McGovern v Ku-ring-gai Council & Anor

McGovern v Ku-ring-gai Council & Anor - [2007] NSWLEC 22 - NSWLEC 1998 case summary — Zoe

[6]

Al Oshlack on behalf of the Lismore Greens v Lismore City Council NSWLEC, Sheahan J, 25 September 1998, unreported; Anderton v Auckland City Council [1978] 1 NZLR 657 ; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228; Attorney-General for Victoria v City of Knox [1979] VR 513 ; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 ; Courtney Hill v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529; Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council and Ors [2005] NSWLEC 674 ; Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors [2006] NSWCA 339; Eaton v Overland (2001) 67 ALD 671; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Farah v Warringah Council [2006] NSWLEC 191 ; Gee v Council of the City of Sydney (2004) 137 LGERA 157; Gianoutsos v Glykis (2006) 65 NSWLR 539 ; GIO of NSW v Bailey [1992] 27 NSWLR 304; Hodge v Williams (1947) 47 SR (NSW) 495 ; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; I W v City of Perth (1996) 191 CLR 1; Jones v Dunkel (1959) 101 CLR 298; CASES CITED: Kimber v Ku-Ring-Gai Municipal Council (1990) 130 LGERA 117; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ; Kioa and Ors v West and Anor (1985) 159 CLR 550; Kira Holdings Pty Ltd v Liverpool CC [2004] NSWLEC 81; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 ; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Old St Boniface Residents' Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 ; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Pioneer Concrete v Port Macquarie Concrete, NSWLEC, Cripps J, 20 July 1984 unreported; Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; R v Amber Valley District Council, Ex parte Jackson [1985] 1 WLR 298; R v Marion City Corporation; Ex parte Independent Grocers' Co-operative Ltd (No 2) (1984) 37 SASR 436 ; R v Secretary of State for the Home Department; ex parte Hussain [1978] 2 All ER 423 ; R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383; Schroders Australian Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ; Stead v State Government Insurance Commission (1986) 161 CLR 141; The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 ; Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 ; Weal v Bathurst City Council (2000) 111 LGERA 181

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Particulars (i) The details provided in the Statement of Environmental Effects were inaccurate and incomplete. (ii) The survey plan was not drawn or copied to the noted scale. (iii) The purported survey relied upon was not conducted by a registered surveyor contrary to the statement made in the DA lodgement check list. … 12. The first respondent notified the applicants with respect to the 2004 DA on or about 29 December 2004. 13. On or about 12 February 2005 and within the time specified by the first respondent, the applicants objected to the 2004 DA. Particulars (i) The applicants' objection was in writing addressed to the General Manager of the Council. (ii) The applicants also supplemented their own objection with expert reports prepared by heritage architect Stephen Davies and town planner Tony Moody. 14. On or about 22 March 2005 the applicants were notified by the first respondent via its Council officer Mr Hoy that the proposal would be determined by him by delegated authority. 15. On 22 March 2005 the first applicant contacted one of the Councillors of the first respondent, Laura Bennett, advising that the 2004 DA had been lodged without a Heritage Impact Statement and that the applicants had engaged independent experts both of whom had raised contentions that the plans for the 2004 DA were deficient in a number of respects and raising serious heritage issues about the proposed garage. … 16. On 22 March 2005 Laura Bennett on behalf of the first respondent advised the first applicant that the 2004 DA would be dealt with by the Council itself and that the delegated authority had been revoked. … 17. On or about 6 June 2005 Council Officer Hoy on behalf of the first respondent purported to determine the 2004 DA by granting development consent subject to conditions. … 20 By reason of the revocation of the delegation of Mr Hoy on or about March 2005 the consent purported to have been issued by Mr Hoy on 6 June 2005 was void and of no effect. … 22 In or about March 2005 and unbeknown to the applicants the second respondent lodged with the first respondent a purported Statement of Heritage Impact for the proposed alterations and additions to the DA site. Particulars (i) The second respondent lodged with the first respondent a purported Statement of Heritage Impact for the proposed alterations and additions prepared by a landscape architect Mr David Beaver apparently received by the first respondent on 23 March 2005. 23 In or about April 2005 and unbeknown to the applicants the second respondent lodged with the first respondent amended plans of the proposed alterations and additions to the DA site. … (challenge to 2004 DA in Land and Environment Court)

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(Failure to comply with statutory requirements) 43 The first respondent's DA Guide at all material times specified the types of documentation required for each development, the information that was required to be included in each type of documentation, the quality of the documentation required and the number of copies of documentation required. Particulars … (iii) The DA Guide provided the documents required included a survey plan showing the location and relative levels of the natural and built features of the site and adjoining properties. (iv) The DA Guide provided that the survey plan "must be prepared by a registered surveyor and give levels to the Australian height datum except for small alterations and additions to dwelling houses where spot heights will suffice". (v) Further the DA Guide provided that the survey was required to include inter alia location of boundaries, paths, driveways, fences and retaining walls and other structures. (vi) The DA Checklist provided that the minimum requirements for a site analysis plan included heritage features of surrounding locality and landscape. (vii) The DA Checklist provided that if the subject house was in the vicinity of a heritage item the matter should be discussed with Council's heritage advisor. (viii) The DA Checklist required in cl 5A that the Statement of Environmental Effects must be certified by the planner/architect/person preparing it. 47 Further or alternatively the Council's requirement that all DAs be submitted to it in the form approved by it was a mandatory requirement by reason of the operation of regulation 50 [sic] of the regulations. 48 The 2005 DA as lodged was not in the form approved by the Council and did not conform to the requirements of the DA Guide or the DA Checklist. Particulars (i) The 2005 DA did not include a survey plan prepared by a registered surveyor (ii) The 2005 DA did not include a survey plan showing the location and relative levels of natural and belt features of the site and adjoining properties including the applicants' property (iii) The 2005 DA did not include a survey depicting the location of boundaries, paths, driveways, fences and retaining walls and other structures (iv) The 2005 DA did not contain a Statement of Environmental Effects certified by a planner, architect or person preparing it … 49 The 2005 DA as lodged did not contain the information and it was not accompanied by the documents specified in Pt 1 of Sch 1 of the Regulation and was not in the form approved by the Council and accordingly should have been rejected by the Council. … 52 On 7 July 2005 the applicants objected to the 2005 DA. Particulars (i) The objection was in writing and was based upon the absence of any valid Heritage Impact Statement, the absence of any valid Statement of Environmental Effects and contains specific objections to the proposed carport addition, the rear terrace and meals room.

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when he knew that at the time of the preparation of Mr Beaver's report the architect Fiona Mitchell had stated in the DA application form "Heritage - not applicable" and had not taken any account of the heritage significance of 51 Telegraph Road, Pymble. (vii) … (viii) He failed to advise the Council that Certificate of Statement of Environmental Effects relied upon by the applicants in support of the new DA is the statement of Ms Mitchell dated 24/12/04 which related to DA 1417/04 not DA 642/05 and he failed to inform the Council that there was in fact no Certificate of Statement of Environmental Effects for the new DA. (ix) He failed to adequately advise the Council on the issues relating to Heritage. (x) He erroneously advised the Council that the proposed meals room and terrace were ground floor extensions and that the rear additions and new elevated terrace were not a first floor element but were ground floor elements and that accordingly DCP 38.5.4.1 was not applicable. (xi) He failed to invite the Council's attention to the submissions of the applicants that the proposed rear extensions were at first floor level contrary to DCP 38 par 5.4.1. (xii) He failed to advise the Council that the boundary between 51 Telegraph Road and 49 Telegraph Road is a pronounced diagonal and that the visual privacy of the heritage item could not be protected from direct and unreasonable overlooking from the proposed rear extension and extended terrace. (xiii) He failed to have regard to the applicants' objections in relation to the proposed pool deck and to the presence of condition 23 in the original Development Consent DA 1417/04 but instead and notwithstanding the deletion of the pool deck he recorded that engineering [sic] had referred to the applicant having proposed to install a permeable timber deck and he made it a recommended condition of consent (condition 23) that the application be approved with the inclusion of the proposed rear timber deck. 56 On 11 October 2005 the Council granted development consent to the 2005 DA and in so doing resolved to do so on the basis of recommendations for approval made by Mr Hoy on 8 July 2005 as subsequently adopted in recommendations made by Council's officers in reports dated 12 August 2005 and 12 September 2005.

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Survey evidence 4 An affidavit sworn on 17 August 2006 by David Groundwater, registered surveyor, was relied on by the Applicants. The Second Respondent relied on an affidavit sworn by John Tierney, registered surveyor, on 29 August 2006. Mr Groundwater commented on the accuracy of the information in the Bartholomew plan submitted with the 2005 DA and concluded that that plan is not drawn to Australian Height Datum and the levels shown in the drawing are 1.776 metres lower than the actual level. Mr Groundwater also stated that from his investigations, the boundary distances and bearings of the boundaries reported on the Bartholomew plan were inaccurate and did not relate to the physical improvements on the property. 5 While Mr Groundwater obtained different data from the relevant department to that of Mr Bartholomew, Mr Tierney's evidence was that the errors in Mr Bartholomew's survey were minor. Mr Tierney stated in his affidavit that he was asked to confirm the accuracy of the plotted information on the Bartholomew plan. He undertook searches which confirmed that the data received from Mr Tierney from the relevant land department was correctly applied by him, and also confirmed that for unexplained reasons that data changed after Mr Bartholomew undertook his search. He stated that his surveyed "reduced levels" are within 10 to 20 millimetres of those shown on the Bartholomew plan and concluded there were no substantial errors or differences between the levels shown on the Bartholomew plan and his own survey. He also stated that the boundary bearings shown in the Bartholomew plan are incorrect and do not agree with the title diagrams, however the bearings shown in the Bartholomew plan agree with the orientation of the magnetic north symbol shown in that plan. If the proposed building elements were positioned within the subject land using a combination of the bearings with the true north symbol, then they could be aligned reasonably in relationship to true north. He stated therefore, this minor deviation from true north would not impact adversely on the position of the shadow diagrams between the two buildings. Mr Tierney also gave oral evidence and was cross-examined about the enquiries he made in checking Mr Bartholomew's plan, and did not alter his evidence in any material way. 6 Two affidavits sworn by Mr McGovern, one of the Applicants in these proceedings, on 2 March 2006 and 16 August 2006, were also relied on. The first affidavit is most relevant and sets out a history of the 2004 DA and the 2005 DA according to Mr McGovern. As the Applicants limited the issues in their case at the outset of the hearing not all of the matters referred to in the affidavit need be considered. Material matters are set out in a chronology below. Documentary evidence 7 The documentary evidence consisted of documents from the Council's files for the 2004 DA and the 2005 DA. A large bundle of emails (approximately 132 pages) largely between Mr McGovern, several councillors, particularly Councillors Ryan and Ebbeck and Mr Miocic, the Council's Director of Development and Planning, and the husband of the Second Respondent, Mr Allen, were relied on by the Applicants (exhibit B). The First Respondent also tendered a bundle of 28 emails largely between Mr McGovern and Councillor Bennett and to a lesser extent Councillors Hall and Ebbeck in the period 15 March 2005 to 10 October 2005 (exhibit 2). Councillor Ryan was the mayor of Ku-ring-gai Council for most of the period relevant to this case, but was no longer in that position when the Council decided to approve the 2005 DA in October 2005. 8 A "Factual Outline of Applicant's Case" of 21 pages was filed in Court at the hearing. The document sets out a history according to the Applicants of the lodgement of the 2004 and 2005 DAs. It commences in the first paragraph by stating that there was a history of disputes between the McGoverns and the Allens over a spa placed on the Allens' property near the boundary with the McGoverns. It recites the text of emails between Mr Allen and Councillor Ebbeck about the spa, including adverse comments by Mr Allen about Mrs McGovern. I consider these matters are irrelevant to the legal issues in this case. 9 The following chronology contains a reference to most of the material relied on by the parties drawn from exhibit A, exhibit 1 and exhibit 2. The Applicants' case as pleaded and argued relied on the content of particular emails concerning the 2005 DA which will be identified in due course. Material referring to the 2004 DA is included in the chronology but the validity of the 2004 DA is not now challenged in these proceedings. The Applicants argued that it was necessary to review the whole course of conduct in relation to the 2004 DA and 2005 DA to determine the apprehension of bias ground in this case. 2004 October Council DA Guide published December 29 DA 1417/04 lodged for new double carport and driveway, new terrace and meals room, new deck December 29 Architect Fiona Mitchell's Statement of Environmental Effects lodged 2005 January 20 Council notifies neighbours February 9 Objection from Mrs Jensen 41 Hope St 10 Objection by Planner Stephen Davies on behalf of Applicants 12 Objection by present Applicant Objection from Mr Russell 39 Hope St 22 Objection from Moody & Doyle planners, on behalf of Applicants March 15 email objection from Mr McGovern to Cr Bennett 23 Cr Hall requests matter be referred to Council David Beaver's Statement of Heritage Impact provided 31 Mr Allen seeks meeting with Cr Ebbeck - concerning Dramas … related to … next door April 1 Cr Ebbeck to Mr Allen - Have requested report about Allen complaints; Allen to Cr Ebbeck complaining about McGovern 28 Amended plans lodged; pool deck deleted May 5 Council's Landscape Development Officer supports the proposal, with conditions 17 Hoy informs Cr Ryan that assessment is ongoing and I am considering whether additional referrals will be necessary to address the proposed amendments 24 Cr Ryan advises Hoy of prospective visit to the Applicants' residence 26 Meeting on site re 2004 DA 26 Cr Ryan suggests Cox met at site; attends site for 30 minutes; main issues identified; to be considered under delegation June 2 Miocic to Cr Ryan, clarifying his summary of the proposal - notes McGovern's consultant advanced well argued issues and concerns 3 Council's letter to all objectors, including the present Applicants, reviewing all issues 3 Officer Hoy's Delegated Report recommending DA be approved; Consent Issued dated 6 June 9 Applicant McGovern complains that amended plans and heritage report were acted on by Hoy without an opportunity for comment by them or their expert 9 Cr Bennett informs McGovern of revocation of delegated authority 9 Hoy reports to Miocic; Peat's summary provided to objectors in Council's letter of 3 June 2005, relevantly, that a Heritage Impact Statement was provided with the amended plans 10 Applicant McGovern pursues response from Council 15 Miocic to Cr Bennett and Hall, explaining failure to refer matter to Council according to the call-up notice on the file 15 Applicant McGovern enquires of Cr Hall whether application will be referred to Council or will I have to commence Class 4 proceedings? 17 Land and Environment Court proceedings commenced by McGovern challenging 2004 DA 20 Allen to Cr Ryan; re the house; had received summons that day; complains about McGoverns, seeks guidance. 21 Allen to Cr Ryan - expresses wish to fight this fully and professionally and I will support in any way possible. 22 Allen acts on suggestion of Miocic to lodge fresh DA; invites site visit; Miocic definitely guarantees a fast track service; Allen discusses unnecessary conditions and acknowledges Miocic's fast track to have [application] determined before the Court case starts … no sense in wasting more money … especially given that the complaints are unreasonable. 23 DA 642/05 lodged 23 Allen emails Miocic, appreciating his taking the time to listen to me and fast track the process that may be mutually beneficial. I am sure Council can do without the Class 4 action and associated costs. 24 Council notifies neighbours of DA 642/05 29 Applicant McGovern complains to Cr Bennett that determination of fresh DA could occur before my case gets to its first mention date … I do not think that justice is seen to be done if Hoy continues to have authority to determine my application. In my view the new DA should be reported on by an independent person … 2005 July 5 Cr Bennett emails Applicant McGovern re fresh application coming to Council 7 Letter of objection by the present Applicants (tab 28) and letter of objection from Mrs Russell of 39 Hope Street 8 Report to Council on application by Hoy (tab 30) 11 Allen seeks information from Miocic as to progress of application; Miocic says it will be completed for the Council meeting on 26 July 11 Jensen complains to Cr Bennett and Hall as to time available to object; Hall indicates will seek extension 12 Miocic informs Cr Hall Current DA identical to previous … I see no reason for the officer's recommendation … to be any different from [that] for the previous DA. 18 Allen emails Miocic Not appear that there is anything in any of the points McGovern makes …[ask] that your legal people work closely with my solicitor to ensure best and fairest outcome 18 Further email, Allen to Miocic - Although we are hoping to solve this problem with the fresh DA there are issues from the previous consent (Again on 19 July) 20 Applicant McGovern emails Cr Bennett. Complains of certification for SEE being that for the earlier DA, whereas the plans were not identical. Complains about inaccuracies and misleading nature of earlier (April 2005) plans but as the heritage impact statement antedated those plans, it could not now apply, and did not comply with the DA checklist or DCP 38; seeks meeting to air his grievances. 21 Allen enquires of Miocic as to Miocic's speaking individually to each of the Councillors to ensure the numbers support the Council recommendations; Miocic confirms that he has briefed a number of Councillors on the special circumstances of this case and will speak with the others before the council meeting of 26 July 25 Hoy responds to Jensen's concerns, in email to Miocic 25 Applicant McGovern emails Cr Bennett; provides a list of defects, suggests legal advice on sufficiency of application and have independent assessment because of seriousness to ensure application is properly and genuinely considered on its merits 26 Allen enquires of Miocic as to Councillors he was going to speak with to ensure they are briefed and understand the situation 26 Applicant McGovern emails six councillors including Cr Ryan and Cr Ebbeck with lengthy summary of his objections, concluding It is clear that our objection on 7 July has not been considered by Hoy in his report of 8 July. Unless the proposal is considered independently on its real merits the entire process will miscarry.Cr Ryan sends email to Allen 26 Allen emails Cr Ebbeck and other councillors, Hope to have your support. 26 Council meeting; addressed by Applicant McGovern Matter deferred for site inspection 26 Allen emails Cr Ryan - proceedings still have to keep running in the L&E Court so I think one way or the other he will send me broke 27 Allen to Cr Hall - Thank you for your support last night Allen asked Cr Ryan whether there was any other councillor he should thank 27 Applicant McGovern thanks Cr Bennett for arranging site meeting; complains inadequate advice from the staff 27 Cr Hall to Allen - I am not one to be intimidated by a neighbour and I know the staff worked diligently to assess your application 28 Allen to Cr Ryan asking for good chair for site meeting. Cr Ryan says don't worry she will chair. August 3 Allen to Miocic - Complaint of McGovern's canvassing support; objectors not to come on site (ex B p69) 6 Site meeting 6 Allen emails site inspection information to Cr Hall and Cr Ebbeck, who did not attend 6 Cr Ebbeck emails Allen - I feel the staff have this right 12 Report to Council by officers Hoy, Cox and Miocic (for Council meeting of 23 August), responding to issues raised by the Council at the site inspection on 6 August, recommends approval 17 Allen to Cr Ryan - If there is anything you can do to help get some numbers etc I would be most grateful . Cr Ryan replied. 23 Council meeting; Applicant McGovern, addresses - suggests independent assessment; mentions Davies and Beaver reports, observes Council will look like a laughing stock if present proposal approved; Cr Hall recommends independent heritage assessment. Majority councillors vote in favour of proposal 24 Allen emails Miocic; refers to Applicant McGovern's lobbying; Miocic replies that he too is disappointed with the outcome, but he will arrange the independent heritage consultant - Allen emails back that consultant should be a listener and understanding and sympathetic to the Council position and line of recommendation for approval 27 Cr Ryan confirms to Allen that she will continue to support the application and would continue to work on the councillors September Heritage Impact Statement by Jennifer Hill, independent heritage expert. She concludes the proposed carport is inappropriate and should not be supported 16 Allen emails Cr Hall, Ebbeck, Malick and Shelly seeking support for staff recommendation to approve DA 16 Allen emails Cr Ryan, notes fourth recommendation for approval; critical of the Hill report; seeks help with other councillors (ex B p91); she replies I just hope we can get enough others across the line for you 16 Cr Ebbeck to Allen my position has not changed … this should have been resolved 18 Cr Ryan to Allen - says she will speak to her colleagues and see how placed 20 Report by Council officers Hoy and Prendergast on the Hill statement 20 Council meeting (T-115A - i); Applicant McGovern and a representative of the Second Respondent, Mr Glendinning, town planner, address the Council; councillors resolve to defer for preparation of reasons for refusal 20 Allen sends several emails to Cr Ryan - Ideas for action? emails, Cr Ryan to Allen - Really have to try to get a couple more councillors on side 21 Cr Ryan emails Allen - Can't advise you about your next course of action 21 Allen, lengthy email to Cr Hall complaining about his behaviour (this is the email argued to be intimidating to Cr Hall) asks for reconsideration 21 Cr Hall to Miocic - Willing to review staff assessment 26 Allen emails Cr Hall - Once you've had a good look around the site you will be convinced of the merits … 26 Allen copies email to Cr Hall to Cr Ebbeck who approves of it 29 Second site inspection by some councillors October 6 Cr Hall to Brian Bell (GMM) re Class 4 proceedings - apprehension about costs, concerned there may be some kind of intimidation in this matter … 9 McGovern emails Cr Hall as to procedure/motions 10 Allen emails Cr Hall Do I still have your support? 11 Council meeting (p128C-J). Addressed by McGovern and Glendinning for Second Respondent. Resolution to approve: 7 in favour; 3 against

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Finding on Issue 1 25 I consider the Respondents' arguments are generally correct except that I consider the DA pro forma used for the 2004 DA and the 2005 DA is, by inference, an approved form as referred to in cl 50(1)(b) of the Regulation. The requirements in the DA Guide are separate to that pro forma and are not mandatory matters that must accompany a DA in order for it to be valid. As identified by the First Respondent the DA checklist is contained in Appendix 3 to the DA Guide. The DA checklist is part of a Council policy, the DA Guide. The DA checklist does not impose mandatory legal obligations or preconditions to the grant for development consent by the Council. The DA Guide is not an instrument which specifies mandatory matters under cl 50 of the Regulation nor under s 79C of the EP&A Act. The checklist contains requirements which can be waived by the Council. The requirement that a survey signed by a registered surveyor be provided under the DA Guide is not a mandatory requirement under the EP&A Act. The failure to provide this does not invalidate the DA. Item 5A is one line in the DA checklist stating "5A Statement of env'l effects", with a space for a tick against various aspects of the proposed development. The same finding that this is not a mandatory requirement also applies to the SEE for the 2005 DA. 26 The Applicants relied on Remath. That case considered s 77 of the EP&A Act and cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, as they then were, relating to what must accompany a DA in the case of designated development in order for it to be valid. Section 77(3)(d) stated that designated development required an accompanying environmental impact statement (EIS) to be lodged with the application. Section 77(3)(b) stated that a DA must be "made" in the prescribed form and manner. In that case the respondent failed to lodge an EIS with its DA. 27 In the Court of Appeal Stein JA, in his judgment, held at [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. 28 At [47] of the judgment, Fitzgerald JA agreed, stating that a DA which did not comply with requirements mandating what must be attached to it and the form these were to take was not "made" until it complied with those requirements. Handley JA agreed with both Stein JA and Fitzgerald JA. The facts of that case are different to those before me in that the legal requirement for an EIS was specified in the relevant Regulation. I do not consider the reasoning applies to the facts of this case.

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29 The recent Court of Appeal decision in Cranky Rock Road Action Group Inc and Anor v Cowra Shire Council and Ors [2006] NSWCA 339 is relevant in relation to the SEE argument raised. That case considered s 78A of the EP&A Act and cl 50(1) of the Regulation. Schedule 1 Pt 1 cl 2 of the Regulation specified that a DA which was not designated development must be accompanied by a SEE as provided for by cl 50(1)(a). In that case, no SEE was lodged by the second respondent who sought to subdivide land. The council granted development consent subject to conditions. At first instance, Bignold J held that a grant of development consent would not be invalid because it failed to comply with the requirement to lodge a SEE. This finding was upheld by the Court of Appeal. In the leading judgment, Tobias JA stated at [54] (Young, Chief Judge in Equity and Campbell JA concurring) that: …his Honour was correct to emphasise the very general matters which [a statement of environmental effects] "must indicate" on the one hand and what he referred to as the "comprehensive and objectively rigorous requirements for the content and credentialing of an environmental impact statement or species impact statement. 30 His Honour further concluded at [76] that: …if the development application is for a development which the consent authority considers should be accompanied by an SEE to assist in the performance of it [sic] statutory functions, then it has the power to reject the application pursuant to cl 51(1)(b) where an SEE has not been provided. Alternatively, if the application is one where the nature of the development and its likely environmental impact (if any) is such that the consent authority considers that it is able to properly perform its statutory functions without the need for an SEE, there would be no reason in logic or principle why it should not do so without the legal consequence of any grant of consent to such an application being invalid. 31 This reasoning suggests that the alleged inadequacies in the SEE identified by the Applicants do not give rise to the breach of a mandatory statutory requirement. 32 If I am wrong and one or both of these two matters are mandatory statutory requirements, I agree with the First Respondent's submission that under the test propounded in Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 by Brennan CJ at [38]-[42] and the joint judgment of McHugh, Kirby, Gummow and Hayne JJ at [92]-[93] that it is not the legislative intention that this non-compliance would result in invalidity given cl 51. That clause provides that a council may reject a DA within seven days if it is not accompanied by a document specified in Pt 1 Sch 1. In this case the Council did not do so. The Applicants fail on this ground. 2. Misrepresentation 33 The Applicants further argued that the Council's decision to approve the 2005 DA was invalid because it had been obtained by misrepresentation in two respects.

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Breach of Natural Justice (TFAPOC 65A, 65B) Applicants' submissions 38 In their principal argument, the Applicants argued the process whereby Council determined the 2005 DA involved procedural unfairness because of the following: (a) Two of the councillors who voted in favour of the DA (Councillor Adrienne Ryan and Councillor Nick Ebbeck) were biased because both were unequivocally committed to approve the 2005 DA notwithstanding the merits of any objection (b) The vote in favour of the DA was preceded by inappropriate email contact between Mr Allen (the husband of the Second Respondent) and councillors and a Council officer (Mr Miocic) (c) The email contact between councillors and Mr Allen, and Council officer Mr Miocic and Ms Ryan was not disclosed to the McGoverns (d) Mr Allen had or had attempted to intimidate Councillor Hall to change his vote and Councillor Hall did change his vote (e) The consent followed a second site meeting conducted by some councillors which was held without the knowledge of the McGoverns (f) The Council officer principally responsible for the DA (Mr Miocic) who prepared recommendations to Council (which recommendations some or all councillors took into account or followed) had acted from the outset with the objective of securing Council's consent to the 2005 DA. Mr Miocic had proposed to Mr Allen that a fresh DA should be lodged with Council and that on approval the earlier disputed development consent should be surrendered. Mr Miocic's motivation for proposing this course was to render otiose the McGoverns' legal challenge to the earlier consent. By so doing, Mr Miocic committed Council (insofar as he had control of the decision) to approve the fresh DA. 39 In addition to these matters, 14 specific matters were raised against Councillor Ryan in relation to the apprehension of bias ground as an inference resulting from her conduct as follows: (i) her initial personal involvement with Council officers having the carriage of the first 2004 DA (exhibit B pp 9, 10, 12) (ii) the fact that Councillor Ryan and Mr Allen had some business relationship (exhibit B p 24, 25.5) (iii) the fact that Mr Allen and Councillor Ryan were in communication about the outcome of the McGoverns' legal challenge to the first development consent for the 2004 DA and Mr Miocic's proposal to obviate that challenge (exhibit B p 25 - 27) (iv) her forwarding to Mr Allen the email she received from Mr McGovern on 26 July 2006 (exhibit B p 57) in circumstances when she did not forward Mr Allen's emails to Mr McGovern (v) her advising Mr Allen about what he should do (exhibit B p 62) (vi) her discussions with Mr Allen about her chairing the site inspection (exhibit B p65.10 and 66.5) (vii) her conduct at the site meeting on 6 August 2005 (McGovern second affidavit 16 August 2006 par 9, p4) (viii) her exchange of emails on 17 August 2005 with Mr Allen advising him of the response of other members of Council (exhibit B p 77.9) (ix) her email to Mr Allen of 27 August 2005 advising him that she would continue to "work on them [the councillors] before the 20th" (the next meeting) (exhibit B p 82) (x) her email to Mr Allen of 18 September 2005 advising that, in the absence of Councillor Cross, she would "speak to her colleagues" (exhibit B p 85) (xi) her email of 16 September 2005 advising of her vote and "I just hope we can get enough others across the line for you" (exhibit B p 92) (xii) her email of 20 September 2005 to Mr Allen discussing overturning the decision and speaking to "Anita" (exhibit B p 95) (xiii) the references in emails sent to Mr Allen in which she identifies herself with Mr Allen's cause and by use of such terms as "our only hope" (emphasis added) (exhibit B p 95) (xiv) her email of 21 September 2005 to Mr Allen discussing Councillor Hall's position and Mr McGovern's position as a "member of the Liberal party" (exhibit B p 99) in relation to Councillor Ryan. 40 The apprehension of bias in relation to Councillor Ryan was argued to arise from July or August 2005, the 2005 DA being lodged in June 2005. It arose as an inference from her whole conduct and also from some individual emails on their own as identified above. 41 In the case of Councillor Ebbeck the Applicants submitted that a finding of apprehension of bias on his part arises from the totality of the evidence but especially the following conduct by him: (i) his investigations of Council records following Mr Allen's allegations to him about Mrs McGovern and his advising Mr Allen about those matters. (The email relied on in evidence (exhibit B p 7) states that Councillor Ebbeck has followed up complaints about a spa in the Second Respondent's garden by the McGoverns and a report has been requested on this issue.) (ii) his email of 6 August 2006 to Mr Allen advising him about "how the numbers will fall on Tuesday however I feel the staff have this right" (exhibit B p 76) (iii) his email of 16 September 2005 stating that "my position has not changed" (exhibit B p 89) (iv) his identification with Mr Allen's cause and his advocacy in that cause as evidenced in the email of 21 September 2005 to Councillor Cross stating that "We only need your vote" (emphasis added) (exhibit B p 100), and his email exchange with Councillor Cross on 21 September 2005 in relation to a rescission motion (exhibit B p 101) (v) his email advice and approbation of Mr Allen's conduct in attempting to intimidate Councillor Hall to change his vote (exhibit B p 106) (vi) his attendance at a second site inspection on or about 29 September 2005 (exhibit B p 107, 108, 110, 114) 42 The Applicants alleged that as a result of these actions by two individual councillors, Councillors Ryan and Ebbeck, there was an appearance of bias on the part of the Council as a whole when the 2005 DA was approved and therefore a failure to afford procedural fairness to the Applicants. As a body exercising a statutory power to affect the rights and interests of particular individuals such as the Applicants, the Council was obliged to act in accordance with the rules of procedural fairness; R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383, Pipi Holdings Pty Ltd v Council of the City of Caloundra (2000) 111 LGERA 117, Courtney Hill Pty Ltd v Gawler Town Corp; Consulere Pty Ltd (Intervening) (1988) 49 SASR 529. An appearance of bias may be proved by evidence of conduct and/or statements. Prejudgment may be evidenced by a councillor who becomes an advocate for one side in the decision-making process. A councillor's advocacy demonstrates an unequivocal commitment to a position. Bias by one or two councillors invalidates the decision of the whole Council to approve the 2005 DA.

[49]

47 If the transcripts of the Council meetings in relation to the 2005 DA are reviewed they show there was active discussion about relevant matters and opportunity given on several occasions for Mr McGovern to address the Council. 48 There is no evidence that Mr Miocic influenced the Council's decision to approve the 2005 DA. 49 Further, there was no obligation to advise the Applicants of any additional material received in relation to them or advise them of any further site meetings under the rules of procedural fairness. Second Respondent's submissions 50 It is part of the every day functions of local government that councillors are lobbied face to face, by email, letter and telephone by constituents about matters prior to them coming formally before the Council for determination. Having a concluded view on a matter is not an interest required to be disclosed nor a bar to voting on a DA, see ss 439-448 of the LG Act. No particulars are provided as to why email contact between the husband of the Second Respondent and the two councillors is inappropriate. There was no impropriety in the email contact in evidence but rather they contain impassioned, direct and accurate observations, requests and suggestions. 51 There is no obligation to disclose to an objector information received by the councillors or the Council as long as the objector's grounds of objection are known to the Council and are available for the Council's consideration; see Talbot J in Farah v Warringah Council and Ors [2006] NSWLEC 191 citing, at [50] and [52] respectively, Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 and Kioa v West. 52 There was no intimidation of Councillor Hall if the email from Mr Allen to Councillor Hall on 21 September 2005 is relied on. The email is what would be expected from an agitated citizen making an impassioned representation to a councillor. 53 There is nothing irregular about the second site visit on 29 September made in the absence of the Applicants. No extra or extraneous evidence is demonstrated to have been obtained at that visit see Kira Holdings Pty Ltd v Liverpool City Council [2004] NSWLEC 81, citing, at [15], Hodge v Williams (1947) 47 SR (NSW) 489 and, at [18], Government Insurance Office of NSW v Bailey [1992] 27 NSWLR 304. The further site visit was of the same situation as seen previously. The Applicants have not been deprived of an opportunity to further comment on any new information. 54 It was regular and proper for Mr Miocic to pursue the option of a fresh consent given that the 2004 DA was approved under delegation in circumstances where the delegate did not have the requisite power to approve the DA.

[51]

58 The attempted intimidation of Councillor Hall by Mr Allen (par 38(d)) is also raised as a ground of review but how that arises as a legal issue affecting the Council's decision-making in these proceedings is unclear to me, given that is not a complaint made about the conduct of a councillor but rather of the husband of the Second Respondent who it is alleged caused another councillor, Councillor Hall, to change his vote. There is no allegation by the Applicants that Councillor Hall was biased or otherwise acted improperly. If the matter is raised as evidence of an apprehension of bias on Councillor Ebbeck's part because of Councillor Ebbeck's approving email response to that email later sent to him, I discuss this below. 59 It is necessary to distinguish, as the First Respondent did in its submissions, between the responsibilities of individual councillors and the collective body of the Council, and separately whether the actions of Mr Miocic, the Council's Director of Development and Planning, inappropriately influenced the decision-making of the Council as a whole. (i) Ground 1 - Apprehension of bias by individual councillors 60 The legal test of apprehension of bias is whether a fair-minded and fully informed observer would reasonably apprehend that there was bias by a decision-maker; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Kirby J at 549, referring to imputed bias, also Laws (Mason CJ, Brennan J) at 87. This issue must be considered in the context of the role and function of councillors under the LG Act and in administering their statutory responsibilities under the EP&A Act. Bias is demonstrated if a decision-maker appears to have so prejudged an issue that he or she no longer applies an open mind to the decision in issue; see The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262-263 adopted in R v West Coast Council; ex parte the Strahan Motor Inn (1995) 87 LGERA 383 by Zeeman J at 389; Pipi Holdings Douglas J relied on West Coast, at [21] holding: … in the context of prejudgment, it is only necessary to show that a fair minded and responsible bystander might reasonably assume that the councillor, having committed himself to a position, had closed his mind to the possibility of doing other than vote in favour of the proposal. 61 The First Respondent's submission that the test in Australia was that of "real likelihood" was not disputed. Apprehension of bias must be firmly established; see Kirby J in Jia Legeng at [127], referring to Briginshaw at 361. In Briginshaw Dixon J held that when allegations in a civil case are made about criminal behaviour, the standard of proof that the moving party before a Court must reach is "reasonable satisfaction" in the mind of the judicial officer.

[57]

71 In West Coast Zeeman J of the Supreme Court of Tasmania was asked to consider whether there was an apprehension of bias arising as a result of the conduct of one councillor who formally objected to a DA on which he also sat as a councillor to determine whether approval ought be given. His Honour noted at p 389 that it was not necessary to establish actual bias. Referring to The Queen v Watson; ex parte Armstrong, the principle that a fair-minded person would reasonably apprehend that a judicial tribunal had pre-judged a matter must also apply to a statutory tribunal making discretionary decisions about whether to grant a planning permit. The councillor also took civil action to enforce the planning law in relation to a sign for which no permit had been granted. This was held to be reasonable by Zeeman J. What gave rise to the apprehension of bias was that by making representations having statutory significance in the permit application process for the sign the councillor moved from being an elected representative with strong views (acceptable) to being effectively a party to the application before the respondent council. This was unacceptable because he unequivocally committed himself to a position. This was said to vitiate the whole decision-making process although Zeeman J does not discuss the fact that this was a multi-member decision-making body. 72 Regarding the determination of the appearance of bias by a local councillor, Zeeman J held at 389, 390 and 392 respectively that: Councillors are representatives of their community and elected by and from that community. It may be expected that they will support particular views as to what is in the best interests of the community and that often they will have strong personal views as to what ought to occur in the community. In one sense they may be expected to hold views which may be described as being biased. Councillors may be expected to hold particular views as to how they would wish their community to develop and to discharge their duties as councillors by reference to those views. … Mere fixed views as to particular matters which are relevant to the exercise of discretion [conferred by s 51], even if strongly expressed, ought not of themselves to be seen as a disqualifying factor. … Expressions of opinion on the part of a member of a municipal council of a nature which would be sufficient to disqualify a member of a judicial tribunal from sitting on a particular matter may not be sufficient to disqualify a member of a municipal council. Councillors may be assumed to hold and to express views on a variety of matters relevant to the exercise of the functions of the council. Expressing such views is part of the electoral process. Provided that expressions of opinion do not go so far as to evince an intention to exercise a discretion conferred by statute without regard to the terms in which it is conferred or without being prepared to listen to any contrary argument, it ought not be taken to disqualify the councillor from participating in a relevant decision making process. 73 His Honour considered several cases which have considered bias in the local government context. Additional cases adopted by him included Sopinka J in Old St Boniface Residents' Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 at 408-409 as follows: It is apparent from the facts of this case, for example, that some degree of prejudgment is inherent in the role of a Cr. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest. It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest. … In my opinion, the test that is consistent with the functions of a municipal Cr and enables him or her to carry out the political and legislative duties entrusted to the Cr is one which requires that the objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that here is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged. In this regard it is important to keep in mind that support in favour of a measure before a committee and a vote in favour will not constitute disqualifying bias in the absence of some indication that the position taken is incapable of change. The contrary conclusion would result in the disqualification of a majority of council in respect of all matters that are decided at public meetings at which objectors are entitled to be heard. 74 R v Amber Valley District Council, Ex parte Jackson [1985] 1 WLR 298, Woolf J at 307-308; 508-509 was also considered and adopted by Zeeman J. In that case the bias alleged was a political predisposition by a group of councillors, who were all members of a political party faction in the council, in favour of a particular development for which planning permission was sought. Woolf J stated that he considered it was inevitable that the majority group on a council would decide on the "party line" in relation to a proposal. Zeeman J stated at 392 that Woolf J's approach appeared to be more liberal than other cases such as R v Marion City Corporation; Ex parte Independent Grocers' Co-operative Ltd (No 2) (1984) 37 SASR 436 but all the authorities make clear that the nature of the body exercising planning functions must be taken into account in determining the content of the duty to act fairly. 75 In Marion City Corporation (No 2) application was made to the Supreme Court of South Australia for an order prohibiting the council from determining an application for road closure under the Roads (Opening and Closing) Act, 1932-1978 (SA). The evidence in that case, being letters and an agreement between the council and a developer in relation to the road in issue, showed that the council had aligned itself with the developer to the extent that a reasonable bystander would consider there was predetermination of the decision and that objectors would not get a fair hearing in relation to their objections (Zelling J at 444, Jacobs and Millhouse JJ concurring). An order prohibiting the council from further consideration of the application for road closure was made. 76 In Pipi Holdings, Douglas J of the Supreme Court of Queensland held that there was no apprehension of bias in circumstances where the mayor and two councillors had publicly and strongly supported the resumption of the applicant's land. The applicant alleged that there was prejudgment of the decision to pursue the resumption by these council members and they therefore had a closed mind when the council decided whether to proceed with the resumption. One councillor was quoted in a local newspaper. Other evidence relied on were conversations with the councillors where they were quoted and the deponents stated that they had the impression that the councillors' minds were made up on the issue. 77 His Honour further held at [23]-[24]: There is no doubt that all of the councillors must have formed a view one way or other prior to the hearing. They, after all, in order to get to the stage of the hearing were required to have determined first to give notice that the council intended to give a notice to resume. The situation then is that the applicant, having been put on notice, had the opportunity of dissuading the decision-maker from providing further. The applicant was given every opportunity to do so with the exception of not being shown the material to which I have referred earlier in this judgment…I am of the view that the evidence does not disclose a bias but rather the natural forming of a view by each of the councillors.

[60]

80 While these cases are not binding on me they are persuasive. They make clear that there is a high hurdle of proof to overcome in determining whether there is an apprehension of bias in the case of individual elected councillors because of the political nature of the processes they are involved in as representatives of their community, as recognised under the LG Act, they can obtain input from numerous sources and bring their own opinion to bear on development decisions. It is expected they will have views about the matters before them and express these in a way which in a tribunal or court context would be considered biased. This reflects the nature of the decision-making process undertaken by local councils. 81 In this case I have had before me unusually detailed material about the lobbying process undertaken by the husband of the Second Respondent and one of the Applicants, in the form of emails to various councillors concerning the 2005 DA in particular. The evidence included extensive emails between various councillors, the parties and the Council officer Mr Miocic. The emails were between personal email accounts rather than to the councillors' Council email addresses. The Applicants relied on the whole course of conduct in relation to the 2004 DA and 2005 DA. While including the text of emails sent in relation to the 2004 DA by Councillor Ryan and Mr Allen in the Factual Outline of Applicants' Case the Applicants did not argue that there was anything specifically improper in these. These emails are relied on generally as showing part of an improper course of conduct in relation to the 2005 DA as I understand the Applicants' case. Apart from demonstrating that there was discussion between Councillor Ryan, Council officers and Mr Allen about the 2004 DA, I do not consider there is any specific matter relevant to the apprehension of bias argument in these emails. The fact that these show Councillor Ryan and Mr Allen knew each other is immaterial on the case argued by the Applicants. The consideration of the 2004 DA does inform the overall consideration of the 2005 DA by the Council given that the DAs are similar. 82 Emails relied on in the evidence and the written submissions of the Respondents (6.17 - 6.30 set these out) included numerous communications between one of the Applicants and Councillors Bennett and Hall about the 2005 DA seeking assistance and support in opposing it. One example relied on by the Respondents was that Mr McGovern sent an email to six councillors on 26 July 2005 raising concerns about the 2005 DA. This email was forwarded by Councillor Ryan to Mr Allen. In other words, it is said by the Respondents that the opportunity to lobby councillors was pursued actively by the Applicants, as they are entitled to do. If the emails complained of by the Applicants are found to give rise to an apprehension of bias then the same must apply to the Applicants' emails to other councillors in relation to an apprehension of bias in relation to those councillors. That submission has considerable force in my view.

[61]

83 In relation to par 38(b) while the content of some of the emails composed by the husband of the Second Respondent of which the Applicants complain make for unedifying reading as they contain personal comments and may cause anguish to the Applicants, that of itself does not give rise in my view to any apprehension of bias on the part of the councillors (Ryan and Ebbeck) to whom they are addressed. There is no obligation on these councillors to disavow such comments and there is no evidence that they adopted such comments. Councillor Ryan 84 The specific emails relied on in the Applicants' written submissions all relate to the 2005 DA. At par 39, further matters raised against Councillor Ryan are that she had a business relationship with Mr Allen (par 39(ii)), the discussion initiated by Mr Allen about her chairing the site inspection and the conduct of the site meeting on 6 August 2005 (par 39(i), (vii)), her provision of advice on 27 July 2005 to Mr Allen about writing to other councillors and otherwise the content of numerous emails (see par 39(iii), (iv), (viii), (ix), (x), (xi), (xii), (xiii) and (xiv). Several of these on their own were argued to show an apprehension of bias, (ix), (xi), (xii) and (xiv). 85 At par 39(ii) the Applicants argued that there was a business relationship between Councillor Ryan and the husband of the Second Respondent. The only email dated 20 June 2005 relied on as evidence is "first, on the house, I have not heard back from the owner. He was married yesterday and I expect he is away for a few days." On the basis of that email alone I do not infer that there was a business relationship. Even if I did so find, it is unclear on the Applicants' case why that matters. Such a relationship is not improper unless it is relevant to show that a councillor has an "interest" in the outcome of a decision the council makes, in other words, the councillor has a conflict of interest. One indication that there may be an apprehension of bias is the existence of a conflict of interest. 86 The Applicants' case as argued did not raise a non-pecuniary conflict of interest on Councillor Ryan's part apart from the inference of impropriety because she appears to know Mr Allen. The LG Act does not prescribe a regime for identifying non-pecuniary conflicts of interest as it does for pecuniary interests, but recognises that these can exist. The mechanism for dealing with this issue is the Council's Code of Conduct. It was unclear on the Applicants' case the extent to which the Code of Conduct was argued to be breached. This case concerns processes under the EP&A Act rather than the LG Act. There is recognition of non-pecuniary conflict of interest in the common law, see the passage of Sopinka J in Old St Boniface at [76] and Mahon J in Anderton v Auckland City Council [1978] 1 NZLR 657 at 680. Other allegations were made in the Applicants' case that emails between Councillor Ryan and Councillor Ebbeck and Mr Allen were "improper". It is simply unclear on what basis they were improper in the Applicant's case in the absence of any reliance on a "conflict of interest" argument by the Applicants.

[63]

88 It is clear that Councillor Ryan did assume an "advocacy" role for the Second Respondent from shortly after the lodgement of the 2005 DA, when she stated she would support the DA and took steps to assist its progress through Council as outlined in the emails relied on by the Applicants at par 39(v), (vi), (viii), (ix), (x), (xi),(xii), (xiii) and because of Mr McGovern's perception according to his affidavit that her conduct of the site meeting was contrary to his interests. Part of the lobbying which councillors receive requires a response from them, in other words they are not likely to be passive recipients of that lobbying but will respond and take action based on their views about the particular matter. The email evidence shows that Councillor Ryan had an active response to the lobbying by Mr Allen. Other councillors also took action responding to representations from Mr McGovern, such as Councillor Bennett acting to have the 2004 DA called before the whole Council rather than being dealt with by delegated authority. There is no suggestion that was improper, it clearly was not. My point is that the "advocacy" has to be assessed in the context of the processes of local government. 89 As identified by Sopinka J in Old St Boniface and confirmed in the cases outlined above it is necessary that I must be able to infer from Councillor Ryan's behaviour that this reflected a final opinion from which Councillor Ryan could not be changed. As stated by ZeemanJ at 392, see par 72 expressions of opinion on a matter for decision must indicate an intention to exercise discretion conferred by a statute without regard to the terms of the statute. I do not consider such an inference should be drawn in this case. Each case will inevitably have different facts but the circumstances here are more analogous to those in Pipi Holdings in which the circumstances did not give rise to a finding of "terminal" prejudgment than the circumstances in West Coast where they did. 90 The lengthy consideration of the Second Respondent's proposed development by individual councillors as part of the Council in relation to the 2004 DA and the 2005 DA, which are similar, as identified in the chronology, suggests that it is highly likely the councillors would have been forming a view as they are required to do. I do not consider given the lengthy history of this matter before the Council, the role of councillors under the LG Act, the factors referred to in relevant case law set out above and the need to "firmly establish" the apprehension of bias (par 61, 62), that the Applicants have proved there was an apprehension of bias on the part of Councillor Ryan when approval was given to the 2005 DA. Councillor Ebbeck 91 At par 41 additional matters in relation to Councillor Ebbeck beyond those already raised (attempted intimidation of Councillor Hall (par 41(v)), attendance at second site meeting (par 41(vi)) discussed below at par 94, were his investigation of Council records concerning complaints by Mr McGovern (par 41(i)), and the content of several emails which demonstrated his advocacy of the 2005 DA (par 41(ii), (iii) and (iv)).

[64]

92 There is no impropriety in Councillor Ebbeck investigating a matter at Mr Allen's request (par 41(i)). Councillors are likely to do this all the time on behalf of individuals. 93 His expressions of support for the 2005 DA on the basis that the staff "have it right in my view" and statement that his position has not changed is not improper (par 41(ii) and (iii)) and reflects his forming a view as he is required to do as a councillor. 94 In relation to par 41(v), the single email sent by Mr Allen to Councillor Hall dated 21 September 2005 relied on by the Applicants is a strongly worded three page document which makes adverse comments about the McGoverns as complaining neighbours and criticises Councillor Hall for failing to support the 2005 DA. The Applicants relied on the fact this email was sent to Councillor Ebbeck after being sent to Councillor Hall who approved of it in his emailed reply. This behaviour of Councillor Ebbeck cannot amount to intimidation of Councillor Hall as there is no evidence he made any inappropriate contact with Councillor Hall and was not consulted before the email was sent by Mr Allen. 95 I do not consider the evidence otherwise relied on as specified in par 41, when viewed in the overall context of the Council's decision-making process on the 2005 DA, gives rise to an apprehension of bias. Once again the circumstances are not like those in West Coast. My statements at par 90 in relation to Councillor Ryan apply here also. (ii) Ground 2 - Failure to disclose matters to Applicants (a) Second site meeting (29 September 2005) 96 While the Applicants argued that they should have been apprised of the second site meeting attended by numerous councillors including Councillors Ryan, Ebbeck and Hall, and Mr Miocic, I agree with the Respondents that there was no obligation to advise the Applicants of that meeting and the fact that it occurred does not suggest any failure of procedural fairness. Councillors are entitled to inform themselves on the merits of an application as they see fit in determining a DA. A further site meeting clearly achieves that outcome. 97 As Talbot J stated in Farah (at 50-51): … the statement made by the then Chief Justice in Twist v The Council of the Municipality of Randwick ( 1976) 136 CLR 106 at foot p 109:- The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal. The statement by Barwick CJ goes no further than to state the well established principle that a person who is likely to have their rights affected by a decision is entitled to be heard. That is not to say that the person is entitled to be privy to every step of the process and to be consulted in respect of every aspect of the decision. It is sufficient if a real opportunity is afforded for an objection to be raised and for submissions to be made in such a way that they can be appreciated and understood before the decision is made.

[65]

98 In Pipi Holdings Douglas J upheld a challenge on the grounds of procedural fairness because the applicant whose land was being resumed by the council was not given material relied on by the council and not given an opportunity to make submissions in relation to that material prior to the council making its decision. That is not a circumstance analogous to the position of the Applicants here. 99 As is clear from the chronology the Applicants were able to attend the site meeting on 6 August 2005 and Mr McGovern addressed Council meetings about the 2005 DA on 26 July, 23 August, 20 September and 11 October 2005 and made written objections which were on the Council file. They had numerous opportunities to make their concerns known to the Council and did so. (b) Duty to disclose adverse emails? 100 This ground relates to emails between Councillors Ryan, Ebbeck and the Second Respondent or her husband which the Applicants argued should have been disclosed to them. 101 Was there any duty on individual councillors to disclose to the Applicants any information adverse to them? This argument equates the position of the Applicants, who are objectors to their neighbour's DA, under the EP&A Act to those of a party before a tribunal. The case of Veal relied on by the Applicants was a hearing before the Refugee Review Tribunal, a quasi judicial body where the rules of procedural fairness, including disclosure of all relevant matters taken into account by those affected by the decision to enable them to comment, clearly apply. I agree with the Respondents that the responsibilities of elected local councillors individually and as a whole are not the same as would apply in the case of a tribunal. A council is required to act in accordance with the terms of the EP&A Act and to afford procedural fairness to objectors in that context. That obligation does not mean that every matter contrary to the submissions of an objector to development must be disclosed by an individual councillor to that objector. Obviously councillors in receipt of comments adverse to persons with whom they are dealing must be careful not to take such matters into account if they are not relevant to the statutory matters before them. There is no evidence that has occurred here. 102 Further, there is no suggestion that the adverse comments were taken into account by the councillors in receipt of them and no evidence they were communicated to any other councillor. (iii) Ground 3 - Mr Miocic influenced the Council's decision 103 Mr Miocic was argued to be biased because he had the objective of securing the Council's consent to the 2005 DA and thereby rendered otiose the Applicants' legal challenge to the 2004 DA. He was therefore committed to ensuring the Council approved the 2005 DA and played a significant role in the decision-making of the Council. The evidence relied on by the Applicant was a number of emails between Mr Miocic and Mr Allen on or about 21 and 22 June 2005 which included an email from Mr Allen to Mr Miocic which was said to record an agreement that the application be "fast tracked"; efforts made by Mr Miocic and staff to fast track the 2005 DA; an email from Mr Allen to Mr Miocic dated 19 July 2005 which considers how to coordinate a response to the legal challenge to the 2004 DA; Mr Miocic agreeing to brief councillors on the "special circumstances" applying to the application; the recommendation to the Council of approval of the 2005 DA despite receipt of Ms Hill's heritage report; Mr Miocic's comments to the Council on 11 October 2005 which did not adopt Mr McGovern's submissions concerning the qualification of the surveyor and heritage consultant. Because Mr Miocic played a significant role in the making of the Council's decision there is the appearance of disqualifying bias on the Council's part; Hot Holdings per Gleeson J at 23 - 25. 104 Hot Holdings considered a situation where an administrative decision was argued to be affected by bias because a person other than the relevant Minister who was involved in the process of briefing the Minister on his decision had a financial interest in the outcome of the decision. In the joint judgment of Gummow, Gaudron and Hayne JJ (McHugh and Callinan JJ concurring) their Honours held at [52] that there was no apprehension of bias by the peripheral involvement of a departmental officer in the preparation of a Ministerial briefing in a matter where he had a financial interest in the outcome of that matter. There is no suggestion here that Mr Miocic would gain personally or financially if the 2005 DA was approved, suggesting that such a conclusion is even less likely. I do not consider that even if there were a misapprehension of bias by Mr Miocic that this influenced the Council to approve the 2005 DA when the history of that DA which was before the Council on several occasions is considered. As to whether there was an apprehension of bias as a result of Mr Miocic's actions I adopt the First Respondent's submissions as follows: A fair-minded observer aware of all relevant facts would not conclude that there was an appearance of bias on the part of Mr Miocic because: (i) there was nothing improper on inappropriate in Mr Miocic's suggestion to the second respondent that he submit a fresh DA in substantially similar terms to the previous DA which was the subject of Class 4 proceedings. As noted above, Class 4 proceedings are frequently overtaken by similar events. Significantly, there is no evidence that Mr Miocic ever told the second respondent that he was in a position to guarantee that there would be a favourable determination of a fresh DA. That is scarcely surprising because Mr Miocic was not an elected representative and was in no position to make any such guarantees. Equally importantly, it is clear that the second respondent never proceeded on the basis that he had been given such a guarantee. On the contrary, his email dated 22 June 2005 to Mr Miocic expressly requested to Mr Miocic to "ensure" that "matters are given full and proper consideration". (ii) on the evidence Mr Miocic was unable to influence the decision-making process within the Council as the Council: · on 26 July 2005 deferred the application in order to enable a site inspection; · on 23 August 2005 deferred the application again to enable an independent heritage inspection statement to be obtained; · on 20 September 2005 resolved to defer the application to enable without prejudice grounds for refusal to be prepared by Council officers. (iii) there is no evidence that Mr Miocic acceded to the second respondent's request for a heritage consultant who was sympathetic to approval, (or to the applicants' earlier request that Mr Robert More be appointed), when Ms Jennifer Hill was appointed; and (iv) the applicants' attack on Mr Miocic's oral advice given to Council at its meeting on 11 October 2005 regarding Mr Bartholomew's qualifications as a registered surveyor was also unwarranted. Mr Miocic correctly pointed out that the DA Guide was not a statutory requirement.

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Failure to take into account relevant considerations (TFAPOC 48(i), (ii), (iii), 53, 57, 58) 109 The Applicants argued that when Council approved the 2005 DA it failed to take into consideration the following: (a) the DA did not comply with statutory requirements (no survey by a registered surveyor, no certification as to environmental effects) (TFAPOC 58) (b) the Council officers' recommendation for approval of the DA dated 8 July 2005 was based on erroneous assumptions concerning the Bartholomew survey and the boundary between 49 and 51 Telegraph Road (an aerial photograph marked up to show boundaries of 49/51 Telegraph Road, said to be based on "accurate survey information prepared by Mr Rick Bartholomew", was included in a report from Council officers to Councillors dated 12 August 2005 (at page 4)) (TFAPOC 48(i), (ii) (ii) and 58) (c) the Council officer Mr Hoy's written recommendations to Council for approval of the DA was not an objective and fair assessment of the DA and the objections to it as it failed to consider a number of issues, see 11 particulars in TFAPOC par 53) (d) … (e) the Applicants' objections to the DA (TFAPOC 57 objections dated 7 July 2005) (f) TFAPOC par 58 states there was also a failure to consider cl 50 of the Regulation and a failure to comply with s 79C. 110 In relation to (a) and (b), the Applicants argued that their complaints concerning the lack of qualifications of the surveyor and the veracity of the certification of the SEE were not resolved. The Council could not therefore be aware of the true position. The error in the aerial photograph marked up to show boundaries of 49 and 51 Telegraph Road, Pymble attached to the Council officer's report of 12 August 2005 was not brought to the Council's attention. 111 In relation to (c) and (e), the majority of councillors on 11 October 2005 acted by adopting Council officer Hoy's report dated 8 July 2005 recommending approval as subsequently adopted in recommendations made by Council officers' reports dated 12 August and 12 September 2005. That report did not consider in material respects the objections raised by the Applicants in their letter dated 7 July 2005. A number of topics raised by the Applicants were not addressed in relation to heritage impact (six matters), the absence of a SEE (three matters) and non-compliance of the first floor level with DCP 38. 112 The Applicants also argued Council officer Hoy's report of 8 July 2005 was erroneous because of various failures set out at par 5.3(i), (ii) and (iii) of the Applicants' written submissions filed in Court on 6 August 2006. Paragraph 5.3(i) and (ii) state: (i) The proposed dwelling additions do not involve the construction of a new ground floor extension

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113 I note that an erroneous reference to ground floor extensions (par 5.3(i)) when none were proposed by the Applicants cannot be a material error. I do not need to consider that point further. 114 In par 5.3(iii) of the Applicants' written submissions, the issue is raised that the Council's engineering department considered the 2004 DA which proposed a carport one metre from the side boundary with the McGoverns. The engineering department also considered the 2005 DA which proposed the carport be 1.5 metres from the boundary but the engineering report contained in the Council report of 8 July 2005 was the same as for the 2004 DA. As identified by the Respondents the failure outlined in par 5.3(iii) was not pleaded in the lengthy TFAPOC relied on. Nor is it clear how it is a material consideration in the Council's decision-making. I do not consider it can arise now without warning in written submissions. 115 At par 5.4(i) and (ii) of the Applicants' written submissions the Council officer's report of 12 August 2005, which followed the second site meeting on 6 August 2005, is alleged to have failed to consider various matters. At par 5.4(i) it is stated that the report failed to outline the plans upon which the heritage impact statement was based. This was not pleaded in the TFAPOC and should not be raised in written submissions. In any event if that report is read, consideration is clearly given to the plans the subject of the heritage impact assessment. The report notes that the assessment has not been reviewed to address the most recent amendments to the plans but it is noted that the changes are considered to be minor and concludes the amended plans do not warrant a revised heritage impact statement. Paragraph 5.4(ii) states the staff failed to check the setback of the existing building on the site and confirm its accuracy. 116 In par 5.5(i) of the Applicants' written submissions further complaint was made that the Council report dated 12 August 2005 failed to address the Applicants' objections or the additional information said to be required as a result of the site meeting on 6 August 2005. The site inspection report required consideration of whether the height of the carport could be reduced and this was not done. This was not pleaded in the TFAPOC and should not be raised in written submissions. Further error is asserted in par 5.5(ii) that, contrary to fact, the report asserted that the survey information was accurate and prepared by a registered surveyor when it was not, and the aerial photograph provided was also inaccurate.

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Finding on issue 4 123 The Applicants identified several deficiencies in the Council's consideration of the 2005 DA in the TFAPOC and in their written submissions. The Applicants bear the onus of proving there was a failure to take into account a mandatory relevant consideration by the Council and that the error is material; Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24 at 40, Mason J, applied in Kindimindi Basten JA at 295 (Handley JA and Hunt AJA concurring). The failures identified in par 109(a) concerning the failure to comply with statutory requirements in relation to the survey plan and lack of a SEE are not relevant given my conclusion in relation to Issue 1 that these were not mandatory statutory requirements. 124 Paragraph 109(b) refers to the inclusion of an erroneous aerial photograph in the Council's report of 12 August 2005 and the references to the inaccurate survey information prepared by Mr Bartholomew as being accurate. 125 While I accept that it is very important that accurate plans correctly showing the location of relevant properties next to a proposed development site be before a council approving a DA, the Tierney evidence (par 5) demonstrates that the inaccuracies in the Bartholomew plan were not substantial in the context of this case which concerns the construction of a carport at the front of the Applicants' property, inter alia. The aerial photograph in the Council report of 12 August 2005 is clearly inaccurate to the untrained eye as the boundary lines pass over existing structures. It was therefore unlikely a councillor would have placed much weight on the aerial photograph in any event and it could not have played a material part in their deliberations, in my view. 126 Paragraph 109(c) refers to the numerous failures of Mr Hoys' report dated 8 July 2005 as identified in par 53 of the TFAPOC and additional matters were raised in the written submissions (par 111). These failures were said to result in an assessment report by Mr Hoy that was not fair and objective. The Applicants argued that several of the matters raised in the McGovern letter of objection dated 7 July 2005 had to be considered in Mr Miocic's report and were not. The Act does not require, nor am I aware of any case law requiring, that every matter raised in a letter of objection must be considered in a Council officer's report. As argued by the Respondents, par 53 of the TFAPOC does not disclose a reviewable legal error in that whether Mr Hoy's report is objective and fair is really a matter of merit. A differing view about the accuracy of facts and opinions is not a matter able to be the subject of judicial review. The inadequacies of, or errors in, an expert report, or about Mr Hoy's failure to identify the alleged inadequacy perceived by the Applicants or to accept their objection about it and report this to the Council, are complaints about the merits of expert reports made to the Council and hence about the weight to be given to those reports. 127 Paragraph 109(e) states that the Applicants' detailed objections in their letter of 7 July 2005 were not considered. That letter was on the Council's file and available to all the councillors. As the First Respondent identified, the Court of Appeal unanimously held in Schroder that documents on the Council's file are to be treated as within the knowledge of the councillors (see par 117). 128 As to the matters raised in par 112 I have already held par 5.3(i) is immaterial (see par 113). The alleged error in par 5.2(ii) and (iii) is not demonstrated as being a material matter to the Council's decision in the context of this case. Further par 5.3(iii) was not pleaded (see par 114). 129 Additional failures are also identified in the Council officer's report dated 12 August 2005 (par 115, 116). Those referred to at par 5.4(ii) and 5.5(ii) concerning the Council officer's report dated 12 August 2005 in the written submissions are matters of fact and not reviewable, as argued by the First Respondent. The additional matters raised are not demonstrated to be material matters. 130 The ultimate answer to the Applicants' ground at par 109(f) is that if the council officers' reports, site meetings and matters considered by the Council in four meetings in relation to the 2005 DA are all reviewed, there is clearly compliance with s 79C. The 2005 DA did comply with statutory requirements as there was no specific statutory requirement that the site plan be by a registered surveyor. Mr Hoy's report dated 8 July 2005 and subsequent Council reports included detailed consideration of the 2005 DA against the requirements of s 79C and assessed those requirements and the ability of the 2005 DA to meet them. The Council considered matters under cl 50 of the Regulation in its reports dated 12 August 2005, 12 September 2005 and 30 September 2005 all of which reports were supplementary to the report dated 8 July 2005. The Applicants have not discharged their onus of proving failure by the Council to take into account matters required to be taken into account under s 79C of the EP&A Act or cl 50 of the Regulation. The Applicants are unsuccessful on this ground.

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Issue 5 - Taking account of irrelevant considerations (65C) Applicants' arguments 131 In giving consent to the DA the Council took into consideration and gave weight to irrelevant considerations: (a) heritage report The Heritage Report of Mr Beaver (which was not in compliance with the statutory requirements and contained fundamental misapprehensions rendering the report of no value, such as the stated assumption that the architect who drew the original building plans had taken into account all relevant matters including heritage values) (TFAPOC 50, 58 and 59). The heritage report prepared by Mr Beaver was fundamentally flawed in that it relied on the architect's assessment of matters relating to heritage when it was evident that the architect had not addressed heritage issues. (b) existing Court proceedings Councillors Ryan, Ebbeck and Hall took into account that there were court proceedings challenging the validity of the 2004 DA and that by consenting to the new DA (with the consequential surrender of the earlier consent) a favourable outcome to Council in the Court proceedings would be obtained (TFAPOC 65C(i)). A concern to minimise Council's exposure arising from the approval of the 2004 DA by a delegate of the Council when no such delegation power existed and thereby approving the 2005 DA is an irrelevant consideration under s 79C. This was a matter incorrectly taken into account by Councillors Ryan and Hall. The matters relied on by the Applicants identified at par 6.3 of the written submissions are: (i) Councillor Ryan was initially contacted by Mr Allen when the proceedings were commenced and expressed surprise they had been commenced (exhibit B p 25.1) (ii) she then had a briefing with Mr Miocic and arranged for them to contact each other (exhibit B p 25.10 and 26.1) (iii) she was then copied in on the email exchanges between Mr Miocic and Mr Allen in which they discussed the "proposal" (exhibit B p 27 - 29 and 32) (iv) on 20 September 2005 she advised Mr Allen that she would lobby another Councillor and "make a point of making her bear in mind the potential costs to Council if this goes to Court and we lose" (exhibit B p 95) (v) she was present during the meeting on 10 October 2005 when Mr Allen's representative referred to "costs implications" (exhibit B p 128D.7) 132 The matters identified in relation to Councillor Hall at par 6.4 of the written submissions are: (i) Councillor Hall was one of the two councillors who initially called up the 2004 DA (exhibit B p 4) (ii) at the Council meeting on 32 August 2005 he stated the significance he placed on heritage items and called for "our own heritage impact statement from an independent" (exhibit B p 77B.9) (iii) on 20 September 2005 he stated that he had "now had the opportunity to read the statement of heritage impact" and then moved the "matter stand deferred for reasons for refusal" (exhibit B p 115B.10) (iv) he received a long email of complaint from Mr Allen on 21 September 2005 which included references to "financial losses to Council" (exhibit B p 103, 105.2) (v) his email of 6 October 2004 to Council officers expressing concern about being approached by Council's solicitors and his own exposure (exhibit B p 117) (vi) he was present during the meeting on 10 October 2005 when Mr Allen's representative referred to "costs implications" (exhibit B p 128D.7) (vii) the explanation Mr Hall gave to the meeting at which he changed his vote concerning the "deficiencies" in Ms Hill's report (exhibit B p 128F) (viii) the possibility that he was briefed by Mr Miocic as suggested in the email exchange between the latter and Mr Allen

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Finding on Issue 5 140 If an irrelevant consideration is proved to be taken into account it must be demonstrated to have influenced the decision. If weight is given to an irrelevant matter it may be seen as an error of law but must be shown to be not insignificant (Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353). If the decision is reasonably open to the consent authority to grant consent the Court should not intervene; see Bentham and Anor v Kiama Municipal Council and Ors (1986) 59 LGRA 94. The Applicants have failed to discharge the onus they bear of proving that irrelevant matters were relied on and, if they were, did materially affect the Council's decision to approve the 2005 DA. (a) heritage report 141 I agree with the submissions of the First Respondent that the Beaver report demonstrates on its face that Mr Beaver undertook his own analysis and reached his own conclusions. The matters complained of are matters of merit not legal error. (b) existing Court proceedings 142 In oral submissions the Applicant argued that the Class 4 proceedings challenging the 2004 DA had been particularly taken into account by Councillors Ryan and Hall at the time the 2005 DA was approved on 11 October 2005 relying on emails sent by or to them referring to that issue. The matters particularly relied on in relation to Councillor Hall (see par 132(i) - (viii)) do not infer any such behaviour on his part. The fact that he called up the 2004 DA to full Council and appeared to change his mind in the course of considering the 2005 DA in relation to heritage issues and was possibly briefed by Mr Miocic about the 2004 DA proceedings is simply not material in my view. There is no basis on which I can infer that he took such an irrelevant matter into account, the evidence relied on reflects the behaviour of a councillor in the process of deciding what decision he should make. 143 The emails received or sent by Councillor Ryan suggest she was mindful of the proceedings challenging the 2004 DA but whether this was given weight by her in the decision-making process concerning the 2005 DA sufficient to give rise to a finding that she took into account an irrelevant consideration is debatable. 144 Even if I did accept the Applicants' arguments, it is not clear that one or two councillors taking into account an irrelevant consideration would lead to a conclusion that the whole council decision to approve the 2005 DA was invalid. No case law was relied on by the Applicants to argue that the consideration of irrelevant matters by one or two councillors invalidated the decision of the whole council, but it was argued that this must be the case as a matter of logic, by analogy to the Applicants' argument in relation to bias that if one or two councillors were biased the decision of the whole Council was invalidated. I have not had to consider that argument in light of my findings about individual councillors. I do not accept that submission in relation to a challenge on the ground of irrelevant consideration or at least needed further argument on this issue to support the Applicants' case. If the Applicants were to succeed on this ground they needed to address the decision of Basten JA (Handley JA and Hunt AJA concurring) in Kindimindi at 61 - 80 where his Honour considered the matter of the "collegiate mind" of council, where three of eight councillors gave evidence they had not had adequate time to consider material provided to them before a council meeting. He considered this did not invalidate the whole decision of the council in that circumstance.

At a glance

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Judgment (85 paragraphs)

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Cases Cited (31)