Neate v Shellharbour City Council (No 2)

[2007] NSWLEC 541

Land and Environment Court

of New South Wales

CITATION:

Neate v Shellharbour City Council (No 2) [2007] NSWLEC 541

PARTIES:

APPLICANT
David Neate

RESPONDENT
Shellharbour City Council

FILE NUMBER(S):

10337 of 2006

CORAM:

Pain J

KEY ISSUES:

Appeal :- errors of law by Senior Commissioner - whether exclusionary remitter order should be made under s56A(2) of the Land and Environment Court Act - whether reasonable apprehension of pre-judgment by Senior Commissioner.

LEGISLATION CITED:

Land and Environment Court Act 1979, s56A
Shellharbour City Council Floodplain Risk Management Development Control Plan 2006

CASES CITED:

Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339;
Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164;
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337;
Neate v Shellharbour City Council [2007] NSWLEC 526;
Preferred Projects (Buildings) Pty Ltd v Warringah Council (1999) 106 LGERA 144

DATES OF HEARING:

24 August 2007

 
DATE OF JUDGMENT: 

28 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr C W McEwen SC
Mr M Staunton
SOLICITOR
Wilshire Webb Staunton Beattie

RESPONDENT
Mr T Howard
SOLICITOR
Kells The Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

28 August 2007

10337 of 2006 Neate v Shellharbour City Council (No 2)

JUDGMENT

1 Her Honour: I have upheld an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) against a decision of the Senior Commissioner in Neate v Shellharbour City Council [2007] NSWLEC 526 on two questions of law. The questions of law were:

(i) In deciding to uphold the appeal, the Senior Commissioner failed to give proper, genuine and real consideration to the Shellharbour City Council Floodplain Risk Management Development Control Plan 2006 (DCP).
(ii) In deciding to uphold the appeal, the Senior Commissioner misunderstood, and misdirected himself on, the application of the DCP to the proposed development.

2 Under s 56A(2) of the Court Act the matter may be remitted to a commissioner for consideration in accordance with my judgment. The usual remitter order is that a matter be returned to the same commissioner who heard the original Class 1 appeal. I am able to make an exclusionary remitter order whereby the matter is remitted to a commissioner other than the Senior Commissioner rather than the remitter being determined by the Chief Judge under s 30(1) and (2) of the Court Act (see Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164 per Tobias JA at [70], Bell J concurring, Basten JA at [137]). The Council is seeking such an order.

3 The Council argued, relying on Tobias JA in Baulkham Hills Shire Council v Basemount Pty Ltd (2003) 126 LGERA 339 (Handley and Ipp JJA concurring) and in Castle Constructions (Bell JA concurring) there was a reasonable apprehension of pre-judgment by the Senior Commissioner. Not only did he apply the wrong legal test, he also applied the wrong assessment of risk, being his own formulation. As he arrived at a merits decision that flooding was not a reason for refusal of the development, on a remitter he will have to reconsider the same issues of fact for the same development application.

4 The Applicant argued that Basemount and Castle Constructions do not require that an exclusionary order be made just because findings of fact have been made by the tribunal at first instance which will require reconsideration on the remitter. It is a necessary pre-requisite to a s 56A appeal that a merit determination based on findings of fact will have taken place. The circumstances in which pre-judgment was found in Basemount concerned the denial of natural justice to a council. In Castle Constructions the circumstances were that the commissioner had expressed dislike of the proposal in trenchant and powerful terms. This case is unlike either of those two matters. Further, consistent with the reasoning in Basemount there is no pre-judgment on the real issue.

Finding

5 The principle of pre-judgment giving rise to disqualification arises if there is a reasonable apprehension that the judicial officer “will not decide the case impartially or without prejudice, rather than that she or he will decide the case adversely to one party”. Bias by reason of pre-judgment must be “firmly established”, Re JRL: ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, referred to in Basemount at [21].

6 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Gleeson CJ, McHugh, Gummow and Hayne JJ) their Honours held at 344 – 345 that the test is whether “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The same considerations apply to commissioners.

7 Whether an exclusionary remitter order ought be made depends on the particular facts and circumstances of the case, as cited in numerous cases, see for example Basemount per Tobias JA at [25]. At [23] in Basemount Tobias JA stated:

Before concluding, I should make it clear that the present case is being decided on its own facts. It should not be assumed that merely because a Commissioner's decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner's earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue.

8 The Council has argued that because the Senior Commissioner has made a finding on the merits of the issue of flooding risk in this case, which was a necessary part of his role in this merits appeal, the circumstances found to give rise to pre-judgment in Basemount and Castle Constructions also arise here. While consideration of the facts of this case is the primary consideration in reaching my decision it is instructive to consider the circumstances in which an apprehension of pre-judgment has been found.

9 Tobias JA held in Basemount at [21] - [22] that there was a reasonable apprehension of bias because the commissioner would have to decide the issues of fact in respect of the very same development application afresh. There was a denial of natural justice because the commissioner had imposed a condition concerning traffic egress without notice to the council or evidence or argument. This was said to give rise to pre-judgment of a high order. His Honour considered the case was similar but not identical to the facts in Preferred Projects (Buildings) Pty Ltd v Warringah Council (1999) 106 LGERA 144.

10 In Preferred Projects, Talbot J held that a commissioner was disqualified from a merits appeal in relation to a “reactive” development application following an earlier decision by him about a similar proposed development on the same site. These circumstances were held to give rise to an apprehension of bias because the commissioner had already expressed his views about aspects of the development which he would be required to reconsider afresh in the appeal concerning the modified development.

11 In Castle Constructions Tobias JA held at [85], accepting the appellant’s submissions at [68], that there was a reasonable apprehension of bias by the commissioner by a fair-minded lay observer due to the matters identified by the primary judge, namely the expression of the commissioner’s views “in trenchant and powerful terms” and that it appeared from the judgment that the commissioner had given his individual preferences priority over the provisions and intent of the local environmental plan (the LEP). The strong personal views expressed by the commissioner did not only flow from an erroneous construction of a clause in the LEP. There was more than an error of law which did not reflect upon his determination of the application of the merits. Tobias JA held further at [85], in a passage relied on by the Council, that the reasonable apprehension of pre-judgment if the case was remitted to the commissioner arose because he was required on the evidence before him to determine the merit issues in respect of which the appellant’s development application was required to be considered afresh.

12 I have held that the Senior Commissioner has made two errors of law. The errors concern the application of instruments under which the risk of flood impact is assessed. The errors I have found include applying the wrong test to the issue of assessment of flooding risk. That issue is a significant issue in the proceedings and a matter about which the Senior Commissioner had to form a view on the merits of the case in order to carry out his task. I held that the application of his own subjective test was not legally correct. While that is an expression of his own view about the approach to the assessment of risk that is part of the legal error I have found in the s 56A appeal.

13 The judgment is not framed in any language which suggests that the Senior Commissioner is bringing to bear his own views apart from the error of law I have found. The facts of this case are therefore unlike Castle Constructions where part of the finding of a reasonable apprehension of bias was based on the language of the commissioner’s judgment.

14 The matters which took the commissioner’s consideration beyond the “usual” fact finding and merit review in Basemount and Preferred Projects which gave rise to the finding that a reasonable apprehension of bias arose are absent from the circumstances of this case.

15 I agree with the submission of the Applicant that as the Senior Commissioner has applied the wrong legal test he has not yet determined the matter in issue. The reasonable apprehension of pre-judgment of the merit issue does not arise.

16 I do not consider on the facts and circumstances of this case that a fair-minded observer would have a reasonable apprehension of pre-judgment on the part of the Senior Commissioner if the matter were remitted to him. It follows that I do not consider an exclusionary order for remittal is appropriate in this case.

Costs

17 It is not disputed that the Council was successful in this s 56A appeal and should have its costs.

Orders

18 The Court makes the following final orders:

1. The appeal is upheld.

2. The matter is remitted to the Senior Commissioner for hearing in accordance with my judgment dated 21 August 2007.

3. The Applicant must pay the Respondent’s costs other than the remitter hearing on 24 August 2007.

4. Exhibits may be returned.