisions applied to the mixed use zone within the Centre, they also applied generally within the mixed use zones whereas cl 30 was confined to land within the mixed use zones which adjoined or was adjacent to land within a residential or open space zone. Accordingly, cl 30 had a much narrower operation than cls 31 and 32. The Council also submitted that whereas cl 30 would have the effect of avoiding overshadowing at all times of the year at all times of the day, there were “gaps” in cl 28D(2) in that, for instance, it only provided for no net increase in overshadowing of any land outside the composite shadow area between the hours of 9am and 3pm on 21 June. Furthermore, cl 28D(2)(b) provided only for no net increase in overshadowing of any land as distinct from buildings or dwellings outside the Centre. It was these gaps, so it was submitted, that cl 30 was intended to cover.

51 The Council therefore submitted that on the proper construction of cl 28D, it did not supplant the different work which cl 30 sought to achieve in ensuring compatibility with adjoining residential or open space zones. Accordingly, cl 28D was one, but not the only “port of call in determining an appropriate building height” for the land to which it applied. It did not “entirely contradict” the provisions of cl 30 and it was possible for effect to be given to both provisions.

Is cl 30 inconsistent with cl 28D of the LEP?

52 It is true, as the Council contends, that cls 31 and 32 apply to all mixed use zones whether within or without the Centre. However, it is important to appreciate that pursuant to those provisions, any non-residential component of a proposed building must be provided at its lower levels (in effect in a podium) and that the residential uses are to be provided in a building set back above that podium.

53 Of some significance in terms of the context within which any consistency between cls 28D and 30 needs to be considered, is the provisions of sheet 2 of Amendment No. 9 which impose differential maximum heights for buildings within the mixed use zones not within the Centre. Further, other than for two areas with nominated maximum heights of 33m and 49m respectively with a range with respect to non-residential floor space of 3:1 to 4:1, the floor space ratios for non-residential uses in the balance of the mixed use zones provide for a minimum of 0.5:1 and maximum of 2:1. On the other hand, the range within the mixed use zone in the Centre is either 3:1 to 4:1 or 4:1 to 5:1.

54 Further context is provided by the specific objectives of Division 4 which I have recorded in [25] above. Objective (h) is noteworthy in that it encourages the provision of high-grade commercial space with a floor plate, where appropriate, of at least 1000m². Given the set back requirements referred to both by the Senior Commissioner and the primary judge, it is understandable that the minimum 3:1 floor space ratio for the commercial space within the development required a podium of five floors.

55 The following factors in my opinion favour the appellant’s case of inconsistency in substance as distinct from mere form between cl 28D and 30:

(b) One of the specific objectives of the BHP as stated in cl 30(1)(a) is to

“ensure compatibility between development in the mixed use zone and adjoining residential or open space zones”

Clause 29(1)(a), which relates to the specific objectives of the building height control with respect to the mixed use zone, is in identical terms. Yet cl 29(2) which sets out the building height controls has no application to the mixed use zone within the Centre (see [15] above). The specific objectives of cl 28D which are also directed to building heights as well as massing, are in different terms to specific objective (a) of cls 29(1) and 30(1). As I have already observed, although the specific objectives of cl 28D are not dissimilar in substance to the specific objectives of cl 30, they are not identical, the most relevant difference being that to which I have just referred. This is some indication that the specific objectives of cl 28D with respect to buildings within the mixed use zone in the Centre were to be assessed differently to those applicable to the mixed use zones outside the Centre.

“provide ventilation, views, building separation, set back, solar access, light, and avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like”.

provide

minimise adverse effects...in relation to

(d) A more significant difference between cl 28D on the one hand and cl 30 on the other is that whereas the latter is subject to variation pursuant to an objection made under SEPP 1, that SEPP does not apply to the controls referred to in cl 28D(2)(a), (b) and (c): see cl 28D(3). Pursuant to cl 28D(4) specific provision is made to empower the consent authority to vary, but only to a minor extent, the operation of the overshadowing controls in cl 28D(2)(b) and (c) but subject to compliance, in particular, with subparagraphs (a), (b) and (c) of that subclause. It is noteworthy that neither cl 28D(4) nor SEPP 1 applies to the height control set forth in cl 28D(2)(a).

(e) I have not overlooked the fact that the control referred to in cl 28D(2)(d) is subject to the application of SEPP1. The point, however, is that a careful consideration of the detailed and quite complex provisions of cl 28D compared to the far more simple quantitative controls of cls 29 and 30, in my opinion, demonstrates that cl 28D was intended as an exclusive code in respect of building heights and massing of buildings within the Centre’s zones including its mixed use zone.

Coffs Harbour

inconsistency

Australian Constitution

Ferdinands v Commissioner for Public Employment

"deciding whether there is such inconsistency (‘contrariety’ or ‘repugnancy’) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question."

Ferdinands

Constitution

Coffs Harbour

Constitution

Sweedman v Transport Accident Commission

inconsistency

Coffs Harbour

56 The main point made by the Council in submitting that cl 30 has work to do notwithstanding cl 28D, is that the former only operates to apply the BHP control to a building on land that adjoins or is adjacent to land within a residential or open space zone. In other words, it does not apply generally to buildings within the mixed use zone but only, in effect, to buildings proposed to be erected on land at the edge or periphery of that zone. On the other hand, cl 28D is not so confined but operates generally within all zones within the Centre.

57 The distinction referred to is technically correct but in my opinion there is no relevant difference in substance. This is because, so far as the impact of buildings on a residential zone is concerned, cl 28D(1)(c) states as a specific objective of building height and massing controls within the Centre, the minimisation of overshadowing of land in the residential zones which include the residential zones adjacent to or adjoining the mixed use zone within the Centre. Further, the specific objective in cl 28D(1)(d) is to protect the privacy of residents not only within but also around the Centre.

58 Turning to the actual controls themselves, cl 28D(2)(b) provides for no net increase in overshadowing of any land between the hours of 9am and 3pm on 21 June outside the composite shadow area. That area is wholly outside the Centre and falls upon a number of residential zones around its periphery including the Residential C zone on the eastern side of Walker Street opposite the site. It is thus apparent that cl 28D was intended to apply to the erection of any building within the Centre which impacted upon the residential zones adjoining or adjacent to the boundaries of the Centre. This was no doubt because it was contemplated that buildings within the Centre would be higher than those within the mixed use zone in other parts of the Council’s area (apart from Milsons Point). The same comment can be made with respect to the control in cl 28D(2)(d) which specifically mandates that there will be no increase in overshadowing at any time and in any season that would decrease the amenity of any dwelling that is outside the Centre and which falls (that is, located) within the composite shadow area. There is no additional work for cl 30 to do with respect to any such dwelling at least so far as overshadowing is concerned.

59 Accordingly it is apparent that cl 28D was intended to apply to all land within the Centre including those parts which adjoined or were adjacent to residential zones. It follows in my view that the fact that cl 30 is confined to land on the periphery of the mixed use zone where that zone adjoins or is adjacent to land within a residential zone, does not “fill a gap”, as it were, in cl 28D so as to avoid the inconsistency to which I have referred.

60 I would therefore respectfully disagree with the primary judge where he concluded (at [34]) that cl 30 was capable of application independently of or in conjunction with the provisions of Division 4 merely because on the one hand it was consistent with objective (o) in cl 28B and on the other it dealt with the particular aspect of the impact around the perimeter of the mixed use zone adjoining residential areas where the issues of ventilation, views, building separation, solar access, light and overshadowing were likely to be more pronounced (see [31]). Of course it is true, as his Honour pointed out at [35], that there are general objectives in cl 28B and specific objectives in cl 28D(1) directed to the impact of the height of buildings on the adjoining residential zones. But I cannot agree with his Honour that cl 30 is entirely consistent with, and indeed responsive to, those objectives in order to ensure compatibility between the Centre and the adjoining residential zones.

61 Although it is true that the BHP prescribed by cl 30 imposes a specific control to be applied to the actual height of a specific building at the edges of the Centre, cl 28D also contains controls directed to that objective. Again I cannot with respect accept his Honour’s conclusion at [37] where he rejected the appellant’s argument that cl 28D provided an exhaustive statement on height, massing, overshadowing and building design within the Centre. The fact that cl 30 is consistent with a number of the objectives expressed in cl 28D masks the fact that there are also differences including, in particular, the significant differences between the nature of the controls in each provision designed to achieve those objectives.

62 This is particularly apparent in the provisions of cl 28D(5) relating to building design and public benefits subparagraph (a) of which is directed generally to the same objectives as cl 30 in terms of the impact of development within the Centre upon lower scale residential development adjoining the Centre. The point, however, is that cl 28D adopts an entirely different approach to the response to that impact in terms of the manner of controlling it which is simply inconsistent with and in contradistinction to the blunt BHP control provided by cl 30.

63 For the foregoing reasons, therefore, I would conclude that cl 30 is in substance inconsistent with cl 28D of the LEP with the consequence, as mandated by cl 28A, that cl 28D must prevail to the point that cl 30 has no application to the site. To the extent to which the Senior Commissioner found to the contrary and based his decision, at least in part, upon the application of cl 30 to the development, he erred in law so that the primary judge’s order remitting the proceedings to a Commissioner for determination in accordance with his reasons must be varied to provide that cl 30 of the LEP has no application to that determination.

The form of the remitter

64 In its Amended Notice of Motion by which the appellant appealed to the primary judge pursuant to s 56A of the Court Act, it sought an order that the proceedings be remitted to a judge or Commissioner of the LEC other than the Senior Commissioner. It was submitted before his Honour that the strong opposition to the development trenchantly expressed by the Senior Commissioner gave rise to a reasonable apprehension that he will decide the case adversely to the appellant in the event that it is remitted to him for further determination or, alternatively, that there is a reasonable apprehension that he will not decide the proceedings impartially in the sense that he has prejudged the very issues in respect of the very same development application which he would be required, if he was to rehear the matter, to now determine afresh.

65 The primary judge (at [72]) dealt with the appellant’s submission to him on this issue in the following terms:

“72. I agree with the overriding submission by the applicant that the Commissioner expresses his dislike of the proposal in trenchant and powerful terms and appears to have given his individuated preferences priority over the provisions and intent of the planning scheme. However I do not agree that the views expressed are such that I should make an order or recommendation that he be disqualified from hearing the matter on remitter. That decision I will leave to the exercise of the discretion of the Chief Judge when re-listing the matter.”

a

66 The appellant’s fifth and sixth grounds of appeal were as follows:

5. His Honour erred in failing to find that to avoid the appearance of bias the matter should have been remitted to a Judge or Commissioner other than the Senior Commissioner.

6. His Honour erred in failing to give reasons for the conclusions at [72] of his Honour’s judgment that he should not make an order or recommendation that Roseth SC be disqualified from hearing the matter on remitter.

67 At the conclusion of the hearing of the appeal the Court granted leave to the parties to file and serve further written submissions on the issues raised by those grounds. Those issues were:

(a) whether this Court has the power to set aside the primary judge’s remittal order and to make the exclusionary order sought by the appellant; and

68 The appellant submitted that the primary judge erred in a number of respects in the exercise of his discretion in refusing to remit the proceedings to a Commissioner other than the Senior Commissioner. The first was that he gave no or no adequate reasons for refusing the appellant’s application. Second, although he recognised the dislike of the Senior Commissioner for the development which his Honour acknowledged the Senior Commissioner had expressed “in trenchant and powerful terms” and had appeared to have given his individual preferences priority over the provisions and intent of the LEP, nevertheless he erred in his conclusion that the views expressed by the Senior Commissioner were not such that would require him to make an order or recommendation that he be disqualified from hearing the proceedings on remitter. Third, his Honour erred by leaving that decision to the exercise of the discretion of the Chief Judge pursuant to his power to delegate the hearing and disposal of proceedings to a Commissioner pursuant to ss 30(1), 34C(1) and 36(1) of the Court Act. Fourth, the strong personal views expressed by the Senior Commissioner in trenchant language did not appear to flow merely from an erroneous construction of the LEP in terms of the application of cl 30 so that the present case was not one where the Senior Commissioner had merely made an error of law which did not reflect upon his determination of the application on its merits.

69 It was thus submitted that a lay observer would perceive that the Senior Commissioner would approach the rehearing with a pre-conceived, strongly articulated view about the merits of the development to which effect would be given whatever nuances might emerge from a construction of the LEP which required him to ignore cl 30. That was sufficient, so it was contended, to establish an appearance of apprehended pre-judgment bias.

70 There is no doubt that the primary judge had power on the hearing of an appeal under s 56A(1) of the Court Act to remit the proceedings, pursuant to s 56A(2)(b), to a Commissioner other than the Senior Commissioner. So does this Court: s 57(2)(b); Supreme Court Act, 1970 s 75A(10). With the concurrence of Handley and Ipp JJA, I dealt with the circumstances in which such an order can be made in Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 at 344-347; [2003] NSWCA 189 at [16]-[25]. In that case the Commissioner’s error was a denial of natural justice. On the facts of that case I concluded (at [24]) that the Commissioner’s error involved pre-judgment of a high order necessitating remitter to a bench differently constituted. The relevant principles relating to pre-judgment are set out in my judgment in Basemount at 345-346 [19]-[22]. However I emphasised at 346[25] that I was not intending to lay down any principle of general application to s 56A appeals as the appropriateness of an exclusionary order on a remitter will always depend on the facts and circumstances of the particular case.

71 The power of an appellate tribunal to direct a hearing by other than the original judicial officer was recently referred to by this Court in Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208. The Tribunal in that case was the Dust Diseases Tribunal in respect of which it was held that the first instance Tribunal member had denied the appellant procedural fairness. An issue therefore arose as to whether the proceedings should be remitted to the Tribunal differently constituted.

72 Mason P expressed his views on this issue in the following terms:

“12. The power to direct a hearing by other than the original judicial officer is used sparingly and only when it appears to the appellate court that it is appropriate in the interests of justice (see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538[62] , 556[123] and authorities there cited). Something more than error, to which all are prone, must be demonstrated. Where the proceedings below have been conducted in such a manner as to give rise to a reasonable apprehension of bias this will usually ground such an order. But the power is not limited to such a situation.

13. There can be cases where a complicated process of fact-finding has miscarried through a combination of factors. The interests of justice, including its appearance, may require that the new trial take place before a differently constituted court or tribunal. …

14. This is not to imply that the former decision-maker might start the new trial with the disposition in favour of the party originally successful. Indeed, there may be risks of compensatory bias or its appearance (cf my paper on ‘Unconscious Judicial Prejudice’ published in (2001) 75 ALJ 676) that may properly be taken into account. This Court’s concern lies with avoiding the appearance of pre-judgment.

73 In the same case Basten JA, after referring to the breadth of the power in s 32(2) of the Dust Diseases Tribunal Act 1989 (which is in similar terms to s 56A(2) of the Court Act), noted (at [234]) that despite its breadth any additional order must be made pursuant to the power in accordance with “sound principle”. His Honour then referred relation to the constitution of the Tribunal in any particular case being vested in its President in the same manner as under the Court Act it is vested in the Chief Judge.

74 Basten JA then continued in these terms:

235. If there is some particular reason why one member of the Tribunal should not sit there is no reason for this Court to assume that the President will assign, or continue to assign the same member to the proceeding, at least in the absence of some suggestion to the contrary. Similarly, if one of the parties has reason to request that a particular member disqualify himself or herself, that application should be made in proceedings before the Tribunal and should be dealt with by the member. If such an application is not properly dealt with, that party may seek to challenge any operative decision of the Tribunal as one with which it is dissatisfied in point of law.

Minister for Immigration and

Multicultural Affairs v Wang

‘It was the Principal Member who had the primary responsibility of deciding what was in the interests of the efficient conduct of the review. In the ordinary case, it would be the Principal Member who would be in possession of the information necessary for a proper discharge of that responsibility. The Principal Member allocates work among Tribunal members, is aware of their commitments and availability, and makes administrative arrangements within the Tribunal.’

As his Honour noted at [12], there are limits on the power of a court to inquire into the reasons for a decision to assign a judge to a particular case and mechanisms for a party to take objection.

Smith v NSW Bar Association

‘As the members of the Court of Appeal have twice made a voidable finding on the issue of truthfulness of the appellant, and as the matter must be heard afresh by the Court of Appeal, it would be inappropriate to ask the judges who had constituted that Court to re-assess de novo the appellant’s truthfulness. The matter must therefore be remitted for hearing by a Court differently constituted.’

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal

239. Although it is no doubt true that orders as to the constitution of administrative tribunals have often been made in the past, in my view a court should be slow to make such an order, in the absence of circumstances which clearly demonstrate that such an order is appropriate and necessary, in the interests of justice. That reticence should increase in relation to the constitution of a statutory tribunal created as a court of record. Such orders demonstrate a lack of confidence on the part of the Court in the ability of the Tribunal properly to organise its own affairs. Such an approach requires the articulation of sufficient reasons. If the test of the appropriateness of such an order is the need to do justice between the parties, it is also relevant that neither party sought such an order. To make such an order where the significant error on the part of the Tribunal was its failure to accord procedural fairness, is not without irony.”

Seltsam

75 The third member of the Court, Ipp JA, agreed with Mason P and added the following:

“142. I have also read what Basten JA has written at [239]. It is not an extraordinary occurrence for this Court to order that the case be heard afresh by a different judge. Mason P has referred to examples of cases where this has occurred. Where a judge has made credibility findings and has indicated a preference for a particular witness or witnesses or has failed to accord a party procedural fairness, the proper administration of justice may require the making of such an order. The need to do so will then arise not because of any established or presumed bias on the part of the judge but simply because of the public interest in providing the appearance of impartial justice. Often, the Court will make such an order of its own motion without hearing the parties. This practice recognises that the identity of the judicial officer who is to hear a particular case should not be regarded as a matter that could benefit or prejudice a particular party. It is not a requirement of procedural fairness that the parties be informed that the remitted trial be heard before a new judge. Moreover, it would often be invidious for a party to seek such an order.”

76 Like Mason P, I agree with Basten JA that this or any other Court should be slow to make an order that proceedings be remitted to a judicial officer other than the officer who heard the original proceedings. However, I respectfully disagree that the curial reticence to make such an order should increase in relation to the constitution of a statutory tribunal created as a court of record or that the making of such an order demonstrates a lack of confidence on the part of the Court in the ability of the relevant tribunal properly to organise its own affairs. I therefore agree with the approach of Mason P and Ipp JA which I have recorded in [72] and [75] above respectively.

77 The Council submitted that having made an order pursuant to s 56A(2)(b) of the Court Act that the proceedings be remitted to “a Commissioner” for determination in accordance with his reasons, the primary judge had acted within power by leaving it to the Chief Judge when re-listing the matter to identify the Commissioner who was to re-hear the appellant’s application. Being within power, no error in the exercise of his Honour’s discretion to make the remittal order he did had been demonstrated.

78 Reference was then made to the following passage from the judgment of Callinan J in Antoun v The Queen (2006) 80 ALJR 497 at 517; [2006] HCA 2 where he said:

Ebner v Official Trustee in Bankruptcy

might

if the matter has already been decided, the test is one which requires no conclusion about what factors

actually

influenced the outcome

108 The second issue raises different considerations, as to whether there was any question of law determined by the primary judge in formulating an order for remitter; these considerations differ from the kind of question raised in relation to the first issue and will be separately addressed in relation to the second issue.

Approach to inconsistency

109 Before considering the operation and effect of cls 28D and 30, taken in the context provided by the Plan, it is convenient to consider the operation of cl 28A, which provides that the provisions of Division 4 (which includes cl 28D) will “prevail over all other provisions of this plan, to the extent of any inconsistency” with the exception of Heritage provisions. This clause was relied upon by the Appellant for the proposition that concepts developed in the context of s 109 of the Constitution, including the “covering the field” test may properly be applied in considering the inter-relationship of Division 4 and other parts of the Plan, because Division 4 is expressly given paramountcy over other provisions. A secondary argument based on this clause was that the Minister, in making the amendment which incorporated Division 4 into the Plan expressly recognized the possibility of inconsistency, a fact which undermined the usual presumption that an instrument was intended to operate as a coherent whole, without internal inconsistencies. A third and consequential inference, which supported the claim of actual inconsistency in the present case, derived from the difficulty in identifying significant inconsistencies other than those which appeared to arise as between cls 28D and 30.

110 These contentions overstate the appropriate inferences to be drawn in the context of the Plan. There is a significant difference between the conferral of primacy to one part of an instrument over other parts, and, on the other hand, conferring paramountcy to the laws of the Commonwealth, over those of the States. An example of the former may be found where a particular instrument contains a description of land and a diagrammatic representation. The obvious intention of the drafter will be to ensure, as far as possible, that the two specifications are consistent with each other. However, in case there is a flaw in the achievement of that purpose, it is as well to give a rule for determining which form of identification is to prevail. By contrast s 109 of the Constitution engages quite different concepts. For example, the legislature may be assumed to know what laws it has passed on a particular subject matter, but there is no assumption that it knows of the range of statutes passed by other subordinate legislatures. Further, where the Commonwealth Parliament legislates, its laws may be expected to apply uniformly throughout the country, unless there is a contrary indication: this expectation may give rise to its own rules of construction.

111 There are indications in the Plan that the Minister sought to avoid identifiable conflicts. Thus, there are significant areas of commercial zoned land within the North Sydney Centre, and the specific provisions relating to commercial zoning, contained in Division 4A, expressly operate only in relation to the commercial zone outside the Centre. In relation to the other major zone in the Centre, the preferable inference is that the Minister, in amending the Plan, appreciated that both Division 4 (North Sydney Centre) and Division 5 (mixed used zone) operated with respect to development in the North Sydney Centre, but were expected to operate consistently, although the possibility of conflict was acknowledged. Nevertheless, the fact that concurrent operation was permitted, with respect to Divisions 4 and 5, provided a clear indication that the Minister considered, not only that the two could operate consistently together, but that the Division 4 was not intended to be an exhaustive statement with respect to controls applicable to land with a mixed use zoning within the North Sydney Centre.

Operation of clauses 28D and 30

112 At the heart of the Appellant’s argument were two propositions: first, cls 28D and 30 operated in the same area and, secondly, cl 28D permitted that which cl 30 sought to prohibit. In one sense, these propositions are inseverable. Thus, if cl 30 were to operate in a different context, it would have to be conceded that it might impose an additional, but consistent, control. Thus, if one clause were directed to limitations on height, and the other to external finishings, it could not be said that the former “permitted” any building within the prescribed height limit: other forms of control could operate conformably with the height limit to preclude some kinds of construction of buildings falling within that limit.

113 This combination of elements was necessary because the critical controls imposed by cl 28D on “building heights and massing” required that “consent must not be granted” unless the prescriptions were satisfied. Clause 30 was in similar language, imposing a “building height plane” absent compliance with which “a building must not be erected”. Each involved the language of prohibition and not permission. As cl 28D itself makes clear, compliance with the prescriptions in sub-cl (2) will not entail a grant of consent, but only the removal of a barrier to consent. Thus, the consent authority will still be required to assess the application in accordance with the factors set out in sub-cl (5).

114 The constraints contained in sub-cl 28D(2) fall into three categories. Two involve a quantitative measure. Thus paragraphs (a) and (d) impose numerical restraints on height and site area, the former being a ceiling and the latter a minimum standard. Each of paragraphs (b)-(d) are concerned with “overshadowing” and involve elements of mechanical proscription and elements of evaluative judgment. Thus paragraph (b) refers to the “composite shadow area” which has been calculated between certain hours on a particular day of the year, namely between 9am and 3pm on 21 June. The composite shadow area, defined on sheet 5, of the maps attached to amendment no. 9 to the Plan, indicates shadowing to the east, south and west of the North Sydney Centre, and appears to indicate the extent of the shadow as it moved during the six hour period. A new building could increase overshadowing within that area, by extending the period of overshadowing, but that is not caught by paragraph (b), because it only applies to land outside that area. Relevantly for present purposes, land outside that area will be land outside the North Sydney Centre, as the composite shadow area does not operate within the Centre. So far as land within the Centre is concerned, the relevant control is in paragraph (c), which may be put to one side for present purposes. Finally, an increase in overshadowing that would affect any “dwelling” outside the Centre, but “within the composite shadow area”, is dealt with by paragraph (d).

115 It is clear that, depending upon the surrounding buildings, cl 28D(2)(b)-(d) could operate to prohibit construction of buildings anywhere within the North Sydney Centre, including by the expansion of an existing building, either in height or mass, or both. However, the controls, whilst concerned with loss of amenity for “dwellings” and other buildings, only address such loss of amenity by way of “overshadowing”. Clause 30, on the other hand, involves a quantitative control, which operates with respect only to those buildings in the mixed use zone which adjoin or are adjacent to land within a residential or open space zone. The building height plane, as defined in Schedule 2 of the Plan, is a flat surface, projecting at an angle of 45º over a site commencing at a specified height along the boundary of the site or, relevantly, the centre of any road which separates the land from land within a residential C zone: see Schedule 2, and cl 30(2)(d).

116 The specific objectives of the building height plane are identified in sub-cl 30(1) generally in terms of ensuring compatibility between development in a mixed use zone and an adjoining residential or open space zone and, more specifically, as being to:

117 Significant areas of the North Sydney Centre are zoned for mixed use and adjoin residential areas. It is reasonable to infer that the Minster was fully aware of the potential operation of cl 30 when introducing amendment no. 9 to the Plan. Further, it should be inferred that the Minister was aware that cl 30 involved a range of objectives which were both more specific and more extensive in their effects than the objectives found in cl 28D. So far as cl 30 affected land zoned for mixed use within the North Sydney Centre it provided an additional control, for defined objectives.

118 The Appellant sought to derive comfort from the fact that the combined requirements of the provisions relating to mixed development with both residential and non-residential uses, together with the prescribed floor space ratios, would have rendered the proposed development impracticable. However, that argument was based on the proposition that the podium, containing the non-residential development, would not be reduced. Clearly the effect of applying the building height plane, with such amelioration pursuant to an objection under SEPP 1 as might be thought appropriate, would require a significantly scaled down design.

119 The other aspect of practical conflict relied upon by the Appellant was that one underlying objective of the North Sydney Centre controls, which involved a transition of building heights, as reflected in cl 28D(1)(a) “stepping down towards the boundaries of the North Sydney Centre”, would have permitted a height on the subject land of “RL175AHD”. The submission continued:

“If the building height plane applied to the subject land, it would produce a building with an RL of less than 90 metres … . Roseth SC accepted that this would be unreasonable and that a building to RL103 could be acceptably constructed on the subject land: [32].”

120 The assumption behind these contentions is that the purpose of Division 4 was to permit development within North Sydney Centre to the maximum extent permissible under the quantitative controls. However, there are two flaws in that assumption. The first is that, as already noted, compliance with the requirements of cl 28D did not engage a right to consent, but merely avoided a prohibition on consent. Secondly, the assumption assumed the conclusion sought to be reached, namely that the controls contained in Division 4 were exhaustive and exclusive in relation to the developments within the North Sydney Centre. Apart from the obvious difficulty of circularity, for reasons already noted, there were clear indications in the Plan that that was not so. Indeed, the contentions themselves rely upon the operation of cls 31 and 32, which are contained within Division 5. The contentions did not, in my view, diminish in any respect the conclusion reached above, that cll 28D and 30 were able to, and were intended to, operate concurrently. They were, therefore, not inconsistent for the purposes of cl 28A.

121 Although differently expressed, these reasons are consistent, in respect of questions of law, with the reasoning of the primary judge. I can discern no error of law in his Honour’s decision with respect to these issues. The Appellant’s contentions to the contrary should be rejected.

Form of remitter

122 The second issue involved a challenge to the failure of Talbot J to require that a rehearing be conducted by a Commissioner other than Commissioner Roseth. The primary judge identified errors of law made by the Commissioner which are not the subject of challenge in the present proceedings. Upon reaching that conclusion, his Honour’s powers were specified in s 56A(2). In order to appreciate the context in which that operates, it is convenient to set out both sub-ss (1) and (2) of s 56A.

“56A (1) A party to proceedings in class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall:

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court; or

(b) make such other order in relation to the appeal as seems fit.”

123 Where error is not identified, the appropriate order would be an order dismissing the appeal, pursuant to par (b). Where an error on a question of law is identified, but is one which would not reasonably be supposed to have had some possible influence upon the result, an order dismissing the appeal would again be appropriate: see Roads and Traffic Authority v Damjanovic [2006] NSWCA 166, (2006) 146 LGERA 403 at [112] (Tobias JA). Where, as in the present case, the Court is limited to determining whether there has been an error with respect to a question of law, and has no authority to examine factual findings, it will be rare that an error will not result in remittal. The jurisdiction is analogous to that which arises where a party has been denied procedural fairness. As McHugh J noted in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [104], referring to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145:

“Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome’.”

Damjanovic

124 Reading sub-s 56A(1) and (2) together, it appears that a remittal pursuant to par (a) would be a remittal to the Commissioner or Commissioners who made the order the subject of the appeal. However, that may not necessarily be so and the structure of the legislation may be inconsistent with the power of a court to identify the individual in the tribunal below who is to deal with the matter on remittal: see Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518. On the other hand, a direction that a particular Commissioner should not exercise the jurisdiction impinges upon, though to a lesser extent, the power of the Chief Judge to make arrangements as to who is to exercise the Court’s jurisdiction in a particular matter: see Land and Environment Court Act, s 30(1) and (2). The question in the present case is not whether the Court should have been differently constituted for the purposes of the remittal, but whether Talbot J erred in law in failing to order that the Court be differently constituted.

125 In support of the conclusion that there was error in the approach his Honour adopted, the Appellant referred to submissions made before Talbot J seeking remittal to another Commissioner, which were expressed in the following terms:

Baulkham Hills Shire Council v Basemount Pty Ltd

126 Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189, (2003) 126 LGERA 339, was a decision of this Court in which the principal judgment was delivered by Tobias JA, with whom Handley and Ipp JJA agreed. The Court held that the primary judge (Pearlman CJ) had erred in failing to direct that a matter be remitted to a Commissioner other than the Commissioner who had first determined the case. The Court held, on the basis of cases in which decisions were set aside because of a reasonable apprehension of bias, that, the Commissioner having decided the merits of the application which was being remitted to her, the correct order in the Land and Environment Court was that the matter should be remitted to a different Commissioner: see also Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269. The precise legal error on the part of the Chief Judge was not identified, but it must have involved a conclusion that, in the exercise of discretionary power, no other order was reasonably open. Given that the power should be exercised “sparingly” and with “caution”, as suggested by Mason P in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [12]-[15], Ipp JA agreeing at [141], that conclusion must be exceptional. As Tobias JA expressly noted in Baulkham Hills v Basemount, it is not every error of law which will require that the Commissioner who determined the question at first instance should be prevented from hearing the matter again.

127 Supporting the caution with which the power should be exercised is not only the requirement to demonstrate an error of law in the exercise of a discretionary judgment on the part of the primary judge, but also the fact that such an order would involve a judge of the Court overriding the statutory conferral of power on the Chief Judge of the Land and Environment Court to allocate the business of that Court and also the side-stepping of the usual course of permitting the judicial officer in question to decide whether or not an application for recusal should be allowed. Further, there is no appeal from such a decision unless and until an adverse order is made which the unsuccessful party on the recusal application can then challenge: see Rajski v Wood (1989) 18 NSWLR 512, 517-518 (Kirby P); 522-523 (Priestley JA) and 524 (Hope AJA).

128 The error of law identified by the Appellant in the present matter is that, having agreed with the description of the Senior Commissioner’s opinions identified in the Appellant’s submission in the Land and Environment Court, the primary judge merely stated, at [72]:

“However I do not agree that the views expressed are such that I should make an order or recommendation that he be disqualified from hearing the matter on remitter. That decision I will leave to the exercise of the discretion of the Chief Judge when re-listing the matter.”

129 The Appellant noted that the Chief Judge had in fact remitted the matter to Senior Commissioner Roseth: however, that fact cannot demonstrate relevant error of law on the part of the primary judge and should properly be disregarded.

130 In effect the Appellant’s contention is that, absent any reasons to the contrary, it should be accepted that the test for reasonable apprehension of bias must have been satisfied and the order sought should have followed as of course.

131 Of some importance in assessing the need for an order directing that the Commissioner who heard the matter at first instance should not rehear the matter on remittal, will be the nature of the errors identified in his or her judgment. The submission made by the Appellant before Talbot J was almost as terse as the reasons in rejecting it. No doubt an assumption behind the submission was that the Appellant had succeeded on some or all of its challenges, although it did not succeed on all and that may have been a valid basis for rejecting the request. Similarly, the view of this Court in relation to this ground, must depend in part on the result achieved by the Appellant on the first ground of appeal. If that ground be rejected, it is necessary to identify the remaining grounds which were upheld by Talbot J.

132 There is no doubt that the ground addressed above was the primary challenge advanced by the Appellant before Talbot J and dealt with by his Honour at [13]-[40]. He rejected that challenge. The second challenge, which his Honour upheld, was based on an assumption that cl 28D(2)(d) involved a development standard, but that the objection raised by the Appellant under SEPP 1 was not well-founded. His Honour held that the Commissioner’s assessment of the effect of the proposed development with respect to shadows cast on 20 floors of the Century Plaza building was in error, because there was no attempt to identify the “existing shadow impact” on the affected floors: at [41]-[48].

133 The third error asserted a failure on the part of the Senior Commissioner to consider the “desired future character of the precinct” as required by cl 9 of SEPP 65. His Honour appears to have taken the view that, because cl 30 of the Plan operated, this may not have been a material error, at least taken in isolation: at [49]-[58].

134 The fourth error was said to be an error to take into account the “character statement” with respect to the desired future character of the North Sydney Centre, which his Honour was satisfied was taken into account and against which conclusion there is no appeal: see [59]-[61].

135 Other grounds of appeal were rejected.

136 Underlying the complaints that certain matters which were mandatory considerations were not properly addressed by the Commissioner, was the proposition that he had applied “his own subjective planning opinion” rather than giving due consideration to the mandatory considerations set out in the planning instruments. These were described by the Appellant (and by his Honour) as “individuated preferences”.

137 Where the primary decision-maker has expressed strong views on the merits of an application, that would not necessarily demonstrate error in concluding that the matter should be remitted to him for further consideration. The assessment of such an application requires evaluative judgments on matters about which minds could reasonably differ. In some cases, a strongly held opinion may be justifiable despite an error in respect of some particular consideration. However, in the present case it does appear that the errors identified by Talbot J and unchallenged in this Court were material to the final opinion as to the qualitative aspects of the development. In my view the primary judge needed to address that difficulty before rejecting the Appellant’s request for remittal to another Commissioner. Having decided that this was not an appropriate case in which to ignore the errors as errors which did not give rise to the possibility of a different result, these matters needed to be addressed. At [70] his Honour appears to have considered the possibility that the Commissioner had indeed considered relevant matters, but had failed to provide reasons demonstrating that approach.

138 Nevertheless, having found that the errors of law had been substantiated, and that a different result was “conceivable” it was necessary to address the question whether, given the firm opinion adverse to the application already disclosed, the Commissioner could be seen to have prejudged the outcome and as not able to assess the application objectively and afresh. Perhaps ironically, there may be greater difficulty in impartial reassessment in circumstances where the identified errors might be dismissed as having only marginal relevance to the opinion formed.

139 The primary judge accepted that he had power to make the order sought and also accepted the factual premise upon which it was sought. What he did not expressly address was the criterion on which the order was sought, namely a reasonable apprehension of pre-judgment, should the same Commissioner be required to reconsider the application. I doubt if Talbot J entirely ignored this consideration, but it provided a proper basis for such an order and, the factual basis for it being accepted, it was insufficient for his Honour to reject it without indicating any reason for that conclusion. In the circumstances, I would infer that he misdirected himself as to the critical consideration.

140 In reaching that conclusion I have applied the test which appears to have been accepted in the authorities that despite the factors set out at [127] above, where an appeal judge is persuaded that remittal to the person who has already formed a view on the merits of an application for reconsideration of that view will give rise to a reasonable apprehension of bias, justifying remittal to a different officer, where the legal errors identified directly affect the formulation of the relevant opinions. If this Court, in the exercise of a jurisdiction restricted to error of law, has in the past adopted a practice of making such orders in other circumstances, I am not persuaded that that would be a proper exercise of its jurisdiction and I have not approached the matter on that basis: cf Seltsam Pty Ltd v Ghaleb at [142].

141 The next question is what relief is appropriate. As already noted, more than one result was reasonably open. The choice was to be exercised by the Land and Environment Court. In these circumstances, for reasons which are set out in Seltsam Pty Ltd v Ghaleb at [162]-[166], I do not think that it is appropriate for this Court to exercise the power conferred on the Land and Environment Court, despite the absence of any express fetter on the discretion granted to this Court to make “such other orders in relation to the appeal as seems fit”: Land and Environment Court Act, s 57(2)(b). Accordingly, the order should be set aside and the matter remitted to that Court for it to determine the appropriate order, according to law, as explained by the judgments in this Court.

142 I would propose the following orders:

(1) Set aside order 2 made by Talbot J on 3 August 2006 and remit the matter to the Land and Environment Court for a judge of that Court to determine whether the order of remittal to a Commissioner include the words “(other than the Senior Commissioner)”.

(2) Otherwise dismiss the appeal.

143 BELL J: I agree with the orders proposed by Tobias JA for the reasons that his Honour gives.

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Citations

Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164

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Statutory Material Cited

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Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468

Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189

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Reported Decision:	155 LGERA 52
Appeal Outcome:	Special leave application discontinued - 4 October 2007

CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164
HEARING DATE(S):	5 April 2007
JUDGMENT DATE:	27 July 2007
JUDGMENT OF:	Tobias JA at 1; Basten JA at 104; Bell J at 143
DECISION:	(a) Appeal allowed; (b) Set aside Order 2 made by Talbot J on 3 August 2006 and in lieu thereof order that the proceedings be remitted to a Commissioner other than the Senior Commissioner for determination in accordance with the reasons of Talbot J as varied by the reasons of the Court of Appeal to the effect that cl 30 of North Sydney Local Environmental Plan 2001 shall have no application to that determination; (c) Order (b) to take effect as of 3 August 2006; (d) The respondent to pay the appellant’s costs of the summons for leave to appeal and of the appeal
CATCHWORDS:	LOCAL ENVIRONMENT PLAN – Interpretation – Whether building height provisions are inconsistent – North Sydney Local Environment Plan 2001 cll 28A, 28D, 29, 30, 31, 32 - LAND AND ENVIRONMENT COURT – Appeals – Apprehended bias – Where Senior Commissioner expressed strong opposition to the application – Whether matter should be remitted to a Commissioner other than the Senior Commissioner
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environment Plan 2001 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Antoun v The Queen (2006) 80 ALJR 497 [2006] HCA 2 Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 [2003] NSWCA 189 Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 5 Castle Construction Pty Ltd v North Sydney Council [2006] NSWLEC 468 Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 Collector of Customs v Agfa-Gevaert Ltd (1995-1996) 186 CLR 389 [1996] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 [1993] FCA 456 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [2000] HCA 63 Emanuele v Australian Securities Commission (1997) 188 CLR 114 [1997] HCA 20 Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 [2006] HCA 5 Hartley Poynton Ltd v Alley (2005) 11 VR 568 [2005] VSCA 53 House v The King (1936) 55 CLR 499 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 [2003] HCA 11 Rajski v Wood (1989) 18 NSWLR 512 Re Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82 [2000] HCA 57 Roads and Traffic Authority v Damjanovic (2006) 146 LGERA 403 [2006] NSWCA 166 Seltsam Pty Limited v Ghaleb (2005) 3 DDCR 1 [2005] NSWCA 208 Smith v New South Wales Bar Association (1992) 176 CLR 256 Stead v State Government Insurance Commission (1986) 161 CLR 141 Sweedman v Transport Accident Commission (2006) 224 ALR 625 [2006] HCA 8
PARTIES:	Castle Constructions Pty Ltd North Sydney Council
FILE NUMBER(S):	CA 40533/06
COUNSEL:	Cl:.T F Robertson SC / J E Lazarus Opp: M Craig QC / Heather Irish
SOLICITORS:	Cl: Aitken McLachlan Thorpe Lawyers, Sydney Opp: Mallesons Stephens Jaques, Sydney
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 11010/05
LOWER COURT JUDICIAL OFFICER:	Talbot J
LOWER COURT DATE OF DECISION:	3 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Castle Constructions Pty Ltd v North Sydney Council [2006] NSWLEC 468