Millerview Constructions Pty Ltd v Eurobodalla Shire Council

JUDGMENT: IN THE LAND AND Matter No. 10269 of 1998 ENVIRONMENT COURT 10730 of 1998 OF NEW SOUTH WALES Coram: Talbot J Decision Date: 31 January 2000

Millerview Constructions Pty Ltd Appellant v Eurobodalla Shire Council Respondent

This is an appeal pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act) against the decision of Commissioner Watts made on 1 October 1999 not to disqualify himself from further hearing this matter.

On 21 May 1999 the parties appeared before the Commissioner for the purpose of inviting him to make consent orders allowing the appeal and granting development consent.

The proposed development is permissible under the Local Environmental Plan (the LEP) but the land is within a "no development zone" under Development Control Plan 167 (DCP 167).

The LEP states that the aims and objectives of the plan are to be achieved by a number of strategies including making development control plans regulating the carrying out of development permitted in any zone so as to restrict some or all development to a certain part of a zone.

It is not necessary for the purpose of deciding the appeal to consider all the detail of the planning instruments but the Court has been informed that the no development zone reflects the sensitive nature of certain lands which generally should not be the subject of development.

Mr Bradbury explained to the Commissioner that the council was prepared to agree to development taking place in the no development zone having regard to reports prepared on behalf of the applicant in relation to soil erosion control and effluent disposal which led to the view that the application could be supported. Recognising that the existence of the no development zone is a matter that the Court is to take into account under s 90 of the Environmental Planning and Assessment Act 1979 as it then was (the EP&A Act), Mr Bradbury nevertheless submitted that the material then before the Court was sufficient to enable the application to be approved.

Protracted discussion followed about the prospect of allowing the council sufficient time to prepare an amending DCP to vary the boundaries of the no development zone.

During that discussion, the Commissioner made the following observation:- I think it is quite extraordinary that the Council would be coming to Court with consent orders within a no development zone, and it is a steep site, there are trees all around, there is native habitat for flora and fauna. Probably the reason why there was a no development zone was because of some of those things and that is what the surf beach DCP addresses. There are a number of objects of that DCP.

At p 41 he went further and said:- There should really be a strategic plan for the area and this be part of that strategic process, and that you put on exhibition and properly considered by the public and the Council. 10. Mr Bradbury expressed the view that logically the DCP ought to be amended before the application is determined, but acknowledged nonetheless that the parties had come to Court with consent orders and on the council's part that was an indication of its views in relation to a possible limit to the application of the provisions of the DCP. However, he agreed to a suggestion made by the Commissioner that the proceedings be adjourned so that an amendment to the DCP can be exhibited.

The Commissioner expressed his view at p 43 of the transcript as follows:- … if the Council is willing to entertain a development such as this within the no development zone and it is prepared to consider the possibility of moving the boundary, then the matter should be adjourned for a time to allow the Council to prepare the necessary documentation and come back to the Court …

Immediately before the adjournment the Commissioner made the following further observation:- … it would seem appropriate that the DCP be amended to exclude this land from the no development zone. It may be that the Council, upon reflection, does not wish to go down that course. It am not directing the Council to prepare a DCP. I am only trying to unravel some of the strands of this application.

Finally he said:- So I suppose if the Council does not resolve to proceed any further with amendment to the zone, then the matter can be dealt with soon after 25 June and by that stage I will have had a chance to look at the exhibits and consider the other issues that were in dispute.

During the period of the adjournment the council resolved firstly, not to amend the DCP and secondly, to oppose the appeal and the proposed grant of consent.

The matter was re-listed before Commissioner Watts on 1 October 1999 when Mr Clay, appearing for the applicant, made an application for the Commissioner to disqualify himself on the basis of apprehended bias by way of prejudgment. The Commissioner refused. It is against that decision of the Commissioner that the appellant now appeals.

The appellant contends that the comments and observations made by the Commissioner during the course of oral argument on 21 May 1999 give rise to the possibility of the reasonable apprehension that the Commissioner had determined that unless the council amended the DCP so that the development did not offend the no development zone, then the Commissioner would not approve the development.

The appellant relies on the whole of the statement made by the Commissioner on p 43 of the transcript which is partly set out above. Accordingly, it is set out in full:- Well, I think there are two courses of action that would be open to me, and adjourning it is not one that I am particularly interested in doing but I think given the situation that the parties have come to Court here today to agree to consent orders it is probably the fairest. The other one would simply be to refuse the application because it is contrary to the DCP, but I think if the Council is willing to entertain a development such as this within the no development zone and it is prepared to consider the possibility of moving the boundary, then the matter should be adjourned for a time to allow the Council to prepare the necessary documentation and come back to the Court …

According to the appellant, the above comment makes it plain, or at the very least gives rise to the possibility of a reasonable apprehension, that the Commissioner had prejudged a critical issue, namely, if the council did not amend the so-called no development zone in its DCP, then the appeal would fail.

Like Mr Clay, Mr Bradbury, appearing for the council, asserts that the whole of the comments of the Commissioner should be read in context.

Nowhere does the Commissioner say that if the DCP is not amended, he would refuse development consent.

According to Mr Bradbury, what the Commissioner was making clear at p 45 was that if the DCP is amended, then the issue is resolved. If not, then the issue needs to be debated in the light of the provisions of the DCP.

The Commissioner expressly made it clear at p 19 he was not saying that the development is prohibited. Further, at p 33, he expressed the view that the provision in the DCP was not an absolute restriction.

The Commissioner having raised the issue of an amendment to the DCP, the council acquiesced in the suggestion that the hearing should be adjourned to enable that course to be considered.

There is nothing in the exchanges between the Commissioner and the representatives of both parties which can be interpreted as a direct statement that it was imperative for the DCP to be amended. Nevertheless, the Commissioner raised certain issues in that regard and expressed some tentative opinions.

Should the Commissioner continue to hear the application?

As Hayne J said in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) [1999] HCA 56; (1999) 74 ALJR 68 at [11]:- The principles concerning what has come to be called shortly, if not wholly accurately, the "appearance of bias" by judicial officers are well established. What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely ( Re JRL; Ex parte CJL (1986) 161 CLR 342).

I have not been satisfied there can be a reasonable apprehension that the Commissioner will not decide the case impartially or without prejudice. No such apprehension has been "firmly established" ( R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546).

Furthermore, I am not satisfied there can be a reasonable fear that the Commissioner's mind is so prejudiced in favour of the conclusion already formed that he will not alter that conclusion irrespective of the evidence or subsequent arguments. Indeed the language used by the Commissioner is, in my view, to the contrary.

The present case, in my opinion, falls squarely within the circumstances enunciated by Wilcox J in Richmond River Broadcasters Pty Ltd and Anor v Australian Broadcasting Tribunal and Ors (1992) 106 ALR 671 at 681. Although I am not bound to follow any decision by Wilcox J, it is nevertheless helpful to set out his Honour's comments in full because they reflect my understanding of how the issue of prejudgment should be approached in circumstances such as the present.

After quoting from a judgment of the full court of the Federal Court in Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 which emphasises that the mere possession and even expression of an opinion upon an issue does not necessarily disqualify a tribunal of fact from proceeding to determine a case, his Honour said the following:- It is an everyday event for judges to indicate to counsel, during the course of a hearing, their impressions of a case, including their impressions of witnesses and of the facts. They do so to assist counsel. It is always an advantage for counsel to know the way in which the judge's mind is working; submissions may be targeted to the aspect of the case which is troubling the judge. Where a judge takes this course nobody would suggest that the judge ought then to be disqualified from concluding the case. The reason is that the judge is merely expressing a tentative view and inviting a response which he or she may take into account in determining whether to adhere to, or abandon, that view in the final decision. The readiness to listen and be persuaded is the critical matter.

There is no reason of principle why an administrative body such as the Australian Broadcasting Tribunal should not take a similar course. In a matter as complex as commercial viability it is helpful for any preliminary view to be carefully considered and fully stated. It is advantageous for it to be stated in writing, so that it may be more easily digested, and responded to, by the parties. As with the case of a judge, what is critical is that, until the issue is finally decided, any view which is expressed be merely a preliminary view, with a clear invitation to the parties to respond critically to it, and that the decision-maker be genuinely willing to consider on their merits any responses which might be made. I do not believe that a person who takes this course would be regarded by an objective observer as unable to bring an impartial and unprejudiced mind to the issues to be resolved. On the contrary, such a decision-maker would be seen as conscientiously grappling with those issues, in a way designed to extract maximum assistance from the parties.

Having read the whole of the transcript of the exchange between Mr Bradbury, Mr Clay and Commissioner Watts, I am satisfied that Commissioner Watts was doing no more than exploring the issues. At the worst, expressing a tentative view, but nevertheless inviting a response from the parties after the council in particular had been afforded the opportunity to take the particular course of amending the DCP if that was considered appropriate.

In the circumstances of this case, the Commissioner did not make an error of law when he refused to disqualify himself from further hearing of the appeal.

33. The matter is remitted to Commissioner Watts for hearing. It will be listed before the Registrar on a day which is mutually convenient to allow hearing dates to be fixed.

34. The Court has not heard any argument in relation to costs. Prima facie the council has been successful in opposing the appeal and is entitled to its costs. The question of costs is formally reserved to afford the opportunity for either party to make an application for an order if required.

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34. The Court has not heard any argument in relation to costs. Prima facie the council has been successful in opposing the appeal and is entitled to its costs. The question of costs is formally reserved to afford the opportunity for either party to make an application for an order if required.