CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council

Land and Environment Court (NSW)|2010-07-01|Before: Craig J

The applicant submits that "facilitating" the development of "the new shopping centre" should be understood as indicating that the Council had already determined to grant consent to Leasecorp's proposed shopping complex, or, at least, the statement might reasonably been seen to create that apprehension in the mind of an independent observer. 98 It is appropriate to address the applicant's submissions in relation to road closure after I have identified all of the matters upon which it relies in relation to its submission. However, I do not accept that the emphasis given to the paragraphs of the adopted recommendation and the letter of 23 June 2008 would reasonably reflect the interpretation which the bystander would give to those documents. I accept that the language used is not finely crafted so as to reflect the legal constraints within which the decision of 30 April was undertaken. For example, the second paragraph of the recommendation is that the Council "close" the Lane. Clearly, the Council was not legally entitled so to do. If a counsel of perfection was to be applied, the recommendation should have been one recommending that application be made to the Minister for closure of the Lane. However, the circumstance that the Minister had a role to play in seeking to close the Lane was recognised. So much is apparent from the paragraph of the recommendation that an application to the Department of Lands be made "to endorse the road closure." 99 In similar vein, it is necessary to read in context that paragraph of the adopted recommendation which refers to the ultimate sale of the Lane to Leasecorp "for integration into the new shopping centre complex". Mr Oldsen had annexed to his report for the meeting of 30 April 2008 a copy of the letter from Leasecorp dated 9 April 2008 making application for closure of the Lane. Of present relevance, in referring to DA 349/2007, that letter indicated: (i) that Leasecorp "proposes to develop a shopping centre at the location and therefore desires to negotiate with Council for the purchase and closure of the laneway"; (ii) that the development application was "being externally assessed by independent consultants, Bankstown Civic Services Group", as a consequence of which it (Leasecorp) could not discern any "impediment to assessment of Development Application 349/2007 proceeding in the normal course whilst negotiations with Council for the purchase and closure of the lane are undertaken"; and (iii) that advice was sought from the Council to the effect that such a course was acceptable to it. 100 In context, I am of the opinion that the passages in both the recommendation and Mr Oldsen's report upon which the applicant seeks to rely would be seen as being only a shorthand method of drawing Mr Boyle's attention to the fact that DA 349/2007, proposing the establishment of a shopping complex, was an application currently pending before the Council; that road closure was appropriate, given that the Lane was "no longer required for the purpose for which it was created", all frontager allotments to it having been acquired by Leasecorp, and that integration into Leasecorp's site might provide the opportunity for a better design of its proposed shopping centre. This, so it seems to me, is no different, in principle, to a council consenting, as landowner, to the making of a development application by a developer, seeking to incorporate council owned land into a development site. The giving of owner's consent in that circumstance would not ordinarily act as a fetter upon a council when exercising its power as a consent authority to determine a development application in respect of land so included (Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 at [6]; 149 LGERA 329 at 332). 101 I do not see the letter dated 23 June 2008 from the Council, under the hand of Mr Gillespie addressed to Country Water, affecting the position. His statement as to what the Council intended by the closing of the road cannot elevate the decision to intend more than the terms of the resolution of 30 April properly allow. Understood as his shorthand summary of that resolution, it must be read in the same context as the resolution itself. 102 However, even if I be wrong as to the application of the dual "might" test to the events of, and surrounding the determination of, 30 April 2008, that does not, of itself, sustain the applicant's submission. The time at which the assessment needs to be made as to whether Mr Boyle was open to persuasion is the date upon which he determined to grant the Consent, namely 19 August 2009. Given that the knowledge to be attributed to the fair-minded observer is that "of the actual circumstances of the case", it is necessary to consider all of the events that had occurred, relevant to consideration of DA 349/2007 up to the time at which Mr Boyle resolved to grant consent. Moreover, there are other matters pertaining to this head of the applicant's claim to which I now turn. 103 As I have earlier indicated, following the resolution of 30 April 2008, correspondence was exchanged between the Council and Leasecorp concerning the price to be paid for the Lane when and if the Minister took the step of closing it as a public road. It was not until 29 July 2009 that the price at which the Council would agree to sell the Lane to Leasecorp was considered. 104 The report prepared by Mr Oldsen for the meeting of 29 July 2009; its recommendation that the offer for purchase from Leasecorp be accepted and the resolution of Mr Boyle to adopt the recommendation, are matters that I have detailed in [52] - [53] above. The applicant relies upon both the resolution and the question posed by Mr Boyle at the meeting of 29 July 2009 as "exacerbating" what is said to be the prejudgment manifested by the decision on 30 April 2008 to seek closure of the road and negotiate for its sale to Leasecorp. The applicant points to the circumstance that as at 29 July 2009, DA 349/2007 had not been determined by the Council, yet the Council was accepting the offer to purchase the Lane, clearly understanding that the purpose of the sale was inclusion of the area of the Lane in the application for development consent for the site. The applicant also points to the circumstance that the Council did not, by its resolution of 29 July 2009, qualify its decision by making it contingent upon the determination of DA 349/2007 or otherwise making apparent that its resolution to sell the Lane would not impinge upon its consideration of DA 349/2007. 105 In the context of the principles that I have earlier discussed, I do not accept the applicant's submissions directed to the circumstances in which the Council, through Mr Boyle, resolved to "close and sell" the Lane. It is not sufficient to state the bare circumstances of these events from which to assert a suspicion that Mr Boyle's mind had closed to any submission persuasive of rejection of Leasecorp's development application. The identification of circumstances that are asserted as potentially leading to a decision on a basis other than its factual merit is but the first step directed to demonstrating an apprehension of bias in the relevant sense. As the joint judgment in Ebner requires (at 345 [8]), the next (second) step is no less important: "There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 106 In the present case, the Council through Mr Boyle, was being called upon to exercise two separate statutory powers, namely the power to determine DA 349/2007 under the provisions of the EPA Act and the power to make application under the Roads Act to have the Minister close the Lane. As was submitted on behalf of the Council in these proceedings, so long as the Council's purpose in initiating closure was within its power under the Roads Act, it is difficult to see that its compliance with a parallel system of regulation could infect its decision under the EPA Act with apprehended bias. 107 Notwithstanding the vesting of the Lane in the Council pursuant to s 145 of the Roads Act, the nature of the Council's interest is not the equivalent of private ownership. Its rights in relation to a public road which it holds "in fee simple" is constrained by other provisions of the Roads Act. Authority establishes that the Council does not, for example, have the powers of a fee simple owner in exercising a veto over development applications (Sydney City Council v Claude Neon (1989) 15 NSWLR 724; Shellharbour Council v Rovili Pty Ltd (1989) 16 NSWLR 104; Sydney City Council v Ipoh Pty Ltd (supra)). Given these limitations, it is difficult to find a logical distinction between a decision made which contemplates the loss of a public road by consenting to the area of it being included in a proposed development application and a decision to initiate the process of road closure where the road in question, would, in any event, be obsolete. If the former decision is not properly to be regarded as manifesting "bias" in the relevant sense, it is difficult to see how the latter decision can be so regarded. 108 Furthermore, I do not understand whether, and if so how, a decision under one law constrains a decision under another law, without first examining whether the objects of the two laws are the same or disparate. One also needs to consider whether the considerations to be taken into account under the different statutory regimes overlap. 109 As was also submitted on behalf of the Council, the prospect that parallel systems of regulation will operate in relation to a given proposal for development of land is a familiar circumstance. In such circumstances, except in the case of express enactment or implied repeal, obedience to both laws will be required. Relevantly, the EPA Act contemplates a parallel system of regulation between it and the Roads Act: s 91 EPA Act. In considering that parallel system, full effect is to be given to each statutory regime, bearing in mind that the same decision maker may be involved in exercising the discretionary power available under each. Indeed, while some factors may differ, there will be cases where these factors overlap when informing the exercise of power. So much was acknowledged by Preston CJ in Australian Leisure and Hospitality Group Ltd v Manly Council No. 4 [2009] NSWLEC 226; (2009) 172 LGERA 1 where his Honour said (at [78]): "Each statutory power must be exercised taking account of the relevant considerations each statute requires the decision maker to take into account. The fact that there may be an overlap in one or more of the relevant considerations does not relieve a decision maker who takes the overlapping relevant considerations into account in an earlier exercise of power under one statute from the obligation to take those relevant considerations into account in a later exercise of power under another statute. Rather, each statute requires "reconsideration" of the overlapping relevant considerations, in the sense of taking relevant considerations into account in each exercise of each statutory power." 110 In the context of the Council's decisions to seek both closure of the road and agree upon the price at which the road would be sold once closure by the Minister had been effected, it is necessary to distinguish between the actions of the Council and the motives of Leasecorp. Expressed succinctly, the critical question for the Council was whether the Lane was, at the time of its decision, obsolete. For Leasecorp the question was whether the land area contained within the Lane was either necessary or desirable to facilitate its development. Merely by identifying the circumstances in which the request to exercise the power was made, does not assign to the Council the motive of Leasecorp. The Council responded to an application properly made to it to exercise a discretionary power. That power, under the Roads Act, was exercisable according to criteria which were quite different to those relevant to be considered under s 79C of the EPA Act when determining DA 349/2007. 111 The essence of the provisions of the Roads Act is the need to maintain a network of public roads and public passage, including the frontagers' right of access (s 3(b) and s 5), which the relevant roads authority has the capacity to manage. Equally, the Roads Act provides for the roads authority to remove from that management the burden of those roads determined to be no longer necessary to be kept open and maintained for the purpose of facilitating passage by the public and access by frontagers. In the present case, all of the land adjoining the Lane had been acquired by Leasecorp, with the result that the former function of the Lane in providing access to an "internal" parcel of land (see [4]) had ceased. Leasecorp, as frontager, wished to incorporate the area of the Lane within its development proposal and it was clearly in the public interest that it should do so, amending the development application accordingly so as to provide a more rational design for its shopping complex proposal and potentially improve the provision of both appropriate car parking and circulation for its site. 112 Further, the Council was called upon to exercise its discretion as to whether to initiate the process of closure in April 2008. As the report to the meeting of 30 April 2008 prepared by Mr Oldsen demonstrates, it exercised that discretion having regard to the lack of any function that the Lane would continue to serve as a public road, coupled with the desire of Leasecorp to incorporate the land in its proposed development. The subsequent decision of the Council on 29 July 2009 to confirm its decision to seek closure by the Minister and to agree upon the price at which the road would be sold to Leasecorp prior to the determination of DA 349/2007 could rationally be seen as avoiding any suggestion that it would use any consent to development as leverage to extract a price for the road which might otherwise be seen as a "ransom" value. 113 These considerations pertaining to the relationship between the EPA Act and the Roads Act, and the manner in which the Council sought to approach the exercise of discretion available under each of them, tell against the proposition advanced by the applicant to the effect that the resolutions pertaining to the closure of the Lane created an apprehension, reasonably held, that the determination of DA 349/2007 was made at a time when Mr Boyle had ceased to be open to persuasion. The question posed by him at the meeting of 29 July 2009 does not, in my opinion, detract from this conclusion. It is neutral in its implications. In rejecting the applicant's submissions in this regard there are three further matters which need to be noticed. 114 First, almost all of the land within Leasecorp's development site, including the majority of the area of the Lane, was included within the Westside Plaza Commercial Precinct identified in DCP 2. As such, it had been recognised as an area of land upon which commercial development should be encouraged, consistently with the objectives of that development control plan. Thus, quite apart from the consideration which the Council was entitled to bring to bear upon the determination to instigate the process of road closure, the ultimate inclusion of that area of land within a development application proposing commercial development would hardly be surprising. Whether or not Leasecorp succeeded with development in the form identified in DA 349/2007, it could reasonably be anticipated that commercial development on the land identified in DCP 2 for development would proceed. 115 The fact that the Leasecorp development site was identified in DCP 2 as a commercial development site was stated in a report prepared by BankstownCS for the Council. That report was one of the reports which was appended to the report of Mr Oldsen considered by Mr Boyle at the Extraordinary Meeting of the Council held on 27 March 2009. Thus, he must be taken to have been aware of that fact when resolving as he did on 29 July 2009. This is an important factor in attributing knowledge of circumstances to the fair-minded observer for the purpose of applying the dual "might" test. 116 The second matter to be noticed also arises from the meeting of 27 March 2009, only four months prior to the decision on road closure and sale made on 29 July. The report prepared for the March meeting by BankstownCS had recommended the grant of a deferred commencement development consent, subject to a number of operational conditions. Thus, it could not be said that at the time of making the July 2009 decision, all recommendations in relation to that decision were directed towards the refusal of development consent in respect of DA 349/2007. 117 The events of the meeting of 27 March 2009 are recorded at [49]. Importantly, after that meeting had been addressed by several persons, including those expressing opposition to the grant of development consent, Mr Boyle made the observations which are recorded at [50] above. His observation that the "Council is concerned about the public interest" and that "it is a matter of concern", are statements, so it seems to me, that are the antithesis of a closed mind at that point in time. It is not suggested that Mr Boyle was then embarking upon some transparent charade in an attempt to disguise his firm intention that consent would be granted. In the context of those statements by Mr Boyle, I do not believe that there might then have been a reasonable apprehension that Mr Boyle might not be open to persuasion. On the contrary, it demonstrates to me that his mind was not, at that time, closed. 118 It will be remembered from my earlier recitation of facts leading to the grant of the Consent, that it was only some three weeks after the meeting of 29 July 2009 that the extraordinary meeting of the Council was held on 19 August when DA 349/2007 was finally considered and determined. It will also be remembered that the first of the reports prepared by Mr Oldsen for that meeting was one in which he recommended that the development application be refused (see [55]). Yet, he was the same officer who, in his report to the Council meeting of 29 July 2009 had recommended that the Council proceed with the process to close the Lane and also to agree upon the price offered by Leasecorp to purchase the Lane. Clearly, Mr Oldsen could identify and address the separate functions which the Council was being called upon to exercise. His affirmative recommendation in respect of one clearly did not dictate, in his mind, the necessity to make an affirmative recommendation in respect of the other. 119 While the actions of Mr Oldsen are not those of Mr Boyle, they do, to my mind, objectively reflect a reasonable and rational appreciation of the different functions which the Council was being called upon to exercise. There is no basis in the evidence, either directly or by necessary inference, to indicate that Mr Boyle might not have appreciated the division of function which Mr Oldsen clearly recognised. Moreover, the manner in which that recognition was manifest from the two reports prepared by Mr Oldsen would, in my opinion, reasonably reflect the appreciation which the fully informed independent observer would have of the events surrounding the respective decisions. That appreciation does not to my mind bespeak an apprehension that offends the dual "might" test. 120 Mr Oldsen's second report, prepared for the meeting of 19 August 2009, again exemplifies a capacity for open-minded consideration of Leasecopr's development application. While his first report for that meeting had recommended refusal, following the submission to the Council of further economic evidence, he did not maintain his initial recommendation (see [60] - [65] above). Again, there is no reason founded in the evidence to suggest that the actions of Mr Boyle should be viewed differently. Indeed, given the history which reflects the consideration of the development application and the Lane closure application, it is apparent that Mr Boyle was prepared to adopt the recommendations contained in the various reports prepared by Mr Oldsen for meetings of the Council. It was not until the supplementary report prepared by Mr Oldsen for the meeting of 19 August that Mr Oldsen refrained from making a specific recommendation but simply recommended that "the application be submitted for determination." Both that report and the submissions made to that meeting reflect positions for and against the granting of development consent. Despite his cryptic summary of the competing positions, as recorded in the minutes of the meeting, it is clear that Mr Boyle considered each of them before resolving to grant development consent (see [68]).

Prejudgment: failure to give reasons 121 The second manifestation of prejudgment alleged by the applicant arises from the failure by Mr Boyle to provide any cogent reasons for the decision made on 19 August 2009, resolving to grant development consent. Neither the provisions of the EPA Act nor the provisions of the Local Government Act 1993 require that a council provide reasons for a determination to grant development consent. Further, no rule of common law or principle of natural justice requires the giving of reasons for such a decision (Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656). The applicant does not contend to the contrary of these propositions. 122 However, the applicant submits that faced with the circumstances that there were competing opinions as to the impact that the development would have and faced with a recommendation that consent be refused, reasons for the decision made were reasonably expected. This expectation is said to arise from the provisions of the Model Code of Conduct for Local Councils in NSW (the Model Code), apparently adopted by the Council on 23 February 2005. The Model Code was adopted by the Council in accordance with s 440(3) of the Local Government Act. 123 For completeness I record that the applicant initially relied upon particular provisions of the Council's adopted "Code of Meeting Practice" as support for its submissions directed to the absence of reasons. However, it ultimately accepted that the particular provisions upon which it sought to rely were not contained in that Code in the form which it took on 19 August 2009. In the result the applicant did not place reliance upon that Code to sustain its submissions. 124 Section 440(3) obliges a council to adopt a code of conduct incorporating provisions of the Model Code. Section 440(5) requires that "[c]ouncillors, members of staff and delegates of a council" comply with the applicable provisions of the Model Code to the extent that the council has not adopted a code of conduct for itself. The Model Code adopted by the Council was that provided for in the section, there having been no separate code which the Council had adopted prior to 19 August 2009. Section 440(8) provides as follows: "(8) Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section." 125 For the purpose of the submission that the applicant makes, it relies upon subparagraphs 4.5 and 4.6 of the Model Code. Those subparagraphs are as follows: "4.5 Accountability You are accountable to the public for your decisions and actions and should consider issues on their merits, taking into account the views of others. This means recording reasons for decisions; submitting to scrutiny; keeping proper records; establishing audit trails.

4.6 Openness You have a duty to be as open as possible about your decisions and actions, giving reasons for decisions and restricting information only when the wider public interest clearly demands. This means recording, giving and revealing reasons for decisions; revealing other avenues available to the client or business; when authorised, offering all information; communicating clearly. "

The reason for parts of each of those subparagraphs being presented in italics is not explained in the document and was not explained by the parties. 126 Paragraph numbered 4 of the Model Code is headed "Key Principles". Beneath that heading is an introductory paragraph as follows: "This code of conduct is based on a number of key principles. It sets out standards of conduct that meets these principles and statutory provisions applicable to local government activities. The principles underpin and guide these standards and may be used as an aid in interpreting the substantive provisions of the Code, but do not themselves constitute separate enforceable standards of conduct." (Emphasis added.)

(It may be that the italicised sentences in 4.5 and 4.6 are the "standards of conduct" to which the introductory paragraph refers.)

However, it is in that context of the introductory paragraph that subparagraphs 4.5 and 4.6 are to be considered. 127 As ultimately articulated, the essence of the submission made on behalf of the applicant is that the failure of Mr Boyle to give reasons for his decision in circumstances where there was a live issue concerning economic impact, both "in a pure economic sense" and in a planning sense, more readily permits the inference to be drawn that Mr Boyle had already prejudged the determination by resolving to set in motion the procedures for closure of the Lane and acceptance of the price at which it would be sold to Leasecorp. Reliance is placed upon subparagraphs 4.5 and 4.6 of the Model Code to reinforce this expectation. Further, it is submitted that to the extent to which the minutes of the meeting of 19 August 2009 record the statement made by Mr Boyle at the meeting, prior to the formulation of his resolution, that statement was wholly inadequate to serve the expected purpose of reasons. 128 I do not accept the applicant's submissions. The informed observer must be taken to understand that the statutory regime under both the EPA Act and the Local Government Act did not require reasons for a decision of this kind. Secondly, cognisant of the terms in which the introductory paragraph to section 4 of the Model Code was expressed, an expectation that detailed reasons would be given could not rationally be created. Thirdly, even to give the limited force which the applicant seeks to attribute to the Model Code would allow it to be taken into account in these proceedings, contrary to s 440(8) of the Local Government Act. Even if I took no account of the introductory paragraph of section 4 of the Model Code and no account of s 440(8), I would not reach a different conclusion. Having regard to the evolution of the debate concerning economic impact identified in the two reports prepared by Mr Oldsen for the meeting of 19 August 2009, it seems to me that Mr Boyle captured in his statement to the meeting (however pithily) the essence of the debate which addressed this issue. It is clear from what had transpired at the meeting of 27 March 2009 and again at the meeting on 19 August 2009 that the critical issue affecting determination of DA 349/2007 was the potential economic impact if the shopping centre development was implemented and included the 12 speciality stores which were proposed. So much was reflected in the concerns expressed by Mr Boyle as recorded in the transcript of the March meeting. Those same concerns appear to have been reflected in the summary of submissions made by persons who addressed the August meeting. 129 It was Mr Oldsen who, in his reports, had referred to "positive and negative" impacts. He did this reflecting his understanding of the various economic impact reports prepared for the Council by SGS in which the latter had referred to both conservative and optimistic "scenarios". 130 The minutes of the meeting of 19 August 2009 make clear that its purpose was to consider both reports prepared by Mr Oldsen with their respective attachments. Those minutes also make clear that Mr Oldsen addressed his reports to the meeting in which he identified the submissions and reports received concerning economic impact. 131 All of these circumstances are deemed to be within the knowledge of the independent observer when one seeks to apply the dual "might" test to the events preceding the resolution to grant development consent. That observer, in my opinion, would hardly find it surprising that as a preamble to his decision, Mr Boyle would summarise the critical issue before him by referring to the "positive and negative" aspects of the development application, indicating that a decision is required of him and that, in the context of all that had been discussed leading up to and addressed at the meeting, he favoured a positive approach which outweighed the negative. Why it would have been necessary for him to continue by making reference to and analysing the very material contained in the various reports and submissions which had just been the subject of address to him is not apparent to me. He was not called upon to determine, in a quasi judicial manner, an inter parties dispute and in so doing to elaborate upon the competing submissions presented to him.

Prejudgment: the "private meeting" 132 The third component of the applicant's claim alleging prejudgment is founded upon the letter of 4 December 2008 written by a Council officer to Mr Palyga of Leasecorp, inviting him to an on-site meeting with Mr Boyle on 18 December 2008. By its points of claim, the applicant alleges that on 18 December "the Council, through Mr Boyle, undertook a private meeting with representatives of (Leasecorp)". The applicant further pleads that at no time "since the meeting" has the applicant or any other member of the public been advised "as to the content or effect" of that meeting. By reason of these allegations, the applicant claimed that there was a reasonable apprehension of bias on the part of the Council at the time at which it granted development consent. 133 The applicant points to the circumstance that by letter dated 5 December 2008 Mr Palyga responded to the invitation to attend that meeting, confirming the date, time and place of that meeting. However, as I have earlier recorded (see [35]), no oral or documentary evidence was adduced by the applicant establishing that such a meeting took place. More importantly, the applicant was confronted with the affidavit evidence of Mr Palyga in which he denied that he or any other representative of Leasecorp met with Mr Boyle in response to the invitation extended so to do. The reason offered was that after indicating his preparedness to attend such a meeting, Mr Palyga had become aware of the criticisms directed to Leasecorp's development application in a report prepared for the meeting of 18 December 2008 and so he had requested that consideration of the application be deferred in order that those criticisms could be further considered. 134 As I have also earlier recorded, the affidavit of Mr Palyga in which he deposed to these matters, was read without objection. He was not cross-examined upon his affidavit evidence. Nonetheless, the applicant submits that in the absence of any evidence from Mr Boyle or an officer of the Council, the fact that the meeting was not held is not adequately proven. It also complained that the terms in which the affidavit of Mr Palyga expressed his denial "is carefully drafted" because it "does not constitute a denial of any meeting ever occurring." 135 I do not accept the applicant's submissions. The applicant's case does not allege that at some point in time between the date of lodgement of DA 349/2007 with the Council and the date upon which it was determined in August 2009, there was a private meeting between Mr Boyle and Mr Palyga or a representative of Leasecorp, from which circumstance an apprehension of bias by prejudgment could be inferred. Rather, the applicant's allegation, as pleaded, was that such a meeting took place "on or about 18 December 2008". Mr Palyga, in terms, denied that allegation. He was not required to do more. If the applicant maintained a suspicion that his denial was deliberately selective or confined and that a meeting occurred at some other point in time, it was open to it to require that Mr Palyga be called for cross-examination. 136 The applicant accepted that it bears the onus of establishing, on the balance of probabilities, that the meeting did take place. Clearly, it did not prove that fact from the evidence of Mr Palyga. Nonetheless, it seeks to have an inference drawn that the meeting did take place from the absence of evidence from Mr Boyle or the Council in denying that such a meeting was held. However, faced with the unchallenged evidence of one of the two persons said to have been present at such a meeting, denying that it occurred, I am unable to discern the basis upon which such an inference could properly be drawn (cp Jones v Dunkel (1959) 101 CLR 298). Moreover, if the applicant wished to establish that such a meeting did take place, there were judicial mechanisms which could have been called in aid of its endeavours in that regard, such as the administration of interrogatories (Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No. 2) [2010] NSWLEC 1). These mechanisms were not invoked. I am comfortably satisfied that no meeting took place on or about 18 December 2008 between Mr Boyle and Mr Palyga or any other person from Leasecorp. 137 Faced with the difficulties confronting the applicant in establishing the holding of a "private meeting" on 18 December 2008, its alternate submission was that the invitation extended to Mr Palyga by the Council's letter of 4 December 2008 to attend such meeting was, itself, indicative of prejudgment. I do not accept this to be the case. Two reasons may be stated for my conclusion in that regard. 138 First, the invitation by letter sent on 4 December 2008 to attend an on-site meeting was not confined to Mr Palyga or representatives of Leasecorp. As I have earlier recorded ([32] - [33]), letters were simultaneously sent to those who had made submissions in response to the public advertising of the DA 349/2007, inviting them to attend an on-site meeting with Mr Boyle on the same day. That fact, so it seems to me, reflected an even-handed approach and does not support an inference that Mr Boyle's mind had closed as to the manner in which the development application would be determined. This conclusion is not gainsaid by the circumstance that the meetings with Mr Palyga on the one hand and those who had made submissions on the other were to be separate meetings, as may be inferred from the differing terms in which the letters of 4 December were framed. The judicial paradigm for the conduct of legal proceedings with all parties present at once is not to be translated to the performance of the function being undertaken by Mr Boyle (McGovern at [6] and [77]). 139 There is a second event that tells against the inference which the applicant seeks to have drawn as to prejudgment, arising from the letter of 4 December 2008. That event is the meeting held on 27 March 2009 at which DA 349/2007 was considered. It was the meeting at which Mr Boyle, having listened to various submissions made to him, identified his concern, based on those submissions, that the development, if approved, could be contrary to the public interest by reason of the economic impact that it would have (see [50]). As I have earlier remarked, the observation then made by Mr Boyle is inconsistent with an inference that his mind had already closed.

Prejudgment: Conclusion 140 As I understand the applicant's submission, it contends that even if the three indicia of prejudgment it identifies are, when considered individually, insufficient to satisfy the dual "might" test, when these events are considered collectively, that test is satisfied. In the circumstances that I have analysed, referable to each of the identified indicia and for reasons expounded in respect of each, I do not discern any rational basis upon which even a suspicion might be held that Mr Boyle might not have been open to persuasion in August 2009 as to those considerations which might appropriately inform his determination of DA 349/2007. 141 Considered collectively, none of the evidence identified, when fairly considered, suggests that Mr Boyle had become "so staunch an advocate" for DA 349/2007 that he was "impervious to new information or argument" (McGovern at [60]). His statement to the meeting of the Council on 27 March 2009 contradicts such an assertion. For the purpose of considering the submission, it can be accepted that, in the two year period between lodgement of Leasecorp's development application in August 2007 and its determination in August 2009, Mr Boyle had given thought to the application. He may even have been inclined to the view that the development of a shopping centre on the site was appropriate prior to the decision which he made on 19 August 2009. However, the fact that he had given such thought to the application and formed such an inclination would not, even if clearly established, demonstrate that he lacked the necessary "fair and unprejudiced mind" (R v Commonwealth Conciliation & Arbitration Commission; Ex Parte Angliss Group (supra at 554)). 142 For all these reasons, I reject the applicant's submission that the decision to grant consent to DA 349/2007 on 19 August 2009 was "invalid and of no effect" by reason of apprehended bias by prejudgment on the part of Mr Boyle.

Procedural fairness: non compliance with DCP 5 143 The second basis upon which the applicant founds its challenge to the validity of the Consent is that DA 349/2007 was not advertised as was required by DCP 5. The failure so to do constitutes a breach of s 79A(2) of the EPA Act which is so fundamental, so it was submitted, that the validity of the consent could not be sustained (cf Smith v Wyong Shire Council [2003] NSWCA 322; 132 LGERA 148). 144 Subsection (2) of s 79A provides as follows: " (2) A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application." 145 It is accepted by the respondents that DCP 5 imposes requirements for notification and advertising of applications for development of a nominated kind. It is also accepted that the application for development nominated in DA 349/2007 is a category of development to which the requirements of DCP 5, pertaining to advertising, apply. Thus, the provisions of s 79A(2) are engaged.

146 In order to determine whether the obligation imposed by the subsection has been met in respect of DA 349/2007, it is first necessary to construe the provisions of DCP 5. 147 I have earlier identified the purpose which DCP 5 is expressed to fulfil (see [75]). After defining a number of terms, p 5 of the DCP is headed "Extent And Form Of Notification". Beneath that heading is a table divided into two columns. The first or left hand column is headed "Type Of Development" and the second or right hand column is headed "Notification And/Or Advertising". The first four descriptors of development type in the left hand column are agreed among the parties to be irrelevant. It is the fifth description of Development Type in that column which is of present relevance, as is the material to which it is juxtaposed in the right hand column. The relevant parts of the table on p 5 are therefore reproduced as follows: o Designated development, and - A notice will be placed on-site, developments described in Schedule 2 of the Local Environmental Plan. - an advertisement placed in the local newspaper for a minimum of 28 days, o Public Monuments and Memorials located on a public space. and o Any development where in the opinion of the assessing officer, a development because of its size, scale or location, is believed that it is in the public interest to do so. - letters will be sent to the owners of adjoining properties and other owners of land the enjoyment of which (in Council's opinion) may be detrimentally affected if the development is carried out.

148 The parties accept that the development proposed by DA 349/2007 is one in respect of which the requisite opinion was formed, conformably with the third of the three items recorded in the left hand column of the extracted table. Thus, the requirements for notification and advertisement articulated in the second column are to be observed. It is the content of the obligation to advertise upon which the parties differ. The applicant accepts that the requisite notice was placed on the site as required by the first item in the right hand column and that letters were sent to land owners in accordance with the requirements of the third item of that same column. 149 The applicant submits that in order to meet the requirements for advertising imposed by the table, there must be at least ("a minimum") 28 days upon which the advertisement appears in a local newspaper. If the "local newspaper" is not published daily, the advertisements must nevertheless appear on at least 28 occasions, however long that process may take. While I understand the applicant to accept that this requirement may seem burdensome, it submits that it is the inevitable consequence of the language used in DCP 5. In effect, its submission is that the language is intractable in requiring advertisements to be placed in a local newspaper on 28 separate occasions. 150 Unsurprisingly, the respondents do not accept the interpretation of the advertising provision for which the applicant contends. They point to the language of the provision, its context within DCP 5 and the legislative context in which provision is made for the advertisement of particular forms of development. These factors, considered collectively so they submit, militate against the interpretation for which the applicant contends. 151 The language of the provision in question is important to be considered. That provision, like other provisions of DCP 5, is not drafted with pellucid clarity. It states the need for "an advertisement" to be placed in a local newspaper. While reference to "advertisement" in the singular is not, in the context of the phrase imposing the obligation, a complete answer to the applicant's contention, it is necessary to be taken into account when construing the requirement. Had the phrase been expressed to require that "advertisements" be placed in a local newspaper for a minimum of 28 days, the need for multiple advertisements, at the very least, would have been made apparent. 152 If, as I believe to be the case, DCP 5 is to be regarded as a quasi legislative instrument (cf Div. 6 of Pt 3, EPA Act), it is appropriate to consider its provisions in accordance with general principles of statutory interpretation (Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155 at [36]; 66 NSWLR 379 at 388). In turn, such an approach to its interpretation requires that context be considered in the first instance and not only after ambiguity is identified (Repatriation Commission v Vietnam Veterans' Association of Australia [2000] NSWCA 65; (2000) 48 NSWLR 548 per Spigelman CJ at [107] - [108] and the authorities there cited; 48 NSWLR 548 at 575 - 6). 153 The immediate context for present purposes is that which appears on p 6 of DCP 5. The first paragraph of that page is headed "Exhibition and Submissions Periods". Beneath that heading the following paragraph appears (the p 6 paragraph): "A Designated development or advertised development as per schedule 2 of the Broken Hill Local Environmental Plan, 1996 will be available for viewing at the Council's offices for 30 days (objectors have same period of time to comment to Council). Applications for all other types of development will be available for viewing at Council's offices for between 14 and 28 days as advised by letter or advertised." 154 While the advertising requirement in the table on p 5 of the DCP and the p 6 paragraph are each addressing different topics, their operation would be expected to intersect at some point in time. Obviously enough, the purpose of the advertisement is to alert the reader of the local newspaper to the fact that an application for development of a particular type has been received by the Council. It can also be expected that a consequence of the advertisement being published is that those who seek more information about the development application are given sufficient detail to know where and when that further information can be obtained. The p 6 paragraph then specifies the place at which, and period for which, the expectation created by the advertisement can be fulfilled. 155 DA 349/2007, so the parties accept, falls within the "other types of development" referred to in the final sentence of the p 6 paragraph. As a consequence, that application was to be "available for viewing" for 28 days "as … advertised". 156 If the requirement for advertising is as contended for by the applicant, the expectation of intersection in the operation of the two provisions may well not occur, at least at a practical level. The specified medium for the placing of an advertisement is a "local newspaper". Unsurprisingly, nothing in the DCP identifies an expectation as to the frequency with which such a newspaper is published. To the extent that it is relevant as a guide to the interpretation of the DCP, the term "local newspaper" is defined in cl 3 of the Environmental Planning And Assessment Regulation 2000 (the Regulation) to mean "a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks." Relevantly, no assumption can be made that there is an available daily newspaper for the placement of the necessary advertisement. The frequency with which the Barrier Daily Truth newspaper is published was not proved. It was said from the bar table that in spite of its title, that newspaper was published on only 6 days each week. 157 However, the frequency of publication of a particular newspaper, in the absence of its nomination within DCP 5, is irrelevant. DCP 5 must be considered as having an enduring operation. Particular newspapers and the frequency of their publication "throughout the relevant area" are, understandably, matters not addressed either in DCP 5 or in the governing LEP. 158 Once it is accepted that the publication of advertisements on 28 separate occasions may extend over a period in excess - even well in excess - of 28 days, the practical and reasonable operation of the advertising requirement in conjunction with the document "viewing" requirement expressed in the p 6 paragraph becomes problematic. While the latter provision would seem to require that documents pertaining to a particular development application be available for "viewing" at the Council's offices for a single continuous period of 28 days, the advertising requirement, applied in accordance with the applicant's submission, could well result in advertisements appearing in a local newspaper well after the "viewing" period had closed. This could not have been intended by the drafter of the LEP. 159 It is certainly possible to conceive of application of the p 6 paragraph which might attempt the accommodation of a more harmonious temporal operation between the requirements of that paragraph and the advertising requirement for which the applicant contends. However, any such attempt of which I can conceive necessarily involves change to or addition to the language of the p 6 paragraph. So to do would not be consonant with ordinary principles of interpretation which require that recognition be given to the primacy of the text being considered (Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [10]). Only in limited circumstances should words be read into the text (Bermingham v Corrective Services Commission of NSW [1988] 15 NSWLR 292 per McHugh JA at 302). The exercise mandated by Bermingham is unnecessary if the advertising requirement of the DCP is interpreted differently from that contended for by the applicant but still giving effect to the words used, having regard to their context and the purpose served by the provision. 160 There are other provisions of DCP 5 which necessitate an understanding of purpose and context in order to give them meaning. Indeed, a consideration of its provisions reveals that it is no shining example of the drafter's art. Apart from the infelicitous expression of the advertising provision itself, other examples of infelicitous drafting can be identified. 161 First, on p 1 of the DCP the expression "advertised development" is defined, making reference, in terms, to Schedule 2 to the LEP. Schedule 2 to the LEP is engaged by cl 17. The combined effect of cl 17 and that Schedule is to identify six forms of development which are to attract the provisions of the EPA Act so far as those provisions relate to the notification and advertisement of development which is categorised as 'designated development'. Only five of those forms of development are noted in the definition of "advertised development" as it appears in the DCP, yet the opening words clearly manifest an intent that all forms of development identified in Schedule 2 to the LEP would or should be so included. 162 The term "designated development" is defined on p 2 of DCP 5 as meaning "development described in Schedule 3 of the Environmental Planning and Assessment Act." At no time relevant to the operation of DCP 5 has Schedule 3 to the EPA Act described any form of development. At the time of the last amendment to the development control plan, Schedule 3 made provision for the constitution of the "Local Government Liaison Committee." At the time at which the Consent was granted, that same Schedule to the EPA Act made provision for the constitution of the "Planning Assessment Commission". It is Schedule 3 to the Regulation that identifies development which is "designated development" within the meaning of the EPA Act. Clearly, this is what was intended by the drafter of the LEP. 163 The third example that I give arises from the definition of "residential flat building" in DCP 5. It is there defined as meaning "a building containing two or more dwellings … ". The same expression is defined in the LEP as meaning "a building containing three or more dwellings". DCP 5 further provides that in the event of any consistency between it and the LEP, then the LEP is to prevail. Given that latter provision, it is not easy to rationalise the purpose served by the definition of 'residential flat building' contained in the development control plan. 164 Attention is drawn to these matters not for the purpose of criticism or ridicule. Rather, they underline the need to approach the interpretation of DCP 5 in the knowledge that its language is not always felicitous and thus necessitates a somewhat broad contextual and purposive approach to its understanding. 165 It is relevant to that context and purpose to consider the advertising regime which both DCP 5 itself and the Regulation identify for different kinds of development. It will be remembered that both 'designated development' and developments described in Schedule 2 of the LEP are expressed in the table on p 5 of DCP 5 to be subject to the same requirement for advertising as is DA 349/2007. Those forms of development which are identified in Schedule 2 to the LEP constitute "advertised development" within the meaning of the EPA Act: s 4. The requirements for advertising of both 'designated development' and 'advertised development' are governed by the provisions of both the EPA Act and the Regulation. Section 79(1)(d) of the EPA Act requires that the consent authority must, in respect of such an application, "cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality." Clause 80 of the Regulation requires that notice of such an application be published "on at least two separate occasions". Section 79(1)(a) requires that a designated development application and, in the present circumstances, an application for 'advertised development', be placed on exhibition for a period of not less than 30 days, commencing on the day after which notice of the application is first published in accordance with s 79(1)(d). Thus, there is, in substance, coincidence between the "viewing" requirement expressed in the first sentence of the p 6 paragraph of DCP 5 and the latter requirement of the Regulation for exhibition of these particular kinds of development application. 166 Moreover, one can discern the kind of practical intersection to which I earlier referred between the statutory obligation to exhibit documents and the obligation to "advertise" or publish a notice in a newspaper concerning that same development. The exhibition period is 30 days, commencing on the day after the newspaper publication. I have earlier quoted the definition of "local newspaper" as meaning one circulating in the area at intervals of not more than two weeks. Thus, the statutory requirement is fulfilled if two separate notices are published not more than two weeks apart. This readily accommodates the "intersection" to which I have referred by accommodating the advertisement and exhibition process within a minimum of 30 days. Given the manner in which DCP 5 attempts to accommodate the exhibition period conformably with the EPA Act and Regulation pertaining to both 'designated' and 'advertised development', it would be expected that it would achieve a similar accommodation in respect of the advertising requirement for that same form of development. 167 The manner in which the advertising requirement is expressed on p 5 of the DCP does not gainsay this expectation. Consistency with those provisions will be achieved if the provision is read as requiring an advertisement or, where prescribed by the EPA Regulation, advertisements, indicating that a particular development application has been received and nominating a period of not less than 28 days during which the application and any documents supporting it will be available for "viewing" at the offices of the Council. In the case of 'designated' and 'advertised development', that minimum period will be 30 days. So understood, there is no inconsistency between the requirements of the EPA Act and Regulation on the one hand and those of DCP 5 on the other, as those requirements relate to the publication of the requisite advertisement. 168 If the analysis just undertaken is correct, as I believe it to be, then by parity of reasoning, the requirement for advertising of DA 349/2007 is that there be "an advertisement" with enduring effect for a minimum of 28 days. In the context of DCP 5, the notification and advertising requirement for this particular application attracts the same obligation for advertisement as does both 'designated' and 'advertised development'. It follows that the same reasoning as to the manner in which the latter types of development can conform to the advertising requirement of the DCP should also apply to the manner in which the requirements pertaining to DA 349/2007 should be understood. 169 There is a further matter that needs to be noticed, arising from the provisions of the Regulation and relevant to the context in which the DCP requirement for advertising should be understood. I have already referred to those provisions of the Regulation which apply to 'designated' and 'advertised development', requiring publication in a local newspaper on "at least two occasions". As is apparent from the description of the various types of development identified in Schedule 3 to the Regulation, being development that falls within the definition of "designated development" under the EPA Act (s 77A and cl 4 of the Regulation), they comprise types of development which are likely to have a significant environmental impact. Indeed, so much is acknowledged in a note included on p 2 of DCP 5, immediately following the definition of "designated development" which records that "this includes those forms of development which are likely to have extensive environmental impacts …". The fact that development identified as potentially having such significant impact should only be required to be advertised on a minimum of two occasions, speaks against an interpretation of the advertising requirement in DCP 5 pertaining to development of the type into which DA 349/2007 falls, requiring that advertisements for it be published on a minimum of 28 occasions. 170 The Regulation identifies a third category of development which attracts the need for advertising in accordance with its provisions. This is development identified in cl 5(2) of the Regulation, which is there referred to as "other advertised development". Clause 5(2) includes what might be described as environmentally sensitive development as well as development identified as "advertised development" by a development control plan. It will be remembered that DCP 5 does not so define development of the kind included in DA 349/2007. In respect of development that falls within the definition of "other advertised development", cl 87 of the Regulation requires only that notice of it "be published in a local newspaper". The language of this provision, coupled with the provisions of cl 89 and the definition of "local newspaper", make it readily apparent that a single advertisement will suffice for the purpose of cl 87. Again, in a contextual sense, this requirement in respect of development that would otherwise be comprehended by DCP 5 speaks against an interpretation which would require that an advertisement pertaining to DA 349/2007 be published on no less than 28 occasions. The advertising requirement of DCP 5 is fulfilled 171 For the reasons that I have indicated, I do not accept that the provisions of DCP 5 required that DA 349/2007 be advertised in a local newspaper on 28 separate occasions. The language in which the requirement for advertising is expressed does not compel the interpretation for which the applicant contends. Moreover, its immediate context within the development control plan, particularly its companion provision in the p 6 paragraph, weighs against such a consequence. So also does the statutory and regulatory context imposing requirements for advertising of particular types of development which are themselves also identified in DCP 5. 172 The imprecise drafting of DCP 5, coupled with the context which I have identified, underlines the need to consider purpose when interpreting the requirement. In my opinion, effect is given and purpose applied if the provision is interpreted so as to require, as a minimum, that an advertisement is published which identifies the fact that a development application of a nominated type has been received and that a minimum of 28 days will pass before any step to determine the application will be undertaken by the Council. It would also be expected (indeed, required in the case of those types of development to which the Regulation applies) that such notice would draw attention to the fact that the application and accompanying documents may be "viewed" at the offices of the Council for the required minimum period. 173 Such an interpretation of the critical provision affords to it a reasonable and practical operation, consistent with the purpose of DCP 5. As a document which, so far as is apparent, is not drafted with legal expertise and certainly not drafted with the particularity and specificity of a statute, such an approach to its interpretation is legally permissible and appropriate (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36]; Currey v Hargraves [2007] NSWLEC 471 at [20] - [21]; 155 LGERA 91 at 97). 174 It will be remembered that DA 349/2007 was the subject of advertisement in the Barrier Daily Truth newspaper on three occasions in August/September 2008 (see [28]) and on three further occasions in February/March 2009 (see [41]). The applicant takes no issue with the form of these advertisements as meeting the requirements of DCP 5. On each of those occasions, the advertisement notified a period in excess of 28 days after the date upon which the advertisement first appeared and indicated the period during which the application documents could be inspected and submissions made. Further, the applicant does not contend that the development application was required to be further notified after March 2009 by reason of any amendment made to it or by reason of the provision to the Council of further supporting material. 175 For these reasons, I am satisfied that the requirements of DCP 5 for advertising DA 349/2007 have been fulfilled. It follows that the applicant has not demonstrated any breach of s 79A(2) of the EPA Act. No breach of the EPA Act has been demonstrated 176 The applicant has failed to sustain either of the two bases upon which it sought to impugn the consent. Its summons will therefore be dismissed.

Costs 177 At the conclusion of submissions directed to the breaches alleged by the applicant, I invited the parties to address the question of costs upon the hypothesis of either success or failure in the proceedings. This served the obvious purpose of avoiding any further hearing directed to costs following the delivery of judgment. 178 The applicant accepted that if it was unsuccessful it could not, in principle, resist an order for costs against it. However, it did not accept that it should be liable for the costs of both respondents. 179 Its argument was, in essence, that while it was necessary to seek declaratory relief against the Council and injunctive relief against Leasecorp as the holder of the impugned consent, the proceedings were founded upon breaches of the EPA Act by the Council. Thus, it was necessary only for one respondent to appear as a contradictor, there being no issue necessary to be separately addressed by any one of the respondents. Having regard to modern authority, that contradictor ought to have been Leasecorp (Oshlack v Richmond River Council [1998] HCA 11 at [12]; 193 CLR 72 at 77; Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [76] - [80]; 170 LGERA 162 at 182). In the result, the applicant contended that it should not be ordered to pay the Council's costs. 180 The source of power to award costs is found in s 98 of the Civil Procedure Act 2005. Section 98(1) relevantly provides that costs are in the discretion of the Court "subject to the rules of court". Part 42.1 of the Uniform Civil Procedure Rules 2005 requires that if the court makes any order for costs, it is "to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs." No doubt, the combined operation of s 98(1) and Pt 42.1 informed the applicant's concession, properly made, that if unsuccessful in the proceedings, it was appropriate that an order for costs be made against it. 181 In proceedings where challenge is made to the validity of a development consent, it will often be the case that the award of costs against an unsuccessful challenger will not include an order in favour of more than one party, particularly a respondent council, consistent with the dicta in both Oshlak and Murlan. However, that position does not deny the award in favour of both the holder of the impugned consent and also the council, in an appropriate case (see, for example, McGovern at [226] - [227]).

182 The Council acknowledged the limitation which should ordinarily be imposed upon its participation in proceedings challenging the validity of a development consent. However, it sought to justify its participation by reference to that part of the applicant's challenge which was founded upon the decision to determine Leasecorp's application for road closure under the Roads Act while the development application remained undetermined. In its written submission, the Council's position was expressed in the following way: "The effect of the applicant's principal attack upon the consent succeeding is that the powers of Council under the Roads Act 1993 would be stymied if an applicant wished to incorporate the road or use it in any way in a proposed development, such that no decision could be made about the road until the DA had been determined. This proposition transcends the facts of a particular case and involves a question of principle upon which Council wishes to be heard." 183 Consistently with the position thus stated, the Council's detailed written submissions were confined to the Roads Act issue. While in oral submissions Mr Robertson SC, who appeared for the Council, made brief submissions concerning the "advertising" argument, his submissions were principally directed to the road closure issue. 184 In my opinion, the Council was entitled to take an active role in the proceedings in advancing the submissions which it did. The concurrent consideration of the road closure application under the Roads Act and the development application under the EPA Act was central to the applicant's submissions. It raised a matter of general importance to the exercise of different statutory functions by the Council. It is that circumstance which justified the Council's active role in the proceedings (Pearse v Sharpe (No 2) [2008] NSWLEC 81). Should the applicant have been successful, no offence to the principle which informs the dicta in Oshlack and Murlan would be encountered. Mr Boyle no longer exercised the power of the Council as its Administrator. Any reconsideration of DA 349/2007 would necessarily be undertaken by the collegial body elected last December which now constitutes the Council. Moreover, there seems to me to have been a practical and economical division of responsibility on the part of the respondents in presenting their respective submissions to the Court. 185 In the exercise of my discretion, I consider it is appropriate to require the applicant to pay the costs of both respondents. No doubt the economical division of responsibility between the respondents will be reflected in those costs which they seek to recover against the applicant. No order for payment of a proportion of each respondents' costs seems to me to be necessary (cp McGovern at [229]).

Orders 186 Consistently with my reasons, the Orders that I make are as follows:

11/06/2010 - The word 'advertising' should read 'advertised' - Paragraph(s) 169 Line 5 13/09/2010 - Change to "advertised" was made in Line 2 - Paragraph(s) 169

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : CPT Manager Limited (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154 Australian Leisure and Hospitality Group Ltd v Manly Council No. 4 [2009] NSWLEC 226; (2009) 172 LGERA 1 Bermingham v Corrective Services Commission of NSW [1988] 15 NSWLR 292 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No. 2) [2010] NSWLEC 1 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Currey v Hargraves [2007] NSWLEC 471; (2007) 155 LGERA 91 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537; (2007) 158 LGERA 250 Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; (2009) 168 LGERA 269 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 Matic v Mid-Western Regional Council [2008] NSWLEC 113 CASES CITED: McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; (2009) 170 LGERA 162 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Pearse v Sharpe (No 2) [2008] NSWLEC 81 Public Service Board of NSW v Osmond [1987] HCA 7; (1986) 159 CLR 656 R v Commonwealth Conciliation of Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Repatriation Commission v Vietnam Veterans' Association of Australia [2000] NSWCA 65; (2000) 48 NSWLR 548 Shellharbour Council v Rovili Pty Ltd (1989) 16 NSWLR 104 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148) Sydney City Council v Claude Neon (1989) 15 NSWLR 724 Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006)149 LGERA 329 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245

Apprehend bias: prejudgment 79 I have earlier identified the primary challenge advanced by the applicant to the validity of the Consent to be founded upon the apprehended bias of the Administrator, Mr Boyle, when resolving to grant the Consent. The parties are not at issue as to the principle to be applied when determining whether a case of apprehended bias is made out. It requires the question to be addressed as to whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of power (Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]; (2000) 205 CLR 337 at 344 (Ebner); McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [4] and [72]; (2008) 72 NSWLR 504 at 507 and 517) (McGovern). That test is applied both to judicial decision-makers and also to statutory decision-makers (McGovern at [4]).

80 However, having stated that as being the requisite test, the content of what the test requires will vary, depending upon the context in which the power is being exercised. Its application will be affected by the statutory functions being performed and by the identity of the decision-maker required to exercise the power (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [78] (Jia Legeng); (2001) 205 CLR 507 at 533; McGovern at [7]); F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 at [115]; 158 LGERA 250 at 297; Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 at [46]; (2009) 168 LGERA 269 at 281. 81 In addressing the context in which the statutory decision-maker is exercising power, Spigelman CJ in McGovern identified three matters that must be addressed in the following terms (at [9]): + "What is the process involved in 'resolving the question' that the decision-maker "is required to decide". + What may constitute an absence of "impartiality" or lack of "prejudice" in the mind of the decision-maker? + What might a "fair minded lay observer … reasonably apprehend" as to the above two matters." 82 In McGovern, the Court of Appeal was concerned to consider the validity of a development consent granted under the provisions of the EPA Act, the challenge there being mounted on the basis of apprehended bias in the form of prejudgment. When addressing the applicability of the test to the particular statutory circumstances in which the respondent council had exercised power under the EPA Act, the Chief Justice said (at [13]): "Of particular significance in the present case is that the relevant statutory power is vested in a democratically elected Council exercising a discretionary power expressed in broad terms to which multiple considerations apply and with respect to which the range of permissible opinion is extraordinarily wide - including issues of policy, taste and philosophy - not least by the adoption of an express formulation as to what constitutes "the public interest": s 79C(1)(e) of the Environmental Planning and Assessment Act 1979".

These observations are apposite to the present case. Although Mr Boyle was the interim statutory substitute for the "democratically elected Council", he was nonetheless exercising precisely the same power as that described by Spigelman CJ and was entitled to exercise that power within the "extraordinarily wide" range of permissible opinion to which his Honour refers in the passage I have quoted. 83 Modern authority establishes that in the context of apprehended bias by prejudgment, it is necessary to apply an "open to persuasion" test. While the essential concepts of the apprehended bias test remain, the test is necessarily restated as being whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion. That is the manner in which the test was formulated by Spigelman CJ in McGovern at [23]. The test, so articulated, succinctly summarises an approach which has been variously stated. Gleeson CJ and Gummow J in Jia Legeng addressed the test thus (at [72]): "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion." 84 An application of the test is also illustrated by the observations in the joint judgment of the High Court in R v Commonwealth Conciliation of Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 where it was said that a fair and unprejudiced mind - "is not necessarily a mind which has not given thought to the subject matter or one which, having given thought about it, has not formed any views or inclination of mind upon or with respect to it." 85 The formulation of the dual "might" test articulated by Spigelman CJ, requires consideration of the knowledge which is to be ascribed to the fair-minded observer. That consideration is addressed in the joint judgment of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 in the following terms (at 87): "In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of actual circumstances of the case."

(2007) 158 LGERA 250

(2009) 168 LGERA 269

(2009) 170 LGERA 162

(2003) 132 LGERA 148

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (40)

Cited By (3)