Mike George Planning Pty Limited v Woollahra Municipal Council

[2013] NSWLEC 97

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mike George Planning Pty Limited v Woollahra Municipal Council [2013] NSWLEC 97

Hearing dates:

14 June 2013

Decision date:

14 June 2013

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

(1)  I recuse myself from the further hearing of this appeal.

(2)  I give leave to the parties to approach the Registrar forthwith to obtain a new hearing date.

Catchwords:

APPEAL - appeal against Commissioner's decision on questions of law - application for recusal of judge on the basis of apprehended bias - whether there was a matter that could be said to lead judge to decide matter other than on its legal and factual merits - whether there was a connection between any such matter and the feared deviation from the course of deciding the matter other than on its legal and factual merits - judge had previously determined different proceedings between the same parties - judge previously inspected site subject to current proceedings and accepted evidence of applicant's neighbours that was adverse to applicant's case - no logical connection between these matters and questions of law raised on appeal - Council submitted that if errors of law found, there was no utility in remitting matter to Commissioner because of findings on merit issues - logical connection found between matters raised by applicant and question of remittal -fair-minded lay observer might reasonably apprehend that judge might not bring an impartial and unprejudiced mind to question of remittal - judge recuses himself

Legislation Cited:

Land and Environment Court Act 1979 s 56A
Environmental Planning and Assessment Act 1979 s 97

Cases Cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Category:

Principal judgment

Parties:

Mike George Planning Pty Limited (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Mr M V Sahade (Barrister) (Applicant)
Mr P R Rigg (Solicitor) (Respondent)
Oliveri Solicitors (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s):

10005 of 2013

Publication restriction:

No

Judgment

1. Commencing today is an appeal under s 56A of the LandandEnvironmentCourtAct1979 ("the Court Act") against a decision of a Commissioner in proceedings under s 97 of the EnvironmentalPlanningandAssessmentAct1979. Such an appeal under s 56A of the Court Act is only against a decision of a Commissioner on a question of law. At the outset of the hearing of the appeal, Mr Sahade, counsel for the appellant, applied that I recuse myself on the basis of apprehended bias.

1. Resolution of an application for a judicial officer to recuse himself or herself from hearing proceedings requires resolution of two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].

1. In this case, Mr Sahade says that the matter which might lead me to decide this s 56A appeal other than on its legal merits is that I heard and disposed of proceedings between the same parties. The previous proceedings were civil enforcement proceedings brought by Woollahra Municipal Council against Mrs Sahade in relation to the alleged illegal construction of a stairway. Those proceedings were in Class 4 of the Court's jurisdiction.

1. In determining those proceedings, I undertook a view of the land concerned. This included an inspection of the part of the land that is the subject of the current proceedings. The current proceedings, which were brought by Mrs Sahade through her agent, the planning consultancy Mike George Planning Pty Limited, concern an application to change the use of a studio built above a garage complex on the land. I inspected that studio and its surrounds. The reason for inspecting the studio and surrounds was because one of the issues involved in the civil enforcement proceedings was whether there was an association between the stairway that had been constructed and the studio and garages on the one hand, and the residence lower on the land on the other hand. In addition to inspecting the land, I heard evidence from residents of other apartments on the land, as well as experts, concerning the environmental impacts of the stairway on the residents.

1. Mr Sahade submitted that the matters that might lead me to decide the case other than on its legal merits were therefore twofold: first, I had undertaken a site inspection of the studio and its surrounds and may have formed opinions as to those areas and, secondly, I had heard evidence of the neighbours who had also given evidence in the proceedings below and made findings of fact accepting aspects of their evidence in my judgment in the civil enforcement proceedings.

1. Having identified the matters which he said might lead me to decide the current case other than on its legal merits, the next step is to determine the logical connection between those matters and the feared deviation from the course of deciding the current s 56A appeal on its merits.

1. In this respect, it is relevant to look at the nature of these proceedings and the issues involved. The s 56A appeal is, as I have stated, limited to determining whether the decision of the Commissioner in the proceedings below was erroneous on a question of law. In the summons commencing the appeal, the appellant identified six grounds of appeal. At the opening of the hearing of the appeal the appellant indicated it no longer pressed ground six. The five grounds of appeal that are pressed purport to raise questions of law. The resolution of those questions involves construction of certain documents, notably the development application, and the relevant statutes and statutory instruments, as well as a construction of the Commissioner's reasons for judgment. I do not consider that there is a logical connection between the matters identified by Mr Sahade and those questions which involve construction of these documents and instruments.

1. The grounds of appeal that raise questions of law in relation to failing to take into account agreed expert evidence or denying procedural fairness or erring in making findings in the absence of evidence also do not have a logical connection with the matters Mr Sahade has identified.

1. However, the Council has raised an additional issue. The Council submitted that even if, contrary to its submissions, the Court were to find that the Commissioner erred on a question of law in one of the ways articulated in the grounds of appeal, the Court ought not to uphold the appeal and remit the matter to the Commissioner because there would be no utility in doing so. The Council submitted that the Commissioner made findings on the merits that a change of use of the studio would have detrimental impacts on the amenity of the neighbours and on the internal amenity of the studio if it were to be converted to use for residential purposes. These impacts were said to be an inappropriate intensity of development of the site, insufficient on-site parking spaces, potential noise and privacy impacts, and poor internal amenity.

1. In determining this issue, Mr Sahade submitted that there is a connection between the matters that have been identified, namely my site inspection and my hearing and making findings about the evidence of the neighbours, and the resolution of this issue of whether there was utility in upholding the appeal and remitting the matter to the Commissioner.

1. I am minded to think that there might be a logical connection between those matters and my resolution of the issue of utility. This logical connection might cause a fair-minded lay observer to reasonably apprehend that I might not bring an impartial or an unprejudiced mind to the resolution of that issue: see Ebner v Official Trustee in Bankruptcy at [6]. In those circumstances, I determine that it would be appropriate to recuse myself from the further hearing of this appeal.

Orders

1. Accordingly the orders I make are as follows:

(1)   I recuse myself from the further hearing of this appeal.

(2)   I give leave to the parties to approach the Registrar forthwith to obtain a new hearing date.

Decision last updated: 04 July 2013