F & D Bonaccorso Pty Ltd v City of Canada Bay Council

F & D Bonaccorso Pty Ltd v City of Canada Bay Council - [2007] NSWLEC 537 - NSWLEC 2007 case summary — Zoe

[4]

12 On 6 July 2006 a construction certificate was issued to the fourth respondent for the demolition of structures on the subject properties. Later that day demolition work occurred. It included partial demolition of three of the said five heritage items, namely, the houses at 4, 8 and 12 Chapman Street. On 6 July 2006, in the 2003 proceedings, the Court granted an ex parte interlocutory injunction, restraining the second and third respondents from carrying out further development on 4,6 and 8 Chapman Street. At that time the second respondent was in liquidation and the applicant had not obtained leave from the Federal Court or Supreme Court under s 471 of the Corporations Act 2001 to bring its motion seeking interlocutory relief. On 11 July 2006 it was replaced by an injunction restraining the third and fourth respondents from carrying out further works without further development consent on any of the subject properties (subject to certain exceptions). On 23 August 2006, the injunction was continued in similar form. It was not limited as to duration. Later the demolition issue was resurrected in the present proceedings and on 2 May 2007, by consent, the Court granted an injunction restraining the third and fourth respondents from carrying out further development on the subject properties including but not limited to demolition (subject to certain exceptions). It was not limited as to duration. On 17 July 2007, by consent, the Court granted an injunction in the same terms against the second respondent. The liquidation of the second respondent had been terminated by the Supreme Court on 16 July 2007. 13 Earlier, in June 2006, Ms Hubert had provided council with a Heritage Review which referred to a proposed new consolidated local environmental plan. She recommended the removal of the heritage items in the Strathfield Triangle, stating: "Planning controls in this precinct allow development of 3 - 10 storeys adjacent to single storey free standing houses. The setting of these places is greatly compromised by the height of development allowed on adjacent sites. There is no incentive under these planning controls for owners of the heritage items to maintain the properties and adjacent development is eroding the amenity of the heritage items". The draft of that local environmental plan, dated 29 December 2006, went on public exhibition on 6 February 2007 and reflected her recommendation. THE 2006 DEMOLITION DA 14 The 2006 Demolition DA stated that a heritage impact statement was attached. It was entitled "Statement of Heritage Impact" and dated November 2006. The author was Robert Staas, Director/Heritage Consultant of Noel Bell Ridley Smith & Partners Architects Pty Limited (Staas Report). In his view, demolition of the five subject heritage items was reasonable and acceptable and should be approved by council. 15 Another document accompanying the 2006 Demolition DA was a Statement of Environmental Effects dated November 2006 by Smyth Planning. It noted that the Strathfield Triangle DCP did not acknowledge that the heritage items in Chapman Street were worthy of retention and concluded that the development was worthy of approval.

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19 On 19 December 2006 the applicant's solicitors, Thomson Playford, wrote to council's solicitors, Maddocks Lawyers, requesting copies of the development application, statement of environmental effects, heritage reports and any plans lodged with the development application. The applicant's solicitors wrote to council on 22 December 2006 stating that council had admitted in the pending 2003 proceedings that there was no valid consent for demolition of the five heritage items in Chapman Street. In support of that "letter of objection", two affidavits were enclosed sworn by Peter Lonergan, heritage architect, in these proceedings. Mr Lonergan, inter alia, later considered that the heritage items were significant and that it was possible to undertake works to remedy the demolition works that had already been carried out. On 22 January 2007 council replied stating: "Please find enclosed a copy of the Development Application Form, Statement of Environmental Effects, Statement of Heritage Impact and plans showing the location of the dwellings to be demolished". This Statement of Heritage Impact was the Staas Report. The documents provided did not include the Hubert Report. On 8 February 2007 Thomson Playford wrote again to council's solicitors, inter alia, alleging errors and omissions in the documents supporting the development application. On 14 February 2007 council wrote to the applicant's solicitors advising that the development application would be considered at council's meeting on 20 February 2007. 20 Mr Staas wrote to council on 31 January 2007 expressing the view that completion of demolition of the subject heritage items would not significantly impact on any other heritage items in the vicinity. 21 Mr Fletcher's report was before council at its meeting on 20 February 2007. It annexed the Staas Report and the Hubert Report. Mr Fletcher recommended that council refuse consent to the development application. Mr Fletcher stated that he was not a heritage expert and therefore relied upon the expertise of appropriately qualified experts. He noted that Mr Staas was a well recognised heritage expert whose report had been reviewed by a consultant (Ms Hubert) that council relied upon for heritage advice. He continued:- Accordingly, we do not question the conclusion of these two heritage experts that ultimately the demolition of heritage items and the other buildings may be justified in order to allow redevelopment of the projects.

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legal Principles concerning failure to have regard to mandatory considerations 22 In order to succeed in its first and second grounds of challenge to the 2007 Demolition Consent the applicant must make good two factual propositions. First, that a mandatory consideration, that was objectively relevant to the application, was not taken into account. Second, that the error was material such as to justify the intervention of the Court. It need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex. See Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 295 [66] per Basten JA, (with whom Handley JA and Hunt AJA agreed). If those two factual propositions are made good, then the 2007 Demolition Consent is invalid and, subject to discretionary considerations as to the granting of relief, liable to be declared invalid: Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51-52 per Street CJ. 23 Section 79C(1) of the EPA Act mandates matters that a consent authority is required to take into consideration if they are relevant to the development the subject of a development application. In determining whether failure to take into consideration a matter referred to in s 79C(1) constitutes a material error, it is necessary to have regard to the totality of factors required to be taken into consideration and the weight to be attributed to each in respect to the proposed development, bearing in mind that matters of weight are generally beyond judicial review and are left to the decision-maker: Parramatta City Council v Hale (1982) 47 LGRA 319 (CA) at 335 per Street CJ; Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369. 24 Circumstances in which an inference may be drawn that a relevant matter was not considered were addressed in Manly Council v Hortis (2001) 113 LGERA 321. There the NSW Court of Appeal in a joint judgment analysed as follows its earlier decisions in Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134: [21] There is no direct evidence that the council considered cl 10(3) or cl 17 of the LEP. In particular, neither clause is referred to in the minutes of the council's relevant meetings or the material which was before the council at that meeting, and no witness was called to say that either clause was considered. In the manner later described, the Land and Environment Court held that decisions of this Court, particularly Currey v Sutherland Shire Council (1998) 100 LGERA 365 and Franklins Ltd v Penrith City Council [1999] NSWCA 134, required an inference in those circumstances that the council did not consider the requirements of cll 10(3) and 17 in the absence of other evidence that it did so and that there was no real evidence that the council considered those requirements.

[15]

25 Taking matters into consideration calls for more than simply adverting to them. In Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [64] Spigelman CJ (Meagher and Beazley JJA agreeing) held that "mere advertence to a matter required to be taken into consideration is not sufficient see: eg Parramatta City Council v Hale (1982) 47 LGRA 319 (at 339)". It has been said that taking matters into consideration calls for sufficient information, an understanding of the matters and of the significance of the decision to be made, and a sufficient process of evaluation sufficient to warrant the description of the matters being taken into consideration: Weal v Bathurst City Council (2000) 111 LGERA 181 at 201 [80] per Giles JA (Priestley JA agreeing). His Honour held at [80] that for a matter to be taken into consideration by a council: It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application…Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale (at 335-336, 339); King v Great Lakes Shire Council (at 384); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-375). 26 In Kindimindi (above) at 297 [77] Basten JA (Handley JA and Hunt AJA agreeing) appeared to have had reservations about whether the last sentence in that passage ran the risk of an impermissible review of the merits. However, later in Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] Basten JA ( Santow and Ipp JJA agreeing) quoted the last two sentences from that passage in Weal with apparent approval after stating: Judicial review is concerned only with the legality of an administrative decision, in the sense of whether or not the decision-maker has exceeded the legal boundaries of his or her powers. Those boundaries are defined, in part, by reference to the consideration of matters which are legally impermissible and the failure to consider matters to which the law requires that consideration be given. The requirement of consideration is not satisfied by formalistic reference. 27 Where matters to be considered are not detailed or quite specific, advertence in general terms to their impact may suffice. In Hill v Woollahra Municipal Council (2003) 127 LGERA 7 (CA) Hodgson JA (Ipp JA and Davies AJA agreeing) held: [50] The cases of Ligon [North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (NSWCA)] and Zhang [v Canterbury City Council (2001) 51 NSWLR 589, 115 LGERA 373 (CA)] are authority for the proposition that, where a body such as a local council is required by a statute to address a question posed by that statute or by an instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have adverted to the topic of the question. … [53] Another consideration relevant to this question is that, so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not.

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28 It is well established that the consideration must be "proper, genuine and realistic": Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [28] per Tobias JA (Beazley JA agreeing) citing Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at 266-267 [37]. Those epithets need to be applied cautiously lest they encourage a slide into impermissible merits review: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 (CA) at [74] - [79]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [62] (CA); Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49] - [51]; Belmorgan at [76] per Basten JA. In Kindimindi at 297 [74] Basten JA said that the formulation "proper, genuine and realistic consideration of the merits of the case…. should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. That kind of challenge must be assessed on manifest unreasonableness grounds". The applicant in the present case does not contend that the decision to grant the 2007 Demolition Consent was vitiated by manifest unreasonableness. Basten JA again warned about the formulation in Belmorgan at [77] - [78] in which he ascribed meanings to the words "proper" and "genuine" but concluded that "realistic" had no ready meaning in the context of judicial review: By way of explication, it may be noted that use of the word proper may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell [1925] AC 338 and The Queen v Toohey; Ex parte Northern Land Council (198081) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word genuine may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of improper purpose , as explained by Aickin J in Ex parte Northern Land Council . Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, realistic finds no ready referent in the language of judicial review.

[20]

29 The question of "proper, genuine and realistic consideration" arises where the decision-maker has purported to consider a relevant matter. That formulation may be viewed as capturing the notion of constructive failure to carry out a function. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339 [41] Gaudron J said: For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form 51 . A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account. 30 Failure to accord natural justice is also a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [25] per Gummow and Callinan JJ (Hayne J agreeing); Kindiminidi at [73]. 31 Constructive failure to consider a relevant matter is illustrated by Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 where Street CJ said: …it is contended that the council failed to take into consideration the topics of parking, traffic and access, being topics directly included within the matters the council was bound by s 90(1) to take into consideration. The challenge is of a failure sub modo on the part of the council. Each of these topics was, technically speaking, dealt with in the council's decision. It is the manner in which this was done which is relied upon as establishing invalidity.

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Table 1 outlines some of the questions that need to be answered in a SOHI for various types of development proposals. (emphasis added) 40 Table 1 of the Heritage Office Guidelines contained four questions concerning a proposed change to a heritage item which involves demolition of a building or structure: · Have all options for retention and adaptive re-use been explored? · Can all of the significant elements of the heritage item be kept and any new development be located elsewhere on the site? · Is demolition essential at this time or can it be postponed in case future circumstances make its retention and conservation more feasible? · Has the advice of a heritage consultant been sought? Have the consultant's recommendations been implemented? If not, why not? 41 The "seven criteria" used to define cultural significance referred to in the above quotation from the Heritage Office Guidelines are said by the applicant to be the seven criteria set out in the Heritage Manual published by the Heritage Office (Heritage Manual), as follows: (a) An item is important in the course, or pattern, of NSW's cultural or natural history (or the cultural or natural history of the local area); (b) An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW's cultural or natural history (or the cultural or natural history of the local area); (c) An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW (or the local area); (d) An item has strong or special association with a particular community or cultural group in NSW (or the local area) for social, cultural or spiritual reasons; (e) An item has potential to yield information that will contribute to an understanding of NSW's cultural or natural history (or the cultural or natural history of the local area); (f) An item possesses uncommon, rare, or endangered aspects of NSW's cultural or natural history (or the cultural or natural history of the local area); (g) An item is important in demonstrating the principal characteristics of a class of NSW's · cultural or natural places; or · cultural or natural environments. (or a class of the local area's · cultural or natural places; or · cultural or natural environments.)

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89 What information must be contained in a written notice and a published notice? (1) A written notice and a published notice of the development application must contain the following information: (a) a description of the land (including the address) on which the development is proposed to be carried out, (b) the name of the applicant and the name of the consent authority, (c) a description of the proposed development, (d) a statement that the application and the documents accompanying that application may be inspected at the consent authority's principal office for a period specified in the notice during the consent authority's ordinary office hours, (e) a statement that any person during the period specified under paragraph (d) may make a written submission in relation to the development application to the consent authority, (f) the dates of the period specified under paragraph (d). … (3) The period referred to in subclause (1) (d) must include: (a) in the case of nominated integrated development or threatened species development, the period of 30 days, and (b) in any other case, the period of 14 days, commencing on the day after the day on which the published notice is first published in a newspaper. … 91 Public notification of development application and accompanying information (1) The consent authority must ensure that a development application is publicly notified in accordance with the relevant requirements and that any accompanying information is available for inspection during the relevant submission period at the place or places specified in the public notice. (2) During the relevant submission period: (a) any person may inspect the development application and any accompanying information and make extracts from or copies of them, and (b) any person may make written submissions to the consent authority with respect to the development application. (3) A submission by way of objection must set out the grounds of the objection. (emphasis added) 46 As required by cll 87, 89 and 91 of the EPA Regulation, council published notice of the 2006 Demolition DA in a local newspaper on 12 December 2006 and made it available for public inspection, together with its accompanying information including the Staas Report. Content of a Heritage Impact Statement 47 Whether a heritage impact statement meets mandatory requirements is a matter of substance rather than form. That was said to be so in relation to environmental impact statements in Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353 (CA).

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48 The applicant submitted, and the respondents disputed, that the content of a heritage impact statement should be governed, by analogy, by the same principles as have been authoritatively established in relation to an environmental impact statement required under the provisions of the EPA Act. Six content principles in relation to an environmental impact statement were identified in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 31 by Pearlman CJ, substantially following Cripps J in Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 (on appeal see (1984) 53 LGRA 160), of which the following five are relevant: 1. An environmental impact statement must be sufficiently specific to direct a reasonably intelligent and informed mind to the possible environmental consequences of the proposed development (per Cripps J in Prineas at 417). 2. The purpose of an environmental impact statement is to alert the decision maker and the public to the inherent problems of the proposed development, to encourage public participation, and to ensure that the decision maker takes a hard look at what is proposed (per Cripps J in Prineas (at 417) and per Cripps J in Liverpool City Council at 278). 3. The environmental impact statement is not required to be perfect. It need not cover every topic or explore every avenue (per Cripps J in Prineas (at 417) and per Hutley JA on appeal at 163). 4. The environmental impact statement must not be superficial, subjective or non-informative (per Cripps J in Prineas at 417). 5. It should be comprehensive in its treatment of subject matter and objective in its approach (per Cripps J in Prineas at 417). 49 The content principles in Schaffer were approved by the Court of Appeal in Helman v Byron Shire Council (1995) 87 LGERA 349 (CA) at 356-357 per Handley JA (Kirby ACJ and Priestley JA concurring). They were adopted in relation to a fauna impact statement in Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 at 278-280 by Stein J, as Handley JA noted in Helman. 50 The respondents submitted that an analogy between an environmental impact statement and a heritage impact statement is inapt because the legislature has anointed the former but not the latter in four respects.

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[68] Prior environmental impact assessment and approval are important components in a precautionary approach. The precautionary principle is intended to promote actions that avoid serious or irreversible damage in advance of scientific certainty of such damage. Environmental impact assessment can help implement the precautionary principle in a number of ways including: (a) enabling an assessment of whether there are threats of damage to threatened species, populations or ecological communities; (b) enabling an evaluation of the conclusiveness or certainty of the scientific evidence in relation to the threatened species, populations or ecological communities or the effect of proposed development on them; (c) enabling informed decisions to be made to avoid or mitigate, wherever practicable, serious or irreversible damage to the threatened species, populations or ecological communities and their habitats; and (d) shifting the burden of proof (evidentiary presumption) to persons responsible for potentially harmful activity to demonstrate that their actions will not cause environmental harm: Conservation Council of South Australia Inc v Development Assessment Commission [1999] SAERDC 86 (16 December 1999) at [24] and [25] upheld in Tuna Boat Owners Association of South Australia Inc v Development Assessment Commission (2000) 77 SASR 369, 110 LGERA 1 at [27]-[30]. See generally on the issue of the precautionary principle in environmental impact assessment, G Tucker and J Treweek, The Precautionary Principle in Impact Assessment: An International Review in R Cooney and B Dickson (eds) Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use (Earthscan, 2005) pp 73-93. [69] The requirement for prior environmental impact assessment and approval enables the present generation to meet its obligation of intergenerational equity by ensuring the health, diversity and productivity of the environment is maintained and enhanced for the benefit of future generations.

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57 An object of an environmental impact statement, as well as a heritage impact statement, is to assist the decision-maker. One matter the decision-maker must take into consideration is the goal of ecologically sustainable development. That is because the mandatory requirement of consideration of the "public interest" in s 79C(1)(e) is ample enough, having regard to the subject matter, scope and purpose of the EPA Act, to embrace the goal of ecologically sustainable development and its principles where they are relevant to an issue: Carstens v Pittwater Council (1999) 111 LGERA 1 at 25 (Lloyd J); Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [54] (Talbot J); BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237 at 257 (McClellan CJ); and Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [123] (Preston CJ). 58 As to the relevance of ecologically sustainable development in the context of Part 3A of the EPA Act (to which s 79C is inapplicable) see Gray v Minister for Planning (2006) 152 LGERA 258 at [107] - [117] (Pain J) and Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (Jagot J). 59 The goal of ecologically sustainable development is critical to the survival and well being of humankind and other species. Encouragement of ecologically sustainable development is one of the objects of the EPA Act: s 5(a)(vii). Ecologically sustainable development in the EPA Act has the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991. Implementation of the principle of inter-generational equity is one of the ways in which the goal of ecologically sustainable development can be achieved: s 6(2) of the Protection of the Environment Administration Act 1991. 60 An environmental impact statement and a heritage impact statement both serve the principle of inter-generational equity. Once a heritage listed building is demolished it is lost forever to future generations. A photograph of it in an archive is but a reminder of what once was. I consider that the goal of ecologically sustainable development and the principle of inter-generational equity inform the principles governing both the content of environmental impact statements and the content of heritage impact statements. Consequently, in my opinion, the content principles in Schaffer apply mutatis mutandis to a heritage impact statement. They may be stated as follows:

[66]

Demolition of a building or structure · Have all options for retention and adaptive reuse been explored? The re-use of the buildings was not considered following Council's approval of a development application that involved their demolition. The buildings had limited potential for adaptive reuse as single residences or commercial offices and professional suites. The timber framed buildings also had the potential for relocation [o]n this site or to another site. While relocation is normally a last resort in the situation where the option is demolition its consideration may have been appropriate. In the event the partial demolition works have resulted in damage which could only be remedied by substantial reconstruction which would not result is a meaningful retention of any limited heritage values that had been identified for the individual buildings. · Can all the significant elements of the heritage item be kept and any new development be located elsewhere on the site? This option was not possible given the form of development approved for the site. Some form of redevelopment maintaining the items may well have been possible if they were to have been retained but in the current circumstances such considerations are not feasible. · Is demolition essential at this time or can it be postponed in case future circumstances make it retention and conservation more feasible? Because of the current state of the buildings, total demolition is now the only course of action. To leave the buildings in their current state would create a public nuisance · Has the advice of a heritage consultant/specialist been sought? Have the consultant's recommendations been implemented? If no, why not? Initially there was no requirement for heritage consultation given the understanding that the buildings were no longer listed as heritage items and the granting of an approval for development that implied their demolition. The present consultation has been to determine the current condition and heritage value of the structures and to seek formal approval for demolition under the requirements of the LEP. · The approved development of the site involves closure of the street and would result in the loss of any setting for the two remaining buildings at 13 and 21 Chapman Street. These buildings should be appropriately recorded prior to their demolition or relocation to another site. The following aspects of the proposal respect or enhance the heritage significance of the Item for the following reasons: The demolition works remove any evidence of the former grouping of small scale cottages which occupied this part of Strathfield. Recording of the buildings and their historic setting is no longer possible except in relation to No. 13 and No. 21.

[67]

The buildings having been identified for inclusion on the Heritage Schedule were subsequently recommended for removal to allow redevelopment. This indicates that the Council acting on behalf of the wider community came to a conclusion that there were only limited heritage values associated with the typical representative character of the houses and the mixed character of their setting in Chapman Street. For this reason the loss of significance to the community is limited. The following aspects of the proposal could detrimentally impact on heritage significance. The heritage significance of the surviving fabric of the items at No. 4, 8 and 12 is minimal and the full demolition will not have a further major impact on the heritage of the area. The significance of No. 13 and No.21 has been questioned and their demolition following archival recording will not have a significant impact in the circumstances of this amalgamated redevelopment site. Conclusion The heritage items are of a limited level of significance to the wider Canada Bay Community and their value has been substantially diminished by the approval of development that involves closure of the street and a substantial change in their setting. This is further exacerbated by the partial demolition of the items on one side of the street as part of the approved development. Given this situation I am of the opinion that there would be no significant benefit in the retention and reconstruction of the items which are currently in a state of partial demolition and no significant benefit in the retention of the two houses which remain substantially intact. The level of significance of the buildings was marginal when they were identified and subsequent actions of the Council to remove them from the schedule attest to this assessment made by Council independently of the present application. In these circumstances I consider that the heritage impact of completing the demolition of the partially demolished buildings and the archival recording and demolition of the two intact buildings is reasonable and acceptable and should be approved by Council. 63 The "State Heritage Inventory" referred to in the Heritage Listings section of the Staas Report is in evidence and includes statements of the significance of the five heritage items the subject of these proceedings.

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65 The respondents submitted that: (a) the Staas Report was a document falling within the definition of a " heritage impact statement " in cl 6 of the Heritage LEP because it " had been prepared " in accordance with the Heritage Office Guideline. It stated that an assessment had been carried out in accordance with the provisions of the Heritage Office Guidelines. It posed and answered the four " standard assessment questions " in Table 1 of the Heritage Office Guidelines (set out at [40] above). It identified the significance in heritage values of the heritage listed houses (both individually and in their collective context). It identified and assessed the heritage impact of demolition of the houses. It identified the possibility of retention and reconstruction of the heritage items but concluded that the heritage value of the properties in their existing state was not such as to recommend against demolition. Even if it contained errors, it does not follow that it was not a heritage impact statement; (b) the use of the past tense " has been prepared" in paragraph (a) of the definition in cl 6 of the LEP is significant. If the Staas report was a heritage impact statement when it was prepared, then it could not lose that character when council chose not to place reliance on one section of it because it contained an error, nor did that choice mean that council did not take the report into consideration. In such circumstances the consent authority has taken the report into " consideration " in the legislative sense, but has reached a conclusion that a particular part of the report should not be relied upon to support the decision; and (c) the Heritage Office Guidelines do not contain a strictly mandatory prescription as to the form and content of a heritage impact statement. They merely contain guidelines. Even where there are statutory prescriptions as to the form and content of a planning statement, there should be a flexible and practical approach to the question whether a statement satisfies the relevant criteria and the focus should be on substance rather than form: Guthega (above). The same principles should apply to identification of a heritage impact statement and, in the present case, with even greater force given that the criteria derive from guidelines.

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69 The Fletcher report informed council that the Staas report contained an erroneous assumption that the 2003 development consent should be treated as valid. Consequently, the council meeting minutes of 20 February 2007 record that council resolved that the second of the four questions required to be considered under the Heritage Office Guidelines and the answer thereto in the Staas Report: is excluded from consideration having regard to the content of the Planning Consultant's report paragraph 6 on p 19 which states: However, we note that the Statement of Heritage Impact was based on the premise that the buildings were to be demolished to enable the erection of a residential flat building in accordance with a development consent issued for that purpose. That premise is, in effect, no longer valid in that the circumstances have changed as a consequence of the current Land and Environment Court proceedings 40134 of 2003. As previously indicated, as part of those proceedings, Council through its lawyers has admitted that the consent previously issued is invalid. Therefore, for all intents and purposes, there is no valid consent to redevelop the land. 70 Thus, council did not consider one question and answer in the Staas Report, being the second of the four questions that a heritage impact statement had to address in order to comply with the definition of a heritage impact statement in the Heritage LEP. Therefore council was not informed by the Staas Report on that question. Assuming that the Staas Report was otherwise a heritage impact statement as defined in the Heritage LEP, then, in my view, council's decision not to consider a critical part of it meant that council did not effectively consider that heritage impact statement. 71 For completeness, I should address another alleged error in the Staas report, namely, the statement that council "resolved to delete the buildings from the Heritage Schedules but failed to do so". This is a reference to the schedule to the Heritage LEP which listed the five heritage item buildings the subject of these proceedings. The applicant submitted that there was no resolution in those terms and that Mr Staas may have been misstating a resolution recorded in council minutes dated 22 August 2000, as follows: The Mayor raised the matter of demolition of the buildings listed as Heritage items, in the Council's Draft Local Environmental Plan, within the Strathfield Triangle.

[75]

74 Council had before it, and may be presumed to have taken into consideration, the Hubert Report, which was in the following terms: This report addresses the heritage issues associated with DA 649/2006 Documentation Documentation provided for comment includes: Demolition Plan Statement of Heritage Impact by Noel Bell Ridley Smith & Partners Pty Ltd Statement of Environmental Effects by Smyth Planning Planning Instruments Relevant planning instruments include: Concord Planning Scheme Ordinance Heritage Conservation Policy Concord Concord Local Environmental Plan 103 (Heritage) Strathfield Triangle Development Control Plan Proposed Work The application involves demolition of ten houses in Chapman Street to allow for the closure of Chapman Street. The closure of Chapman Street and its amalgamation with the sites of the proposed demolitions in accordance with the guidelines and principles of the Strathfield Triangle Development Control Plan. Statutory Heritage Listings Of the buildings proposed for demolition, 4, 8, 12, 13 and 21 Chapman Street are listed as heritage items under Concord Local Environmental Plan 103 (Heritage). Existing Buildings Brief descriptions of the subject buildings are given in the Statement of Heritage Impact. It is noted that demolition of 4, 8, and 12 Chapman Street was commenced under a previous development approval, now overturned. As a result, 4 Chapman Street now only retains part of its walls. 8 and 12 Chapman Street retain their general form but have had much of the detailing and part of the claddings and linings removed. 13 and 21 Chapman Street appear to be in fair to good condition. Strathfield Triangle Precinct C The heritage items are located within Strathfield Triangle. Strathfield Triangle was [sic] been identified as a potential growth area. This led to the Strathfield Triangle Development Control Plan being created to guide development in that locality. The sites of the houses proposed for demolition make up most of Precinct C in the Strathfield Triangle Development Control Plan. The controls for Precinct C rely on amalgamation of all sites in that Precinct and most of Chapman Street to create a single development site with potential for 3-4 storey development over most of the site, increasing to 6-7 stories at the western side of the site and up to 10 storeys at the southwest comer of the site. Impact on Heritage Items Three of the subject buildings (4, 8, and 12 Chapman Street) have already been partially demolished. This has resulted in a loss of varying amounts of significant fabric so that substantial reconstruction would be necessary if the houses were to be retained. As noted in the Statement of Heritage Impact, the level of reconstruction necessary for these houses would be difficult to justify under most circumstances. While it is noted that development consent had been issued allowing for the demolition of these houses, this consent was overturned in the Land and Environment Court. The previous consent is not a reasonable argument in itself to support demolition of the buildings under the present development application. The controls for Precinct C of the Strathfield Triangle would leave the heritage items at 4, 8, 12, 13 and 21 Chapman Street in the middle of a larger development site where development of between 3 and 10 stories was permissible. Retention of these houses within the allowable higher scale development and the loss of Chapman Street as their primary address would severely compromise the context and setting of the heritage items. Relocation of the timber framed houses (8, 12, 13 and 21 Chapman Street) might be possible. In most cases, relocation removes heritage items from their context and only rarely is their heritage value retained and formally recognised by statutory heritage listing in the new location. It is unlikely that relocation of these houses would be likely considering the costs of relocation and repair and is it [sic] unlikely that relocation would successfully retain the heritage value of the houses. Questions which normally need to be addressed under Heritage Office guidelines when considering the heritage impact of demolition of a heritage items follow: Have all options for retention and adaptive re-use been explored? Reuse of 4 Chapman Street is no longer feasible as the building has been partially demolished. The degree of reconstruction needed to make the building habitable is not consistent with good conservation practice and is not warranted for the level of significance of the place. While 8 and 12 have not been demolished to the extent that no. 4 Chapman Street has, substantial work would be necessary to bring these buildings to a basic habitable condition.. This is not warranted by the level of significance of the houses when considered in relation to the type of development in the immediate vicinity that is anticipated by the Strathfield Triangle Development Control Plan. 13 and 21 Chapman Street are capable of being used as residential dwellings. However, the context of these houses is already being compromised by development of residential unit buildings in the vicinity. This context is likely to be further compromised by the scale of development in the vicinity anticipated by the Strathfield Triangle Development Control Plan. Considering the potential development in the vicinity of these sites that could compromise the setting and amenity of these houses, the expense of conserving and continuing to maintain these houses is unlikely to be justified. Can all of the significant elements of the heritage item be kept and any new development be located elsewhere on the site? The significant elements on these sites are the small scale residential buildings. The scale of development that is anticipated by the Strathfield Triangle Development Control Plan would compromise the setting and amenity of these dwellings. As well as the visual issue of multi-storey residential buildings in the immediate vicinity dwarfing the houses and compromising the setting, the amenity of the houses would suffer due to loss of privacy and sunlight. Is demolition essential at this time or can it be postponed in case future circumstances make its retention and conservation more feasible? It is unlikely that the potential for residential unit buildings within the Strathfield Triangle will be reduced. Future circumstances are likely to make retention and conservation less feasible rather than more feasible. Has the advice of a heritage consultant been sought? Have the consultant's recommendations been implemented? If not, why not? The advice of a heritage consultant, Robert Staas of Noel Bell Ridley Smith have been sought. A Statement of Heritage Impact by the consultant supporting demolition formed part of the application. Whilst this has been considered by Council, the premise that demolition is justified by an existing consent was not supported. Notwithstanding, given the above analysis on Council's detailed consideration of the heritage impacts of the removal of the items, there removal is supported providing an archival recording of heritage items, as suggested in the Statement of Heritage Impact, is completed. Recommendation In consideration of the existing condition of 4, 8 and 12 Chapman Street and the inevitable loss of setting and context of these heritage items due to the controls for Precinct C of the Strathfield Triangle Development Control Plan, demolition of these houses is acceptable subject to the following condition: An archival recording of each of the houses is to be submitted to the satisfaction of Council prior to release of the development approval. The archival recording should be prepared in accordance with the Heritage Office, Department of Planning guidelines How to Prepare Archival Records of Heritage Items. The photographic recording of the houses may be undertaken using digital recording, provided the digital photographs are prepared in accordance with the Heritage Office, Department of Planning guidelines Photographic Recording of Buildings Using Film or Digital Capture.

[76]

75 The applicant submitted that the Hubert Report was not a heritage impact statement for several reasons: (a) it did not purport to be a heritage impact statement and was only an assessment of the Staas Report. I disagree that it was merely an assessment of the Staas Report. It is not significant that it did not bear a label " heritage impact statement " if, as I have concluded, that is what it is in substance. It is substance that matters, not form; (b) there was no evidence that Ms Hubert had visited the site. Assuming that a site visit was essential, I note that there is no direct evidence that either Mr Staas or Ms Hubert visited the site, but that is what I would infer in the absence of contrary evidence. In Ms Hubert's case that conclusion is strengthened by the fact that she had prepared an earlier heritage review for council in June 2006 in which she recommended, inter alia, that 1, 4, 8, 12, 13 and 21 Chapman Street not be included as heritage items in a proposed new consolidated local environmental plan. This suggests a close familiarity with the subject properties by the time of her 20 December 2006 report; (c) the Hubert Report did not accompany the development application as required by the following provision of the Heritage Office Guidelines: " The Heritage Council requests that every development proposal it is required to consider be accompanied by a SOHI [Statement of Heritage Impact]. Similarly, local councils and other development approval bodies are encouraged to require such a statement. This requirement could be viewed as a logical extension to a statement of environmental effects, which most councils commonly require" . I disagree that this statement required a heritage impact statement to accompany a development application. It did not go so far. The nearest it got was to encourage local councils to require a heritage impact statement; and (d) council had a statutory obligation to consider submissions but the only document made available to the public as a heritage impact statement up to 20 December 2006 (the date of the Hubert Report), was the Staas Report. Council submitted that the applicant should not be permitted to raise this point of absence of public exhibition of the Hubert Report because it was not pleaded. The applicants submitted, and I accept, that council did not plead reliance on the Hubert report and that when it was raised by council in submissions the applicant was entitled to reply as it has done.

[78]

79 I would add that, given the public involvement and participation object of the EPA Act expressed in s 5(c), it seems unsatisfactory that there is no legal requirement that a heritage impact statement must always be notified to the public and made available for public inspection. The absence of such a legal requirement is a matter which the legislature may consider should be remedied. ground 2: failure to take into consideration matters required by s 79c(1) of the epa act 80 The applicant submitted that council failed to take into consideration one or more of the following matters required to be taken into consideration by s 79C(1) of the EPA Act: (i) the " Heritage Conservation Policy Concord " of 1999 ( 1999 Policy ); (ii) matters required under cl 10 of the Heritage LEP; (iii) public submissions; and (iv) the Draft City of Canada Bay Local Environmental Plan ( Draft LEP ) and Draft City of Canada Bay DCP ( Draft DCP ); 81 Section 79C(1) of the EPA Act provides: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (a) The 1999 Policy 82 The applicant submitted that:

[83]

86 First, I am not satisfied that the draft development control plan in Part C of the 1999 Policy was adopted by council as policy. Council denied in its Points of Defence that it had been adopted by council as a policy. The status of the Policy is explained on its first page as follows: STATUS OF THIS DOCUMENT This document contains 3 Parts and 2 Appandices [sic]. Their status is as follows: - Part A (Introduction) and Part B (Heritage and Development) contain Council's Policy on Heritage Conservation. They were adopted as council Policies on 14 December 1999. - Part C (Development Control Plan for Heritage Conservation) is a draft Development Control Plan and the subject of public exhibition. It may change as a result of submissions and consideration by Council - Appendix A is the Local Environmental Plan No.103 (Heritage ) as referred to the Minister for Urban Affairs and Planning. It is likely to come into effect during the exhibition of the draft DCP - Appendix B are sheets showing location and description of the Heritage Conservation Areas and Special Character Areas. This records that council had adopted Parts A and B as policy, not Part C which includes cl 10. Therefore, to the extent to which the applicant's submissions relate to cl 10, I do not accept them. 87 Second, in my view, the 1999 Policy was not a document that council was obliged to consider under s 79C(1) of the EPA Act. Section 79C(1) of the EPA Act does not refer expressly to council policies. However, in Stockland at [90] McClellan CJ held that a "well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan" must be taken into consideration as part of the "public interest" pursuant to s 79C(1)(e). In Maxnox at [20] I applied that principle to the Hurstville City Council Interim Residential Development Code. It had been developed as a draft development control plan and was a comprehensive, detailed planning policy. The principle developed in Stockland and Maxnox is concerned with well founded, detailed planning policies which have not been formally adopted as development control plans. Stockland and Maxnox are distinguishable because there is difficulty in describing Parts A and B of the 1999 Policy in that way. Part A is introductory in its terms. Part B describes general principles of heritage protection, with cross-references to other documents such as the Heritage LEP, which have priority over the 1999 Policy, as embodying the detail of the applicable planning rules. It is to these documents, in my opinion, that one must look to see whether there is a detailed commitment to preservation of heritage items. The 1999 Policy seems to be a general statement of council's desire to preserve items which are thought to have some heritage significance of varying degrees, especially in terms of rarity in the local government area. It is not written in terms which make it readily applicable to particular cases. 88 Third, even if I am in error on the first and second points, in my view, the 1999 Policy later ceased to be council's policy in relation to the subject land. Council had, after 1999, taken steps which demonstrated that it was not committed to the conservation of the heritage items in Chapman Street. It had made a local environmental plan amending the CPSO (cll 61G and 61H in particular) by inserting provisions dealing with the Strathfield Triangle and had made the Strathfield Triangle DCP which indicated that redevelopment was contemplated in a manner which was inconsistent with the continued existence of a number of heritage items in Chapman Street. It resolved in late 2006 to make and exhibit a new draft LEP and a DCP which would remove the subject heritage items from the schedule of heritage items. Thus, in my view, the 1999 Policy had been changed in such a way as to encompass the removal of heritage protection from the subject properties. Consequently, the 1999 Policy was not relevant to consideration of the 2006 Demolition Application. (b) Clause 10 of the Heritage LEP 89 Clause 10 of the Heritage LEP relevantly provides: 10(1) In determining an application for development affecting a heritage item, the consent authority must make an assessment of the following: (a) the heritage significance of the item as part of the environmental heritage of Concord Local Government area; … (d) whether any archaeological site could be adversely affected, (e) the extent to which the carrying out of the development could adversely affect the form of an historic subdivision.

[91]

100 The applicant appeared to submit that because it was possible that the draft LEP could have been redrafted to include the Chapman Street houses as "heritage items", then council was obliged to treat the draft documents as relevant to the 2006 Demolition DA. In support, the applicant referred to a letter dated 22 December 2006 from the Heritage Council to the Department of Planning expressing concern about some of the proposed deletions of heritage items in the draft LEP, including properties in the Strathfield Triangle. I reject the submission. At the time of the 2007 Demolition Consent, the draft LEP and the draft DCP did not apply to the subject land. GROUND 3: apprehended bias The applicant's case 101 The heart of the applicant's apprehended bias case is special condition 17 of council's contract of 30 June 2000 to sell to the second respondent 4, 8, 13, 17 and 19 Chapman Street, Strathfield. Numbers 4, 8 and 13 are listed as heritage items under the Heritage LEP. Special condition 17 provides: 17. Demolition of Improvements The Council agrees, as consent authority, to accept and approve an application for the demolition of all or any of the properties comprised in this contract subject to conditions as it may reasonably impose in accordance with its usual practice when approving such applications. The purchaser acknowledges that should such approval be forthcoming prior to completion of the purchase of any of the properties herein, it shall not be entitled to carry out any demolition works on a property until it has completed the purchase of such property. This clause shall not merge in completion. 102 The applicant's pleaded apprehended bias case, as amended during the hearing, in the Second Further Amended Points of Claim, is as follows: 25. Furthermore and in addition, the development consent is void or voidable as a result of the fact that at the time it was granted there were grounds for a reasonable apprehension of bias on the part of the council in making the decision as to whether to grant the 2007 Demolition Consent.

[95]

The " Council Houses " referred to in paragraph (a) of the particulars are 4, 8, and 13 Chapman Street. 103 The facts and matters relied upon by the applicant in relation to its apprehended bias claim, were summarised in paragraph 3.1 of its further written submissions, as follows: (a) On 30 June 2000 council contracted to sell 4, 8 and 13 Chapman Street to the second respondent with special condition 17 requiring council to accept and approve an application for demolition of those houses, the condition was not to merge on completion. The respondents submitted that special condition 17 was of no consequence because it was not before council or referred to in any of the relevant documentation at any stage of the process leading to determination of the 2006 Demolition DA. On the other hand I note that the 2000 contract of sale had been tendered in evidence in the then part heard proceedings challenging the 2003 development consent and were referred to in the applicant's submissions in those proceedings; (b) On 4 July 2000, council approved demolition of the three houses at 4,8 and 13 Chapman Street (DAs 197/00, 198/00 and 199/00). The respondents submitted that it was of no consequence that a differently constituted council had done this over six years before the 2007 Demolition Consent; (c) On 22 August 2000 council resolved that: Council indicates that it raises no issue with demolition of the buildings [listed as heritage items in draft LEP 103 (Heritage) within the Strathfield Triangle] other than those facing Leicester Street, including the buildings at the southern end of Leicester Street, which were not listed but which should be retained or rebuilt to enhance the streetscape. The respondents submitted that it was of no consequence that a differently constituted council had passed this resolution and that it was not indicative of a closed mind by council in considering the 2006 Demolition DA. (d) On 21 November 2000 council again granted development consent for demolition of 4, 8, 13 and also 21 Chapman Street and approved the erection of a residential apartment building containing 146 units on the land on which the cottages stood (DA 272/00). An examination of the circumstances reveals that it did so without conducting any Heritage assessment as required by the CPSO; (e) On 15 October 2002, council approved the Strathfield Triangle DCP in which it described its "vision" for the area. The vision was that the heritage items in Chapman Street would be demolished. The vision in the DCP was reached without proper regard for the provisions of the CPSO and the Heritage LEP and was inconsistent with its adopted policies for conservation of Concord's heritage for past, present and future generations. The respondents made much the same submission as they did in respect of the resolution of 22 August 2000; (f) On 11 December 2002, council approved erection of a residential flat building with an uncertain number of apartments which necessitated the demolition of 4, 8, 12, 13 and 21 Chapman Street (DA 172/02). The assessment of that DA reveals that the statutory scheme for heritage assessment applying to the land was not complied with. The respondents submitted that this would not be indicative of predetermination in the mind of a reasonable fair minded observer who would appreciate that the 2002 consent had been surrendered; (g) On 1 July 2003 council granted a further development consent for a residential flat building which necessitated the demolition of 4, 8, 12, 13 and 21 Chapman Street (DA 336/03). The respondents submitted that this would not be indicative of predetermination in the mind of a reasonable fair minded observer who would appreciate that the council had conceded in the part heard proceedings that the 2003 consent was invalid; (h) On 6 February 2007 council exhibited for public comment the Draft City of Canada Bay LEP and draft City of Canada Bay DCP, which did not recognise as heritage items in the LEP heritage map and schedule the properties which are currently listed as heritage items under the Heritage LEP and the CPSO; (i) The circumstances leading up to the determination of the development application on 20 February 2007 and the determination itself demonstrates that there was a reasonable apprehension that council was determined to approve the demolition of these buildings. The resolution to demolish was made in circumstances where the heritage impact statement of Mr Staas was obviously and fundamentally flawed. There was therefore no heritage impact statement before council for it to consider as required by cl 7(3) of the Heritage LEP. The draft Canada Bay LEP had not finished public exhibition. There was no approved planning vision for the Strathfield Triangle and no approved development for the site. The Minister may not have approved council's vision for the Strathfield Triangle when he came to consider whether to make the draft LEP in circumstances where the Heritage Council supported the retention of the heritage items. There was no reason to approve demolition of the heritage items, said to be " extremely important" to the heritage of Concord, in Chapman Street on 20 February 2007. The respondents submitted that it was not appropriate to place reliance on the outcome of a decision-making process as indicating prejudgment. The fact that the council did not provide reasons (a point made in the applicant's subsequent written submissions to which the respondents objected - see below) did not give rise to any adverse inference because council was under no legal obligation to provide reasons. The respondents submitted that the fact that council approved the 2006 Demolition DA against the recommendation of its own independent planning consultant, Mr Fletcher, did not provide a basis for apprehending prejudgment. 104 The council objected to some parts of this summary and to much of the applicant's written submissions that followed the summary because they went substantially beyond the matters pleaded and made wide ranging criticisms and allegations about the history of the subject land and other land in the neighbourhood. That criticism is valid to the extent indicated by the following analysis, based substantially on the respondents' submissions: (a) In paragraph (b) of its summary the applicant stated that it is relying on the fact that council approved demolition of three houses on 4 July 2000 (DAs 197/00, 198/00 and 199/00). This corresponds with the particular in paragraph 25(bi) of the Second Further Amended Points of Claim. However, the applicant's further written submissions (at paragraphs 3.10 to 3.16) went well beyond the fact that council granted such development consent. The applicant made various criticisms of the procedures and investigations adopted by council leading up to the granting of the development consents on 4 July 2000, including the adequacy and timing of public notification of the development applications, the content of the planning report that was before council, the content of structural engineering reports and the alleged lack of notice to the residents at 5-9 Chapman Street; (b) In paragraph (d) of its summary the applicant stated that it is relying on the fact that on 21 November 2000 council granted development consent for the demolition of 4, 8, 13 and 21 Chapman Street and the erection of an apartment building (DA 272/00). This much roughly corresponds with paragraph 25(e)(i) of the Second Further Amended Points of Claim, although the allegation is there put in terms of council having granted the development consent, but it subsequently being surrendered. However, the summary in the applicant's further written submissions also indicated that the applicant relies upon an " examination of the circumstances" relating to the granting of the development consent. This is developed in paragraphs 3.19 to 3.22 of the further written submissions, where the applicant raised issues concerning council's own proprietary interest in the development and the adequacy of the assessment of the impact on other heritage items in the vicinity; (c) In paragraphs (f) and (g) of its summary the applicant stated that it is placing similar reliance on the granting of development consents in 2002 (DA 172/02) and 2003 (DA 336/03). The corresponding pleadings (paragraph 25(e)(ii) and (iii)) refer to the fact that these development consents had been made but not implemented having been, respectively, surrendered and declared invalid. However, the applicant in its further written submissions embarked on a general collateral attack on the circumstances surrounding the granting of those development consents, including allegations about council's proprietary interest in the development (at paragraph 3.31), inadequacies in the planning reports as to such matters as built form controls (paragraphs 3.34, 3.37, 3.40) and the defective sale of Chapman Reserve (paragraph 3.41); (d) In paragraph (e) of its summary the applicant stated that it is relying on the fact that on 15 October 2002 the first respondent approved the Strathfield Triangle DCP. This much corresponds to the particular in paragraph 25(d) of the Second Further Amended Points of Claim. However, as the summary in paragraph 3.1(e) of the applicant's further written submissions makes plain, the applicant also wishes to rely on allegations about the Strathfield Triangle DCP having been made " without proper regard for the provisions of the CPSO and Heritage LEP" (see also paragraph 3.29); (e) Paragraph (i) of the applicant's summary revealed a new omnibus ground by which the applicant seeks to rely on the " circumstances leading up to the determination of the development application on 20 February 2007 and the determination itself " . This goes significantly beyond the matters particularised in paragraph 25(f), (g) and (h) of the Second Further Amended Points of Claim (these being the only matters in the particulars that could be said to have any relation to this part of the applicant's submissions). The free ranging nature of this line of attack is reflected in the substantive submissions (at paragraphs 3.48 - 3.52). For example, the applicant now says that an apprehension of bias arises from the fact that Council discussed the development application in closed session (paragraph 3.49(b)) and from the fact that Ms Hubert had previously prepared a Heritage Review that recommended removal of the relevant houses from the heritage list (paragraph 3.49(g)). There is now also an allegation about the lack of discussion of relevant matters in open forum (paragraph 3.51); and (f) The applicant apparently places no reliance on the matter referred to in paragraph 25(b) of the Second Further Amended Points of Claim, there having been no reference to this contention in submissions. 105 It can be seen that the applicant seeks to build its case on predetermination by making wide ranging criticisms and allegations about the history of council's dealings with the land in question and other land in the neighbourhood. In respect of each of the past development consents pleaded (each of which has lapsed, been surrendered or declared invalid), the applicant embarked in its closing submissions upon a collateral attack on their validity and the adequacy of the procedures and reports leading up to council's determination of each of the development applications. In respect of the relevant policies and planning instruments (the Strathfield Triangle DCP and the draft LEP and DCP publicly exhibited on 6 February 2007) the applicant seeks to criticise the exercise of council's policy making functions and, in particular, the allegedly inadequate consideration of matters concerning heritage protection. The applicant seeks to draw adverse inferences, as part of an allegation of apprehended bias, from the validity, propriety and adequacy of past decision making processes involving the council. 106 The respondents objected - and I uphold the objection - to this reformulation of the applicant's case because it is not supported by the applicant's pleadings and seeks to draw the respondents into a contest about historical, procedural, political and contextual facts associated, to varying degrees, with the facts as particularised in the pleadings. For these reasons, the respondents did not reply to those aspects of the applicant's submissions on predetermination that go beyond the scope of the pleadings. To this absence of reply there was one exception. One of the applicant's submissions was that council determined the 2000 development applications on 4 July 2000 before the public exhibition period had expired. As the respondents submitted, the evidence shows that public submissions were received during the notification period, which expired on 4 July 2000, and it is a reasonable inference that the council determination occurred at its meeting that evening. Therefore I do not accept that submission by the applicant in any event.

[97]

108 The respondents also submitted that, in any event, the applicant's supplementary argument is fundamentally flawed because no fully informed and fair-minded observer would conclude that, even if it were the case that there had been errors or deficiencies in past decision-making procedures by the council, it logically followed that a differently constituted council had a closed mind in 2007 when it determined the 2006 Demolition DA. Nor would such an observer conclude that because council had expressed certain views and adopted certain policies and instruments in favour of development in the Strathfield Triangle that were inconsistent with retention of heritage items in that area that council had thereby prejudged all future applications touching on heritage items in the area. Putting the applicant's case at its highest, a critical observer of the matters referred to in the applicant's further written submissions may conclude that criticisms could be made of the decision making procedures adopted by council in the past in determining particular development applications and that council had expressed an inclination (even a strong inclination) for development in the Strathfield Triangle that was inconsistent with the retention of heritage items. Such conclusions, it was submitted, could have no relevant bearing on the question of predetermination. In any case, it was submitted, the applicant's argument is built on a series of factual contentions that cannot be established without a thorough inquiry as to the surrounding context of each of the matters raised. 109 In my view, the sting in the applicant's apprehended bias case is special condition 17 of the 2000 sale contract. None of the other matters pleaded are sufficient of themselves to support a case of apprehended bias. In particular, the fact that council did not accept the recommendations of Mr Fletcher, who is not a heritage expert, is, of itself, of no significance. A council is not bound to accept recommendations made by consultants or staff. I have earlier rejected the proposition that council did not have regard to Mr Lonergan's affidavits. However, subject to those comments, they indicate a continuum of conduct that was consistent with honouring special condition 17. Legal principles concerning apprehended bias 110 In my opinion, the test of apprehended bias is whether a fair-minded, properly informed lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide. The governing principle for apprehended bias, as applied to a judicial officer or juror, was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] - [7] by Gleeson CJ, McHugh, Gummow and Hayne JJ as follows (citations omitted): [6] Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle .

[101]

115 Again, it has been said that the "application of the principle [of procedural fairness or natural justice] in connection with decision-makers outside the judicial system must sometimes recognise and accommodate differences between court proceeding and other kinds of decision making": Ebner (above) at [4], a passage quoted with approval by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [99]. These principles were noted in Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [118] by Basten JA (with whom Beazley and Hodgson JJ agreed). In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [5] the High Court held unanimously (Gleeson CJ, Gaudron and Gummow JJ) that: It was held in Re Refugee Review Tribunal; Ex parte Aala that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice [(2000) 75 ALJR 52; 176 ALR 219]. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established [[2001] HCA 17 at [95], [105], [106] per Gleeson CJ and Gummow J (with whom Hayne J agreed at [176]), [167] per Kirby J, [310] per Callinan J]. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process [See Johnson v Johnson (2000) 74 ALJR 1380 at 1382 [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; 174 ALR 655 at 658. See also R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 266 per Barwick CJ, Gibbs, Stephen and Mason JJ]. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings [See Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [181], [187] per Hayne J (with whom Gleeson CJ and Gummow J agreed at [100]). See also Ebner v Official Trustee (2000) 75 ALJR 277 at 279 [4] per Gleeson CJ, McHugh, Gummow and Hayne JJ; 176 ALR 644 at 646-647. This approach is consistent with that adopted by Mason J in Kioa v West (1985) 159 CLR 550 at 585]. Moreover - and on this the parties are in substantial agreement - regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. 116 An incisive analysis of the apprehended bias principle and confirmation of its application to the decisions of every public office-holder appear in the judgment of Kirby J (albeit in dissent on the facts) in Jia Legeng: [134] Quite different considerations are raised when an allegation of imputed bias is made in this Court. An applicant in such a case is not concerned, as such, with the state of mind or attitude of the decision-maker. The focus of attention is on the decision itself and the manner in which it was apparently arrived at. The criteria are not subjective to the decision-maker. They are wholly objective. The issue raised is decided not by reference to a serious accusation of deliberate wrong-doing and misuse of office. It is judged by the much more readily established consideration of how the decision, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively.

[103]

[136] The reason for embracing this different, and less stringent, requirement in the case of allegations of imputed bias is not difficult to find. It can be attributed to the social purpose served by this branch of the law of natural justice. That purpose is to uphold vigilantly the high standards applicable to the appearance of justice and fairness in official decision-making in Australia. At least two reasons sustain this approach. If the appearances are just, and the procedures manifestly fair, the likelihood is that just and fair conclusions will follow. As well, appearances affect the confidence of the community in the decisions of those who exercise public power on the community's behalf. Although many of the cases concerning imputed bias have related to courts, tribunals and decision-makers connected with them, the rule is one that applies to the decisions of every public office-holder. Being a rule of natural justice, it adapts to the nature and significance of the decision concerned, the character of the office of the decision-maker and the requirements, express or implied, of any legislation applicable to the case. 117 Hayne J in Jia Legeng at 561 (and following) acknowledged the application of the principles of both actual bias and apprehended bias to that case and explored whether the fact that a decision is committed to a Minister affected their content and application. His Honour recognised that non-curial decision-makers may not be under the same constraints as a court. Consequently, "it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly": at [192]. 118 In this Court in Williams v Director-General of the Department of Environment and Conservation (2) [2004] NSWLEC 613 at [77] Lloyd J said: "The test for apprehended bias is whether a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to resolution of issues before them: see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294…The reasonable apprehension of a fair-minded and informed observer must be firmly established: The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553". I agree. In McGovern v Ku-ring-gai Council [2007] NSWLEC 22 at [60] Pain J said that "The legal test of apprehension of bias is whether a fair-minded and fully informed observer would reasonably apprehend that there was bias by a decision-maker: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Kirby J at 549, referring to imputed bias, also Laws (Mason CJ, Brennan J) at 87". With respect, I am unable to agree with that formulation of the legal test, in particular its use of the word "would". The test for apprehended bias accepted by the High Court is expressed in terms of possibilities (might): eg Ebner at [6]; Jia Legeng at [135] per Kirby J. 119 Absence of bias, actual or apprehended, on the part of a decision-maker is one of the requirements of natural justice or procedural fairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [43] per Gleeson CJ and Hayne J. When a statute confers on a public official or body power to do something which affects a person's rights, interests or expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: ibid at [43], [126]. 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 where it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power: ibid at [30], [31]. These principles were considered and applied in Greyhound Racing NSW v Cessnock and District Agricultural Association [2006] NSWCA 333 at [117] - [123] by Basten JA (with whom Beazley and Hodgson JJA agreed). In considering development applications, a council "is bound by the common law rules of natural justice so far as they may be applicable to the situation created by the statutory provisions"; R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386 at 390 per King CJ.

[105]

121 The content of the apprehended bias test in the case of a local council should take into account that councillors, unlike judicial officers, are elected individuals with political ties who are expected to "support particular views as to what is in the best interest of the community": R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383 at 389 per Zeeman J. His Honour at 390 agreed generally with the observations of Sopinka J in Old St Boniface Resident's Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 at 408 - 409: In my opinion, the test that is consistent with the functions of a Municipal Cr and enables him or her to carry out the political and legislative duties entrusted to the Cr is one which requires that the objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that here is a prejudgment of the matter, in fact to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. 122 This Canadian test of pre-judgment was also approved in Victoria in Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 at [51] by Vincent J and in Queensland in Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117 (Douglas J). It appears also to have been applied in this Court by Pain J in McGovern v Ku-ring-gai Council [2007] NSWLEC 22 at [89]. The Canadian test seems to me to be a test of actual bias, not apprehended bias, to similar effect to the test of actual bias stated in Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 - 533 [71] - [72] by Gleeson CJ and Gummow J who said: "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 argument may be presented." 123 In the present case condition 17 of the 2000 contract required council to exercise its discretion in only one way. Such a contractual provision is invalid as a fetter on the exercise of the statutory discretion to grant a development consent. There is a duty to exercise a free and unhindered statutory discretion and such a contract cannot be enforced to prevent or hinder the exercise of the discretion: Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54 at 74 - 76; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 17. However, that is a different question from whether such a contractual provision might give rise to apprehended bias in the mind of the fair-minded lay observer of the council's subsequent grant of development consent such as to invalidate the consent. Here there has to be taken into account the principles discussed earlier that the hypothetical fair-minded lay observer is fully informed and is therefore assumed to know of such a contractual provision, but is not to be assumed to have a detailed knowledge of the law, for example concerning its invalidity. 124 In three similar cases to the present, in New Zealand, England and Victoria, it has been held that a council's contractual commitment to exercise its planning powers in one way enlivened the apprehended bias rule: Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA); Steeples v Derbyshire County Council [1984] 3 All ER 468 (Webster J); and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (Vincent J). 125 In Lower Hutt the city council entered into a contract to lease city land that it owned to a developer. The contract included a clause requiring the council forthwith to take all steps necessary to stop certain streets on the land. The statutory procedure for the stopping of streets provided that it was for the council to put forward proposals for the streets to be stopped. If there were objections, the council was under a duty to "inquire into and dispose of the objections", and as a result they might confirm or alter their proposals. Against the council's decision, an appeal lay to a court. One of the objectors to the stop applied for a writ of prohibition to prevent the council from proceeding to consider the objections on the ground that the council had improperly fettered its discretion. The Court of appeal affirmed the decision of Wild CJ to grant a writ of prohibition. McCarthy P, delivering the judgment of the Court of Appeal, said at 548 - 549: …we believe that the clear-cut distinction, once favoured by the Courts, between administrative functions, on the one hand, and judicial functions, on the other, as a result of which it was proper to require the observance of the rules of natural justice in the latter but not in the former, is not in these days to be accepted as supplying the answer in a case such as we have before us. Former clear-cut distinctions have been blurred of recent years by directions from highest authority to apply the requirement of fairness in administrative actions as well, if the interests of justice make it apparent that the quality of fairness is required in those actions. Lord Reid noted this in Ridge v Baldwin [1964] AC 40; [1963] 2 All ER 66. Since then the current of development has flowed strongly… … So, in our opinion whether the principles of natural justice should be applied to the function of a council in considering objections …does not turn on any fine classification of that function as judicial or administrative, but that instead whether they apply is to be decided upon a realistic examination of the legislation, the circumstances of the case and the subject matter under consideration. 126 His Honour went on to say at 549 - 550: But this is not to say that council was required to observe all the standards applicable to courts of justice. In each case, what is required may vary with the circumstances and the function to be discharged.

[106]

It is now necessary to see, in the light of the applicable circumstances, to what extent these rules apply to a council dealing with objections to a proposed street stopping. It is obvious that before a council reaches the stage of deciding to put in motion the machinery for stopping, much investigation will have been undertaken and many decisions made. There will have been a resolution passed by the council. A fair minded and responsible person might well think that when a council have reached that stage of decision, a real likelihood of bias must be seen to be present, because the council must to a large extent have pre-determined the issue. Nevertheless, the Legislature, well knowing this, has designedly left it to councils to determine at the next stage whether objections should be sustained. So something less than the scrupulous state of impartiality and its appearance required of Courts of justice is required of councils in these circumstances. We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals. As to the necessary appearance of impartiality, we think it must follow that if a public authority exhibits that it has undertaken in advance to exercise the power and duty expressly entrusted to it by the Legislature in a specific way which appears to obstruct the fair consideration and disposal of public rights, prohibition should normally issue. 127 In considering the application of these principles to the facts of the case, McCarthy P said at 550 - 551: …In entering into this contract, in our view, the council placed themselves in a situation where there are valid grounds for believing that they are unable to discharge fairly the duty which the statute has placed upon them. In these circumstances the courts should act to prevent them performing the duty.

[110]

But to satisfy the requirements of natural justice it must not only have been properly made, it must also be seen to have been fairly made. The plaintiff says that it was not seen, to have been fairly made, but that, on the contrary, it was seen, or was seen by the public at large to have been pre-judged, because by having agreed with [the developer] to use their best endeavours to obtain the permission or permissions in question, and by having undertaken a liability in damages if they failed to use those best endeavours, and generally by reason of the terms of the contract which I have recited, they had given the appearance of having imposed upon themselves and upon the planning committee a fetter or restraint on their freedom to discharge that duty in the way prescribed by the [relevant legislation]. 129 After taking into account the persuasive authority of the New Zealand case of Lower Hutt, his Honour formulated a test of apprehended bias which included the proposition that the court should look through the eyes of a reasonable person hearing all the relevant matters and knowing all the terms of the contract and decide whether the reasonable person would think that there was a real likelihood that the contract had a real material and significant effect on the decision . That test was not favoured in R v Sevenoaks District Council ex parte Terry [1985] 3 All ER 226 at 233 by Glidewell J who said that the correct test was whether the council had acted in such a way that it could not exercise a proper discretion. In this Court Cripps CJ in Blue Mountains City Council v Prospect County Council (1991) 74 LGRA 129 at 133 - 135 preferred the Sevenoaks test to the Staples test and the Lower Hutt test. The discussion of the appropriate test in these cases has, in my view, been overtaken and settled in Australia by the subsequent High Court cases and in England by R v Gough, as analysed earlier. 130 In R v Sevenoaks Glidewell J held that a council which had resolved to lease a site to a developer and which had then granted planning permission to the developer, was not biased because the formal lease agreement was not entered into until three weeks after the grant of planning permission. It appears that if the formal sale agreement had been entered into prior to the grant of planning permission, his Honour would have held that it was invalid for bias. His Honour cited with approval that part of the passage of McCarthy P in Lower Hutt City Council quoted above at [125]. 131 In R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501 a county council entered into a contract with a developer for the exploitation of land which the council owned, and undertook to do their best to procure planning permission. Permission was to be granted by the district council controlled by the same political party as the county council and at a meeting of the party's county group it was resolved that it would be the policy of the group to support the development. Woolf J held at 508 that the Steeples test did not apply in this case, as it was not alleged that that the district council had entered into any contract which precluded them from exercising an independent judgment or that any individual councillor had some personal financial interest in the development. In R v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 3 All ER 234 Stocker held that the apprehended bias test expressed in Steeples was not relevant where a planning authority's decision was found or conceded to be fair. However, in a later English case, the court held that the principle that a person was disqualified from participation in a decision if there was a real danger that they would be influenced by a pecuniary or personal interest in the outcome was of general application in public law and was not limited to judicial or quasi judicial bodies: R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 at 325 (Sedley J). 132 In the Victorian case of Bycon (above) the council was under a statutory duty, before selling land it owned, to enter into a public participation process involving the publication of advertisements calling for submissions (including offers from others to purchase the same land) and the consideration of those submissions. The council entered into detailed negotiations with a prospective purchaser to sell to it land the council owned. The council also purchased adjacent land solely for the purpose of resale to the purchaser. On the eve of entering into contracts for the sale, the council was reminded of its obligation to undertake the public participation process, which it had apparently forgotten. Contracts were entered into - a fact which was kept secret -, subject to a condition that the public participation procedures were to be held and submissions considered. The advertisements were published. These produced several written submissions, including indications from other prospective purchasers who offered, or indicated that they would pay, sums substantially larger than the price agreed with the developer-purchaser. Vincent J held at [55] that at the time the council became aware that it had to comply with the duty to advertise and call for submissions it "was so committed to the development, that it is unrealistic to suggest that the subsequent formal compliance was anything other than mere ritual, designed to avoid a successful challenge being made to the proposed sale by the creation of an illusion that any submissions opposing the development had actually been seriously considered". This appears to me to have been a finding of actual bias.

[113]

In Laws at 102 Gaudron and McHugh JJ said: …Whatever the precise scope of the doctrine of necessity in the natural justice context, it seems contrary to all principles of fairness that, on the ground of necessity, a person should have to submit to a decision made by a person who has already prejudged the issue. Likewise, there seems much to be said for the view that, in the absence of a contrary statutory intention, the ground of necessity should not require a person to submit to a decision made or to be made by a person who is reasonably believed to have prejudged the issue. 135 It has been said that "The argument on necessity is very much an argument of last resort and courts apply the doctrine very sparingly": R v Corporation of the City of Marion (1984) 37 SASR 436 per Zelling J (Jacobs J agreeing) at 445. In the present case the doctrine of necessity was not invoked. Conclusion 136 This case is concerned with apprehended bias by a council as a collective body. It is concerned with the contractual surrender by a council of its statutory obligation to exercise an independent judgment. The statutory regime under which councils function may contemplate, and thus permit, less than arms length dealings between a council and a developer which would be impermissible between a judge and a litigant. However, in my opinion, there is nothing in the relevant statutory regime which contemplates that councils may contractually surrender their power of independent judgment to determine a development application. 137 Special condition 17 of the 2000 contract is tainted with the vice of the council purporting to bind itself contractually for valuable consideration that it will exercise its discretion to grant development consent in a specified manner decided by considerations other than its own conscientious judgment at the time as to what should be done. In accordance with the principles discussed earlier, the hypothetical fair-minded, properly informed lay observer is assumed to know of special condition 17 and of the continuum of conduct by council since the 2000 Contract consistent with honouring special condition 17. Council took no steps to avoid, as best it could, any reasonable apprehension of bias. All this would have a strong bearing on the mind of the hypothetical observer of the decision-making process relating to the 2006 Demolition DA. 138 The hypothetical observer is not to be assumed to have legal knowledge that special condition 17 was invalid as a fetter on the council's discretion, nor that the doctrine of privity of contract might preclude it from being enforced at the suit of the applicant for the 2006 Demolition Application because it was not a party to the 2000 Contract. It is not significant that the 2000 Contract was not before council or referred to in relevant documentation during the process leading to the determination of the 2006 Demolition DA. If it matters, council had not lost sight of the 2000 contract. It was in evidence in the then part heard 2003 proceedings, and the applicant's written submissions dated 25 October 2006 in those proceedings referred to special condition 17 and contended that it evidenced predetermination and bias.

[115]

(a) acknowledge that its Development Control Plan was subject to the provisions of the applicable environmental planning instruments with the heritage listings; (b) acknowledge the Heritage Council's views; (c) require the submission of a substantive properly researched Heritage Impact Statement prepared in accordance with the CPSO; (d) satisfy the community that the earlier planning decisions to permit demolition of the items and redevelopment of the land were regarded by it as not relevant; (e) satisfy the community that the draft LEP was a planning instrument that carried little weight given its uncertainty and lack of imminence; and (f) provide relevant cogent reasons for not following the recommendations of its independent planning adviser Mr Fletcher if it so resolves. 140 I do not accept the submission. Some of the proposed measures are impossible or impracticable, others are unnecessary. 141 In my opinion, in order to allay the apprehension of predetermination by the hypothetical observer, it would be necessary and sufficient for council to expressly and publicly repudiate special condition 17 and expressly communicate its repudiation to the other party to the contract. Since that did not happen the hypothetical observer might reasonably apprehend that council might not bring an impartial mind to the resolution of the question it was required to decide. Consequently, in my opinion, the 2007 Demolition Consent is invalid. Discretion 142 In addition to a declaration that the 2007 Development Consent is invalid and an order that it should be set aside, the applicant presses for declarations that demolition works carried out by the third and/or fourth respondents' to the properties at 4, 6, 8 and 12 Chapman Street on or about 6 July 2006 were not authorised by a valid development consent and were carried out in breach of the EPA Act. A mandatory injunction against the third and fourth respondents compelling restoration was formerly sought but was abandoned. 143 I can see no discretionary reason why, as against council, relief should be refused. 144 The third and fourth respondents submitted that even if the Court finds that the 2007 Development Consent was invalid, the declaratory relief sought against them should be refused as a matter of discretion because: (a) it is virtually inevitable that the heritage item houses, or what is left of them, will be pulled down at some stage and therefore there is no utility in making the declaration; and (b) the making of declarations which fix upon them the stigma of breaching the statute and, by inference, of committing criminal offences, is unjustified in circumstances where the breach was retrospectively identified and where the work was done in reliance upon a current development consent upon which they were prima facie entitled to rely and did rely. 145 The demolition issue was formerly part of the 2003 proceedings but, by consent, was discontinued in those proceedings and resurrected in the present proceedings. On 2 May 2007 in the present proceedings the Court, by consent, noted that the third and fourth respondents conceded that, as a result of the making of the declaration of invalidity of the 2003 development consent in the 2003 proceedings, the demolition works carried out to 4, 6, 8 and 12 Chapman Street pursuant to a construction certificate dated 6 July 2006 was not authorised by any valid development consent. It is not possible to say what the ultimate fate of these heritage items will be. However, in the circumstances, I consider that it is appropriate to make a declaration to the effect of that concession. I decline, for the reasons identified in the third and fourth respondents' second submission, to make a declaration that their demolition works were carried out in breach of the EPA Act. Relief 146 I propose the following relief to give effect to my conclusions: 1. Declaration that the development consent in respect of development application No 649/2006 for premises at 2, 4, 6, 8, 10, 11, 12, 13, 15 and 21 Chapman Street, Strathfield granted by the first respondent on 20 February 2007 is invalid and of no force and effect. 2. Order that the said development consent is set aside. 3. Declaration that the demolition works carried out by the third and/or fourth respondents to the properties at 4, 6, 8 and 12 Chapman Street, Strathfield pursuant to a construction certificate of 6 July 2006 were not authorised by a valid development consent. 147 The matter will be listed before me at 4.00 pm on 4 September 2007 to make final orders. If any party wishes to contend that the relief should be other than that proposed above, it is to deliver short minutes of proposed orders to my chambers by 4 pm on the preceding day. Costs will be dealt with on that occasion if agreed or if argument is short, otherwise costs will be reserved. The exhibits may be returned.

Parties

Applicant/Plaintiff:

F & D Bonaccorso Pty Ltd

Respondent/Defendant:

City of Canada Bay Council

Legislation Cited (1)

Environment Administration Act 1991(NSW)

Cases Cited (57)

CITATION : F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth of Australia (1977) 139 CLR 54; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372; Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; BGP Properties v Lake Macquarie City Council (2004) 138 LGERA 237; Blue Mountains City Council v Prospect County Council (1991) 74 LGRA 129; Bycon Pty Ltd v Moira Shire Council [1998] VSC 25; Carstens v Pittwater Council (1999) 111 LGERA 1; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369; Franklins Ltd v Penrith City Council [1999] NSWCA 134; Gray v Minister for Planning (2006) 152 LGERA 258; Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333; Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Helman v Byron Shire Council (1995) 87 LGERA 349; Hill v Woollahra Municipal Council (2003) 127 LGERA 7; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43; Johnson v Johnson (2000) 201 CLR 488; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270; Lower Hutt City Council v Bank [1974] 1 NZLR 545; CASES CITED: Manly Council v Hortis (2001) 113 LGERA 321; Maxnox Pty Ltd v Hurstville City Council (2006) 145 LGERA 373; McGovern v Ku-ring-gai Council [2007] NSWLEC 22; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; Old St Boniface Resident's Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ; Parramatta City Council v Hale (1982) 47 LGRA 319; Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117; Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402; Prineas v Forestry Commission of New South Wales (1984) 53 LGRA 160; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; R v Amber Valley District Council, ex parte Jackson [1984] 3 All ER 501; R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 ; R v Corporation of the City of Marion; ex parte Independent Grocers' Co-operative Ltd (No 2) (1984) 37 SASR 436; R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386; R v Gough [1993] AC 646; R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304; R v Sevenoaks District Council ex parte Terry [1985] 3 All ER 226; R v St Edmundsbury Borough Council, ex parte Investors in Industry Commercial Properties Ltd [1985] 3 All ER 234; R v West Coast Council; Ex parte Strahan Motor Inn (1995) 87 LGERA 383; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Steeples v Derbyshire County Council [1984] 3 All ER 468; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Weal v Bathurst City Council (2000) 111 LGERA 181; Williams v Director-General of the Department of Environment and Conservation (2) [2004] NSWLEC 613; Zhang v Canterbury City Council (2001) 51 NSWLR 589

[1998] VSC 25

[1999] SAERDC 86

(2008) 158 LGERA 250

(1977) 139 CLR 54

(1990) 170 CLR 1

(2006) 145 LGERA 234

(2004) 138 LGERA 237

(1999) 111 LGERA 1

(2004) 135 LGERA 257

(1998) 100 LGERA 365

(2003) 197 ALR 389

(2000) 205 CLR 337

(2006) 152 LGERA 258

(1986) 7 NSWLR 353

(1995) 87 LGERA 349

(2003) 127 LGERA 7

(2002) 210 CLR 438

(2000) 201 CLR 488

(2006) 143 LGERA 277

(1990) 170 CLR 70

(1993) 81 LGERA 270

(2001) 113 LGERA 321

(2006) 145 LGERA 373

(2001) 205 CLR 507

(2001) 206 CLR 323

(2000) 111 LGERA 117

(2001) 206 CLR 57

(2001) 179 ALR 425

(1984) 37 SASR 436

(1979) 20 SASR 386

(1995) 87 LGERA 383

(2004) 136 LGERA 254

(2006) 146 LGERA 10

(2000) 111 LGERA 181

(2001) 51 NSWLR 589

(1995) 87 LGERA 435

(2000) 77 SASR 369

(1994) 181 CLR 41

(2000) 75 ALJR 52

(2000) 74 ALJR 1380

(1976) 136 CLR 248

(2000) 75 ALJR 277

(1985) 159 CLR 550

(1969) 122 CLR 546

(1953) 88 CLR 100

(1983) 151 CLR 288

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (57)