CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council - [2010] NSWLEC 69

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
CPT Manager Limited (acting as trustee of the Broken Hill Trust)
FIRST RESPONDENT
Broken Hill City Council
SECOND RESPONDENT
Leasecorp Holdings 1 Pty Limited
THIRD RESPONDENT
Broken Hill Developments Pty Limited

FILE NUMBER(S): 40831 of 2009

CORAM: Craig J

KEY ISSUES:
JUDICIAL REVIEW :- apprehended bias - prejudgment - area of public road included in development site - concurrent consideration of application for road closure under the Roads Act 1993 and development application under the Environmental Planning and Assessment Act 1997 - decision by Council to apply for road closure and agree upon price for sale of road made prior to determination of development application - separate statutory functions being performed - no apprehension of bias by prejudgment
JUDICIAL REVIEW:- apprehended bias - prejudgment - failure to give reasons for decision to grant development consent - reasons for decision not required by statute - Model Code of Conduct adopted under the Local Government Act 1993 did not create an expectation for reasons to be given - no apprehension of bias by prejudgment
JUDICIAL REVIEW:- apprehended bias - prejudgment - alleged meeting between decision-maker and development applicant - not established that meeting took place - equal opportunity to meet decision-maker given to objectors - role of consent authority under the Environmental Planning and Assessment Act 1979 - no apprehension of bias by prejudgement
PROCEDURAL FAIRNESS:- development application required by development control plan to be advertised - advertisement to be placed in a local newspaper “for a minimum of 28 days” - principles for construing the advertising requirement - advertising on 28 separate occasions not required - requirements of the development control plan met - no breach of s 79A(2) of the Environmental Planning and Assessment Act 1979
COST:- whether order for costs should be made in favour of the Council as well as the developer respondents - concurrent exercise of functions under the Roads Act 1993 and the Environmental Planning and Assessment Act 1979 - issue of general importance for the Council - active participation in the proceedings by the Council appropriate and reasonable - applicant ordered to pay the Council’s costs together with those of the other respondents

LEGISLATION CITED: Broken Hill Commercial Development Control Plan No. 2
Broken Hill Local Environmental Plan 1996
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Roads Act 1993
The City of Broken Hill Notification Development Control Plan No. 5
Uniform Civil Procedure Rules 2005

CASES CITED: Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154
Australian Leisure and Hospitality Group Ltd v Manly Council No. 4 [2009] NSWLEC 226; (2009) 172 LGERA 1
Bermingham v Corrective Services Commission of NSW [1988] 15 NSWLR 292
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No. 2) [2010] NSWLEC 1
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379
Currey v Hargraves [2007] NSWLEC 471; (2007) 155 LGERA 91
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250
Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 168 LGERA 269
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Matic v Mid-Western Regional Council [2008] NSWLEC 113
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pearse v Sharpe (No 2) [2008] NSWLEC 81
Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656
R v Commonwealth Conciliation of Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Repatriation Commission v Vietnam Veterans’ Association of Australia [2000] NSWCA 65; (2000) 48 NSWLR 548
Shellharbour Council v Rovili Pty Ltd (1989) 16 NSWLR 104
Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148)
Sydney City Council v Claude Neon (1989) 15 NSWLR 724
Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006)149 LGERA 329
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245

DATES OF HEARING: 11, 12 March 2010

DATE OF JUDGMENT:
10 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr A E Galasso SC
SOLICITORS
Gadens Lawyers
FIRST RESPONDENT
Mr T F Robertson SC
SOLICITORS
Pikes Lawyers
SECOND and THIRD RESPONDENTS
Mr I J Hemmings (Barrister)
SOLICITORS
RMB Lawyers with Kearns & Garside

JUDGMENT:

THE LAND AND ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

10 June 2010

09/40831 CPT MANAGER LIMITED (ACTING AS TRUSTEE OF THE BROKEN HILL TRUST) v BROKEN HILL COUNCIL & ORS

JUDGMENT

1 HIS HONOUR: A review of past litigation in this Court reveals that an application for, or grant of, development consent for the establishment of a new stand-alone shopping centre in an urban environment is frequently attended by controversy. No less is that the case in respect of a proposed new shopping centre in the City of Broken Hill. Development consent for such a centre was granted by the respondent Council upon the resolution of its Administrator, Mr K Boyle, on 19 August 2009 (the Consent). It is that Consent which the applicant seeks to impugn in these proceedings.

The development application: a synopsis

2 The site, which is the subject of the Consent, has frontage to Gossan, Blende and Galena Streets and also to South Road in Broken Hill. It is said to have an area of about 44,840m². The shopping centre, as approved, is to comprise a discount department store, a supermarket, a discount variety store, 12 speciality shops and a kiosk. The building in which these various retail outlets are to be located is said to have a total floor area of 12,996m² with a gross lettable area of 10,915m². Parking for some 548 cars is provided at grade, with the car park area occupying almost all of the site not occupied by the single storey building which is to contain the approved retail facilities. (There appears to be some discrepancy among the documents tendered as to the precise nomination of the various areas mentioned in this paragraph and in the final car park numbers but nothing turns upon those discrepancies in resolving the issues in these proceedings.)

3 The development application which ultimately resulted in the grant of the Consent was an application lodged with the first respondent (the Council) on 23 August 2007. Between the date of lodgement and the date of determination, the development application was amended more than once and in several different ways. It will be necessary, in due course, to discuss the detail of some of those amendments. However, it is sufficient for the present to note one such amendment.

4 After lodging the development application with the Council, the second and third respondents (together referred to as Leasecorp), or entities controlled by them, acquired a number of allotments of land adjacent to the development site identified in the application lodged on 23 August 2007. Land so acquired included allotments having frontage to Gossan Street located either side of and bounded by an unnamed lane (the Lane). The Lane, which had been dedicated as a public road, formed a ‘T’ intersection with Gossan Street and provided access from that street to a large ‘internal’ parcel of land. That ‘internal’ parcel was part of the proposed development site. As a consequence of this land acquisition, the identification of the development site in the development application was amended so that the area of land to which it ultimately related included not only the original parcel of land but also the newly acquired land, together with the area of the Lane. While the Lane had originally been shown in the development application as an access road and also an area to be used for limited parking, the amendment sought to include it as an area solely devoted to car parking for the shopping centre.

5 Prior to its determination of the development application, the Council had resolved to apply to the Minister for closure of the Lane, as a public road, under the provisions of the Roads Act 1993. It had also accepted the price offered by Leasecorp to purchase the Lane, once the Minister had determined (assuming he did) to close the road.

The applicant’s challenge

6 By its summons dated 5 November 2009, the applicant seeks a declaration that the Consent “is invalid and of no effect”. It also seeks consequential relief by way of injunction, restraining Leasecorp from acting upon the Consent.

7 Expressed summarily, there are two grounds upon which the applicant seeks to found its claim for declaratory and injunctive relief by reason of breach of the Environmental Planning and Assessment Act 1979 (the EPA Act): s 123. The first asserts apprehended bias on the part of Mr Boyle, in his capacity as the Administrator of the Council. The form of apprehended bias alleged is prejudgment. That prejudgment is said to have been manifested in three ways. The first is by the decisions of Mr Boyle, made prior to the determination of the development application, both to apply to the Minister to close the Lane and also to agree upon the price at which it would be sold to Leasecorp, following closure.

8 The second manifestation of prejudgment is said to arise from the failure by Mr Boyle to provide any or any cogent reasons for the decision to grant the Consent in the face of a recommendation from independent consultants retained by the Council that such consent be refused. The third manifestation of prejudgment is said to arise from a letter sent by the Council on 4 December 2008 to an executive of Leasecorp, inviting him to attend an onsite meeting with Mr Boyle on 18 December 2008, described on behalf of the applicant as a “private meeting”.

9 It will be necessary to examine the facts concerning each of these three claimed indicia of prejudgment. However, it is sufficient for present purposes to note that the applicant relies upon them either individually or collectively as evidence of the prejudgment which it asserts.

10 The second broad basis for the applicant’s claim to invalidity of the Consent is articulated under the rubric of “procedural fairness”. This basis of challenge alleges a failure on the part of the Council to comply with its own development control plan imposing requirements for the advertising of development applications. While it is acknowledged that the development application, both in an early form and in its finally amended form, was advertised, the frequency with which advertisements were published is said not to have conformed to the requirements of the development control plan.

11 Save for a narrow issue of fact concerning the holding of the “private meeting” alleged by the applicant to have taken place (referred to in [8]), the facts otherwise relevant to be considered for the purpose of determining the applicant’s challenge are not in contest. The parties agree that those facts are found in a bundle of documents extracted from the files of the Council and tendered at the hearing without objection (Exhibits A and 1R1). It is the analysis of those facts and inferences to be drawn from them which found the debate between the applicant and the respondents.

An Administrator is appointed to the Council

12 On 12 January 2007, all civic offices in Broken Hill City Council were declared by Proclamation to be vacant and Mr K Boyle was appointed as its Administrator. Mr Boyle’s appointment took effect from that date and his tenure was expressed to continue until the holding of fresh elections on 5 December 2009. The declaration and appointment were effected pursuant to ss 255 and 256 of the Local Government Act 1993.

13 Importantly, Mr Boyle acted as the Administrator of the Council at all times relevant to the determination of these proceedings. In so acting, Mr Boyle was vested with power to exercise all of the functions of the Council: s 258(1)(b) of the Local Government Act. Those functions included the function of the Council as a consent authority under the EPA Act.

The development application and its determination

14 In order to address the issues it is necessary, at a level of some generality, to record the progress of the development application from the time of its lodgement until its determination. More detailed consideration will need to be given to some of the steps or events along the path to determination, so far as those steps or events are relevant to the different bases of challenge made by the applicant to the validity of the Consent.

15 As I have earlier recorded, the development application which is germane to these proceedings is that which was lodged by Leasecorp with the Council on 23 August 2007. Upon lodgement, the Council assigned to it the number DA 349/2007, a convenient short form of reference to that application which I will adopt for the purposes of these reasons.

16 According to the application form first lodged with the Council, the parcel of land upon which the development would be carried out had an area of about 39,200m². The existing use of that land was described as “industrial/service trade premises/retail”.

17 The plans and documents accompanying DA 349/2007, as initially lodged with the Council, showed an intention to erect a single storey building which would accommodate a department store of about 3,861m², a supermarket of about 3,207m², seventeen speciality stores, together with associated facilities, all accommodated in a building having a total building area of 11,192m². In addition, some 583 car parking spaces were proposed to be provided at grade. The only frontage which the site then had to Gossan Street was one narrow lot intended to be used for car parking. That lot was adjacent to the Lane which, in turn, was intended to be used as both an entry and exit point to and from the site as well as providing some limited car parking.

18 Shortly after the Council received DA 349/2007, it retained the services of Bankstown Civic Services (BankstownCS), as independent planning consultants, to assess and report upon the application to the Council. Although there has not been tendered either the terms of that retainer or the initial response from BankstownCS to it, it appears from a later report prepared by a Council officer that the initial response of BankstownCS was to identify further information required from Leasecorop to enable the development application to be assessed. Once the nature of the further information required was identified by BankstownCS, the request for that information was conveyed by letter from the Council to Leasecorp. Nothing, in the submissions of the parties, turns upon the terms of the initial request for information or the terms in which it was supplied.

19 Correspondence from the Council directed to Leasecorp, seeking further information about DA 349/2007, continued for some months. In a letter dated 17 October 2007 and written by the Council’s Building and Environmental Health Manager, attention was drawn to the fact that the development application appeared to include land within the ownership of the Council. Leasecorp was asked whether it intended to seek the consent of the Council to the development application and if so, to take the appropriate steps so to do. Importantly, the letter made reference to the Lane and its apparent inclusion in the development application in the following terms:

“If you are intending to negotiate with Council for the purchase and closure of the lane, these negotiations will need to be undertaken prior to any assessment.

Should this be the case, all formal procedures and processes for road closure would need to be undertaken by Council.

With this possibility in mind, the right of access to the rear of the residential properties abutting Gossan Street affected by the closure would need to be considered as this would affect “parking” design and layout.”

20 The response to a number of the requests made by the Council for further information was contained in a letter dated 10 April 2008 from Leasecorp, signed by Mr Steve Palyga, a director of the Leasecorp Group and addressed to Mr Peter Oldsen, whose position with the Council was that of Group Manager Sustainability. The letter from Leasecorp explained that the delay in responding to the Council’s request of 23 October 2007 had occurred:

“ … by reason of the fact that the Applicant has decided to acquire (and embarked on a process of acquiring) a number of homes along Gossan Street, South Road and Blende Street, and incorporate them into the site of the proposal, and to consequently amend the design of the proposal.”

21 The letter from Leasecorp continues:

“In relation to laneway ‘LV’, Leasecorp has this day separately requested the Broken Hill City Council to close the same and sell it to Leasecorp and, in the meantime, has also sought that Broken Hill City Council be a signatory to the Development Application.”

22 That same letter also described, in summary terms, the amendments being made to the development application. It identified an increase in floor space so as to accommodate “a third anchor tenant in the form of a 1,700m² discount variety store” as well as an increase in the number of speciality shops, the addition of a fast food outlet and a “food court”.

23 Notwithstanding reference in the letter of 10 April to a letter of the same date in which Leasecorp is said to have requested the Council to close the Lane, its letter making that request is in fact dated 9 April 2008. That letter, also written by Mr Palyga on behalf of Leasecorp, is addressed to the Council’s General Manager. It encloses a copy of a deposited plan that relates to land bounded by Blende Street, Gossan Street, South Road and Galena Street. The letter identifies the Lane as one being used by Globe Timber Mill and Joinery for access from Gossan Street and identifies those lots shown on the deposited plan that adjoin the Lane. The letter continues:

“Leasecorp has acquired all of those allotments. In relation to those acquisitions, Leasecorp has also settled on the purchase of all those allotments except for Lots 12 and 13.

In other words, Leasecorp or related entities 100% owned and controlled by Leasecorp are the registered proprietors of all allotments surrounding the laneway save for Lots 12 and 13, in respect of which Leasecorp or entities 100% owned and controlled by Leasecorp are the prospective registered proprietors … .

Leasecorp proposes to develop a shopping centre at the location and therefore desires to negotiate with Council for the purchase and closure of the laneway.

I attach the amended site plan for Leasecorp’s proposed shopping centre, which plan is being lodged with Council contemporaneously herewith, and relates to Development Application 349/2007 …

24 The request by Leasecorp for closure of the Lane was the subject of a report to the Council at its meeting on 30 April 2008. The report was prepared by Mr Oldsen in his capacity as the Council’s Group Manager Sustainability. He recommended that the Lane be closed and that upon closure the land “be vested in Council as Operational Land.” He also recommended that a valuation of the land be obtained; that application be made to the Department of Lands “to endorse the road closure” and that, upon completion of “all matters relating to the closure”, the land be sold to Leasecorp. That recommendation was adopted by Mr Boyle, in his capacity as Administrator, at that meeting. It will be necessary to refer further to that report and resolution when dealing with the applicant’s challenge to the Consent on the basis of prejudgment.

25 Between April and August 2008, there were further requests for information sought from Leasecorp by the Council concerning the development application. In response, further specialist reports and supplementary plans were provided to the Council. The plans for the development application were also referred to the Council’s heritage advisor for the purpose of obtaining comments on what are summarily referred to as “urban design issues”.

26 On 7 August 2008, Leasecorp submitted an amended statement of environmental effects to the Council. It described the total area of the site as being 45,498m². That area did not include the Lane which, according to the document, was included in the site but in respect of which “Leasecorp is in negotiation with Council to acquire … from Council.”

27 The amended statement of environmental effects succinctly described the development then proposed in the following way:

“ The proposed development is a brand new shopping centre of total floor area of 15,855m², and approximately 12,411m² of gross lettable area, and incorporating a discount department store, a supermarket, a discount variety store and a number of speciality shops along an enclosed pedestrian mall.”

28 That description of the proposed development was the description which the Council then included in the public notification and advertisements of the development, save that the floor areas of the major tenancies were not mentioned in those documents. Relevantly, the Council advertised the proposed development in the Barrier Daily Truth newspaper on three occasions, namely on 23 August 2008, 30 August 2008 and 6 September 2008. Each advertisement described the development in the manner that I have indicated, identified the land upon which it was proposed to be undertaken and indicated that submissions in relation to it closed on “Monday, September 22, 2008”. The notice also indicated that the development application and accompanying information were available for viewing at the Council’s administrative centre.

29 A “Timeline of Assessment” later prepared by Council’s staff indicates that a number of submissions were received following publication of the advertisements and notices otherwise given. A summary of those submissions was referred to BankstownCS for consideration. The summary was also provided to Leasecorp for comment. Leasecorp’s response to that summary of submissions was sent to the Council on 28 October 2008. That response was, in turn, forwarded by the Council to BankstownCS for further consideration.

30 In April 2008, Leasecorp had provided to the Council an economic impact report prepared by Outhred English Planning and Property Consultants as support for DA 349/2007. On 6 November 2008, the Council referred that report to its economic consultants, SGS Economics & Planning Pty Limited (SGS), for “peer review”.

31 The SGS economic impact “peer review” report was received by the Council on about 21 November 2008. In addressing the impact, SGS identified what was described as a “Conservative Scenario” and an “Optimistic Scenario”. The report concluded with a number of “findings”, the last two of which were expressed as follows:

“The magnitude of the impact is potentially greater than normally considered acceptable in these circumstances. This will need to be considered in determining the approval for the proposed development and further investigation would be warranted if necessary.

As an aside consideration, if the Broken Hill Plaza Shopping Centre excluded the speciality component from the proposed retail mix, the development would potentially be beneficial to Broken Hill as a result of increased retail competition between supermarket and DDS retail categories.”

32 On 4 December 2008, Mrs T Stephens, a heritage and planning officer in the employ of the Council, wrote on behalf of the Council to Mr Palyga of Leasecorp and also to a number of persons said to be those who had made submissions during the August/September exhibition period of DA 349/2007. The letter to Mr Palyga indicated that DA 349/2007 would be considered at an Extraordinary Council Meeting on Friday December 19 at 10.00am. The letter further indicated that “Council’s Administrator will be available to meet with you on-site at 4.00pm on Thursday, December 18, 2008, to discuss the proposal”. Mr Palyga was invited to meet “on-site near Globe Timber Mill, off Gossan Street.”

33 The letter (of the same date) written by Mrs Stephens to those who made submissions during the public exhibition period, referred to the Extraordinary Council Meeting on 19 December at which DA 349/2007 would be considered. Those persons were advised that the meeting would be a public meeting and also that “Council’s Administrator is able to meet with you on-site to discuss the matter on Thursday, December 18, 2008.” Each of those to whom that letter was addressed was invited to contact either Mrs Stephens or Mr Anderson of the Council “to arrange a specific time”.

34 Mr Palyga responded by letter dated 5 December 2008 indicating that he would attend the Extraordinary Council Meeting on 19 December and that he would “make myself available to meet Council’s Administrator on-site at 4.00pm Thursday 18 December, at the location mentioned … ”. His letter was addressed to Mrs Stephens.

35 Notwithstanding the letters of 4 December and the response of Mr Palyga, no oral or documentary evidence adduced at the hearing establishes that a meeting between the Administrator and Mr Palyga took place on 18 December. Mr Palyga swore an affidavit on 8 February 2010 which was read at the hearing of these proceedings without objection from the applicant. Paragraphs 8 and 9 of that affidavit were as follows:

“8. On 4 December 2008 Council wrote to me stating that the Administrator would be available to meet on-site on Thursday 18 December 2008 to discuss the proposal before the meeting. Annexed and marked ‘A’ is a copy of that letter.

9. Because of issues raised by Council officers in the report to Council, I asked Council to defer consideration of the development application. In those circumstances, I did not travel to Broken Hill and neither myself nor any representative of Leasecorp met with the Administrator on or about 18 December 2008.”

36 It will be necessary in due course to say something about the events of December 2008 when dealing with the applicant’s submissions. They are the events upon which the applicant relies in order to sustain the “private meeting” ground for asserting prejudgment on the part of Mr Boyle.

37 The evidence tendered by the parties does not include any minutes of a Council meeting on 19 December 2008. However, it is tolerably clear that no substantive decision was made in respect of the application at that meeting.

38 Paragraph 9 of the affidavit of Mr Palyga which I have earlier quoted, indicates a request on the part of Leasecorp that consideration of the application be deferred. Further, the “Timeline of Assessment” document later prepared by a Council officer indicates that on 15 December 2008 Leasecorp was notified of a recommendation by BankstownCS that the development application be amended and on 16 December it is recorded that Leasecorp requested an opportunity to revise its development application. On that same day the revised scheme contemplated by Leasecorp was sent by the Council to SGS for further assessment. All of these matters further support the inference that no substantive decision concerning DA 349/2007 was taken by the Council on 19 December, other than to defer consideration so as to allow Leasecorp to further amend its application.

39 By letter dated 13 January 2009, SGS provided a further “peer review” of the amended proposal as it had been identified in Leasecorp’s letter of 16 December 2008. It recorded that the amended proposal had reduced the area of specialty store floor space from 3,511m² to 1,209m². While SGS again assessed impacts by reference both to a “conservative scenario” and an “optimistic scenario”, the letter expressed a preference for the conservative scenario as being “more realistic”. The letter continued:

“Under the conservative scenario, SGS acknowledges that whilst the magnitude of impact has been halved, 15% impact is still potentially greater than that which is normally considered acceptable under these circumstances. This will need to be considered in determining the approval for the proposed development and further investigation would be warranted if necessary.”

40 On 10 February 2009, DA 349/2007 was further amended by Leasecorp. At that time the application for amendment was accompanied by an amended statement of environmental effects, amended plans and amended expert reports, including an updated economic impact report prepared by John Outhred English & Associates. The effect of those amendments was to alter the external appearance of the building proposed for the site; reconfigure internal floor space and to rearrange the intended car parking layout. Relevantly, the number of speciality stores was reduced from 33 to 12 and speciality floor space reduced from 3,511m² to 1,292m². This reduction seems to approximate that contemplated in Leasecorp’s letter of 16 December 2008 and considered in the SGS letter of 13 January 2009. The form and layout intended for retail development of the site as depicted in the plans for this amendment reflect the development proposal that was ultimately the subject of the Consent. It is this statement of environmental effects which indicates the development site area to be 44,840m².

41 The amended plans and supporting material were forwarded to BankstownCS for further assessment and the revised economic impact statement was forwarded to SGS. This further amended development proposal was also publicly notified and advertised. Neighbouring landowners were notified of the amended application and the documents made available for inspection at the Council’s administrative centre in Blende Street, Broken Hill. The amended proposal was also advertised in the Barrier Daily Truth newspaper on 14 February, 28 February and 14 March 2009. The notice published in the newspaper was headed “Amended Development Proposal”; it identified the land to which the application related and briefly described the proposal as being “for a shopping centre consisting of discount department store, a supermarket, a discount variety store and a number of speciality shops.” The notice invited submissions in respect of the amended proposal, indicating that submissions closed on March 18, 2009.

42 Eight submissions are said to have been received during that exhibition period. Those submissions were provided to Leasecorp and also to BankstownCS. Each of them provided a response to those submissions.

43 DA 349/2007 was the single agenda item for the Extraordinary Meeting of the Council held on 27 March 2009. A report upon the development application for that meeting was prepared by Mr Oldsen who, it will be remembered, in April 2008 had recommended that the Council apply to the Minister for closure of the Lane. In his report for the meeting of 27 March 2009, Mr Oldsen provided a time line of events that had occurred from lodgement of the development application up to that point in time and referred to the assessments made of the application by external consultants, including BankstownCS and SGS. The report of each of those consultants was attached to Mr Oldsen’s report.

44 In his report, Mr Oldsen identified the options available to the Council as being to issue a consent; to issue a conditional consent; to refuse the application or to issue a deferred commencement consent. Under the heading of “Policy Implications” he wrote:

“The proposed development is dependent upon the closure of a public laneway off Gossan Street which provides access to the Globe Timber Mill site. The use of the laneway is not necessary in the scheme of the development, and Council has indicated that it is willing to sell the laneway (and close what is currently a public road). At the time of this report, Council and Leasecorp are yet to agree to terms and subsequently, (sic) it is considered that until such time that the laneway is closed and the land formally resumed, then such a proposal could not proceed.”

45 In the “Summary and Conclusion” to his report, Mr Olsden wrote:

“The independent economic report supported the additional supermarket, department store and discount variety store as it would provide competition, however it considered that the additional speciality shops would have a measurable impact economically and socially within the Broken Hill CBD. The consultant Town Planning report has recommended that a ‘deferred commencement’ be issued on the basis that the speciality shops be removed from the proposal. The applicant has now requested that consideration of the application be deferred to permit additional information to be provided for consideration. Under the circumstances, it is considered this is not an unreasonable request.”

46 The ultimate recommendation in the report was that consideration of DA 349/2007 be deferred to enable Leasecorp to supply additional information in response to issues raised in the consultant reports.

47 As I have indicated, attached to the report were reports from SGS and BankstownCS. The SGS reports attached were those to which I have earlier referred, namely the initial peer review report provided in November 2008 and the further peer review letter dated 13 January 2009.

48 The report provided to the Council by BankstownCS to which Mr Oldsen referred, recommended that the development application be approved “on a deferred commencement basis”, subject to the submission of an amended scheme “limited only to the supermarket, department store and discount variety store”. Appended to the BankstownCS report were some seventy conditions of consent appropriate to be imposed should the Council accede to its recommendation.

49 Tendered as part of the documentary material from the Council’s file is a transcript of proceedings at the Council meeting held on 27 March 2009. Mr Boyle presided at that meeting in his capacity as Administrator. It is appropriate that I summarise from the transcript what is recorded as having occurred at that meeting in relation to DA 349/2007.

(a) At the invitation of Mr Boyle, Mr Oldsen was first to address the meeting. He summarised his report, referring to the amendments to the application, the assessments made of it by the various consultants to whom the application had been referred and the responses received in consequence of the advertising of the amended application.

(b) Mr Boyle next called for submissions from members of the public who were present at the meeting. The first to accept that invitation was Mr Ellis, a planning consultant retained by Centro Properties which, I infer, owned the existing shopping complex in Broken Hill. Mr Ellis spoke at some length, critically analysing the elements of the development application and in particular emphasising the economic impact which the proposed development would have upon retail businesses in the City. Another person from the public gallery spoke and was followed by a representative of Leasecorp, requesting that the application be deferred so that Leasecorp could address the concerns that had been expressed.

(c) At Mr Boyle’s invitation, Mr Oldsen again addressed the meeting at some length, directing attention to the detail of the consultants’ reports and also directing attention to the response in his report to the 14 submissions that had been received as a result of the public notification of the development application both in August/September 2008 and in February/March 2009.

50 Ultimately, Mr Boyle resolved to adopt the recommendation contained in Mr Olsden’s report that the application be deferred. In adopting that recommendation, Mr Boyle made remarks recorded in the transcript as follows:

“Thank you Mr Oldsen, it would appear that from the consultant’s report that most of the matters that had been raised can be covered by conditions however Council is concerned about the public interest and particularly the comment that the development as lodged by the applicant is not assessed as being within the public interest. So I am not going to comment any further on that particular matter except to say that it is a matter of concern. The applicant has requested time to submit further information on that particular matter, I am inclined to afford the applicant that opportunity to submit further information so that we can give a matter of fairness and equity to the applicant who claims he did not have sufficient time to respond to these matters in the last week or so. So, on that basis I intend to defer this application, I will take into consideration the submissions and the verbal comments made today … ”.

51 Following the decision of the Council on 30 April 2008 to accept the closure of the Lane as being appropriate and to make application to the Minister under the Roads Act to achieve closure, there was an exchange of correspondence between Leasecorp and the Council’s land officer, Mr P Gillespie. Each had obtained reports from valuers as to the value of the Lane. Leasecorp provided a copy of its valuation to the Council but the Council did not reciprocate by providing a copy of its valuation report to Leasecorp.

52 Closure of the Lane and the sale price proposed for it came before an ordinary meeting of the Council held on 29 July 2009. The report submitted to that meeting upon those matters was a report which was again prepared by Mr Oldsen. After summarising the course of negotiation as to the price to be paid for the Lane and the valuation advice contained in the valuers’ reports, Mr Oldsen concluded that the Lane be valued “at its current level” and recommended that the Council accept $25,000.00, the sum offered by Leasecorp, and then “proceed with the road closure.” The formal recommendation then made in his report was as follows:

“That Council accept an offer from Leasecorp for the purchase of a Council lane currently used to access the Globe Timber Mill and adjacent properties.

That all resolutions of Group Manager Sustainability Report No. 30/08 be re-endorsed and this matter progressed to completion.”

53 The minutes of that meeting record the following:

“The Group Manager Sustainability spoke to the report.

sic

54 Reference in that resolution to Report No. 30/08 and the “re-endorsement” of the “resolutions” in that report is a reference to the report which was considered at the meeting of the Council on 30 April 2008 at which Mr Boyle resolved to accept the recommendation that the Lane be closed and sold by the Council to Leasecorp. The elements of that resolution are summarised in [24].

55 DA 349/2007 was next considered by the Council at its meeting on 19 August 2009, that being the meeting at which it was resolved to grant the Consent. There were two reports prepared for that meeting by Mr Oldsen, once again in his capacity as Group Manager Sustainability of the Council. The first report is one dated 6 August 2009 in which he recommended that DA 349/2007 be refused for three reasons. They were expressed as follows:

Environmental Planning and Assessment Act

56 Under the heading “Policy Implications”, Mr Oldsen states that the proposed development “is dependant upon the closure of a public laneway off Gossan Street”; that the use of the Lane “is not necessary in the scheme of the development” and the Council at its meeting on 29 July 2009 had resolved to sell the Lane to Leasecorp for $25,000. Under the heading of “Financial Implications” the report indicates that the Council “will benefit from the closure and sale” of the Lane, “if the development were to proceed”.

57 In his summary and conclusion to the report, Mr Oldsen notes that the development has been independently assessed and records the recommendation of BankstownCS that the application be refused. The reasons expressed by BankstownCS are, in terms, the identical reasons expressed by Mr Oldsen recommending that the application be refused [see 55].

58 Attached to the report of 6 August are a number of documents. They include two reports from BankstownCS together with an economic assessment report from SGS which appears to have been prepared in July 2009. The attachments also include a letter from Leasecorp dated 27 July which responds to the SGS report. Also attached is a copy of the transcript of the Council’s meeting held on 27 March 2009, that being the transcript to which I have referred at [49]-[50].

59 On 18 August 2009, Mr Oldsen prepared a supplementary report for consideration at the meeting to be held on 19 August. It is clear that the response by Leasecorp to the July SGS report had been referred by the Council to SGS for comment. The response of SGS was received by way of letter dated 13 August, that is, after Mr Oldsen had prepared his primary report on 6 August: thus, the apparent need to prepare a supplementary report. There is no indication that the SGS letter of 13 August was referred to BankstownCS for comment.

60 In contrast to the recommendation contained in his report of 6 August, 2009, Mr Oldsen’s supplementary report contained the following recommendation:

“That Group Manager Sustainability report No. 43/09 dated August 18, 2009, be received.

61 The body of the supplementary report refers to and attaches the SGS letter of 13 August. He recites an observation from that letter that the potential impact on the CBD “is within reasonable bounds”. He expresses the opinion that developments of the size and nature of that reflected in DA 349/2007 “have both positive and negative impacts on a city such as Broken Hill”. He then identifies both positive and negative impacts which the proposed development may have.

62 It will be remembered that in his report of 6 August, the second ground upon which Mr Oldsen recommended that the application be refused was a locational one, being directed to the separation of the site from existing retail areas “particularly the Broken Hill CBD”. In his supplementary report of 18 August, he referred to the “model” for retail planning as discussed in a draft general policy prepared by the New South Wales Department of Planning directed to retail and commercial development. Having made general observations concerning that policy, the report continues:

“ The application of this model in Broken Hill could be difficult to achieve given the existing layout of the City. It should be noted that Council’s existing commercial development control plan included this particular development site as potentially suitable for commercial development, given the absence of suitable land adjacent to the CBD.”

63 Mr Oldsen next identified the different approaches to impact which the economic reports demonstrate, making particular reference to the difference between the potential advantage of competition and “valid economic impacts”. His report then contained the following observation:

“ Council must however, make a decision at a point in time and it would appear a number of factors in relation to this development are dependant on whether there is an optimistic or conservative view on the future of Broken Hill.”

64 The letter of 13 August 2009 from SGS to Mr Oldsen and to which he refers in the supplementary report included the following statements:

“4. We believe that the most important planning issue is the potential impact on the CBD. We affirm our conclusion that this will be within reasonable bounds.

5. On the issue of the potential impact on Centro we confirm our previous position that competition may be beneficial.

We have expressed concern that in this instance it will be difficult for two supermarkets/DDS based centres to be viable given the limited pool of expenditure in Broken Hill.

However we accept the position put forward by Mr Palyga that this should be a matter for the developers to resolve and we therefore suggest that these matters are not planning considerations.”

65 In addition to attaching the SGS letter of 13 August 2009 to his supplementary report, Mr Oldsen also attached, without comment, a document that he described as “Proposed conditions of consent”. Such a document had not been attached to his report of 6 August.

66 As I have earlier described it, the meeting of the Council held on 19 August 2009 was convened as an “Extraordinary Meeting”. The minutes of that meeting have been included in the tendered bundle of documents (Exhibit 1R1). Those minutes describe the purpose of the meeting as being to consider the “Group Manager Sustainability” reports numbered 42/09 and 43/09. They are the reports of Mr Oldsen to which I have referred and which are dated 6 August 2009 and 18 August 2009 respectively.

67 The minutes of 19 August 2009 record what is described as a “Public Forum” as part of that meeting. They reflect the fact that six members of the public addressed the meeting and contain a summary of the statements made by each of those six persons. Those who addressed the meeting included Mr Ellis representing Centro Properties, expressing opposition to the proposal, and Mr Palyga on behalf of Leasecorp. The minutes also record that Mr Boyle invited Mr Adam Richardson, a representative of BankstownCS, to address the meeting. Following Mr Richardson’s address to the meeting, Mr Boyle invited Mr Oldsen to provide “further comment”. That further comment is summarised in the minutes as follows:

“The Group Manager Sustainability advised his Supplementary Report No. 43/09 gives an overall view since the original Development Application and spoke briefly on positive and negative issues; and also noted the Draft Centres Policy of the NSW State Government (encourages attachment to the Central Business District).”

68 The minutes then record that after Mr Boyle thanked the developer, BankstownCS, Council staff “and the many members of the public who have expressed their views”, he stated:

“ … that if the Development Application was approved, there are a number of positive and negative aspects, as Administrator he has to decide. Mr Boyle said that, as an optimist, he considered the positive benefits to outweigh the negative and intended to approve the application”.

“That Development Application No. 349/2007 for proposed retail development, land generally bounded by South Road, Blende and Gossan Streets, area generally known as the Globe Timber site be approved subject to all of the conditions contained in attachment two to Group Manager Sustainability’s Report No. 43/09 dated August 18, 2009; and the additional condition that the developer provide a heritage interpretive sign recognising the contribution of the Globe Timber site to the heritage of Broken Hill.”

69 On 18 September 2009 the Council lodged an application with the Minister pursuant to s 34(1)(b) of the Roads Act to close the Lane.

Planning Controls

70 The preceding paragraphs provide the factual context in which the competing contentions of the parties are to be considered. However, before proceeding so to do, it is appropriate to refer to what can compendiously be described as the planning controls against which DA 349/2007 was required to be considered and determined.

71 The land to which DA 349/2007 relates is within Zone 2(c)(City Zone) pursuant to cl 8 of Broken Hill Local Environmental Plan 1996 (the LEP). In respect of land so zoned, development for the purpose of shops is permissible with the consent of the Council. Paragraph 1 of the land use table applicable to that zone describes its objective as being “to promote development in the City of Broken Hill in a manner which is compatible with its urban function.” No other provision of the LEP has been identified by the parties as being relevant to the consideration of the issues in these proceedings.

72 The City of Broken Hill Commercial Development Control Plan No. 2 (DCP 2) was first adopted by the Council on 30 April 1997 and, according to the copy of the document that was tendered, it was last amended on 28 November 2001. The expressed objectives of DCP 2 include:

“To identify a number of commercial precincts in the City and encourage commercial development in these areas.”

73 DCP 2 identified commercial precincts both by description and by attached plans. One such precinct is described as “Westside Plaza Commercial Precinct”. The attached plan, showing the boundaries of that precinct, indicated that, apart from a section of land having frontage to Gossan Street, the remainder of the land which is the subject of the Consent is located within that precinct.

74 Beyond the identification of commercial precincts and the objectives of DCP 2 to which I have already referred, DCP 2 does not contain any further provision of relevance to the determination of the issues in these proceedings. It does not, for example, seek to establish any retail hierarchy within Broken Hill, undoubtedly a circumstance which informed the observation by Mr Oldsen in his report of 18 August 2009 when discussing the application of the Department of Planning’s draft centres policy to the determination of DA 349/2007 (see [62]).

75 The City of Broken Hill Notification Development Control Plan No. 5 (DCP 5) was first adopted by the Council on 30 September 1998 and last amended on 29 March 2006. By its terms, DCP 5:

“establishes and outlines the requirements which apply to notification and advertising of certain types of Development Applications, which may have a detrimental affect on other land or residents within the City.”

76 A table on p. 5 of DCP 5 identifies types of development for which nominated requirements for “notification and/or advertising” are specified. Relevantly, among the types of development so identified, there is included “(a)ny development where in the opinion of the assessing officer, a development because of its size, scale or location, is believed that it is in the public interest so to do.” Although no document has been tendered which reflects the formation of an opinion by an assessing officer for the purpose of this provision in the DCP, all parties accept that the relevant opinion was formed so that the notification and advertising requirements of the table on p. 5 of DCP 5 were required to be addressed.

77 Application of the table on p. 5 of DCP 5 indicates the notification and advertising requirements for DA 349/2007 to be that:

“A notice will be placed on-site,

an advertisement placed in the local newspaper for a minimum of 28 days, and

letters will be sent to the owners of adjoining properties and other owners of land the adjoinment of which (in Council’s opinion) may be detrimentally affected if the development is carried out.”

78 The only other provision of DCP 5 that needs to be noticed for present purposes is that which appears on p 6 under the heading “Exhibition and Submission Period”. The relevant paragraph reads as follows:

,

Apprehend bias: prejudgment

79 I have earlier identified the primary challenge advanced by the applicant to the validity of the Consent to be founded upon the apprehended bias of the Administrator, Mr Boyle, when resolving to grant the Consent. The parties are not at issue as to the principle to be applied when determining whether a case of apprehended bias is made out. It requires the question to be addressed as to whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of power (Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]; (2000) 205 CLR 337 at 344 (Ebner); McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [4] and [72]; (2008) 72 NSWLR 504 at 507 and 517) (McGovern). That test is applied both to judicial decision-makers and also to statutory decision-makers (McGovern at [4]).

80 However, having stated that as being the requisite test, the content of what the test requires will vary, depending upon the context in which the power is being exercised. Its application will be affected by the statutory functions being performed and by the identity of the decision-maker required to exercise the power (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [78] (Jia Legeng); (2001) 205 CLR 507 at 533; McGovern at [7]); F & D Bonaccorso Pty Ltd v City of Canada BayCouncil (No 2) [2007] NSWLEC 537 at [115]; 158 LGERA 250 at 297; Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 at [46]; (2009) 168 LGERA 269 at 281.

81 In addressing the context in which the statutory decision-maker is exercising power, Spigelman CJ in McGovern identified three matters that must be addressed in the following terms (at [9]):

“What is the process involved in ‘resolving the question’ that the decision-maker “is required to decide”.

What may constitute an absence of “impartiality” or lack of “prejudice” in the mind of the decision-maker?

What might a “fair minded lay observer … reasonably apprehend” as to the above two matters.”

82 In McGovern, the Court of Appeal was concerned to consider the validity of a development consent granted under the provisions of the EPA Act, the challenge there being mounted on the basis of apprehended bias in the form of prejudgment. When addressing the applicability of the test to the particular statutory circumstances in which the respondent council had exercised power under the EPA Act, the Chief Justice said (at [13]):

Environmental Planning and Assessment Act

83 Modern authority establishes that in the context of apprehended bias by prejudgment, it is necessary to apply an “open to persuasion” test. While the essential concepts of the apprehended bias test remain, the test is necessarily restated as being whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion. That is the manner in which the test was formulated by Spigelman CJ in McGovern at [23]. The test, so articulated, succinctly summarises an approach which has been variously stated. Gleeson CJ and Gummow J in Jia Legeng addressed the test thus (at [72]):

“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”

84 An application of the test is also illustrated by the observations in the joint judgment of the High Court in R v Commonwealth Conciliation of Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 where it was said that a fair and unprejudiced mind -

“is not necessarily a mind which has not given thought to the subject matter or one which, having given thought about it, has not formed any views or inclination of mind upon or with respect to it.”

85 The formulation of the dual “might” test articulated by Spigelman CJ, requires consideration of the knowledge which is to be ascribed to the fair-minded observer. That consideration is addressed in the joint judgment of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 in the following terms (at 87):

“In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of actual circumstances of the case.”

86 Applying some specificity to this knowledge in the context of a determination made by a council under the EPA Act, the general understanding which the fair-minded observer is deemed to have is, with respect, well summarised by Basten JA in McGovern as follows (at [80]):

“The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.”

87 While it is acknowledged that Mr Boyle was not “a councillor”, the fact that he was appointed to the role otherwise performed by a councillor would not logically change the expectation of him on the part of the fair-minded observer. The emphasis in the passage quoted from the judgment of Basten JA is upon the difference between the institutional setting in which a council determines a development application and that in which a court resolves a dispute between or among parties. The institutional setting remains the same, whether the function of the institution is performed by an elected representative or by statutory appointee to the position otherwise occupied by elected representatives.

88 It is with these principles in mind that I turn to consider the challenge to the Consent made by the applicant on the basis of prejudgment.

Prejudgment: application for closure and purchase of the Lane

89 The Lane, being a public road, was vested in the Council as the relevant roads authority: ss 7(4) and 145(3) of the Roads Act. However, the Council was not, itself, empowered to close the Lane. That power was, by operation of s 37(1) of the Roads Act, reserved to the Minister. It was a power which, in turn, was to be exercised only after observing the requirements for public notification of a proposal for road closing in accordance with s 35.

90 As the roads authority for the Lane, the Council was entitled to apply to the Minister for its closure (s 34(1)(b)). Moreover, as the authority owning the Lane, it could not be closed by the Minister without the consent of the Council (s 37(2)(b)).

91 It was in this statutory context that Leasecorp wrote to the Council on 9 April 2008 seeking to have the Lane closed (see [23]). Properly understood, it was an application seeking to have the Council exercise its entitlement pursuant to s 34(1)(b) to make application to the Minister for him to close the road.

92 The decision of the Council in response to that application is contained in the resolution of Mr Boyle of 30 April 2008. He resolved to adopt the recommendation contained in the report prepared by Mr Oldsen for consideration at the Council meeting held on that date (see [24]). Stated in full, the recommendation then adopted was as follows:

“That Group Manager Sustainability Report No. 30/08 dated April 18, 2008, be received.

That Council close Public Road south west of Gossan currently used to access Globe Timber Mill and Joinery and the rear of No’s. 9, 13 and 15 Gossan Street.

That Council make application to the Department of Lands – Western Region to endorse the road closure.

That after all matters relating to the closure are complete the land be sold to Leasecorp for integration into the new shopping centre complex.

That Leasecorp be liable for all costs relating to this matter including but not limited to valuation fees, road closing application and administration fees, plan preparation and lodgement fees, agency fees, legal and conveyancing fees, and Council administration fees at cost.

That documents relating to this matter be executed under Council’s Common Seal as required.”

93 It will be remembered from my earlier recitation of facts that while DA 349/2007 had been lodged with the Council on 23 August 2007, the application had not been the subject of any report to Mr Boyle, as Administrator, at the time at which closing of the Lane was being considered on 30 April 2008. The applicant relies upon this circumstance in support of its submission that the road closure determination manifested prejudgment of the development application. In the context of the relevant legal test earlier enunciated, this, so the applicant argues, reflects one of the circumstances by reference to which an independent observer might reasonably apprehend that when the decision came to be made to grant development consent, Mr Boyle had ceased to be open to persuasion to a determination other than that development consent should be granted.

94 In making that submission, the applicant points to the fact that the adopted recommendation not only indicated acceptance of the road closure, but also instigated the process of valuation for the purpose of sale. The applicant also points to that part of the recommendation requiring that upon completion of “all matters relating to the closure” the land be sold to Leasecorp “for integration into the new shopping centre complex.”

95 In support of its submission the applicant draws attention to two further matters relevant to the determination made by Mr Boyle on 30 April 2008. First, it points to the summary and conclusion expressed in Mr Oldsen’s report which was as follows:

“Closure of the lane will have no impact as it is no longer required for the purpose for which it was created. It will however simplify site design and usage for the proposed new shopping complex.”

96 In that same report, Mr Oldsen referred to the application for closure and purchase that had been received from Leasecorp as “owner of all land currently surrounding and serviced by the road, to enable it to be integrated into there (sic) shopping centre project.”

97 The second matter to which the applicant refers in the context of the determination on 30 April 2008 is a letter written on 23 June 2008 by the Council’s Land Officer, Mr P Gillespie to the General Manager of Country Water. The letter was written because Country Water enjoyed the benefit of a pipeline easement located within the area of the Lane. In that letter, Mr Gillespie wrote:

“Council intends to close the road and sell the land to the owners of all adjoining properties, Leasecorp and their associates, to facilitate the development of the new shopping centre.”

98 It is appropriate to address the applicant’s submissions in relation to road closure after I have identified all of the matters upon which it relies in relation to its submission. However, I do not accept that the emphasis given to the paragraphs of the adopted recommendation and the letter of 23 June 2008 would reasonably reflect the interpretation which the bystander would give to those documents. I accept that the language used is not finely crafted so as to reflect the legal constraints within which the decision of 30 April was undertaken. For example, the second paragraph of the recommendation is that the Council “close” the Lane. Clearly, the Council was not legally entitled so to do. If a counsel of perfection was to be applied, the recommendation should have been one recommending that application be made to the Minister for closure of the Lane. However, the circumstance that the Minister had a role to play in seeking to close the Lane was recognised. So much is apparent from the paragraph of the recommendation that an application to the Department of Lands be made “to endorse the road closure.”

99 In similar vein, it is necessary to read in context that paragraph of the adopted recommendation which refers to the ultimate sale of the Lane to Leasecorp “for integration into the new shopping centre complex”. Mr Oldsen had annexed to his report for the meeting of 30 April 2008 a copy of the letter from Leasecorp dated 9 April 2008 making application for closure of the Lane. Of present relevance, in referring to DA 349/2007, that letter indicated:

(i) that Leasecorp “proposes to develop a shopping centre at the location and therefore desires to negotiate with Council for the purchase and closure of the laneway”;

(ii) that the development application was “being externally assessed by independent consultants, Bankstown Civic Services Group”, as a consequence of which it (Leasecorp) could not discern any “impediment to assessment of Development Application 349/2007 proceeding in the normal course whilst negotiations with Council for the purchase and closure of the lane are undertaken”; and

(iii) that advice was sought from the Council to the effect that such a course was acceptable to it.

100 In context, I am of the opinion that the passages in both the recommendation and Mr Oldsen’s report upon which the applicant seeks to rely would be seen as being only a shorthand method of drawing Mr Boyle’s attention to the fact that DA 349/2007, proposing the establishment of a shopping complex, was an application currently pending before the Council; that road closure was appropriate, given that the Lane was “no longer required for the purpose for which it was created”, all frontager allotments to it having been acquired by Leasecorp, and that integration into Leasecorp’s site might provide the opportunity for a better design of its proposed shopping centre. This, so it seems to me, is no different, in principle, to a council consenting, as landowner, to the making of a development application by a developer, seeking to incorporate council owned land into a development site. The giving of owner’s consent in that circumstance would not ordinarily act as a fetter upon a council when exercising its power as a consent authority to determine a development application in respect of land so included (Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 at [6]; 149 LGERA 329 at 332).

101 I do not see the letter dated 23 June 2008 from the Council, under the hand of Mr Gillespie addressed to Country Water, affecting the position. His statement as to what the Council intended by the closing of the road cannot elevate the decision to intend more than the terms of the resolution of 30 April properly allow. Understood as his shorthand summary of that resolution, it must be read in the same context as the resolution itself.

102 However, even if I be wrong as to the application of the dual “might” test to the events of, and surrounding the determination of, 30 April 2008, that does not, of itself, sustain the applicant’s submission. The time at which the assessment needs to be made as to whether Mr Boyle was open to persuasion is the date upon which he determined to grant the Consent, namely 19 August 2009. Given that the knowledge to be attributed to the fair-minded observer is that “of the actual circumstances of the case”, it is necessary to consider all of the events that had occurred, relevant to consideration of DA 349/2007 up to the time at which Mr Boyle resolved to grant consent. Moreover, there are other matters pertaining to this head of the applicant’s claim to which I now turn.

103 As I have earlier indicated, following the resolution of 30 April 2008, correspondence was exchanged between the Council and Leasecorp concerning the price to be paid for the Lane when and if the Minister took the step of closing it as a public road. It was not until 29 July 2009 that the price at which the Council would agree to sell the Lane to Leasecorp was considered.

104 The report prepared by Mr Oldsen for the meeting of 29 July 2009; its recommendation that the offer for purchase from Leasecorp be accepted and the resolution of Mr Boyle to adopt the recommendation, are matters that I have detailed in [52] – [53] above. The applicant relies upon both the resolution and the question posed by Mr Boyle at the meeting of 29 July 2009 as “exacerbating” what is said to be the prejudgment manifested by the decision on 30 April 2008 to seek closure of the road and negotiate for its sale to Leasecorp. The applicant points to the circumstance that as at 29 July 2009, DA 349/2007 had not been determined by the Council, yet the Council was accepting the offer to purchase the Lane, clearly understanding that the purpose of the sale was inclusion of the area of the Lane in the application for development consent for the site. The applicant also points to the circumstance that the Council did not, by its resolution of 29 July 2009, qualify its decision by making it contingent upon the determination of DA 349/2007 or otherwise making apparent that its resolution to sell the Lane would not impinge upon its consideration of DA 349/2007.

105 In the context of the principles that I have earlier discussed, I do not accept the applicant’s submissions directed to the circumstances in which the Council, through Mr Boyle, resolved to “close and sell” the Lane. It is not sufficient to state the bare circumstances of these events from which to assert a suspicion that Mr Boyle’s mind had closed to any submission persuasive of rejection of Leasecorp’s development application. The identification of circumstances that are asserted as potentially leading to a decision on a basis other than its factual merit is but the first step directed to demonstrating an apprehension of bias in the relevant sense. As the joint judgment in Ebner requires (at 345 [8]), the next (second) step is no less important:

“There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

106 In the present case, the Council through Mr Boyle, was being called upon to exercise two separate statutory powers, namely the power to determine DA 349/2007 under the provisions of the EPA Act and the power to make application under the Roads Act to have the Minister close the Lane. As was submitted on behalf of the Council in these proceedings, so long as the Council’s purpose in initiating closure was within its power under the Roads Act, it is difficult to see that its compliance with a parallel system of regulation could infect its decision under the EPA Act with apprehended bias.

107 Notwithstanding the vesting of the Lane in the Council pursuant to s 145 of the Roads Act, the nature of the Council’s interest is not the equivalent of private ownership. Its rights in relation to a public road which it holds “in fee simple” is constrained by other provisions of the Roads Act. Authority establishes that the Council does not, for example, have the powers of a fee simple owner in exercising a veto over development applications (Sydney City Council v Claude Neon (1989) 15 NSWLR 724; Shellharbour Council v Rovili Pty Ltd (1989) 16 NSWLR 104; Sydney City Council v Ipoh Pty Ltd (supra)). Given these limitations, it is difficult to find a logical distinction between a decision made which contemplates the loss of a public road by consenting to the area of it being included in a proposed development application and a decision to initiate the process of road closure where the road in question, would, in any event, be obsolete. If the former decision is not properly to be regarded as manifesting “bias” in the relevant sense, it is difficult to see how the latter decision can be so regarded.

108 Furthermore, I do not understand whether, and if so how, a decision under one law constrains a decision under another law, without first examining whether the objects of the two laws are the same or disparate. One also needs to consider whether the considerations to be taken into account under the different statutory regimes overlap.

109 As was also submitted on behalf of the Council, the prospect that parallel systems of regulation will operate in relation to a given proposal for development of land is a familiar circumstance. In such circumstances, except in the case of express enactment or implied repeal, obedience to both laws will be required. Relevantly, the EPA Act contemplates a parallel system of regulation between it and the Roads Act: s 91 EPA Act. In considering that parallel system, full effect is to be given to each statutory regime, bearing in mind that the same decision maker may be involved in exercising the discretionary power available under each. Indeed, while some factors may differ, there will be cases where these factors overlap when informing the exercise of power. So much was acknowledged by Preston CJ in Australian Leisure and Hospitality Group Ltd v Manly Council No. 4 [2009] NSWLEC 226; (2009) 172 LGERA 1 where his Honour said (at [78]):

“Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute. Rather, each statute requires “reconsideration” of the overlapping relevant considerations, in the sense of taking relevant considerations into account in each exercise of each statutory power.”

110 In the context of the Council’s decisions to seek both closure of the road and agree upon the price at which the road would be sold once closure by the Minister had been effected, it is necessary to distinguish between the actions of the Council and the motives of Leasecorp. Expressed succinctly, the critical question for the Council was whether the Lane was, at the time of its decision, obsolete. For Leasecorp the question was whether the land area contained within the Lane was either necessary or desirable to facilitate its development. Merely by identifying the circumstances in which the request to exercise the power was made, does not assign to the Council the motive of Leasecorp. The Council responded to an application properly made to it to exercise a discretionary power. That power, under the Roads Act, was exercisable according to criteria which were quite different to those relevant to be considered under s 79C of the EPA Act when determining DA 349/2007.

111 The essence of the provisions of the Roads Act is the need to maintain a network of public roads and public passage, including the frontagers’ right of access (s 3(b) and s 5), which the relevant roads authority has the capacity to manage. Equally, the Roads Act provides for the roads authority to remove from that management the burden of those roads determined to be no longer necessary to be kept open and maintained for the purpose of facilitating passage by the public and access by frontagers. In the present case, all of the land adjoining the Lane had been acquired by Leasecorp, with the result that the former function of the Lane in providing access to an “internal” parcel of land (see [4]) had ceased. Leasecorp, as frontager, wished to incorporate the area of the Lane within its development proposal and it was clearly in the public interest that it should do so, amending the development application accordingly so as to provide a more rational design for its shopping complex proposal and potentially improve the provision of both appropriate car parking and circulation for its site.

137 Faced with the difficulties confronting the applicant in establishing the holding of a “private meeting” on 18 December 2008, its alternate submission was that the invitation extended to Mr Palyga by the Council’s letter of 4 December 2008 to attend such meeting was, itself, indicative of prejudgment. I do not accept this to be the case. Two reasons may be stated for my conclusion in that regard.

138 First, the invitation by letter sent on 4 December 2008 to attend an on-site meeting was not confined to Mr Palyga or representatives of Leasecorp. As I have earlier recorded ([32] – [33]), letters were simultaneously sent to those who had made submissions in response to the public advertising of the DA 349/2007, inviting them to attend an on-site meeting with Mr Boyle on the same day. That fact, so it seems to me, reflected an even-handed approach and does not support an inference that Mr Boyle’s mind had closed as to the manner in which the development application would be determined. This conclusion is not gainsaid by the circumstance that the meetings with Mr Palyga on the one hand and those who had made submissions on the other were to be separate meetings, as may be inferred from the differing terms in which the letters of 4 December were framed. The judicial paradigm for the conduct of legal proceedings with all parties present at once is not to be translated to the performance of the function being undertaken by Mr Boyle (McGovern at [6] and [77]).

139 There is a second event that tells against the inference which the applicant seeks to have drawn as to prejudgment, arising from the letter of 4 December 2008. That event is the meeting held on 27 March 2009 at which DA 349/2007 was considered. It was the meeting at which Mr Boyle, having listened to various submissions made to him, identified his concern, based on those submissions, that the development, if approved, could be contrary to the public interest by reason of the economic impact that it would have (see [50]). As I have earlier remarked, the observation then made by Mr Boyle is inconsistent with an inference that his mind had already closed.

Prejudgment: Conclusion

140 As I understand the applicant’s submission, it contends that even if the three indicia of prejudgment it identifies are, when considered individually, insufficient to satisfy the dual “might” test, when these events are considered collectively, that test is satisfied. In the circumstances that I have analysed, referable to each of the identified indicia and for reasons expounded in respect of each, I do not discern any rational basis upon which even a suspicion might be held that Mr Boyle might not have been open to persuasion in August 2009 as to those considerations which might appropriately inform his determination of DA 349/2007.

141 Considered collectively, none of the evidence identified, when fairly considered, suggests that Mr Boyle had become “so staunch an advocate” for DA 349/2007 that he was “impervious to new information or argument” (McGovern at [60]). His statement to the meeting of the Council on 27 March 2009 contradicts such an assertion. For the purpose of considering the submission, it can be accepted that, in the two year period between lodgement of Leasecorp’s development application in August 2007 and its determination in August 2009, Mr Boyle had given thought to the application. He may even have been inclined to the view that the development of a shopping centre on the site was appropriate prior to the decision which he made on 19 August 2009. However, the fact that he had given such thought to the application and formed such an inclination would not, even if clearly established, demonstrate that he lacked the necessary “fair and unprejudiced mind” (R v Commonwealth Conciliation & Arbitration Commission; Ex Parte Angliss Group (supra at 554)).

142 For all these reasons, I reject the applicant’s submission that the decision to grant consent to DA 349/2007 on 19 August 2009 was “invalid and of no effect” by reason of apprehended bias by prejudgment on the part of Mr Boyle.

Procedural fairness: non compliance with DCP 5

143 The second basis upon which the applicant founds its challenge to the validity of the Consent is that DA 349/2007 was not advertised as was required by DCP 5. The failure so to do constitutes a breach of s 79A(2) of the EPA Act which is so fundamental, so it was submitted, that the validity of the consent could not be sustained (cf Smith v Wyong Shire Council [2003] NSWCA 322; 132 LGERA 148).

144 Subsection (2) of s 79A provides as follows:

“ (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.”

145 It is accepted by the respondents that DCP 5 imposes requirements for notification and advertising of applications for development of a nominated kind. It is also accepted that the application for development nominated in DA 349/2007 is a category of development to which the requirements of DCP 5, pertaining to advertising, apply. Thus, the provisions of s 79A(2) are engaged.

146 In order to determine whether the obligation imposed by the subsection has been met in respect of DA 349/2007, it is first necessary to construe the provisions of DCP 5.

147 I have earlier identified the purpose which DCP 5 is expressed to fulfil (see [75]). After defining a number of terms, p 5 of the DCP is headed “Extent And Form Of Notification”. Beneath that heading is a table divided into two columns. The first or left hand column is headed “Type Of Development” and the second or right hand column is headed “Notification And/Or Advertising”. The first four descriptors of development type in the left hand column are agreed among the parties to be irrelevant. It is the fifth description of Development Type in that column which is of present relevance, as is the material to which it is juxtaposed in the right hand column. The relevant parts of the table on p 5 are therefore reproduced as follows:

Designated development, and
developments described in Schedule 2 of the Local Environmental Plan.
Public Monuments and Memorials located on a public space.
Any development where in the opinion of the assessing officer, a development because of its size, scale or location, is believed that it is in the public interest to do so.

A notice will be placed on-site,
an advertisement placed in the local newspaper for a minimum of 28 days,
and
letters will be sent to the owners of adjoining properties and other owners of land the enjoyment of which (in Council’s opinion) may be detrimentally affected if the development is carried out.

148 The parties accept that the development proposed by DA 349/2007 is one in respect of which the requisite opinion was formed, conformably with the third of the three items recorded in the left hand column of the extracted table. Thus, the requirements for notification and advertisement articulated in the second column are to be observed. It is the content of the obligation to advertise upon which the parties differ. The applicant accepts that the requisite notice was placed on the site as required by the first item in the right hand column and that letters were sent to land owners in accordance with the requirements of the third item of that same column.

149 The applicant submits that in order to meet the requirements for advertising imposed by the table, there must be at least (“a minimum”) 28 days upon which the advertisement appears in a local newspaper. If the “local newspaper” is not published daily, the advertisements must nevertheless appear on at least 28 occasions, however long that process may take. While I understand the applicant to accept that this requirement may seem burdensome, it submits that it is the inevitable consequence of the language used in DCP 5. In effect, its submission is that the language is intractable in requiring advertisements to be placed in a local newspaper on 28 separate occasions.

150 Unsurprisingly, the respondents do not accept the interpretation of the advertising provision for which the applicant contends. They point to the language of the provision, its context within DCP 5 and the legislative context in which provision is made for the advertisement of particular forms of development. These factors, considered collectively so they submit, militate against the interpretation for which the applicant contends.

151 The language of the provision in question is important to be considered. That provision, like other provisions of DCP 5, is not drafted with pellucid clarity. It states the need for “an advertisement” to be placed in a local newspaper. While reference to “advertisement” in the singular is not, in the context of the phrase imposing the obligation, a complete answer to the applicant’s contention, it is necessary to be taken into account when construing the requirement. Had the phrase been expressed to require that “advertisements” be placed in a local newspaper for a minimum of 28 days, the need for multiple advertisements, at the very least, would have been made apparent.

152 If, as I believe to be the case, DCP 5 is to be regarded as a quasi legislative instrument (cf Div. 6 of Pt 3, EPA Act), it is appropriate to consider its provisions in accordance with general principles of statutory interpretation (Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155 at [36]; 66 NSWLR 379 at 388). In turn, such an approach to its interpretation requires that context be considered in the first instance and not only after ambiguity is identified (Repatriation Commission v Vietnam Veterans’ Association of Australia [2000] NSWCA 65; (2000) 48 NSWLR 548 per Spigelman CJ at [107] – [108] and the authorities there cited; 48 NSWLR 548 at 575 – 6).

153 The immediate context for present purposes is that which appears on p 6 of DCP 5. The first paragraph of that page is headed “Exhibition and Submissions Periods”. Beneath that heading the following paragraph appears (the p 6 paragraph):

“A Designated development or advertised development as per schedule 2 of the Broken Hill Local Environmental Plan, 1996 will be available for viewing at the Council’s offices for 30 days (objectors have same period of time to comment to Council). Applications for all other types of development will be available for viewing at Council’s offices for between 14 and 28 days as advised by letter or advertised.”

154 While the advertising requirement in the table on p 5 of the DCP and the p 6 paragraph are each addressing different topics, their operation would be expected to intersect at some point in time. Obviously enough, the purpose of the advertisement is to alert the reader of the local newspaper to the fact that an application for development of a particular type has been received by the Council. It can also be expected that a consequence of the advertisement being published is that those who seek more information about the development application are given sufficient detail to know where and when that further information can be obtained. The p 6 paragraph then specifies the place at which, and period for which, the expectation created by the advertisement can be fulfilled.

155 DA 349/2007, so the parties accept, falls within the “other types of development” referred to in the final sentence of the p 6 paragraph. As a consequence, that application was to be “available for viewing” for 28 days “as … advertised”.

156 If the requirement for advertising is as contended for by the applicant, the expectation of intersection in the operation of the two provisions may well not occur, at least at a practical level. The specified medium for the placing of an advertisement is a “local newspaper”. Unsurprisingly, nothing in the DCP identifies an expectation as to the frequency with which such a newspaper is published. To the extent that it is relevant as a guide to the interpretation of the DCP, the term “local newspaper” is defined in cl 3 of the Environmental Planning And Assessment Regulation 2000 (the Regulation) to mean “a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks.” Relevantly, no assumption can be made that there is an available daily newspaper for the placement of the necessary advertisement. The frequency with which the Barrier Daily Truth newspaper is published was not proved. It was said from the bar table that in spite of its title, that newspaper was published on only 6 days each week.

157 However, the frequency of publication of a particular newspaper, in the absence of its nomination within DCP 5, is irrelevant. DCP 5 must be considered as having an enduring operation. Particular newspapers and the frequency of their publication “throughout the relevant area” are, understandably, matters not addressed either in DCP 5 or in the governing LEP.

158 Once it is accepted that the publication of advertisements on 28 separate occasions may extend over a period in excess – even well in excess – of 28 days, the practical and reasonable operation of the advertising requirement in conjunction with the document “viewing” requirement expressed in the p 6 paragraph becomes problematic. While the latter provision would seem to require that documents pertaining to a particular development application be available for “viewing” at the Council’s offices for a single continuous period of 28 days, the advertising requirement, applied in accordance with the applicant’s submission, could well result in advertisements appearing in a local newspaper well after the “viewing” period had closed. This could not have been intended by the drafter of the LEP.

159 It is certainly possible to conceive of application of the p 6 paragraph which might attempt the accommodation of a more harmonious temporal operation between the requirements of that paragraph and the advertising requirement for which the applicant contends. However, any such attempt of which I can conceive necessarily involves change to or addition to the language of the p 6 paragraph. So to do would not be consonant with ordinary principles of interpretation which require that recognition be given to the primacy of the text being considered (Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [10]). Only in limited circumstances should words be read into the text (Bermingham v Corrective Services Commission of NSW [1988] 15 NSWLR 292 per McHugh JA at 302). The exercise mandated by Bermingham is unnecessary if the advertising requirement of the DCP is interpreted differently from that contended for by the applicant but still giving effect to the words used, having regard to their context and the purpose served by the provision.

160 There are other provisions of DCP 5 which necessitate an understanding of purpose and context in order to give them meaning. Indeed, a consideration of its provisions reveals that it is no shining example of the drafter’s art. Apart from the infelicitous expression of the advertising provision itself, other examples of infelicitous drafting can be identified.

161 First, on p 1 of the DCP the expression “advertised development” is defined, making reference, in terms, to Schedule 2 to the LEP. Schedule 2 to the LEP is engaged by cl 17. The combined effect of cl 17 and that Schedule is to identify six forms of development which are to attract the provisions of the EPA Act so far as those provisions relate to the notification and advertisement of development which is categorised as ‘designated development’. Only five of those forms of development are noted in the definition of “advertised development” as it appears in the DCP, yet the opening words clearly manifest an intent that all forms of development identified in Schedule 2 to the LEP would or should be so included.

162 The term “designated development” is defined on p 2 of DCP 5 as meaning “development described in Schedule 3 of the Environmental Planning and Assessment Act.” At no time relevant to the operation of DCP 5 has Schedule 3 to the EPA Act described any form of development. At the time of the last amendment to the development control plan, Schedule 3 made provision for the constitution of the “Local Government Liaison Committee.” At the time at which the Consent was granted, that same Schedule to the EPA Act made provision for the constitution of the “Planning Assessment Commission”. It is Schedule 3 to the Regulation that identifies development which is “designated development” within the meaning of the EPA Act. Clearly, this is what was intended by the drafter of the LEP.

163 The third example that I give arises from the definition of “residential flat building” in DCP 5. It is there defined as meaning “a building containing two or more dwellings … ”. The same expression is defined in the LEP as meaning “a building containing three or more dwellings”. DCP 5 further provides that in the event of any consistency between it and the LEP, then the LEP is to prevail. Given that latter provision, it is not easy to rationalise the purpose served by the definition of ‘residential flat building’ contained in the development control plan.

164 Attention is drawn to these matters not for the purpose of criticism or ridicule. Rather, they underline the need to approach the interpretation of DCP 5 in the knowledge that its language is not always felicitous and thus necessitates a somewhat broad contextual and purposive approach to its understanding.

165 It is relevant to that context and purpose to consider the advertising regime which both DCP 5 itself and the Regulation identify for different kinds of development. It will be remembered that both ‘designated development’ and developments described in Schedule 2 of the LEP are expressed in the table on p 5 of DCP 5 to be subject to the same requirement for advertising as is DA 349/2007. Those forms of development which are identified in Schedule 2 to the LEP constitute “advertised development” within the meaning of the EPA Act: s 4. The requirements for advertising of both ‘designated development’ and ‘advertised development’ are governed by the provisions of both the EPA Act and the Regulation. Section 79(1)(d) of the EPA Act requires that the consent authority must, in respect of such an application, “cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality.” Clause 80 of the Regulation requires that notice of such an application be published “on at least two separate occasions”. Section 79(1)(a) requires that a designated development application and, in the present circumstances, an application for ‘advertised development’, be placed on exhibition for a period of not less than 30 days, commencing on the day after which notice of the application is first published in accordance with s 79(1)(d). Thus, there is, in substance, coincidence between the “viewing” requirement expressed in the first sentence of the p 6 paragraph of DCP 5 and the latter requirement of the Regulation for exhibition of these particular kinds of development application.

166 Moreover, one can discern the kind of practical intersection to which I earlier referred between the statutory obligation to exhibit documents and the obligation to “advertise” or publish a notice in a newspaper concerning that same development. The exhibition period is 30 days, commencing on the day after the newspaper publication. I have earlier quoted the definition of “local newspaper” as meaning one circulating in the area at intervals of not more than two weeks. Thus, the statutory requirement is fulfilled if two separate notices are published not more than two weeks apart. This readily accommodates the “intersection” to which I have referred by accommodating the advertisement and exhibition process within a minimum of 30 days. Given the manner in which DCP 5 attempts to accommodate the exhibition period conformably with the EPA Act and Regulation pertaining to both ‘designated’ and ‘advertised development’, it would be expected that it would achieve a similar accommodation in respect of the advertising requirement for that same form of development.

167 The manner in which the advertising requirement is expressed on p 5 of the DCP does not gainsay this expectation. Consistency with those provisions will be achieved if the provision is read as requiring an advertisement or, where prescribed by the EPA Regulation, advertisements, indicating that a particular development application has been received and nominating a period of not less than 28 days during which the application and any documents supporting it will be available for “viewing” at the offices of the Council. In the case of ‘designated’ and ‘advertised development’, that minimum period will be 30 days. So understood, there is no inconsistency between the requirements of the EPA Act and Regulation on the one hand and those of DCP 5 on the other, as those requirements relate to the publication of the requisite advertisement.

168 If the analysis just undertaken is correct, as I believe it to be, then by parity of reasoning, the requirement for advertising of DA 349/2007 is that there be “an advertisement” with enduring effect for a minimum of 28 days. In the context of DCP 5, the notification and advertising requirement for this particular application attracts the same obligation for advertisement as does both ‘designated’ and ‘advertised development’. It follows that the same reasoning as to the manner in which the latter types of development can conform to the advertising requirement of the DCP should also apply to the manner in which the requirements pertaining to DA 349/2007 should be understood.

169 There is a further matter that needs to be noticed, arising from the provisions of the Regulation and relevant to the context in which the DCP requirement for advertising should be understood. I have already referred to those provisions of the Regulation which apply to ‘designated’ and ‘advertised development’, requiring publication in a local newspaper on “at least two occasions”. As is apparent from the description of the various types of development identified in Schedule 3 to the Regulation, being development that falls within the definition of “designated development” under the EPA Act (s 77A and cl 4 of the Regulation), they comprise types of development which are likely to have a significant environmental impact. Indeed, so much is acknowledged in a note included on p 2 of DCP 5, immediately following the definition of “designated development” which records that “this includes those forms of development which are likely to have extensive environmental impacts …”. The fact that development identified as potentially having such significant impact should only be required to be advertised on a minimum of two occasions, speaks against an interpretation of the advertising requirement in DCP 5 pertaining to development of the type into which DA 349/2007 falls, requiring that advertisements for it be published on a minimum of 28 occasions.

170 The Regulation identifies a third category of development which attracts the need for advertising in accordance with its provisions. This is development identified in cl 5(2) of the Regulation, which is there referred to as “other advertised development”. Clause 5(2) includes what might be described as environmentally sensitive development as well as development identified as “advertised development” by a development control plan. It will be remembered that DCP 5 does not so define development of the kind included in DA 349/2007. In respect of development that falls within the definition of “other advertised development”, cl 87 of the Regulation requires only that notice of it “be published in a local newspaper”. The language of this provision, coupled with the provisions of cl 89 and the definition of “local newspaper”, make it readily apparent that a single advertisement will suffice for the purpose of cl 87. Again, in a contextual sense, this requirement in respect of development that would otherwise be comprehended by DCP 5 speaks against an interpretation which would require that an advertisement pertaining to DA 349/2007 be published on no less than 28 occasions.

The advertising requirement of DCP 5 is fulfilled

171 For the reasons that I have indicated, I do not accept that the provisions of DCP 5 required that DA 349/2007 be advertised in a local newspaper on 28 separate occasions. The language in which the requirement for advertising is expressed does not compel the interpretation for which the applicant contends. Moreover, its immediate context within the development control plan, particularly its companion provision in the p 6 paragraph, weighs against such a consequence. So also does the statutory and regulatory context imposing requirements for advertising of particular types of development which are themselves also identified in DCP 5.

172 The imprecise drafting of DCP 5, coupled with the context which I have identified, underlines the need to consider purpose when interpreting the requirement. In my opinion, effect is given and purpose applied if the provision is interpreted so as to require, as a minimum, that an advertisement is published which identifies the fact that a development application of a nominated type has been received and that a minimum of 28 days will pass before any step to determine the application will be undertaken by the Council. It would also be expected (indeed, required in the case of those types of development to which the Regulation applies) that such notice would draw attention to the fact that the application and accompanying documents may be “viewed” at the offices of the Council for the required minimum period.

173 Such an interpretation of the critical provision affords to it a reasonable and practical operation, consistent with the purpose of DCP 5. As a document which, so far as is apparent, is not drafted with legal expertise and certainly not drafted with the particularity and specificity of a statute, such an approach to its interpretation is legally permissible and appropriate (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Currey vHargraves [2007] NSWLEC 471 at [20] – [21]; 155 LGERA 91 at 97).

174 It will be remembered that DA 349/2007 was the subject of advertisement in the Barrier Daily Truth newspaper on three occasions in August/September 2008 (see [28]) and on three further occasions in February/March 2009 (see [41]). The applicant takes no issue with the form of these advertisements as meeting the requirements of DCP 5. On each of those occasions, the advertisement notified a period in excess of 28 days after the date upon which the advertisement first appeared and indicated the period during which the application documents could be inspected and submissions made. Further, the applicant does not contend that the development application was required to be further notified after March 2009 by reason of any amendment made to it or by reason of the provision to the Council of further supporting material.

175 For these reasons, I am satisfied that the requirements of DCP 5 for advertising DA 349/2007 have been fulfilled. It follows that the applicant has not demonstrated any breach of s 79A(2) of the EPA Act.

No breach of the EPA Act has been demonstrated

176 The applicant has failed to sustain either of the two bases upon which it sought to impugn the consent. Its summons will therefore be dismissed.

Costs

177 At the conclusion of submissions directed to the breaches alleged by the applicant, I invited the parties to address the question of costs upon the hypothesis of either success or failure in the proceedings. This served the obvious purpose of avoiding any further hearing directed to costs following the delivery of judgment.

178 The applicant accepted that if it was unsuccessful it could not, in principle, resist an order for costs against it. However, it did not accept that it should be liable for the costs of both respondents.

179 Its argument was, in essence, that while it was necessary to seek declaratory relief against the Council and injunctive relief against Leasecorp as the holder of the impugned consent, the proceedings were founded upon breaches of the EPA Act by the Council. Thus, it was necessary only for one respondent to appear as a contradictor, there being no issue necessary to be separately addressed by any one of the respondents. Having regard to modern authority, that contradictor ought to have been Leasecorp (Oshlack v Richmond River Council [1998] HCA 11 at [12]; 193 CLR 72 at 77; Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [76] – [80]; 170 LGERA 162 at 182). In the result, the applicant contended that it should not be ordered to pay the Council’s costs.

180 The source of power to award costs is found in s 98 of the Civil Procedure Act 2005. Section 98(1) relevantly provides that costs are in the discretion of the Court “subject to the rules of court”. Part 42.1 of the Uniform Civil Procedure Rules 2005 requires that if the court makes any order for costs, it is “to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.” No doubt, the combined operation of s 98(1) and Pt 42.1 informed the applicant’s concession, properly made, that if unsuccessful in the proceedings, it was appropriate that an order for costs be made against it.

181 In proceedings where challenge is made to the validity of a development consent, it will often be the case that the award of costs against an unsuccessful challenger will not include an order in favour of more than one party, particularly a respondent council, consistent with the dicta in both Oshlak and Murlan. However, that position does not deny the award in favour of both the holder of the impugned consent and also the council, in an appropriate case (see, for example, McGovern at [226] – [227]).

182 The Council acknowledged the limitation which should ordinarily be imposed upon its participation in proceedings challenging the validity of a development consent. However, it sought to justify its participation by reference to that part of the applicant’s challenge which was founded upon the decision to determine Leasecorp’s application for road closure under the Roads Act while the development application remained undetermined. In its written submission, the Council’s position was expressed in the following way:

Roads Act

183 Consistently with the position thus stated, the Council’s detailed written submissions were confined to the Roads Act issue. While in oral submissions Mr Robertson SC, who appeared for the Council, made brief submissions concerning the “advertising” argument, his submissions were principally directed to the road closure issue.

184 In my opinion, the Council was entitled to take an active role in the proceedings in advancing the submissions which it did. The concurrent consideration of the road closure application under the Roads Act and the development application under the EPA Act was central to the applicant’s submissions. It raised a matter of general importance to the exercise of different statutory functions by the Council. It is that circumstance which justified the Council’s active role in the proceedings (Pearse v Sharpe (No 2) [2008] NSWLEC 81). Should the applicant have been successful, no offence to the principle which informs the dicta in Oshlack and Murlan would be encountered. Mr Boyle no longer exercised the power of the Council as its Administrator. Any reconsideration of DA 349/2007 would necessarily be undertaken by the collegial body elected last December which now constitutes the Council. Moreover, there seems to me to have been a practical and economical division of responsibility on the part of the respondents in presenting their respective submissions to the Court.

185 In the exercise of my discretion, I consider it is appropriate to require the applicant to pay the costs of both respondents. No doubt the economical division of responsibility between the respondents will be reflected in those costs which they seek to recover against the applicant. No order for payment of a proportion of each respondents’ costs seems to me to be necessary (cp McGovern at [229]).

Orders

186 Consistently with my reasons, the Orders that I make are as follows:

1. Summons dismissed

2. The applicant is to pay the respondents’ costs

3. Exhibits may be returned.

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11/06/2010 - The word 'advertising' should read 'advertised' - Paragraph(s) 169 Line 5

13/09/2010 - Change to "advertised" was made in Line 2 - Paragraph(s) 169

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Citations

CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69

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CITATION:	CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT CPT Manager Limited (acting as trustee of the Broken Hill Trust) FIRST RESPONDENT Broken Hill City Council SECOND RESPONDENT Leasecorp Holdings 1 Pty Limited THIRD RESPONDENT Broken Hill Developments Pty Limited
FILE NUMBER(S):	40831 of 2009
CORAM:	Craig J
KEY ISSUES:	JUDICIAL REVIEW :- apprehended bias - prejudgment - area of public road included in development site - concurrent consideration of application for road closure under the Roads Act 1993 and development application under the Environmental Planning and Assessment Act 1997 - decision by Council to apply for road closure and agree upon price for sale of road made prior to determination of development application - separate statutory functions being performed - no apprehension of bias by prejudgment JUDICIAL REVIEW:- apprehended bias - prejudgment - failure to give reasons for decision to grant development consent - reasons for decision not required by statute - Model Code of Conduct adopted under the Local Government Act 1993 did not create an expectation for reasons to be given - no apprehension of bias by prejudgment JUDICIAL REVIEW:- apprehended bias - prejudgment - alleged meeting between decision-maker and development applicant - not established that meeting took place - equal opportunity to meet decision-maker given to objectors - role of consent authority under the Environmental Planning and Assessment Act 1979 - no apprehension of bias by prejudgement PROCEDURAL FAIRNESS:- development application required by development control plan to be advertised - advertisement to be placed in a local newspaper “for a minimum of 28 days” - principles for construing the advertising requirement - advertising on 28 separate occasions not required - requirements of the development control plan met - no breach of s 79A(2) of the Environmental Planning and Assessment Act 1979 COST:- whether order for costs should be made in favour of the Council as well as the developer respondents - concurrent exercise of functions under the Roads Act 1993 and the Environmental Planning and Assessment Act 1979 - issue of general importance for the Council - active participation in the proceedings by the Council appropriate and reasonable - applicant ordered to pay the Council’s costs together with those of the other respondents
LEGISLATION CITED:	Broken Hill Commercial Development Control Plan No. 2 Broken Hill Local Environmental Plan 1996 Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Local Government Act 1993 Roads Act 1993 The City of Broken Hill Notification Development Control Plan No. 5 Uniform Civil Procedure Rules 2005
CASES CITED:	Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 Australian Leisure and Hospitality Group Ltd v Manly Council No. 4 [2009] NSWLEC 226; (2009) 172 LGERA 1 Bermingham v Corrective Services Commission of NSW [1988] 15 NSWLR 292 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No. 2) [2010] NSWLEC 1 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Currey v Hargraves [2007] NSWLEC 471; (2007) 155 LGERA 91 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 168 LGERA 269 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Matic v Mid-Western Regional Council [2008] NSWLEC 113 McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Pearse v Sharpe (No 2) [2008] NSWLEC 81 Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656 R v Commonwealth Conciliation of Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Repatriation Commission v Vietnam Veterans’ Association of Australia [2000] NSWCA 65; (2000) 48 NSWLR 548 Shellharbour Council v Rovili Pty Ltd (1989) 16 NSWLR 104 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148) Sydney City Council v Claude Neon (1989) 15 NSWLR 724 Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006)149 LGERA 329 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245
DATES OF HEARING:	11, 12 March 2010
DATE OF JUDGMENT:	10 June 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A E Galasso SC SOLICITORS Gadens Lawyers FIRST RESPONDENT Mr T F Robertson SC SOLICITORS Pikes Lawyers SECOND and THIRD RESPONDENTS Mr I J Hemmings (Barrister) SOLICITORS RMB Lawyers with Kearns & Garside