Basemount Pty Ltd and Gaofind Pty Ltd v Baulkham Hills Shire Council

The Commissioner's error 4 In par 69 of her judgment, the Commissioner pointed out that, in response to concerns of local residents, she had requested that alternative access from Old Northern Road be investigated for 11 - 13 Garthowen. The applicants provided amended plans showing access from both Old Northern Road and Garthowen Crescent. The council objected to the amended plans being tendered and, following an adjournment, the applicant decided not to rely on the amended plans but to rely on the plans already in evidence (see judgment par 70). The Commissioner told the parties that she would determine the application on the basis of the plans submitted "without the alternative access" (T 11017/00 16/10/01 p 335 line 34). In reliance upon this determination, the council did not cross-examine the applicants' experts about the alternative access. 5 In par 74 of her judgment, the Commissioner, however, stated as follows: In my assessment while the expert evidence from both parties is in agreement that the traffic generated by the proposed development can be accommodated with ingress and egress to Garthowen Crescent only it would be short sighted not to include an additional egress to Old Northern Road from the development known as 11-13 given the residents concern and having regard to the fact that a condition could be imposed on Nos.11-13 with certainty as to the outcome given the information of the experts to the Court. 6 In granting development consent for 11 - 13 Garthowen, the Commissioner imposed a condition, being condition 79, in the following form: 79. An additional egress is to be provided to Old Northern Road with left turn only movements allowed, generally in accordance with Drawing 'A' attached to these conditions. This alteration must be incorporated in the plans prior to the issuing of the Construction Certificate.

The s 56A appeal 7 At the outset of the hearing, Mr Tomasetti, appearing for the council, informed the Court that, of six grounds of appeal contained in the notice of appeal, only ground 1 was pressed. That ground concerned the additional egress and stated as follows: The Commissioner's decision and determination were vitiated by material error of law in that she: 1. Denied the Respondent procedural fairness or natural justice when she decided to include an additional vehicular egress to Old Northern Road from the proposed development at 11-13 Garthowen Crescent without giving the Respondent an opportunity to: (a) call evidence; (b) cross-examine the Applicant's experts, and; (c) be heard as to whether such a change to the development application was appropriate in all the circumstances of the case and was in the public interest. 8 Mr McEwen, appearing for the applicants, conceded that the Commissioner had denied the council procedural fairness in making her decision and that this constituted a material error of law. 9 In these circumstances two issues arise for determination: (1) Does the error of law in the 11 - 13 Garthowen appeal affect the decision in the 9 Garthowen appeal? (2) Should one or both appeals be remitted to the Commissioner for determination, or should one or both appeals be remitted to another Commissioner or to a Judge of the Court?

The first issue - does the error of law affect both appeals? 10 Mr Tomasetti submitted that the error of law infected the determination of both appeals, and that, accordingly, both appeals should be remitted for re-determination. He based this submission on both the conduct of the hearing and the integral nature of the assessment which the Commissioner carried out. The matters to which he pointed to support this proposition were, in essence, as follows: a The conduct of the hearing:

Commissioner Murrell stated, in par 4 of her judgment, that the parties had agreed that the evidence in both proceedings should be considered in the assessment and determination of the two separate appeals. She pointed out that there were common exhibits and that the objectors had requested that their concerns be considered in both appeals. Commissioner Murrell conducted the hearing on this basis accordingly, although it appears that five of the 11 hearing days were confined to one appeal, and five hearing days confined to the other appeal, and on the remaining hearing day both were heard together. Nevertheless Commissioner Murrell noted that the resident objectors gave oral and written evidence common to both appeals - see par 58. She stated, in par 5 of her judgment, that "the development applications are worthy of approval" and, although she correctly made separate formal orders, she delivered one judgment. b The assessment generally: In par 23 of her judgment, the Commissioner noted the issues upon which the hearing focussed, and she did not distinguish between both appeals in relation to those issues. She expressly noted in par 63 that the issues were generally common to both appeals. Furthermore, she stated, also in par 63, that "… clearly the separate appeals cannot be considered in isolation …" . She proceeded with her assessment on this basis, noting, in par 68, that "[t]he proposals provide for an integrated redevelopment of nine lots…" . c Traffic impact:

The Commissioner expressly took into consideration "… the accumulative impact of the two proposed developments" (pars 72 - 77). d Visual impact:

Commissioner Murrell made it clear that, in considering visual impact, she was assessing both developments together, although she did consider separately some aspects of visual impact. Thus, she expressed a conclusion, in par 83, that "… the presentation of the proposed developments to Old Northern Road is satisfactory …" , and she stated, par 92, that she was satisfied with "… the visual separation of the buildings when viewed from Garthowen Crescent". She also referred to the developments jointly when summarising her conclusions about landscaping and boundary setbacks (par 100), and about bulk, scale and massing (par 103) . 11 In response, Mr McEwen emphasised the fact that the matter in respect of which the error of law occurred was the egress to Old Northern Road from 11 - 13 Garthowen. That matter related only to one of the two appeals. The assessment of 9 Garthowen did not involve such egress, and no condition requiring such egress was imposed on the development consent in respect of 9 Garthowen. 12 Nevertheless, having regard to the whole of the Commissioner's judgment, it is clear that her approach to the assessment of the proposed developments was for the most part to consider them as a whole and not in isolation. Furthermore, that was the manner in which, by agreement between the parties, the hearing was conducted. I have not overlooked the fact that there was no condition imposed on the development consents that required both proposals to be carried out jointly or prevented the carrying out of one without the other. However, although the egress related to one proposal only, it was considered by the Commissioner in the whole context. The purpose, of course, in remission of the proceedings by reason of the error of law is to redress the lack of procedural fairness, and to give the council the opportunity to call evidence and be heard on the issue of that egress. The consequence may be a determination that the egress should be provided for, or that it should not, but in either event, it will be necessary to re-assess its impact in the overall assessment, and in particular so far as concerns matters of traffic and visual aspect from the point of view of not merely one, but both developments viewed together and viewed separately. 13 Having regard to the way in which the hearing was conducted, to the Commissioner's approach to the assessment of the development applications, and the particular impact to which further assessment must be directed, I conclude that the error of law is not confined to the appeal concerning only 11 - 13 Garthowen, and it affected both appeals. Both appeals should, accordingly, be remitted for re-determination. The second issue - to whom should the proceedings be remitted? 14 The council's case was that the proceedings should not be remitted back to Commissioner Murrell, but should be remitted to another Commissioner or to a Judge of the Court. Mr Tomasetti based this claim on the principle enunciated by the High Court in Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294 as follows: That principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. 15 Mr Tomasetti submitted that a reasonable apprehension that the Commissioner will not give the council a fair hearing derives from the Commissioner's intervention in the hearing in questioning two of the council's witnesses, Mr McKenzie, a town planner, and Mr Lee, the council's manager strategic planning. In Mr Tomasetti's submission, by that questioning, the Commissioner descended into the arena and cross-examined the two witnesses, in a context where she ultimately failed to accord the council procedural fairness in the imposition of a condition requiring egress to Old Northern Road, and in a context where a recently gazetted amendment to the relevant local environmental plan contained provisions generally preventing egress of such nature. He acknowledged that there was no suggestion of actual bias or impropriety on the part of Commissioner Murrell, but that her tough, interruptive and critical tone revealed that she had serious doubts about the council's case. 16 In support of his submission, Mr Tomasetti referred the Court to many pages of the transcript of the hearing. I have read every one of those pages. However, they do not, in my judgment, establish the case which the council asserts. 17 First, the Commissioner did not descend into the arena by taking over the cross-examination of the witnesses in such a way that her intervention undermined the fairness of the hearing so as to render it, in law, no trial at all (cf Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397). She asked a considerable number of questions at various times of the two witnesses, but not, in seems to me, in a way that took over the conduct of the trial (see Burwood v Harvey at 399). It must not be forgotten that the trial was an appeal on the merits against the council's deemed refusal to grant development consent, and in such a case, the Commissioner constituted an appropriately qualified lay tribunal (see s 12(2) of the Land and Environment Court Act 1979 ("the Court Act") entitled, under s 38(2) of the Court Act, to inform herself on any matter in such manner as she thought appropriate and as the proper consideration of the matters before the Court permitted. At the highest, her questions disclosed her doubts about the evidence and her frustration at the many non-responsive answers given by each of the witnesses. But those questions did not reveal impermissible judicial intervention (cf Burwood v Harvey at 397). 18 Secondly, nothing in the Commissioner's conduct of the trial nor in her judgment indicates that she held a particular view about the credit of either of the two witnesses, or that she was so wedded to the idea of egress to Old Northern Road that she could not now bring an impartial mind to bear upon the assessment of its impact. Her error of law was not pre-judgment of the issue of traffic access, but her failure to accord procedural fairness to the council on that issue (cf Livesey v NSW Bar Association at p 300). 19 For these reasons, I consider that the council has not made out a case justifying a reasonable apprehension that the Commissioner might not bring an impartial and unprejudiced mind to the re-determination of the appeals. 20 Section 56A(2) of the Court Act provides as follows: 56A(2) On the hearing of an appeal under subsection (1), the Court shall- (a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or (b) make such other order in relation to the appeal as seems fit. 21 In accordance with s 56A(2)(a), normally proceedings will be remitted to the Commissioner for determination by that Commissioner in accordance with the decision of the Court on the appeal. The Court, is, however, empowered to make another order in relation to the appeal, and it is pursuant to that provision that the Court is now asked to remit the proceedings to another Commissioner or to a Judge of the Court. 22 The conventional approach in circumstances where an application of that kind is made is to leave the arrangements for the exercise of the Court's jurisdiction to the Chief Judge exercising the powers conferred on the Chief Judge under s 30 of the Court Act. Although recognising that some circumstances may require remitter to a differently constituted court, Kirby P, in Steedman and Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 at 576 stated the normal practice thus: Normally this Court, when remitting a matter to a Division of the Supreme Court or another court or tribunal subject to its authority, will not interfere with the assignment of the hearing to a particular person. That is left to the internal arrangements of the Division, court or tribunal concerned. That practice is normally followed in this Court - see, for example, Memel Holdings Pty Ltd v Pittwater Council (2000) 110 LGERA 217 at 222 and Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 (Lloyd J, unreported). 23 It is not to be thought that the fortuitous circumstance that the Chief Judge of the Court has been the presiding Judge on this 56A appeal should result in any particular order as to which Judge or Commissioner should preside at a re-determination of the appeals. I therefore refrain from remitting the appeals to Commissioner Murrell at this stage. I will exercise the powers conferred upon me as Chief Judge under s 30 at the appropriate time, taking into account relevant matters such as the proper and efficient disposal of the Court's time and taking into account my finding in this appeal that the proceedings should not necessarily be remitted to another Commissioner or Judge of the Court.

Costs 24 The council seeks its costs of the appeal, whilst the applicants submit that no order for costs should be made. 25 In a s 56A appeal, costs normally follow the event. However, there are two matters which lead me to the view that no order for costs should be made. First, the applicants conceded the commission of an error of law (although they did so at a late stage). Secondly, the council has not been entirely successful in its case - it has succeeded in the first point, but not on the second point.

Orders 26 I make the following orders: (1) The appeal is allowed; (2) The Commissioner's determination in both proceedings 11017 of 2000 and 11137 of 2000 is set aside; (3) Both proceedings are to be remitted to the Court for re-hearing and re-determination conformably with these reasons for judgment; (4) I make no order as to costs. (5) The exhibits except exhibit "C" may be returned.

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