DeBattista v Minister for Planning and Environment - [2019] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DeBattista v Minister for Planning and Environment [2019] NSWCA 237
Hearing dates: 19 July 2019
Date of orders: 01 October 2019
Decision date: 01 October 2019
Before: White JA at [1];
McCallum JA at [15];
Emmett AJA at [16]
Decision:
1. To the extent that leave is required, leave to appeal be granted.
2. The appeal be dismissed.
3. The appellant pay the respondents’ costs of the appeal.

Catchwords:
ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan
APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Category: Principal judgment
Parties: David DeBattista (Appellant)
Minister for Planning and Environment (First Respondent)
Shoalhaven City Council (Second Respondent)
Representation:
Counsel:
In person (Appellant)
Submitting appearance (First Respondent)
A M Pickles SC with F J Berglund (Second Respondent)
Solicitors:
In person (Appellant)
Department of Planning and Environment (First Respondent) (Submitting appearance)
Bradley Allen Love Lawyers (Second Respondent)

File Number(s): 2019/8426
Decision under appeal

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 4

Citation:

[2018] NSWLEC 202

Date of Decision:

14 December 2018

Before:

Moore J

File Number(s):

2017/387827

HEADNOTE

[This headnote is not to be read as part of the decision]

On 14 December 2018 a judge (the primary judge) of the Land and Environment Court of New South Wales (the L&E Court) declared that the community consultation process undertaken by Shoalhaven City Council (the Council) in respect of a proposed amendment to reduce the height limit applicable to two parcels of land in St Georges Basin (the Land), owned by the appellant Mr DeBattista, was void and of no effect. However, the primary judge concluded that there was no foundation for apprehended bias to warrant contemplating intervention in the amendment process. His Honour concluded that the processes being undertaken by the Council were of a political and policy nature and not of an administrative nature sufficiently equivalent to curial or quasi-judicial processes to permit intervention on the basis of apprehension of bias.

On 13 March 2019 Mr DeBattista filed a Notice to Appeal on the following grounds:

The primary judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 237
Decision Date: 01 October 2019

CaseChat Overview and Summary

The case of *DeBattista v Minister for Planning and Environment* concerned an appeal to the Court of Appeal of New South Wales regarding the Land and Environment Court's refusal to intervene in a local council's process for amending a Local Environmental Plan. The appellant, DeBattista, sought to challenge the council's decision-making process, alleging it was purely political and thus beyond the court's jurisdiction, and further contending there was a reasonable apprehension of bias that should have halted the council's progress.

The central legal issues before the Court of Appeal were whether the Land and Environment Court erred in its assessment of the council's processes, specifically in determining whether these processes were exclusively political and therefore immune from judicial review. Additionally, the court considered whether there was a valid apprehension of bias that warranted the court's intervention to prevent the council from proceeding with the planning proposal. The appeal also questioned whether the primary judge had made any error in failing to order the council to withdraw the planning proposal and whether the proceedings in the Land and Environment Court had reached a final disposition.

The Court of Appeal affirmed the primary judge's decision, reasoning that the council's processes in amending a Local Environmental Plan, while involving policy and political considerations, were not so inherently political as to entirely preclude judicial scrutiny. The court found no error in the primary judge's conclusion that the Land and Environment Court retained jurisdiction to review aspects of the process. Furthermore, the court was not satisfied that there was a reasonable apprehension of bias sufficient to warrant intervention. Consequently, the appeal was dismissed, with the appellant ordered to pay the respondents' costs.

Orders

Orders of the court

1. To the extent that leave is required, leave to appeal be granted.

2. The appeal be dismissed.

3. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DeBattista v Minister for Planning and Environment [2019] NSWCA 237
Hearing dates:	19 July 2019
Date of orders:	01 October 2019
Decision date:	01 October 2019
Before:	White JA at [1]; McCallum JA at [15]; Emmett AJA at [16]
Decision:	1. To the extent that leave is required, leave to appeal be granted. 2. The appeal be dismissed. 3. The appellant pay the respondents’ costs of the appeal.
Catchwords:	ENVIRONMENT AND PLANNING – building control – council consent and approval – whether the Council’s processes in determining whether to amend a Local Environmental Plan are of a political and policy nature only, precluding the Land and Environment Court from intervening – whether there was a reasonable apprehension of bias that should preclude the Council from proceeding with the Planning Proposal for the amendment of the Local Environmental Plan APPEALS – whether the primary judge demonstrated any error in failing to make an order requiring the Council to withdraw the Planning Proposal for the amendment of the Local Environmental Plan – whether the proceedings in the Land and Environment Court have been the subject of final disposition
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited:	McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Category:	Principal judgment
Parties:	David DeBattista (Appellant) Minister for Planning and Environment (First Respondent) Shoalhaven City Council (Second Respondent)
Representation:	Counsel: In person (Appellant) Submitting appearance (First Respondent) A M Pickles SC with F J Berglund (Second Respondent) Solicitors: In person (Appellant) Department of Planning and Environment (First Respondent) (Submitting appearance) Bradley Allen Love Lawyers (Second Respondent)
File Number(s):	2019/8426
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 4 Citation: [2018] NSWLEC 202 Date of Decision: 14 December 2018 Before: Moore J File Number(s): 2017/387827