Tom Simmat v Warringah Shire Council

[1988] NSWLEC 144

Land and Environment Court

of New South Wales

CITATION:	Tom Simmat v Warringah Shire Council [1988] NSWLEC 144
PARTIES:	APPLICANT Ton Simmat RESPONDENT Warringah Shire Council
FILE NUMBER(S):	20149 of 1988
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	29/06/1988, 22/08/1988
DATE OF JUDGMENT:	11/01/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: This is an appeal to the Court pursuant to the provisions of s.56A of the Land and Environment Court against a decision of an assessor published on 22 August 1988 upholding an appeal against the refusal of the Warringah Shire Council to approve a building application lodged with the Council on 6 October 1987. At the conclusion of submissions, I dismissed the appeal. I now publish my reasons.

The applicant sought building approval for the carrying out of building work at Cottage Point in the Shire of Warringah. Development consent was not required. The application was refused by the Council on the grounds set out in its letter dated 11 February 1988. In essence it asserted that the proposed building would be an overdevelopment of the site. The appeal came on before the assessor on 29 June 1988. The hearing lasted approximately three days. The assessor had a view. Submissions were heard on 22 August 1988 and at the conclusion of the submissions the assessor gave his decision. He upheld the appeal and made an order approving the erection of the dwelling house subject to certain conditions. On 12 October 1988 the Council appealed against the orders made by the assessor on the following grounds:

"(a) The assessor did not fairly and properly consider the submissions of the respondent.

(b) The assessor prejudged the matter.

(c) The assessor failed to consider relevant matters.

(d) The assessor failed to observe the principles of natural justice.

(e) The assessor failed to give proper reasons for his decision".

An appeal to the Court pursuant to the provisions of s.56A is limited to questions of law.

The Council furnished further particulars of the grounds of appeal. It alleged that the assessor had prejudged the matter before hearing submissions. It was alleged that the assessor admitted he had prejudged the matter and that, in any event, prejudgment must be inferred because the assessor published his decision and reasons therefor very shortly after submissions concluded. The denial of natural justice was said to have arisen by reason of prejudgment and the failure to disclose a closed mind. The particulars of the assessor's failure to give proper reasons for his decision were that he made no reference to the extensive and lengthy evidence called by both parties and he made no attempt to review and deal with the evidence.

Before the appeal was heard, I was informed by counsel on behalf of the appellant Council, that in order to dispose properly of the appeal before the Court, it was not necessary for me to have regard to any material other than the decision of the assessor published on 22 August 1988 and the submissions of both parties made to him. Although I raised with counsel on behalf of the Council the difficulties I had in determining some of the submissions made in the course of the appeal, counsel reiterated that there was no need for me to have regard to anything other than the above described material.

The assessor commenced his ex tempore judgment as follows:

"I have had ample time to think about this matter and I have heard evidence, I have had a view, and I have heard your submissions. The decision I have come to has not really varied since hearing those submissions. I have had ample time to think about it. I may be giving a decision that I did not think I would be giving in the matter. My decision is quite clear".

It is common ground that the assessor's statement that he might be giving a decision that he did not think he would be giving meant (and all parties understood it to mean) that although some people might have thought he would be reserving his decision, he was proposing not to do so.

After noting that he considered it extraordinary that development consent was not required for the erection of a building on the subject land in view of the fact that it was in the middle of the National Park, he then went on to consider matters raised in submissions and, in a three page document, published reasons for his decision. Those reasons are annexed to this judgment.

As I have said, it is Council's case that the assessor admitted he had prejudged the issue. It is also its case that because the hearing lasted for three days and the assessor was required to evaluate what Mr. Tamberlin in his submissions referred to as "technical" evidence, it necessarily followed that the assessor's decision must have been given without considering Council's submissions. In the course of hearing of the appeal before me, it was also submitted that the assessor's conduct would have given rise to an apprehension on the part of a reasonably minded observer that he had prejudged the issue whether or not that was the fact. It was submitted that for either reason the assessor's decision should be set aside.

As I have said above, when the appeal came on for hearing, I was informed by counsel for the Council that it was not necessary for me to read the transcript of evidence and that I need only read the submissions made to the assessor and the assessor's decision to understand and determine the issues raised in the appeal.

The Council has asked me to assume that the proceedings should be characterised as complicated. This is because, apparently, the hearing extended over three days, "technical" evidence was tendered and the Council had a strong view about it. As I have said, I am asked to determine this appeal upon a reading of the submissions made to the assessor and the assessor's reasons for decision. Upon that material, I am not persuaded the matter was particularly complicated. The major issue in the case before the assessor (as identified by Mr. Tamberlin QC when making his submissions to the assessor) was whether the building proposed would have the appearance of being too large and would, therefore, have an unacceptable impact on people using the waterways. The matter was assigned to an assessor having specialised building knowledge. I do not think appeals in the Class 1 and 2 jurisdiction of the Court are to be characterised as complicated merely because the hearing extends over three days.

Mr. Tamberlin's principal submission is that the statement, viz.

"The decision I have come to has not really varied since hearing those submissions, I have had ample time to think about it ... ".

demonstrates that prior to the hearing of submissions and at the conclusion of the evidence, the assessor had prejudged the matter. I note in passing that the assessor did not use the word "evidence" but the word "submissions". But I am prepared to assume that the assessor meant that prior to the hearing of submissions he was minded to uphold the appeal and grant building approval and that nothing was said by the Council in the course of its submissions to persuade him that he should not adopt that course. In my opinion, that does not demonstrate that the assessor had prejudged the matter or approached submissions with an infected mind. The submissions of the Council, in my respectful opinion, misunderstand the judicial process. It goes without saying that a judge must keep an open mind. But an open mind is not an empty mind. In the course of the hearing before me, Mr. Tamberlin QC conceded that there was nothing in the transcript of evidence or submission that indicated that the assessor had prejudged the ma

tter or was approaching the matter improperly. It was not suggested that the assessor did not fully understand the "technical" evidence. Mr. Tamberlin QC was unable to point to anything that had occurred in the course of the presentation of evidence or the making of submissions that indicated that the assessor was dealing with the matter otherwise than according to law. The difficulty with Mr. Tamberlin's argument became apparent when he submitted that if the assessor was of the opinion that the submissions that were being made to him did not change his preliminary view he thereupon became under an obligation to disqualify himself although his submission, in this regard, was somewhat ambiguous about the obligation imposed on a judicial officer if he had that opinion but kept it to himself. There is nothing in the material before me that leads me to have even the slightest suspicion that the assessor prejudged the issue. Contrary to the assertion contained in the Notice of Motion, the assessor did not admit he

had prejudged the matter. Accordingly, I reject the submission that because the assessor did not reserve his decision, he must have ignored the submissions that were put to him.

In the hearing of the appeal before me, Mr. Tamberlin QC submitted that there would have been an apprehension in the mind of a reasonably minded observer that the assessor had prejudged the issue. As I have said, there is nothing in the course of submissions which would raise that perception. If I understand the argument correctly, it is that a reasonably minded observer, having sat through the evidence and listened to the submissions would not have formed the impression that the assessor had prejudged the matter by reason of anything said or done by him in the course of receiving evidence or hearing submissions. However, it is submitted that such a perception would arise by reason of the assessor publishing his judgment shortly after the conclusion of the submissions and prefacing it with the observations I have referred to above. The circumstance, if it be the fact, that officers of the Warringah Shire Council entertained an opinion that the assessor had prejudged the issue falls far short of convincing me

either that the assessor prejudged the issue or that reasonably minded people might think he had prejudged it. It follows, therefore, that not only do I reject the submission that the assessor wilfully declined to listen to submissions with an open mind but that his conduct gave an appearance that that is what happened. I have not made reference to any of the many cases concerning judicial prejudgment because the circumstance relied on by Council in this case do not even approach the threshold of establishing actual or perceived impropriety.

In my opinion, there is no substance in the submission that he gave inadequate reasons for judgment. The assessor's decision has to be read in the context of the submissions made to him. Mr. Tamberlin QC has submitted that the failure of the assessor to set out in detail all the evidence tendered in the proceedings and the submissions made to him demonstrates that the reasons for judgment were deficient. I do not agree. In my opinion, an assessor gives adequate reasons for judgment when he gives reasons why he accepts or rejects a case put before him and the sufficiency of his reasons must be judged in the context of the litigation before him and by reference to the issues raised by the parties for determination. In the present case, the issue was relatively simple notwithstanding the importance attached to it by the Council. The issue was whether the proposed building would be an overdevelopment of the site. In my opinion, the assessor gave adequate reasons for the conclusions he reached or, at the very leas

t, I am not persuaded he did not do so.

It was also submitted that the decision of the assessor was tainted by his failure to take into account matters of relevance to the appeal. As I have said, I was asked to determine this matter without reference to the record of proceedings (other than the submissions and the decision) before the assessor. A question of law does not arise because the assessor did not accept the Council's case. In my opinion, it has not been demonstrated that the assessor erred in law by his failure to take into account, according to law, the material of relevance to the appeal. For the abovementioned reasons, the appeal should be dismissed and the Council to pay the costs of the respondent to the appeal.