Mid Western Community Action Group Incorporated v Mid-Western Regional Council & Anor

Land and Environment Court (NSW)|2008-04-09|Before: Jagot J, Mr J, Mr P

CITATION : Mid Western Community Action Group Incorporated v Mid-Western Regional Council & Anor (No 2) [2008] NSWLEC 143 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Mid Western Community Action Group Incorporated

PARTIES : FIRST RESPONDENT Mid-Western Regional Council

KEY ISSUES: Judicial Review :- conditional validity of development consent - declarations as to validity under s 25C - statutory scheme for validating consents - apprehended bias - discretion - judgment in rem - utility - declarations made

Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 1997 LEGISLATION CITED: Environmental Planning and Assessment Legislation Amendment Act 1997 Land and Environment Court Act 1979 Local Government Act

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 F & D Bonnacorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537 IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (2000) 78 SASR 151 IW v City of Perth (1996) 191 CLR 1 CASES CITED: Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Limited [2007] NSWLEC 411 P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Webb v The Queen (1991) 181 CLR 41

APPLICANT Mr J E Robson SC with Mr Stefan Balafoutis SOLICITORS Bartier Perry

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P R Clay SOLICITORS McIntosh McPhillamy & Co

SECOND RESPONDENT Mr M J Leeming SC with Dr S Berveling SOLICITORS Corrs Chambers Westgarth

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MID WESTERN COMMUNITY ACTION GROUP INCORPORATED Applicant

MID-WESTERN REGIONAL COUNCIL First Respondent

STOCKLAND DEVELOPMENT PTY LIMITED Second Respondent

JUDGMENT Jagot J: 1 By notice of motion filed on 7 February 2008 Mid-Western Regional Council (the Council) seeks certain declarations and an order under s 25C(2) of the Land and Environment Court Act 1979 (the Court Act). These declarations and the order relate to orders made on 9 August 2007 consequential upon a challenge by the Mid Western Community Action Group Incorporated (the Action Group) to the validity of a development consent granted by the Council to Stockland Development Pty Limited (Stockland) (see Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Limited [2007] NSWLEC 411). I found that the development consent granted by the Council was not a consent within the meaning of the Environmental Planning and Assessment Act 1979 (the EPA Act). In the orders of 9 August 2007, and pursuant to s 25B of the Court Act, I suspended the operation of the consent and specified terms compliance with which would validate the consent. As contemplated by s 25C of the Court Act, the Council's notice of motion seeks declarations that: - (i) the terms of the orders of 9 August 2007 have been complied with, (ii) the development consent has been validly regranted, and (iii) the suspended development consent has been revoked, as well as an order revoking the order of the suspension of the development consent.

2 The Action Group opposed the making of these further declarations and order. The Action Group did not dispute the Council's compliance with the terms of the orders of 9 August 2007. Instead, the Action Group claimed that the Council's decision to regrant the development consent was vitiated by legal errors consisting of: - (i) an apprehension of bias on the part of the Mayor and a Councillor, and (ii) a misapprehension by the Council of its functions with respect to the orders of 9 August 2007. Alternatively, the Action Group claimed that these matters, if insufficient to vitiate the Council's decision-making process, warranted the Court exercising discretion against the Council, thereby refusing to grant the declarations and order sought.

3 Before dealing with the Action Group's specific claims it is necessary to understand the scheme of legislation applying to the orders of 9 August 2007, the further decisions of the Council, and the Council's notice of motion. This scheme should be seen against the background of the following facts, none of which were in dispute. After the making of the orders on 9 August 2007 suspending the consent, the Council placed an advertisement in the Mudgee Guardian newspaper as required by order 2(a)(i) on 24 August 2007. The Council made the development application and all accompanying documents available for inspection as required by order 2(a)(ii) between 24 August and 21 September 2007 and 21 September and 19 October 2007. The Council assessed the matters required by cll 27(3) and (4) of the Mudgee Local Environmental Plan 1998 and, in so doing, took into account submissions received and other relevant matters under s 79C(1) of the EPA Act, specifically at meetings on 11 and 19 December 2007, as required by orders 2(b)(i) to (ii). On 19 December 2007 the Council did not resolve to revoke the consent under s 103(2) of the EPA Act but, instead, resolved to revoke the consent and grant a new development consent with alterations under s 103(3) of the EPA Act, and thereafter made an application under s 25C(2) of the Court Act, as required by order 2(b)(iv).

4 The Environmental Planning and Assessment Amendment Act 1997 (Act No 152 of 1997) inserted provisions into the Court Act (ss 25A to 25E) and the EPA Act (ss 103 and 104) providing for the conditional validity of consents that would otherwise be declared invalid. These provisions applied the scheme of conditional validity to all development consents irrespective of the identity of the consent authority. Earlier in 1997, legislative amendments had been made applying such a scheme to development consents granted by the Minister (the Environmental Planning and Assessment Legislation Amendment Act 1997, Act No 81 of 1997).

5 Although the relevant provisions are contained in separate Acts, those provisions constitute a single scheme and must be read together (Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 at [38]).

6 Under s 25B(1) of the Court Act the Court may, instead of declaring a development consent invalid, make an order suspending the operation of the consent and specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). The potential width of these powers was confirmed in Kindimindi (at [32] and [36]). The orders of 9 August 2007 were orders under s 25B.

7 Section 103 of the EPA Act applies to a consent to which an order of suspension applies under s 25B (s 103(1)). Such a consent may be revoked by the consent authority whether or not the terms imposed under s 25B have been complied with (s 103(2)). Section 103(3) is central to the present case and provides as follows: However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.

8 Under s 103(4) no preliminary steps need to be taken with regard to the regrant of a development consent under s 103(3) other than those required to secure compliance with the terms imposed in accordance with s 25B.

9 Section 103(5) provides that s 81 and such other provisions of the EPA Act as prescribed by the regulations apply to development consents regranted under s 103(3). Section 81 deals with notification of persons about the determination of a development application. The Environmental Planning and Assessment Regulation 2000 prescribes no provisions for this purpose.

10 Section 25C of the Court Act enables the Minister or consent authority to apply to the Court for declarations and orders with respect to development consents not regranted with alterations (s 25C(1)) and regranted with alterations (s 25C(2)). Those provisions are as follows: (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension.

11 The Council's notice of motion seeks relief as identified in s 25C(2)(a) to (d).

12 Section 25D specifies that these provisions do not prevent the grant of consent to another development application relating to the same matter, whether during or after any period of suspension. Section 25E imposes a duty on the Court to consider making orders in accordance with these provisions instead of declaring a development consent invalid in whole or part.

13 Section 104 of the EPA Act operates when declarations are made under ss 25C(1) or (2). Section 104 is in the following terms: ( 1) A development consent declared to be valid under section 25C of the Land and Environment Court Act 1979: (a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and (b) is operative as from the date the development consent originally took effect or purported to take effect, unless the Court otherwise orders. (2) A development consent declared under section 25C of the Land and Environment Court Act 1979 to be validly regranted: (a) is final and the provisions of sections 97 and 98 do not apply to or in respect of it, and (b) takes effect from the date of the declaration or another date specified by the Court.

14 The parties indicated that, to their knowledge, the Court has made declarations under s 25C on two occasions, neither of which involved a contradictor. The presence of the Action Group as a contradictor to the Council's motion exposed two matters for consideration, separate from the specific grounds relied on by the Action Group. The first concerned the Council's position that a regranted development consent was operative or took effect on and from the date of the regrant and did not depend on the making of a declaration under s 25C(2)(b) that the development consent has been validly regranted. This position (disputed by the Action Group and Stockland) raised a question about the utility of any such declaration. The second concerned the effect of a declaration under s 25C(2)(b) as a judgment in rem binding not just the parties to the notice of motion but the whole world. This raised a question about the potential effect of the declaration on unknown third parties. Both matters are relevant to the exercise of discretion under s 25C(2). The hearing of the notice of motion was adjourned on the Council's application so that it could provide further submissions on these issues. In the event, all parties made submissions about these issues in a manner that proved particularly helpful in exposing the operation of the statutory scheme. In these circumstances, it is appropriate that I record my conclusions about these matters, which are relevant to the ultimate resolution of the Council's notice of motion.

15 With respect to the first matter, I am satisfied that a regranted development consent in accordance with s 103(3) of the EPA Act does not operate or take effect unless and until the Court declares such a consent to have been validly regranted under s 25C(2)(b) of the Court Act. The Council's careful analysis of the statutory provisions to support the contrary proposition was not sustainable, essentially for the reasons given by Stockland. The most powerful indicator in favour of the Council's position (s 103(5) of the EPA Act) must be read as part of the statutory scheme as a whole. It is true that s 81 (as referred to in s 103(5)) relates to the notification of the grant of consent. Further, s 83 provides for a consent to become effective and operate from the date endorsed on such a notice. Moreover, the exception to this in s 83(5) (relating to appeals against consents on a question of law) is not applicable to the circumstances created by orders under s 25B. Nevertheless, when the statutory provisions are read as a whole, Stockland's characterisation of the scheme as a Court supervised regime directed to the validating of consents that would otherwise be invalid is persuasive.

16 It is apparent that the scheme commences with a single consent affected by some defect. Instead of declaring that consent invalid, it may be suspended on terms imposed by the Court. Once the terms have been satisfied the consent authority may decide whether: - (i) to revoke the suspended consent (s 103(2)), or (ii) any alteration to the consent is required having regard to the terms and matters arising in the course of complying with the terms (s 103(3)). If the consent authority does not revoke the consent or consider any alteration is required then the consent may become operative only by the making of orders and declaration under s 25C(1). Such a consent operates from the date of the original grant of consent unless the Court otherwise orders (s 104(1)). If the consent authority does not revoke the consent but does consider an alteration is required then the consent may be revoked and a new consent regranted in accordance with s 103(3). Such a regrant is protected from any requirement for preliminary steps to be taken other than steps required to comply with the terms of the orders under s 25B. The language of s 25B(1)(b) (which refers to validating the consent whether without alterations or on being regranted with alterations), the cumulative declarations and order in s 25C(2), and the provisions of s 104(2) disclose that a regranted consent takes effect as a consequence of the Court exercising its functions under s 25C(2). As Stockland submitted, the scheme treats suspended and regranted consents the same. Differences in descriptions apparent from comparing s 25C(1)(b) and s 25C(2)(b) and s 104(1) and s 104(2) are not material to this issue. It would be odd if a consent authority would be able to avoid the Court's supervisory role merely by making some alteration to the consent. Section 104(2)(b), moreover, is clear and must be taken to mean what it says. These considerations also confirm the difficulty with an alternative submission made on behalf of the Action Group that a declaration under s 25C(2)(a) (that the terms have been complied with) would be sufficient of itself to render the regranted consent operative.

17 It follows from these conclusions that there is no issue about the utility of making the declarations and order sought by the Council. The Council's determination on 19 December 2007 involved the regrant of the consent within the meaning of s 103(3) of the EPA Act. The regranted consent only takes effect on the making of a declaration in accordance with s 25C(2)(b) of the Court Act.

18 With respect to the second matter, the parties agreed that a declaration in accordance with s 25C(2)(b) of the Court Act would constitute a judgment in rem as it would determine the status of the regranted consent (P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437).

19 A positive declaration of validity of an administrative act (as opposed to a declaration of invalidity) is unusual. Nevertheless, in the present context, such declarations are an integral part of the statutory scheme established by Parliament. That scheme places a duty on the Court to consider making orders as contemplated rather than declaring consents invalid (s 25E). The making of such a declaration is also particularly apt to achieving the legislative intention manifest on the face of the provisions and identified by the Minister in the second reading speech for the Environmental Planning and Assessment Legislation Amendment Bill (namely, to provide greater certainty with respect to development consents and avoid delays consequential on declarations of invalidity). Reservations that might otherwise attend the making of a positive declaration of validity have to be assessed in this particular statutory context.

20 Against this background, the Action Group's particular claims may be resolved.

21 The second claim may be readily addressed. The Action Group submitted that the Council had misunderstood its functions under the Court's orders of 9 August 2007. The misunderstanding is said to have arisen because the Council's General Manager informed the Council at the meeting on 19 December 2007 of legal advice to the effect that the Council was required to make a decision, even if not necessarily on 19 December 2007. Otherwise, Stockland could apply to the Land and Environment Court for instructions that the Council make a decision. The Action Group said this was an error sufficient to vitiate the Council's decision to regrant the consent or to make the Court decline to grant relief as sought by the Council in its notice of motion. When requested to explain why this error (if it be an error) would have this effect, the Action Group submitted that, if the Council had been properly advised that it had no obligation to make a decision one way or another, it might never have done so or might have made a different decision at a later time.

22 This argument has no substance. Assuming the advice about the suspended consent and the terms permitting its validation was in error, the advice was simply that the Council ultimately needed to make a decision, even if not on 19 December 2007. The Council made a decision about those matters on 19 December 2007. It was entitled to do so and chose to do so. The advice did not dictate either that a decision then be made or its substance. Nothing in the advice could affect the validity or propriety of the decision so made. The possibility of the Council doing nothing in perpetuity or perhaps having made a different decision later involves irrelevant speculation.

23 In any event, the idea that a consent authority that had committed significant public resources to the notification, exhibition and assessment of a development application in accordance with orders of the Court under s 25B of the Court Act would then indefinitely defer dealing with the application is untenable. It is not necessary to decide whether the Council had any legal obligation enforceable at the suit of Stockland to make a decision (but the capacity for orders in the nature of mandamus should not be overlooked). The Council's status as a public authority and the tenets of good administration, in the context of the orders made on 9 August 2007, all practically required the Council to accept its responsibilities and bring the matter to a conclusion one way or another. It was proper for the Council to have done so.

24 The advice given by the General Manager did not vitiate the Council's decision on 19 December 2007 and does not constitute any form of discretionary factor weighing against the making of the declarations and order sought in the notice of motion.

25 The first claim requires a more detailed analysis. The apprehended bias is said to arise from two sources. The first source is an exchange between the Mayor and the chairman of the Action Group on 11 December 2007. The second is a comment made by a Councillor on 20 December 2006 (before the original consent was granted). The Council and Stockland did not dispute that an apprehension of bias of even one member of a council, if made out, was capable of vitiating a decision by the council as a collegiate body (IW v City of Perth (1996) 191 CLR 1 at 49 - 51).

26 Biscoe J considered many of the authorities associated with apprehended bias in F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537. The test for apprehended bias is clear (whether a fair minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to resolution of the matter) (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] - [7]). But it is equally clear that the application and precise content of the test varies depending on the context. A fair minded lay observer does not necessarily have the same expectations of an administrative decision-making body such as a council as of a judicial or quasi-judicial decision-maker. Moreover, if a lay observer did have those expectations, they may not be reasonable.

27 On 11 December 2007, in a lengthy meeting of the Council's Planning and Development Committee (at which numerous people spoke about the development as proposed in the application notified and exhibited between August and October 2007), the Mayor and the chairman of the Action Group were involved in an exchange as follows: Mayor: Before you go…, I just have a question for you. I just wondered whether your committee actually sanctioned these postcards to be sent out to my place.

Mayor: Why did you send me the bill for it? (laughter) I might also add, while I asked while I asked you why you sent the bill to me, you know, I might also add that you upset me wife and my family very bad by doing it. You also up [sic] me, upset me, I've got pretty broad shoulders but I'm pretty upset about you upsetting my wife and me family and me mother and father who are 90 year old. I'd also like to ask this question, another question now, why did you get these printed in Sydney in Stanley printing company when we got a printing place in Mudgee and you claim, claim to be protecting all the businesses in Mudgee.

Chairman: I, I, thank you very much. I will respond to the questions. As far as the postcards are concerned, I will give you the history lesson on the postcards. In, well I've been asked the question and so I'll respond to it. In sitting there trying to work out how best to convince the councillors that the community did not believe that this was an appropriate development one of the things that I was identified Mr Mayor is the one thing that you especially believed is in the power of the people and one of the other comments that came about was that there was a cartoonist that worked for the weekly previously who quite regularly did cartoons of yourself in the paper and he informed us that you would on a number of occasions had requested to purchase the originals of those cartoons.

Chairman: I'm only telling you the history. I'm not going to debate.

Mayor: That's a lie, I tell you. I've never offered to purchase and me mother was 90 year old, me mother was very upset, she actually went to the weekly along with my father to complain about it being put in there.

Chairman: So, the history of the cartoons was an appeal that we believed that you were the one person who would reject this development based purely on the fact that the community did not agree with this development. We were attempting in what we thought was a somewhat humorous way to attempt to convince you that the community wanted you to be your hero, our hero.

Mayor: To send me. Can you answer the other question, why did you send the account to my place address to 323 [inaudible] road and the other question is why did you get them printed in Sydney when you've got a printing press here in Mudgee.

Chairman: I'll answer both those questions but I'll finish my history lesson first if you don't mind alright. The background to the postcards, we tried to find someone to print them in Mudgee but I'll get to that in a minute. The reason why we decided to do the postcards and the reason they would have been done in the sequence that they were done because we believed they had the most amount of impact and portrayed you and at the end of the day the last postcard portrays you as Moses coming out of the desert as the saviour of this.

Mayor: What about this one on the beach, hey. It's an absolute disgrace Russell.

Chairman: It's an Australian icon. The lifesaver is an Australian icon.

Mayor: And my poor old mother 90 years old seen it and then she's had a stroke since and she's in a home, in a home, and my family all say that's what caused it. You're a disgrace.

Chairman: So to answer. Do you want to me answer the other two questions?

Mayor: I'm sorry Russell we need to move on but I'm absolutely disgusted particularly when you've got members of that committee that I've side side side on things like the drug action team [inaudible] and other people that I've got faith in and a lot of respect for but to do that to me family not to me I got broad shoulders but to do that to me family is an absolute disgrace and I'd like to move on now.

Chairman: I'll move on but in moving on I will say in producing that it was in no way an attempt to insult you it was no way an attempt to upset you or anybody else as I said to you I've explained the reasoning behind the cards so I've explained it to a number of the other councillors in the past and that is the reasoning it was not meant in any way to insult anybody it was meant as a humorous way to appeal to what we believed was your good natured manner in appreciating how deeply the community felt on this issue.

Mayor: Did you take into consideration when you made the decision that I do have a family I have a mother and father 90 year old?

28 The context of this exchange between the Mayor and the Action Group needs to be understood. This is because the fair minded lay observer is not assumed to know only the terms of the exchange and no more (Webb v The Queen (1991) 181 CLR 41 at 73 - 74, IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (2000) 78 SASR 151 at [184 - [187]). By analogy to the reasoning in IOOF Australia I am satisfied that the fair minded lay observer would be aware of the following matters.

29 First, the Council had notified and publicly exhibited the development application so that any interested person could make submissions about the application. The public notice of the exhibition recorded the terms of the orders made on 9 August 2007, so the fair minded lay observer would also generally understand the reason for the Council considering and making a decision about a development application to which it had already granted development consent (that consent being suspended pursuant to the Court's orders).

30 Secondly, the public notice of the exhibition period required that submissions be addressed to the General Manager at the Council's post office box.

31 Thirdly, the chairman of the Action Group had arranged for the printing of a series of four postcards showing a cartoon version of the Mayor in various iconic poses (as a lifesaver, a knight in armour, Superman, and Moses) under the question "Will this man save Mudgee?" The reverse side of each postcard is signed by a person (presumably various local residents) under a printed caption as follows: We know you CAN do it. The question is, WILL you do it? Will you save Mudgee and our region from the Stockland Monster? Send it back, get it improved and you will be my hero. 32 Fourthly, a box containing a large number of these postcards, signed by various people, had been delivered to the Mayor's home.

33 Fifthly, members of councils will often or usually have families whom they might wish to protect from the burdens, responsibilities and intrusions of public life, particularly if those families include people who, for any reason, are more vulnerable and likely to be more distressed by such intrusions than others.

34 Sixthly, members of councils are no different from any other person. They might on occasion feel affronted by another person's conduct. They might feel and express annoyance, distress or anguish about that conduct. Their expression might be forceful but nevertheless reasonable in all of the circumstances. Even in cases where regrettable language is used, it has been said "occasional departures from the appropriate standard are nothing more than indications of ordinary human frailty" (IOOF Australia at [194]). Moreover, the "appropriate standard" in this case is not the standard applicable in a court. While courtesy is usually desirable in any forum, a local council meeting is a political forum. Conflicts are frequently raised and resolved in such a forum in more robust language than would be seen as appropriate in a court.

35 Seventhly, the exchange occurred during a meeting when many people addressed the Council about the development. The Mayor raised the issue of the postcards after the chairman had finished his address. The way in which he raised ("Before you go…I just wondered") and closed the topic ("…we need to move on…") indicated that it was being treated as a matter separate from the committee members engaging with speakers about their submissions on the development.

36 Eighthly, the Council had before it a lengthy independent development assessment report (of some 43 pages) assessing the development, which (amongst other things) annexed all of the submissions received as part of the notification and exhibition process (including those from the Action Group).

37 Ninthly, the full Council considered the development at its meeting on 19 December 2007. During that meeting the Mayor said: Mayor: Thank you Councillor. Prior to giving you an opportunity to sum up Cr Walker I would just like to say a couple of things. Cr Shelley mentioned earlier about an issue I would just like to clear it up to say in reaching my decision to support the revoke and re-grant of the development consent for the Stockland Shopping Centre I took the following into consideration:

The Development Application as lodged by the applicant,

The Independent Assessment Report as supplied to Council and supporting reports such as the Economic Review undertaken by Hirst Consulting,

The submissions from the public and those made on behalf of the Mid Western Action Group and their professional submissions.

The Court orders gave the Council the opportunity to reassess the application. I reviewed the information in front of Council and have made my decision based on that information and I have not felt bound by any previous decision made by this Council in the past in relation to the Mortimer Street site.

I would also like to add that more supermarkets we get in town - competition is healthy, it would be a lot better for the consumers. There are a lot of consumers out there who, I think most people one their biggest cost is when they buy their food every week. I know I talked to two old aged pensioners [inaudible] …

We need competition - it's healthy - I'm sure if this goes ahead then everything else in the district will still continue and we have a vibrant Council when we do things. Like I said earlier the LEP for the whole of the Shire - Comprehensive LEP-we need to allow development to go ahead like with these bigger developments that are coming to our Shire - Thank you.

38 Tenthly, the fair minded lay observer is taken to know that councillors have a duty to act honestly and exercise a reasonable degree of care and diligence in carrying out their functions (s 439 of the Local Government Act).

39 All of these matters bear upon the question whether a fair minded lay observer might reasonably apprehend that the Mayor might not bring an impartial mind to the resolution of the matter. The Action Group submitted that the Mayor's strong language, tone of voice (which I heard by replay of a recording), and the nature of the accusations involved (particularly that the Mayor's mother had suffered a stroke since and his family said the postcards incident caused it) all disclosed a degree of hostility on the Mayor's part to the chairman and the Action Group sufficient to give rise to the reasonable apprehension.

40 In the context of all of the matters that a fair minded lay observer would be taken to know, I do not accept this submission. I consider that such an observer would readily perceive that the Mayor was raising what he perceived to be a personal issue about the fact of delivery of postcards to his home and its impact on his family who were not councillors and could not reasonably be expected to deal with such incidents. They would readily understand the Mayor's distress and the reasons for it. They would know that, in the heat of the moment, things are often said in more emotive language than otherwise might be the case. With respect to the Mayor's mother and her subsequent ill health, they would appreciate that the Mayor was attempting to ensure that people understood the vulnerability of aged parents. They would also know that the Mayor was communicating what his family (presumably including his aged father) said about the impact on his mother's health rather than his own belief. Most importantly, they would understand that the Mayor felt and represented his distress to be a personal matter that could have no bearing whatsoever on the consideration of the development or the submissions made about it, including by the Action Group and its chairman. This is reasonably obvious from the way in which the Mayor raised and closed the topic during the meeting on 11 December 2007. It is reinforced by the Mayor's later description of the matters he considered and his reasons for supporting the development. All of these matters, taken together, weigh against acceptance of the Action Group's submissions. There is no basis upon which to vitiate the Council's decisions or to exercise discretion against the Council on the notice of motion by reason of the exchange on 11 December 2007.

41 The second source of apprehended bias is said to arise from a comment made by a Councillor on 20 December 2006 (that is, before the consent suspended by the orders on 9 August 2007 was granted). The comment made in a meeting of 20 December 2006 was as follows: But I'd like to remind this Council, that, 4 months ago that this Council sat around the room & had the option of the (inaudible) block of land and what to do with it. They also had the opportunity to view the plans that were put forward ……. To this Council. And they knew the size of it, they knew the scale of it. And I believe the view was unanimous to proceed forward. And that then put this Council in a position whereas we can not reject it. And if you are going to kid yourselves that you are going to reject it and then fight it in the Land and Environment Court. You were told that in the first place, once you sold this block of land, that, that, you can't turn back on it. 42 The Action Group submitted that this comment, construed in context, indicated that the Councillor had pre-judged the development application. The context identified by the Action Group is a contract between the Council and Stockland of 20 September 2006 containing special conditions 40(a) and 43(a)(iii) as follows: 40 The Purchaser acknowledges that: (a) the Vendor as the Mid-Western Regional Council is selling the land to the Purchaser at the price and on the conditions contained in this Contract for Sale because it believes that it is in the interests of the well being of the residents of the Mid-Western Regional Council area that the Development should be constructed upon the land …

43(a) Completion of this Contract is subject to and conditional upon:- …

(iii) the Vendor granting development consent to the development application within eighty (80) days of the date of receipt of the development application or, in the event of the Purchaser commencing appeal proceedings before the Land & Environment Court within seven (7) days of the date of the Vendor granting development consent, the determination of any such proceedings…

43 This submission confronts a number of difficulties.

44 First, the Action Group focused on the contract as part of the context for the Councillor's comments but omitted reference to special condition 40(c) that provided as follows: (c) the Vendor shall determine the development application to be submitted by the Purchaser for the Development in accordance with the proper exercise by the Vendor of its powers as the development authority for the said Development and including but not limited to the Mortimer Street Precinct Development Control Plan 2002;

45 Secondly, the Councillor's comments have to be taken as a whole. Immediately after making the observation relied on by the Action Group the Councillor said: … The size, the scale, the shape and the look of it was laid on this table, so I think you can remember back when what it was. But as I said there's more work to be done on it. And our Planning Department with the Independent Assessors are looking at it and I believe we can come out with the right outcome for the this development for the future of Mudgee and the whole of this district. Thank you. 46 The Councillor's comments, taken as a whole, indicate a determination to achieve the right outcome and could not possibly give rise to any reasonable apprehension of prejudgment as claimed by the Action Group.

47 Thirdly, the comments were made a year before the Council's decision on 19 December 2007 when, in the interim, there had been the Action Group's successful challenge to the consent, the Court orders of 9 August 2007, the extensive notification and exhibition of the application through August to October 2007, a further lengthy assessment report prepared, and the meeting on 11 December 2007. The sheer passage of time, in the events that occurred, removed any real connection between the Councillor's comments on 20 December 2006 and the decision on 19 December 2007. The idea that a fair minded lay observer might reasonably apprehend anything from those comments of relevance to the decision on 19 December 2007 is unsustainable.

48 For these reasons it is unnecessary to consider Stockland's submission that the Action Group could not make any claim about the events on 20 December 2006 by reason of waiver or the Council's submission that the Action Group was precluded from raising the claim by reason of Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). The facts do not disclose any matter arising from the Councillor's comments on 20 December 2006 whereby a fair minded lay observer might reasonably apprehend that the Councillor might not bring an impartial mind to the resolution of the matter. There is no basis upon which to vitiate the Council's decisions or to exercise discretion against the Council on the notice of motion by reason of the comment on 20 December 2006.

49 For the reasons given above I am satisfied that the Action Group has not identified any matter that would vitiate the Council's decision or that, fairly assessed, could provide any basis for an exercise of discretion against the Council. I am mindful of the effect of a positive declaration as a judgment in rem and the caution that would ordinarily be exercised having regard to the potential effects on third parties. I have also, however, given significant weight to the language, purpose and objects of the statutory scheme of which s 25C(2) forms part and the facts that: - (i) pursuant to the orders made on 9 August 2007 there has been extensive public consultation by the Council about the proposed development, (ii) the undisputed evidence points to the Council having undertaken a detailed assessment of the development, including consideration of the public submissions, (iii) the development is a large one and has generated substantial controversy and debate, the nature and extent of which the Council must be inferred to have fully appreciated, (iv) substantial resources have been applied, directed towards compliance with the terms of the Court's orders of 9 August 2007 (there being no dispute that those orders have in fact been complied with by the Council), (v) a declaration under s 25C(2)(b) is necessary so that the consent may take effect (but, even if that be wrong, such a declaration resolves the debate between the parties about this issue, which is itself an indicator of utility), and (vi) the Action Group has been closely interested in the Council's decision-making process and has opposed the making of the declarations and order, presumably, on all grounds it considered available. Having regard to these matters I am satisfied that the declarations sought by the Council can and should be made. I have considered whether the date of effect should be other than the date of the declaration as permitted by s 25C(2) but concluded that, in the circumstances identified, there is no reasonable basis for so doing.

50 For these reasons, I make the following declarations and order: (1) Declare that the terms in order 2 of the Court's orders of 9 August 2007 have been complied with.

(2) Declare that the development consent to development application 164/2007 has been validly regranted.

(3) Declare that development consent suspended by order 1 of the Court's orders of 9 August 2007 has been revoked.

(4) Revoke the order of suspension in order 1 of the Court's orders of 9 August 2007. 51 Costs may be argued. ****************************

16/04/2008 - Misspelt applicant name in case name - Paragraph(s) Case Name on cover sheet

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

(2007) 150 LGERA 333

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (9)

Cited By (12)