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Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 Attorney General (NSW) v Quin (1990) 170 CLR 1 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 Blackshaw v Campbell [2019] ACAT 41 Canberra Services Club Ltd v Minister for Planning and Land Management [2022] ACTSC 5 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 CD v Central Gippsland Health Service [2022] VSC 462 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165; 286 FLR 355 Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267 Disorganized Developments Pty Ltd v State of South Australia [2023] HCA 22; 97 ALJR 575 Dornan v Riordan (1990) 24 FCR 564 East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Ex parte Lam [2003] HCA 6; 214 CLR 1 Forman and York v ACT Planning and Land Authority and Evans and Evans [2013] ACTSC 167; 279 FLR 54 FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 Hannay v Brisbane City Council [1999] 2 Qd R 54 at 57. Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 Johns v Australian Securities Commission (1993) 178 CLR 408 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kioa v West (1985) 159 CLR 550 Manny v Nissen (No 2) [2023] ACTCA 20 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504 McMillan v Taylor [2023] NSWCA 183 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; 159 LGERA 361 MZAPC v Minister for Immigration [2021] HCA 17; 273 CLR 506, Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 O'Sullivan v Medical Tribunal of New South Wales [2009] NSWCA 374 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 Quanton Pty Ltd v ACT Planning and Land Authority [2021] ACTSC 139 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Scentre Management Limited v ACT Planning and Land Authority [2021] ACTSC 171; 16 ACTLR 266 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 St Landco No 1 Pty Ltd v Commissioner for ACT Revenue; Empire Global Developments No. 3 Pty Ltd v Commissioner for ACT Revenue [2022] ACTSC 157; 18 ACTLR 105 State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480

Parties: Maryanne Campbell (Plaintiff) Australian Capital Territory Planning and Land Authority (First Defendant) Adam Blackshaw (Second Defendant) Representation: Counsel A Muller (Plaintiff) M Hassall (First Defendant) Solicitors Gabbedy Milson Lee (Plaintiff) ACT Government Solicitor (First Defendant) File Number: SC 111 of 2022 McWILLIAM J:

1. This is an application for judicial review of a planning decision made on 14 December 2021 (Decision) by a delegate of the ACT Planning and Land Authority (Authority). The Decision was to approve Development Application No. 2021139361 (DA), which had sought alterations and additions to a property located in Lyneham (Property).

The parties

2. The plaintiff owns land that directly adjoins the Property and opposes the development that is the subject of the DA. At the time of the Decision, the duplex on the plaintiff’s land was leased and occupied by tenants.

3. The owner of the Property is the second defendant. He was joined to the proceeding by consent of the parties and court orders made on 4 November 2022. He has filed a notice of intention to respond which indicates a submitting appearance.

4. The Authority is the relevant decision-making body, established under s 10 of the Planning and Development Act 2007 (ACT) (Planning Act), which has subsequently been repealed and replaced by the Planning Act 2023 (ACT) (2023 Planning Act), under which s 16 is the corresponding provision. Notwithstanding its repeal, the Planning Act continues to apply via transitional provisions in the 2023 Planning Act: s 613(2).

5. The Authority is the only active defendant in the proceeding. Due to the submitting appearance filed by the owner, the Authority expressly took on the role of contradictor and provided more fulsome submissions than might otherwise have been the case in deference to the Hardiman principle (as to which see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at [54]), which was an appropriate role to take in order to assist the court in the circumstances of this case notwithstanding the fact that these were judicial review proceedings: cf Quanton Pty Ltd v ACT Planning and Land Authority [2021] ACTSC 139 at [13]-[15]. Without the Authority’s assistance, the Court would have likely required an amicus curiae to have been appointed in order to address the arguments.

The nature of the development giving rise to the proceeding

6. The DA sought approval for alterations to an existing two-storey duplex residence on the Property, including demolition of an existing front porch, alterations and additions including an upper floor balcony, lower-level alterations, landscaping and associated works. The upper balcony was to be constructed on the northern edge of the house but set back from the boundary of the plaintiff’s property by three metres.

7. The Property has neighbouring residential blocks on its north, south and west edges, with the block directly to the north being the property of the plaintiff.

The application before the Court

8. By Second Further Amended Originating application filed 9 November 2022 (Application), the plaintiff seeks the following orders: (a) An order under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) quashing or setting aside the Decision of the Authority made under the Planning Act that the DA be approved with conditions. (b) In the alternative, an order in the nature of certiorari quashing the Decision of the Authority. (c) An order that the DA be resubmitted for consideration by a different delegate of the Authority, taking into account all reasonable objections to the proposed development. (d) Costs.

Grounds for judicial review

9. The Application raises the following grounds for judicial review: (a) A breach of the rules of natural justice in relation to the conduct engaged in for the purpose of the making the Decision, and in relation to the making of the Decision (Ground 1). (b) Failure to take into account relevant considerations in making the Decision (Ground 2). (c) Error of law (Ground 3).

10. In respect of Ground 1, the plaintiff argued that there were three separate problems with the decision-making process which resulted in a denial of procedural fairness to her: (a) The first was that the Delegate used information about the plaintiff received from the proponent of the DA (the architect) and the litigation history between the plaintiff and her neighbour which was extraneous to the DA, without giving the plaintiff the opportunity to make further submissions in relation to the information obtained (Ground 1a). (b) The second was that the Delegate undertook his own research and otherwise obtained the information in an irregular way (Ground 1b). (c) The third was that the Delegate sought out and had regard to the information, and that it was irrelevant and prejudicial (whatever weight he gave the information), which gave rise to an apprehension of bias (Ground 1c).

11. Although questions of bias or apprehended bias should ordinarily be considered first (see Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [2] and [117]), as there are a number of complaints about different aspects of procedural fairness raised here, it is convenient to address them in the order above, because the first two arguments overlap with, and provide context for, the circumstances in which the apprehended bias complaint arises.

Standing

12. The parties did not put in issue that the plaintiff had standing to challenge the Decision under the ADJR Act, notwithstanding that she was not the owner of the Property the subject of the DA.

13. Section 5(1) of the ADJR Act provides that “an eligible person may apply to the Supreme Court for an order of review in relation to a decision to which this Act applies”. It then lists grounds that, relevant to the present application, include a breach of the rules of natural justice and error of law.

14. An eligible person is defined in the Dictionary to the ADJR Act and it includes the plaintiff as “an individual”.

15. However, s 4A also operates on the plaintiff’s right to bring an application under the ADJR Act. It imposes limits on an eligible person making an application, by reference to whether the decision is a category A decision or a category B decision.

16. I confess to some difficulty in ascertaining whether the Decision under challenge was in either category. The category definitions are set out in s 4A(5) of the ADJR Act as follows (emphasis added): 4A Who may make an application under this Act … (5) In this section: category A decision means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under— (a) the Heritage Act 2004; or (b) the Planning and Development Act 2007, other than a decision under that Act mentioned in schedule 1. category B decision means a decision to which this Act applies, other than a category A decision.

17. The Decision here was made under the Planning Act. However, it was a decision to approve development subject to conditions under s 162. That kind of decision is one that is “mentioned” in Schedule 1 and therefore, it is not a category A decision (contrary to the submissions made by the Authority).

18. The difficulty arises because, although an approval decision under s 162 of the Planning Act is mentioned in the Schedule of the ADJR Act, it is then exempted from review by the ACT Civil and Administrative Tribunal (Tribunal), by the operation of Schedule 3 of the now-repealed Planning and Development Regulation 2008 (Regulation). Importantly though, it is not exempted or excluded from review by the Supreme Court.

19. In my view, the above means that the Decision remains one that is “mentioned” in Schedule 1 to the Planning Act, excluding it from the category A definition. Proceeding on the basis that the Decision was a “category B decision”, there is a further barrier to the plaintiff’s application. Section 4A(3) of the ADJR Act provides: (3) If the application relates to a category B decision, or conduct engaged in for the purpose of making the decision, the person may make the application unless— (a) an enactment does not allow the person to make the application; or (b) each of the following apply: (ii) the interests of the eligible person are not adversely affected by the decision or conduct; (iii) the application fails to raise a significant issue of public importance.

20. The Authority’s submission that the Decision was a category A decision also appears to be contrary to its own notice publishing the Decision in December 2021 (Notice). Acknowledging that what is contained in the Notice is not itself decisive, the Notice expressly refers to the requirements of s 4A(3) of the ADJR Act (set out above) in dealing with rights of review. Those additional requirements only apply to category B decisions. The relevant part of the Notice states (emphasis added): Review by the ACT Supreme Court 1. The Authority’s decision may also be subject to judicial review by the ACT Supreme Court under the Administrative Decisions (Judicial Review) Act 1989 (ADJR Act). 2. Under the ADJR Act, an eligible person may make an application for review of a decision. 3. An eligible person must demonstrate that their interests are adversely affected by the decision and that the application raises a significant issue of public importance. …

21. Because the parties proceeded on the basis that the application could be brought under the ADJR Act, no consideration arises as to whether the application failed to raise a “significant issue of public importance”. In those circumstances, it is not appropriate to express any view about whether the relief sought under the ADJR Act was available, other than to note that these reasons have assumed but not decided that the requirements of s 4A(3) of the ADJR Act were met.

22. Nevertheless, because of that assumption, I will briefly record that the alternative relief sought by the plaintiff, being an order in the nature of certiorari under the supervisory jurisdiction of the Supreme Court at common law, was an available source of power: s 34B of the Supreme Court Act 1933 (ACT) (Supreme Court Act).

23. In that regard, the plaintiff was a neighbouring resident of the proposed development of the Property the subject of the Decision and had made a representation to the Authority as part of the statutory process for determining the DA, which required the representation to be taken into account (as expanded upon below). The plaintiff therefore had an interest in the decision-making process being according to law. That is, her interests were affected by “the conduct engaged in for the purpose of making the decision”. That gives the plaintiff sufficient standing to bring the application for relief.

The Court’s task on judicial review

24. For the benefit primarily of those involved in the proceeding who may be unfamiliar with the judicial review function of the Court, on either the application of the ADJR Act or the supervisory jurisdiction of the Court, the Court’s task is to review the Decision for legal error but not to descend into the merits of the Decision itself. The Court examines the process by which the Decision came to be made, such as whether the decision-maker complied with the applicable statute and correctly applied the law. It does not consider the underlying merit of the decision, which remains a matter for the repository of the power alone to decide: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35–36. In this case, that remains the Authority.

25. That fundamental aspect of judicial review is why the concern of the Court reviewing a complaint about procedural fairness is with procedures rather than with outcomes, and processes rather than conclusions: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25]. That is why the reasons below scrutinise the processes the Delegate followed.

Extension of time in which to bring the proceeding

26. The originating application in this Court was filed on 19 April 2022, more than three months after the Decision was made. By an application in proceeding filed 25 May 2022, the plaintiff has sought to extend the time period in which to bring the application.

27. Section 10 of the ADJR Act deals with the time limit for commencing proceedings. Without setting out the entirety of the section, which is somewhat convoluted, an applicant generally has 28 days from the date that a written decision is given to them in which to seek review. If a written statement of reasons accompanies the decision, it is 28 days after the written reasons are given to the applicant.

28. Section 151C of the Legislation Act 2001 (ACT) (Legislation Act) permits the Court to extend the time in which an application for an order of review under the ADJR Act may be made. I discussed the relevant considerations in that regard in St Landco No 1 Pty Ltd v Commissioner for ACT Revenue; Empire Global Developments No. 3 Pty Ltd v Commissioner for ACT Revenue [2022] ACTSC 157; 18 ACTLR 105 at [38] and [44]-[47]. It suffices to set out what was said at [46]- [47]: 46. Determining whether to extend the time to commence proceedings involves considering what is necessary to do justice between the parties, the general principles being established by High Court authorities such as Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 and Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541. 47. Relevant factors include but are not limited to the length of the delay, the explanation for the delay, the merit of the proceeding, and any prejudice to the parties occasioned by the delay. An example of the application of these considerations is to be found in Martin at [153]-[160].

29. On the alternative claim for relief brought under s 34B of the Supreme Court Act, rule 3557 of the Court Procedures Rules 2006 (Rules) applies, in that the plaintiff has 60 days “after the day when the grounds for the grant of the relief sought first arose” in which to commence proceedings, and the Court may extend that time only in “special circumstances”: r 3557(4) of the Rules. That expression means that “the plaintiff must establish that the circumstances were sufficiently out of the ordinary to warrant a departure from the default rule”: Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267 at [48]-[49]. Although that case addressed the phrase in the context of r 1619, where the same phrase is used in r 3557, consistency in the interpretation of the Rules would militate against any different interpretation.

30. Any delay was short and readily explainable by two things. First was the fact that the plaintiff initially took steps to challenge the Decision in the Tribunal by lodging an application on 16 December 2021, before accepting (after communications from the Authority’s legal representatives) that the Tribunal did not have jurisdiction as the decision was exempt from review. The exemption arose through applying a combination of planning provisions, namely sch 1, item 4, to the Planning Act and ss 5, 35 and sch 3, pt 3.2, item 3 to the Regulation which created an exemption for decisions under s 162 of the Planning Act where the development will not result in more than one dwelling being on the block.

31. Second, although there were reasons provided at the time of the Decision, the plaintiff requested a detailed statement of reasons for the Decision, which is permissible pursuant to s 13 of the ADJR Act. An email was then provided by the Delegate of the Authority on 18 March 2022. A Supplementary Statement of Reasons was also prepared and provided to the plaintiff on 10 June 2022, after the originating application in this Court had been filed.

32. Given the above reasons for the relatively short delay in commencement and the lack of prejudice to the Authority, rather than debate what constituted the relevant day for time to commence, the Authority took a pragmatic approach and did not oppose the grant of leave to extend the time in which to commence proceedings. The Authority’s position carries significance, whether the extension of time is being considered by reference to the time limit specified by the ADJR Act (with the consequent operation of the extension of time provision under the Legislation Act) or the exceptional circumstances considerations applying under r 3557 of the Rules. Taking into account the matters to which I have referred, on either pathway, leave to extend the time will be granted. Ground 1(a) – Was the lack of opportunity to comment a denial of procedural fairness?

33. I will deal first with the legislative scheme, as it has been described as the starting point of any consideration by Brennan J in Kioa v West (1985) 159 CLR 550 at 614-615 (emphasis added): … To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. ... the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred. …

34. Then consideration will be given to what the Delegate did in making the Decision under that scheme, and whether the Delegate’s conduct amounted to a denial of procedural fairness. Ultimately, I have concluded in relation to Ground 1(a) that there was no failure to afford procedural fairness to the plaintiff, because her right to be heard under the Planning Act was limited to a right to make a representation and for that representation to be considered by the Delegate. There was no statutory right to be provided with responses or other submissions made by other stakeholders in order that the plaintiff (or any other representor) have a further opportunity to comment.

The statutory process under which the Decision was made

35. The DA itself was assessed under Part 7.2 of the Planning Act, titled “Assessment tracks for development applications”. This process has now been replaced under the 2023 Planning Act, but at the relevant time, s 113 of the Planning Act provided: 113 Relationship between development proposals and development applications (1) A person who has a development proposal may apply to the planning and land authority for approval to undertake the development proposed. (2) The determination of which assessment track applies to a development proposal is made by reference to circumstances when the application is made. (3) Subsection (2) does not apply if, after the application is made— (a) the Minister makes a declaration under section 124 (Minister may declare impact track applicable) in relation to the development proposal; or (b) the Public Health Act Minister makes a declaration for section 125 (Declaration by Public Health Act Minister affects assessment track) in relation to the application. (4) If an assessment track applies to a development proposal, the proposal is in that assessment track and that track must be followed in assessing the development application for the proposal. (5) Subsection (4) is subject to section 123 (c), (d) and (e) (Impact track applicability).

36. Under s 54, depending on how the land upon which the proposed development is to be carried out is zoned, a development table applied, which outlined the applicable code and assessment track.

37. Under s 55, the “code” prescribed the rules and criteria that apply to a particular development proposal. An “assessment track” outlined the procedure that must be followed in assessing a given development proposed. Section 112 provided for three assessment tracks: the code track, merit track and impact track, stating that the merit track was “for development proposals that can be assessed using the rules and criteria in the code that applies to the proposals”.

38. Here, the DA was assessed pursuant to the merit track, following the decision-making process set out in Division 7.2.3 of the Planning Act. Within it, s 120 relevantly provided (emphasis added): 120 Merit track—considerations when deciding development approval In deciding a development application for a development proposal in the merit track, the decision-maker must consider the following: (a) the objectives for the zone in which the development is proposed to take place; (b) the suitability of the land where the development is proposed to take place for a development of the kind proposed; (c) if an environmental significance opinion is in force for the development proposal—the environmental significance opinion; Note Environmental significance opinion—see s 138AA. Environmental significance opinions expire 18 months after they are notified (see s 138AD). (d) each representation received by the authority in relation to the application that has not been withdrawn; (e) if the design review panel provided the proponent with design advice about the development proposal— (i) the design advice; and (ii) the proponent’s response to the design advice; (f) if an entity gave advice on the application in accordance with section 149 (Requirement to give advice in relation to development applications)—the entity’s advice; Note Advice on an application is given in accordance with section 149 if the advice is given by an entity not later than 15 working days (or shorter prescribed period) after the day the application is given to the entity. If the entity gives no response, the entity is taken to have given advice that supported the application (see s 150). (g) if the proposed development relates to land that is public land—the public land management plan for the land; (h) the probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts.

39. Digressing for a moment from explaining the relevant aspects of the scheme, a matter that arises under Ground 1(b) below is the proper construction of s 120. The issue is whether it should be construed to read that the decision-maker must “only” consider the matters listed in the section. Both the plaintiff and the Authority submitted that the section was an exhaustive list of considerations; that is, the language that a delegate “must” consider the items listed meant they were not permitted to consider anything not listed there.

40. At the hearing I was of the view that I would adopt the parties’ joint position, but having reflected on the point, I do not accept that the section should be so interpreted. The text does not include such a limit, the context of the statute as a whole does not suggest that it should be interpreted in that way, and the purpose of section is not furthered by such a construction. For example, the section does not require that the decision-maker consider the applicable codes to the site but that is plainly something a decision-maker will consider as that is the means by which compliance with the Territory Plan is implemented. Section 120 is not exhaustive of the matters a decision-maker may consider; it is simply a list of certain matters a decision-maker must consider.

41. In terms of statutory context, a similar issue arose in Canberra Services Club Ltd v Minister for Planning and Land Management [2022] ACTSC 5 (a case to which the plaintiff referred during oral argument), in relation to s 261 of the Planning Act at [55]. Section 261 is analogous in structure to s 120, in that it lists a number of matters that “must” be considered by the relevant decisionmaker. At [55], I said that s 261 is not expressly or impliedly an exhaustive list, and the relevant decisionmaker may consider other matters. No reason was propounded in the present case to cause me to revisit that view that this is how such sections in the Planning Act are to be read.

42. Further (limited) support for that view is to be found in Concerned Citizens of Canberra v Chief Planning Executive (Planning and Land Authority) [2014] ACTSC 165; 286 FLR 355 where Mossop M (as his Honour then was) said the following at [177] (emphasis added): 177. ...While the [Planning] Act clearly does impose significant, detailed and burdensome obligations upon proponents, the ultimate question is whether or not the Authority is satisfied that the proposal is consistent with the Territory Plan and should be approved: ss 120, 162. Leaving aside the vexed issue whether compliance with the Territory Plan is a jurisdictional fact or a matter for the opinion of the Authority, whether or not the provisions of the Territory Plan are met or considered to be met will inevitably involve the Authority using its own knowledge and expertise to assess the proposal. The [Planning] Act expressly contemplates the need for advice from other specialist agencies: ss 148-151. Nothing in the [Planning] Act denies the entitlement of the Authority to take into account matters arising from its own assessment of the proposal or information provided by other agencies based on their assessment of the proposal. In those circumstances, in my view, it cannot be said that the Authority is disabled from having regard to material outside a development application when assessing compliance with the Territory Plan and deciding whether or not to approve it.

43. It is important to acknowledge that his Honour was not there expressly considering the words of s 120 of the Planning Act. The above comment was made in response to an argument that there is an onus on a proponent to demonstrate compliance with the Territory Plan. However, his Honour rejected that contention for reasons that I consider to have some application in the context of the statutory task with which s 120 is concerned. The overarching requirement for a Delegate in the assessment of a development proposal is to be satisfied that the development is consistent with the Territory Plan: s 50 of the Planning Act. To consider only the information listed in s 120 (and in the present circumstances, that directly contained within the single representation made) may “disable” the Authority from having regard to all the material necessary to assess compliance with the Territory Plan. I do not consider such a construction to further the purpose of the Planning Act as a whole, notwithstanding that it was the position of both parties before the Court on this application.

44. Returning then to the remainder of the scheme for approvals on the merit track, the Planning Act provided for a process of referrals to various authorities of development applications (div 7.3.3), and public notification of development applications (div 7.3.4).

45. Importantly, there was a right to make representations. Section 156 of the Planning Act provided: 156 Representations about development applications (1) Anyone may make a written representation about a development application that has been publicly notified under this Act. Note Only developments in the merit track and impact track are required to be publicly notified (see s 121 and s 130). Also, the planning and land authority must re-notify some amended development applications (see s 146). (2) A representation about a development application must be made during the public notification period for the application. Note 1 Public notification period for a development application—see s 157. Note 2 For a concurrent development application, a representation about the development application or a concurrent document must be made in the concurrent consultation period (see s 147AC (2)). (3) The planning and land authority may give public notice to extend the public notification period. Note 1 Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). Note 2 The planning and land authority may extend the public notification period after it has ended (see Legislation Act, s 151C). (4) If the planning and land authority extends the public notification period under subsection (3), the authority must give the applicant for the development approval written notice of the extension. (5) A person who makes a representation about a development application may, in writing, withdraw the representation at any time before the application is decided. (6) To remove any doubt, a representation about a development application— (a) may relate to how the development proposed in the application meets, or does not meet, any finding or recommendation of the EIS for the development; and (b) if the development application is accompanied by a completed EIS—must not relate to the adequacy of the EIS. Note Representations about a draft EIS may be made under s 219.

46. As the emphasised words in s 120(d) of the Planning Act made clear, any such representation must then be considered by the Authority. However, although representations were to be kept as part of the record for any particular development application on a public register (s 28(1)(a)(vii) of the Planning Act), there was no statutory obligation upon the Authority to provide the submissions, and any responses made to them, to anyone who had made a representation before the Authority was entitled to decide the relevant development application.

47. In that regard, as already noted, the Decision itself was made under s 162 of the Planning Act, which gave the authority the power to either approve the DA, approve it subject to conditions, or refuse the application.

48. At that point, notice of approval of the application must be given to anyone who made a representation, among others: s 170(1)(d).

49. Section 170(3) deals with the provision of reasons (relevant to Ground 3 of the application) as follows: 170 Notice of approval of application (3) A notice to an applicant under subsection (1) (a) or another person under subsection (1) (d) must— (a) Set out the decision and the reasons for the approval; and (b) if the approval is subject to conditions—set out the conditions; and ...

50. Also relevant to the discussion that follows in relation to Ground 1 and procedural fairness is s 122(1)(b) of the Planning Act, which created a strict timeframe for decisions. Of significance to the present facts, it provided that where no representation is made, the proposal must be decided not later than 30 days after the day the application was made to the Authority. If a representation was made, the time for deciding a development application on the merit track was within 45 days after the day the application was made to the Authority.

51. From the above, it can be seen that the applicable statute provided: (a) a right for a neighbour to be notified of the development application, (b) a right to make a representation in the form of a written document, and (c) a right to be notified of the decision in relation to the development application, when it was made.

52. Once a representation was received by the Authority, the statute did not provide the person making the representation with any further right to be heard or to participate in the process, such as by way of responding to other submissions made or information provided, or attending an oral hearing.

The referral and notification process as it applied to the DA

53. As an adjoining neighbour, the plaintiff was required to be given notice of the DA, and this was done on 11 November 2023.

54. The DA was also referred for approval to entities including Icon Water, EvoEnergy and Transport Canberra and City Services (required by r 33 of the Residential Zones Development Code). Public notification of the DA occurred between 15 and 29 November 2021 as required by div 7.3.4 of the Planning Act. There is no complaint about any of these procedural steps.

The making of the Representation

55. In response to the public notification, the plaintiff made a representation dated 29 November 2021 (Representation). It set out a number of concerns the plaintiff had with the proposed development, summarised as follows: (a) Privacy concerns, as the proposed balcony faced the plaintiff’s property and potentially provided vision into the plaintiff’s upstairs bathroom and her back yard; and (b) A concern that excavation could worsen alleged plumbing/drainage issues, with reference to flooding events, an alleged “illegal tie” present in a stormwater system, and alleged prior damage to a stormwater system. (c) A somewhat veiled concern that the proposed development may impact upon the plaintiff’s own intended development application for an extension of her duplex to provide a garage and upstairs main bedroom and ensuite, with a long balcony at the rear of the existing building.

56. The Representation made reference to a “9 year court case” in the Tribunal, concerning “9 flourishing trees” that were removed from the boundary between the plaintiff’s and second defendant’s properties. The following are extracts from the Representation: My representation and my cause for concern is the excavation in this area and the equipment could once again disturb an area that we believe has never been addressed despite many representations to ACAT and many excellent professional opinions that were in effect, dismissed. The auger for digging the footing for the concrete post on a single steel post as mentioned in the development application could cause issues. … Also given the obvious fact that the [duplexes] have tiny yards and the tenants utilise this area because of …terrible road noise. They need their privacy… The 9 strong trees protected my property from wind and heat and my privacy as a woman living alone when they existed, so further intrusion into that area is not reasonable. Also the back balcony appears not to have privacy screens and looks into my backyard. Given the nature of the past issues, it is problematic for privacy and quiet enjoyment of the property. The Delegate’s assessment

57. The Delegate completed a form entitled “DA ASSESSMENT – Merit Track” (Assessment Form) which was in evidence. This appears to be a standard form used contemporaneously by delegates of the Authority in their process of stepping through all the requirements in the decision-making process. The Assessment Form included the names of three delegates who completed different stages. It included a section entitled “STAGE 3 – ISSUES CONSIDERATION (REPRESENTATIONS)”. There, the Assessment Form noted that one representation was received, and summarised the Representation as follows: Against the Development Proposal because of previous unresolved issues with an illegal tie still causing flooding to my property. Box drains in the driveway connected to the tie. Privacy issues.

58. As only one representation was received, it may readily be inferred that this references the plaintiff’s Representation. Under the heading “Representation comment – Territory Plan response”, the Delegate recorded: Noted. A previous ACAT case was resolved – trees were removed in relation to fixing damage to drains/pipes. Other mentioned issues not relevant to this assessment. The DA has been assessed against the relevant Territory Plan Development codes and is consistent with relevant rules and criteria.

59. On 10 December 2022, the Delegate emailed Mr Brett Lowe, the architect for the second defendant and the proponent of the DA, querying whether he was considering lodging a s 144 submission in response to the Representation.

60. Section 144 of the Planning Act allows an applicant to request that the Authority amend a development application. It is apparent that this query was made to see whether the proponent intended to address the privacy and drainage issues raised by the Representation through any amendment. The architect replied by email as follows (grammar and spelling as per original): My clients, the owners of block 15 section 26 Lyneham, were considering to submit an amendment to the current DA 202139361 so as to avoid unwanted stress. They have decided, however, to not make a change because the DA complies with the setbacks rules and the privacy screen is 100mm higher than required and extend 600mm beyond the balustrade at the front and back to stop overlooking. They also don't want to be viewed by the neighbour. Background in brief: Maryanne Campbell's representation is another act of nuisance in a long running dispute between neighbours. Ms Campbell took my clients to the full bench of the ACT supreme court because she did not want to trim trees and replace the fence between them. ACT Supreme court upheld the decision by ACAT and ordered Ms Campbell to pay all court costs, tree-removal costs and fence costs.

61. This communication from the architect was not provided to the plaintiff.

The Decision

62. The Decision was made four days later, on 14 December 2021. Under Part A, the Delegate approved the DA subject to conditions. The conditions included (but were not limited to): (a) Provision of a minimum clearance of 2.5 m (height and width) for the stormwater easement, and (b) A privacy screen for the balcony along its northern edge of a minimum height of 1.8 metres.

63. The approved plans for the proposed balcony included a privacy screen of 1.8 metres height and were of a length that overhung the ends of the northern edge by 60 centimetres on either side, thus exceeding the condition of approval.

The reasons for Decision

64. The reasons for the Decision were contained in Part B of the same document. They are set out in full below, along with the relevant section of Part C which dealt with public notification (emphasis added): PART B – REASONS FOR THE DECISION The application was approved because based on the documentation and in the form modified by the imposed conditions it was considered to meet the relevant rules and criteria of the Territory Plan and section 120 of the Planning and Development Act 2007. The objectives of the RZ1 zone have been considered. In general, the assessment found the development was not inconsistent with the zone objectives. The main issues identified during the assessment were: • The development meeting the Territory Plan requirements; • Entity advice; • Issue raised in representations, the primary issue being: o Impacts to privacy for neighbouring block The proposed upper floor balcony was assessed against the relevant requirements of the Territory Plan and was considered to comply with Rule 11 of the Single Dwelling Housing Development Code. Conditions have been imposed in regards the issues identified during assessment to ensure the development satisfies the Territory Plan, addresses assessment issues including relevant entity advice and generally follows standard process and practices. EVIDENCE The following evidence formed part of the assessment of this application:

Development Application: 202139361 Territory Plan Zones: RZ1: Suburban Zone Development Codes: Residential Zones Development Code & Single Dwelling Housing Development Code Precinct Code: Lyneham Precinct Map and Code Crown Lease: Volume 1541 and Folio 99 Legislative requirements: the Planning and Development Act 2007 in particular sections 119 and 120 Representations and Entity advice: As addressed in PART C of this Decision PART A and PART C provide further details and considerations informing the reasons for the decision.

PART C – PUBLIC NOTIFICATION AND ENTITY ADVICE PUBLIC NOTIFICATION Pursuant to Division 7.3.4 of the Act, the application was publicly notified from 15 November 2021 to 29 November 2021. One written representation was received during public notification period. The issues raised in the representations were considered in the assessment and making of the decision for this development application. Please refer to 'Reasons for the Decision' in PART B for further clarification. ...

65. The emphasised paragraph under the third dot point is part of the plaintiff’s complaint under Ground 3, but attention is drawn to it now for convenience.

Additional reasons provided on 18 March 2022

66. The plaintiff requested a statement of reasons on 1 February 2022. The email sent to the plaintiff on 18 March 2022 in response to her request for reasons was brief, stating as follows: The application was approved because it was considered to meet relevant planning legislation. Publicly available information relating to reasons for the decision are provided in Part B of the Notice of Decision document. Supplementary Reasons

67. Once proceedings were commenced, a considerably more expansive document entitled “Supplementary Reasons” was provided on 10 June 2022. It is set out below as it is central to the grounds argued by the plaintiff (grammar and spelling as per the original, attachments omitted): 1. I Nicholas Lane hold the position of Development Assessment Officer within the Environment Planning and Sustainable Development Directorate and am a delegate of the ACT planning and land authority (Authority). 2. I attach a copy of the Authority's assessment record for Development Application (DA) 202139361, Block 15 Section 26 Lyneham proposing dwelling additions and alterations (Attachment A). I was the decision maker and author of the Notice of Decision document for the decision under review in these proceedings. I provide this supplementary statement of reasons to be read in conjunction with the Notice of Decision (Attachment B). 3. The Authority assesses DAs in a staged process. Stages 1 to 4 undertake an assessment of the DA and then present a summary to the Stage 5/6 officers. 4. For this DA I undertook the Stage 5/6 review of the DA including the previous officer's assessments. I prepared the Notice of Decision and determined the DA as delegate of the Authority. This is explained further as follows: 5. DA 202139361 was allocated to me to complete the assessment on 03/12/2021. The stage 1-4 assessment officers completed the initial assessment of the application prior to TCCS comments and the representation being received. On 10/12/21, I referred the application back to the stage 2-4 assessment officer to consider the additional entity advice and issues raised in the representation. On 13/12/21 the stage 2-4 assessment officer advised that the additional advice and comments had been considered as part of the assessment and the application was ready to proceed. The assessment officer did not identify any reasons for which the application should be refused. 6. On 14/12/21 I completed the assessment of the development application taking into account the relevant requirements of the Territory Plan, issues raised in the entity advice (who all provided conditional support of the proposal) and the representation. I agreed with the stage 2-4 assessment officer's conclusion that the 3-meter setback proposed for the balcony and the inclusion of a 1800mm screening device meant the proposal complied with the requirements of the Territory Plan in relation to the upper floor side boundary setback, specifically Rule/Criteria 12 of the Single Dwelling Housing Development Code - 1.10 Side and rear setbacks - all blocks. 7. On 6/12/21 I first reviewed the representation and then again on 9/12/21 and 14/12/21 prior to determining the Notice of Decision. All issues raised in the representation were considered during the assessment. In addition to the issue of privacy impacts from the proposed balcony, the representation also raised issues about: a) ongoing complaints between the applicant and the representor b) references to an illegal stormwater tie; c) previous tree removal and flooding events since their removal; d) previous other activities on-site; e) future development of the representor's block; f) past ACAT proceedings; g) existing water damage; h) amenity issues including road noise; and i) potential construction issues for this development 8. Prior to referring the assessment back to the stage 2-4 officer to consider the additional information, I had conducted my own review of the ACAT proceedings raised in the representation including examining the following documents: Blackshaw & Evans v Campbell (No 2) [2016] ACAT 108 Campbell v Blackshaw & Evans [2017] ACAT 64 Campbell v Blackshaw & Evans [2017] ACAT 95 Campbell v Blackshaw [2019] ACTCA 1 Campbell v Blackshaw [2018] ACTSC 39 Blackshaw & Anor V Campbell [2019] ACAT 41 Campbell v Blackshaw (No 2) [2019] ACTCA 28 9. Based on my review of the documents I considered that the ACAT proceedings had been completed and those issues did not need to be addressed any further in determining this Decision. In an email to me on 10/12/21, the DA applicant also provided a summary of the outcome of the ACAT and Supreme Court proceedings advising the proceedings had been completed. In my email to the stage 2-4 officer, I noted the ACAT proceedings mentioned in the representation and advised the officer that those matters appeared to have been resolved and did not believe it would impact the assessment. I attach copies of relevant emails to this statement: a. Attachment C - copy of email from DA applicant b. Attachment D - copy of my email to Stage 1-4 officer 10. The issues stated above in 7. a) - i) were not considered to be relevant against the applicable provisions of the Territory Plan (eg RZ1 Zone Objectives, Single Dwelling Housing Development Code and Residential Zones Development Code) and therefore no further action, including conditions, were considered necessary in the Decision to address these matters. Potentially these issues can be addressed through other mechanisms such as at the building approval process or the Access Canberra complaints process but were not considered to warrant additional conditions, refusal or other actions for the DA. 11. The issue of privacy impacts from the proposed balcony raised in the representation was considered to be relevant to the assessment of the application in accordance with the Territory Plan. This was the reason for it being specifically referenced in the Notice of Decision under Part B- Reasons for the decision as having been assessed against the relevant requirements of the Territory Plan, specifically Rule/Criteria 12 of the Single Dwelling Housing Development Code (discussed above). As the other matters were not applicable to the assessment of a development application, these were not addressed in the decision. 12. On 14/12/2021, I determined that DA202139361 at Block 15 Section 26 Lyneham could be approved subject to conditions in accordance with the Territory Plan requirements and finalised the Decision.

68. The Supplementary Reasons are signed by the Delegate and dated 10 June 2022. As noted above, they were not written contemporaneously with the Decision but after this proceeding had been commenced and the particular complaints articulated by the plaintiff.

69. In Scentre Management Limited v ACT Planning and Land Authority [2021] ACTSC 171; 16 ACTLR 266 (Scentre), Crowe AJ was also confronted by a late-breaking set of supplementary reasons for the making of a planning decision. His Honour said the following at [185] (emphasis added): 185. However, the finding that the reasons given on 13 November 2020 is, in this case, not the end of the matter. That is because of the evidence of Mr Gell and his statement of reasons of 5 March 2021. I accept that the process of an administrative decision-maker providing a retrospective “explanation” or “elaboration” of reasons which were inadequate in the first place is one fraught with difficulty. There is a risk that the subsequent reasons might be an “ex post facto justification” (see per French J in Taveli at p 178–9) or that the circumstances of the preparation of the statement might suggest a real risk that the reasons do not really represent what was in the decision-maker’s mind at the time of the decision (see per Hill J in Taveli at p 190 and the conclusion of Buchanan J in the Phosphate Resources case at [172]).

70. In the reasoning that follows, although there was no formal submission made that the Supplementary Reasons were infected with inaccuracy, I have given them little weight because it is plain that the lengthy retrospective explanation was deliberately crafted with any eye on the grounds articulated by the complainant. It is somewhat unsatisfactory that the plaintiff’s initial request for a statement of reasons was met with a two-and-a-half-line response, when compared with what arrived later by way of supplement in the context of contested litigation. In the circumstances here, the contemporaneous communications and what is contained in the Assessment Form are the more reliable record of the Delegate’s reasons for decision.

Arguments of the parties

71. The plaintiff argued, in summary: (a) the Delegate undertook his own research, namely consideration of the history of litigation involving the plaintiff (see [8] of the Supplementary Reasons set out above); (b) that this information was obtained in an “irregular” way and was irrelevant to the decision; (c) the Delegate did not give the plaintiff an opportunity to make further submissions or adduce evidence in relation to the information obtained; (d) the Delegate received “submissions” from the architect (set out at [61] above) that made allegations about the Representation; (e) the Delegate did not give the plaintiff an opportunity to make further submissions or adduce evidence in relation to the architect’s submission; (f) Armed with this information, the Delegate proceeded to consider many of the matters raised in the Representation without seeking any clarification as to the substance of the matters sought to be raised (and further failed to detail why he considered some of the matters irrelevant in his Notice of Decision); and (g) therefore, the plaintiff was denied procedural fairness.

72. In response, the Authority argued that: (a) the Representation itself raised the issue of the historic litigation between the neighbours; (b) the Delegate was attempting to understand and grapple with the Representation by considering the historic litigation; (c) no question of providing procedural fairness arises from the consideration of finalised court proceedings; (d) in respect of the architect’s email, the fact that he offered gratuitous and disparaging comments was beyond the Delegate’s control, and there is no evidence they were given any weight; (e) the scheme of the Planning Act does not impose any obligation upon delegates to provide procedural fairness to a person who makes a representation, and does not provide them an opportunity to give further evidence or make further submissions or adduce evidence; and (f) therefore, the Delegate fulfilled his statutory obligations and no issue of procedural fairness arises.

The applicable authorities

73. In the recent case of Disorganized Developments Pty Ltd v State of South Australia [2023] HCA 22; 97 ALJR 575, the majority of the High Court outlined the following general principles of procedural fairness (emphasis added, footnotes omitted): 32. The existence of a duty to afford procedural fairness is a question of statutory interpretation. In Twist v Randwick Municipal Council, Barwick CJ described the common law rule that a statutory authority having power to affect the rights of a person is bound to hear her or him before exercising the power as "both fundamental and universal", although subject to legislative displacement. Barwick CJ explained that, if it appears that the legislature "has not addressed itself" to the question of natural justice, the court will approach the task of statutory interpretation "with a presumption that the legislature does not intend to deny natural justice to the citizen", and "may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice". 33. Since Twist, the law has evolved to include an established and "strong" common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates "unless clearly displaced by the particular statutory scheme".

74. Consistent with the existence of that duty and its operation subject to legislative displacement (the words emphasised above), a number of principles apply. In dealing with the present dispute, it suffices to repeat a summary from Canberra Services Club Ltd v Minister for Planning and Land Management; Australian Institute of Quantity Surveyors v Minister for Planning and Land Management [2022] ACTSC 5 at [48] (emphasis added): The following general principles were not in dispute: (a) Procedural fairness must be moulded to the particular circumstances of the case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 (VEAL) at [25]; Kioa v West (1985) 159 CLR 550 (Kioa) at 611-12 per Brennan J and 585 per Mason J. (b) The nature and content of any procedural fairness obligations depend upon the statutory power involved: Kioa at 610. (c) Where the exercise of the statutory power is capable of adversely affecting legally recognised rights or interests, it is presumed that the power carries with it an obligation to afford procedural fairness: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367] per Gageler J, citing Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. (d) Such a presumption can only be displaced by “a clear, contrary legislative intention”: Kioa at 609; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30] per Kiefel, Bell and Keane JJ. See also Mental Health Authority Australia Ltd v Registrar, ACT Long Service Leave Authority [2019] ACTSC 188; 344 FLR 413 (MHAA) at [10]. (e) Ordinarily, decision-makers must give persons likely to be affected by their decision an opportunity to address “credible, significant and relevant” information known to the decision-maker that is adverse to their interests, whether or not the decision-maker proposes to take it into account: VEAL at [17]; Kioa v West at 628 – 629 per Brennan J. (f) In undertaking the assessment, the Court considers “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30]. (g) If there was a breach of any obligation to afford procedural fairness, the Court must consider the consequences of that breach, again by reference to the statutory framework applicable to the decision, and common law principles. In order for relief to be granted to the person affected, it must be demonstrated that they have suffered a practical injustice. As stated in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14 [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Practical injustice and materiality

75. The description of practical injustice in Ex parte Lam [2003] HCA 6; 214 CLR 1 (the words emphasised in the preceding paragraph) has more recently been reframed, in the context of jurisdictional error, to speak of “materiality” in cases such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30] and [72] and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45], where it was held that materiality will be established if the failures to provide procedural fairness deprived the plaintiff of a realistic possibility of a different outcome.

76. This was confirmed in MZAPC v Minister for Immigration [2021] HCA 17; 273 CLR 506, where the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [2]- [3] (footnote omitted): 2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. 3. The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.

77. The majority later stated at [32] (emphasis added, footnotes omitted): 32. … The principle [of materiality] accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world' by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice' will deprive a decision of statutory force. …

78. Subsequently in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 (Nathanson) at [30], the plurality (Kiefel CJ, Keane and Gleeson JJ) again referred to the fact that the court should not “attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated”.

79. What must be shown, then, is a realistic possibility of a different outcome had the breach of procedural fairness not occurred, in order that procedural fairness found jurisdictional error.

80. In Nathanson, the plurality further stated that in cases where a party is denied a reasonable opportunity to present their case, a party does not have to demonstrate how that party might have taken advantage of that lost opportunity. The plurality explained the correct inquiry in respect of materiality at [32]-[33] (emphasis added, footnotes omitted): 32. As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition". 33. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

81. On judicial review under the ADJR Act or the common law supervisory jurisdiction of this Court, the plaintiff here is only required to establish an error of law, and not that the error was one going to the jurisdiction of the decision-maker. However, the Court has a discretion as to what relief is appropriate if a denial of procedural fairness is established and the above jurisprudence informs that discretion. Was the lack of opportunity to comment on the information received by the Delegate a denial of procedural fairness?

82. Applying the above principles to the statutory framework discussed at [36]-[53] above, the right of the plaintiff, as an adjoining neighbour, to be heard has been limited by statute to the right to make a representation. It did not involve a right to participate in the DA process and be heard in the same manner as the proponent of the DA itself (the architect on behalf of the owner).

83. I am mindful of the comments made by Refshauge J in Forman and York v ACT Planning and Land Authority and Evans and Evans [2013] ACTSC 167; 279 FLR 54 (Forman) at [1]-[2]: 1. As planning decisions affect the amenity of where people live, and sometimes work, and on occasion do so in fundamental or significant ways, they are often particularly fraught. They usually involve a degree of subjective assessment, with which people will disagree, while there is often no capacity to come to a decision with which even reasonable people will not disagree. 2. Perhaps because of these and other challenges that planning decisions raise, the legislation under which such decisions are made can be complex and is not always easy to construe or apply.

84. The same may be said of the present case. The plaintiff here was plainly a person who perceived the amenity of her property to be detrimentally affected in terms of privacy, as well as drainage issues and potential consequences for future development of her own land. In those circumstances, it is understandable that she would want the opportunity to both know about, and respond to, a gratuitous and critical comment made by a professional person about her, that her Representation was “another act of nuisance in a long running dispute between neighbours.” It need hardly be said that such a comment was unwarranted and ill-judged. The Delegate did not seek the architect’s personal view of the Representation. He asked whether any amendment was to be made in response to it.

85. It may be accepted that at common law, the plaintiff had an entitlement to receive “credible, significant and relevant” information known to the decision-maker that was adverse to her interests, whether or not the decision-maker proposed to take it into account information. But as authorities demonstrate, including for example Johns v Australian Securities Commission (1993) 178 CLR 408 at 472, the content of the plaintiff’s common law entitlement to be heard may be diminished by statutory considerations.

86. It is significant that the plaintiff here was not the applicant for development. Under this particular legislative scheme, the only right for an affected neighbour to be heard was through the making of a representation. The process of making the representation was to enable the issue for a person in the plaintiff’s position to be identified — such as privacy, noise, drainage, height bulk and scale — and then it was for the decision-maker to consider the representation as part of determining whether to approve a development application, and what conditions to place on the development.

87. The statutory framework did not envisage that by making a representation, the plaintiff became a person entitled to receive and respond to all information obtained by the Delegate in relation to a particular issue, such as privacy or drainage. More specifically, the content of procedural fairness under the Planning Act did not provide for a cycle of responses to responses to representations made. This is evident from (at least) the plain words of the statute, where there is no such opportunity expressly provided under the Planning Act, as well as the tight time frame for decision-making. The plaintiff’s right to be provided with information and to respond to it was necessarily diminished.

88. In other words, the duty of a delegate under s 120 was to consider those representations received; it was not to engage in dialogue with the authors of any representation received. It must be remembered that although there was only one representation in the present case, in other circumstances there may be numerous representations. To interpret the statute as requiring the Delegate to engage with representors and provide information to them within the 45-day turn-around specified would be unworkable. It is not what the legislation says, and there is no warrant for the Court to supplement what the legislature provided in this scheme by importing further opportunities for third parties to respond under the guise of a common law right to be heard. Procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances: CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [367].

89. By way of further explanation, it is helpful to draw upon McMillan v Taylor [2023] NSWCA 183 at [38], which cited an earlier decision of Chief Judge Preston in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] NSWLEC 802; 159 LGERA 361 at [54] (emphasis added): 54. The process of community consultation and public participation should also not be seen as an end in itself or as being more important than the ultimate merit outcome of a determination by a consent authority. The process of the community and affected persons being heard and making submissions is important, but there must be a limit to how long and detailed that process should be...

90. The observation was in the context of the NSW planning legislation, but it is reasoning or a rationale that remains broadly apt to the planning regime and decision-making processes in the Territory. Here, the Legislative Assembly expressly turned its mind to how detailed the process should be and how an affected community member may be heard, and imposed time limits on the process. To find that there remained an obligation at common law to return to the representor, even where the information was specifically critical of her, would be an impermissible intervention in what was clearly a detailed statutory regime. It would also introduce uncertainty into the process, an interpretation that is not to be preferred where the Legislative Assembly has apparently striven to secure certainty: see Hannay v Brisbane City Council [1999] 2 Qd R 54 at 57.

91. For those reasons, while it was indeed important for those who may be adversely affected by another’s development application to be heard in respect of it, the Planning Act provided a reasonable opportunity by way of the scheme for making representations. As there was no procedural right to be provided with the submission or other information obtained by the Delegate (such as the previous judgments dealing with the dispute between the neighbours), there was no denial of natural justice in the Delegate not providing the information to the plaintiff before making the Decision.

Ground 1(b): Was the Delegate’s independent research into the litigation history itself a denial of procedural fairness?

92. The issue here is that the statute did not expressly permit the Delegate to seek out material of his own volition. Was he entitled to do that as part of his mandatory obligation to “consider” the Representation? The Authority argued that he was. The plaintiff argued that he was not.

93. I was initially concerned about the process whereby a Delegate pursues independent research without disclosing what was read before making a decision. However, the Planning Act does not prohibit it (in that regard, see the discussion at [39]-[44] above as to the proper interpretation of s 120) and the entire statutory process is inquisitorial not adversarial. That is apparent from provisions such as s 141 of the Planning Act which permit the Authority to request further information. Further, the Delegate is not limited to considering only issues raised by representations – any combination of issues might arise from an assessment of the merit of the application against the applicable provisions of the Territory Plan, in this case, as stated by the Delegate, the RZ1 Zone Objectives, Single Dwelling Housing Development Code and Residential Zones Development Code. Part of the assessment may involve accessing information or expertise outside the knowledge of the Delegate. The governing statute does not prohibit independent inquiries in order to properly consider information and documents not provided.

94. Both the plaintiff and the architect referred to the previous litigation. As can be seen from the extracts of the Representation and the response above, the plaintiff argued that there were unresolved issues; the architect argued that there were not. In circumstances where the Delegate had before him disputed submissions, it was both permissible and reasonable to review publicly available information as part of considering the merit of the Representation and the DA overall, in particular to determine whether there were any further conditions which may have been required to address the issues of drainage or privacy. Indeed, having been made aware of previous binding legal authority affecting the land the subject of the DA in both the Tribunal and the Court, in my view, it was prudent for the decision-maker to take the time to properly inform himself.

95. Otherwise, I have already addressed whether the Delegate was procedurally obliged to either tell the plaintiff the further inquiries that had been made or revert to the plaintiff for comment. For the reasons given in Ground 1(a), he was not so obliged.

Ground 1(c): Did the resulting additional information give rise to any apprehended bias in respect of the Delegate?

96. For reasons that follow, there was no reasonable apprehension of bias arising from either the receipt of information either from the architect or the reading of the litigation history involving the plaintiff.

Arguments of the parties

97. The plaintiff argued that the consideration of the litigation history and the consideration of the architect’s email gave rise to apprehended bias in circumstances where the material was “irrelevant, prejudicial, and did not give the plaintiff the opportunity to comment”.

98. In response, the Authority argued that: (a) The purpose of the Delegate in contacting the architect (remembering that he was the proponent of the DA) was entirely legitimate and did not involve any soliciting of inappropriate or irrelevant material; and (b) The fact that the architect offered gratuitous, disparaging comments in response was beyond the Delegate’s control, and there is no evidence the Delegate gave them any weight.

99. The Authority otherwise relied on the submissions made in respect of Grounds 1(a) and 1(b) above as to the valid research of the Delegate into the history of litigation.

The applicable principles on apprehended bias

100. The Court of Appeal recently summarised the following general principles in respect of apprehended bias in Manny v Nissen (No 2) [2023] ACTCA 20 (Manny) at [31]-[33] relevantly as follows (emphasis added): 31. … The general question to ask when assessing whether there is any substance to a complaint of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question required to be decided: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6], endorsed more recently in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11]. 32. The fair-minded lay observer is assumed to be aware of the nature of the decision and the context in which it was made, as well as having knowledge of the circumstances leading to the decision: Isbester v Knox City Council [2015] HCA 20; 255 CLR 135 (Isbester) at [23]. The test is an objective one: Grassby v The Queen (1989) 168 CLR 1 at 20. 33. The application of the general principle may differ when the decision-maker is not a judicial officer (as was the case here). How the principle is applied generally depends upon the nature of the decision and its statutory context, what is involved in making the decision, and the identity of the decision-maker: Isbester at [23]. This is because the principle is an aspect of wider principles of natural justice, which have a flexible quality, and differ according to the circumstances in which a power is exercised: see Isbester at [23] and the authorities there-cited.

101. The “double might” test expressed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner) at [6] (being the words emphasised in [31] of the extract above) “serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’”: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 at [37] (QYFM).

102. The test for apprehended bias involves three analytical steps, as explained by Kiefel CJ and Gageler J in QYFM (at [38]) (footnotes omitted): Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

103. An apprehension of bias must be firmly established: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 371. The above test will not be satisfied by “a vague assertion of suspicion”: McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504 (Ku-Ring-Gai) at [106].

104. The principles apply to administrative decision-makers in broadly the same way as they do to judges: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (CNY17) at [27]-[28] (and the authorities there-cited).

105. The difference between them is not one of a differing test, but as expressed in Manny at [33], one of a potentially different application, in the sense that the content is variable. This was helpfully explained by McHugh J in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [70] as follows: 70. While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. Circumstances where irrelevant and prejudicial material comes before the decision-maker

106. In MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 (MBJY) the Full Court of the Federal Court considered the circumstances in which irrelevant but prejudicial material placed before a decision-maker could give rise to apprehended bias (at [51]-[52]) (emphasis added): 51. What is clear is that one way in which there may be a departure from the requirement for impartial decision-making is where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to an apprehension of bias on the basis that it might give rise to an apprehension that the decision-maker will be influenced by that inadmissible fact: Webb v The Queen (1994) 181 CLR 41 at 74; and CNY17 at [57], [70], [92], [134]. Whether such material gives rise to apprehended bias will depend upon whether, having regard to the particular context, the material is of a kind that it may affect the decision-maker, including in a subconscious way. 52. Obviously enough, it is not sufficient to demonstrate that there was prejudicial but inadmissible material before the decision-maker. What must be shown is that, having regard to the context, and adopting the hypothetical informed lay observer perspective such a person might conclude that the material might lead to the decision-maker being influenced by that material.

107. Three points to draw from the words emphasised above are that: (a) It is not sufficient merely to demonstrate that there was prejudicial and irrelevant (inadmissible) material before the decision-maker; (b) An assessment will need to be made as to whether the material is of a kind that may affect the decision-maker, including in a subconscious way; (c) That assessment must have regard to the context of the decision.

108. That the inquiry is a contextual one on the facts of the particular case was a point similarly made in CNY17, where Nettle and Gordon JJ stated at [101] (emphasis added): This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.

109. Information will only be considered extraneous when it is both irrelevant (or perhaps only marginally relevant) and unfairly prejudicial: see CD v Central Gippsland Health Service [2022] VSC 462 at [621] and the authorities there cited. This is relevant here, as the materials in question may have met neither criterion.

110. Accordingly, in assessing whether the hypothetical, informed, lay observer might apprehend that the impugned material might have led the Delegate to not bring an impartial mind to the determination of the DA, the Court takes a contextual approach to the particular decision made. In short, that part of the enquiry is highly fact dependent.

The application of the principles to the circumstances affecting the plaintiff (i) Identification of the material

111. The plaintiff identified the two pieces of material (the Delegate’s research and the architect’s email) and I have considered them individually and cumulatively in assessing whether the Decision was vitiated by apprehended bias.

(ii) Logical connection

112. As I understood the submission, the logical connection was that each item may have influenced the Delegate to form a view about the plaintiff, such that it may have led the Delegate to deviate from deciding the issues raised by the plaintiff in the Representation on their merits, either through disregarding the plaintiff’s arguments entirely, or giving them less weight than they would have been given if the Delegate did not receive and read the material.

(iii) The reasonableness of the apprehension from the perspective of a fair-minded lay observer

113. Here, the allegation of apprehended bias arises against a decision-maker who made a “purely administrative decision”.

114. Considering first the litigation material researched by the Delegate, this does not give rise to apprehended bias. The chain of reasoning for that finding can be reduced to four points.

115. First, the material was potentially relevant to the Delegate’s assessment (for reasons above at [94]-[95]). The rationale of the Delegate was that he was attempting to make sense of the Representation as required by s 120 of the Planning Act. The Representation contains the heading “issues from the recent past unresolved” and the litigation before the Tribunal was mentioned three times. The context in researching the litigation history was to understand the contents of the Representation which was insufficient, in that the Representation did not go into the detail of what planning issues remained outstanding between the neighbours, or why they were considered to be “unresolved”. Material "in respect of which there is a reasonable argument that it may be brought to bear in the decision-making process” would be unlikely to “ever give rise to apprehended bias”: MBJY at [61]-[62].

116. Second, even if the material was irrelevant, on a fair reading of the material, I am not persuaded it was prejudicial to the plaintiff. The litigation material consisted of decisions of courts and tribunals after contested hearings. The decisions were final and no further appeal of them was pending. Counsel agreed that I could read the decisions. I have done so. In respect of them, the following observations are made: (a) None of them involve credit findings in respect of the plaintiff (nor if they did would that be relevant to the different statutory task of the Delegate); (b) All of them dealt with two distinct issues: a dispute over a boundary fence, and a nuisance dispute over boundary trees. Neither of these issues were directly related to the DA, although I accept they may weigh on it indirectly (insofar as issues of plumbing and privacy are raised); (c) None of them consider the plans for development proposed in this matter; and (d) None of them contain anything scandalous, inflammatory, graphic or otherwise offensive to the interests of the plaintiff, apart from the fact that she was unsuccessful in the litigation.

117. A potential exception to (d) is that some comments made in Blackshaw v Campbell [2019] ACAT 41 by the presiding Member were arguably capable of being seen as critical of the plaintiff, or at least her judgement. These were discussed at the hearing of this matter. They included (at [49]) comments that that particular application was an “abuse of process”, “made solely for an improper purpose” being to “frustrate the administration of justice. However, I consider that a fair-minded lay observer would understand that those comments were directed at the particular procedural context of that particular litigation, are unrelated to the DA and the Representation, and that the Delegate in the present case would have concluded as such.

118. Having read the litigation material, it was neither irrelevant nor prejudicial, or at least, not of a content which would cause a fair-minded lay observer to have a concern that the Delegate might not have approached the DA and the Representation with an open mind.

119. Third, even if I had found the litigation material was irrelevant and prejudicial, that fact alone does not bespeak apprehended bias, because of the context of the particular decision — that is, the decision being made was an assessment of the merit of the DA.

120. The knowledge to be attributed to the informed lay observer in the present case includes an awareness of the process of the assessment of development applications, including that they are being made by a non-judicial administrative decision-maker (albeit a professional one) operating under a structured statutory regime, where that regime is inquisitorial, and people are allowed to make submissions.

121. The High Court has made the point that professional decision-makers, although not judges, can still be expected to discard irrelevant, immaterial and prejudicial information, while also recognising that there will be times where the material is so highly prejudicial that despite conscious effort, it cannot be “unseen”, to use modern parlance. The point was articulated in CNY17 at [27]-[28] as follows (emphasis added, footnotes omitted): 27. The fair-minded lay observer would again here recognise that an understanding of the role of the judge within the judicial process has some analogical application to the role of the Reviewer within the review process. In relation to the role of the judge within the judicial process, she would recognise the wisdom of the following observation: "The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that on the whole judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment, or may not unfairly lead others to believe they are operating, judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact." 28. The fair-minded lay observer would recognise that although the Authority is not a court and although a Reviewer is not necessarily a lawyer, the Authority as constituted by a Reviewer is a professional decision-making body that can ordinarily be expected to be capable of discarding "the irrelevant, the immaterial and the prejudicial". But, the fair-minded lay observer must also be taken to recognise that even a professional decision-maker is not "a passionless thinking machine" and that information consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making.

122. That point is equally apt in the planning context, where administrative decision-makers may commonly receive information that is critical of an opponent whether from a proponent or an objector. As noted above (recalling Refshauge J’s comments in Forman at [1]-[2]), planning decisions are often vexed, with complaints coming from all directions. It is not hard to imagine examples of prejudicial and irrelevant submissions, such as a complaint about the conduct of a developer, or a complaint about a neighbour being a “NIMBY” or having similar sentiments. Part of the task of an administrative decision-maker is to sort the wheat from the chaff — to establish the relevance of a matter to a planning issue and whether it is persuasive with respect to a fact in issue or the outcome sought. The discharge of this task may necessarily involve rejecting material that, while critical or adverse, does not bear upon, or carry weight in, the ultimate decision. In the context of this type of administrative and inquisitorial decision-making, simply receiving or becoming aware of information that may be critical does not ordinarily give rise to an apprehension of bias.

123. Fourth, and for completeness, I accept that it is not necessarily enough for a decision-maker to assert that they have consciously endeavoured to disregard prejudicial information that has been received. There may remain a danger that the material was taken into account subconsciously: CNY17 at [28] and [111]. Even if statements to that effect have been made by a decision-maker, sufficiently prejudicial material may still lead to a finding of apprehended bias. However, even if (contrary to what I have found) the nature of the material identified here was prejudicial, it was not so seriously prejudicial that the mere reading of it would be enough to taint the process.

124. For these reasons, applying the Ebner test to the facts of this case, it has not been established that in researching and reading the public litigation history, a fair-minded lay observer might reasonably apprehend that the Delegate might not have brought an impartial mind to the consideration of the DA.

The architect’s email

125. The relevant part of the email is that set out at [61] above. Insofar as the email drew the Delegate’s attention to the history of litigation between the parties, the findings I have just made in respect of the litigation material would equally apply.

126. Otherwise, the sentence of the email said to give rise to apprehended bias is that which reads: [The plaintiff’s] representation is another act of nuisance in [a long] running dispute between neighbours.

127. It may be assumed that this statement entails some prejudice to the plaintiff, in that it disparages her Representation as an “act of nuisance”, and that the Delegate read the email. However, there are two reasons why this material also does not establish apprehended bias.

128. First, as stated in CNY17 at [28] (the passage emphasised at [122] of these reasons), even if a decision-maker expressly disavows having regard to prejudicial material that has been received, in some cases, the material may be so damaging that an express disavowal may not be sufficient to overcome an apprehension of bias: see also FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 at [44].

129. Equally, and conversely, where the prejudice falls on the lesser end of the scale, express disregard may be sufficient, such as where a judicial officer rules on the admissibility of evidence on a daily basis, which may include irrelevant or prejudicial material which is excluded: O'Sullivan v Medical Tribunal of New South Wales [2009] NSWCA 374 at [42].

130. The litigation material here was not so prejudicial as to lead to the conclusion from the perspective of the lay observer, that the Delegate might have been subconsciously influenced by it. It was not a “poison pen” letter, nor a prejudicial government report attacking the credit of the plaintiff (as was the case in CNY17), nor inadmissible criminal history. While it should be emphasised that each case must be considered on an individual basis and the determination of the issue does not depend upon comparisons with what occurred in other cases, those examples serve to illustrate that there is a line-drawing exercise to be undertaken. In the context in which it was delivered, the material here falls well within the permissible side of that line.

131. Second, but informing the first reason, the fair-minded lay observer is “neither complacent nor unduly sensitive or suspicious”: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [53]. The email must be kept in context. The impugned sentence is a single sentence in a brief email which was really directed to whether the DA was to be amended. It is not the case that any derogatory statement received by an administrative decision-maker taints that person with apprehended bias by the mere receipt of the information. Delegates of the Authority may receive heated and/or disparaging correspondence as a regular occurrence of their job. To find that a reasonable lay observer might have an apprehension in the circumstances of this case would be to place undue sensitivity on the reasonable observer.

132. The cumulative impact of the litigation history and the email have been separately considered, but even together, the material does not give rise to apprehended bias for the reasons already explained.

133. Accordingly, no apprehended bias has been established.

Ground 2 – Did the Delegate fail to take into account a relevant consideration?

Arguments of the parties

134. The plaintiff argued that the Delegate fell into error by failing to take into relevant considerations under the Planning Act. Those considerations were: (a) The suitability of the land where the development was proposed to take place for a development of the kind proposed as required by s 120(b) of the Planning Act; (b) The balance of the Representation as required by s 120(d) of the Planning Act that being the risk of water or other damage being caused to the Plaintiff’s land, as well as the suitability of the proposed development in light of the Plaintiff’s current and intended use of her land; and (c) The probable impact of the proposed development, including the nature, extent and significance of probable environmental impacts as required by s 120(h) of the Planning Act.

135. While the last of these matters was mentioned in the Application, it was not mentioned in either written or oral submissions for the plaintiff and without more, that aspect of the ground was insufficiently articulated to establish error. I have considered it below for completeness (because that aspect was not formally abandoned) as a ‘catch all’ ground in respect of the issues raised by the plaintiff’s Representation.

136. The other two matters partially overlap. In each case, the plaintiff argued that there was a failure by the Delegate to either consider, or to give proper, genuine and realistic consideration to, the suitability of the land of the proposed development in light of the plaintiff’s current and intended future use of the plaintiff’s land.

137. The “intended future use” was the plaintiff’s own development plans, referred to in the Representation as set out above. A further point made was that issues raised in the Representation (such as drainage issues) may also render the land unsuitable.

138. A separate argument was that there was a failure by the Authority to take into consideration or to give proper, genuine and realistic consideration to the risk of water damage being caused to the plaintiff’s land by reason of the development, which was also matter raised in the Representation.

139. In response, the respondent submitted that: (a) There was no failure by the Delegate to consider the suitability of the land under s 120(b) in circumstances where: (i) There was already a duplex residence on the Property and what was proposed in the DA was minor alterations to an existing residence; (ii) The Assessment Form that was in evidence demonstrates that s 120(b) was explicitly considered by the Authority; (iii) Any assertion that the Property was unsuitable due to potential (or unresolved) drainage issues was an attempt to relitigate resolved issues; and (iv) The fact the Delegate did not accept the plaintiff’s assertions about any unresolved issues said to be associated with the Property does not mean that the Delegate did not consider the suitability of the land. (b) There was no failure by the Delegate to consider the Representation under s 120(d) in circumstances where: (i) It is clear from the Supplementary Reasons that the Delegate did consider the Representation and appropriately concluded that issues it raised aside from privacy were simply not relevant against any of the relevant provisions of the Territory Plan. (c) There was no failure by the Delegate to consider the probable impact of the DA under s 120(h) in circumstances where: (i) The Delegate accepted that privacy issues were relevant, and went on to satisfy himself that the relevant rule was satisfied and the condition imposed in respect of screening on the proposed balcony was sufficiently compliant with that rule; and (ii) The Delegate imposed a condition that required compliance with the Environment Protection Guidelines for Construction and Land Development in the ACT which alleviates concerns relating to erosion or sediment control.

The applicable legal principles

140. The principles applying to review for failure to consider a relevant consideration are well-established.

141. First and fundamentally, the obligation to consider a relevant matter is different from what weight might be given to it. Unless the statute indicates otherwise, it is a matter for the decision-maker and not the court to determine the weight to be given to various matters which must be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 41.

142. Second, in order that a matter be categorised as “relevant”, the plaintiff must prove that the Delegate was bound to take a factor into account and did not do so: Peko- Wallsend at 39 per Mason J. A decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an “exhaustive list of all the matters which the decision-maker might conceivably regard as relevant”: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (Sean Investments) at 375 per Deane J. His Honour went on to say that it is largely for the decision-maker to decide what factors to pursue and the comparative importance to be accorded to them.

143. Third, determining what a decision-maker is bound to take into account is a matter of statutory interpretation, although the interpretation may extend beyond the express terms of a statute to its implications, including drawing such implications from the statute’s subject matter, scope and purpose, as well as the nature of the repository of power: Peko-Wallsend at 39–40.

144. Fourth, not every consideration which a decision-maker is bound to take into account but does not will justify the court setting aside the impugned decision and ordering that the discretion be re exercised according to law. A factor may be so insignificant that the failure to take it into account could not have materially affected the decision: McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238; 374 ALR 329 (McGlade) at [146], citing Peko-Wallsend at 40.

145. Fifth, a failure to take into account a relevant consideration is to be assessed at the point in time a decision is made: see generally East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229 at [102].

146. Sixth, if a plaintiff attempts to prove a breach by reference to the written reasons of a decision-maker, such statements of reason should be read without “an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, applied in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Generally speaking, a court may infer that a decision-maker regarded a certain issue as irrelevant to the decision if it was not mentioned in written reasons: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 232 at [69] (Yusuf).

What amounts to “consideration” of a relevant matter?

147. In argument, the plaintiff used the language of a failure to give “proper, realistic and genuine consideration” in arguing there was a breach of this ground. That is a well-established phrase referring to the threshold for what it means to consider a relevant factor, historically drawn from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292. Although the phrase itself has at times fallen out of favour, the point to be made is that it is not enough to tick the box or pay mere lip-service to a mandatory consideration – there must be a level of active intellectual engagement: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) at [31]-[35] and at [45]-[46]; Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [36].

148. The High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 (Plaintiff M1) (Kiefel CJ, Keane, Gordon and Steward JJ) stated at [26] (footnotes omitted): 26. Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

149. In Plaintiff M1, a failure to consider representations made to the relevant decision-maker was described as a failure to “read, identify, understand and evaluate the representations” (at [24]), within the bounds of rationality and reasonableness (at [25]).

150. A similar warning was issued by Basten JA (with whom Leeming JA and Sackville AJA agreed) in Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135 at [56] (footnotes omitted, emphasis added): 56. … It has sometimes been said that the obligation is to give “proper, genuine and realistic consideration” to the matter. This language has been referred to in a series of cases (including recently in Minister for Immigration v SZJSS, an authority not referred to in Warkworth). Accepting that the weight to be given to a particular factor is a matter for the decision-maker and not the court on a judicial review application, the difficulty is to articulate a legal standard between a level of consideration which appears to be cursory or dismissive (and therefore inadequate) and a level of consideration which requires an assessment of the conclusions reached by the decision-maker (and is therefore beyond the role of the court). Little more can be said by way of judicial exegesis than that the standard will depend upon the subject matter and purpose of the consideration, in a given statutory context.

151. When the reasons below discuss whether a matter was “considered”, it is used with these authorities in mind, in the sense of considering whether there was a degree of active intellectual engagement or evaluation with the particular issue. Applying the principles to the Delegate’s consideration

152. As discussed above under Ground 1(a), it is clear from the statutory scheme (and not in dispute) that each of the matters listed in s 120 are mandatory considerations.

Was there a failure to consider s 120(b)?

153. It is unnecessary for resolution of this point to chart the metes and bounds of what the phrase “suitability of the land” in s 120(b) may mean. Whatever its limits, a consideration of the suitability of the land under s 120(b) did not require the Delegate to take into account any hypothetical future uses of the plaintiff’s land. The plaintiff’s argument misunderstood what s 120(b) of the Planning Act addressed. Those words do not require the Authority to consider whether the proposed development would suit any intended development of a neighbouring property, leaving aside the additional hurdle here that there was no development application approved or in train by which such an assessment might have been made.

154. More fundamentally, an assessment of “suitability of the land” is generally associated with considering whether a childcare centre should be located next door to a bottle shop or a brothel, or whether a residential house may be built in an industrial business park. In that regard, the Authority submitted that residential land on which a single dwelling is built must, in nearly all cases, also be land that is suitable for renovation of that same dwelling. That part of the defendant’s argument should be accepted as being uncontroversial.

155. Otherwise, the Assessment Form reveals that s 120(b) was considered by the Authority. The following extract is the relevant part of page 5 of that form, which falls under the heading STAGE 4 – TERRITORY PLAN ASSESSMENT: Is the proposal considered suitable for Yes – Based on relevant legislation and the the land on which it is to take place: TP assessment, the proposal is considered (s.120(b)) suitable for the land

Note: The assessment officer may also have regard to any DRP and Pre-DA community consultation

156. It may be inferred that the “TP assessment” is a reference to the Territory Plan assessment, which is a part of the form immediately preceding this table on page five. That part of the Assessment Form lists various rules and criteria and includes commentary on whether the Development Application complies with them. Such an assessment was thus evidently undertaken.

157. To the extent that the drainage or flooding issue was the asserted ‘unresolved’ drainage issue referred to by the plaintiff as part of the earlier litigation, the Delegate did consider that matter by researching the issue himself – something the plaintiff complained in a separate ground that he should not have done. The fact that the Delegate did not then impose any condition or otherwise mention the issue as being operative on his decision-making process does not mean he did not consider that aspect.

158. To the extent that the drainage and flooding issue was a future concern raised separately, but heightened by the fact that trees on the boundary had been removed, there was really nothing but a bare assertion for the Delegate to consider. Authorities such as Sean Investments establish that the decision-maker does not have to refer to every matter mentioned by way of an exhaustive list in order to demonstrate that a mandatory consideration of an issue was taken into account. Here, what is recorded on the Assessment Form is enough to reveal that the Delegate did consider the suitability of the land – that was the mandatory consideration. The absence of any reference to any drainage evaluation as part of that consideration does not demonstrate a failure to consider the issue.

Was there a failure to consider s 120(d)?

159. The same reasoning applies in respect of the mandatory obligation to consider each representation. The Representation here was clearly considered as the Delegate sought a response and imposed a condition directed to the plaintiff’s privacy.

160. The absence of express reference to the remainder of the issues raised in the Representation in the Notice of Decision did not mean that the Delegate did not consider those issues, nor that he gave those parts of the Representation cursory consideration. In that regard, it is salient to refer to the statement that “a finding by the Court that [a decision-maker] has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48] per Griffiths, White and Bromwich JJ.

161. What is apparent is that the Delegate evaluated the Representation but in summarising and responding to its contents, extracted the planning consideration that was material to his assessment – namely that of privacy. That the Delegate did not include the additional matters contained in the Representation suggests that he discarded them as irrelevant, which is an inference the Court can draw: Yusuf at [69]. In so doing, that does not equate to a failure to consider the Representation.

162. The Assessment Form supports that conclusion. Under the heading STAGE 3 – ISSUES CONSIDERATION (REPRESENTATIONS), a box is ticked next to text that includes “...All representations have been read and considered, and a summary of key concerns/issues can be found below:” The Form proceeds to summarise the Representation, including references to flooding, an illegal tie and privacy issues. In a formal sense, those words indicate that the Representation was wholly considered.

163. For what it is worth, support for the drawing of such an inference may also be found in the Supplementary Reasons, which record that the while the Delegate considered “all issues raised in the representation” (at [7] of the Supplementary Reasons), issues raised apart from the privacy issues were “not considered to be relevant against the applicable provisions of the Territory Plan” (at [10]). The Delegate further records that only the privacy issues were considered relevant in accordance with the Territory Plan, and that is why they were mentioned in the Notice of Decision.

164. The fact that the consideration did not lead to a different outcome by way of the imposition of any condition regarding drainage or flooding is a question of the merits of the Delegate’s Decision, and not for this Court on review.

Was there a failure to consider s 120(h)?

165. The relevant part of the Assessment Form was as follows: What is the probable impact of the No probable impacts identified that require proposed development (including amendment or refusal of the proposed nature, extent and significance of development probable environmental impacts): (s.120(g))

166. The reference to s 120(g) and not (h) is no mistake: the Planning Act was amended in late 2019 with the consequence that s 120(g) became s 120(h).

167. The Dictionary to the Planning Act defines “environment” as: environment—each of the following is part of the environment: (a) the soil, atmosphere, water and other parts of the earth; (b) organic and inorganic matter; (c) living organisms; (d) structures, and areas, that are manufactured or modified; (e) ecosystems and parts of ecosystems, including people and communities; (f) qualities and characteristics of areas that contribute to their biological diversity, ecological integrity, scientific value, heritage value and amenity; (g) interactions and interdependencies within and between the things mentioned in paragraphs (a) to (f); (h) social, aesthetic, cultural and economic characteristics that affect, or are affected by, the things mentioned in paragraphs (a) to (f). Note Environmental has a corresponding meaning to environment (see Legislation Act, s 157).

168. The note to this definition carries significance here, in that the reference to “environmental impacts” in s 120(h) includes all parts of the definition of “environment” as set out above. Further, the reference to “probable environmental impacts” must be seen as an example of the type of “probable impact” envisaged by s 120(h) — it is not prescriptive of the entire scope of the provision.

169. The plaintiff did not separately advance what the “probable impact” of the Development Application was that the Delegate failed to consider. I have taken the submission as one covering both privacy and drainage/flooding issues, each of which would be a “probable impact” within the meaning of s 120(h).

170. Again however, the evidence already discussed indicates that those matters were considered, for the reasons given. The privacy consideration was the subject of correspondence between the Delegate and the architect, and was also the subject of a condition. The asserted drainage problem was not viewed as impacting on the proposal.

171. For these reasons, the plaintiff has not established that there was any failure to consider a mandatory consideration under the Planning Act.

Ground 3: Was there an error of law?

172. Through combining the ground in the application and the arguments made in written and oral submissions, the plaintiff argued a variety of matters, each said to constitute an error of law. I have identified them as follows: (a) Ground 3a: The Delegate erred in determining that matters raised in the Representation were not relevant to the decision. (b) Ground 3b: The Delegate: (i) applied the wrong rule of the Single Dwelling Housing Development Code (Code) in that the Delegate applied Rule 11, not Rule 12), and (ii) erred in considering that the potential construction issues for the development were not relevant to the Territory Plan. (c) Ground 3c: The Delegate failed to disclose his decision-making process, including disclosing the weight given to extraneous matters and giving reasons in respect of the matters raised in the representation.

Grounds 3a and 3b

173. The answer to Ground 3a is largely encapsulated in the reasoning in relation to Ground 2. There may be a bit of looseness in the language used by both the parties in their submissions and the Delegate in the Notice, in that there is a distinction between whether an issue is relevant to an assessment at all, and whether it impacts upon the conclusion.

174. As to the former, what is relevant is determined by reference to the mandatory considerations discussed in relation to Ground 2 and I have already found that there was no error in that regard.

175. As to the latter, and the other matters apart from privacy raised in the Representation, what the Delegate found was that they did not need to be specifically addressed in the approval, either because they were without substance (the issue was resolved) or because they did not affect the Delegate’s assessment of the DA as being compliant with the Territory Plan. The Delegate was not saying that they were not matters to be taken into account at all. Any complaint about that conclusion is a complaint about the ultimate merit of that assessment. It does not amount to an error of law in the assessment made.

176. Ground 3b is also without foundation. In relation to the first limb of the complaint, that the DA was assessed against the wrong rule, the part of the Decision under challenge is in bold at [65] above. It plainly refers to Rule 11 of the Code, when the privacy issue arose in relation to the side setbacks governed by Rule 12 of the Code.

177. However, on a fair reading of the Decision as a whole, I accept the Authority’s submission that the reference to Rule 11 of the Code was a typographical error of no significance to the overall decision and that in fact, when the DA was assessed, regard was had to the correct criterion, being Rule 12 of the Code.

178. The reason I accept the Authority’s submission is because of what appears on the Assessment Form. The Form listed the rules that had been considered and the assessment against them as follows (emphasis added): R8&C8 Building envelope – Complies R11&C11 Front boundary setbacks – Complies R12&C12 Side and rear setbacks Upper floor unscreened element 6m – setback for balcony on northern boundary only approx. 3 m however the balcony is screened. 179․ Complies with C 12 R22 & C22 No L&D Conditions found R37 Solar access – Complies. R 46 Erosion and sediment control plan not provided. Recommend Standard Condition R49 Referred to relevant entities.

179. The emphasised words clearly demonstrate both an application and active consideration of the correct rule in assessing privacy consequences in relation to side setbacks under Rule 12. The Delegate did not assess the privacy consequences of the application by reference to an incorrect rule.

180. In relation to the second limb of Ground 3b, being error of law arising from the relevance of potential construction issues (with the implication that they were disregarded), it is unclear what the potential construction actually issue was. It was only fleetingly mentioned at the end of the plaintiff’s written submissions as being somehow relevant to s 120(b) of the Planning Act, which concerns suitability of land and has been addressed above, and Rule 36 of the Code, which relates to garages, where the DA did not propose a garage as part of the works. In oral argument, Mr Muller (now of Senior Counsel) referred to a related complaint of damage to the stormwater system as a consequence of earlier construction work that the plaintiff considered had never been adequately remedied. The concern was that further building works would aggravate the situation in terms of flooding and water inundation at the plaintiff’s property.

181. If that was the issue, it rises no higher than a speculation about the consequences of future construction works and the Delegate was right to disregard it. Even if the plaintiff were able to establish that there had been damage to the stormwater system by a past wrong, it does not follow that this would be a relevant consideration for a decision-maker assessing an entirely different DA. Insofar as the complaint related to erosion and sediment control issues that might cause flooding during construction, it was plainly open for the Delegate to leave matters of construction to be regulated by the Environment Protection Guidelines for Construction and Land Development in the ACT, which among other things provides for an erosion and sediment control plan and was made a condition of the approval.

182. Otherwise, the plaintiff has not sufficiently identified any error of law based on the relevance of construction issues to the assessment.

Ground 3c – Was there a failure to give adequate reasons?

184. The final complaint about the Decision is that the reasons given were inadequate and that this in itself was an error of law. The plaintiff argued that there was a failure to give reasons “in respect of the matters raised in the representation”, as well as a failure to “disclose the weight given to extraneous matters”. For reasons that follow, the Delegate complied with the obligation to give reasons in the circumstances of this case.

185. First, I accept that there was an obligation to give reasons created by s 170 of the Planning Act and that its content is informed by s 179 of the Legislation Act, which applies where a law requires a tribunal or other entity making a decision to give written reasons for the decision. The requirement is specified under s 179(2) of the Legislation Act: The document giving the reasons must also set out the findings on material questions of fact and refer to the evidence or other material on which the findings were based.

186. Second, the standard of reasons required of a decision-maker is informed by the particular statutory context in which the decision is made: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [45]. Where the decision is to be made within tight timeframes so as to create a “pressure-cooker environment”, considerable latitude should be afforded to the decision-maker as to the manner and form of the reasons given: State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879 at [10]. In Scentre at [179], Crowe AJ dealt with a similar complaint of a failure to give reasons and stated: 179. I accept that the legislative context, including the broad discretionary nature of the decision, the sheer number and complexity of the issues to be addressed and the tight time frame for decision making imposed by the [Planning Act] itself do provide a manifest intention that the requirements for detailed findings and reasoning to be set out be modified. …

187. Third, the adequacy of reasons is not to be judged against a standard of perfection, but the question is whether they “attained the minimum acceptable standard”: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 103 NSWLR 479 (Alexandria Landfill) at [316] (application for special leave refused: see [2020] HCASL 271). A decision-maker is not required to address every issue raised in a matter in written reasons: Dornan v Riordan (1990) 24 FCR 564 at 567-568, cited in Forman at [133].

188. Here, the right of review was limited to errors of law. In such circumstances, what was required to be shown was that the decision was “not reached capriciously or arbitrarily, but rationally. The reasons must therefore reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative”: Alexandria Landfill at [29].

189. Fourth, in some cases (such as in a judicial context), the failure to give reasons may constitute a failure to exercise jurisdiction: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277F-G. However, the obligation to provide reasons under s 170 of the Planning Act has been held not to be one of those cases: Scentre at [181]-[183].

190. Fifth, an aggrieved party may have more practical means of seeking more detailed reasons, including under the ADJR Act: Scentre at [183]. A supplementary set of reasons may rectify any deficiencies in the original reasons, such that granting any relief sought in respect of an error of law arising from original inadequacy would be futile: Scentre at [190].

191. Sixth, even if relief were to be granted, the usual remedy is not to set aside the decision, absent any error in the findings itself, and the statutory requirement not being jurisdictional. The usual remedy would be for remittal to the decision-maker to provide those reasons.

192. Applying those principles to the reasons that were given here, having regard to the tight statutory time frames and the nature of the DA itself, I do not consider that the initial reasons were inadequate, as they achieved “a minimum acceptable standard”. It is clear that the reasons given in the Decision itself did not directly address the full contents of the Representation, but they did address the substantive part of the Representation, explaining that the proposed upper floor balcony complied with the Code and that conditions were imposed to ensure the compliance. On the authorities above, the Delegate was not required to deal with every aspect of the Representation, and the parts that were not addressed in the reasons were parts that either had no substance or were immaterial, as has been found above.

193. Further, even if the reasons were inadequate, that was not an error vitiating the entire decision, and it was remedied by the decision-maker, albeit belatedly, by the provision of supplementary reasons, which provided the additional detail that was lacking as to why the other issues raised in the Representation did not affect the approval of the Decision (namely that they were considered to have been resolved or were otherwise irrelevant). This is permissible. Indeed, it is a process for which the statutory framework, in particular s 13 of the ADJR Act, expressly provides.

Costs

194. Judicial review proceedings in the Supreme Court under the ADJR Act are subject to the ordinary discretionary considerations in relation to costs. The Authority quite fairly indicated that it accepted the consequences of the Authority “entering the fray”, as Mr Hassall put it during oral argument. However, it did not expressly seek costs against the plaintiff in the event that she did not succeed, either in written submissions or during the oral hearing. I have assumed that this was because the Authority was uncommonly taking on a contradictor role in order to assist the Court. Because I have expressly not dealt with whether this proceeding could be classified as “public interest litigation”, it would not be appropriate to then give separate consideration (again, without argument) as to whether that matter might affect discretionary considerations in relation to costs. In light of these matters, the interests of justice are best served here by the Court making no order as to costs.

Orders

195. For the above reasons, none of the grounds has been established. The Orders of the Court are as follows: (1) Leave is granted to extend the time in which to commence proceedings to 19 April 2022. (2) The application is dismissed. I certify that the preceding one-hundred and ninety-five [195] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: