McGovern v Ku-Ring-Gai Council

In *McGovern v Ku-Ring-Gai Council*, the appellants challenged a development consent granted by the respondent council. The dispute concerned allegations of apprehended bias on the part of council members and a council officer, as well as claims that the development application process was invalid due to non-compliance with statutory requirements and the consideration of irrelevant factors. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether a reasonable apprehension of bias arose from the conduct of the council and its officer, and whether the council's decision to grant development consent was invalid. This involved determining the applicable test for apprehended bias in the context of a local council acting as a consent authority, distinguishing between prejudgment and conflicts of interest, and considering the knowledge of a fair-minded observer. The court also had to assess whether the council members were incapable of persuasion and whether the council officer's conduct created such an apprehension. Furthermore, the court considered whether the development application process itself was flawed, specifically whether it substantially complied with the requirements of the *Environmental Planning and Assessment Act 1979* (NSW) and the *Environmental Planning and Assessment Regulation 2000* (NSW), and whether irrelevant considerations were taken into account.

The Court of Appeal applied the test for apprehended bias, which requires determining whether a fair-minded and informed observer would apprehend that the decision-maker might not bring an impartial mind to the question. The court distinguished between the standards applicable to judicial and administrative decision-makers, noting the statutory context of the council's decision-making process. It found that local councillors are not incapable of persuasion and that the conduct of the council officer did not give rise to a reasonable apprehension of bias. The court also considered the characteristics of collegiate decision-making bodies and the "but for" test in relation to the validity of the decision. Regarding the development application, the court examined whether the requirements were mandatory and the standard of compliance.

In relation to proceedings no. 40103 of 2007, the appeal was dismissed. The appellants were ordered to pay 75% of the second respondent's costs of the appeal and 25% of the Council's costs of the appeal.