DeBattista v Minister for Planning and Environment - [2018] NSWLEC 202

Land and Environment Court

New South Wales

Medium Neutral Citation: DeBattista v Minister for Planning and Environment [2018] NSWLEC 202
Hearing dates: 26, 27 and 28 September, 19 and 22 October 2018 and written submissions by 23 November 2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Class 4
Before: Moore J
Decision:
See orders at [193]

Catchwords: JUDICIAL REVIEW - apprehended bias - Council proposal to amend local environmental plan to reduce permitted development height - no challenge to Gateway Determination by Minister’s Delegate - challenge to Council processes - allegation that Council’s processes tainted by apprehended bias - apprehended bias alleged against the elected Council - apprehended bias also alleged against three nominated individuals who were not members of the elected Council - approach to be taken to Council decision-making - distinction between political and administrative decision-making - whether issue of apprehended bias arises for political decision-making processes - held apprehended bias test not applicable - prematurity - no evidence that the elected Council would not approach consideration of the planning proposal in an appropriate fashion in light of the outcome of community consultation concerning it - premature to consider restraining the Council from proceeding with the planning proposal given the defect in the community consultation process undertaken having caused that process to miscarry
JUDICIAL REVIEW - denial of procedural fairness - planning proposal put on exhibition for community consultation defective in a material respect - defect causes community consultation process to miscarry and therefore of no effect - defect in community consultation process requires Council to consider whether it wishes to recommence community consultation on a correct basis - correct basis would require new community consultation process on the basis of a revised planning proposal - any report to be put to the Council following a new community consultation process would be based on submissions made with respect to a planning proposal compliant with the Gateway Determination findings - declaration of invalidity of community consultation process sufficient and appropriate
COSTS - two grounds pleaded - Applicant unsuccessful on Ground 1 - Applicant successful on Ground 2 - preliminary view that there should be no order as to costs - parties should be permitted the opportunity to seek some other costs order - costs reserved
Legislation Cited: Civil Procedure Act 2005, s 98(1)
Environmental Planning and Assessment Act 1979, ss 56 to 58 and 117
Environmental Planning and Assessment Amendment Act 2017
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017,
cl 16
Uniform Civil Procedure Rules 2005, r 42.15
Cases Cited: Anderton v Auckland City Council [1978] 1 NZLR 657
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223
David DeBattista v Shoalhaven City Council [2017] NSWLEC 1602
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
F & D Bonaccorso Pty Ltd v Canada Bay Council (No 2) (2007)158 LGERA 250; [2007] NSWLEC 537
Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140
Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Minister for Immigration v Jai Legeng (2001) 205 CLR 507; [2001] HCA 17
Lower Hutt City Council v Bank 1 NZLR 545
Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Preferred Projects (Buildings) Pty Ltd v Warringah Shire Council (1999) 106 LGERA 144; [1999] NSWLEC 283
R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411
Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63
Category: Principal judgment
Parties: David DeBattista (Applicant)
Minister for Planning and Environment (First Respondent)
Shoalhaven City Council (Second Respondent)
Representation:
Counsel:
Mr P Tomasetti SC/Ms A Hemmings, barrister (Applicant)
Submitting appearance (First Respondent)
Mr A Pickles SC/Ms F Berglund, barrister (Second Respondent)
Solicitors:
Norton Rose Fulbright (Applicant)
Department of Planning and Environment (First Respondent)
Bradley Allen Love (Second Respondent)

File Number(s): 387827 of 2017
Publication restriction: None

TABLE OF CONTENTS

Introduction
My scope for decision
The relevant statutory provisions
Chronology
The basis for the proceedings
The relief sought
Protection of the status quo pending determination of these proceedings
The role of the planning proposal in the future Class 1 proceedings
Was inaccuracy in the planning proposal pleaded for Mr DeBattista?
Directions pursuant to s 117 of the EP&A Act
The privative clause in s 117 of the EP&A Act
The relevant interrogatory answers
The conclusion of the community consultation process
The Gateway Determination
Introduction
The Planning Proposal

Ground 2
Introduction to Ground 2
The political background - the 2016 council elections
The initiation of the planning proposal process
The alleged bases of contamination of the Council’s processes
Introduction
Activities by those who are not members of the elected Council
Introduction
The role of the local Member
The role of the General Manager
Mr Clark’s role
Conclusion concerning those who are not members of the elected Council

The elected councillors
The relevant legal framework and its applicability
The submissions
Consideration
Conclusion

If apprehended bias does potentially arise, the Applicant has not demonstrated that it is engaged
Prematurity
Conclusion on Ground 2
The process is political and the question of apprehended bias does not arise
If it does arise, the Applicant has not demonstrated that it is engaged
Any intervention, if permissible and potentially warranted, would be premature
Outcome of Ground 2

Ground 3
Introduction
The community consultation process
The statutory requirement for community consultation

Direction 3.1 of the s 117 directions
The element of the planning proposal addressing Direction 3.1
The terms of Direction 3.1
Direction 3.1 and the initial development of the planning proposal
The studies commissioned by the Council
The Gateway Determination concerning direction 3.1
The planning proposal subject to community consultation

The three documentary elements of the community consultation process
The Gateway Determination and direction 3.1 of the s 117 directions
Direction 3.1 and the planning proposal put on exhibition
The s 117 directions’ expert reports
Conclusion on Ground 3

The way forward
The repeal of s 57 of the EP&A Act
The community consultation process for the future
What might come next?

Costs
Conclusion
Orders

JUDGMENT

Introduction

Mr DeBattista owns two parcels of land at St Georges Basin. St Georges Basin is a settlement within the local government area administered by Shoalhaven City Council (the Council). The two parcels of land have title descriptors of Lots 1 and 6 in Deposited Plan 1082382. The two allotments are on either side of Anson Street.
The relevant planning controls that presently govern the development potential of Mr DeBattista’s land are contained in the Shoalhaven Local Environmental Plan 2014 (the LEP). Mr DeBattista’s land is partially zoned B4 Mixed Use and partially R1 Residential. Importantly (and giving rise to these proceedings), the maximum permitted height under the LEP for development on Mr DeBattista’s land is 13 metres. The permitted development height was raised from 8.5 metres to 13 metres by the making of the LEP. Mr DeBattista’s land is currently vacant.
In 2016, the Council commenced a process seeking to amend the terms of the LEP to lower the maximum permitted height for development on Mr DeBattista’s land from 13 metres to 8.5 metres. If such an amendment is effected, the maximum development potential on his land will be lowered from four-storey development to two-storey development.
In these proceedings, Mr DeBattista challenges the process being undertaken by the Council on the basis that it is incurably infected with bias. He also complains that, in the process of the Council seeking to advance the planning proposal, he has been denied procedural fairness and natural justice.
He seeks that I order that the Council withdraw the proposal to lower the height limit on his land. These proceedings are to be viewed in a context where there has already been one contested hearing in this Court concerning a specific development proposal for portion of the site and undetermined proceedings concerning an application made to the Council for a concept master plan across the whole of the site.
The determined proceedings (David DeBattista v Shoalhaven City Council [2017] NSWLEC 1602) approved a single four-storey residential flat building, whilst the concept master plan envisages approval of a series of further such buildings across the site.
There is presently a second Class 1 appeal on foot concerning the Council’s deemed refusal of the proposed master plan for the site (Matter No 2017/194159).

My scope for decision

It is to be observed that, in my determination of Mr DeBattista’s challenge to the Council’s LEP amendment process, I am expressly not undertaking any merit review of what should be the appropriate permitted height for development on the site. Whether development should be permitted at 13 metres, 8.5 metres or some other height across the site is a matter entirely irrelevant to these proceedings. I am confined to dealing with the process commenced by the Council, pursuant to the relevant provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in proposing to lower the present maximum permitted height.

The relevant statutory provisions

Before setting out the detail of the relevant statutory provisions requiring my consideration, it is to be observed that, from 1 March 2018, the EP&A Act was reorganised and renumbered using a new, decimal referencing system. Because the bulk of the processes undertaken by the Council to date have been conducted under the structure and numbering of the EP&A Act that previously applied, for convenience, statutory references are made to the EP&A Act as it was in effect prior to these changes.
The relevant provisions were contained in ss 55 to 58 of the EP&A Act. These provisions were in the following terms:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal
(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).
(2)   The planning proposal is to include the following:
(a)   a statement of the objectives or intended outcomes of the proposed instrument,
(b)   an explanation of the provisions that are to be included in the proposed instrument,
(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under s 117),
(d)   if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,
(e)   details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3) The Secretary may issue requirements with respect to the preparation of a planning proposal.

56   Gateway determination
(1)   After preparing a planning proposal, the relevant planning authority may forward it to the Minister.
(2)   After a review of the planning proposal, the Minister is to determine the following:
(a)   whether the matter should proceed (with or without variation),
(b)   whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),
(c)   community consultation required before consideration is given to    the making of the proposed instrument (the community consultation    requirements),
(d)   any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,
(e)   whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,
(f)   the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)   A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.
(4)   The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.
(5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:
(a)   if there has been any delay in the matter being finalised, or
(b)   if for any other reason the Minister considers it appropriate to do    so.

(6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.
(7) The Minister may, at any time, alter a determination made under this section.
(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

57   Community consultation
(1)   Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.
(2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Secretary) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied that the summary provides sufficient details for community consultation.
(3)   During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A).
(4) The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions).
(5)   If:
(a)   a person making a submission so requests, and
(b)   the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing,

the relevant planning authority is to arrange a public hearing on the issues raised in the submission.
(6)   The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter.
(7)   A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority.
(8)   The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.

58   Relevant planning authority may vary proposals or not proceed
(1)   The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.
(2)   If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.
(3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.
(4)   The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.

Chronology

Set out below is a chronology showing what I consider to be the relevant dates and activities requiring consideration in these proceedings:

The basis for the proceedings

The hearing was to be conducted on the basis that Mr DeBattista alleged three grounds upon which the Council should be restrained from dealing further with the planning proposal that affects his land. The three pleaded grounds were, in summary:

That the Council was actually biased against him in a fashion which should preclude it from making a decision on the planning proposal;

That there was a reasonable apprehension of bias concerning the way the Council would approach consideration of whether or not to give effect to the planning proposal and this should preclude the Council proceeding with the planning proposal; and

That the Council's processes had operated in a fashion which denied him natural justice and that this denial of natural justice warranted precluding the Council from further progression of the planning proposal.

During the course of the proceedings, the first of these grounds was abandoned and therefore requires no further consideration.

The relief sought

The Summons commencing the proceedings originally proposed that relief be granted in the following terms:

1. A declaration that the decision of the First Respondent, by his delegate Mr Jeffrey Horn, made on 29 November 2017 to determine pursuant to s56(2) of the Environmental Planning and Assessment Act 1979 that Planning Proposal PP023 to amend the Shoalhaven Local Environmental Plan 2014 ("Shoalhaven LEP 2014") Height of Buildings Map on Lots 1 & 6 DP 1082382 Island Point Road (Anson Street), St Georges Basin dated 12 October 2017 should proceed, is invalid and of no effect.
2.   A declaration that the decision of the First Respondent, by his delegate Mr Jeffrey Horn, made on 29 November 2017 to give written authorisation to Second Respondent to exercise the functions and powers of the First Respondent to make a Local Environmental Plan in accordance with the Gateway Determination is, in the circumstances that have occurred, ultra vires.
3.   An interlocutory injunction compelling the First Respondent to:
a.   direct the Second Respondent to not act on the Gateway Determination in any respect pending the hearing of the proceedings;
b.   withdraw his written authorisation given to Second Respondent to exercise the First Respondent's functions and powers to make a Local Environmental Plan in accordance with the Gateway Determination; until the hearing and determination of these proceedings.

4. An interlocutory injunction ordering the Second Respondent to cease public notification of Planning Proposal PP023.
5. Costs.

Mr Tomasetti SC, counsel for Mr DeBattista, sought leave to rely on a Further Amended Summons. This leave was granted on 10 May 2018. The terms of the relief sought in the Further Amended Summons, filed 15 May 2018, were as follows:

1. Order that the second respondent forthwith withdraw Planning Proposal PP023 to amend the Shoalhaven Local Environmental Plan 2014 with respect to Mr DeBattista s land being Lots 1 & 6 DP 1082382 Island Point Road St Georges Basin from the first respondent.
2. Costs; and
3. Interest on costs.

Although, I expressed reservations to Mr Tomasetti concerning the availability of what was proposed as Order 1, that which is set out above remained the relief sought on Mr DeBattista ’s behalf throughout the proceedings.

Protection of the status quo pending determination of these proceedings

Relevantly, the status quo is preserved pending determination of these proceedings in that:

The Council will not consider or make any resolution concerning Planning Proposal PP023 the subject matter of these proceedings; and

The Council would not take any further steps to progress Planning Proposal 023 other than to prepare a report for the Council, pursuant to s 57 of the EP&A Act and seek an extension of the lapsing date for the delegation to the Council to make the amendment to the LEP.

The role of the planning proposal in the future Class 1 proceedings

It is to be observed that, if the planning proposal is carried into fruition prior to the determination of the Class 1 proceedings relating to Mr DeBattista’s concept master plan, the resultant amendment to the LEP will not preclude the decision-maker in the Court from approving the master plan. However, for that to be able to occur, Mr DeBattista would need to rely on the facultative power arising from cl 4.6 of the LEP to satisfy the decision-maker that Mr DeBattista’s proposed concept master plan should be given a dispensation from compliance with what would have become the new maximum building height for the site.
Even if I find in favour of the Council on both grounds, but the LEP is not amended by the time of the hearing, the extent to which the proposed amendment might be regarded as imminent and certain is a factor to be taken into account by the decision-maker when weighing whether or not to uphold Mr DeBattista’s appeal and approve his concept master plan.

Was inaccuracy in the planning proposal pleaded for Mr DeBattista?

On a number of occasions during the course of his submissions, Mr Pickles SC, counsel for the Council, advanced the proposition that the question (of whether or not that which was contained in the planning proposal dealing with direction 3.1 of the s 117 directions was misleading) had not been pleaded on behalf of Mr DeBattista. In response, Mr Tomasetti tendered a copy of a request for particulars that had been forwarded by the Council's solicitors on 14 May 2018 and the letter written in reply on 12 June 2018. These documents became Exhibit K.
The request for particulars followed an order made on 10 May 2018, during the course of pre-trial directions, that Mr DeBattista provide responses to the Council's request for particulars in relation to the Further Amended Summons.
On page 4 of the response on behalf of Mr DeBattista, there appears, at (16), the following specific particular:

The public exhibition of the Planning Proposal between 20 December 2017 and 2 February 2018 in circumstances where the Planning Proposal:
(a)   …
(b)   …
(c)   …
(d)   …
(e)   …
(f)   …
(g)   Contained information which was incorrect and/or confusing or misleading as to the consistency of the Planning proposal with Direction 3.1;
(h)   …
(i)   …
(j)   …

With respect to Ground 3, the request on behalf of the Council was in the following terms:

In relation to the allegation in paragraph 52 that Mr DeBattista is being denied procedural fairness and natural justice:
(a)   provide particulars of the decision said to give rise to a denial of procedural fairness and natural justice;
(b)   provide particulars of the acts or omissions said to give rise to a denial of procedural fairness and natural justice;
(c)   which provisions of the EPA Act are said to be breached giving rise to a denial of procedural fairness?

Although not specifically headed as being relevant, it is to be inferred that the elements of (16) of Mr DeBattista’s solicitor’s letter of 12 June 2018 provide the response on this point. The response is in the following terms:

The public exhibition of the planning proposal between 20 December 2017 and 2 February 2018 in circumstances where the planning proposal:
(a)   Included provisions which did not give effect to the objectives of the direction 3.1; and
(b)   Included provisions that reduced the total floor space area for employment uses and related public services in business zones; and
(c)   included provisions that reduced the permissible residential density of land; and
(d)   was not justified by strategy or study of the matters in direction 1.1 cl 5(a) or (b) respectively; and
(e)   was not justified by strategy or study of the matters in direction 3.1 cl 6(a) or (b) respectively;
(f)   contained information which was incorrect and/or confusing and/or misleading as to the consistency of the planning proposal with direction 1.1;
(g)   contained information which is incorrect and/or confusing and/or misleading as to the consistency of the planning proposal with direction 3.1;
(h)   contained information which was incorrect and/or confusing or misleading as to the permissible 11-metre height limit on surrounding land;
(i)   was exhibited with a report prepared by Atlas Urban dated 9 October 2017 which had been substantially and materially amended at the direction of officers of the Second Respondent and did not reflect the opinion of the author absent such direction;
(k)   was exhibited with a report prepared by Walsh & Monaghan dated 16 June 2017 which had been substantially and materially amended at the direction of officers of the Second Respondent.

I am satisfied that this element of the particulars, provided in the letter of 12 June 2018, provides an adequate basis to engage the issue of whether or not that which was set out in on page 14 of Exhibit J in addressing direction 3.1 of the s 117 directions adequately and sufficiently raises this matter for the purposes of the third of the grounds earlier set out as having been pleaded on Mr DeBattista's behalf.
In addition, it is to be observed that (52) of the Amended Summons was in the following terms:

52 In the foregoing circumstances, the Second Respondent is acting in breach of the EPA Act, is threatening to further breach the EPA Act and the Applicant is being denied procedural fairness and natural justice in the process and is being caused loss and damage which can only be remedied upon the Second Respondent being restrained from proceeding with the PP023 as set out in the Summons.

The Council’s written submissions responded to this in the following terms:

Natural Justice
31   Paragraph [52] of the Amended Summons pleads that the Council has breached the EPA Act because the applicant has been denied procedural fairness and natural justice. In a letter from the Applicant’s solicitors to the Second Respondent’s solicitors dated 12 June 2018 the Applicant particularised the acts which it says give rise to this claim. These acts can be summarised as falling into the following categories:
(i)   Policy position statements made individual Councillors;
(ii)   Resolutions made by the Second Respondent or its Development Committee;
(iii)   Actions of Council’s staff; and
(iv)   Alleged flaws in the material put on public exhibition.

As can readily be seen, (31)(iv) acknowledges that the claim that the material put to public consultation pursuant to s 57 of the EP&A Act was said to be flawed had been pressed for Mr DeBattista.
It follows that the complaint by Mr Pickles lacks foundation.

Directions pursuant to s 117 of the EP&A Act

The EP&A Act provides, in s 117, for the departmental head of the Department of Planning (now known as the Planning Secretary) to set out directions requiring matters that are mandated to be addressed as part of the development of planning proposals to be submitted for a Gateway Determination pursuant to s 56 of the EP&A Act. For the present purposes, it is sufficient to set out ss 117(1), (2) and (3). These provisions are in the following terms:

117   Directions by the Minister
(1) The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.
(2)   In addition to any direction which may be given under subsection (1), the Minister may direct a council:
(a)   to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and
(b)   without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and
(b1)   on a matter relating to the establishment and procedure of a local planning panel, on the development applications that are to be determined on behalf of a council by a local planning panel and on the planning proposals that are required to be referred to a local planning panel for advice, as referred to in Division 4 of Part 2A, and
(c)   to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.

(3) A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.

The privative clause in s 117 of the EP&A Act

Throughout these proceedings, Mr Tomasetti has expressly disavowed any challenge being made to the adequacy of the Gateway Determination and, specifically, any challenge to the Gateway Determination’s consideration and conclusions concerning the two relevant s 117 directions that were considered by the Minister’s Delegate. As a consequence, the privative provision contained in s 117(5) requires no consideration.

The relevant interrogatory answers

During the pre-trial process, on 16 March 2018, I granted leave to Mr DeBattista’s legal representative to administer interrogatories to the Council and to require that those interrogatories be verified by affidavit. On 28 March 2018, the Council provided answers to those interrogatories, answers which were verified by an affidavit signed by the Council's Strategic Planning Manager. The answers to the interrogatories and their verifying affidavit became Exhibit J. Amongst the questions put to the Council were ones concerning the position of whether or not the planning proposal was regarded by the Council as being consistent with direction 3.1 of the s 117 directions. The relevant extract from Exhibit J is in the following terms:

In relation to the s 117 direction 3.1:
7   Interrogatory:
In relation to the Second Respondent's decision that the provisions of the Planning Proposal PP 023 dated 12 October 2017 were consistent with the requirements in paragraph (4) and (5) of the direction please specify the basis for the Second Respondent's decision that the provisions of the planning proposal:
Encourages the provision of housing that will:
a.   broaden the choice of building types and locations available in the housing market, and
i.   make more efficient use of existing infrastructure and services, and
ii.   reduce the consumption of land for housing and associated urban development on the urban fringe, and
iii.   be of good design, and

b. contains a requirement that residential development is not permitted until land is adequately serviced (or arrangements satisfactory to the council, or other appropriate authority, have been made to service it), and
c. did not contain provisions which will reduce the permissible residential density of land.

Answer to 7(a):
The Second Respondent did not consider that Planning Proposal PP 023 dated 12 October 2017 would be consistent with the requirement in paragraph 5(b) of the direction. Rather, the Second Respondent considered that the following reports justified the inconsistency with the requirement in paragraph 5(b) as permitted by paragraph 6(b) of the direction:
• Walsh & Monaghan report; and
• Character Assessment and Urban Design Review prepared by Atlas Urban Design & Strategy Pty Ltd dated 9 October 2017 (the Atlas report).

The Second Respondent considered the planning proposal would be consistent with the requirements of paragraph 4(a)-(d) and paragraph 5(a) of the direction. The basis of the Second Respondent's decision that the planning proposal was consistent with paragraph 4(a)-(d) of the direction was:
1.   The proposal did not propose provisions that would change the underlying zoning of the site, or affect other existing development controls applicable to the site, that encourage the provision of housing that will:
i.      broaden the choice of building types and locations available in the housing market;
ii.   make efficient use of existing infrastructure and services;
iii.   reduce the consumption of land for housing and associated urban development on the urban fringe; and
iv.   be of good design;

2. the Walsh & Monaghan report; and
3. the Atlas report.

Answer to 7(b):
The basis of the Second Respondent's decision of the planning proposal was consistent with paragraph 5(a) of the direction was because the planning proposal would not affect cl 7.11 of the Shoalhaven Local Environmental Plan 2014, which is applicable to the subject site.

Answer to 7(c):
The Second Respondent did not consider the proposal would be consistent with paragraph 5(b) of the direction. The Second Respondent considered the proposal was consistent with the objectives of the direction. See the answer to interrogatory 7(a) above.

8 Interrogatory:
Please identify the reports, studies, investigation or analysis upon which the Second Respondent relied in making the decision in paragraph 7.

Answer:
This interrogatory is unclear. There is no paragraph 7 in direction 3.1.
On the assumption that this interrogatory refers to paragraph 7 of the interrogatories, the Second Respondent relied upon:
1.   the analysis undertaken by its staff of the underlying zoning of the site and the existing planning controls which would not be affected by the planning proposal;
2.   the Walsh & Monaghan report; and
3.   the Atlas report.

The conclusion of the community consultation process

As earlier noted, the community consultation process on the planning proposal concluded on 2 February 2018. It is to be observed that no report of the outcome of the community consultation process has been presented to the elected councillors. Whether or not such a report has been prepared is not a matter in evidence in these proceedings. However, it is to be noted that the undertaking given by the Council for the preservation of the status quo, pending my determination of Mr DeBattista’s challenges, does permit the preparation of such a report for presentation to the Council.
The terms of my order preserving the status quo, pending delivery of this decision, continues the right for the Council to have this report prepared.

The Gateway Determination

Introduction

The Planning Proposal

In the version of the planning proposal that was forwarded seeking the Gateway Determination, there appeared a section entitled “4.2.4 Is the planning proposal consistent with the applicable ministerial directions (s 117 directions)?”. The document then noted that:

The ministerial directions are considered in Attachment 3. Those that are specifically relevant to the site and the proposal are discussed in greater detail below.

The planning proposal then dealt with direction 1.1 of the s 117 directions. It noted that the planning proposal was inconsistent with this direction as it proposes to reduce the permissible residential density to the land. The section then notes:

However, the direction allows for a PP to be inconsistent when justified by a study (prepared in support of the planning proposal), which gives consideration to the objectives of this direction.

This portion of the planning proposal then added commentary referable to the Walsh & Monaghan study, and then referred a reader to Attachment 7 (this attachment being the full text of the Walsh & Monaghan study).
The planning proposal then addressed a further five of the standard directions made pursuant to s 117 of the EP&A Act. These directions were:

2.2 Coastal Protection;

3.1 Residential Zones;

3.4 Integrated Land Use and Transport;

4.4 Planning for Bushfire Protection; and

5.10 Implementation of Regional Plans.

The discussion of the first and third to fifth of the above listed directions is not a matter of controversy in these proceedings.

Ground 2

Introduction to Ground 2

I now turn to consider the second of the grounds pleaded. It was in the following terms:

That there was a reasonable apprehension of bias concerning the way the Council would approach consideration of whether or not to give effect to the planning proposal.

In the chronology at [11], it is noted that, in 2014, the LEP was made and this increased the permitted development height for Mr DeBattista’s land. This amendment significantly increased the development potential available to Mr DeBattista. As earlier noted, one development has been approved for a four-storey apartment block on portion of Mr DeBattista’s landholding at St Georges Basin. This apartment block relied on the amendment to the permitted development height on Mr DeBattista’s land for its approvability.
The Council has commenced a process that can lead to the making of a further amendment to the LEP concerning the permitted development height on Mr DeBattista’s land. The effect of the amendment to the LEP, if it is given effect through the planning proposal process that is the subject of these proceedings, will be to lower the maximum permitted development height to that which applied prior to the increase that resulted from the earlier making of the LEP.
As can be seen from that which is set out above, the first basis upon which Mr DeBattista now actively seeks to challenge the Council’s planning proposal process is the suggestion that there is a reasonable apprehension of bias and that that apprehension taints the Council’s process in a fashion that warrants the Council being restrained from further consideration of the proposal to amend the LEP to reduce the development height potential of Mr DeBattista’s land.

The political background - the 2016 council elections

During campaigning for the 2016 council elections, the permitted building height on Mr DeBattista’s land was a matter of some controversy. A number of the candidates campaigned in opposition to the present permitted maximum building height of 13 metres, indicating that they had a policy of seeking to have the Council lower the permitted height if they were elected as members. During the course of the hearing, a video of one candidate expressing these views was played, with the video being recorded on the street outside Mr DeBattista’s land. Opposition to the 13-metre height limit and supporting its lowering was an official policy of The Greens Group for this election.
One sitting councillor, Councillor Proudfoot, who had supported the earlier amendment to the Height of Buildings Map to increase the permitted height publicly recanted that support, issuing a statutory declaration in which he said:

I supported this on the basis that the Anson Street site had been un-mapped since L.E.P. 1985 was established, meaning that the 11 metre height provision via the Illawarra Regional Plan was applicable, (as well as an open-ended increase in height with State Government concurrence), and thus the 13 metres seemed to be a reasonable “best fit transfer” under the “like-for-like” provision required for the new state-wide L.E.P. zoning template. I have to say that the desire of Mr DeBattista to cover the entire site with 4 storey unit buildings was not my understanding of the future potential for this site. I left the Development Meeting back in 2011 with the impression that this site could support a sensitive mixture of buildings of various heights, with some of these being 4 storeys, particularly nearer to the current hotel location. The initial proposal (which is now before the court) to construct 4 storey units adjacent to the Rosevale Village is, in my view, misguided, as it does not demonstrate that a sensitive assessment of the site has occurred. With the benefit of hindsight, I would not have supported the height mapping of 13 metres, as it seeks to take an inappropriate advantage of a generous zone, and represents very poor town planning. Mr DeBattista really does need to start again!

Those concerning whom I have evidence as to their opposition to the current height limit and proposing to support its lowering and who were successful in election to the current Council were:

Councillor Findlay (elected as a member of The Greens Group and currently Mayor of the Council);

Councillor Proudfoot; and

Councillor Gartner.

In this context, it is to be observed that the Council has a total of 13 councillors, including the Mayor.

The initiation of the planning proposal process

On 25 October 2016, the newly elected Council was presented with a mayoral minute proposing a resolution that the General Manager be requested to prepare a report into options for reducing the height limit applicable to Mr DeBattista’s land.
This resolution, positing the reduction of the height limit as the express intended outcome of the General Manager’s investigation is, in Mr DeBattista’s case, the initial indicator that the members of the Council might not bring an unbiased mind to consideration and determination of any planning proposal to lower the development height limit on Mr DeBattista’s land.
On 6 December 2016, the Council considered a staff report that had been prepared in response to the 25 October 2016 resolution. The Council resolved, unanimously, to prepare a planning proposal to amend the Height of Buildings Map for the site in a fashion which, if implemented, would lower the potential development height for Mr DeBattista’s land.
In the Summary of the Applicant's Argument, it was submitted that, relevantly, what required to be determined was:

Whether in all the circumstances, the fair-minded lay observer might reasonably apprehend that the second respondent (the Council) might not be open to persuasion to not make the amending LEP.

This proposition, often described as the “two mights” or “double might” test has historically had foundation in the formulation of a process to guarantee the impartiality of judicial decision-making. However, as the plurality observed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [4]:

The principle has been applied not only to the judicial system but also, by extension, too many other kinds of decision-making and decision maker. Most often, it now finds its reflection and application in the body of learning that has developed about procedural fairness, the application of the principle in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision-making.

The two examples which then followed made it clear that the types of other decision-maker envisaged as needing more careful consideration when the potential operation of the test was being applied to non-judicial decision‑makers would, in the first instance, arise when a statutory requirement for a tribunal mandated performance of functions which prevailed over, and displaced, the rules of natural justice. The second was the likelihood that most administrative decision-makers would not have the same degree of independence and security of tenure enjoyed by judges.
The analysis in [6] to [8] of the reasoning of the plurality in Ebner deals with decision-making in the curial process in a variety of different aspects, but, nonetheless, in a curial process.
It is apt, at this point, to remind myself that that which is being suggested for the Councillors is not actual bias (that ground, Ground 1, having been abandoned), but the invocation of the “double might” test in circumstances where Mr DeBattista alleges it is inherent in the conduct of the councillors (relevantly, it is alleged on behalf of Mr DeBattista), senior staff of the Council and the local Member that there is a predetermined outcome adverse to his interests that will flow from the planning proposal process that has been initiated.

The alleged bases of contamination of the Council’s processes

Introduction

There are two separate ways, it is suggested for Mr DeBattista, that would cause the conclusion to be reached that the “double might” test was infringed in a fashion requiring the Council to be constrained from proceeding with the planning proposal. The first of these arises from complaints raised about the conduct of persons who are not members of the elected Council, whilst, more significantly, the second arises from what is said to be the inevitable predetermination of the elected members themselves.

Activities by those who are not members of the elected Council

Introduction

There are three areas of activity where the actions of persons who are not elected councillors are suggested, by implication, to the infecting the Council’s processes to contribute to an inference of the impermissible taint of apprehended bias. There were three primary players invoked in this regard. They were:

The Hon Shelley Hancock MP, Member for Shoalhaven and Speaker of the NSW Legislative Assembly;

Mr Russell Pigg, the Council's General Manager; and

Mr Gordon Clark, the Council's Manager - Strategic Planning.

The role of the local Member

The role played by the local Member and her electorate office staff can be disposed of in comparatively short compass. The various items of correspondence and other contacts (these being in evidence but not necessary to be set out in detail) are quite clearly entirely conventional constituency representations.
To the extent that that which was being sought was a speeding up of bureaucratic decision-making processes within the Department to seek to achieve a determination by the Minister’s Delegate at an early date as to whether or not a Gateway Determination would be issued was in no way unusual or improper or ones potentially inappropriate in an Ebner sense.

The role of the General Manager

The actions of the General Manager about which complaint is made are also ones not warranting any conclusion that his actions could support any inference of apprehended bias on his behalf or on behalf of the councillors. The evidence was that the General Manager sought to have the departmental processes speeded up and, in doing so, initiated contacts with Ms Hancock's office for this purpose.
There was nothing unusual in him carrying out this role in the context of the two timelines operating, those being the processes of this Court concerning merit appeals for proposed developments on Mr DeBattista’s land and the process of advancing the planning proposal, as a finalised outcome of either one of them would render the other ineffectual or largely so.
This was in the context where the Council had made a policy decision that it wished to pursue a planning proposal to lower the maximum development height potential for Mr DeBattista’s land and where the pending proceedings before the Court, if successful for Mr DeBattista, would render such amendment to the LEP futile.

Mr Clark’s role

Mr Clark is the Council's Manager - Strategic Planning. It fell within his responsibilities to supervise and have control over the processes for preparation of the planning proposal to lower the permitted development height on Mr DeBattista’s land. His activities, in this regard, do not appear to be, in any fashion, regarded as controversial by Mr DeBattista’s legal representatives until after the request was made by the Department on 18 April 2017 seeking further information to address the requirements of directions 1.1 and 3.1 of the s 117 directions. As I understand the position, nothing is said to turn on any activities undertaken by Mr Clark, or under his supervision, prior to this time.
However, in response to the request from the Department, Mr Clark (it is to be inferred) determined that it was necessary or appropriate (it mattering not which) to have each of the s 117 directions addressed by an external consultant rather than internally by staff under his supervision. Two consultants were, after provision of quotations for the relevant services, commissioned to undertake these separate pieces of work.
First, on 23 May 2017, a feasibility analysis was commissioned from a consultancy, Walsh & Monaghan, for the purposes of addressing direction 1.1 of the s 117 directions. Walsh & Monaghan's report was provided to the Council in mid-June 2017. Although there were some issues raised on behalf of Mr DeBattista as to the sufficiency and relevance of this analysis, the Walsh & Monaghan report was accepted by the Department and, subsequently, by the Minister’s Delegate as providing a basis to permit the making of the Gateway Determination permitting the further progression of the planning proposal.
Given that the planning proposal that was subsequently placed on public exhibition acknowledged that the planning proposal was inconsistent with direction 1.1 of the s 117 directions, and Mr Tomasetti has expressly disavowed any challenge to the Gateway Determination, it is not necessary to consider in any detail the Walsh & Monaghan report or the processes undertaken under Mr Clark’s supervision with respect to it.
On 27 June 2017, a character assessment was commissioned from Atlas Urban. This study was commissioned to address the Department's concerns about the inadequacy of information addressing direction 3.1 of the s 117 directions.
For the purpose of the discussion which follows, the following chronology concerning the development of the Council’s response to the Department's request for further information addressing direction 3.1 of the s 117 directions is relevant:

19 May 2017

Council quote request

Evidence Book Volume 2, Tab 20

26 May 2017

Atlas Urban’s fee proposal

Evidence Book Volume 2, Tab 23

27 June 2017

Council accepts Atlas Urban’s quotation

Evidence Book Volume 2, Tab 30

27 June 2017

Commissioning letter

Evidence Book Volume 2, Tab 31

On or about 29 August 2017

August Draft Atlas Urban character assessment and Urban Design Review provided to Council

Evidence Book, Tab 43 folio 208

29 August 2017

Email from Peta Brooks (Council) to Mark Gazy (AU) saying ‘disappointed with the report’ and attaching August Atlas Urban character assessment and Urban Design Review with Gordon’s comments (Evidence Book Volume 2, Tab 44)

Evidence Book Volume 2, Tab 42 folio 205

31 August 2017 - 7 September 2017

Email correspondence between Paul Walter (AU) and Peta Brooks (Council), with Atlas Urban requesting formal directions but none given

Evidence Book Volume 2, Tab 42, 43, 45 and 46

20 September 2017

September Atlas Urban character assessment and Urban Design Review

Evidence Book Volume 2, Tab 49

27 September 2017

Email from Peta Brooks (Council) to Tahnee Ironside (AU) requesting change to ‘direction/directive’ and attaching September Atlas Urban character assessment and Urban Design Review with Gordon’s comments (Evidence Book Volume 2, Tab 53)

Evidence Book Volume 2, Tab 52 folio 305

9 October 2017

October Atlas Urban character assessment and Urban Design Review

Evidence Book Volume 2, Tab 56

Much is made of the comments that were made on the August 2017 draft of the Atlas Urban report, with these being handwritten comments made by Mr Clark. It is fair to say that the handwritten comments were extensive and, in a number of instances, requested changes of some significance to the draft which had been submitted. The subsequent final version of the Atlas Urban report was, virtually entirely, reflective of adoption of the comments made by Mr Clark. A copy of the August 2017 version of the Atlas Urban draft report showing Mr Clark's handwritten comments was in evidence at Evidence Book, Volume 2, Tab 44.
In this context, it is to be observed that there were exchanges of e-mails between Atlas Urban and those of Mr Clark's subordinates having direct carriage of the matter concerning a range of further issues of some specificity as to how they should be addressed in the Atlas Urban report. Despite there being requests from Atlas Urban for formal directions and a reference to directions in a draft provided to the Council, no such formal directions were given (as far as is able to be ascertained from the evidence in these proceedings).
Mr Tomasetti has submitted that these interventions by Mr Clark, and the “guidance” given to the Atlas Urban consultancy by him and his subordinates, should be taken as demonstrating an apprehension of bias in the preparation of this material to support a conclusion that this infected the Council’s processes.
On 19 October 2018, the final full day of the hearing, an affidavit from Mr DeBattista’s solicitor was read without objection. This affidavit included a screenshot from the website of a community group entitled “Basin Villages Forum”. Shown on the screenshot was a copy of an e-mail addressed to councillors and sent by Mr Clark. The text of the reproduced e‑mail was in the following terms:

Dear Councillors
I wish to advise that Mr DeBattista’s challenged to the Gateway Determination concerning the planning proposal (PP) to reduce the mapped height of building in the LEP over his land, located at Anson Street Street St George's Basin is listed for hearing on 26, 27 and 28 September (next Wednesday to Friday inclusive) in the Land and Environment Court in Sydney before Justice Moore.
This is a Class 4 hearing. Whilst there is no opportunity for public submissions, the public may attend to observe the proceedings. The proceedings have been allocated to Courtroom 10A.
You may recall that the progress of the planning proposal has been stayed by agreement until the final day of the hearing of these proceedings. It is likely that the stay will continue until the judgment is handed down. Considering the Class 1 appeal is listed for hearing on 27 November it is anticipated that judgment will be given priority.
If Mr DeBattista is successful with this application, then he is likely to pursue the Class 1 proceedings concerning the master plan development application. If unsuccessful, Council will need to act swiftly to progress the planning proposal as far as possible (hopefully to notification) prior to the commencement of the Class 1 hearing in November 2018.
You will be kept advised of progress in this regard.

Mr Tomasetti submitted that this e-mail provided reinforcing evidence that should lead me to uphold the claim of apprehended bias. He submitted that it was clear that the motive for seeking early resolution of the outcome of the planning proposal following these proceedings was to impose a hurdle for Mr DeBattista’s case in the undetermined Class 1 proceedings.
There are several reasons why it is not appropriate to conclude that Mr Clark's activities should lead to a conclusion of apprehended bias on behalf of the Council.
First, although the evidence discloses that Mr Clark might be regarded as being zealous in his close supervision of the preparation of the material to be prepared by Atlas Urban for submission in response to the departmental request, there is no evidence whatsoever that the elected councillors played any role in this process, nor that they had any knowledge of Mr Clark's activities in this regard.
Second, the Atlas Urban report was prepared for the purposes of satisfaction of the departmental request. It was submitted to the Department and, subsequently, the Minister’s Delegate, in satisfaction of that request. To the extent that the document may have been prepared in order to endeavour to satisfy the Minister’s Delegate that the planning proposal was consistent with the requirements of direction 3.1 of the s 117 directions, it did not succeed in this task.
Although, for the reasons discussed with respect to Ground 3, the planning proposal’s assertion before the Gateway Determination, and after it was made, that the proposed reduction in the development height for Mr DeBattista’s land was consistent with direction 3.1 of the s 117 directions, the Minister’s Delegate did not accept that as a valid proposition. The Minister’s Delegate concluded that, despite the Atlas Urban report, the planning proposal was inconsistent with direction 3.1. It is also to be observed that, as earlier noted, Mr Tomasetti expressly disavowed any attack on the Gateway Determination itself.
I do not consider that Mr Clark’s conduct can be said to be infectious of the Council’s processes in the sense that the departmental advisers were involved in infecting or potentially infecting the Minister’s decision as discussed by the High Court in Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 (Hot Holdings). In this instance, there is, as yet, no validly conducted community consultation process nor any consequent report prepared for submission to the Council. To the extent that issues in that process could potentially arise in a Hot Holdings sense, they have not yet arisen.
However, given the broader conclusion that I have reached as to the political nature of the Council’s policy evolution processes, even if Mr Clark was to play some role of significance in the future preparation of a report on the outcomes of the community consultation process, that would not be a report forming part of a decision-making process of a type amenable to attack for the reasons later explained.

Conclusion concerning those who are not members of the elected Council

For the reasons set out above, with respect to each of the persons who were not members of the Council about whose conduct complaint was made, it can be seen that I am satisfied there is no valid basis for complaint.
However, in addition to that which is set out above concerning each of them, all of their activities occurred, to the extent remotely potentially relevant, in the context of the obtaining of the Gateway Determination from the Minister’s Delegate. Given that there is no attack made on that Gateway Determination, the complained of actions not only do not give rise to any issue of bias concerning the conduct of the Council, but cannot be relied upon for any collateral purpose in attacking the Gateway Determination given that there is no such attack mounted.

The elected councillors

It is clear that the role exercised by the elected members of the Council in initiating the process for a planning proposal to reduce the development height limit on Mr DeBattista’s land was political. The decision to request the General Manager to explore options for such a planning proposal was a unanimous one. It was, clearly, a political one.
The fact that the processes engaged for the elected Council are political ones is, potentially, a significant difference between the elected body’s decision‑making and the decision-making engaged in a curial or quasi-judicial process. This difference requires express consideration.
If these differences in process, by virtue of the political nature of the elected Council's decision-making, do not set aside obligations with respect to apprehended bias in a fashion potentially engaged for consideration of the proposal concerning Mr DeBattista’s land, the question then arises as to whether intervention, at this stage in the Council‘s process, is warranted or not.
This is a matter of some importance given the conclusion which I have reached on Ground 3 (dealt with fully in the next section of this decision) that the community consultation process upon which the Council had embarked was impermissibly flawed. The result of this finding is that, at the very least, if the Council wishes to contemplate proceeding further with the planning proposal, the community consultation process will need to be undertaken afresh and on the basis of a revised planning proposal cured of the defect that has caused the present process to miscarry.
With the possible exception of the attendance of the Mayor during this Court’s processes concerning a specific development proposal on Mr DeBattista’s land, there is no evidence of any active involvement by elected councillors in any processes relating to Mr DeBattista’s land other than those involving necessary formalities in the planning proposal process. The attendance by the Mayor was, as I understood the evidence, in a capacity to speak on behalf of her constituents in opposition to the specific proposed development. This is a limited position confined to that development proposal, a development proposal which, although reliant on the present height limit in the 2014 LEP, was not dealing with matters of policy relating to whether or not a policy decision should be made to lower the permitted height.

In this regard, the Mayor's position differs from that of the councillor whose conduct was considered in R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411 where, on a particular development proposal (not being consideration of policy issues) the councillor unequivocally committed himself to opposing the proposed development. Here, although the Mayor may have represented her constituents and opposed the specific development, there is no evidence that, in doing so, she publicly unequivocally committed to anything other than merely opposing the specific development proposal.
With respect to all the other elected members of the Council, there is no evidence that they have taken any active steps, other than those necessary for the formal progression of the planning proposal, to intervene in the ordinary processes of the Council for evolving such a proposal.

The relevant legal framework and its applicability

The submissions

For the purposes of addressing this aspect of Ground 2, it is appropriate to commence with the position advanced on behalf of the Council. It is the Council’s simple proposition that the strategic planning functions undertaken by any Council (whether in what might be regarded as a micro planning context as is here engaged or in a local government area-wide process for the making of a new local environmental plan), the process is a political one involving considerations of policy.
It is not, the Council contends, a process akin to a curial or quasi-judicial or administrative decision-making process. The element of the planning proposal process that potentially gives rise to the engagement of questions of bias (whether actual or apprehended being irrelevant) only occurs, the Council submits, in the administrative function of the making of the amendment to the plan if that point is reached in the Council processes. In taking that final step, the Council is not acting in its own political capacity but is acting as an administrative decision maker - being the delegate of the Minister for that limited purpose.
Although Mr Pickles is noted as having observed (as discussed in Mr Tomasetti's Summary of Argument in Reply at (2)) that he had not been able to find a case in which a court has restrained the making delegated legislation by a council based on actual or apprehended bias, Mr Tomasetti disputed the correctness of the observation.
Mr Tomasetti, in his reply to this proposition, cited two cases that he said demonstrated that this was not the case. They were the decision of Pain J in Henroth Investments Pty Ltd v Sydney North Planning Panel [2018] NSWLEC 112 (Henroth Investments) and that of Biscoe J in Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 (Capital Airport Group). For the reasons discussed below, neither of these cases stands against the broad proposition advanced by Mr Pickles.
First, the paragraph in Henroth Investments called upon by Mr Tomasetti was [95], where Pain J observed:

The context for the decision under challenge is an essential consideration when assessing an allegation of apprehended or actual bias. The Panel is an independent expert statutory body charged by the Minister with considering the merits of a change in zoning over land owned by Henroth a decision and process which lacks any specific legislative underpinning.

It is clear that what was being undertaken by the planning panel as discussed in Henroth Investments is a non-statutory merit assessment one. It is quite distinctly different from the delegated legislative task with which the Council is invested concerning this planning proposal. It provides no support for the proposition that the political processes of the Council in undertaking strategic planning could be equated to the processes being considered by Pain J.
From Biscoe J’s decision in Capital Airport Group, Mr Tomasetti relies on observations made concerning three cases said to support the proposition that a Council’s plan-making power was subject to Ebner-style restraints. These were:

Anderton v Auckland City Council [1978] 1 NZLR 657 - a decision of the Supreme Court of New Zealand discussed at [203];

F & D Bonaccorso Pty Ltd v Canada Bay Council (No 2) (2007)158 LGERA 250; [2007] NSWLEC 537 - a decision of Biscoe J discussed at [204]; and

Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140 - a decision of Lloyd J discussed at [205].

Each of the above decisions does not stand for the general proposition that Mr Tomasetti seeks to draw from it. Each of them involved not only questions of strategic planning, but strategic planning in circumstances where there were quite fixed contractual or similar obligations which had been entered into by the party whose decision-making processes were being challenged. The basis, in each instance, for the upholding of the challenges was not the nature of the decision-making process being undertaken, but the combination of that process with legally binding obligations that fettered the relevant decision maker so that there could not be any genuinely evaluative decision-making process undertaken.
Whatever might be thought of the political comments which have been made in the past by some (but certainly by no means a majority) of the elected councillors, they do not constitute legally binding obligations to some third party in a fashion which would fetter the decision-making of that individual. As a consequence, these decisions discussed in Capital Airport Group do not provide any assistance to Mr Tomasetti's case in these proceedings.
Mr Tomasetti also relied, in his closing submissions, on the decision of Talbot J in Preferred Projects (Buildings) Pty Ltd v Warringah Shire Council (1999) 106 LGERA 144; [1999] NSWLEC 283. In that case, his Honour was asked to exclude a Commissioner from hearing an appeal concerning a development proposal where, in an earlier case concerning the same parties and the same site, that Commissioner had made various findings and made various comments concerning what might be an appropriate form of development for the site. The developer sought to have the Commissioner recuse himself from hearing the second appeal. He declined to do so. The matter was referred, on the first day of the hearing, to Talbot J to consider whether or not the matter should continue before the Commissioner. His Honour concluded that it was not appropriate that this occur. His Honour did so on two bases:

27 First, I am satisfied on the facts as they appear from the judgment, and on the basis of the agreed position between the parties, that the Commissioner has already made up his mind in respect of a number of matters which fall for redetermination. That is an inescapable fact and accordingly amounts, in my view, to a pre-judgement in the circumstances of this case.
28 Secondly, I am satisfied that in circumstances where the Commissioner has offered an opinion about what might be acceptable, and what steps might be taken to remedy defects in the earlier development application, there is a real apprehension on the part of a casual observer that having invited, as it were, a reformatting of the development application to meet the criticisms that were raised in the earlier proceedings, he might have predetermined the matter. A casual observer would be entitled to reach that view.

These circumstances are not applicable in the present proceedings. The first of the reasons given by his Honour was, in effect, a finding of actual bias. Whilst the second, a finding of apprehended bias, as is here pleaded by Mr DeBattista, arose because the Commissioner had made express remarks about how a future development application would need to be modified to be rendered acceptable. Such remarks certainly indicated that, on the topics about which he had earlier spoken, the Commissioner could not “bring a willingness to give genuine and appropriate consideration to the application” (as said in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) at [27]).
Mr Tomasetti also relied on decision of the New Zealand Court of Appeal in Lower Hutt City Council v Bank 1 NZLR 545, a case where a council exercising powers with respect to road closures was required “to inquire into and dispose of objections”. That statutory function was held (at page 548 from line 8) to be one which:

… imports at least substantial elements of the judicial function. It requires a consideration of the objections, and a decision whether they are to be upheld or rejected. We cannot accept that a Council's task is merely to act as an assembler and pass on of facts and considerations.

The Court noted (at page 548 from line 13), at least for the purposes of New Zealand statutory processes, that the:

… clear-cut distinction, once favoured by the courts, between administrative functions, on the one hand, and judicial functions, on the other, as a result of which it was proper to require the observance of the rules of natural justice in the latter but not in the former, is not in these days to be accepted as supplying the answer, in a case such as we have before us.

Later in the judgment, the Court described what would be the necessary prerequisites for the exercise of some further decision-making by the Council concerning a future application of a similar type. The Court observed (at page 552 from line 8) that such a future decision-making process would not be invalidated, even if there was held “an honest and firm belief that the future action was in the interests of the city” and would not render the decision‑making process incompetent, “provided that they, at all times, accept that they must examine any objections made to another exercise of the powers given by the sixth schedule in an untrammelled and fair matter, with a willingness to change their minds if the considerations brought to their attention call for that”.

Consideration

The broad position concerning how matters of apprehension of bias might be assessed across a broad spectrum of potential decision-makers was discussed by the plurality in Isbester at [22] to [27]. The plurality said:

22   It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
23   How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.
24   The two cases referred to in the Courts below, Jia Legeng and McGovern, furnish examples of how the above-mentioned factors assume relevance to the question of what a fair-minded observer may reasonably expect as to the level, or standard, of impartiality which should be brought to decision-making by certain non-judicial decision-makers. Whether those factors assume particular relevance to a case such as the present, where the essential question concerns incompatibility of roles, or a conflict of interest, is another question.
25   In Jia Legeng, the context for the Minister's decision was a statute providing a particular power in the exercise of which it was necessary to consider the national interest. The decision had a political quality and rendered the Minister subject to a particular kind of accountability unlike that to which a judge would be subjected. It was observed that a person in the position of the Minister may not be as constrained in the wide range of factors to be taken into account and in receiving opinions from a number of sources. It would be artificial, in a decision-making process of this kind, to require the Minister to exercise his power so as to avoid acting in a way that would, in the case of a judge, create the appearance of bias. The same level of evident neutrality as applies to a judge could not be required of a person in the Minister's position.
26   In McGovern, a local council approved an application for consent to further develop a residential property, over the objections of the applicant's neighbours. Prior to voting on the matter, two councillors had come to the view that the application should be approved and they had expressed their view in strong terms on more than one occasion.
27   It was considered by Spigelman CJ in McGovern to be of particular significance that the relevant statutory power was vested in a democratically elected council exercising a discretionary power expressed in broad terms to which multiple considerations applied and in respect of which there might be a range of permissible opinion. At a practical level, it is also to be expected that a person in the position of a councillor will form opinions before voting and may express them. As was observed in Jia Legeng, it would be unrealistic to expect a political decision-maker to modify his or her behaviour in order to conform to higher standards inappropriate to his or her office. It could not be suggested that a councillor who has expressed views to constituents with respect to a development application should disqualify himself or herself. It was in this context that Basten JA said, in the passage quoted by the primary judge in this case and set out above, that a fair-minded observer would expect little more of a councillor than an absence of personal interest and a willingness to give genuine and appropriate consideration to the application.

Later, at [33], their Honours observed, with respect to McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 (a local government case concerning determination of a development application) that:

33 At issue in McGovern were allegations of prejudgement. The question raised concerning the impartiality of the two councillors was whether they could be expected to give genuine consideration of the application, given the opinions they had expressed.

In Minister for Immigration v Jai Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jai Legeng), Gleeson CJ and Gummow J said, in [71]:

71 Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected bias. The question is not whether a decision-makers mind is blank; it is whether it is open to persuasion.

Their Honours continued, in [72], saying:

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

In this instance, where that which is being considered is a potential future political decision-making process, one that requires an assessment, as was observed by Basten JA in McGovern at [75] of:

75 … how the test operates in relation to a local government authority, constituted by elected councillors, which has a diversity of functions, including the broadly political (see Local Government Act 1993, s 8) and those of an administrative decision maker granting authority for specific developments, in accordance with statutory criteria, as in the present case. As the judgments of the High Court in Jia demonstrate, quite different standards will operate in relation to ministerial decision-making because of the need to take into account the particular role and functions of the decision-maker.

His Honour observed, at [77]:

77 There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.

His Honour then addressed three concepts arising from the decision of the High Court in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31, at [87], where Mason CJ and Brennan J had said:

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

The first of the three concepts arising from this passage was identified by Basten JA, at [79], as:

79 The first concerns the general understanding which the fair-minded observer is deemed to have which would create or ally and apprehension of bias.

His Honour continued, in [80], saying:

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 observable 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.

Conclusion

One aspect of these proceedings that appears, unnecessarily, to have constrained the approach to consideration of the Council’s political role is the fact that this planning proposal is one of quite narrow compass. However, despite its narrow compass (being confined to whether or not the development height permitted on Mr DeBattista’s land should be altered) that which is being undertaken is nonetheless strategic planning in the same fashion as would be the contemplation of zoning or other planning changes if they were being undertaken on a local government area wide basis to be embodied in the LEP. The fact that this is microcosmic planning does not, in itself, remove it from being within the general purview of the political activities of a local council developing policy in a strategic context.
It is clear that, when undertaking a policy decision-making process, a political one for a Council, the test is not such as might be the case discussed above by Basten JA concerning a development application, as such a decision‑making process is not one invested with the freedom that attaches to a political policy-making decision.
The above legal framework defines part of a continuum of decision-making involving judges, tribunals and officials (elected or no). It is a continuum that is confined, in those matters to which I have turned, to decisions of a particular type - being decisions which are not about the setting or implementation of policy.
In the present proceedings, the role that is performed by the elected Council in assessing whether or not an amendment should be made to the LEP is exercising a policy-making function and not a purely administrative decision‑making one. A clear indicator that this is the case, is the fact that the process of preparing the planning proposal was delegated, within the Council’s structure, to those persons charged with strategic planning under the supervision of Mr Clark, the Council's Manager - Strategic Planning.

(d) of minor significance.

Direction 3.1 and the initial development of the planning proposal

As can be observed from the chronology set out [11], the planning proposal, in its original form, was prepared by the Council's staff and forwarded to the Minister for consideration for the issuing of a Gateway Determination on 28 March 2017. In a letter dated 18 April 2017, Ms Karen Armstrong, as delegate of the Secretary of the Department, wrote the following:

The Department has identified the following concerns with the planning proposal:
• The proposal appears to be inconsistent with section 117 Directions 1.1 Business and Industrial Zones and 3.1 Residential Zones because it proposes to reduce the total potential floor area available for employment uses and also reduce the permissible residential density for the land. Any inconsistency with section 117 Directions need to be justified by Council; and
• …
It would be appreciated if Council could address the concerns raised above so that further consideration can be given to the planning proposal.

The studies commissioned by the Council

I have earlier discussed, in my consideration of Ground 2, the two studies that were commissioned by the Council to address the matters raised in the Department's letter of 18 April 2017. These studies were submitted to the Department in support of the making of a Gateway Determination.

The Gateway Determination concerning direction 3.1

On 29 November 2017, the Minister’s Delegate made a Gateway Determination to permit the Council's planning proposal to move to the next stage of the statutory process, this being community consultation. As part of the process (one involving an evaluative assessment as well as the formal Gateway Determination), the Minister’s Delegate was required to consider, amongst other things, whether the planning proposal was consistent with direction 3.1 of the s 117 directions. The evaluation and determination was to be made in circumstances where, as earlier set out, the version of the planning proposal dated 28 March 2017, forwarded by the Council for the purposes of seeking the Gateway Determination, had, as earlier noted, asserted that the planning proposal was consistent, relevantly, with direction 3.1 of the s 117 directions.
It is clear that the Minister’s Delegate, in considering the request for a Gateway Determination and the documentation supporting it (including the Atlas Urban report) was not persuaded that the question of inconsistency with direction 3.1 had been resolved so that the planning proposal was now to be regarded as consistent with that direction.
The Minister’s Delegate did not adopt the Council’s view that the planning proposal was consistent with direction 3.1. The Delegate expressly formed the view that the planning proposal was inconsistent with this direction.
However, such a finding of inconsistency did not constitute a fatal impediment to the further progression of the planning proposal. I have earlier set out relevant elements of s 117 of the EP&A Act. It is clear from the terms of s 117(2A)(c) that the Minister, through his delegate in this instance, is permitted to conclude that, despite the planning proposal being inconsistent with a relevant s 117 direction, the inconsistency does not warrant the rejection of the planning proposal on this basis. Such a conclusion was reached by the Minister’s Delegate with respect to the inconsistency with direction 3.1 of the s 117 directions arising in the circumstances of this planning proposal.

The planning proposal subject to community consultation

I have earlier set out the terms of s 57 of the EP&A Act providing for the community consultation process to be undertaken concerning planning proposals. Such a community consultation process has taken place with respect to this planning proposal. The planning proposal was put on public exhibition seeking community comments for a period of 28 days commencing on 20 December 2017.
The planning proposal that was put on display was dated 1 December 2017. It became Exhibit H. Exhibit H differed in a number of respects from the planning proposal which had been forwarded to the Minister and which led to the issuing of the Gateway Determination by the Minister’s Delegate. The amendments which were made were of an administrative nature (for example, a revised anticipated timeline for the finalisation of amendment to the LEP was inserted at page 18).
This revised timeline was necessary to reflect the time taken in obtaining the Gateway Determination and making an appropriate allowance for what the Council anticipated would be the period necessary to permit community consultation; assessment of submissions made pursuant to that consultation process; preparation of a report by the Council's staff to the Council; consideration by the Council; and, if the Council so resolved, for the making of the amendment to the LEP as the culmination of the process.
However, no changes were made to the relevant elements of the planning proposal that addressed direction 3.1 of the s 117 directions.

The three documentary elements of the community consultation process

There are three separate documentary elements essential to the carrying out of the community consultation process mandated by s 57 of the EP&A Act. These are:

The required public notification of the exhibition of the planning proposal;

The planning proposal document proper; and

Such studies and other documents commissioned by the Council or prepared by Council staff in support of the planning proposal proper.

In the context of Ground 3, it is to be observed that no complaint is made about the giving of the mandatory notice of the public exhibition process. It is, however, necessary to consider whether or not there is any proper foundation in the documents falling within (2) and (3) as supporting the claim of denial to Mr DeBattista of natural justice in this element of the evolutionary process of this planning proposal.

The Gateway Determination and direction 3.1 of the s 117 directions

I have earlier set out, in my discussion of the Gateway Determination process by the Minister’s Delegate, the matters that were set out by the Delegate with respect to the planning proposal and direction 3.1 of the s 117 directions. It is sufficient, at this point, to repeat that the Delegate specifically concluded that the planning proposal was inconsistent with direction 3.1 of the s 117 directions.

Direction 3.1 and the planning proposal put on exhibition

Following the Delegate's determination, the planning proposal was put on exhibition. The relevant portion of the exhibited planning proposal addressing direction 3.1 of the s 117 directions was in the following terms:

This direction applies as the PP affects land in a zone in which residential development is permitted. The PP is consistent with this direction. Despite limiting the height of future development, it will still provide for a variety of housing type and choice, with potential residential building typologies more likely to be town houses, shop-top housing or terraces rather than small apartment buildings. Retaining the same scale as existing one and two storey low scale development, with a maximum transition of one storey, will assist to minimise the impact of residential development on the environment, as well as making efficient use of existing infrastructure and services within the area.
Council recently had an urban design consultant undertake a character assessment of the existing area to determine appropriate future built form, this report is provided as Attachment 8.

There are two matters to be observed. First, that text in the planning proposal proper concerning this direction is in identical terms to that which was set out in the planning proposal submitted for the purposes of obtaining the Gateway Determination. In addition, Attachment 8, the Atlas Urban report, remained in the same terms as that which was submitted for the Gateway Determination process.
Second, it is appropriate to note that, relevant to Mr DeBattista ’s complaints alleging a denial of natural justice and procedural fairness, the sentence in the planning proposal submitted to the Minister, and that which was put on exhibition, when commenting on the question of consistency with direction 3.1, remained in these unamended terms:

The PP is consistent with this direction.

This assertion, in the exhibited planning proposal, is entirely inconsistent with the basis upon which the Gateway Determination was made. It is, therefore, necessary to consider what, if anything, might flow from this.

The s 117 directions’ expert reports

I have earlier set out, when dealing with Ground 2, the complaint that has been made concerning the alleged contribution to the allegation of apprehended bias made by the conduct of the Council's Manager - Strategic Planning during the course of the development of the Atlas Urban report. It is unnecessary to repeat any of that analysis for the purposes of considering the role of the Atlas Urban report as part of the community consultation process mandated by s 57 of the EP&A Act. Although it was not necessary to address the detail of the development of the Walsh & Monaghan report commissioned by the Council to address directions 1.1 and 3.1 of the s 117 directions, this report also requires consideration in the context of the complaints made for Mr DeBattista in support of Ground 3 pressing that there had been a denial of natural justice. Both the Atlas Urban report (as Appendix 8) and the Walsh & Monaghan report (as Appendix 7) have been placed on public exhibition for the purposes of the statutory community consultation process on the planning proposal.
I have earlier explained why, in the sequence of statutory steps that would need to be followed before the planning proposal can be converted into an amendment to the LEP, the Atlas Urban and Walsh & Monaghan reports, in their finalised form now put on exhibition for the community consultation, were the documents which were submitted to the Minister’s Delegate for his consideration in determining whether or not to make a Gateway Determination to permit the planning proposal to proceed.
As there is no challenge to the Gateway Determination (it being acknowledged by Mr Tomasetti that such a challenge would be impermissible), complaints about the evolution of that document have been earlier dealt with in my consideration of Ground 2. To the extent that these documents might potentially found some support for Ground 3 (as they are part of the third element of the community consultation process), there is no basis upon which complaint can be made about them. There is no proposition put that either of these documents do not represent an expression of expert opinion held by the author of each report at the time the report was finalised. There is no attack made on either of these documents, on a manifest unreasonableness basis (AssociatedProvincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 and Western Australian Planning Commission v Temwood Holdings Pty Limited(2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63). For the reasons explained by me in Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149 at [143] to [153], absent such attacks, there is no basis to complain about either of these reports for the purposes of Ground 3.

Conclusion on Ground 3

As can be seen from the nature of the political discussion dealt with in my consideration of Ground 2, the critical public concern about the planning provisions applying to Mr DeBattista’s land related to the potential for the construction of a significant number of four-storey apartment blocks on Mr DeBattista’s land (development of this nature only being permissible as a consequence of the currently applicable height control). The intensity of the residential development potential was, therefore, a critical element in the public debate about what planning controls should apply to Mr DeBattista’s land.
It is in this context that direction 3.1 of the s 117 directions is a matter that is of significance in the public consultation process mandated to take place concerning any planning proposal to alter the development height limit for Mr DeBattista’s land.
Understood in this fashion, the contradictory position adopted by the Council in the planning proposal put on display when considered against the terms of the Minister’s Delegate's decision to make the Gateway Determination is significantly materially misleading. It is so sufficiently central to the nature of the public controversy concerning the development potential to be accorded to Mr DeBattista’s land that it cannot be said that a proper public consultation process has taken place by the exhibition of the planning proposal in the terms put out for consultation.
As a consequence, I am satisfied that the s 57 process has miscarried in a material respect.
Ground 3 is upheld.

The way forward

The repeal of s 57 of the EP&A Act

However, s57 of the EP&A Act was repealed on 1 March 2018 by the Environmental Planning and Assessment Amendment Act 2017.
On 22 October 2018, an e-mail was sent to the parties at my direction. This e-mail said:

His Honour has asked me to advise you that, being mindful that the hearing dates in the undetermined Class 1 appeal are set for 27 to 29 November, his Honour spent some time over the weekend doing preliminary descriptive drafting to facilitate preparation of a judgment after he reserves his decision following this afternoon's hearing.
During the course of this process, his Honour discovered that s 57 of the EP&A Act (as it existed at the time the community consultation took place concerning this planning proposal) has been repealed (se Schedule 2.3[5] of the Environmental Planning and Assessment Act 2017).
There does not appear to be any provision, in the same terms as the former s 57, in the now current Act.
Although His Honour has undertaken a very preliminary examination as to what transitional provisions might apply, he has not yet found a “grandfathering” provision.
On the basis of this preliminary examination, he has also not found in the current Act (or in the current version of the Environmental Planning and Assessment Regulation 2000), the equivalent of the entirety of the matters previously contained in the now repealed s 57 of the Act.
His Honour has asked me to alert you to this position as His Honour proposes to raise this with counsel at their attendance this afternoon.

The possible implications of the now repeal of s 57 were briefly discussed at 4.15 pm on 22 October 2018, where I was assisted by Mr Pickles and Ms Berglund, on behalf of the Council, and Mr Mantei, solicitor on behalf of Mr DeBattista. It was evident that, to enable senior counsel for both parties to address this repeal, it would be necessary to adjourn the matter to some future date. It was proposed by Mr Pickles, with agreement from Mr Mantei, that the repeal of s 57 could be addressed by way of written submissions. Accepting this course of action, I made directions to provide for written submissions and submissions in reply.
I subsequently received written submissions from both the Applicant and the Second Respondent concerning the effect, to the extent that there might be any, of the repeal of s 57 of the EP&A Act. On the immediate effect, both sets of submissions were in agreement that, for the purposes of my determination of the present challenge to the Council's processes, s 57 continued to apply as if it had not been repealed. Having read each of the submissions carefully to understand the basis upon which the parties had reached this common conclusion, I am satisfied that the agreed position concerning this phase of the current proceedings is correct.
However, the parties then diverged significantly on what would be the position if I found that there was some sufficient defect in the Council's processes which had already been undertaken pursuant to the now repealed s 57 of the EP&A Act.

The community consultation process for the future

As I have concluded, for the reasons later explained, that the s 57 process already conducted was deficient in a sufficiently material respect to have caused the community consultation process to miscarry, the statutory pathway for further dealing with the proposed amending LEP must be considered.
This arises because, for the reasons also already explained, the process leading up to and including the making of the Gateway Determination by the Minister’s Delegate was not attacked as being infected with error. In addition, as I have concluded for reasons separately earlier explained, the Council is not to be constrained in its political processes in determining whether or not it wishes to resolve to proceed to the making of this proposed amendment to the LEP. However, if it wishes to continue to seek to establish a proper basis upon which it might amend the LEP, it will need to undertake the complete process in a proper and compliant fashion.
In determining the nature of what might be that proper and compliant fashion, if the Council did wish to proceed with a process building on the valid Gateway Determination, the ongoing statutory framework within which that process would be required to be undertaken, therefore, becomes of importance.
It is therefore necessary to resolve the differences between the parties on what would be the future position if the Council wished to do so, given that I have concluded that those steps undertaken since the issuing of the Gateway Determination and purportedly in compliance with the now repealed s 57 of the EP&A Act were of no effect.
Each of the submissions concludes that the relevant provision requiring consideration after the repeal of s 57 is cl 16 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (the Regulation). This regulation commenced at the same time as the Environmental Planning and Assessment Amendment Act 2017. This clause is in the following terms:

Community participation plans
(1) A planning authority is required to prepare its first community participation plan under section 2.23 of the Act (as inserted by the amending Act) before 1 December 2019.
(2) Until the first community participation plan of a planning authority is prepared and published, mandatory community participation requirements under Schedule 1 to the Act that are to be determined by reference to the community participation plan of the planning authority are required to be determined by reference to the requirements of or made under the Act that would have applied but for the enactment of the amending Act.

The amending Act referred to in (2) above is the Environmental Planning and Assessment Amendment Act 2017.
The parties differ, however, as to the future effect of cl 16 of the Regulation.
For Mr DeBattista, it was submitted:

Effect of the amendments on the Proceedings
19   Shoalhaven City Council (Council) has not yet prepared its first community participation plan. Accordingly, the Council’s obligations under section 57 of the EPA Act with respect to the subject Planning Proposal have applied at all material times.
20   Further, if the Court finds that the subject Planning Proposal is required to be re-exhibited, the provisions of section 57 of the EPA Act as enacted prior to March 2018 will apply to that re-exhibition until such time as Council has prepared its first community participation plan.
21   The amendments to the EPA Act which commenced on 1 March 2018 are otherwise irrelevant to the Further Amended Summons as they commenced after the Council publicly exhibited the Planning Proposal the subject of the proceedings.

The submissions for the Council on this point were:

10 However, the repealed status of section 57 does have implications for the making of the plan in the future. Under the Amended Act, the only community consultation requirement is that found in clause 4 of Schedule 1, namely that the planning proposal be placed on public exhibition for 28 days or the period stated in the Gateway Determination (which was also 28 days). The planning proposal was placed on public exhibition from 20 December 2017 to 2 February 2018, which exceeds 28 days.

11 Even if the notification of the planning proposal was held to be defective on the terms of section 57, those provisions no longer apply to the process for making a planning proposal. It follows that the Second Respondent could lawfully proceed to make the planning proposal and would be in compliance with the legislation currently in force.
12 Further, section 3.34(8) of the Amended Act provides:
A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule.

Section 3.34(2)(c) is the provision which requires determination of the minimum public exhibition period and is a provision which falls within 3.34(8). Therefore, even if the minimum 28 day consultation period had not been met, that would not invalidate the instrument under the Amended Act.

Although the conclusions drawn for Mr DeBattista and the Council differ as can be seen above, I am of the view that, if the community consultation process pursuant to s 57 as then applicable has miscarried in a fashion that means no community consultation has occurred to satisfy that statutory requirement, the repeal does not set aside the requirement for there to be a valid community consultation process of at least 28 days. Such a consultation process is to be followed by the preparation of; submission to; and consideration by the Council of a report concerning the outcomes of the consultation process.
As a matter of practical effect, it does not matter whether that occurs, pursuant to the now repealed s 57 or as a consequence of the provisions which operate in the amended EP&A Act as a consequence of the repealing legislation. That arises because, in the absence of a valid consultation process as a consequence of the failure of that which has already taken place, community consultation would still be mandated as a consequence of s 3.34 (2)(c) of the amended Act operating in conjunction with Sch 1, Pt 1, Div 1, cl 4 of the amended Act.
Although s 3.34(8) now provides:

(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under Schedule 1, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that Schedule.

The protection in the first sentence of the provision is expressly subject to the prohibition effect of the second sentence.
As a consequence, the requirement for a 28-day community consultation and the Council processes concerning its consideration of a report on public submissions remain functionally unchanged.

What might come next?

I have earlier noted that, although the Council is not permitted to amend the LEP in the terms sought to be affected by the planning proposal pending the outcome of these proceedings, the Council was permitted to seek an extension of the life of the Gateway Determination to extend it beyond the date in November 2018 when it would otherwise have expired. I have no knowledge of whether or not such an extension has been sought and, if sought, whether it has been granted.
If the Gateway Determination has lapsed, this decision will be of academic interest only.
However, if an extension has been granted to the life of the Gateway Determination, my conclusion that the s 57 process undertaken during the period concluding in February 2018 is rendered of no effect has a potential future role to play. Thus the Gateway Determination itself would remain alive and operating as a basis for the carrying out of a valid public consultation process should the Council elect to follow that course.
For reasons I have earlier explained, the required process for continuing with the Gateway Determination is not altered by the repeal of s 57 of the EP&A Act. A process of community consultation; consideration of such public submissions as have been made; submission of a report to the Council; and Council consideration of the report, still remains open.
What would be necessary, however, would be for the Council to address the defects in the planning proposal in order to ensure that any further community consultation process was undertaken in a valid fashion with a proper explanation of the inconsistency of the planning proposal with direction 3.1 of the s 117 directions.
Whether this is done by way of variation pursuant to what was known as s 58 of the EP&A Act or pursuant to what is now known as s 3.35 of the EP&A Act is immaterial as the operative elements are to the same effect, although not in precisely identical terms (the differences in terms being immaterial).

Costs

The expected position which would apply in proceedings such as these is that the successful party would be awarded their costs on an ordinary basis (r 42.15 of the Uniform Civil Procedure Rules 2005 and Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59). However, the Court also has a discretion to depart from this presumption should the circumstances of the case make this app-ropriate (s 98(1) of the Civil Procedure Act 2005). In particular, relevant to the matters which I have considered in these proceedings, it can be appropriate to apportion costs, having regard to the success or otherwise on specific issues in the proceedings and how the resolution of those issues fell between the parties.
In these proceedings, where there were only two grounds relied upon by Mr DeBattista, and where he was entirely unsuccessful on one, but successful on the other, questions of proportionality potentially arise. This is particularly so when, on my assessment, more time was taken in the proceedings in the addressing of the issue upon which Mr DeBattista was unsuccessful than on the issue upon which he succeeded.
My present inclination is that, as a consequence, there should be no order for costs in the proceedings. I am also mindful that the parties may wish to advance some alternative costs outcome. As a consequence, the appropriate order to be made is that costs are reserved.

Conclusion

I have earlier explained why the sole defect in the process undertaken by the Council is that which has resulted in the community consultation process miscarrying.
I have concluded that it is sufficient, as the outcome of these proceedings, for me to make a declaration to that effect as there remain valid options for consideration by the Council as to whether or not it wishes to continue with the planning proposal (on the assumption that it has been granted an extension to the lapsing date) and it should be left to the Council to consider what further steps, if any, it might take in that regard.

Orders

In this matter, the orders of the Court are that:

The Court declares that the community consultation process pursuant to s 57 of the Environmental Planning and Assessment Act 1979 concerning Planning Proposal PP023 proposing to reduce the height limit applicable to land at Lots 1 and 6 in Deposited Plan 1082382 is void and of no effect;

The exhibits are returned; and

Costs are reserved.

**********

Decision last updated: 14 December 2018

Medium Neutral Citation:	DeBattista v Minister for Planning and Environment [2018] NSWLEC 202
Hearing dates:	26, 27 and 28 September, 19 and 22 October 2018 and written submissions by 23 November 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [193]
Catchwords:	JUDICIAL REVIEW - apprehended bias - Council proposal to amend local environmental plan to reduce permitted development height - no challenge to Gateway Determination by Minister’s Delegate - challenge to Council processes - allegation that Council’s processes tainted by apprehended bias - apprehended bias alleged against the elected Council - apprehended bias also alleged against three nominated individuals who were not members of the elected Council - approach to be taken to Council decision-making - distinction between political and administrative decision-making - whether issue of apprehended bias arises for political decision-making processes - held apprehended bias test not applicable - prematurity - no evidence that the elected Council would not approach consideration of the planning proposal in an appropriate fashion in light of the outcome of community consultation concerning it - premature to consider restraining the Council from proceeding with the planning proposal given the defect in the community consultation process undertaken having caused that process to miscarry JUDICIAL REVIEW - denial of procedural fairness - planning proposal put on exhibition for community consultation defective in a material respect - defect causes community consultation process to miscarry and therefore of no effect - defect in community consultation process requires Council to consider whether it wishes to recommence community consultation on a correct basis - correct basis would require new community consultation process on the basis of a revised planning proposal - any report to be put to the Council following a new community consultation process would be based on submissions made with respect to a planning proposal compliant with the Gateway Determination findings - declaration of invalidity of community consultation process sufficient and appropriate COSTS - two grounds pleaded - Applicant unsuccessful on Ground 1 - Applicant successful on Ground 2 - preliminary view that there should be no order as to costs - parties should be permitted the opportunity to seek some other costs order - costs reserved
Legislation Cited:	Civil Procedure Act 2005, s 98(1) Environmental Planning and Assessment Act 1979, ss 56 to 58 and 117 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, cl 16 Uniform Civil Procedure Rules 2005, r 42.15
Cases Cited:	Anderton v Auckland City Council [1978] 1 NZLR 657 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 David DeBattista v Shoalhaven City Council [2017] NSWLEC 1602 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 F & D Bonaccorso Pty Ltd v Canada Bay Council (No 2) (2007)158 LGERA 250; [2007] NSWLEC 537 Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140 Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for Immigration v Jai Legeng (2001) 205 CLR 507; [2001] HCA 17 Lower Hutt City Council v Bank 1 NZLR 545 Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Preferred Projects (Buildings) Pty Ltd v Warringah Shire Council (1999) 106 LGERA 144; [1999] NSWLEC 283 R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63
Category:	Principal judgment
Parties:	David DeBattista (Applicant) Minister for Planning and Environment (First Respondent) Shoalhaven City Council (Second Respondent)
Representation:	Counsel: Mr P Tomasetti SC/Ms A Hemmings, barrister (Applicant) Submitting appearance (First Respondent) Mr A Pickles SC/Ms F Berglund, barrister (Second Respondent) Solicitors: Norton Rose Fulbright (Applicant) Department of Planning and Environment (First Respondent) Bradley Allen Love (Second Respondent)
File Number(s):	387827 of 2017
Publication restriction:	None

19 May 2017	Council quote request	Evidence Book Volume 2, Tab 20
26 May 2017	Atlas Urban’s fee proposal	Evidence Book Volume 2, Tab 23
27 June 2017	Council accepts Atlas Urban’s quotation	Evidence Book Volume 2, Tab 30
27 June 2017	Commissioning letter	Evidence Book Volume 2, Tab 31
On or about 29 August 2017	August Draft Atlas Urban character assessment and Urban Design Review provided to Council	Evidence Book, Tab 43 folio 208
29 August 2017	Email from Peta Brooks (Council) to Mark Gazy (AU) saying ‘disappointed with the report’ and attaching August Atlas Urban character assessment and Urban Design Review with Gordon’s comments (Evidence Book Volume 2, Tab 44)	Evidence Book Volume 2, Tab 42 folio 205
31 August 2017 - 7 September 2017	Email correspondence between Paul Walter (AU) and Peta Brooks (Council), with Atlas Urban requesting formal directions but none given	Evidence Book Volume 2, Tab 42, 43, 45 and 46
20 September 2017	September Atlas Urban character assessment and Urban Design Review	Evidence Book Volume 2, Tab 49
27 September 2017	Email from Peta Brooks (Council) to Tahnee Ironside (AU) requesting change to ‘direction/directive’ and attaching September Atlas Urban character assessment and Urban Design Review with Gordon’s comments (Evidence Book Volume 2, Tab 53)	Evidence Book Volume 2, Tab 52 folio 305
9 October 2017	October Atlas Urban character assessment and Urban Design Review	Evidence Book Volume 2, Tab 56