Hoxton Park Residents Action Group Inc v Liverpool City Council

Land and Environment Court (NSW)|2015-02-10|Before: Craig J

Statutory planning instruments

The relevant statutory land use controls applicable to the Site are those imposed by Liverpool Local Environmental Plan 2008 (LEP 2008). The portion of the Site of present concern is zoned part R2 Low Density Residential and part R3 Medium Density Residential under that instrument. By reference to the land use tables applicable to each zone, "educational establishments" are a permissible form of land use with consent from the consent authority. Ordinarily, that consent authority would be the first respondent. All parties accept that the development the subject of these proceedings is an "educational establishment" within the meaning of LEP 2008.
The other statutory planning instrument of relevance to the present proceedings is State Environmental Planning Policy (State and Regional Development) 2011 (SEPP 2011). By cl 8(1)(b), development is declared to be State significant development for the purposes of the EPA Act if "the development is specified in Schedule 1 or 2". Clause 15 of Sch 1 is in the following terms: "15 Educational establishments Development for the purpose of educational establishments (including associated research facilities) that has a capital investment value of more than $30 million." By s 89D of the EPA Act, the Minister is the consent authority for State significant development.
Part 4 of SEPP 2011 is headed "Regional development". Clause 20 provides that Pt 4 "applies to development of a class or description included in Schedule 4A to the Act". Clause 3 of that Schedule identifies development "that has a capital investment value of more than $20 million". Clause 6 is headed "Private infrastructure and community facilities over $5 million". Under that heading the clause lists development for a number of disparate purposes that, having a capital investment value (CIV) of more than $5 million, fall within the clause. Included among those development purposes are "educational establishments".
Clause 21 of SEPP 2011 relevantly provides: "21 Council consent functions to be exercised by regional panels (1) A regional panel for a part of the State may exercise the following consent authority functions of the council or councils for that part of the State for development to which this Part applies: (a) the determination of development applications, and applications for the modification of development consents previously granted by the panel, in accordance with Part 4 of the Act …".
Subclause (2) of cl 21 identifies a number of functions of a council, as a consent authority, that are not conferred by the clause on a regional panel. Subclause (3) provides that the council remains the consent authority for development to which the Part applies "subject to the exercise by regional panels of functions conferred on them by this clause".
It will be necessary to refer to further provisions of both the EPA Act and the Regulation when addressing the second and third issues that I have earlier identified. However, for present purposes it is sufficient to record that the second respondent is a joint regional planning panel appointed to exercise functions in relation to development within the local government area of Liverpool.
All parties agree that the CIV of the development contemplated by the impugned consent exceeds $5 million. As will be apparent, the issue, later to be addressed, is whether that value exceeds $30 million. If the CIV does not exceed that figure, the applicant accepts that the second respondent, properly constituted, was the relevant consent authority to determine the development application for the erection of school buildings and for school use of the Site.

Earlier litigation in this Court

On 15 June 2009, the first respondent granted development consent to the fourth respondent to develop the Site for the purpose of a school, including the erection of buildings and site works necessary to accommodate the intended school use (the 2009 consent). In earlier proceedings in this Court, the validity of the 2009 consent was challenged by the present applicant.
Initially, the applicant was unsuccessful in its challenge. Although the 2009 consent was held by Biscoe J to be invalid, his Honour determined that the challenge brought by the applicant was time barred by s 101 of the EPA Act (Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 and Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2010] NSWLEC 259). However, his Honour's determination that the proceedings were time barred by s 101 was overturned by the Court of Appeal (Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638). As a consequence of the latter decision, the matter was remitted to Biscoe J to determine what relief, if any, should be granted (at [57]).
Upon remitter, Biscoe J declared the 2009 consent to be invalid and restrained further work on the Site pursuant to that consent (Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119 at [63]). It will be necessary to refer to the terms in which his Honour framed the orders then made when addressing the first ground of challenge advanced by the applicant in the present proceedings.

The present development application and its determination

I have earlier indicated that the development application, the subject of the present proceedings, was lodged with the first respondent on 26 June 2012. The application was accompanied by a number of reports, including a planning report in the form of a Statement of Environmental Effects and a report prepared by a firm of quantity surveyors. Within the first respondent's record system, it was assigned the reference DA 1251/2012. It is convenient to refer to the development application by that reference number.
The development application form for DA 1251/2012 was signed by the fifth respondent as applicant, who also signed the form on behalf of the third respondent, as owner of the Site, as he was authorised by the third respondent to do. For convenience, I will refer to the third, fourth and fifth respondents collectively as "the School respondents".
The application form signed by the fifth respondent described the work proposed as being "construction of car park, completion of building, construction of other school buildings in stages" and described the proposed use as being an educational establishment. Documents accompanying that development application when lodged with the first respondent described the development for which consent was required in more expansive terms. The accompanying documents included detailed architectural drawings, with a covering letter from the architects responsible for their preparation. It will be necessary to refer to these documents in more detail when addressing the applicant's first ground of challenge.
The development application was required to be lodged with the first respondent conformably with cl 21(2) of SEPP 2011. Among the functions required to be performed by the first respondent was the receipt and assessment of the development application, as well as the determination and receipt of fees for that application.
On 9 August 2012, DA 1251/2012, together with the documents accompanying that application, was forwarded by the first respondent to the second respondent. The letter from the first respondent to the second respondent of that date included the following paragraph: "The application with a capital investment value of $30,230,515 proposes an educational establishment. Pursuant to Clause 6 of Schedule 4A of the Environmental Planning and Assessment Act 1979, the proposal would be applicable to 'Private infrastructure and community facilities over $5 million' and is therefore referred to the JRPP-Sydney West as the determining authority." It will be necessary to address that statement, purporting to identify the CIV, when determining the second ground upon which the applicant challenges the validity of the consent.
DA 1251/2012 was publicly notified on 22 August 2012. The public exhibition was implemented by the first respondent and the period of public exhibition was from 22 August 2012 to 21 September 2012.
As a consequence of the public exhibition, a number of submissions were received, both supporting and opposing the grant of development consent. As a consequence of considering those submissions, DA 1251/2012 was amended by the fifth respondent. The amended application was again publicly notified for a period from 14 November 2012 to 29 November 2012.
Subsequently, a report was prepared for the second respondent by staff of the first respondent, in which a detailed assessment was made of DA 1251/2012, as amended (the Assessment Report). After describing the development, identifying the relevant planning controls, considering and commenting upon submissions received as a consequence of public exhibition of the proposal on two occasions, the report concluded by stating that the application was "considered to be worthy of support subject to conditions". Recommended conditions were attached.
The Assessment Report was considered at a meeting of the second respondent on 28 February 2013. The determination of DA 1251/2012, described as "Staged Development of an Educational Establishment with associated car parking and landscaping", was the only item on the agenda for that meeting. The minutes of the meeting record that the second respondent was addressed by three opponents of the application, including a representative of the applicant. Representatives of the School respondents, as well as two consultants retained by them, also addressed the meeting.
The second respondent resolved at that meeting to approve the development application "for the reasons contained in the [Assessment Report]", subject to amendments to the draft conditions attached to that report together with three additional conditions that the second respondent added. A notice of determination of the development application, prepared to accord with s 81(1)(a) of the EPA Act, was given by the first respondent on 14 March 2013. Although the decision had been given by the second respondent on 28 February, cl 21(2)(g) of SEPP 2011 required that the first respondent give that notice.
On 12 December 2012, the fifth respondent made application to the first respondent pursuant to s 149D of the EPA Act for a building certificate. The buildings in respect of which the certificate was sought were described in the application form as "demountables and part building". The part building identified was described as a "partly built permanent school building" for which approval had been sought from the first respondent but "Court ruled invalid".
The building certificate application was also accompanied by a number of expert reports, including a Statement of Environmental Effects. The latter report referred by description to "works completed on the School site" for which the building certificate was sought. The works so described included demountable buildings, palisade fences and "partially constructed first stage of the permanent school buildings".
In the Assessment Report considered by the second respondent, receipt by the first respondent of the building certificate application is recorded, with the indication that it would be determined "upon the determination of the subject development application". In fact, a building certificate was issued by the first respondent on 3 April 2013. The buildings identified as being the subject of the certificate are the demountable classrooms, fence and partially constructed classrooms.
At the time at which the second respondent determined DA 1251/2012, it was constituted by five members. Two such members were Councillors Hadchiti and Hadid. Both had been nominated for appointment to the second respondent by the first respondent. Each of them was a member of the first respondent when the 2009 consent was granted.

Issue 1: the retrospective consent issue

The applicant submitted that the consent granted by the second respondent on 28 February 2013 to DA 1251/2012 was for the erection of buildings that had already been erected and for the carrying out of works that had already been undertaken. The declaration made by this Court in Hoxton Park (No 3) had declared the 2009 consent, pursuant to which those buildings had been erected and those works carried out, to be invalid. As a consequence, the second respondent lacked power to grant the consent that it purported to give.
The applicant also submitted that to the extent to which buildings to be erected and works to be undertaken as proposed in DA 1251/2012 relied upon buildings already erected and works already undertaken pursuant to the 2009 consent, the latter building and works were unlawful. This had the consequence that a consent could not be granted that depended upon the existence of those buildings or works.
The grant of a building certificate for the existing building work was irrelevant, as it provided no legal sanction for a building or part of a building that had been erected without a lawful development consent granted under the EPA Act where such a consent was required. Reliance is also placed upon the fact that the building certificate "postdates the decision of the determining authority, the JRPP [28 2 2013] and of the consent authority the Council [14 3 2014] and is also after the generous 12 months period [sic] allowed by the softening orders of Biscoe J".
The applicant further submitted that the consent granted by the second respondent assumed the lawfulness of the school use already being undertaken of the Site. As that use was not an "existing use", it could only lawfully be undertaken with development consent. However, as the 2009 consent pursuant to which that use was undertaken was invalid, it was not open to the second respondent to rely upon that use when determining to grant development consent. The applicant contended that use of the Site continued beyond the period for which an injunction restraining use of the Site had been suspended by Biscoe J in Hoxton Park (No 3).
Permissibility of development on the Site, both at the time at which the 2009 consent was granted and when the second respondent granted consent on 28 February 2013, was controlled by the provisions of LEP 2008. As I have earlier stated, under the applicable land use tables, development of the Site for an educational establishment was permissible with development consent. At the time at which the 2009 consent was granted, the first respondent was the consent authority for the purpose of determining the development application for an educational establishment.
Although not articulated as such, an element of the applicant's submission seems to be that, as the 2009 consent was declared to be invalid, development carried out in compliance with it was also unlawful. Section 76A(1) of the EPA Act proscribes the carrying out of development, where development consent is required for that development by the provisions of a planning instrument, without a consent that "has been obtained and is in force". As it is to be assumed that there was never a consent that was in force, authorising the work carried out under the 2009 consent, that work was unlawful.
The second respondent and the School respondents submit that the factual basis for the applicant's submission is unfounded. In the alternative, the School respondents submit that even if I reached the conclusion that the development consent granted by the second respondent did purport to grant consent for works that had already been carried out, that would not render invalid the whole of the consent. It would remain an operative consent for all buildings and works that, at the date of that consent, were yet to be carried out.
In order to address the competing submissions of the parties, it is first necessary to notice the relevant terms of the 2009 consent and works undertaken pursuant to that consent, prior to the making of orders on 23 March 2012 in Hoxton Park (No 3). The 2009 consent identified the development to which it related as being: "Erection of an educational establishment for Kindergarten to Year 12, to be constructed over seven (7) stages incorporating up to 800 students and 50 staff members, temporary demountable buildings, construction of a new road and associated car parking and landscaping. Consent is granted for development to occur over seven (7) stages. No subsequent development applications are required to be lodged in respect of this development."
The conditions of consent identified the works intended to be undertaken in each of seven stages. Stage 1 works were described as including the erection of five demountable classrooms and associated amenities, site preparation works, construction of an internal road and 10 car parking spaces with lighting to the internal road and car parking spaces, landscaping, drainage work and acoustic and security fencing. Stage 2 works were described as including construction of two 2-storey buildings with classrooms, Kindergarten to Year 6, construction of extension to the internal road and nine additional car parking spaces, lighting to the internal road and car parking spaces, landscaping, drainage work and security fencing. Works intended for the remaining five stages included the construction of a number of two storey buildings providing both classrooms and other facilities as well as the completion of landscaping and drainage work, with the final stage intended for removal of demountable classrooms. All stages of the development were required to be carried out in accordance with nominated architectural plans, landscape plans and specialist reports.
Only work within Stages 1 and 2 had been undertaken when orders were made in Hoxton Park (No 3). Within Stage 1, earthworks had been undertaken, demountable buildings constructed, some car parking provided as well as some of the landscaping works intended for that stage. Use was being made of the demountable classrooms by students and staff. The two storey building for Kindergarten and Primary students, shown as being within Stage 2, was partially constructed to a stage where it was described as being "65% complete". Fencing had also been undertaken in both stages.
It is next necessary to consider the orders made by Biscoe J in Hoxton Park (No 3). After declaring the 2009 consent for construction and use of a school and the construction of a road on the Site to be invalid, his Honour made three further orders of present relevance. Those orders are (at [63]): "(2) Order that the second and third respondents are restrained from carrying out any further work on the said land pursuant to the said development consent unless and until a further development consent authorising the work is granted. (3) Order that the second and third respondents are restrained from using the said land as a school unless and until a further development consent to do so has been granted. (4) Order that Order 3 be suspended until and including 31 March 2013."
In the context of the applicant's submissions, there are two matters to be noted from the terms of these orders. Contrary to the inference to be drawn from one of the applicant's submissions, his Honour did not foreclose to the School respondents the capacity to seek a further development consent for the use of the Site as a school. So much is apparent from the terms of Order 3. Further, the clear purpose of Order 4 was to allow the school use of the demountable buildings on the Site, constructed in Stage 1, to continue for a further period of 12 months. As is made apparent at [26] of his Honour's judgment, one of the purposes of providing such a lengthy suspension was to afford an opportunity for a further development application to be made for consent to develop the Site for school purposes.
As it happened, on 12 December 2012 the parties consented to an order in the earlier proceedings extending the suspension of Order 3 until 31 December 2013. The order allowed the School respondents to operate the school on the Site in accordance with nominated conditions of the 2009 consent insofar as those conditions related to Stage 1 of that consent. This extension of time would seem to have been overlooked by the applicant when the submission was made on its behalf in the course of the hearing before me that the use of the Site had continued after 12 March 2013 "unlawfully and without any sanction of an order of this Court".
Contrary to the submission of the applicant, I am unable to accept that DA 1251/2012 was prepared and considered on the basis that it sought consent to the erection of buildings, the carrying out of works and the use of land that had been determined to be unlawful. I have earlier referred to the description of "work" in the development application form, its reference to "completion" of building and construction "of other school buildings" in stages. A letter that accompanied the development application from PMDL Architects, and addressed to the first respondent, attached architectural and landscape drawings in support of the application. In that letter reference is made to the 2009 consent and the fact that the orders of this Court in relation to it had the consequence that "all site works have been suspended as of April 19 2012". The letter also records the "concession" of the Court, permitting the existing Kindergarten school being conducted in the demountable buildings to continue until March 2013. There is then reference to the expenditure incurred by the school on works carried out in the first two stages, comprising: "● Site remediation (decontamination, excavation, site filling, levelling and compaction) ● Provision of site services and infrastructure including roads, stormwater, drainage & electrical sub station ● Stage 1 - Construction of a demountable school with fencing, grounds and car parking facilities ● Stage 2 - Part construction (approx. 65%) of the first permanent Kindergarten-Primary facility ● Construction of acoustic and palisade fencing to approx. 85% of the site." The architect's letter concludes by stating that approval is sought "for the remainder of Stage 2 and subsequent Stages (6 in total)".
The architectural drawings that accompanied that letter distinguished between buildings and works constructed or partly constructed in Stages 1 and 2 of the development and the remainder of the buildings and Site development contemplated by the development application. On the site plan and a number of other plans, the areas of, and buildings within, Stages 1 and 2 were hatched or marked differently from the remainder of buildings or works shown on those architectural plans. In the hatched area of each plan were the words: "Refer drawing DA101 for planning indicating extent of site works completed to date & being assessed under the new building certificate application to Liverpool City Council."
On the indicative staging plan (drawing DA 601B) the demountable classrooms in Stage 1 were marked as existing while the two storey Kindergarten and Primary building in Stage 2 was marked with the words "construction started (65% complete)". What was then shown as Stage 2 was the completion of the upper level of the Kindergarten and Primary building followed by separate drawings of buildings proposed in each of Stages 3, 4, 5 and 6. It is unnecessary to multiply examples from the architectural drawings accompanying the development application to demonstrate that they had been prepared so as to distinguish between buildings and works that had already been completed and those buildings and works for which consent was sought.
The Statement of Environmental Effects that accompanied DA 1251/2012 was prepared by Smyth Planning, a firm of consultant planners. The "preamble" in that document stated that the application sought approval for the use of the Site and also sought approval for "the rest of the school as detailed in the application". In section 2.1 of that document, the author repeats that the application seeks approval for the use of the Site for an educational establishment, being a school. The description of the application then continues: "The construction of the remainder of the car park and additional parking as Stage 1 as well as the remainder of the Kindergarten and Primary permanent building as Stage 2. The rest of the Primary and Secondary School campus which is laid out such that the buildings are circling the main central quadrangle and assembly area." Reference is then made to the plans and a description given of each building and its intended use on the remainder of the Site.
I have earlier referred to amendments made to DA 1251/2012 following the initial public exhibition of the application. The effect of those amendments was to adjust the set back of buildings to Pacific Palms Circuit. Importantly, the amended architectural drawings maintained the distinction between the buildings and works that had been completed and those for which development consent was sought. The drawings contained the same endorsements which I have identified as appearing on the architectural drawings submitted with the development application in June 2012.
On my reading and analysis of the documents forming part of, or accompanying, DA 1251/2012, there can be no doubt that the application intended to seek development consent only for those buildings and works that were proposed to be erected or undertaken following the grant of development consent and not those existing at the time at which orders were made in Hoxton Park (No 3). That intention was clearly stated in the Assessment Report prepared on behalf of the first respondent for the second respondent and considered by the latter at its meeting on 28 February 2013. The Assessment Report acknowledges, more than once, the 2009 consent and the decision of this Court that the consent was invalid. Consistent with the description of the development intended by DA 1251/2012, the Assessment Report describes the "current application" as seeking consent "for the use of that part of the school already built (Stages 1 and 2)" and for "the construction and completion of the remainder of the school buildings", referred to as Stages 3 to 6 [Emphasis added].
I have earlier recorded that the consent granted by the second respondent on 28 February 2013 was notified to the fifth respondent, as required by s 81(1)(a) of the EPA Act, on 14 March 2013. Contrary to the submission of the applicant, the notification of that consent by the first respondent did not involve any separate determination of DA 1251/2012 by the first respondent. In notifying the fifth respondent of the determination of the development application by the second respondent, the first respondent was doing so in performance of the function retained by it under cl 21(2)(g) of SEPP 2011.
The development for which consent was granted by the second respondent was described as being: "Staged Development of an Educational Establishment with associated car parking and landscaping".
Below the heading "Conditions" recorded in the notice of determination is a table describing each of Stages 1 to 6. The first line in the description of each of the works contemplated by Stages 1 and 2 is a note stating that works in that stage have been partially completed. The description of the Stage 1 works refers to the "completion" of construction of specific parking areas, illustrated in a staging plan, and the carrying out of landscaping work outlined in a landscape staging plan. Stage 2 is described as involving "completion" of the Kindergarten and Primary building, fencing and further works illustrated in the staging plan that are identified, as well as carrying out landscaping work identified in the landscape staging plan.
There follows in the conditions of consent, a list of the individual architectural drawings and landscape drawings beneath the requirement that development be carried out "strictly in accordance with" those plans. The plans include a combination of the plans initially lodged with the development application, where the detail depicted in them had not been amended, together with the amended drawings or plans, reflecting the amendments made in response to submissions received following public exhibition of the development application.
Conditions 95 to 122 separately address the use of the Site. Condition 123 requires the issue of a building certificate "for all building works currently completed" prior to the issue of a construction certificate for works in Stage 1.
The terms in which the 2013 consent were granted, read with the conditions that attached to that consent, make apparent that it authorised the erection of buildings and carrying out of works that had not yet been erected or carried out, as the case may be. The consent did not purport to sanction and could not be construed as sanctioning, the buildings erected, works carried out or use made of the Site under the 2009 consent.
Moreover, condition 123, requiring the issue of a building certificate before Stage 1 works were undertaken, identifies the nexus between the grant of consent and the building certificate application that had been lodged with the first respondent. Not only does that condition gainsay the challenge by the applicant to the relevance of the building certificate application but, importantly, it seems to me to answer the applicant's contention that, in some way, irregularity arose because the building certificate was issued after the second respondent had determined to grant development consent. Condition 123 has the consequence that unless the first respondent issued the building certificate, building and works under the consent could not proceed. That requirement does not identify illegality in granting the development consent.
I should add that the application for the building certificate related to those building works carried out under the 2009 consent. Reporting to the second respondent that the building certificate application had been made, coupled with the imposition of condition 123, is yet a further demonstration that the development consent granted by the second respondent was directed to future and not past development activities on the Site.
The submission of the applicant that the consent of the second respondent was invalid because it assumed the lawfulness of the development already undertaken on the Site cannot be sustained. In so concluding, I encompass in the reference to "development" the relevant elements of that term, as defined in s 4 of the EPA Act, namely the use of land, the erection of buildings and the carrying out of works. The conclusion that I have addressed requires elaboration.
The consent granted by the second respondent was directed to use of the Site from the date of its operation; consent to that use, in no way depended upon past use. The fact that the 2009 consent did not validly sanction use of the Site for a school did not have the consequence that it was never open to a consent authority to grant consent for future use in the same terms. Order 3 made by Biscoe J in Hoxton Park (No 3) contemplated that such a consent could be given, in which case the constraint against use imposed by that Order would no longer be applicable. No retrospectivity in consenting to that use is involved.
The observations that I have made as to use are relevant also to the demountable buildings that were erected and used in Stage 1 of the development under the 2009 consent. If I am correct, as I believe I am, in determining that the consent given by the second respondent on 28 February 2013 did not purport to grant consent to the existing demountable buildings, the consent then granted sanctioned only the use of those buildings from the date upon which it operated, namely 14 March 2013. The suspension of Order 3 granted by Biscoe J and the subsequent extension of that suspension until 31 December 2013, meant that between the making of his Honour's order and the date upon which the second respondent granted its consent, use of the demountable buildings for the purpose of an educational establishment was not the subject of any relevant legal constraint. Thereafter, the effect of the consent was to remove the prohibition on use otherwise imposed by operation of s 76A(1) of the EPA Act, as contemplated in Biscoe J's Order 3.
The fact that there remained the theoretical prospect that the demountable buildings might be the subject of an order for demolition did not, on that account, identify invalidity in granting consent to their use. That theoretical prospect was addressed by the second respondent in granting its consent by imposing condition 123.
By parity of reasoning, no invalidity attends the consent granted by the second respondent because the consent includes completion of the two storey Kindergarten and Primary building partially constructed under the 2009 consent. The building works yet to be completed for that building could appropriately be assessed and consent granted for them to be undertaken on the assumption that so much of the building that had been constructed could remain. If that assumption ultimately proved to be incorrect, the building works to complete that building, authorised by the 2013 consent, could not proceed. Condition 123 made that apparent.
The knowledge of the second respondent that an application for a building certificate had been made in respect of the buildings constructed under the 2009 consent is important. It must be assumed that the second respondent understood the consequence for those building works that had been carried out under the 2009 consent if a building certificate was issued.
By s 149D(1) of the EPA Act, upon application being made to it, the first respondent was required to issue a building certificate if it appeared that: "(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings."
The provisions of s 149E of the EPA Act then need to be noticed. That section relevantly provides: "149E Effect of building certificate (1) A building certificate operates to prevent the council: (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters existing or occurring before the date of issue of the certificate. (2) A building certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate: (a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and (b) from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear. …"
While the section does not, in terms, authorise the erection of a building erected in the absence of a lawfully required consent or approval, the clear purpose of a building certificate is to sanction the continued existence of the building to which it relates. That conclusion is reinforced by the circumstance that the provisions enabling an application for, and the issue of, a building certificate form part of the same statutory scheme, namely the EPA Act, under which the erection of buildings as a component of "development" is otherwise controlled. It seems to me that it would require a perverse reading of the legislation if a building erected pursuant to a development consent that was subsequently determined to be invalid, remained forever tainted by illegality, such that it was always susceptible to an order for demolition, notwithstanding that a building certificate had been issued in respect of that building. The purpose in enacting s 149E makes clear that no such perversity should exist.
For the reasons that I have given, I accept the submissions of the respondents that the decision of the second respondent on 28 February 2013 to consent for DA 1251/2012 did not purport to grant development consent either to past use of the Site or to the erection of buildings or site works carried out under the 2009 consent. Properly understood, the consent granted by the second respondent operated to remove the prohibition upon development imposed by s 76A(1) of the EPA Act by allowing development in the form of Site use as an educational establishment and the erection on the Site for that purpose of buildings, including building additions, that had not previously been erected or carried out, together with associated site works.
That conclusion renders it unnecessary to consider the alternate submission of the School respondents that, even if, contrary to their primary submission, the consent did have a retrospective component, it would still operate as a consent to authorise those buildings and works yet to be undertaken, as identified in the development application.
I reject the applicant's first ground of challenge.

Issue 2: The Capital Investment Value issue

The essence of the submission by the applicant on this ground is that the CIV of the development contemplated when DA 1251/2012, when lodged with the first respondent, exceeded $30 million with the result that the Minister was the only consent authority able to determine the application. The purported consent of the second respondent was therefore a nullity.
So understood, the central issue to be determined is whether the CIV exceeded $30 million. In support of its submission that the CIV exceeded that figure, the applicant relies upon what are said to be "admissions" by the fifth respondent, as the applicant for development consent, and also "admissions" by the first and second respondents that the CIV exceeded the limit that allowed the second respondent to determine the application.
The respondents contend and the applicant accepts that the determination of the CIV is "jurisdictional" in that it was a precondition to the exercise of power by the second respondent, as a determining authority, that the CIV of development identified in DA 1251/2012 was more than $5 million (cl 20 of SEPP 2011 and cl 6 of Sch 4A to the EPA Act) but not more than $30 million (cl 8(1) and Sch 1, cl 15 to SEPP 2011) (Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [56]; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189 at [26]). If the CIV is found to exceed $30 million the respondents accept that the Minister was the consent authority.
The applicant also accepts that in challenging the exercise of power by the second respondent on the basis that the CIV exceeded $30 million, it bears the onus of establishing that fact, being one that is ultimately for me to determine on the evidence tendered at the hearing (Calardu (LEC) at [93]).
The applicant did not seek to tender any independent evidence directed to the calculation of the CIV, based upon an analysis of the development identified in DA 1251/2012. Rather, it relied upon the admissions said to have been made by the first, second and fifth respondents together with a document accompanying the development application.
The expression "capital investment value" is defined in both cl 1 of Sch 4A to the EPA Act and in cl 4 of SEPP 2011 to have the meaning given to that expression in the Regulation. Clause 3 of the Regulation defines the expression in the following terms: "capital investment value of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs: (a) amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 6 or 6A of Part 4 of the Act or a planning agreement under that Division, (b) costs relating to any part of the development or project that is the subject of a separate development consent or project approval, (c) land costs (including any costs of marketing and selling land), (d) GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth."
It is with that definition clearly in focus that the evidence relied upon by the applicant must be assessed.
Item 4 of the development application form for DA 1251/2012 posed the question: "What is the construction/work cost of this proposal?". Printed beneath that question and beside a box for completion by an applicant are the words "Contract price of works (incl. labour and materials) OR Council valuation of work (refer 1.12)". In the present case, the blank box in that item has been completed in manuscript in the following way: "30.23m + Bldg 22.58m $24,838,930" The third of those figures would appear to equate to the second figure (fully stated) with 10 per cent GST added to it.
The applicant identifies the first of those three figures as evidence that the CIV exceeded $30 million. Why it selected that figure, rather than the second figure (assuming it was appreciated that the third figure was calculated as I have indicated), is not explained. Further, it is submitted that as the fifth respondent signed the development application form, it should be taken as an admission by him that $30.23 million was the CIV figure (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [45]), an admission that can more readily be accepted in the absence of any evidence from him offering a different explanation for that figure (Jones v Dunkel [1959] HCA 8; 101 CLR 298).
The applicant submits that the "admission" by the fifth respondent is an admission for the purpose of the Evidence Act 1995 (NSW). The figure stated in response to item 4 should be so regarded as it is a previous representation made by the fifth respondent that is adverse to his interests in the outcome of these proceedings. Reference is made to the definitions of "admission" and "representation" respectively in the Dictionary to the Evidence Act.
Assuming, for the present, that an admission may be relevant when determining an issue of the present kind, the only relevant "admission" is one that is directed to the CIV of the development. Unexplained reference to three different figures in stating the "construction/work cost" of a proposal does not self-evidently equate to the identification of the CIV, particularly having regard to the definition of CIV in cl 3 of the Regulation.
I apprehend that the applicant's submission in this context has its origin in the submission also made by it that the application for development consent was required to contain information as to the CIV of that development. The submission was said to be founded upon cl 50(1)(a) of the Regulation, read with cl (1)(h1) in Pt 1 of Sch 1 to the Regulation. The implication of the submission was that the figure(s) stated in response to item 4 was (were) intended to meet the requirement of those provisions.
However, the obligation imposed by those provisions of the Regulation to provide CIV information as part of the development application only applied to a development application for State significant development. The fifth respondent did not purport to make application for development of that kind. Moreover, item 4 of the development application form did not call for provision of the CIV. Without more, the figures inserted in response to the information sought in item 4, cannot be interpreted as a representation that the CIV was any one of those three figures.
The applicant identifies two sources of "admission" by the first respondent as to the CIV of the development. The first is the letter dated 9 August 2012 with which it forwarded to the second respondent a copy of DA 1251/2012 together with all of the documents that accompanied that application. I have earlier quoted the paragraph of that letter in which reference is made to the CIV of $30,230,515. It is that paragraph upon which the applicant relies.
The source of the "CIV" stated in that paragraph will be discussed later in these reasons. However, for present purposes, the statement cannot be taken as an "admission" for the purpose of the Evidence Act as it is not a representation adverse to the interests of the first respondent in the outcome of these proceedings. Although the applicant submitted that upon receipt of DA 1251/2012 the first respondent "had a duty like all subordinate administrative entities to determine what was its jurisdiction", in the present context, that submission is misconceived. Although by cl 21(2) of SEPP 2011, a function retained by the first respondent was to receive and assess the development application, the function of determining the application included the function of determining "jurisdiction", which fell exclusively upon the second respondent (Calardu (LEC) at [48]).
It may be that this misconception also informed the declaratory order sought by the applicant, directed to invalidity of the consent granted on 28 February 2013 "by the first respondent in their [sic] capacity as the Consent Authority". The first respondent played no role in granting the development consent and, as I have indicated, performed no relevant function available to it in deciding (if that is what it did) that the CIV was the figure identified in its letter of 9 August 2012.
The second source of "admission" by the first respondent is said to arise from a memo dated 17 August 2012 from the General Manager of the first respondent to the Mayor and Councillors. That memo advised its recipients that the first respondent had received a new development application for an educational establishment at the Site. Included in the memo was the following paragraph: "The applicant has nominated that the development has a total Capital Investment Value of $30,230,515. On this basis, the Sydney West Joint Regional Planning Panel will have the determining function for this application."
Aside from the fact that the fifth respondent, as applicant, did not "nominate" a CIV, the General Manager's statement as to what he understood the CIV of the development to be has no legal consequence, for the same reasons that I have given in respect of the first respondent's letter of 9 August 2012 in which the same figure is identified. The General Manager had no statutory role to play in determining the figure that should be accepted as the CIV of the development proposed for the Site.
As I understood the applicant's submission, the "admission" of the second respondent upon which reliance is placed arises from the advertisements that were published in a local newspaper, notifying the period during which DA 1251/2012 would be publicly exhibited, that is, available for public submissions. There were two periods of public exhibition, the first being notified in an advertisement published on 22 August 2012 and the second notified in an advertisement published on 14 November 2012.
In its written submissions by way of reply to those made by the second respondent, the applicant submitted (at [10]): "The JRPP advertised the DA at the figure of plus $30m and then amended it and readvertised. However those facts are an admission against it and the third to fifth respondents of the CIV as well."
Copies of the newspaper advertisements published on each occasion by the first respondent were tendered by the School respondents (Exhibit 3R9). There were no advertisements published by the second respondent. I have examined those advertisements and can find no reference in them to the CIV of the development proposed in DA 1251/2012. No such reference was identified by the applicant. The submission that the second respondent had made an admission as to the CIV therefore lacks any factual foundation.
Accompanying DA 1251/2012 at the time of its lodgement with the first respondent was a document dated 8 June 2012 prepared by Bay Partnership, a firm of quantity surveyors. That document, headed "DA Submission Cost Plan Summary", appears to be the source of figures inserted in item 4 of the development application form. The "Project Total", excluding GST, is shown in the Bay Partnership document as being $30,230,515, abbreviated on the development application form as "$30.23m".
The quantity surveyors' cost plan summary of 8 June 2012 shows a breakdown of costs for each stage of the intended development, with the costs attributed to Stages 1 and 2 excluding the cost of work in those stages that had been carried out under the 2009 consent. The total building cost then estimated was $22,580,845. As would be apparent, that figure has been abbreviated to $22.58m in item 4 of the development application form. Three further figures were added to the building cost for each stage in order to achieve a total of $30,230,515. First, a figure of $3,387,200 has been added for what is described as "10% Design and 5% Contract Contingencies". A further figure of $3,577,470 has then been added, being described as "15% Project Costs and Fees". The final figure that has been added to reach the total earlier identified is $685,000 described as being for "FF&E". Although "FF&E" is generally taken to refer to "furniture, fittings and equipment", in the present case that figure is said to be for loose furniture.
Nowhere does the cost plan summary prepared by Bay Partnership state that the "project total" of $30,230,515 was determined by reference to the definition of "capital investment value" in the Regulation. Moreover, the applicant has not sought to demonstrate by reference to the cost items stated in the cost plan summary how those items satisfy the CIV definition. On its face, the definition would not appear to include items of loose furniture totalling $685,000. If that sum alone was deducted from the total stated by the quantity surveyor, the figure would obviously be less than $30 million. The applicant does no more than select the figure of $30,230,515 and assert that it is the CIV of the development.
The difficulty confronting the applicant, in the absence of evidence directed to the CIV and analysis of the components of costs that should be considered by reference to the definition, is compounded by the "cost of work" figure stated in the Assessment Report prepared for the second respondent and considered by it at its meeting on 28 February 2013. The cost of work was there stated to be $27,600,364, including "works already completed". Under the heading "Reasons for the report", its author stated: "The proposal has a capital investment value of more than $20 million, consequently under Schedule 4A of the Environmental Planning and Assessment Act, 1979, the Joint Regional Planning Panel (JRPP) retains the role as the determining Authority in accordance with the provisions of State Environmental Planning Policy (State and Regional Development) 2011. The applicant has submitted a revised costs summary which confirms that the cost of works is $27,600,364 which includes both the cost of works for the proposed development and costs associated with the works completed on site to-date." Reference to the figure of $20 million is no doubt a reflection of cl 3 to Sch 4A to the EPA Act.
The applicant submits that no account should be taken of the figure $27,600,364 identified in the Assessment Report because, at the time of its preparation, the development application had been amended. However, there was no evidence adduced that the amendments made to the development application had reduced the CIV of the development. The nature of the amendments made, principally directed to building set back, do not make self-evident a reduction in the CIV compared to that applicable to the development intended by DA 1251/2012 when lodged in June 2012, whatever the CIV may then have been.
The CIV stated in the Assessment Report must be taken to be the figure that the second respondent accepted as the figure that enabled it to exercise its function as the determining authority. Although in its decision it did not refer, in terms, to the CIV figure, its decision states that approval was granted "for the reasons contained" in the Assessment Report. While its acceptance of that figure is not determinative of its entitlement to exercise the power that it did, in the absence of evidence demonstrating that the CIV stated in the Assessment Report was not determined by reference to the definition of the expression, no basis has been established to find that the CIV did, in fact, exceed $30 million at any relevant time.
The absence of evidence to establish that the CIV exceeded $30 million is sufficient, without more, to dispose of the applicant's second ground of challenge. However, there is further evidence led by the School respondents that offers some explanation for the different figures that emerge from the documents to which I have referred. That evidence does not assist the applicant.
Richard Smyth is a town planner who was the principal of Smyth Planning, responsible for preparation of the Statement of Environmental Effects that accompanied the development application. He stated in evidence that he was requested to assist the fifth respondent in preparing the development application form. In response to item 4 of that form, he wrote the figures "30.23m" and "Bldg 22.58m". He did so extracting figures from the cost plan summary prepared by Bay Partnership. He understood the information required in response to item 4 "was to enable council to calculate the development fees payable in respect of the DA application". The figure "30.23m" was not a calculation or estimate by him of the CIV of the project.
In November 2012, Mr Smyth was provided with a letter from the first respondent to the fifth respondent, directed to calculation of the CIV of the development. Confirmation was sought by the first respondent that the CIV stated in a report dated 20 November 2012 from Bay Partnership was calculated in accordance with the definition of CIV as contained in the Regulation. So far as the evidence reveals, the quantity surveyor's report of 20 November 2012 would appear to be the first report that purported to address the CIV of the development. The stated purpose of the first respondent's letter of 22 November 2012 was not only to draw attention to the manner in which CIV was defined, but to indicate that the calculation should include the cost of works already completed. The letter also noted that if the CIV, correctly calculated, did exceed $30 million, the proposed development would constitute State significant development under the provisions of Sch 1 to SEPP 2011. Whether the contention of the first respondent was correct in suggesting that the cost of completed works would likely require inclusion in the calculation of CIV need not be decided in these proceedings. That is because the revised calculation that included those works was the figure of $27,600,364, to which I have earlier referred.
The consequence of Mr Smyth being shown the first respondent's letter of 22 November 2012 is that the calculation of CIV was again referred to Bay Partnership for consideration. The response was a letter from that firm dated 4 December 2012 to which was attached a "Revised Costs Plan Summary for DA 1251/2012". That letter and costs summary identified the total sum of $27,600,364, being the figure that was stated in the Assessment Report prepared for the second respondent. Not only did the Assessment Report state that figure but the evidence before me shows that the letter from Bay Partnership dated 4 December 2012, with the costs summary attached, was provided to the second respondent. In the absence of evidence to the contrary, it may therefore be assumed that the letter and summary was in the possession of members of the second respondent (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67]).
As I have earlier recorded, the applicant accepts that it bears the onus of establishing that the CIV of the development exceeded $30 million. The only figure prepared as a result of a request that CIV be calculated was that identified in the Assessment Report. For reasons earlier stated, figures identified in the development application form were not expressed to be figures referable to the CIV of the development and the "admissions" attributed to the first respondent by reference to those figures cannot be sustained. In the circumstances, it is unnecessary for me to make a finding as to the precise figure to be attributed as the CIV of the proposed development. The applicant has failed to meet the onus that it bears to establish, on the balance of probabilities, that the CIV was more than $30 million.
For these reasons, I reject the applicant's second ground of challenge.

Issue 3: The apprehended bias issue

Councillors Hadchiti and Hadid were members of the first respondent. Each was nominated by the first respondent to be a member of the second respondent. Each Councillor was a member of the first respondent when the 2009 consent was granted. As members of the second respondent, they each voted in that capacity on 28 February 2013 to grant development consent to DA 1251/2012.
In the circumstances just described, the applicant submits that Councillors Hadchiti and Hadid ought to have disqualified themselves from participating in the deliberations and decision of the second respondent by reason of apprehended bias. According to the submission, a reasonable observer might (and in this case would) fear that the two Councillors nominated by the first respondent and who sat as members of the second respondent, might not bring an unprejudiced mind to the decision in which they participated. This is submitted to be the case because "both had once before joined in the resolution of the same Council in 2009 for approval for what is admitted by the Second Respondent to be the same development, made for and on behalf of the same owner and lessee but declared invalid". It further submits that both Councillors had participated in the decision of the first respondent "to assume jurisdiction and to refer the new DA to the JRPP [ie themselves] and for consent in 2012 and 2013". There is both legal and factual error in that last contention. Further, the nature of the participation by Councillors in the process of deciding the 2009 development consent must also be considered.
The first respondent resolved to grant the 2009 consent at its meeting held on 15 June 2009. Prior to that date, the first respondent had appointed an Independent Hearing and Assessment Panel (IHAP) to consider development applications lodged with it and to recommend the manner in which those applications should be determined. At an earlier meeting, the IHAP had prepared a recommendation to the first respondent that development consent be granted, subject to a number of conditions. Apparently, because of the controversy attending the recommendation, a further report was prepared for the first respondent by its planning staff, addressing the IHAP recommendation. The staff report recommended that development consent be granted, subject to nominated conditions.
The minutes of the meeting of the first respondent for 15 June 2009 record that Councillor Hadchiti moved that the development application be refused, nominating 14 reasons for refusal. He addressed the meeting in support of his motion for refusal. Ultimately, the motion for refusal was lost. When other Councillors moved that approval to the development application be granted in accordance with the recommendation that had been made by IHAP, the voting recorded in the minutes indicates that while Councillor Hadid voted in favour of approval, Councillor Hadchiti voted against it.
Subsequently, a rescission motion was signed by three Councillors, including Councillor Hadchiti. One of the Councillors moving for rescission indicated that should the rescission motion be carried, he would move that the application for development consent be granted but with conditions additional to those that had been imposed by the resolution of 15 June.
The rescission motion was debated at the first respondent's meeting on 29 June 2009. While Councillor Hadchiti moved to support the rescission motion, the meeting minutes indicate that the rescission motion was lost with the consequence that the resolution of 15 June to grant approval stood as the decision of the first respondent.
The minutes of the first respondent make tolerably clear that Councillor Hadchiti's position in 2009 was one of opposition to development of the Site for an educational establishment while Councillor Hadid supported the application. In effect, Councillor Hadchiti's fallback position was that if development of the Site was to proceed, additional conditions should be imposed. In light of the minutes, it is inaccurate to suggest that both Councillors Hadchiti and Hadid joined in the resolution of the first respondent granting the 2009 consent.
Further, neither in law nor in fact could or did Councillors Hadchiti and Hadid participate in a decision of the first respondent "to assume jurisdiction". No evidence has been adduced to indicate that there was a meeting of the Councillors of the first respondent to consider the CIV of the development proposed in DA 1251/2012 nor is there any evidence to support the contention that Councillors, including Councillors Hadchiti and Hadid, participated in any decision to refer the development application to the second respondent. Processing and assessment of the application seems to have been undertaken administratively by the staff of the first respondent recognising, as both the General Manager and author of the first respondent's letter to the second respondent of 9 August 2012 had done, that by reason of both the development cost and its purpose, the first respondent could not exercise its function as a determining authority.
None of what I have just said is contradicted by a memo dated 3 July 2012 from the General Manager of the first respondent to Councillors (Exhibit F), informing them of "the review" of DA 1251/2012. The memo makes apparent that the Councillors were not part of that process, particularly as the memo was sent nearly one month after the application had been referred to the second respondent.
The preservation of the first respondent's function to assess the application under cl 21(2)(e) of SEPP 2011 allowed it to assess the merits of the application and to provide that assessment to the second respondent. The function to assess the merits of the application did not extend to an assessment of the CIV for the purpose of exercising the power to determine the application. As I have earlier indicated, the determination of the CIV was extrinsic to the assessment process and was a decision vested solely in the second respondent (Calardu (LEC) at [48]).
The challenge directed to the participation of Councillors Hadchiti and Hadid, as members of the second respondent, in determining DA 1251/2012, needs to be considered in the context of the statutory provision pertaining to joint regional planning panels. By s 23G(1) of the EPA Act, the Minister may, by order, constitute a joint regional planning panel for a particular part of the State specified in the order. No issue is raised as to the making of an order constituting the second respondent in accordance with that subsection.
By s 23G(2)(a), a regional panel has any of a council's functions as a consent authority that are conferred on it under an environment planning instrument. Relevant to the present case, that function is conferred by cl 21(1) of SEPP 2011. A function conferred by s 23G(2)(a) is one to be exercised "to the exclusion of the applicable council (subject to any delegation under this Act)": s 23G(5B). Subsection (6) of the same section provides that Sch 4 has effect with respect to regional panels.
Clause 2 of Sch 4 to the EPA Act relevantly provides: "2 Members (1) A regional panel is to consist of the following 5 members: (a) 3 persons appointed by the Minister…, (b) 2 council nominees of an applicable council…". The expression "applicable council" is defined in cl 1 of Sch 4 to mean the council of an area situated wholly or partly in a part of the State for which a regional panel is appointed. Subclause (4) of cl 2 requires that each applicable council nominate two persons as council nominees for the purposes of the regional panel.
Clause 3(1) of Sch 4 to the EPA Act provides that "for the purposes of exercising the functions of a regional panel in relation to a matter, the council nominees appointed to the regional panel are to be those nominated by the applicable council for the land to which the matter relates".
By letter dated 10 October 2012, the first respondent wrote to the second respondent stating that at its meeting held on 8 October 2012, the first respondent had resolved that Councillors Hadchiti and Hadid were to be "our representatives" for the second respondent. Another Councillor, Councillor Peter Harle, was nominated as the "alternate representative", no doubt reflecting the provisions of cl 8(2) of Sch 4 enabling a council to appoint a person to be an alternate of a member nominated by that council.
The applicant, the second respondent and the School respondents all accepted that the appropriate test for apprehended bias is that articulated by the High Court in a number of cases including Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at [104] and Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31]. Although the articulation of the test in the High Court cases had been expressed as relevant to an apprehension of bias by a judicial officer, the test appropriate to a circumstance of the present kind may be stated as being whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power being invoked. It is the application of this test that gives rise to dispute in the present case.
It is important to record that the test just articulated will need to be applied to the position of Councillors Hadchiti and Hadid. It is not suggested by the applicant that there is an apprehension of bias by prejudgment or conflict of interest on the part of the second respondent as an entity performing its function under the EPA Act. As a consequence, even if it be found that the test for apprehended bias required an affirmative response in respect of Councillors Hadchiti and Hadid, it would then be necessary to determine whether their participation invalidated the decision of the second respondent, in circumstances where no similar challenge is mounted to the conduct of those constituting a majority of members of the second respondent when determining to grant development consent to DA 1251/2012.
As the judgments in McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 make clear, the judicial paradigm for application of the apprehended bias test is not usually appropriate to assess the actions of members of a statutory decision-maker. At [7] and [8] of McGovern, Spigelman CJ said: "7. How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation. 8. Each of the elements in the apprehended bias principle requires a context-specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process."
While the second respondent is a statutory body whose constituent members are nominees of either the Minister or a local council, when determining DA 1251/2012 the second respondent was doing so in exercise of the discretionary power afforded to it as a determining authority under Pt 4 of the EPA Act. The power being exercised was a broad one, described by the Chief Justice in McGovern at [13] as being one: "…to which multiple considerations apply and with respect to which the range of permissible opinion is extraordinarily wide - including issues of policy, taste and philosophy - not least by the adoption of an express formulation as to what constitutes 'the public interest': s 79C(1)(e) of the Environmental Planning and Assessment Act 1979…"
It was submitted by the applicant that the observations of Spigelman CJ in the passage just quoted were not appropriate to be applied to the present case. That was so, according to the submission, because his Honour's observations were directed to the decision of a "democratically elected" council. I do not accept that distinction as relevant for the reasons that follow.
First, not only does cl 2(1)(b) of Sch 4 to the EPA Act require that two constituent members of the second respondent be nominees of an "applicable council", but cl 3(1) of Sch 4 also required that Councillors Hadchiti and Hadid be constituent members of the second respondent when exercising its function to determine DA 1251/2012 as they were the nominees appointed by the first respondent as "the applicable council for the land" to which the development application related. As Councillors, they were democratically elected representatives who could be expected to bring to bear upon the decision-making process the kind of considerations to which the Chief Justice referred.
Second, when exercising the function to determine DA 1251/2012, the second respondent was bound to consider all of the matters identified in s 79C(1) of the EPA Act that were of relevance to the development application. Obviously, that included the "public interest" expressed as a head of consideration in s 79C(1)(e). It was reference to the latter provision, in particular, that informed the observations made by the Chief Justice in McGovern at [13].
As I have previously indicated, the applicant contends that a positive response to the test for apprehended bias is demonstrated in the present case because of the involvement of Councillors Hadchiti and Hadid "in determining to grant the 2009 consent". Although that is not a factually accurate statement for reasons that I have earlier indicated, I accept for the purpose of present consideration that participation, as members of the first respondent, in the decision-making process resulting in the grant of the 2009 consent is to be considered. That involvement, so it is submitted, is sufficient to provide the positive response to the test. Particular reliance is placed upon the judgments of the plurality in British American Tobacco Australia Services Ltd v Laurie at [139] where their Honours said: "139. It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification [reference to authority omitted]. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned. In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case. It is a recognition of human nature."
I cannot accept that literal application of that passage to the circumstances of Councillors Hadchiti and Hadid is required. It involves an application of the judicial paradigm which, as earlier explained, is inappropriate to a decision to be made by members of the second respondent. In short, it involves a misapplication of the test to the statutory decision-maker and its members.
The observations made by the plurality in British American Tobacco Australia Services Ltd v Laurie as to the expectation of neutrality when addressing apprehended bias, is an expectation that will differ, depending upon the statutory context giving rise to that expectation. As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [187], applying the apprehended bias test requires consideration, in the statutory context, of "what kind or degree of neutrality (if any) is to be expected of the decision-maker".
The appropriate approach to address apprehension of bias on the part of a councillor in the context of a decision to be made by a council of which that councillor is a member was articulated by Basten JA in McGovern. At [80] his Honour said: "80. The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers." I see no reason why his Honour's application of the apprehended bias test to a councillor, when sitting as a member of a local council, does not have ready application to the present context. Councillors Hadchiti and Hadid were required to perform the same role as members of the second respondent when determining a development application as they were required to perform as members of the first respondent when considering any other development application, being the role addressed in McGovern.
As I understood the submission of the applicant, it sought to contend that application of the test for apprehended bias should be more stringent in the case of members of the second respondent. That was so because by s 23G(5) of the EPA Act, a regional panel was constituted as a statutory body representing the Crown, whereas a local council was, by dint of s 220(1) of the Local Government Act 1993 (NSW), a body politic of the State. Reference was made to the decision of this Court in Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140; 168 LGERA 269 to support a distinction of that kind.
Gwandalan addressed the position of the Minister as a public office-holder acting in his capacity as an administrative decision-maker determining a development application. The contention of the applicant was that the second respondent's role was closer to that of the Minister exercising a function under the EPA Act than it was to a council in so doing.
I am unable to derive the assistance for which the applicant contends from the decision of Lloyd J in Gwandalan. His Honour stated the apprehended bias test in terms similar to those that I have earlier stated and acknowledged at [49] that the "application and precise content of the test varies depending on the context". In observing that the Minister was not performing a political function by giving effect to government policy when determining a development application, at [48] his Honour identified the function being performed by the Minister as one "which was not materially different from that of a local government council, as in McGovern".
For the purpose of applying the apprehended bias test, I consider that the content of the test articulated in McGovern at [80] should be applied in the present case. Given the provisions of cl 2(1)(b) and 3(2) of Sch 4 to the EPA Act, the function being performed by Councillors, as members of a regional panel, is closer to that of the function being performed by councillor members of a local government council than is the position of the Minister when so doing (assuming there is any difference of substance).
Beyond consideration of the involvement by Councillors Hadchiti and Hadid in the 2009 consent process, the applicant did not identify any further matter directed to the content of the apprehended bias test as articulated in McGovern at [80]. No personal interest of either Councillor Hadchiti or Councillor Hadid in the determination of DA 1251/2012 was identified and no act or conduct on the part of either Councillor was identified to support a contention that there was a lack of willingness "to give genuine and appropriate consideration" to the development application, the provisions of the EPA Act and the content and recommendations contained in the Assessment Report prepared for the meeting of the second respondent on 28 February 2013.
Implicit in the applicant's submission is the need to infer that because Councillors Hadchiti and Hadid participated in the process of deciding to grant the 2009 consent, they would not bring either an open mind or would not give "genuine and appropriate consideration" to the determination of DA 1251/2012. That is not an inference that I am prepared to draw on the evidence before me.
The circumstance that either Councillor may have had a predisposition to a particular outcome because of their prior involvement in the 2009 consent process does not, of itself, give rise to any reasonable apprehension of bias. As Gleeson CJ and Gummow J observed in their joint judgment in Minister for Immigration and Multicultural Affairs v Jia Legeng at [71], it is not a blank mind that is necessary, "it is whether it is open to persuasion". Their Honours continued at [72]: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion."
The applicant has not demonstrated by direct evidence or by necessary inference that either Councillor was so committed to a particular outcome for DA 1251/2012 that the committed position was incapable of alteration. The fair-minded observer would not reasonably assume, in the absence of some intervening event, that between June 2009, when the 2009 consent was granted, and February 2013 when DA 1251/2012 was being considered, the Councillors remained so committed to the position taken in 2009, neither was open to persuasion to reconsider and alter the position they had each taken at that time. The fact that this Court had determined the 2009 consent to be invalid because of a failure to consider the impact of an infrastructure component of the school development upon an endangered ecological community would not logically be perceived as an intervening event such as to entrench the position that each had taken in 2009. No other event or circumstance is identified by the applicant to suggest that the fair-minded observer would conclude that neither Councillor was open to persuasion in 2013.
Further, the fair-minded observer would also have understood or is taken to have understood the process under the EPA Act for nomination of Councillors Hadchiti and Hadid to the second respondent and the need for them, as nominees, to be constituent members of the second respondent when considering an application for development consent on land within the local government area of the first respondent. Perhaps more significantly, if consideration was given to the determination of the 2009 consent, the fair-minded observer will also have understood that Councillor Hadchiti opposed the grant of consent at that time while Councillor Hadid supported the application. Whether apprehended bias is attributed to each of them simply because of participation in the 2009 consent, independently of the stance taken when that decision was made, is not stated.
Apart from relying upon apprehended bias by prejudgment, in the course of its submission the applicant also asserted a conflict of interest giving rise to an apprehension of bias. However, the "interest" said to arise from participation in the process for determination, other than as members of the second respondent, has not been identified; the competing "interests" said to give rise to a "conflict" have not been identified and how that "conflict" is said to give rise to a reasonable apprehension of bias in the process of decision making remains unidentified. As is apparent from what I have stated, the circumstance that the two Councillors participated in the 2009 consent process, could not, of itself, give rise to a reasonable apprehension of bias.
In order to sustain its challenge, the applicant would need to demonstrate more than that Councillors Hadchiti and Hadid had an "interest" in DA 1251/2012. As the plurality observed in Ebner at [8]: "…There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
No logical connection between the position of the Councillors, as participants in the 2009 consent process, and the apprehended deviation from the course of deciding the development application on its merits, was articulated, let alone demonstrated by logical and reasonable infererence. The bare fact that in February 2013 they were discharging statutory functions in respect of DA 1251/2012 for similar development they had previously assessed in exercise of their statutory function as members of the first respondent, does not ground such an apprehension.
In the course of its submission, the applicant contended that the participation of Councillors Hadchiti and Hadid in the decision-making process involved a breach of the rules of procedural fairness. It can be accepted that an element of procedural fairness arises in circumstances where a statutory body is exercising a power that affects rights or interests. In exercising that power, the decision-maker has a duty to act fairly by ensuring that procedural fairness is accorded to those whose interests or rights may be affected (Kioa v West [1985] HCA 81; 159 CLR 550 per Gibbs CJ at [563]; Mason J at [584]). An incident of that duty is that the power be exercised in the absence of an appearance of disqualifying bias (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Deane J at [367]).
As the applicant is an incorporated association, I am unclear as to any right or interest that it had and which was affected or may be affected by the decision of the second respondent when determining DA 1251/2012. Nevertheless, for present purposes, I will assume that there was or that there were rights affected or potentially affected by the manner in which the development application was determined. This circumstance, so it seems to me, takes the matter no further because the relevant incident of procedural fairness requires a determination as to whether there was a reasonable apprehension of bias on the part of the two Councillors, applying the test earlier articulated. For reasons already stated, there was not.
In its submissions, the applicant also made reference to the requirement for procedural fairness in a slightly different context. As I understand the submission, for the purpose of placing emphasis upon a narrow application of the apprehended bias test, the applicant submitted that unlike the position that pertained when a local council was determining a development application, there was no capacity for representation by interested persons at meetings of the second respondent or any other joint regional planning panel. That distinction cannot be sustained. First, neither the EPA Act nor the Regulation proscribes representation by interested persons before a panel. Second, the position of a regional panel is no different to that of a local council in considering an entitlement of either body to receive oral representations at a meeting. Neither the EPA Act nor the Local Government Act contain any provision that draws the distinction that the applicant seeks to make. While s 23H(c) of the EPA Act enables the Regulation to make a provision limiting legal representation before a regional panel, the Regulation imposes no such limitation.
Third, the minutes of the meeting on 28 February 2013 disclose that the second respondent was addressed by opponents of the development application, including Marella Harris who, as the evidence in these proceedings discloses, is the President of the applicant.
The School respondents advanced three arguments as to why the consent of the second respondent was not invalid, even if a reasonable apprehension of bias was established against each Councillor. As I have determined that an apprehension of bias has not been established, it is strictly unnecessary for me to determine these additional submissions. However, as the matters have been argued, I will address them briefly.
First, the School respondents submit that, even if the test for apprehended bias was answered in the affirmative in respect of Councillors Hadchiti and Hadid, that circumstance would not invalidate the decision of the second respondent, being the decision that the applicant seeks to impugn. The minutes of the meeting held by the second respondent on 28 February 2013 reveal that all five members were present. Those minutes also record that the decision to grant development consent was a unanimous decision. By cl 268G of the Regulation, the decision of a regional panel is one supported by a majority of votes cast at a meeting at which a quorum is present. By cl 268E of the Regulation, a quorum is "a majority of its members for the time being".
As a consequence, even if the votes of Councillors Hadchiti and Hadid were discounted, the three Ministerial appointees constituted a quorum and their vote was sufficient to found the decision to grant development consent. This involves no more than what Spigelman CJ described in McGovern at [46] as the "but for" rule. As his Honour observed, "it will generally be sufficient just to count the votes". There is no evidence to suggest that the apprehended bias of the two Councillors, assumed for the purpose of addressing the present point, influenced the process of consideration and decision by the Ministerial appointees to the second respondent.
It must be observed that the holding of the Chief Justice in McGovern at [46] was not endorsed by the other members of the Court. Campbell JA did not decide the point and Basten JA took a more restrictive approach.
However, in the present case I favour the view of the Chief Justice. I do so having regard to the provisions of cl 2(1) of Sch 4 to the EPA Act coupled with cll 268E and 268G of the Regulation. Those provisions not only reflect the requirement that Ministerial appointees comprise a majority of members of a regional panel but also determine that a majority of members comprise a quorum and a majority carry the vote. In the present case, all Ministerial members voted in favour of granting development consent to DA 1251/2012. Those members of the second respondent had no prior involvement in any decision directed to the development of the Site as a school. There is therefore no reason to attribute to those members the conflict or taint, assumed for the present argument, to have affected the participation of Councillors Hadchiti or Hadid in the decision of the second respondent to grant development consent.
Second, attention is drawn to the provisions of cl 12 of Sch 4 to the EPA Act, being provisions directed to the disclosure of pecuniary interests by members of a regional panel. Clause 12(1) requires that "as soon as possible" after facts come to the knowledge of a panel member that the member has a pecuniary interest in a matter being, or about to be, considered by the panel, the member must disclose the nature of that interest at a meeting of the panel. Once that interest has been disclosed, the member must not be present during deliberations with respect to the matter, nor take part in any decision with respect to that matter, unless the Minister or the panel otherwise determines (in the absence of the member concerned): cll 12(6) and 12(7). Relevant for present purposes is cl 12(8) which states that a contravention of the clause "does not invalidate any decision of the regional panel".
The School respondents submit that it would seem irrational if participation by members having an undisclosed pecuniary interest in a matter did not invalidate the decision made but that participation "in spite of some unidentified conflict" of interest that was non-pecuniary would, on that account, be invalidated. The apparent irrationality of such a result, whereby cl 12(8) saves decisions where there has been a breach of the requirement for disclosure of pecuniary interests, manifests a legislative intent that the presence of a non-pecuniary interest should not be taken to vitiate the decision.
While there is force in this submission, I am unable to accept it as the necessary result of construing the provisions of Sch 4 to the EPA Act. Had the legislature intended that any conduct on the part of a member of a planning panel that might, in law, have the tendency to impugn the decision of the panel, should not be taken to have that effect, it would be open to the legislature to so provide. It did not do so. Importantly, High Court authority makes clear that the principle of procedural fairness is so "fundamental" that legislation should not be interpreted as excluding application of the principle unless the language is of "irresistible clearness" (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [15]). I am unable to interpret the provisions of Sch 4 to the EPA Act as indicating with irresistible clarity an intention that a denial of procedural fairness in the determination of a matter by the regional panel, should not be attended with invalidity on that account.
The third matter advanced by the School respondents was that Councillors Hadchiti and Hadid were required to participate in the decision of the second respondent to grant development consent as they were the constituent members of the only statutory body empowered to determine the development application. The principle of necessity would therefore prevent the decision of the second respondent being impugned on the basis of any conflict of interest by the two Councillors concerned (Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 per Mason CJ and Brennan J at [88]-[89]).
Assuming as I have already found, that the CIV of the development application for an educational establishment was more than $5 million but did not exceed $30 million, the only entity having power to determine the development application for the Site in 2013 was the second respondent. However, it was not essential to the making of a valid decision of the second respondent that each of Councillors Hadchiti and Hadid be present and vote at the meeting of 28 February 2013. As cl 268E of the Regulation allows, a quorum could properly be constituted by the three Ministerial appointees. That fact, so it seems to me, militates against an argument that their presence was necessary to enable the second respondent to perform its statutory function.
In summary, I have concluded that, properly applying the test for apprehended bias to Councillors Hadchiti and Hadid, their participation in the meeting of the second respondent on 28 February 2013 cannot properly be impugned. Moreover, even if apprehended bias had been established on the part of the two Councillors, that circumstance would not have successfully impugned the decision of the second respondent to grant development consent to DA 1251/2012.
For these reasons, the third ground of challenge fails.

Conclusion and Orders

I have concluded for the reasons given that each of the applicant's grounds of challenge to the validity of the development consent granted by the second respondent on 28 February 2013 to DA 1251/2012 and notified by the first respondent on 14 March 2013, has failed. As a consequence, the proceedings will be dismissed.

Costs

Among the orders sought by the applicant in its Further Amended Summons was a "declaration that this is a public interest matter" [sic] together with a "protective order pursuant to UCPR Rule 42.4 upon the applicant to an amount deemed fit by this Court". No interlocutory application was filed seeking the second of those two orders prior to the hearing. Neither order was addressed at the hearing nor was any evidence in support tendered for consideration. The question of costs has not been argued.
These being proceedings in Class 4 of the Court's jurisdiction, costs would ordinarily follow the event: s 98 Civil Procedure Act 2005 (NSW) and r 42.1 Uniform Civil Procedure Rules 2005 (NSW). The applicant having been unsuccessful on all grounds argued by it, there is presently nothing before me to indicate that the usual order should not be made. As a consequence, I propose to make an order for costs in favour of the respondents.
However, in recognition of the fact that the applicant may wish to argue for a different order, I will reserve the right for it so to do by giving notice of the order that it seeks both to the respondents and to my associate. If such notice is given within the time I nominate, I will then give directions for the service of any evidence to be relied upon in support of the alternate costs order and I will also give directions for the preparation of written submissions in support of and responding to that order.

Orders

I therefore make the following orders: 1. Proceedings dismissed. 2. The applicant is to pay the respondents' costs of the proceedings unless by 5.00pm on 21 August 2015 the applicant notifies the respondents and my associate of the terms of any different costs order that it seeks. 3. The exhibits may be returned.

Amendments 07 August 2015 - Par [29] amended to include "certificate" so the phrase reads "building certificate application" in the first line DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2015

Environmental Planning and Assessment Regulation 2000(NSW)

anagement Ltd v Shoalhaven City Council [2001] NSWCA 74 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Category: Principal judgment Parties: Hoxton Park Residents Action Group Inc (Applicant) Liverpool City Council (First Respondent) Sydney West Joint Regional Planning Panel (Second Respondent) The Australian Federation of Islamic Councils Inc (Third Respondent) Malek Fahd Islamic School Pty Ltd (Fourth Respondent) Amjad Mehboob (Fifth Respondent) Representation: Counsel: P E King (Applicant) Submitting appearance (First Respondent) A Mitchelmore with B Mostafa (Second Respondent) A P Cheshire (Third, Fourth and Fifth Respondents)

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