Councillor Ryan responded and commented on the lead up to the Council elections which she described as "dirty and fraught with stress".
144 On 12 September, Mr Allan emailed Councillor Ryan expressing disappointment that she had not been re-elected as mayor and offering his support should she need it. There was a further exchange of condolences and reassurance.
145 On 16 September Mr Allan wrote to the new mayor, Councillor Malicki, congratulating her effusively and inviting her to support the staff report in favour of granting the application.
146 On 16 September Mr Allan and his wife sent an email, on his letterhead, a copy of which was directed to Councillor Ryan, but which was in a more formal style suggesting that it was sent to all councillors. It noted that the independent heritage report "is not glowing", but the staff recommendation remained supportive. Councillor Ryan responded:
"Hi Mark,
You know you have my vote - I just hope we can get enough others across the line for you.
Adrienne".
147 At the Council meeting of 20 September 2005 there were conflicting motions, one seeking approval of the application, another seeking amendment to have the matter deferred for preparation of reasons for refusal. The amendment was passed and the application was deferred to obtain reasons for refusal. The vote was close, five supporting the amendment as passed and four being opposed.
148 Later that evening Mr Allan emailed Councillor Ryan again, in the following terms:
"Thank you again for your very hard work in the cause of common sense. I do not really understand where this now leaves us, but if you have any ideas for any action I could be taking to assist our case before the next meeting it would be much appreciated."
149 Councillor Ryan responded late that night by an email explaining her position, parts of which have been set out above at [133]. Other comments in the email included the following:
"Your idea of going to the media is probably a good one. …
I can't advise you about your next course of action but I will support you in what you chose to do. Heritage matters of this nature are not high on my agenda. In fact, I have made a statement to the media today in relation to the right of Council to arbitrarily impose decisions on home-owners without due consideration to the negative impact those decision may have. If anything good is going to come out of my 'demotion' it will be that I now have the ability to speak frankly and openly about what really pisses me off!"
150 A further site inspection was arranged for 29 September. The application came back before Council on 11 October 2005, with no further critical exchanges between Mr Allan and Councillor Ryan. At that meeting, the recommendation for approval of the second application was passed by a clear majority of 7-3. Councillors Ebbeck and Ryan voted in favour of the motion.
Proper role of councillors
151 As the trial judge noted, the starting point in considering whether the conduct of a particular councillor demonstrated a reasonable apprehension of bias was to identify the statutory scheme which conferred authority on the council to consider development applications. That scheme involved the broad charter given to a council under the Local Government Act, which included the function "to ensure that, in the exercise of its regulatory functions, it acts consistently and without bias, particularly where an activity of the council is affected": s 8(1). The regulatory functions of councils are identified in Chapter 7, but those do not include functions under the EP&A Act. Apart from reference to specific provisions of the latter Act, the parties treated the operation of local government and the function of development approval as sufficiently well-understood not to require consideration and, presumably, as not suggesting any basis for departure from the statements of principles in the case-law relied upon by the trial judge. Accordingly, apart from noting that a councillor is a member of the governing body of a council and is a person elected to represent the interests of the residents and ratepayers (s 232), little by way of assistance was sought to be obtained from the scheme of the legislation.
152 The trial judge referred to Canadian authority. The Canadian Supreme Court adopted the following approach to questions of bias in respect of local councillors in Newfoundland Telephone Co v Newfoundland (Board of Commissioners of Public Utilities) [1992] 1 SCR 623 at 637-638, the judgment of the Court being delivered by Cory J:
"Bias was considered in a different setting in Old St Boniface Residents Assn Inc v Winnipeg (City) [1990] 3 SCR 1170. That case concerned a planning decision which was made by elected municipal councillors. The governing legislation for municipalities was designed so that councillors would become involved in planning issues before taking part in their final determination. The decision of the Court recognized that city councillors are political actors who have been elected by the voters to represent particular points of view. Considering the spectrum of administrative bodies whose functions vary from being almost purely adjudicative to being political or policy-making in nature, the Court held that municipal councils fall in the legislative end. Sopinka J, at p 1197, set forth the 'open mind' test for this type of situation:
The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of Council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.
This same principle was applied in the companion case, Save Richmond Farmland Society v Richmond (Township) [1990] 3 SCR 1213. That case concerned a municipal councillor who campaigned for election favouring a residential development. He made public statements that he would not change his mind with regard to his position despite public hearings on the issue. Sopinka J found that the councillor should not be disqualified for bias because he did not have a completely closed mind. He determined that to have ruled otherwise would have distorted the democratic process by discouraging politicians from expressing their views openly."
153 This approach would appear to be materially different from that adopted in Australia: both the satisfaction of the court as to the fact, and the requirement not merely as to the likelihood of an informed observer being satisfied that the person might hold such a view, but the fact that an unassailable opinion was held, clearly invoke a different test.
154 Her Honour also referred to the English decision of R v Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298, a case involving members of a council voting on party lines in favour of a particular development: at [74]. Her Honour compared the refusal of Woolf J in that case to intervene with the intervention by Zeeman J in R v West Coast Council; Ex parte The Strahan Motor Inn (1994) 4 Tas R 411 and that of the South Australian Full Court in The Queen v Corporation of the City of Marion; Ex parte Independent Grocers' Co-operative Ltd (No. 2) (1984) 37 SASR 436. Her Honour also referred to Pipi Holdings Pty Ltd v Council of the City of Caloundra [2000] QSC 343; 111 LGERA 117 at [76]-[77] (Douglas J) and decisions, not directly on point, in the Land and Environment Court: at [78]-[79].
155 Without rehearsing the various statements relied upon, a number of propositions can be identified in this line of authority. First, in order to establish prejudgment, it is necessary to identify a period of time during which councillors should maintain an open mind and statutory procedures which may indicate the means by which an appropriately informed decision is to be reached. Thus, in Pipi Holdings, Douglas J took account of the fact that, in considering whether to resume land, councillors must already have formed a preliminary view in order to issue a notice of resumption, before hearing objections from the landowner: at [23].
156 Secondly, some decisions will have a higher policy content than others. Again referring to Pipi Holdings, although the decision to resume private land involved an immediate deprivation of property for the landowner, the matter for determination required councillors to consider generally the development needs of the city and alternative ways of meeting those needs. Whether the city needed a car park and whether alternative land was available were likely to be matters upon which councillors would form reasonably firm views without hearing from the owner of the land sought to be resumed. His representations were likely to be somewhat more confined in their scope.
157 Thirdly, the fact that decision-making authority is vested in an elected body of councillors is inconsistent with any implicit assumption that the body will exercise its powers in relation to planning issues with a blank mind as to what may generally be appropriate for the development of an area and what may not. Thus, in Strahan Motor Inn, the fact which satisfied Zeeman J that there had been prejudgment on the part of one councillor was not that he held strong views that the advertising sign in question was entirely inappropriate, but that he effectively became an objector, making representations to the council of which he was also a member: at 427. Such conduct may in an appropriate case result in the court invoking the principles stated in Stollery: see Strahan Motor Inn at 420.
158 As will be seen below, this last consideration forms the only real basis for the appellants' objection to the conduct of Councillor Ryan in the present case and, to a lesser extent, of Councillor Ebbeck. There is no clear line to be drawn between speaking firmly, even passionately, in favour of one's view at a council meeting with the intention of influencing other councillors and the espousal of a cause as an advocate. Matters of controversy, where a council divides narrowly on how to decide an application, are likely to be precisely the sort of case where such conduct may be expected. It does not follow that such conduct necessarily gives rise to a reasonable apprehension of bias. The reason why it may not is that the councillor may have had ample opportunity to form a firm view of a matter, within the statutory confines of the decision-making process, prior to such conduct. In that situation, no reasonable apprehension of bias on the basis of prejudgment, as opposed to judgment upon a consideration of relevant matters, could arise.
159 In a judicial context, putting proposals in favour of a particular conclusion to a judicial officer in private, or even discussing a case with a judicial officer in the absence of one or all of the parties, may give rise to a reasonable apprehension of bias: see Re JRL at 346-347 (Gibbs CJ). However, the present complaint is not that Mr Allan made representations to Councillors Ryan and Ebbeck, without notifying the appellants, but rather that, in appealing to those who supported his wife's application, he was in effect inviting them to become advocates of the application. Further, at times his communications descended to denigratory remarks about the appellants, to which the councillors responded sympathetically, thereby implicitly adopting the denigration as their own.
160 It is clear that principles applicable to judicial institutions do not apply generally. As explained by Mason J in Re JRL at 350:
"It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide. This principle immediately distinguishes the judicial branch from other branches of government, except in so far as they may be relevantly affected by the rules of natural justice."
161 Even where the rules of natural justice apply, their content will be affected by the nature of the institution. The appellants were objectors, but were in no sense parties to any form of civil dispute. Rather, they were persons having an interest in the outcome of a development application on neighbouring property, who had exercised rights to object under a planning instrument. They, or at least Mr McGovern, had numerous communications by email with individual councillors, which do not appear to have been communicated to other councillors or to the applicant. Mr McGovern attended each Council meeting and spoke against the application. What councillors had to take into account were relevant matters, specified by s 79C of the EP&A Act. These included "the suitability of the site for the development" and "the public interest": s 79C(1)(c) and (e). Councillors were obliged to exercise their discretionary power in accordance with such provisions. The extent to which, in the particular statutory scheme of the EP&A Act, councillors will carry out their statutory functions if they vote according to party political lines, is a matter which need not be addressed. Beyond that, it is possible to envisage cases in which an application has been invalidly determined because of conflicts of interest, corruption, refusal to address a matter on the merits or other forms of irregularity. The circumstances in which bias in favour of an applicant, based on representations made by the applicant denigatory of an objector, could invalidate a decision are less easy to envisage. It is sufficient to say the material set out above provides no basis for such a finding.
162 The only material not available to the trial judge was that which clarified the role played by Mr Allan, as the vendor's agent in relation to the purchase by Councillor Ryan of a home. This demonstrated no pecuniary interest between them or, indeed, more than a degree of social contact (albeit for a professional purpose on the part of Mr Allan) which tends to explain a degree of familiarity in their email communications. There is, for example, no suggestion of any impropriety by way of exchange of favours arising out of that separate contact. Accordingly, this material, which was tendered on the appeal, demonstrates no additional basis to overturn her Honour's findings.
Bias of Council officer
163 On 3 June 2005 the first application was determined, purportedly under delegated authority, by a Council officer, Mr Hoy. The challenge brought in the Land and Environment Court relied in part on the contention that the delegation had been revoked prior to the determination. It also relied upon various alleged deficiencies in the application and the process by which it was amended, without notification, prior to determination.
164 On 23 June 2005, Mrs Allan lodged the second application. This course was taken, the appellants claimed, in order to render otiose the proceedings in relation to the first application. The complaint is not that this was an improper purpose on the part of the applicant, invalidating the second application, but rather that it was a scheme devised by Mr Allan with the Council's Director of Development and Regulation, Mr Miocic. This, it was alleged in the notice of appeal, though not in the relevant points of claim in the Land and Environment Court, gave rise to the inference that Mr Miocic had a "personal interest" in securing Council's approval for the second application. Mr Miocic was described as playing a "significant role" in the Council's decision to approve the second application, in part based on comments made by him at the Council meeting on 11 October 2005.
165 Her Honour accepted that Mr Miocic was involved in the preparation of the recommendation on the second application and that he may have had considerable involvement in briefing Council, no doubt partly through contact with councillors not revealed by the record: Judgment at [105]. Complaint is made, however, that her Honour found there to be "no suggestion here that Mr Miocic would gain personally or financially if the [second application] was approved": at [104]. This, the appellants submitted, "misstated" the appellants' case which was that Mr Miocic "had a personal interest" in securing Council's approval.
166 The answer to this submission is that the pleading alleged an apprehension of bias arising from Mr Miocic's support of the proposal for the purpose of rendering the Court challenge to the first development consent otiose. Her Honour summarised the submissions before her in similar terms: at 38. The comment in the judgment to which objection was taken was to be found in a discussion of the circumstances considered by the High Court in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438: Judgment at [104]. In that case, the grant of the licence to the appellant had been challenged for alleged bias arising from pecuniary interest. As explained by Gleeson CJ at [8]:
"The pecuniary interest said to have given rise to the alleged bias was that of two officers of the Department who were said to have been 'involved' in the 'process' within the Department leading up to the Director General's advice to the Minister. In each case, the interest concerned the holding of shares in a listed public company which had an option to purchase an interest in the exploration licence if it were granted to the appellant. One of the officers … held shares in the company. The other officer … did not; but his independent, adult son held such shares."
167 In circumstances where it was demonstrated that the Minister had given independent consideration to the issues involved, no reasonable apprehension of bias arose. However, the comment of Pain J in the present case was that there was "no suggestion" that Mr Miocic was in a similar position to the officers in Hot Holdings. So understood, her Honour did not misstate the appellants' case. It was only by impermissibly taking part of the sentence out of context that such a complaint could be made. The ground of appeal was meritless.
168 It appears from the emails between Mr Allan and Mr Miocic that the lodging of a second application, identical to the first, was proposed by Mr Miocic. However, the suggestion that he had some personal benefit to be obtained from approval of the second application because the litigation concerning the first application reflected badly on him and his subordinates was entirely speculative. So far as the revocation of delegated authority was concerned, this Court was not taken to any evidence which might have demonstrated that Mr Hoy was at fault in determining the application. The alternative basis of criticism of Council officers might have derived from their failure to identify the various inadequacies of the first application alleged in the Land and Environment Court proceedings. However, if that were Mr Miocic's concern, his motive in proposing a second identical development application would have been obscure.
169 Mr Allan's contact with Mr Miocic appears to have followed from an email to Councillor Ryan advising her of the commencement of proceedings against Mrs Allan and the Council. The emails of 21 June make clear that on being apprised of this fact, she sought a briefing from the director and arranged for him to ring Mr Allan. There then appears to have been telephone contact between Mr Miocic and Mr Allan, which was followed by an email from Mr Allan on 22 June, indicating that he was preparing a fresh development application to be submitted forthwith, in accordance with Mr Miocic's proposal and "for the benefit of us and Council". He also offered (more than once) to meet Mr Miocic at his home to show him the proposal on site. There was no evidence that any such meeting occurred on site. Another email from Mr Allan to Mr Miocic on 22 June sought an assurance that a fresh development application would be dealt with with some urgency "for our mutual benefit so that this ridiculous, costly legal case can be averted". There appears to have been a telephone discussion on the early afternoon of 22 June in the course of which Mr Allan had raised the possibility that what he later described as "two useless conditions" could be removed when the fresh application went before Council. Mr Miocic responded:
"Thanks Mark, I suggest that you speak at the council meeting when this DA goes to Council to express your concern with these conditions and request that they be removed. That is the appropriate way to deal with this."
170 In an answering email, Mr Allan set out in more detail his objections to the conditions and concluded:
"I am taking your word that you will do the full and proper briefings with all the decision-makers as you promised, also that you really will fast track this to have it determined before the court case starts.
Thank you for your assistance. Hopefully this will be mutually beneficial. I cannot see any sense to waste more money on this just feeding solicitors and barristers and nor can Council, especially given that the complaints are unreasonable. Our DA is simple and straightforward."
171 The second application was lodged on 23 June, following which Mr Miocic emailed Mr Allan to say that his staff "are now in the process of fine checking the information you submitted. We will call you within 24 hours if anything is missing".
172 Whether Mr Allan thought he had Mr Miocic's support for removing the conditions is unclear. However, on 12 July 2005 Mr Miocic emailed Councillor Hall stating, in part:
"I see no reason for the officer's recommendation in respect of this current DA, including conditions to safeguard neighbour amenity, to be any different from the recommendation in relation to the previous DA which was determined under delegated authority."
173 On 18 and 19 July Mr Allan sent two emails to Mr Miocic seeking access to the Council's file, so that it could be submitted to his lawyers. That request was repeated on 21 July, with a response that the matter had been referred to Council's corporate solicitor. Mr Allan responded:
"Much appreciated. I really hope for us and Council there will be no more wasted time and money after Tuesday night. Is everything still on track for Council's preparation of the reports and recommendations? Any update on your plans to speak individually with each of the Councillors to ensure the numbers support the Council recommendation on this basic and simple DA?"
174 Mr Miocic responded:
"Mark, the report is completed and is now on the agenda for the Council meeting of 26 July. The report and recommendation will be accessible on our website on Friday.
I have briefed a number of councillors on the special circumstances of this case and will speak to the others before the Council meeting of 26 July."
175 The appellants' complaint about the manner in which the second application was processed was that the staff report failed to deal with the appellants' objections and that Mr Miocic demonstrated that he saw his role, inappropriately, as being to promote the approval of the second application by Council.
176 These complaints are without substance. Given that the appellants attended each Council meeting and spoke against the application, it is difficult to see what benefit could have been obtained by the staff report omitting to deal with their complaints. Nor is there any suggestion in the material that Mr Miocic in some way improperly influenced the staff report. Rather, he supported the view that the previous report, prepared in relation to first application, was adequate and should go before Council. It was a public document. Further, there is no impropriety to be inferred from the role played by Mr Miocic. It is apparent that in some respects he did not share Mr Allan's views as to what course was appropriate, particularly in relation to the conditions. On the other hand, it was true that this was an unusual application to put before Council in that an earlier application (as to the full history of which not all councillors may have been aware) was before the Land and Environment Court. There is nothing improper in seeking to avoid litigation. There must be some additional factor giving rise to impropriety, which is not apparent here.
177 In Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, Gaudron and Gummow JJ noted in respect of a similar dispute arising from a council decision at [12]:
"The contestants in the Court of Appeal and in this Court have been the appellant and the Council. However, that circumstance should not obscure the tripartite nature of the trial. The appellant sought declaratory and injunctive relief to restrain the developer proceeding without a valid development consent. The Council is the authority which had granted the consent upon which the developer relied. In those circumstances, and also having regard to the earlier litigation, it might have been expected that the Council would submit to such order as the Court might make and that it would not become a protagonist, lest by doing so it endanger the impartiality it would be expected to maintain upon any subsequent applications to it which might ensue were relief granted to the appellant."
178 This was seen to be an application of the principle stated in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. This case demonstrates the importance of that principle. However, it is not clear that the principle was in danger of being breached. In Oshlack, the proper opponent, the developer, did not seek to uphold the Council's decision, at least on appeal. In the present case it is clear that Mr Allan, on his wife's behalf, was actively obtaining legal assistance in respect of the proceedings in the Land and Environment Court. There was no evidence as to what steps the Council was taking to defend its first consent, although there was evidence that Mr Allan was anxious for it to play its part.
179 In any event, all that can be said about Mr Miocic's role is that he took steps to ensure that councillors were fully apprised of the circumstances of the second application and, no doubt, sought to support the officer's recommendation in favour of granting consent. His activities prior to the first meeting were not successful. There is an absence of evidence as to what steps he took thereafter. On the other hand, what does appear from the evidence with a degree of clarity is that councillors, over four separate meetings, exercised a high degree of independent judgment, first seeking a site inspection, then an independent heritage assessment, then reasons for refusal, before ultimately granting consent at the fourth meeting.
180 In Hot Holdings, there was discussion in the joint judgment of Gaudron, Gummow and Hayne JJ (with whom Callinan J agreed) as to the application of principles of bias in relation to an officer engaged in the decision-making process. Their Honours stated at [52]:
"Whether the grounds on which certiorari lie do, or should, extend to cases where a person other than the decision-maker has engaged in some conduct which is 'conduct for the purpose of making a decision' (but not itself a decision) and has some interest in the outcome which, if an interest held by the decision-maker, would engage the rules about apprehension of bias, is a large question. It is not necessary to decide it in this case. It is enough to say that there was not here any sufficient factual basis for exciting suspicion of the kind referred to by the Full Court."
181 The language of "conduct for the purpose of making a decision" was taken from s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), although that statute was not in point. To similar effect at [23], Gleeson CJ noted the approach adopted in Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at [45], in the opinion of the Court delivered by L'Heureux-Dubé J, in relation to the role of a subordinate officer:
"In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, the decision itself cannot be said to have been made in an impartial manner."
182 However, as Gleeson CJ explained, a distinction must be drawn between an officer having "a central role" and one whose involvement was "peripheral" and whose contribution was not significant: at [24]. Further, as noted by McHugh J at [74]:
"An inference of a reasonable apprehension of bias in such cases will be easier to draw when the mechanics of the decision-making process are not known. However, whether or not the mechanics of the process are known, no conclusion of apprehended bias by association can be drawn until the court examines the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision-maker. It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision-maker."
183 In the present case, it was not established that Mr Miocic had such an interest in the outcome of the second application that his support for the officer's recommendation demonstrated apprehension of bias based on interest. But even if such a link could be established, it was not an interest entirely divorced from the merit of the application; his association with an applicant in circumstances where the application already had the support of Council officers who had assessed the process, was of a kind which might readily have been anticipated without surprise by councillors with whom he discussed the matter. Each of the grounds relating to the involvement of Mr Miocic should be rejected.
Failure to comply with statutory procedures
184 Three grounds of appeal contend that mandatory statutory procedures were not followed, invalidating the consent to the second application. Perhaps by way of an alternative position (though the purpose was not apparent from either the notice of appeal or the written submissions and no comment was made in oral argument upon the matter), the appellants also complained that the breaches of statutory procedure were "relevant considerations" which were not taken into account by the Council in reaching its decision. It is appropriate to deal with the matters identified separately and chronologically, as any failure of the second application to comply with statutory requirements must be treated as non-compliance with a precondition to the power of Council to determine the application.
(a) Statutory scheme
185 The first step in the appellants' argument must be to establish what was a mandatory requirement for a valid development application. Section 78A of the EP&A Act provides that a person may apply to a consent authority for consent to carry out development. It prescribes preconditions in certain cases (not presently relevant) and states that regulations may specify things that "are required to be submitted with a development application": s 78A(9).
186 The Environmental Planning and Assessment Regulation 2000 (NSW) ("the EP&A Regulation") provides in cl 50:
" 50 How must a development application be made?
(1) A development application:
(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and
(b) if the consent authority so requires, must be in the form approved by that authority, and
(c) must be accompanied by the fee … determined by the consent authority, and
(d) must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission."
187 The relevant ground in the notice of appeal only referred to failure to comply with cl 50(1)(b): nevertheless, non-compliance with paragraphs (a) and (b) was relied upon in submissions which complained, in particular, of documents which failed to accompany the application. The missing documents, to which reference was made in the written submissions, were a survey prepared by a registered surveyor, a statement of environmental effects and a heritage impact statement. In the course of oral submissions, some emphasis was placed upon the supposed inadequacies of the "site plan" required by cl 2(1)(a) of Schedule 1, Part 1 of the EP&A Regulation in accordance with the matters specified in cl 2(2).
188 Relevantly for present purposes, Schedule 1, Part 1 to the EP&A Regulation contains two parts. The first prescribes "information" to be included in a development application; the second prescribes documents which must accompany the application. Again omitting irrelevant portions, cl 2 of Schedule 1 provides:
" 2 Documents to accompany development application
(1) A development application must be accompanied by the following documents:
(a) a site plan of the land,
(b) a sketch of the development,
(c) a statement of environmental effects … .
(2) The site plan referred to in subclause (1)(a) must indicate the following matters:
(a) the location, boundary dimensions, site area and north point of the land,
(b) existing vegetation and trees on the land,
(c) the location and uses of existing buildings on the land,
(d) existing levels of the land in relation to buildings and roads,
(e) the location and uses of buildings on sites adjoining the land.
…
(4) A statement of environmental effects referred to in subclause (1)(c) must indicate the following matters:
(a) the environmental impacts of the development,
(b) how the environmental impacts of the development have been identified,
(c) the steps to be taken to protect the environment or to lessen the expected harm to the environment …."
189 Although not applicable in the present case, it should be noted that s 78A contains within its terms express mandatory requirements, requiring, in respect of a wilderness area, consent to the development under the Wilderness Act 1987 (NSW) (sub-s (7)); in relation to a designated development, that the application be accompanied by an environmental impact statement (sub-s (8)(a)), and in areas containing critical habitat or threatened species, a species impact statement (sub-s (8)(b)). It is well-established that, absent substantial compliance with such statutory prescriptions, there can be no valid determination of such an application. There are three principles which underlie that conclusion.
190 First, the language throughout is mandatory and thus invokes the principles set out in Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242 at 255 (Stephen J); see also Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-359 (Handley JA, Kirby ACJ and Priestley JA agreeing). Secondly, the requirements are not in terms conditioned on an assessment by council of the need for such material. On one view that is understandable: if the environmental effects of a development are not self-evident, council might be inclined to waive the need for a statement of environmental effects. On the other hand, the purpose of environmental protection, identified in s 5 of the EP&A Act, may best be served by a universal requirement for a statement of environmental effects, which will be of greatest value in those cases where possible effects are not self-evident. Thirdly, if the requirements for a valid application are not dependent on the opinion of the consent authority, they are more properly seen as essential conditions for the exercise of power, the existence of which will ultimately depend upon the opinion of a court in the event of a challenge: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55.
191 The terms of sub-s 78A(9), like those of sub-ss (7) and (8), are mandatory. There is no reason why they should be read as not prescribing essential conditions of a valid development application. They do not pick up all requirements of the EP&A Regulation, but only those specifying "other things" to be submitted with a development application. The principles established with respect to the predecessor to s 78A, s 77(3), would appear to be applicable. Thus in Botany Bay City Council v Remath Investments No. 6 Pty Ltd [2000] NSWCA 364; 50 NSWLR 312, Stein JA stated at [14]:
"[14] That is not to say that a development application is invalid or void if it is not accompanied by, for example, an environmental impact statement, species impact statement or the prescribed fee, at the very time of its lodgment with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document … or the fee … .
…
[18] In my view, a development application cannot be seen as 'made' unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete."
192 There may be countervailing considerations. One is the prescription in s 78A itself of the need, in particular cases, for an environmental impact statement or a species impact statement: see s 78A(8). That course may be seen to give greater legal import to those requirements, as compared with requirements specified by regulation. Given the wide scope of "development" requiring consent, it may be thought unlikely that Parliament intended that invalidity should flow from failure to comply with matters set out in regulations. Another important aspect underlying Scurr and Helman was the involvement of the public arising from requirements for the exhibition or notification of particular applications, which were not applicable in the present case.
193 In addition, there are questions as to the construction of the EP&A Regulation itself. In particular, it is necessary to consider whether, despite its mandatory language, the documents identified in Schedule 1, cl 2 are properly treated as things required to be submitted with a development application for the purposes of s 78A(9).
194 The requirements in the EP&A Regulation must be considered in their context, including cl 51(1) which empowers a consent authority to "reject" a development application within seven days after receiving it, if it does not comply with the requirements of cl 50(1)(a) or is "illegible or unclear as to the development consent sought". It might be thought curious if such a development application which was not so rejected was nevertheless invalid. Indeed, if it were not a development application at all, it is curious that cl 51 should refer to it as such. If the application is rejected, it is taken for the purposes of the Act "never to have been made" and the application fee must be refunded: cl 51(3) and (4). On the other hand, it may be that cl 51 merely allows the Council to cut short any uncertainty which might arise from the lodgement of an incomplete application. If that were the case, the approach of Stein JA in Remath Investments would have continued operation in those cases where the application was not rejected.
195 As noted above, the requirements referred to in the EP&A Act, s 78A(9), are limited to those "other things … required to be submitted with the development application". It does not refer to information to be contained in the application, or the form of the application, or the manner in which it is to be lodged. It refers only to accompanying things, such as documents and then only to those documents made mandatory by regulations. This would not in terms pick up the requirements of cl 50(1)(a) in relation to the information to be included, nor the requirement in par (b) in respect of the form of the application. It would, however, pick up the requirement in respect of accompanying documents in par (a) and the requirement for payment of the fee in par (c). On that basis, the only compulsory documents required by Schedule 1 to the EP&A Regulation were a site plan, a sketch of the development and a statement of environmental effects. The requirements of a site plan are identified at cl 2(2) of Schedule 1, but all that is required in respect of the various elements is that the plan "must indicate" those matters. Similarly, cl 2(4) merely requires that a statement of environmental effects "must indicate" the environmental impacts of the development. The sketch "must indicate" information as to the location of any proposed buildings or works, the detail of which is not relevant because it is not in issue in the present case: see cl 2(3).
196 Parliament used mandatory language in s 78A. There is no explicit suggestion that a distinction is to be drawn between the requirements specified in sub-s (8) and those which the regulations may specify, pursuant to sub-s (9). The only indication that a failure substantially to comply with the requirements might not necessarily lead to invalidity is to be found in the power to reject an application contained in cl 51. However, that provision in the EP&A Regulation cannot in principle affect the construction of the statute and, in any event, has its own function, as discussed above. That function is not inconsistent with the documents prescribed in Schedule 1, cl 2, being "requirements" for the purposes of s 78A(9).
197 It is not to be doubted that the requirements of s 78A(8) are compulsory, in the sense that failure to comply will result in invalidity of the ultimate determination: see Helman. Nor is it in doubt that the need for a statement specified in that provision is a question for objective determination, ultimately by a court if the circumstances of a particular case are in doubt, and not a matter for the opinion of the consent authority: see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 and, of direct relevance, Timbarra Protection Coalition Inc.
198 However, the approach to be taken by this Court in relation to s 78A(9) must accord with more recent authority, including Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81. In that case, Tobias JA (Young CJ in Eq and Campbell J agreeing) rejected this approach, concluding that the failure to include a statement of environmental effects did not invalidate the consent: at [60]-[90]. A significant element in his Honour's reasoning was that the statement of environmental effects served a less central role than the statements required under s 78A(8) and was not the subject of any detailed requirements either as to the qualifications of its author or its contents. Curiously, this reasoning was the reverse of the objection to a mandatory requirement engaging invalidity for non-compliance discussed in Helman. As his Honour correctly noted at [48], Handley JA in Helman drew a distinction between different mandatory requirements (then found in s 77(3)), noting that "the content of these requirements vary": Helman at 355. Nevertheless, the argument in Helman was not that requirements easily satisfied should not be treated as engaging invalidity for non-compliance, but that the heavy burden of preparing an environmental impact statement within the terms of the legislation was so great as to make it highly unlikely that Parliament intended non-compliance to engage invalidity. It was that argument which was rejected in Helman, on the basis that the courts "have insisted substantial compliance without being over technical or astute to find fault": at 356. It follows that the lower the level of particularity prescribed by the statute, the easier will be substantial compliance: cf Cranky Rock Road at [66]-[68].
199 Another strand in the reasoning in Cranky Rock Road was that one could well envisage circumstances in which a consent authority could reasonably reach its decision without one of the prescribed documents, "where the absence of that information or those documents is not in the particular case of such significance as to prevent it from performing its statutory duty under the EP&A Act when determining the application": at [73]. However, it is by no means clear that the legislation vested power in the consent authority to determine what was and was not mandatory, in relation to the accompanying documents prescribed by regulations, but not in relation to a species impact statement: cf Timbarra Protection Coalition.
200 The Court in Cranky Rock Road felt able to distinguish the reasoning in the decisions of this Court in Helman, Timbarra Protection Coalition and Kindimindi Investments, preferring the contrary reasoning in a series of cases in the Land and Environment Court. There was no challenge to the correctness of the decision in Cranky Rock Road and accordingly this Court should apply it in the present case. On that approach the appellants must fail because absence or inadequacy of documents required by Schedule 1, cl 2, will not spell invalidity of the application. However, for reasons to be explained, even a stricter approach to the requirements of documents accompanying a development application will not assist the appellants.
(b) Application of principles
201 On the legal assumptions most favourable to the appellants, the development applications had to be accompanied by a site plan, a sketch of the development and a statement of environmental effects in order for the determination of the application by Council to be valid. The appellants' case, however, took the matter a step further, arguing that other documents, including a survey plan and a heritage impact statement were required by the Council's own guidelines for development applications. However, those guidelines did not, of themselves, involve statutory preconditions to the exercise of power by the Council as a consent authority. Such material could only be considered mandatory if it were necessary in order for the Council properly to carry out its consideration of relevant matters, pursuant to s 79C(1) of the EP&A Act. As already explained, the primary issue in the case was the effect of the construction of the proposed carport on the heritage values of the appellants' neighbouring property, which was a listed "heritage item", based on views of the property from the street. It could not be said that the Council did not give appropriate consideration to that issue. How it set about that task was a matter for it. The absence of a survey plan or a heritage impact statement did not of themselves affect the validity of the consent. In fact there were two heritage impact assessments before the Council and it had conducted a site inspection.
202 So far as the site plan was concerned, evidence had been tendered in the Land and Environment Court demonstrating inaccuracies and errors in the site plan filed with the 2005 application. However, it was only necessary that the plan substantially comply with a requirement that it "indicate" the matters referred to in cl 2(2) of Schedule 1 of the EP&A Regulation. As explained in Helman, the Court will not approach this question in a technical manner, nor be astute to find fault: at 356. The evidence was not of a kind which established a major deficiency necessary to demonstrate substantial non-compliance with this lenient standard.
203 In relation to the statement of environmental effects, the primary complaint was that the statement lodged in support of the application had not been "certified" as required by the Council's guidelines for preparation of supporting documentation. The "certification" required by Council was not a statutory requirement. In any event, the statement was certified and the appellants' complaint was that the certification in the second application was a photocopy of the document from the earlier application which contained inaccuracies in the plans. The challenge is legally misconceived and was correctly rejected by the primary judge as a ground of invalidity. That conclusion was in accordance with Cranky Rock Road and would have been rejected even if the alternative legal analysis suggested above were to be applied.
Miscellaneous grounds
(a) Breach of procedural fairness
204 In separate grounds, the appellants complained that there were breaches of procedural fairness on the part of Councillors Ryan and Ebbeck in failing to disclose their relationship and communications with Mr Allan to the Council and to objectors and, separately, in taking into account material not available to the appellants, "namely information obtained … at a site visit on 29 September 2005".
205 These grounds were misconceived. It is not necessary to determine whether, as appears doubtful, the last point was pleaded, argued in the Court below or pressed in this Court. The substantial difficulty with the appellants' argument is that it treats them as a party to the Council's decision. That was a mischaracterisation of their role in the process of determining a development application. They were objectors, who, it may be assumed, were entitled to have their views taken into account. That happened. They had no right to be provided with material available to councillors, absent some statutory obligation, as to which none was identified.
(b) Taking account of irrelevant considerations
206 In relation to Councillors Ryan, Ebbeck and Hall, it was said that each took account of allegations by Mr Allan concerning the bona fides of the appellants and the lack of merit in their objections to the application. In relation to Councillor Hall, it was also said that he took into account a belief that he "would or might be financially at risk" if he failed to vote in favour of the application. These complaints are misconceived. In relation to the views presented by Mr Allan, it might have been shown (though it was not in fact) that they were erroneous; even were that finding assumed, there is no statutory prohibition on members of a consent authority taking into account submissions from an interested member of the public relevant to the exercise of the authority's powers. Submissions do not become "irrelevant considerations" because they are misguided or erroneous. In any event, the appellants are unable to demonstrate what the councillors took into account in reaching their decisions. No reasons were provided, nor were any required. Even if it were demonstrated as a fact that individual councillors took into account legally irrelevant considerations, there would be a further question as to whether the same principles apply in relation to such a complaint with respect to members of a collegiate body, as apply in relation to bias, a question which need not be addressed in the circumstances.
207 The separate complaint with respect to Councillor Hall apparently derived from an email of 6 October 2005 to the general manager of Council. So far as can be gleaned from the text, Councillor Hall had been approached by solicitors acting for the Council seeking access to documents held by him, possibly for the purposes of considering Council's response to the legal proceedings in relation to the first application. Councillor Hall was anxious to obtain reassurance from the general manager that he was not personally at risk in relation to the litigation. The following day he apparently received a letter from Deacons, solicitors, and asked the general manager to "respond to Mr McGovern direct". Over the following days, there were email exchanges between Councillor Hall and Mr McGovern relating to the second application. In numerous exchanges over the following days with both Mr Allan and Mr McGovern, Councillor Hall maintained his distance from each. At the Council meeting on 11 October he asked questions concerning the documentation and subsequently made two considered contributions to the debate dealing with the merits of the application and with the objections. In the course of those contributions, he indicated his reasons for moving a motion of approval for the application. There is no hint in his comments that he had any personal concerns. Regardless of other difficulties, the factual basis for the complaint was not made good.
(c) Failure to take account of relevant considerations
208 The appellants contended that part of the proposed development was located "at the first floor level", thereby engaging the operation of Development Control Plan 38. The failure to take it into account was therefore said to be a contravention of s 79C(1)(iii) of the EP&A Act.
209 This matter arose from a reference in the objection filed by the appellants on 7 July 2005 in which it was noted that lines of sight extended from a proposed terrace and meals room across the rear of their property. The plan indicated that the rear terrace was 2.33 metres above the natural level of the land at that point. The letter of objection continued:
"The proposed rear extensions will be at first floor level contrary to DCP 38 para 5.4.1 which provides:-
'First floor decks, balconies and rooftop terraces are not permitted where they overlook … or have the potential to overlook habitable rooms or private open space.'
'Ground level' means natural ground level prior to any development cf MLC Properties v Camden Council & Ors (1997) 96 LGERA 52. It follows that the proposed rear extensions are at first floor level not ground level, and cannot be permitted."
210 A "summary sheet" prepared by Council officers for the meeting of Council on 26 July 2005 identified as an applicable policy, Development Control Plan 38. Further, the report prepared by Council officers stated:
"Concerns have been raised that the proposed rear terrace would overlook the rear of the adjoining properties, in particular No. 51 Telegraph Road. The provisions of Council's DCP state that:
'first floor decks, balconies and roof top terraces are not permitted where they overlook … habitable rooms or private open space'.
The proposed rear additions and new elevated terrace are not a first floor element but rather are ground floor elements which are elevated due to the fall of the site at the rear of the property. It is agreed that there would be some overlooking as a result of one particular sidefacing window, however, this window is to be deleted (refer Condition No. 28)."
211 At the Council meeting on 26 July 2005 Mr McGovern addressed the Council noting, as a complaint about the adequacy of the heritage impact statement, that it did not identify the fact that "the so called ground floor addition … is in fact 2 metres into the air". There is no doubt that most of the discussion at the Council meetings, including the substance of Mr McGovern's comments at each meeting, were directed to the proposed carport on the front of the property. Evidence relied upon to demonstrate a failure to take into account a relevant consideration must pay regard to the context in which the particular matter arose. Because it was addressed in the staff report, although thereafter treated as a relatively minor consideration in the debate, the appellants have failed to establish that it was not taken into account.
212 The statutory obligation was to have regard to an applicable development control plan, not to apply it correctly. It is not possible to say on the evidence that the relevant part of the identified development control plan was not taken into account. It clearly was, although Council's officers responsible for the report interpreted it in a manner with which the appellants disagree. Nevertheless, the substance of the objection was addressed. The ground must be rejected.
Costs of trial
213 Separately from their challenge to the substantive judgment below, the appellants also sought leave to appeal from a second judgment of the Land and Environment Court with respect to costs, which was delivered on 11 February 2008: McGovern v Ku-ring-gai Council (No. 2) [2008] NSWLEC 50. Leave to appeal was required pursuant to the Land and Environment Court Act 1979 (NSW) s 58(3)(c) ("the LEC Act"). The issues raised on the application for leave concerned the requirement that the appellants pay the costs of the proceedings with respect to the first application and that they pay the costs of both the proponent of the development and the Council. At least in relation to the second point, a similar question arises with respect to the costs of the appeal. For that reason, and because the circumstances of the substantive case have been fully explored in this Court and because the application raises a question of principle, leave should be granted. It is therefore convenient to continue to refer to the applicants as the "appellants", consistently with the preceding reasons in relation to the substantive appeal.
214 The proceedings in the Land and Environment Court were conducted on the basis that any order sought as to costs fell for consideration under s 69 of the LEC Act, as then in force. That section conferred on the Court, subject to the rules and any other Act, a general discretion to determine by whom and to what extent costs were to be paid. It was not contended that there was any rule applicable in class 4 proceedings in the Court which governed the exercise of that statutory power.
215 As the primary judge recognised, s 69 was repealed, with effect from 28 January 2008: see Courts Legislation Amendment Act 2007 (NSW), Schedule 6 [28] ("the 2007 Amendment Act"). There were no transitional or savings provisions in relation to that repeal. The 2007 Amendment Act also amended the Civil Procedure Act 2005 (NSW) to insert in Schedule 1 a reference to the Land and Environment Court, in respect of its jurisdiction including class 4 proceedings, thus rendering Parts 3-9 of the Civil Procedure Act applicable in the Land and Environment Court. Accordingly, the costs order made by the primary judge on 11 February 2008 should be understood to have been made under s 98 of the Civil Procedure Act, which is relevantly in the same terms as the repealed provision of the LEC Act.
216 Section 98 of the Civil Procedure Act is subject to "rules of court". Those rules include the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"): see Civil Procedure Act, s 10. The Civil Procedure Act and the UCPR apply to proceedings in the Land and Environment Court commenced before 28 January 2008, although the Court may make an order "dispensing with the requirements of the uniform rules" in relation to such proceedings: Civil Procedure Act, Schedule 6, cl 15. (It is not necessary to consider the effect of the general savings provision in cl 17 of Schedule 6, that provision being subject to the Schedule, and hence to cl 15 thereof.)
217 It would appear to follow that the power to order costs was subject to the operation of UCPR r 42.1, requiring that "costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs". Her Honour applied the principle that costs should follow the event "in the absence of disentitling conduct": at [12]. That was not in terms in accordance with the rule, but her Honour referred to the rule and stated that she did not consider the approach would be different under the rule. Nevertheless, it is at least arguable that her Honour restricted her consideration of factors upon which the Court might otherwise order, in a manner not consistent with the rule, although the language of 'disentitling conduct' has support in the authorities.
218 As has been noted, the proceedings in the Land and Environment Court commenced with a challenge to the determination of the first application and were subsequently amended to include a challenge to the determination of the second application. There was no discussion in this Court as to the propriety of amending proceedings in the Land and Environment Court to include a challenge to a determination which had not been made at the time the proceedings were commenced: cf Civil Procedure Act, s 64(3). Accepting that that course was available in the Land and Environment Court at the relevant time, the practice is apt to give rise to confusion.
219 Proceedings in relation to the first application were not rendered futile by the lodgment of the second application, nor indeed by the grant of consent to that application. It was assumed that the appellants needed to succeed in setting aside both determinations in order to prevent the development. (It was, of course, sufficient for the developer if the determination of the second application were upheld.) On the other hand, that state of affairs was complicated following the "surrender" on 28 October 2005 of the consent to the first application, which surrender had been a condition of the consent to the second application. At least in theory, the legal consequence of the "surrender" may have been in doubt if the challenge to the consent to the second application were successful.
220 In their written submissions, the appellants stated that on 9 December 2005 they sought and obtained leave to file an amended class 4 application, which no longer sought relief in respect of the first application. Although the submissions purported to annex such a document, what was in fact annexed was a copy of amended points of claim of 8 December 2005. There was no reference in the index to the appeal books to any amended application, other than one filed on 28 October 2005, which sought declarations with respect to the consent given on 11 October 2005 but continued to seek orders in respect of the earlier consent. Further, the third further amended points of claim, filed on the penultimate day of the hearing, continued to make allegations in relation to the validity of the 2004 application.
221 In these circumstances the preferable course is to treat the challenge to the determination of the first application as a separate matter which was not resolved and to attribute to that part of the proceeding the costs of all parties incurred prior to the date on which the second respondent surrendered the consent to the first application, namely 28 October 2005.
222 In respect of an unresolved proceeding, it will usually be appropriate for the Court to make no order as to costs: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 625 (McHugh J). However, as his Honour noted, at 624-625:
"In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. …
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … But such cases are likely to be rare."
223 One such case was Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129; 153 IR 386, in which this Court awarded costs in circumstances where the claimants had not acted unreasonably in commencing or prosecuting their claims until they became futile, but were nevertheless ordered to pay the respondents' costs because the proceedings were abandoned only when they became untenable as a result of a conclusion reached in other proceedings raising the same issue.
224 In the present case the appellants contended that they should have their costs in the Court below in respect of their challenge to the determination of the first application. In support of that proposed order, the appellants submitted (by written submissions filed after the hearing of the appeal, on 11 July 2008) that the second respondent had conceded before the primary judge that the first consent was invalid. Where and in what circumstances that concession was made is not apparent from the submissions and is not a matter upon which the Court is prepared to place reliance. The submissions of the Council are inconsistent with such a stance. In any event, it is not apparent to this Court that the challenge would inevitably have succeeded. Many of the points of challenge were similar to those raised in respect of the second consent, which failed. The independent point which related purely to the first consent was that it was executed under delegated authority, after that authority had been revoked in respect of that application, by two councillors calling for the application to be dealt with by the Council. Neither the legal nor the factual underpinnings of that ground have been made clear in this Court, nor is it a matter which should be treated as self-evidently correct. The appellants should not receive their costs of the proceedings with respect to the first consent. It was simply a matter about which the outcome remained in doubt and in respect of which there should have been no order as to the costs of any party.
225 The next question is the appropriate order to be made with respect to the remainder of the proceedings in the Land and Environment Court. The appellants were unsuccessful in that Court and have been unsuccessful on appeal. The complaints made with respect to the conduct of the respondents do no warrant a departure from the usual order, namely that costs should follow the event.
226 There is a separate issue, however, as to whether the appellants should pay the costs of both respondents in the Land and Environment Court (and in this Court). There is no doubt that both parties were properly joined in the proceedings; however, they had a community of interest on the primary point, which was maintaining the validity of the second consent. As noted above, comments in the joint judgment in Oshlack raise a question as to whether it is appropriate for the Council to be an active opponent of proceedings, where it is the consent authority and may need to reconsider a decision under challenge. A possible result is that, if it plays an inappropriate role, even on the successful side of the record, it may not obtain its costs of the proceedings. However, this was not a usual case. The major part of the challenge mounted by the appellants was to the conduct of two councillors and at least one Council officer. Although a complaint of reasonable apprehension of bias does not necessarily involve any suggestion of improper conduct on the part of a decision-maker, it is clear that the manner in which the claims were formulated in the present case did. Accordingly, this was a case in which it was appropriate for the Council to take an active role in defence of its councillors and officers.
227 The Council further argued that the Hardiman principle could not properly apply because the need to maintain the appearance of impartiality could not arise where the proceedings themselves alleged partiality. A submission in those terms should not be accepted: it could equally be argued that the Council should not, in successfully defending its officers, create an apprehension of partiality in circumstances where it successfully demonstrated that there had been none. It is preferable to consider the appropriate role of Council by reference to the specific circumstances, as noted above.
228 Nevertheless, because the Council had a legitimate role to play, does not mean that it should necessarily receive its costs, or all of them. Despite Mr Allan's assertions to the contrary in his emails, it was the proponent of the development who had the real interest in maintaining the validity of the consent and not the consent authority.
229 In the circumstances of the case, there has been no demonstration that, to the extent that the respondents had differing interests, those interests were in conflict. Accordingly, although they could not be compelled to employ the same legal representatives, the costs payable by the appellants should not exceed the amount which would have been payable had that happened. What that figure might be is largely speculative, without knowing the extent to which responsibility for the conduct of the proceedings may in a practical sense have been divided between the respondents. The appropriate course is to require that the appellants pay 75% of the costs of the proponent of the development (the second respondent) and 25% of the costs of the Council.
Costs of appeal
230 The impression obtained from the written and oral submissions on the appeal was that the bulk of the resistance was provided by the Council. That arrangement may have allowed the second respondent to reduce her costs, but it was not necessarily an appropriate division of responsibility in accordance with the respective legal interests of the second respondent and the Council. In principle, the same order should be made with respect to the costs of the appeal as that with respect to the costs of the trial. The appellants should pay 75% of the second respondent's costs of the appeal and 25% of the costs incurred by the Council. How that calculation will work out is not known, but it is recognised that the actual amounts payable to each party may be closer to 50% of the total costs to be received if, as appears, the Council's costs are higher than the second respondent's costs of the appeal.
231 There remains a question as to the costs of the application for leave to appeal in relation to the costs judgment.
232 The appellants have had a significant degree of success in regard to the application for leave to appeal, although not complete success. The exercise of discretionary power having apparently miscarried, on a matter of significance, the case was an appropriate one for a grant of leave to appeal, in circumstances where the Court was otherwise apprised of the substance of the issues litigated below. Further, the appellants have been successful on the costs appeal to the extent of limiting their liability to costs incurred after 28 October 2005 and in limiting the overall costs payable to a proportion only of the costs of the respective respondents. The appellants should obtain an order for 75% of their costs of the leave proceedings and consequent appeal, payable as to 50% by the Council and 25% by the second respondent, being a reflection of the apparent division of responsibility between the respondents in resisting the leave application and the underlying appeal.
Conclusions
233 I would propose the following orders: