Preferred Projects (Buildings) Pty Ltd v Warringah Council - [1999] NSWLEC 283

Land and Environment Court

of New South Wales

CITATION:

Preferred Projects (Buildings) Pty Ltd v Warringah Council [1999] NSWLEC 283

PARTIES

APPLICANT:
Preferred Projects (Buildings) Pty Ltd

RESPONDENT:
Warringah Council

NUMBER:

10574 of 1999

CORAM:

Talbot J

KEY ISSUES:

Bias :- pre-judgment by Commissioner

LEGISLATION CITED:

DATES OF HEARING:

11/02/1999

EX TEMPORE JUDGMENT DATE:

11/02/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P McEwen SC
SOLICITORS:
Peter C Prior & Co
RESPONDENT:
Mr P Tomasetti (Barrister)
SOLICITORS:
Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter No. 10574 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 2 November 1999

Preferred Projects (Buildings) Pty Ltd
Applicant

v

Warringah Council
Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. HIS HONOUR: On 29 April 1999 Commissioner Watts in proceedings 10738 of 1998 determined an appeal by Preferred Projects (Buildings) Pty Limited, the applicant, against a determination by the respondent, Warringah Council, to refuse a development application.

2. The Commissioner decided that the application for development consent to erect a mixed development at No 33-37 Kentwell Road, Allambie be refused on the ground there was inadequate design of the ramp to the basement car park.

3. In the course of his reasons for judgment the Commissioner made reference to a proposal to reduce the height of the building to ameliorate the detrimental effect of the proposed development on amenity and streetscape, as being acceptable.

4. The applicant says that it has taken account of the Commissioner's observations made in the judgment. It has modified the proposal in some respects. It now seeks development consent for that modified development.

5. At the commencement of these second proceedings, again before Commissioner Watts, the council moved the Court for orders that the Commissioner disqualify himself from hearing the proceedings. After hearing argument this morning, he refused to do so.

6. The Commissioner has agreed that the motion be referred to a Judge for determination.

7. Neither party raises the question of jurisdiction to deal with the motion at this point. Either the Commissioner has referred a question of law for determination by a Judge, pursuant to s 36(5), or the council has appealed against the decision of the Commissioner not to disqualify himself, pursuant to s 56A. The applicant and council are content for the matter to be determined on either basis in order to avoid the consequence of continuing a five day hearing that ultimately may be found to be a waste of time and expense.

8. Although I share the same residual doubts and apprehension expressed by Stein J in Lach and Anor v Snowy River Shire Council No 10298 of 1996, in two judgments dated 29 October 1996, that the question of law really arises at this point of time in the proceedings, in the circumstances it is appropriate and expedient for me to decide whether the Commissioner should have disqualified himself. I will proceed to determine the matter having heard the whole of the argument by both parties.

9. The observations made by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 283
Decision Date: 11/02/1999

CaseChat Overview and Summary

Preferred Projects (Buildings) Pty Ltd sought development consent from Warringah Council to erect a mixed development at No 33-37 Kentwell Road, Allambie. The council refused the application and the applicant appealed. The appeal was heard by Commissioner Watts who also refused the application on the basis that there was inadequate design of the ramp to the basement car park. The applicant subsequently modified the proposal and sought a new development consent. The council moved for Commissioner Watts to disqualify himself on the basis of apprehended prejudgment. The Commissioner declined the motion and the matter was referred to the Land and Environment Court. The court was required to determine whether the Commissioner should have disqualified himself from hearing the matter due to an apprehension of prejudgment.

The court considered the principles of apprehended prejudgment, noting that the doctrine is an aspect of natural justice and procedural fairness. The court emphasised that a decision-maker must not only avoid prejudgment but also avoid giving the appearance of prejudgment to maintain public confidence in the integrity of the judicial system. The court noted that the issue of prejudgment depends on form rather than substance, and the impressions of a lay person who does not know the facts should be taken into account. The court found that the Commissioner had already made up his mind in respect of a number of matters and had expressed views about what might be acceptable, which would give rise to a reasonable apprehension of prejudgment.

The court held that the Commissioner should be disqualified from hearing the matter and directed that the matter be granted expedition. The court also reserved the question of costs.

Orders