McGovern v Ku-ring-gai Council - [2007] NSWLEC 22

Reported Decision:
holding appeal filed
153 LGERA 308

Land and Environment Court

of New South Wales

CITATION: McGovern v Ku-ring-gai Council & Anor [2007] NSWLEC 22
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: APPLICANTS
David McGovern and Roslyn McGovern
FIRST RESPONDENT
Ku-ring-gai Council
SECOND RESPONDENT
Marilena Allan

FILE NUMBER(S): 40607 of 2005

CORAM: Pain J

KEY ISSUES: Judicial Review :- invalidity of development consent - whether apprehension of bias by individual councillors and also Council as a whole in approving development consent - whether misrepresentation by applicant for development consent - whether failure to comply with statutory requirements by applicant for development consent - whether failure to take into account relevant considerations in approving development consent - whether irrelevant considerations taken into account by Council in approving development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s78A
Environmental Planning and Assessment Regulation 2000 cl 50
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 cl 11
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Residential Design Manual Development Control Plan 38
Local Government Act 1993 Ch 14, Sch 6
Local Government (General) Regulation 2005
Migration Act 1958 (Cth)
Roads (Opening and Closing) Act, 1932-1978 (SA)
Surveying Act 2002

CASES CITED: Al Oshlack on behalf of the Lismore Greens v Lismore City Council NSWLEC, Sheahan J, 25 September 1998, unreported;
Anderton v Auckland City Council [1978] 1 NZLR 657 ;
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228;
Attorney-General for Victoria v City of Knox [1979] VR 513 ;
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353;
Bentham v Kiama Municipal Council (1986) 59 LGRA 94;
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 ;
Courtney Hill v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529;
Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council and Ors [2005] NSWLEC 674 ;
Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors [2006] NSWCA 339;
Eaton v Overland (2001) 67 ALD 671;
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Farah v Warringah Council [2006] NSWLEC 191 ;
Gee v Council of the City of Sydney (2004) 137 LGERA 157;
Gianoutsos v Glykis (2006) 65 NSWLR 539 ;
GIO of NSW v Bailey [1992] 27 NSWLR 304;
Hodge v Williams (1947) 47 SR (NSW) 495 ;
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438;
I W v City of Perth (1996) 191 CLR 1;
Jones v Dunkel (1959) 101 CLR 298;
Kimber v Ku-Ring-Gai Municipal Council (1990) 130 LGERA 117;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ;
Kioa and Ors v West and Anor (1985) 159 CLR 550;
Kira Holdings Pty Ltd v Liverpool CC [2004] NSWLEC 81;
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70;
Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 ;
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400;
Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24;
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507;
Old St Boniface Residents’ Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ;
Parramatta City Council v Hale (1982) 47 LGRA 319 ;
Pioneer Concrete v Port Macquarie Concrete, NSWLEC, Cripps J, 20 July 1984 unreported;
Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ;
R v Amber Valley District Council, Ex parte Jackson [1985] 1 WLR 298;
R v Marion City Corporation; Ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436 ;
R v Secretary of State for the Home Department; ex parte Hussain [1978] 2 All ER 423 ;
R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383;
Schroders Australian Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ;
Stead v State Government Insurance Commission (1986) 161 CLR 141;
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 ;
Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 ;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 04/09/2006, 05/09/2006 06/09/2006, 07/09/2006

DATE OF JUDGMENT:
20 February 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr P Roberts SC
Mr R Beech-Jones SC
SOLICITOR
Bradfield and Scott
FIRST RESPONDENT
Dr J E Griffiths SC
Ms M Allars
SOLICITOR
Deacons
SECOND RESPONDENT
Mr P McEwen SC
SOLICITOR
Harris Freidman Hyde Page

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

20 February 2007

40607 of 2005 David and Roslyn McGovern v Ku-ring-gai Council and Marilena Allen
JUDGMENT

1 Her Honour: These are Class 4 proceedings in which the Applicants are seeking a declaration of invalidity of Development Consent 642/05 (the 2005 Consent) approved by Ku-ring-gai Council, the First Respondent, for proposed “additions and alterations plus carport and driveway” at 49 Telegraph Road, Pymble owned by Mrs Allen, the Second Respondent. The Applicants also seek an order restraining the Second Respondent from carrying out any development in reliance upon the 2005 Consent. The proceedings were originally commenced seeking a declaration of invalidity of an earlier development consent granted in 2004.

2 The Applicants own 51 Telegraph Road, Pymble. The Applicants’ property is an “heritage item” as defined in the Ku-ring-gai Planning Scheme Ordinance (“KPSO”) being a building described in Sch 7 of the KPSO. The Second Respondent owns 49 Telegraph Road, Pymble. No 49 Telegraph Road is land which is in the vicinity of a heritage item, the Applicant’s property.

Third Further Amended Points of Claim

3 The Applicants reduced the matters pressed and filed a Third Further Amended Points of Claim (TFAPOC) during the hearing, relevant parts of which identify five grounds of challenge now pressed (failure to comply with statutory requirements because the 2005 DA was incomplete, misrepresentation, failure to take into account relevant matters, taking into account irrelevant considerations and apprehension of bias), are set out below. Not every part of every paragraph in the TFAPOC set out here was relied on in the Applicants’ final arguments.

…

11. The 2004 DA as lodged was inaccurate, misleading and erroneous:

…

12. The first respondent notified the applicants with respect to the 2004 DA on or about 29 December 2004.

Particulars

(i) The applicants’ objection was in writing addressed to the General Manager of the Council.
(ii) The applicants also supplemented their own objection with expert reports prepared by heritage architect Stephen Davies and town planner Tony Moody.

14. On or about 22 March 2005 the applicants were notified by the first respondent via its Council officer Mr Hoy that the proposal would be determined by him by delegated authority.

…

…

Particulars

The second respondent lodged with the first respondent a purported Statement of Heritage Impact for the proposed alterations and additions prepared by a landscape architect Mr David Beaver apparently received by the first respondent on 23 March 2005.

23 In or about April 2005 and unbeknown to the applicants the second respondent lodged with the first respondent amended plans of the proposed alterations and additions to the DA site.

…

37 On or about 23 June 2005 and after the applicants had commenced these proceedings the second respondent lodged a further Development Application for proposed additions and alterations plus “carport, deck and driveway relating to the DA site (“the 2005 DA”)”.

38 The 2005 DA was incomplete.

…

[sic] of the regulations.

39A Further and in the alternative in connection with the 2005 DA the second respondent by herself, her servants and agents made representations and statements to the second respondent namely:

39B The said representations and statements in paragraph 39A were made by the second respondent to the first respondent for the purpose of inducing the first respondent to grant its consent to the 2005 DA.

39C The said representations were, and each of them was, false and untrue in that:

…

39D The second respondent (and/or her authorised agent) at the time when she made or caused to be made the said statements and representations contained in paragraph 39A knew them to be false and untrue, or made them recklessly not caring whether they were true or false.

39E The second respondent made or caused to be made the said representations in order to induce the first respondent to grant its consent to the 2005 DA.

39F The first respondent acted on the statements and representations made to it by the second respondent and granted the 2005 DA.

…

Particulars

…

(iii) The DA Guide provided the documents required included a survey plan showing the location and relative levels of the natural and built features of the site and adjoining properties.
(iv) The DA Guide provided that the survey plan “must be prepared by a registered surveyor and give levels to the Australian height datum except for small alterations and additions to dwelling houses where spot heights will suffice”.
(v) Further the DA Guide provided that the survey was required to include inter alia location of boundaries, paths, driveways, fences and retaining walls and other structures.
(vi) The DA Checklist provided that the minimum requirements for a site analysis plan included heritage features of surrounding locality and landscape.
(vii) The DA Checklist provided that if the subject house was in the vicinity of a heritage item the matter should be discussed with Council’s heritage advisor.
(viii) The DA Checklist required in cl 5A that the Statement of Environmental Effects must be certified by the planner/architect/person preparing it.

47 Further or alternatively the Council’s requirement that all DAs be submitted to it in the form approved by it was a mandatory requirement by reason of the operation of regulation 50 [sic] of the regulations.

48 The 2005 DA as lodged was not in the form approved by the Council and did not conform to the requirements of the DA Guide or the DA Checklist.

…

…

Particulars

(i) The objection was in writing and was based upon the absence of any valid Heritage Impact Statement, the absence of any valid Statement of Environmental Effects and contains specific objections to the proposed carport addition, the rear terrace and meals room.

(Failure to take into account relevant considerations)

53 On 8 July the Council’s officer Mr Hoy recommended approval of the 2005 DA and in so doing he failed to consider the submissions made by the applicants dated 7 July 2005.

…

“The proposed extensions and carport have been thoughtfully designed by an experienced architect who has taken into consideration all of the relevant design issues and constraints.”
when he knew that at the time of the preparation of Mr Beaver’s report the architect Fiona Mitchell had stated in the DA application form “Heritage – not applicable” and had not taken any account of the heritage significance of 51 Telegraph Road, Pymble.

(vii) …
(viii) He failed to advise the Council that Certificate of Statement of Environmental Effects relied upon by the applicants in support of the new DA is the statement of Ms Mitchell dated 24/12/04 which related to DA 1417/04 not DA 642/05 and he failed to inform the Council that there was in fact no Certificate of Statement of Environmental Effects for the new DA.
(ix) He failed to adequately advise the Council on the issues relating to Heritage.
(x) He erroneously advised the Council that the proposed meals room and terrace were ground floor extensions and that the rear additions and new elevated terrace were not a first floor element but were ground floor elements and that accordingly DCP 38.5.4.1 was not applicable.
(xi) He failed to invite the Council’s attention to the submissions of the applicants that the proposed rear extensions were at first floor level contrary to DCP 38 par 5.4.1.
(xii) He failed to advise the Council that the boundary between 51 Telegraph Road and 49 Telegraph Road is a pronounced diagonal and that the visual privacy of the heritage item could not be protected from direct and unreasonable overlooking from the proposed rear extension and extended terrace.
(xiii) He failed to have regard to the applicants’ objections in relation to the proposed pool deck and to the presence of condition 23 in the original Development Consent DA 1417/04 but instead and notwithstanding the deletion of the pool deck he recorded that engineering

[sic] had referred to the applicant having proposed to install a permeable timber deck and he made it a recommended condition of consent (condition 23) that the application be approved with the inclusion of the proposed rear timber deck.

57 In deciding to grant the development consent to the 2005 DA the Council failed to take into consideration submissions made by the applicants in their objection dated 7 July 2005.

58 By reason of this and in failing to take into consideration the Regulation and in particular regulation 50 [sic] the Council failed to determine the 2005 DA in accordance with law and in particular in accordance with s 79C of the EP&A Act.

59 In the premises the granting of development consent to the 2005 DA was invalid in that contrary to cl 61 of the KPSO the Council had not “made an assessment of the effect the carrying out of [the] development will have on heritage significance” of the applicants’ property and its setting.

…

65A Further or in the alternative two councillors who resolved to approve the 2005 DA were biased and should not have voted at the Council meeting on 11 October 2005.

65B Further and in the alternative, the decision of the Council to approve the 2005 DA involved a breach of the rules of procedural fairness.

The Council did not disclose to the applicants and there was otherwise an apprehension of bias arising from:

65C Further and in the alternative, the decision to approve the 2005 DA involved the taking into account of irrelevant considerations by Councillors Ryan, Ebbeck and Hall.

Particulars
(i) Councillors Ryan, Ebbeck and Hall took into account the fact that there were court proceedings challenging the validity of the 2004 DA and that by conferring consent to the 2005 DA and obtaining a withdrawal of the 2004 DA the proceedings could be rendered otiose.
(ii) Various assertions were made concerning the applicants as set out in emails to and from Mr Allen namely that:

(a) Mrs McGovern was a “vexatious complainant” (8.7) and Mr McGovern was a “serial complainer” (104.2 and 122.7) (exhibit B)
(b) Mrs McGovern had lied in lodging her objections to the DA (8.7) (exhibit B)
(c) Mrs McGovern had solicited other complaints (8.8, 69.5) (exhibit B)
(d) The applicants were unreasonable and not prepared to accept decisions adverse to them fairly made (24.7)
(e) Mr McGovern was seeking to manipulate the councillors (58.5)
(f) Mr McGovern’s conduct at a Council meeting was threatening and intimidatory (78.3)
(g) The applicants had demolished part of their front fence despite their property being heritage listed (96.9, 122.5) and
(h) Mr McGovern was a member of a political party and placing pressure on Councillor Hall (99.1)

Survey evidence

4 An affidavit sworn on 17 August 2006 by David Groundwater, registered surveyor, was relied on by the Applicants. The Second Respondent relied on an affidavit sworn by John Tierney, registered surveyor, on 29 August 2006. Mr Groundwater commented on the accuracy of the information in the Bartholomew plan submitted with the 2005 DA and concluded that that plan is not drawn to Australian Height Datum and the levels shown in the drawing are 1.776 metres lower than the actual level. Mr Groundwater also stated that from his investigations, the boundary distances and bearings of the boundaries reported on the Bartholomew plan were inaccurate and did not relate to the physical improvements on the property.

5 While Mr Groundwater obtained different data from the relevant department to that of Mr Bartholomew, Mr Tierney’s evidence was that the errors in Mr Bartholomew’s survey were minor. Mr Tierney stated in his affidavit that he was asked to confirm the accuracy of the plotted information on the Bartholomew plan. He undertook searches which confirmed that the data received from Mr Tierney from the relevant land department was correctly applied by him, and also confirmed that for unexplained reasons that data changed after Mr Bartholomew undertook his search. He stated that his surveyed “reduced levels” are within 10 to 20 millimetres of those shown on the Bartholomew plan and concluded there were no substantial errors or differences between the levels shown on the Bartholomew plan and his own survey. He also stated that the boundary bearings shown in the Bartholomew plan are incorrect and do not agree with the title diagrams, however the bearings shown in the Bartholomew plan agree with the orientation of the magnetic north symbol shown in that plan. If the proposed building elements were positioned within the subject land using a combination of the bearings with the true north symbol, then they could be aligned reasonably in relationship to true north. He stated therefore, this minor deviation from true north would not impact adversely on the position of the shadow diagrams between the two buildings. Mr Tierney also gave oral evidence and was cross-examined about the enquiries he made in checking Mr Bartholomew’s plan, and did not alter his evidence in any material way.

6 Two affidavits sworn by Mr McGovern, one of the Applicants in these proceedings, on 2 March 2006 and 16 August 2006, were also relied on. The first affidavit is most relevant and sets out a history of the 2004 DA and the 2005 DA according to Mr McGovern. As the Applicants limited the issues in their case at the outset of the hearing not all of the matters referred to in the affidavit need be considered. Material matters are set out in a chronology below.

Documentary evidence

7 The documentary evidence consisted of documents from the Council’s files for the 2004 DA and the 2005 DA. A large bundle of emails (approximately 132 pages) largely between Mr McGovern, several councillors, particularly Councillors Ryan and Ebbeck and Mr Miocic, the Council’s Director of Development and Planning, and the husband of the Second Respondent, Mr Allen, were relied on by the Applicants (exhibit B). The First Respondent also tendered a bundle of 28 emails largely between Mr McGovern and Councillor Bennett and to a lesser extent Councillors Hall and Ebbeck in the period 15 March 2005 to 10 October 2005 (exhibit 2). Councillor Ryan was the mayor of Ku-ring-gai Council for most of the period relevant to this case, but was no longer in that position when the Council decided to approve the 2005 DA in October 2005.

8 A “Factual Outline of Applicant’s Case” of 21 pages was filed in Court at the hearing. The document sets out a history according to the Applicants of the lodgement of the 2004 and 2005 DAs. It commences in the first paragraph by stating that there was a history of disputes between the McGoverns and the Allens over a spa placed on the Allens’ property near the boundary with the McGoverns. It recites the text of emails between Mr Allen and Councillor Ebbeck about the spa, including adverse comments by Mr Allen about Mrs McGovern. I consider these matters are irrelevant to the legal issues in this case.

9 The following chronology contains a reference to most of the material relied on by the parties drawn from exhibit A, exhibit 1 and exhibit 2. The Applicants’ case as pleaded and argued relied on the content of particular emails concerning the 2005 DA which will be identified in due course. Material referring to the 2004 DA is included in the chronology but the validity of the 2004 DA is not now challenged in these proceedings. The Applicants argued that it was necessary to review the whole course of conduct in relation to the 2004 DA and 2005 DA to determine the apprehension of bias ground in this case.

2004	October	Council DA Guide published
December	29	DA 1417/04 lodged for new double carport and driveway, new terrace and meals room, new deck
December	29	Architect Fiona Mitchell’s Statement of Environmental Effects lodged
2005	January	20	Council notifies neighbours
February	9	Objection from Mrs Jensen 41 Hope St
10	Objection by Planner Stephen Davies on behalf of Applicants
12	Objection by present Applicant
Objection from Mr Russell 39 Hope St
22	Objection from Moody & Doyle planners, on behalf of Applicants
March	15	email objection from Mr McGovern to Cr Bennett
23	Cr Hall requests matter be referred to Council
David Beaver’s Statement of Heritage Impact provided
31	Mr Allen seeks meeting with Cr Ebbeck – concerning Dramas … related to … next door
April	1	Cr Ebbeck to Mr Allen – Have requested report about Allen complaints; Allen to Cr Ebbeck complaining about McGovern
28	Amended plans lodged; pool deck deleted
May	5	Council’s Landscape Development Officer supports the proposal, with conditions
17	Hoy informs Cr Ryan that assessment is ongoing and I am considering whether additional referrals will be necessary to address the proposed amendments
24	Cr Ryan advises Hoy of prospective visit to the Applicants’ residence
26	Meeting on site re 2004 DA
26	Cr Ryan suggests Cox met at site; attends site for 30 minutes; main issues identified; to be considered under delegation
June	2	Miocic to Cr Ryan, clarifying his summary of the proposal – notes McGovern’s consultant advanced well argued issues and concerns
3	Council’s letter to all objectors, including the present Applicants, reviewing all issues
3	Officer Hoy’s Delegated Report recommending DA be approved; Consent Issued dated 6 June
9	Applicant McGovern complains that amended plans and heritage report were acted on by Hoy without an opportunity for comment by them or their expert
9	Cr Bennett informs McGovern of revocation of delegated authority
9	Hoy reports to Miocic; Peat’s summary provided to objectors in Council’s letter of 3 June 2005, relevantly, that a Heritage Impact Statement was provided with the amended plans
10	Applicant McGovern pursues response from Council
15	Miocic to Cr Bennett and Hall, explaining failure to refer matter to Council according to the call-up notice on the file
15	Applicant McGovern enquires of Cr Hall whether application will be referred to Council or will I have to commence Class 4 proceedings?
17	Land and Environment Court proceedings commenced by McGovern challenging 2004 DA
20	Allen to Cr Ryan; re the house; had received summons that day; complains about McGoverns, seeks guidance.
21	Allen to Cr Ryan – expresses wish to fight this fully and professionally and I will support in any way possible.
22	Allen acts on suggestion of Miocic to lodge fresh DA; invites site visit; Miocic definitely guarantees a fast track service; Allen discusses unnecessary conditions and acknowledges Miocic’s fast track to have [application] determined before the Court case starts … no sense in wasting more money … especially given that the complaints are unreasonable.
23	DA 642/05 lodged
23	Allen emails Miocic, appreciating his taking the time to listen to me and fast track the process that may be mutually beneficial. I am sure Council can do without the Class 4 action and associated costs.
24	Council notifies neighbours of DA 642/05
29	Applicant McGovern complains to Cr Bennett that determination of fresh DA could occur before my case gets to its first mention date … I do not think that justice is seen to be done if Hoy continues to have authority to determine my application. In my view the new DA should be reported on by an independent person …
2005	July	5	Cr Bennett emails Applicant McGovern re fresh application coming to Council
7	Letter of objection by the present Applicants (tab 28) and letter of objection from Mrs Russell of 39 Hope Street
8	Report to Council on application by Hoy (tab 30)
11	Allen seeks information from Miocic as to progress of application; Miocic says it will be completed for the Council meeting on 26 July
11	Jensen complains to Cr Bennett and Hall as to time available to object; Hall indicates will seek extension
12	Miocic informs Cr Hall Current DA identical to previous … I see no reason for the officer’s recommendation … to be any different from [that] for the previous DA.
18	Allen emails Miocic Not appear that there is anything in any of the points McGovern makes …[ask] that your legal people work closely with my solicitor to ensure best and fairest outcome
18	Further email, Allen to Miocic – Although we are hoping to solve this problem with the fresh DA there are issues from the previous consent (Again on 19 July)
20	Applicant McGovern emails Cr Bennett. Complains of certification for SEE being that for the earlier DA, whereas the plans were not identical. Complains about inaccuracies and misleading nature of earlier (April 2005) plans but as the heritage impact statement antedated those plans, it could not now apply, and did not comply with the DA checklist or DCP 38; seeks meeting to air his grievances.
21	Allen enquires of Miocic as to Miocic’s speaking individually to each of the Councillors to ensure the numbers support the Council recommendations; Miocic confirms that he has briefed a number of Councillors on the special circumstances of this case and will speak with the others before the council meeting of 26 July
25	Hoy responds to Jensen’s concerns, in email to Miocic
25	Applicant McGovern emails Cr Bennett; provides a list of defects, suggests legal advice on sufficiency of application and have independent assessment because of seriousness to ensure application is properly and genuinely considered on its merits
26	Allen enquires of Miocic as to Councillors he was going to speak with to ensure they are briefed and understand the situation
26	Applicant McGovern emails six councillors including Cr Ryan and Cr Ebbeck with lengthy summary of his objections, concluding It is clear that our objection on 7 July has not been considered by Hoy in his report of 8 July. Unless the proposal is considered independently on its real merits the entire process will miscarry.Cr Ryan sends email to Allen
26	Allen emails Cr Ebbeck and other councillors, Hope to have your support.
26	Council meeting; addressed by Applicant McGovern Matter deferred for site inspection
26	Allen emails Cr Ryan – proceedings still have to keep running in the L&E Court so I think one way or the other he will send me broke
27	Allen to Cr Hall – Thank you for your support last night
Allen asked Cr Ryan whether there was any other councillor he should thank
27	Applicant McGovern thanks Cr Bennett for arranging site meeting; complains inadequate advice from the staff
27	Cr Hall to Allen – I am not one to be intimidated by a neighbour and I know the staff worked diligently to assess your application
28	Allen to Cr Ryan asking for good chair for site meeting. Cr Ryan says don’t worry she will chair.
August	3	Allen to Miocic – Complaint of McGovern’s canvassing support; objectors not to come on site (ex B p69)
6	Site meeting
6	Allen emails site inspection information to Cr Hall and Cr Ebbeck, who did not attend
6	Cr Ebbeck emails Allen – I feel the staff have this right
12	Report to Council by officers Hoy, Cox and Miocic (for Council meeting of 23 August), responding to issues raised by the Council at the site inspection on 6 August, recommends approval
17	Allen to Cr Ryan – If there is anything you can do to help get some numbers etc I would be most grateful . Cr Ryan replied.
23	Council meeting; Applicant McGovern, addresses – suggests independent assessment; mentions Davies and Beaver reports, observes Council will look like a laughing stock if present proposal approved; Cr Hall recommends independent heritage assessment. Majority councillors vote in favour of proposal
24	Allen emails Miocic; refers to Applicant McGovern’s lobbying; Miocic replies that he too is disappointed with the outcome, but he will arrange the independent heritage consultant – Allen emails back that consultant should be a listener and understanding and sympathetic to the Council position and line of recommendation for approval
27	Cr Ryan confirms to Allen that she will continue to support the application and would continue to work on the councillors
September	Heritage Impact Statement by Jennifer Hill, independent heritage expert. She concludes the proposed carport is inappropriate and should not be supported
16	Allen emails Cr Hall, Ebbeck, Malick and Shelly seeking support for staff recommendation to approve DA
16	Allen emails Cr Ryan, notes fourth recommendation for approval; critical of the Hill report; seeks help with other councillors (ex B p91); she replies I just hope we can get enough others across the line for you
16	Cr Ebbeck to Allen my position has not changed … this should have been resolved
18	Cr Ryan to Allen - says she will speak to her colleagues and see how placed
20	Report by Council officers Hoy and Prendergast on the Hill statement
20	Council meeting (T-115A – i); Applicant McGovern and a representative of the Second Respondent, Mr Glendinning, town planner, address the Council; councillors resolve to defer for preparation of reasons for refusal
20	Allen sends several emails to Cr Ryan – Ideas for action? emails, Cr Ryan to Allen – Really have to try to get a couple more councillors on side
21	Cr Ryan emails Allen – Can’t advise you about your next course of action
21	Allen, lengthy email to Cr Hall complaining about his behaviour (this is the email argued to be intimidating to Cr Hall) asks for reconsideration
21	Cr Hall to Miocic – Willing to review staff assessment
26	Allen emails Cr Hall – Once you’ve had a good look around the site you will be convinced of the merits …
26	Allen copies email to Cr Hall to Cr Ebbeck who approves of it
29	Second site inspection by some councillors
October	6	Cr Hall to Brian Bell (GMM) re Class 4 proceedings – apprehension about costs, concerned there may be some kind of intimidation in this matter …
9	McGovern emails Cr Hall as to procedure/motions
10	Allen emails Cr Hall Do I still have your support?
11	Council meeting (p128C-J). Addressed by McGovern and Glendinning for Second Respondent. Resolution to approve: 7 in favour; 3 against

10 Apart from numerous emails, key dates (in bold in the chronology above) are the lodgement of the 2004 DA on 29 December 2005, its approval being purportedly under delegated authority on 6 June 2005, the commencement of these proceedings challenging that consent on 17 June 2005, the lodgement by the Second Respondent of the 2005 DA on 23 June 2005, the consideration of the 2005 DA at Council meetings on 26 July (deferred for the councillors’ site inspection held on 6 August 2005), 23 August (deferred to obtain independent heritage report), 20 September (following which some councillors went on a further site visit on 29 September 2005) and 11 October 2005 when the DA was approved with seven councillors voting to approve and three voting against. As is clear from the other matters identified in the chronology which are drawn from the numerous emails in evidence, there was extensive email contact between the parties and Mr Miocic, the Council’s Director of Development and Planning, and individual councillors throughout the period the 2004 and 2005 DAs were considered by the Council’s staff and councillors.

Grounds

11 The Applicants have raised five grounds of review which they argued result in invalidity of the 2005 DA.

1. Non-compliance of 2005 DA with statutory requirements – necessity for a proper survey and certification of Statement of Environmental Effects. (TFAPOC 43, 47, 48(i), (ii), (iii), (iv), 49)

12 Section 78A(9) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) specifies:

The regulations may specify other things that are required to be submitted with a development application.

13 Clause 50 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) states:

(1) A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1,

(b) if the consent authority so requires, must be in the form approved by that authority, …

14 Schedule 1 Pt 1 cl 1 of the Regulation specifies information that must be included in a DA. Clause 2 specifies documents which must accompany a DA. Clause 2(c) requires a statement of environmental effects to be provided. Clause 2 does not specify that a survey within the meaning of the Surveying Act 2002 must be provided. It requires a site plan of the land (ss (a)) and a sketch plan (ss (b)).

15 The Council has published a DA Guide (October 2004) which requires a recent survey plan prepared by a registered surveyor to be lodged with the DA. A Statement of Environmental Effects (SEE) certified by a planner or architect is also required to be lodged.

16 The Second Respondent lodged two DAs in 2004 and 2005 using the Council’s DA form. On the front of the form under “Documentation” appears “Our DA Guide explains which plans and other documents you must provide with this application. Refer to our lodgement requirements matrix on the back of this form.” Attached to the DA form is a DA lodgement checklist which applicants for development are to complete. The checklist states “We will not accept your application if you fail to provide all relevant information or if you fail to complete this checklist.” The form also includes a section headed “Certification of Statement of Environmental Effects” which was completed by Fiona Mitchell, architect, in the 2004 and 2005 DAs.

Applicants’ submissions

17 The Applicants argued that the standard DA form provided by the Council for the 2004 and 2005 DA is the approved form under cl 50(1)(b) of the Regulation. That form requires a SEE and the submission of a survey by a “registered surveyor”. The Applicants argued neither accompanied the DA.

18 The document described as a survey lodged with the 2005 DA was signed by Mr Rick Bartholomew who was not a registered surveyor. There was information in small print on the document stating that:

…

6 This plan shows only the existing detail of the subject property and limited detail of the adjoining properties at the time of the survey.

19 The SEE was a photocopy of the SEE relating to the 2004 DA signed by Fiona Mitchell, architect, who signed the SEE for the 2004 DA. The DA checklist required in cl 5A of the SEE must be certified by the planner/architect/person preparing it. There were substantial non-compliances with the mandatory provisions of cl 50(1)(b) and give rise to invalidity of the application, relying on Botany Bay City Council v RemathInvestments No 6 Pty Ltd (2000) 50 NSWLR 312.

First Respondents’ submissions

20 The First Respondent submitted that while paragraph 2B of the DA Guide provides that a survey plan is to be prepared by a registered surveyor. It is not a mandatory legal requirement as claimed by the Applicants, because:

(i) Neither s 79C of the EP&A Act, cl 50 of the Regulation nor Pt 1 of Sch 1 to the Regulation requires a DA to comply with the DA Guide;

(ii) The DA Guide is not an environmental planning instrument within s 4(1) of the EP&A Act; and

(iii) No provision of the EP&A Act or Regulation imposes a duty upon an applicant for development consent or imposes a duty upon the Council as a consent authority to comply with the DA Guide.

21 There is no evidence that the DA Guide is a “form approved” by the Council within the meaning of cl 50(1)(b) of the Regulation. The DA Guide does not state that it is a form approved by the Council. Rather, the DA Guide states that it is a guide to applicants and if they follow it their applications will be dealt with by the Council more quickly. There is no evidence which demonstrates that the DA pro forma dated October 2004, as completed by the Second Respondent, was a “form approved” by the Council within the meaning of cl 50(1)(b).

22 The SEE filed to support the 2005 DA was a photocopy of the previous SEE certified by Ms Mitchell, architect for the 2004 DA. That is obvious on its face, there is no attempt to mislead the Council in any way. Given the substantial similarities between the two DAs, that was not inappropriate. The SEE describes the proposal, identifies the land affected by the development, describes the environmental impacts of the development and the steps taken to protect the environment or lessen any expected harm to the environment, as required by cl 2(4) of the Regulation. This was supplemented by a letter dated 26 April 2005 from Glendinning Minto & Associates, planners, describing the plans and identifying amendments made to them since the 2004 DA. A shadow diagram was also submitted.

23 Clause 5A of the DA Guide provides that the SEE must be certified. However this is Council’s policy and is not a binding requirement of the EP&A Act or Regulation. Neither s 79C of the EP&A Act nor cl 50 of the Regulation require a SEE to be certified by a person who prepared it.

Second Respondent’s submissions

24 The Second Respondent submitted that the Council’s DA Guide is not a development control plan (DCP) under the EP&A Act. The Regulation specifies what is mandatory under the EP&A Act. A survey by a registered surveyor is not required under the Regulation. A SEE is not required to be certified under the Regulation. If there is an issue as to how much weight is to be attributed to the DA Guide, that is a matter for the Council to determine.

Finding on Issue 1

25 I consider the Respondents’ arguments are generally correct except that I consider the DA pro forma used for the 2004 DA and the 2005 DA is, by inference, an approved form as referred to in cl 50(1)(b) of the Regulation. The requirements in the DA Guide are separate to that pro forma and are not mandatory matters that must accompany a DA in order for it to be valid. As identified by the First Respondent the DA checklist is contained in Appendix 3 to the DA Guide. The DA checklist is part of a Council policy, the DA Guide. The DA checklist does not impose mandatory legal obligations or preconditions to the grant for development consent by the Council. The DA Guide is not an instrument which specifies mandatory matters under cl 50 of the Regulation nor under s 79C of the EP&A Act. The checklist contains requirements which can be waived by the Council. The requirement that a survey signed by a registered surveyor be provided under the DA Guide is not a mandatory requirement under the EP&A Act. The failure to provide this does not invalidate the DA. Item 5A is one line in the DA checklist stating “5A Statement of env’l effects”, with a space for a tick against various aspects of the proposed development. The same finding that this is not a mandatory requirement also applies to the SEE for the 2005 DA.

26 The Applicants relied on Remath. That case considered s 77 of the EP&A Act and cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, as they then were, relating to what must accompany a DA in the case of designated development in order for it to be valid. Section 77(3)(d) stated that designated development required an accompanying environmental impact statement (EIS) to be lodged with the application. Section 77(3)(b) stated that a DA must be “made” in the prescribed form and manner. In that case the respondent failed to lodge an EIS with its DA.

27 In the Court of Appeal Stein JA, in his judgment, held at [18]:

In my view, a development application cannot be seen as “made” unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete.

28 At [47] of the judgment, Fitzgerald JA agreed, stating that a DA which did not comply with requirements mandating what must be attached to it and the form these were to take was not “made” until it complied with those requirements. Handley JA agreed with both Stein JA and Fitzgerald JA. The facts of that case are different to those before me in that the legal requirement for an EIS was specified in the relevant Regulation. I do not consider the reasoning applies to the facts of this case.

29 The recent Court of Appeal decision in Cranky Rock Road Action Group Inc and Anor v Cowra Shire Council and Ors [2006] NSWCA 339 is relevant in relation to the SEE argument raised. That case considered s 78A of the EP&A Act and cl 50(1) of the Regulation. Schedule 1 Pt 1 cl 2 of the Regulation specified that a DA which was not designated development must be accompanied by a SEE as provided for by cl 50(1)(a). In that case, no SEE was lodged by the second respondent who sought to subdivide land. The council granted development consent subject to conditions. At first instance, Bignold J held that a grant of development consent would not be invalid because it failed to comply with the requirement to lodge a SEE. This finding was upheld by the Court of Appeal. In the leading judgment, Tobias JA stated at [54] (Young, Chief Judge in Equity and Campbell JA concurring) that:

…his Honour was correct to emphasise the very general matters which [a statement of environmental effects] “must indicate” on the one hand and what he referred to as the “comprehensive and objectively rigorous requirements for the content and credentialing of an environmental impact statement or species impact statement.

30 His Honour further concluded at [76] that:

…if the development application is for a development which the consent authority considers should be accompanied by an SEE to assist in the performance of it

statutory functions, then it has the power to reject the application pursuant to cl 51(1)(b) where an SEE has not been provided. Alternatively, if the application is one where the nature of the development and its likely environmental impact (if any) is such that the consent authority considers that it is able to properly perform its statutory functions without the need for an SEE, there would be no reason in logic or principle why it should not do so without the legal consequence of any grant of consent to such an application being invalid.

31 This reasoning suggests that the alleged inadequacies in the SEE identified by the Applicants do not give rise to the breach of a mandatory statutory requirement.

32 If I am wrong and one or both of these two matters are mandatory statutory requirements, I agree with the First Respondent’s submission that under the test propounded in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 by Brennan CJ at [38]-[42] and the joint judgment of McHugh, Kirby, Gummow and Hayne JJ at [92]-[93] that it is not the legislative intention that this non-compliance would result in invalidity given cl 51. That clause provides that a council may reject a DA within seven days if it is not accompanied by a document specified in Pt 1 Sch 1. In this case the Council did not do so. The Applicants fail on this ground.

2. Misrepresentation

33 The Applicants further argued that the Council’s decision to approve the 2005 DA was invalid because it had been obtained by misrepresentation in two respects.

2A. Misrepresentation – false statement concerning existence of a proper survey (TFAPOC 39A to 39F, 66)

34 The Second Respondent falsely misrepresented to the Council that a document submitted with the DA was “a recent survey plan prepared by a registered surveyor” because the man who signed the survey was not a registered surveyor. Further the survey was misleading and false.

2B. Misrepresentation – false statement concerning the certification of the statement of environmental effects (TFAPOC 48, 49, 50, 60)

35 The Second Respondent falsely represented to the Council that a SEE dated 24 December 2004 related to the 2005 DA because the SEE related to an earlier DA and earlier building plans and the certification statement was photocopied to give the appearance that it related to the second DA. The Council acted on the assumption that there was a valid SEE.

36 The Applicants argued that an administrative decision procured by misrepresentation can be treated as a nullity (Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400, 416), noting that Leung and R v Secretary of State for the Home Department; ex parte Hussain [1978] 2 All ER 423 leaves open the question of whether it must be shown the relevant statements were fraudulent or made recklessly.

Finding on issue 2

37 This ground was not strongly argued by the Applicants. While the cases relied on by the Applicants confirm that an administrative decision based on a misrepresentation that is fundamental to an administrative decision can give rise to invalidity of that decision, in the circumstances of this case it does not appear that the misrepresentation relied on is fundamental to the decision of the Council to approve the 2005 DA. I agree with the First Respondent that no legal principle is identified which can give rise to invalidity of the 2005 development consent granted by the Council on the basis of the case pleaded and the facts relied on. This is particularly in light of my finding on Issue 1 that there is no invalidity due to non-compliance with cl 50 of the Regulation. I adopt the argument of the First Respondent at par 22 above that the way the SEE for the 2005 DA was prepared based on the 2004 DA was clear on its face and was not inappropriate in the circumstances of two similar DAs.

3. Breach of Natural Justice

(TFAPOC 65A, 65B)

Applicants’ submissions

38 In their principal argument, the Applicants argued the process whereby Council determined the 2005 DA involved procedural unfairness because of the following:

(a) Two of the councillors who voted in favour of the DA (Councillor Adrienne Ryan and Councillor Nick Ebbeck) were biased because both were unequivocally committed to approve the 2005 DA notwithstanding the merits of any objection

(b) The vote in favour of the DA was preceded by inappropriate email contact between Mr Allen (the husband of the Second Respondent) and councillors and a Council officer (Mr Miocic)

(c) The email contact between councillors and Mr Allen, and Council officer Mr Miocic and Ms Ryan was not disclosed to the McGoverns

(d) Mr Allen had or had attempted to intimidate Councillor Hall to change his vote and Councillor Hall did change his vote

(e) The consent followed a second site meeting conducted by some councillors which was held without the knowledge of the McGoverns

(f) The Council officer principally responsible for the DA (Mr Miocic) who prepared recommendations to Council (which recommendations some or all councillors took into account or followed) had acted from the outset with the objective of securing Council’s consent to the 2005 DA. Mr Miocic had proposed to Mr Allen that a fresh DA should be lodged with Council and that on approval the earlier disputed development consent should be surrendered. Mr Miocic’s motivation for proposing this course was to render otiose the McGoverns’ legal challenge to the earlier consent. By so doing, Mr Miocic committed Council (insofar as he had control of the decision) to approve the fresh DA.

39 In addition to these matters, 14 specific matters were raised against Councillor Ryan in relation to the apprehension of bias ground as an inference resulting from her conduct as follows:

(i) her initial personal involvement with Council officers having the carriage of the first 2004 DA (exhibit B pp 9, 10, 12)

(ii) the fact that Councillor Ryan and Mr Allen had some business relationship (exhibit B p 24, 25.5)

(iii) the fact that Mr Allen and Councillor Ryan were in communication about the outcome of the McGoverns’ legal challenge to the first development consent for the 2004 DA and Mr Miocic’s proposal to obviate that challenge (exhibit B p 25 – 27)

(iv) her forwarding to Mr Allen the email she received from Mr McGovern on 26 July 2006 (exhibit B p 57) in circumstances when she did not forward Mr Allen’s emails to Mr McGovern

(v) her advising Mr Allen about what he should do (exhibit B p 62)

(vi) her discussions with Mr Allen about her chairing the site inspection (exhibit B p65.10 and 66.5)

(vii) her conduct at the site meeting on 6 August 2005 (McGovern second affidavit 16 August 2006 par 9, p4)

(viii) her exchange of emails on 17 August 2005 with Mr Allen advising him of the response of other members of Council (exhibit B p 77.9)

(ix) her email to Mr Allen of 27 August 2005 advising him that she would continue to “work on them [the councillors] before the 20th” (the next meeting) (exhibit B p 82)

(x) her email to Mr Allen of 18 September 2005 advising that, in the absence of Councillor Cross, she would “speak to her colleagues” (exhibit B p 85)

(xi) her email of 16 September 2005 advising of her vote and “I just hope we can get enough others across the line for you” (exhibit B p 92)

(xii) her email of 20 September 2005 to Mr Allen discussing overturning the decision and speaking to “Anita” (exhibit B p 95)

(xiii) the references in emails sent to Mr Allen in which she identifies herself with Mr Allen’s cause and by use of such terms as “our only hope” (emphasis added) (exhibit B p 95)

(xiv) her email of 21 September 2005 to Mr Allen discussing Councillor Hall’s position and Mr McGovern’s position as a “member of the Liberal party” (exhibit B p 99) in relation to Councillor Ryan.

40 The apprehension of bias in relation to Councillor Ryan was argued to arise from July or August 2005, the 2005 DA being lodged in June 2005. It arose as an inference from her whole conduct and also from some individual emails on their own as identified above.

41 In the case of Councillor Ebbeck the Applicants submitted that a finding of apprehension of bias on his part arises from the totality of the evidence but especially the following conduct by him:

(i) his investigations of Council records following Mr Allen’s allegations to him about Mrs McGovern and his advising Mr Allen about those matters. (The email relied on in evidence (exhibit B p 7) states that Councillor Ebbeck has followed up complaints about a spa in the Second Respondent’s garden by the McGoverns and a report has been requested on this issue.)

(ii) his email of 6 August 2006 to Mr Allen advising him about “how the numbers will fall on Tuesday however I feel the staff have this right” (exhibit B p 76)

(iii) his email of 16 September 2005 stating that “my position has not changed” (exhibit B p 89)

(iv) his identification with Mr Allen’s cause and his advocacy in that cause as evidenced in the email of 21 September 2005 to Councillor Cross stating that “We only need your vote” (emphasis added) (exhibit B p 100), and his email exchange with Councillor Cross on 21 September 2005 in relation to a rescission motion (exhibit B p 101)

(v) his email advice and approbation of Mr Allen’s conduct in attempting to intimidate Councillor Hall to change his vote (exhibit B p 106)

(vi) his attendance at a second site inspection on or about 29 September 2005 (exhibit B p 107, 108, 110, 114)

42 The Applicants alleged that as a result of these actions by two individual councillors, Councillors Ryan and Ebbeck, there was an appearance of bias on the part of the Council as a whole when the 2005 DA was approved and therefore a failure to afford procedural fairness to the Applicants. As a body exercising a statutory power to affect the rights and interests of particular individuals such as the Applicants, the Council was obliged to act in accordance with the rules of procedural fairness; R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383, Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117, Courtney Hill Pty Ltd v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529. An appearance of bias may be proved by evidence of conduct and/or statements. Prejudgment may be evidenced by a councillor who becomes an advocate for one side in the decision-making process. A councillor’s advocacy demonstrates an unequivocal commitment to a position. Bias by one or two councillors invalidates the decision of the whole Council to approve the 2005 DA.

43 The hearing rule also applied to the operation of local councils whereby there is an obligation on a decision-maker to apprise a person who is a party to a decision of matters being relied on or taken into account which is personally adverse to that person; Kioa and Ors v Westand Anor (1985) 159 CLR 550. Failure to disclose such material is not obviated by a claim that the personally adverse material did not operate on the mind of the decision-maker who received the material; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228.

44 As identified in par 38(f) the decision of the Council was influenced by Mr Miocic and therefore biased because he had a significant role to play in the decision-making process, see Hot Holdings Pty Ltd v Creasyand Ors (2002) 210 CLR 438.

First Respondent’s submissions

45 The Applicants’ case fails to take into account the nature of the decision being taken, as well as the role of the councillors who make up the decision-making body, in determining the appropriate standard or content of the basic rule of procedural fairness to be applied in this case. Procedural fairness must be shaped in light of the relevant requirement according to such matters, as the High Court has repeatedly emphasised, as in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 343-344.

46 In relation to the individual councillors Ryan and Ebbeck, their conduct did not give rise to an apprehension of bias as individual councillors. The standards of conduct applying to administrative decision-makers differs from that applying to judicial officers, see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 90 per Deane J. An administrative decision-maker does not have to be free from prior involvement in a decision, see Eaton v Overland and Anor (2001) 67 ALD 671, Allsop J at 232. There is nothing improper in the context of the Local Government Act 1993 (the LG Act) with councillors seeking to persuade other councillors about voting in a particular way. The LG Act recognises that there are political parties in local government and that therefore there will be political allegiances.

47 If the transcripts of the Council meetings in relation to the 2005 DA are reviewed they show there was active discussion about relevant matters and opportunity given on several occasions for Mr McGovern to address the Council.

48 There is no evidence that Mr Miocic influenced the Council’s decision to approve the 2005 DA.

49 Further, there was no obligation to advise the Applicants of any additional material received in relation to them or advise them of any further site meetings under the rules of procedural fairness.

Second Respondent’s submissions

50 It is part of the every day functions of local government that councillors are lobbied face to face, by email, letter and telephone by constituents about matters prior to them coming formally before the Council for determination. Having a concluded view on a matter is not an interest required to be disclosed nor a bar to voting on a DA, see ss 439-448 of the LG Act. No particulars are provided as to why email contact between the husband of the Second Respondent and the two councillors is inappropriate. There was no impropriety in the email contact in evidence but rather they contain impassioned, direct and accurate observations, requests and suggestions.

51 There is no obligation to disclose to an objector information received by the councillors or the Council as long as the objector’s grounds of objection are known to the Council and are available for the Council’s consideration; see Talbot J in Farah v Warringah Counciland Ors [2006] NSWLEC 191 citing, at [50] and [52] respectively, Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 and Kioa v West.

52 There was no intimidation of Councillor Hall if the email from Mr Allen to Councillor Hall on 21 September 2005 is relied on. The email is what would be expected from an agitated citizen making an impassioned representation to a councillor.

53 There is nothing irregular about the second site visit on 29 September made in the absence of the Applicants. No extra or extraneous evidence is demonstrated to have been obtained at that visit see Kira Holdings Pty Ltd v Liverpool City Council [2004] NSWLEC 81, citing, at [15], Hodge v Williams (1947) 47 SR (NSW) 489 and, at [18], Government Insurance Office of NSW v Bailey [1992] 27 NSWLR 304. The further site visit was of the same situation as seen previously. The Applicants have not been deprived of an opportunity to further comment on any new information.

54 It was regular and proper for Mr Miocic to pursue the option of a fresh consent given that the 2004 DA was approved under delegation in circumstances where the delegate did not have the requisite power to approve the DA.

55 The “Briginshaw test” enunciated by Dixon J in Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 at 362 is applicable.

Finding on Issue 3

56 The hearing rule requires that an administrative decision-maker observe the rules of procedural fairness, so that a person affected by a decision has a right to be heard. A decision-maker must be, and appear to be, unbiased. There is no dispute that these requirements apply to the decisions of local councils as a whole and individual councillors, see Twist Barwick J at 109 – 110, unless there is clear legislative intention to displace such a rule (in that case considering particularly the requirement that a party affected by a decision of a Council must be heard). The requirements in relation to bias are in dispute in the context of this case. A denial of procedural fairness may amount to an error of law (Stead v State Government Insurance Commission (1986) 161 CLR 141) which would vitiate the decision to grant development consent in this case.

57 The grounds giving rise to a breach of natural justice identified in the Applicants’ case in par 38 can be considered in three categories:

(i) apprehension of bias by two individual councillors Ryan and Ebbeck at par 38(a), (b) and (c),

(ii) failure to disclose matters to the Applicants (par 38(c) again) and par 38(e), and

(iii) the Council’s Director of Development and Planning, Mr Miocic influenced the Council’s decision to approve the 2005 DA par 38(f).

58 The attempted intimidation of Councillor Hall by Mr Allen (par 38(d)) is also raised as a ground of review but how that arises as a legal issue affecting the Council’s decision-making in these proceedings is unclear to me, given that is not a complaint made about the conduct of a councillor but rather of the husband of the Second Respondent who it is alleged caused another councillor, Councillor Hall, to change his vote. There is no allegation by the Applicants that Councillor Hall was biased or otherwise acted improperly. If the matter is raised as evidence of an apprehension of bias on Councillor Ebbeck’s part because of Councillor Ebbeck’s approving email response to that email later sent to him, I discuss this below.

59 It is necessary to distinguish, as the First Respondent did in its submissions, between the responsibilities of individual councillors and the collective body of the Council, and separately whether the actions of Mr Miocic, the Council’s Director of Development and Planning, inappropriately influenced the decision-making of the Council as a whole.

(i) Ground 1 - Apprehension of bias by individual councillors

60 The legal test of apprehension of bias is whether a fair-minded and fully informed observer would reasonably apprehend that there was bias by a decision-maker; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Kirby J at 549, referring to imputed bias, also Laws (Mason CJ, Brennan J) at 87. This issue must be considered in the context of the role and function of councillors under the LG Act and in administering their statutory responsibilities under the EP&A Act. Bias is demonstrated if a decision-maker appears to have so prejudged an issue that he or she no longer applies an open mind to the decision in issue; see The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 adopted in R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383 by Zeeman J at 389; Pipi Holdings Douglas J relied on West Coast, at [21] holding:

… in the context of prejudgment, it is only necessary to show that a fair minded and responsible bystander might reasonably assume that the councillor, having committed himself to a position, had closed his mind to the possibility of doing other than vote in favour of the proposal.

61 The First Respondent’s submission that the test in Australia was that of “real likelihood” was not disputed. Apprehension of bias must be firmly established; see Kirby J in Jia Legeng at [127], referring to Briginshaw at 361. In Briginshaw Dixon J held that when allegations in a civil case are made about criminal behaviour, the standard of proof that the moving party before a Court must reach is “reasonable satisfaction” in the mind of the judicial officer.

62 The “Briginshaw test” was recently considered by the Court of Criminal Appeal in Gianoutsos v Glykis (2006) 65 NSWLR 539 at 548 where McClellan CJ at Common Law (Sully and Hislop JJ concurring) affirmed that this should not be understood as imposing a test in civil litigation other than in relation to the balance of probabilities but that when “loading the scales” appropriate weight is to be given to the matters to which Dixon J referred.

Local Government Act 1993 (LG Act)

63 The LG Act sets out the roles and responsibilities of local councillors and staff in the conduct of their duties in local government. Section 232(2) states that:

The role of a councillor is, as an elected person:

§ to represent the interests of the residents and ratepayers

§ to provide leadership and guidance to the community

§ to facilitate communication between the community and the council.

64 The First Respondent submitted that is a statutory statement which recognises that councillors will know many individuals with whom they have close, but not improper, relationships. It is accepted that local councillors will have interests in the community which inform their decisions. The Respondents argued that as Pt 7 of the LG Act specifically provides for the registration of political parties (s 319) that recognises that political allegiances will play a part in local council decision-making. These submissions must be correct.

65 The LG Act refers to conflict of interest on the basis of pecuniary and non-pecuniary interests. The LG Act defines a pecuniary interest in s 442 as:

an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person

66 There are few provisions in the LG Act dealing with conflicts based on non-pecuniary interests. Under s 440 a model code of conduct applicable to councillors and members of staff can be prescribed under the Local Government (General) Regulation 2005 (the LG Regulation 2005). Section 440(3) requires that a council adopt a code of conduct incorporating the provisions of the model code. The Applicants tendered in evidence (exhibit C) a code of conduct adopted by the Council on 15 October 2002.

67 The Code of Conduct refers to ethical standards and responsibilities of councillors and staff and refers to the need for equitable treatment of members of the public. There is also reference to two types of conflict of interest, (i) pecuniary and (ii) non-pecuniary. The Council’s code defines a non-pecuniary interest as:

…a private or personal interest, which you have, and does not relate to money, for example, a friendship, family, membership of a club and the like where a financial gain or loss is not involved.

68 This general statutory context is relevant in assessing whether the Applicants’ claim is made out in relation to individual councillors making decisions about development consents under the EP&A Act.

69 The Applicants accepted that a councillor may be “assumed to hold and to express views on a variety of matters relevant to the exercise of the functions of the Council” (West Coast at 421-422). A councillor is also able to hold and express preconceived views without giving rise to an apprehension of bias. The Applicants also accepted that there was nothing inherently improper or inappropriate in a councillor having direct communications with persons affected by their decisions, that is, being lobbied. It is also clear from Jia Legeng among numerous other cases that the expression of a preliminary or tentative view is not indicative of prejudgment. What has occurred here, according to the Applicants, is that two councillors prejudged the matter before the decision of the Council to approve the 2005 DA on 11 October 2005 and became “advocates” for the Second Respondent.

Case law

70 There are few Australian cases dealing with the issue of bias by individual councillors in their decision-making. The Applicants relied on the approach to a finding of apprehension of bias in West Coast and Pipi Holdings. Both cases dealt with the behaviour of individual councillors exercising statutory functions related to their responsibilities as local councillors. The Respondents argued these cases supported their arguments.

71 In West Coast Zeeman J of the Supreme Court of Tasmania was asked to consider whether there was an apprehension of bias arising as a result of the conduct of one councillor who formally objected to a DA on which he also sat as a councillor to determine whether approval ought be given. His Honour noted at p 389 that it was not necessary to establish actual bias. Referring to The Queen v Watson; ex parte Armstrong, the principle that a fair-minded person would reasonably apprehend that a judicial tribunal had pre-judged a matter must also apply to a statutory tribunal making discretionary decisions about whether to grant a planning permit. The councillor also took civil action to enforce the planning law in relation to a sign for which no permit had been granted. This was held to be reasonable by Zeeman J. What gave rise to the apprehension of bias was that by making representations having statutory significance in the permit application process for the sign the councillor moved from being an elected representative with strong views (acceptable) to being effectively a party to the application before the respondent council. This was unacceptable because he unequivocally committed himself to a position. This was said to vitiate the whole decision-making process although Zeeman J does not discuss the fact that this was a multi-member decision-making body.

72 Regarding the determination of the appearance of bias by a local councillor, Zeeman J held at 389, 390 and 392 respectively that:

Councillors are representatives of their community and elected by and from that community. It may be expected that they will support particular views as to what is in the best interests of the community and that often they will have strong personal views as to what ought to occur in the community. In one sense they may be expected to hold views which may be described as being biased. Councillors may be expected to hold particular views as to how they would wish their community to develop and to discharge their duties as councillors by reference to those views.

…

Mere fixed views as to particular matters which are relevant to the exercise of discretion

even if strongly expressed, ought not of themselves to be seen as a disqualifying factor.

Expressions of opinion on the part of a member of a municipal council of a nature which would be sufficient to disqualify a member of a judicial tribunal from sitting on a particular matter may not be sufficient to disqualify a member of a municipal council. Councillors may be assumed to hold and to express views on a variety of matters relevant to the exercise of the functions of the council. Expressing such views is part of the electoral process. Provided that expressions of opinion do not go so far as to evince an intention to exercise a discretion conferred by statute without regard to the terms in which it is conferred or without being prepared to listen to any contrary argument, it ought not be taken to disqualify the councillor from participating in a relevant decision making process.

73 His Honour considered several cases which have considered bias in the local government context. Additional cases adopted by him included Sopinka J in Old St Boniface Residents’ Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 at 408-409 as follows:

It is apparent from the facts of this case, for example, that some degree of prejudgment is inherent in the role of a Cr. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest. It is not part of the job description that municipal councillors be personally interested

in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest.

In my opinion, the test that is consistent with the functions of a municipal Cr and enables him or her to carry out the political and legislative duties entrusted to the Cr is one which requires that the objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that here is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard.

74 R v Amber Valley District Council, Ex parte Jackson [1985] 1 WLR 298, Woolf J at 307-308; 508-509 was also considered and adopted by Zeeman J. In that case the bias alleged was a political predisposition by a group of councillors, who were all members of a political party faction in the council, in favour of a particular development for which planning permission was sought. Woolf J stated that he considered it was inevitable that the majority group on a council would decide on the “party line” in relation to a proposal. Zeeman J stated at 392 that Woolf J’s approach appeared to be more liberal than other cases such as R v Marion City Corporation; Ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436 but all the authorities make clear that the nature of the body exercising planning functions must be taken into account in determining the content of the duty to act fairly.

75 In Marion City Corporation (No 2) application was made to the Supreme Court of South Australia for an order prohibiting the council from determining an application for road closure under the Roads (Opening and Closing) Act, 1932-1978 (SA). The evidence in that case, being letters and an agreement between the council and a developer in relation to the road in issue, showed that the council had aligned itself with the developer to the extent that a reasonable bystander would consider there was predetermination of the decision and that objectors would not get a fair hearing in relation to their objections (Zelling J at 444, Jacobs and Millhouse JJ concurring). An order prohibiting the council from further consideration of the application for road closure was made.

76 In Pipi Holdings, Douglas J of the Supreme Court of Queensland held that there was no apprehension of bias in circumstances where the mayor and two councillors had publicly and strongly supported the resumption of the applicant’s land. The applicant alleged that there was prejudgment of the decision to pursue the resumption by these council members and they therefore had a closed mind when the council decided whether to proceed with the resumption. One councillor was quoted in a local newspaper. Other evidence relied on were conversations with the councillors where they were quoted and the deponents stated that they had the impression that the councillors’ minds were made up on the issue.

77 His Honour further held at [23]-[24]:

There is no doubt that all of the councillors must have formed a view one way or other prior to the hearing. They, after all, in order to get to the stage of the hearing were required to have determined first to give notice that the council intended to give a notice to resume. The situation then is that the applicant, having been put on notice, had the opportunity of dissuading the decision-maker from providing further. The applicant was given every opportunity to do so with the exception of not being shown the material to which I have referred earlier in this judgment…I am of the view that the evidence does not disclose a bias but rather the natural forming of a view by each of the councillors.

78 Another case referred to in argument was Lend Lease Management Pty Ltd and Anor v Sydney City Council and Ors (1988) 68 LGRA 61. That was not a case considering arguments related to bias in the course of local council decision-making. It was concerned with the issue of whether there was any or adequate consideration of relevant matters by a council under the Heritage Act 1977 in relation to a development application. Cripps J considered that a council’s decision-making was not undermined by the political caucusing of several councillors immediately before a council meeting which voted to approve a development consent. He considered Parramatta City Council v Hale (1982) 47 LGRA 319 was not authority that a development consent is invalid if the meeting where approval is given is preceded by a number of councillors agreeing to vote a certain way.

79 In Al Oshlack on behalf of the Lismore Greens v Lismore City Council NSWLEC, Sheahan J, 25 September 1998, unreported, his Honour held at [144] that bias is not demonstrated by establishing that the full council was generally pre-disposed to developing land as that is a “political” outlook it is entitled to adopt. He considered that bias required an element of personal interest in the outcome, “such as a financial interest, or an interest in a friend or relative achieving a particular result.”

80 While these cases are not binding on me they are persuasive. They make clear that there is a high hurdle of proof to overcome in determining whether there is an apprehension of bias in the case of individual elected councillors because of the political nature of the processes they are involved in as representatives of their community, as recognised under the LG Act, they can obtain input from numerous sources and bring their own opinion to bear on development decisions. It is expected they will have views about the matters before them and express these in a way which in a tribunal or court context would be considered biased. This reflects the nature of the decision-making process undertaken by local councils.

81 In this case I have had before me unusually detailed material about the lobbying process undertaken by the husband of the Second Respondent and one of the Applicants, in the form of emails to various councillors concerning the 2005 DA in particular. The evidence included extensive emails between various councillors, the parties and the Council officer Mr Miocic. The emails were between personal email accounts rather than to the councillors’ Council email addresses. The Applicants relied on the whole course of conduct in relation to the 2004 DA and 2005 DA. While including the text of emails sent in relation to the 2004 DA by Councillor Ryan and Mr Allen in the Factual Outline of Applicants’ Case the Applicants did not argue that there was anything specifically improper in these. These emails are relied on generally as showing part of an improper course of conduct in relation to the 2005 DA as I understand the Applicants’ case. Apart from demonstrating that there was discussion between Councillor Ryan, Council officers and Mr Allen about the 2004 DA, I do not consider there is any specific matter relevant to the apprehension of bias argument in these emails. The fact that these show Councillor Ryan and Mr Allen knew each other is immaterial on the case argued by the Applicants. The consideration of the 2004 DA does inform the overall consideration of the 2005 DA by the Council given that the DAs are similar.

82 Emails relied on in the evidence and the written submissions of the Respondents (6.17 – 6.30 set these out) included numerous communications between one of the Applicants and Councillors Bennett and Hall about the 2005 DA seeking assistance and support in opposing it. One example relied on by the Respondents was that Mr McGovern sent an email to six councillors on 26 July 2005 raising concerns about the 2005 DA. This email was forwarded by Councillor Ryan to Mr Allen. In other words, it is said by the Respondents that the opportunity to lobby councillors was pursued actively by the Applicants, as they are entitled to do. If the emails complained of by the Applicants are found to give rise to an apprehension of bias then the same must apply to the Applicants’ emails to other councillors in relation to an apprehension of bias in relation to those councillors. That submission has considerable force in my view.

83 In relation to par 38(b) while the content of some of the emails composed by the husband of the Second Respondent of which the Applicants complain make for unedifying reading as they contain personal comments and may cause anguish to the Applicants, that of itself does not give rise in my view to any apprehension of bias on the part of the councillors (Ryan and Ebbeck) to whom they are addressed. There is no obligation on these councillors to disavow such comments and there is no evidence that they adopted such comments.

111 In relation to (c) and (e), the majority of councillors on 11 October 2005 acted by adopting Council officer Hoy’s report dated 8 July 2005 recommending approval as subsequently adopted in recommendations made by Council officers’ reports dated 12 August and 12 September 2005. That report did not consider in material respects the objections raised by the Applicants in their letter dated 7 July 2005. A number of topics raised by the Applicants were not addressed in relation to heritage impact (six matters), the absence of a SEE (three matters) and non-compliance of the first floor level with DCP 38.

112 The Applicants also argued Council officer Hoy’s report of 8 July 2005 was erroneous because of various failures set out at par 5.3(i), (ii) and (iii) of the Applicants’ written submissions filed in Court on 6 August 2006. Paragraph 5.3(i) and (ii) state:

(i) The proposed dwelling additions do not involve the construction of a new ground floor extension

(ii) The proposed rear additions and new elevated terrace are a first floor element and not ground floor elements as alleged.

113 I note that an erroneous reference to ground floor extensions (par 5.3(i)) when none were proposed by the Applicants cannot be a material error. I do not need to consider that point further.

114 In par 5.3(iii) of the Applicants’ written submissions, the issue is raised that the Council’s engineering department considered the 2004 DA which proposed a carport one metre from the side boundary with the McGoverns. The engineering department also considered the 2005 DA which proposed the carport be 1.5 metres from the boundary but the engineering report contained in the Council report of 8 July 2005 was the same as for the 2004 DA. As identified by the Respondents the failure outlined in par 5.3(iii) was not pleaded in the lengthy TFAPOC relied on. Nor is it clear how it is a material consideration in the Council’s decision-making. I do not consider it can arise now without warning in written submissions.

115 At par 5.4(i) and (ii) of the Applicants’ written submissions the Council officer’s report of 12 August 2005, which followed the second site meeting on 6 August 2005, is alleged to have failed to consider various matters. At par 5.4(i) it is stated that the report failed to outline the plans upon which the heritage impact statement was based. This was not pleaded in the TFAPOC and should not be raised in written submissions. In any event if that report is read, consideration is clearly given to the plans the subject of the heritage impact assessment. The report notes that the assessment has not been reviewed to address the most recent amendments to the plans but it is noted that the changes are considered to be minor and concludes the amended plans do not warrant a revised heritage impact statement. Paragraph 5.4(ii) states the staff failed to check the setback of the existing building on the site and confirm its accuracy.

116 In par 5.5(i) of the Applicants’ written submissions further complaint was made that the Council report dated 12 August 2005 failed to address the Applicants’ objections or the additional information said to be required as a result of the site meeting on 6 August 2005. The site inspection report required consideration of whether the height of the carport could be reduced and this was not done. This was not pleaded in the TFAPOC and should not be raised in written submissions. Further error is asserted in par 5.5(ii) that, contrary to fact, the report asserted that the survey information was accurate and prepared by a registered surveyor when it was not, and the aerial photograph provided was also inaccurate.

First Respondent’s submissions

117 The Applicants have the onus of establishing that the Council failed to take matters relevant to its decision into account. In Schroders Australian Property Management Ltd v Shoalhaven City Counciland Anor [2001] NSWCA 74 Ipp AJA (Spigelman CJ and Sheller JA concurring) held that a document provided to council such as objectors’ submissions and placed on the relevant council file was treated as being in the possession and knowledge of the councillors. (I applied this finding in Gee v Council of the City of Sydney (2004) 137 LGERA 157.)

118 Mr Hoy’s report to Council dated 8 July 2005 contained a detailed consideration of the matters raised in the Applicants’ submissions dated 7 July 2005, inter alia. There is no evidence of non-compliance with s 79C of the EP&A Act or cl 50 of the Regulation because on the evidence the Council took the submissions into account contrary to the pleading in par 58 of the TFAPOC: Kindimindi Investments Pty Ltd v Lane Cove Counciland Anor (2006) 143 LGERA 277.

119 A number of failures in the Council officers’ reports referred in the Applicants’ written submissions were not pleaded. If there were any failures the Applicants have failed to show these were material to the Council’s decision-making. Further, to err in fact is not to err in law in judicial review proceedings. The matters raised in par 5.4(ii) and 5.5(ii) of the Applicants’ written submissions are matters of fact and any error is not reviewable.

Second Respondent’s submissions

120 The EP&A Act requires that the matters in s 79C(1) be taken into account as a statutory requirement. Part 1 Sch 1 of the Regulation specifies those documents which must accompany an application. The Council has a duty to consider relevant matters and merely referring to them is insufficient consideration: Hale v Parramatta Council (1982) 47 LGRA 269, Weal v Bathurst City Counciland Anor (2000) 111 LGERA 181. There has been no failure to properly consider relevant matters contrary to the Applicants’ submissions. There is sufficient evidence of the Council considering all relevant matters; Kindimindi [64] – [66].

121 A mistake of fact in the Council’s assessment is insufficient to ground a challenge if the conclusion is otherwise open to the Council; see Pioneer Concrete v Port Macquarie Concrete, NSWLEC, Cripps J, 20 July 1984 unreported.

122 It is said that Council officer Hoy failed to undertake an objective and fair assessment of the DA and the objections to it. These are matters that he is required to undertake in his job in making recommendations to the Council based on his training and experience for the guidance of the councillors. It is clear that his report of 8 July 2005 was prepared after lengthy consideration of matters relevant to the DA.

Finding on issue 4

123 The Applicants identified several deficiencies in the Council’s consideration of the 2005 DA in the TFAPOC and in their written submissions. The Applicants bear the onus of proving there was a failure to take into account a mandatory relevant consideration by the Council and that the error is material; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 at 40, Mason J, applied in Kindimindi Basten JA at 295 (Handley JA and Hunt AJA concurring). The failures identified in par 109(a) concerning the failure to comply with statutory requirements in relation to the survey plan and lack of a SEE are not relevant given my conclusion in relation to Issue 1 that these were not mandatory statutory requirements.

124 Paragraph 109(b) refers to the inclusion of an erroneous aerial photograph in the Council’s report of 12 August 2005 and the references to the inaccurate survey information prepared by Mr Bartholomew as being accurate.

125 While I accept that it is very important that accurate plans correctly showing the location of relevant properties next to a proposed development site be before a council approving a DA, the Tierney evidence (par 5) demonstrates that the inaccuracies in the Bartholomew plan were not substantial in the context of this case which concerns the construction of a carport at the front of the Applicants’ property, inter alia. The aerial photograph in the Council report of 12 August 2005 is clearly inaccurate to the untrained eye as the boundary lines pass over existing structures. It was therefore unlikely a councillor would have placed much weight on the aerial photograph in any event and it could not have played a material part in their deliberations, in my view.

126 Paragraph 109(c) refers to the numerous failures of Mr Hoys’ report dated 8 July 2005 as identified in par 53 of the TFAPOC and additional matters were raised in the written submissions (par 111). These failures were said to result in an assessment report by Mr Hoy that was not fair and objective. The Applicants argued that several of the matters raised in the McGovern letter of objection dated 7 July 2005 had to be considered in Mr Miocic’s report and were not. The Act does not require, nor am I aware of any case law requiring, that every matter raised in a letter of objection must be considered in a Council officer’s report. As argued by the Respondents, par 53 of the TFAPOC does not disclose a reviewable legal error in that whether Mr Hoy’s report is objective and fair is really a matter of merit. A differing view about the accuracy of facts and opinions is not a matter able to be the subject of judicial review. The inadequacies of, or errors in, an expert report, or about Mr Hoy’s failure to identify the alleged inadequacy perceived by the Applicants or to accept their objection about it and report this to the Council, are complaints about the merits of expert reports made to the Council and hence about the weight to be given to those reports.

127 Paragraph 109(e) states that the Applicants’ detailed objections in their letter of 7 July 2005 were not considered. That letter was on the Council’s file and available to all the councillors. As the First Respondent identified, the Court of Appeal unanimously held in Schroder that documents on the Council’s file are to be treated as within the knowledge of the councillors (see par 117).

128 As to the matters raised in par 112 I have already held par 5.3(i) is immaterial (see par 113). The alleged error in par 5.2(ii) and (iii) is not demonstrated as being a material matter to the Council’s decision in the context of this case. Further par 5.3(iii) was not pleaded (see par 114).

129 Additional failures are also identified in the Council officer’s report dated 12 August 2005 (par 115, 116). Those referred to at par 5.4(ii) and 5.5(ii) concerning the Council officer’s report dated 12 August 2005 in the written submissions are matters of fact and not reviewable, as argued by the First Respondent. The additional matters raised are not demonstrated to be material matters.

130 The ultimate answer to the Applicants’ ground at par 109(f) is that if the council officers’ reports, site meetings and matters considered by the Council in four meetings in relation to the 2005 DA are all reviewed, there is clearly compliance with s 79C. The 2005 DA did comply with statutory requirements as there was no specific statutory requirement that the site plan be by a registered surveyor. Mr Hoy’s report dated 8 July 2005 and subsequent Council reports included detailed consideration of the 2005 DA against the requirements of s 79C and assessed those requirements and the ability of the 2005 DA to meet them. The Council considered matters under cl 50 of the Regulation in its reports dated 12 August 2005, 12 September 2005 and 30 September 2005 all of which reports were supplementary to the report dated 8 July 2005. The Applicants have not discharged their onus of proving failure by the Council to take into account matters required to be taken into account under s 79C of the EP&A Act or cl 50 of the Regulation. The Applicants are unsuccessful on this ground.

Issue 5 – Taking account of irrelevant considerations (65C)

Applicants’ arguments

131 In giving consent to the DA the Council took into consideration and gave weight to irrelevant considerations:

(a) heritage report

The Heritage Report of Mr Beaver (which was not in compliance with the statutory requirements and contained fundamental misapprehensions rendering the report of no value, such as the stated assumption that the architect who drew the original building plans had taken into account all relevant matters including heritage values) (TFAPOC 50, 58 and 59). The heritage report prepared by Mr Beaver was fundamentally flawed in that it relied on the architect’s assessment of matters relating to heritage when it was evident that the architect had not addressed heritage issues.

(b) existing Court proceedings

Councillors Ryan, Ebbeck and Hall took into account that there were court proceedings challenging the validity of the 2004 DA and that by consenting to the new DA (with the consequential surrender of the earlier consent) a favourable outcome to Council in the Court proceedings would be obtained (TFAPOC 65C(i)). A concern to minimise Council’s exposure arising from the approval of the 2004 DA by a delegate of the Council when no such delegation power existed and thereby approving the 2005 DA is an irrelevant consideration under s 79C. This was a matter incorrectly taken into account by Councillors Ryan and Hall. The matters relied on by the Applicants identified at par 6.3 of the written submissions are:

(i) Councillor Ryan was initially contacted by Mr Allen when the proceedings were commenced and expressed surprise they had been commenced (exhibit B p 25.1)

(ii) she then had a briefing with Mr Miocic and arranged for them to contact each other (exhibit B p 25.10 and 26.1)

(iii) she was then copied in on the email exchanges between Mr Miocic and Mr Allen in which they discussed the “proposal” (exhibit B p 27 – 29 and 32)

(iv) on 20 September 2005 she advised Mr Allen that she would lobby another Councillor and “make a point of making her bear in mind the potential costs to Council if this goes to Court and we lose” (exhibit B p 95)

(v) she was present during the meeting on 10 October 2005 when Mr Allen’s representative referred to “costs implications” (exhibit B p 128D.7)

132 The matters identified in relation to Councillor Hall at par 6.4 of the written submissions are:

(i) Councillor Hall was one of the two councillors who initially called up the 2004 DA (exhibit B p 4)

(ii) at the Council meeting on 32 August 2005 he stated the significance he placed on heritage items and called for “our own heritage impact statement from an independent” (exhibit B p 77B.9)

(iii) on 20 September 2005 he stated that he had “now had the opportunity to read the statement of heritage impact” and then moved the “matter stand deferred for reasons for refusal” (exhibit B p 115B.10)

(iv) he received a long email of complaint from Mr Allen on 21 September 2005 which included references to “financial losses to Council” (exhibit B p 103, 105.2)

(v) his email of 6 October 2004 to Council officers expressing concern about being approached by Council’s solicitors and his own exposure (exhibit B p 117)

(vi) he was present during the meeting on 10 October 2005 when Mr Allen’s representative referred to “costs implications” (exhibit B p 128D.7)

(vii) the explanation Mr Hall gave to the meeting at which he changed his vote concerning the “deficiencies” in Ms Hill’s report (exhibit B p 128F)

(viii) the possibility that he was briefed by Mr Miocic as suggested in the email exchange between the latter and Mr Allen

133 The rest of the councillors took this issue into account because it was a matter Mr Miocic or his staff informed them of in reports to the Council as part of its consideration of the 2005 DA, and in earlier reports.

(c) inappropriate emails from Mr Allen denigrating the Applicants

Email material from or to Mr Allen which, inter alia, denigrated the McGoverns and their objections to the DA (TFAPOC 65C(ii)). Clause 65C(ii) of the TFAPOC particularises eight assertions said to be made against the Applicants by or to Mr Allen in emails to Councillors Ryan, Ebbeck and Hall. The emails from Mr Allen made a number of prejudicial comments about the Applicants, which comments the recipients did not disown or reject or suggest were inappropriate. It was therefore submitted that Councillors Ryan and Ebbeck accepted at least some of the complaints made by Mr Allen about the Applicants and took these into account.

First Respondent’s submissions

(a) heritage report

134 The First Respondent argued that the issue complained of in relation to the heritage report relates to the merits of the experts’ reports before the Council. No error of law is disclosed in the Council’s decision to approve the 2005 DA by this ground.

(b) existing Court proceedings

135 There is no indication in the transcripts of the Council’s meetings or minutes that the Council as a whole paid regard to the proceedings challenging the validity of the 2004 DA. Even if it did that is not an irrelevant consideration. It was clearly relevant for the Council to take into account the effect of rendering the Class 4 proceedings challenging the 2004 DA of no utility, saving legal costs and resources. The Council had a duty to determine any DAs lodged with it in a timely fashion and it did so. It deferred the 2005 DA three times, twice in order to obtain further information.

(c) inappropriate email communications

136 There is no evidence the email communications between Mr Allen and Councillors Ryan and Ebbeck were communicated to other councillors so it could not be said that other councillors were in any way influenced by these.

Second Respondent’s submissions

(a) heritage report

137 There is no breach of a statutory requirement in relation to the Beaver report alleged by the Applicants. The Council’s DA Guide required discussion with Council’s heritage advisor for proposals within the vicinity of a heritage item. An assumption made that an architect had taken into account heritage values was properly made. A review of the report shows that Mr Beaver undertook his own consideration of the issues and drew his own conclusions (vol 1 tab 26). No error of law is demonstrated.

138 Raising the fact of Court proceedings challenging the 2004 DA as an issue of itself does not create a problem. The issue was raised by Mr McGovern in his address to Council on 23 August 2005. It is unremarkable that councillors knew of the court proceedings given that these had been reported to Council and all councillors knew of them. It is incorrect to assert that a favourable outcome to the Council in the court proceedings would be obtained from the grant of consent given that a declaration of nullity was inevitable as the original consent was obviously bad.

(c) inappropriate email communications

139 No evidence was called from any councillor to indicate that the emails said to be inappropriate exercised the minds of individual councillors. This material was not on the Council file and was not the subject of any discussion at any of the four Council meeting where the application was discussed.

Finding on Issue 5

140 If an irrelevant consideration is proved to be taken into account it must be demonstrated to have influenced the decision. If weight is given to an irrelevant matter it may be seen as an error of law but must be shown to be not insignificant (Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353). If the decision is reasonably open to the consent authority to grant consent the Court should not intervene; see Bentham and Anor v Kiama Municipal Council and Ors (1986) 59 LGRA 94. The Applicants have failed to discharge the onus they bear of proving that irrelevant matters were relied on and, if they were, did materially affect the Council’s decision to approve the 2005 DA.

(a) heritage report

141 I agree with the submissions of the First Respondent that the Beaver report demonstrates on its face that Mr Beaver undertook his own analysis and reached his own conclusions. The matters complained of are matters of merit not legal error.

(b) existing Court proceedings

142 In oral submissions the Applicant argued that the Class 4 proceedings challenging the 2004 DA had been particularly taken into account by Councillors Ryan and Hall at the time the 2005 DA was approved on 11 October 2005 relying on emails sent by or to them referring to that issue. The matters particularly relied on in relation to Councillor Hall (see par 132(i) – (viii)) do not infer any such behaviour on his part. The fact that he called up the 2004 DA to full Council and appeared to change his mind in the course of considering the 2005 DA in relation to heritage issues and was possibly briefed by Mr Miocic about the 2004 DA proceedings is simply not material in my view. There is no basis on which I can infer that he took such an irrelevant matter into account, the evidence relied on reflects the behaviour of a councillor in the process of deciding what decision he should make.

143 The emails received or sent by Councillor Ryan suggest she was mindful of the proceedings challenging the 2004 DA but whether this was given weight by her in the decision-making process concerning the 2005 DA sufficient to give rise to a finding that she took into account an irrelevant consideration is debatable.

144 Even if I did accept the Applicants’ arguments, it is not clear that one or two councillors taking into account an irrelevant consideration would lead to a conclusion that the whole council decision to approve the 2005 DA was invalid. No case law was relied on by the Applicants to argue that the consideration of irrelevant matters by one or two councillors invalidated the decision of the whole council, but it was argued that this must be the case as a matter of logic, by analogy to the Applicants’ argument in relation to bias that if one or two councillors were biased the decision of the whole Council was invalidated. I have not had to consider that argument in light of my findings about individual councillors. I do not accept that submission in relation to a challenge on the ground of irrelevant consideration or at least needed further argument on this issue to support the Applicants’ case. If the Applicants were to succeed on this ground they needed to address the decision of Basten JA (Handley JA and Hunt AJA concurring) in Kindimindi at 61 – 80 where his Honour considered the matter of the “collegiate mind” of council, where three of eight councillors gave evidence they had not had adequate time to consider material provided to them before a council meeting. He considered this did not invalidate the whole decision of the council in that circumstance.

145 The rest of the councillors were argued to be influenced by Mr Miocic’s report(s) which also refer to the Class 4 proceedings. It is clearly relevant history which I expect that councillors would be aware of. Mr McGovern himself raised the Class 4 proceedings in relation to the 2004 DA when he addressed the Council meetings on 26 July 2005 and 23 August 2005. As the First Respondent submitted, there is no indication that the Council as a whole paid regard to the existing proceedings when the 2005 DA received consideration at four Council meetings and considered additional information obtained in the course of its consideration. The reference in the Council officers’ reports to the 2004 DA being challenged in Court proceedings does not give rise to an inference that this was an irrelevant consideration taken into account by all the councillors in the context of their consideration of the 2005 DA.

(c) denigrating emails

146 The Applicants relied on eight emails as identified in cl 65(ii) of the TFAPOC. Seven of the emails were sent by Mr Allen. The last email was sent by Councillor Ryan. I agree with the Respondents’ submissions that there is no evidence that any denigrating emails received from Mr Allen by Councillors Ebbeck and Ryan were communicated to other councillors. There is no evidence these influenced other councillors or indeed the councillors who received them. They cannot therefore be considered as irrelevant considerations taken into account by the Council.

147 The Applicants fail on this ground and accordingly are unsuccessful in these Class 4 proceedings, which should be dismissed.

Orders

148 The Court makes the following orders:

13/03/2007 - Names of solicitors for First and Second Respondents inadvertantly reversed - Paragraph(s) coversheet

CITATION:	McGovern v Ku-ring-gai Council & Anor [2007] NSWLEC 22 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANTS David McGovern and Roslyn McGovern FIRST RESPONDENT Ku-ring-gai Council SECOND RESPONDENT Marilena Allan
FILE NUMBER(S):	40607 of 2005
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- invalidity of development consent - whether apprehension of bias by individual councillors and also Council as a whole in approving development consent - whether misrepresentation by applicant for development consent - whether failure to comply with statutory requirements by applicant for development consent - whether failure to take into account relevant considerations in approving development consent - whether irrelevant considerations taken into account by Council in approving development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s78A Environmental Planning and Assessment Regulation 2000 cl 50 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 cl 11 Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Residential Design Manual Development Control Plan 38 Local Government Act 1993 Ch 14, Sch 6 Local Government (General) Regulation 2005 Migration Act 1958 (Cth) Roads (Opening and Closing) Act, 1932-1978 (SA) Surveying Act 2002
CASES CITED:	Al Oshlack on behalf of the Lismore Greens v Lismore City Council NSWLEC, Sheahan J, 25 September 1998, unreported; Anderton v Auckland City Council [1978] 1 NZLR 657 ; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228; Attorney-General for Victoria v City of Knox [1979] VR 513 ; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 ; Courtney Hill v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529; Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council and Ors [2005] NSWLEC 674 ; Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors [2006] NSWCA 339; Eaton v Overland (2001) 67 ALD 671; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Farah v Warringah Council [2006] NSWLEC 191 ; Gee v Council of the City of Sydney (2004) 137 LGERA 157; Gianoutsos v Glykis (2006) 65 NSWLR 539 ; GIO of NSW v Bailey [1992] 27 NSWLR 304; Hodge v Williams (1947) 47 SR (NSW) 495 ; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; I W v City of Perth (1996) 191 CLR 1; Jones v Dunkel (1959) 101 CLR 298; Kimber v Ku-Ring-Gai Municipal Council (1990) 130 LGERA 117; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ; Kioa and Ors v West and Anor (1985) 159 CLR 550; Kira Holdings Pty Ltd v Liverpool CC [2004] NSWLEC 81; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 ; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Old St Boniface Residents’ Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Pioneer Concrete v Port Macquarie Concrete, NSWLEC, Cripps J, 20 July 1984 unreported; Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; R v Amber Valley District Council, Ex parte Jackson [1985] 1 WLR 298; R v Marion City Corporation; Ex parte Independent Grocers’ Co-operative Ltd (No 2) (1984) 37 SASR 436 ; R v Secretary of State for the Home Department; ex parte Hussain [1978] 2 All ER 423 ; R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383; Schroders Australian Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ; Stead v State Government Insurance Commission (1986) 161 CLR 141; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 ; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 ; Weal v Bathurst City Council (2000) 111 LGERA 181
DATES OF HEARING:	04/09/2006, 05/09/2006 06/09/2006, 07/09/2006
DATE OF JUDGMENT:	20 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr P Roberts SC Mr R Beech-Jones SC SOLICITOR Bradfield and Scott FIRST RESPONDENT Dr J E Griffiths SC Ms M Allars SOLICITOR Deacons SECOND RESPONDENT Mr P McEwen SC SOLICITOR Harris Freidman Hyde Page