Premier Customs Services Pty Limited v Botany Bay City Council

Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185 Premier Customs Services Pty Limited v Botany Bay City Council [2008] NSWLEC 269 Botany Bay City Council v Premier Customs Services Pty Limited [2009] NSWCA 226 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 51 NSWLR 589 McGovern & Anor v Ku-ring-gai Council & Anor [2008] NSWCA 209 Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors 26 NSWLR 411 (1992) Livesey v NSW Bar Association (1983) 151 CLR 288

APPLICANT Ms H Irish (barrister) SOLICITORS Conomos Legal LEGAL REPRESENTATIVES:

RESPONDENT Mr T Hale (SC) SOLICITORS Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10847 of 2007 Premier Customs Services Pty Limited v Botany Bay City Council This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT 1 On 23 May 2008 I gave judgment in the matter of Premier Customs Services v Botany Bay City Council [2008] NSWLEC 1185 upholding an appeal against the Botany Bay Council's deemed refusal of a development application for an industrial style building at 21 Bay Street, Botany.

2 On 25 September 2008 Biscoe J dismissed an appeal pursuant to s 56A of the Land and Environment Court Act 1979 against this decision, Premier Customs Services Pty Limited v Botany Bay City Council [2008] NSWLEC 269.

3 The council subsequently successfully appealed to the New South Wales Court of Appeal Botany Bay City Council v Premier Customs Services Pty Limited [2009] NSWCA 226. 4 In his opening paragraphs of the Court of Appeal's judgment, Macfarlan JA said at paras 4 and 5: "4. The point at issue is whether the commissioner took into consideration the terms of a development control plan (DCP) which applied to the land when determining the adequacy of the setbacks from the side boundaries provided for in the DA. He was required to do so by s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979. 5. My conclusion is that he did not do so because whilst he referred to the relevant provisions of the DCP and was entitled in the particular circumstances of the subject site to depart from them in his determination of the DA, he took a different view than that embodied in the DCP as to the applicable general policy. In so doing he substituted his own approach for the "statutory standard" and thereby failed to treat it as a "fundamental element" in his determination (see Zhang v Canterbury City Council [2001] NSWCA 167 (2001) 51 NSWLR 589 at [72-77])." 5 Also relevantly at paragraphs 27 and 33 he said that: "27. The parties in the present case recognise, as they were bound to do in the light of Zhang , that whilst it was necessary for the DCP to be considered as a "fundamental element" or a "focal point" of the decision-making process, the DCP was not "determinative" ( Zhang at 75). The council did not contend that Bly C was not entitled to take the view that for reasons related to this particular site it was not appropriate to compel compliance with the DCP side setback requirement. The council however argued, in my view correctly (in light of Zhang and Ligon ) that the commissioner was not entitled to take the view that the standards set by the DCP were inappropriate for reasons of generally policy. The question is whether, as the council contends, he did that, or as the primary judge found, he did not. 33. My view is thus that the commissioner in respect of the eastern side setback put aside the standard set by the DCP and applied his own standard of what is reasonable. Accordingly his decision did not conform with the principles stated in Zhang as he failed to "take into consideration " the DCP in the manner required by s 79C. He applied his own view as to the appropriate general policy, not that embodied in the DCP. He therefore committed an error of law ( Zhang at 60)." 6 The Court of Appeal allowed the appeal and inter alia set aside the decisions of myself and Biscoe J and ordered that the appeal be remitted to a commissioner of the court for determination in accordance with its decision.

7 The council now makes application that I disqualify myself from rehearing the matter on the basis of apprehended pre-judgment. This application is not supported by the applicant.

8 Whilst I was referred to nine separate decisions of the Court of Appeal and the Land and Environment Court I am satisfied that this question can be decided taking into account two Court of Appeal cases, McGovern & Anor v Ku-ring-gai Council & Anor [2008] NSWCA 209 and Australian National Industries Limited v Spedley Securities Limited (in liquidation) & Ors 26 NSWLR 411 (1992). In Spedley Securities Mahoney JA considered the pre-judgment principle that is derived from the requirement for impartiality in decision-making and the other well settled principle that justice must appear to be done. In particular, care must be taken to avoid any appearance of pre-judgment that will create an apprehension that the decision-maker may not be impartial.

9 By reference to the decision of the High Court in Livesey v NSW Bar Association (1983) 151 CLR 288 Mahoney JA at p 438 identified four things or tests to be taken into account in dealing with a question of whether there might be a reasonable apprehension that a judge might not bring an impartial or unprejudiced mind to the resolution of the matter before the court. Those tests comprise the following. (a) the disqualification of a judge for apprehended pre-judgment depends on form rather than substance; (b) whether there is an unacceptable appearance of pre-judgment to be decided not according to likelihood but according to possibility; (c) it is to be judged not according to what the court and the parties know but according to the impressions of a lay person who does not know the facts; (d) there will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case. 10 Also in McGovern, Spigelman CJ in dealing with the "open to persuasion test for apprehended bias" explained at (p 180) that this test is an appropriate formulation for bias by pre-judgment to which the dual "might" test of apprehended bias must be applied. That is that an independent observer might reasonably apprehended that the decision-maker might not be open to persuasion. In this context at (p 179) he also said that the test being expressed in terms of two "mights" sets a low threshold with respect to a pre-judgment case. Also issues of impartiality or prejudice involve issues of some specificity.

11 Also in dealing with the concept of an independent observer it is also relevant to apply the suggestion of Kirby P in Spedley Securities (at 419) that care needs to be taken against attributing to the hypothetical reasonable observer a level of sophistication which may otherwise be enjoyed by judges or other lawyers.

12 Applying the tests considered by Mahoney JA, the third of those tests suggests that the question of pre-judgment is to be considered in accordance with the impressions of a lay person who does not know the facts but it must be assumed that a hypothetical lay observer is at least aware of my judgment.

13 Relevant to the other tests my attention was taken to various parts of my judgment including paras 30, 36 and 37. The latter paragraphs make it plain that on its merits the development warrants approval and that the appeal should be upheld and conditional development consent granted. Paragraph 30 essentially represents my conclusion to the consideration of the setback requirements of the applicable development control plan and was central to the Court of Appeal's decision. "30. Any objective that seeks to protect the amenity of existing residential development must be considered in the light of the fact that the site and surrounding lands are zoned for industrial development. Whilst the site adjoins existing residential development this is not (according to map 6 Botany West Industrial Precinct) a zoned interface between industrial and residential zones, hence the same level of amenity that existing residential development can expect in a residential zone cannot be expected in an industrial zone. In this context I have been persuaded by the evidence of Mr Betros that no unreasonable impacts, particularly involving presentation, noise and privacy, arise." 14 As for the test of form rather than substance, this involves how the circumstances appear to a hypothetical reasonable observer who might gain the impression, in this case from my judgment, that I might pre-judge any reconsideration of the requirements of the development control plan. The second test is similar and is to be applied on the basis of possibility, not likelihood. The application of these tests leads me to the conclusion that based upon the above conclusions in my judgment that a hypothetical reasonable observer might gain the impression that the issues have been pre-judged.

15 As for the fourth test, it is the fact that I dealt with the case originally and the facts of the original hearing, especially the matter of particular concern to the Court of Appeal, will remain largely if not entirely unchanged. This also supports the possibility that I might not be open to persuasion and the appearance to a hypothetical reasonable observer of pre-judgment might result.

16 In its findings the Court of Appeal did not make any reference to the question of whether or not I should hear the matter and I give this matter no weight. In the circumstances I have decided to disqualify myself from rehearing this case.

      T A Bly
      Commissioner of the Court
      ljr

02/10/2009 - error with Respondent's solicitor - Paragraph(s) Coversheet

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