Administrative law - Rules of natural justice and breach thereof - Disqualification for bias - Preconceived opinion - Application to council for planning permit - Councillor holding strong views. Old St Boniface Residents' Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385; R v Amber Valley District Council, Ex parte Jackson (1985) 1 WLR 298; Steeples v Derbyshire County Council (1985) 1 WLR 256, referred to.

Administrative law - Rules of natural justice and breach thereof - Disqualification for bias - Participant by prosecutor or adversary in adjudication - Application to council for planning permit - Councillor also person who made representations against the grant of the permit. Land Use Planning and Approvals Act 1993, ss51, 57(5). R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 262-263; Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509, followed. R v City of Whyalla; Ex parte Kittel (1979) 20 SASR 386; R v City of Marion; Ex parte Independent Grocers Co-operative Ltd (No 1) (1984) 37 SASR 415; R v City of Marion; Ex parte Independent Grocers Co-operative Ltd (No 2) (1984) 37 SASR 436; Lower Hutt City Council v Bank (1974) 1 NZLR 545; Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113, referred to.

Local Government - Regulation and administration - Aldermen and councillors - Qualifications or disqualifications for office or voting - Interest in matter or contract - Indirect interest - Whether operates as a disqualification. Local Government Act 1993, ss48(1), 50.

Local Government - Town planning - Consent and approval of councils (development and like applications) - Consents, approvals or permits - Modification, revocation or review - Whether power to rescind grant of permit. Naylor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630; Mekol Pty Ltd v Baulkam Hills Shire Council (No 2) (1971) 2 NSWLR 54; Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 2 NSWLR 80, referred to.

Local Government - Town planning - Consent and approval of councils (development and like applications) - Applications - General matters - Effect of not dealing with application within the statutory period. Land Use Planning and Approvals Act 1993, s59.

Prerogative writs - Discretionary nature of writ and circumstances precluding relief - Modified by statute - Extent of modification - What amounts to determination. Supreme Court Civil Procedure Act 1932, s75(12). R v Minister for Sea Fisheries; Ex parte National Australia Bank Ltd (1991) Tas R 70, applied. R v Tasmanian Racing and Gaming Commission; Ex parte Heatley (1976) Tas SR (NC 21); R v The Minister Administering the Fisheries Act 1963; Ex parte National Australia Bank Ltd A57/1990; Calvin v Carr [1979] UKPC 1; (1980) AC 574; Reid v Rowley (1977) 2 NZLR 472, referred to.

ZEEMAN J This is the return of an order nisi made on 10 February 1995 whereby the respondent was required to show cause why:

(a) a writ of certiorari should not issue to remove into the

Court and quash the determination of the respondent made on

15 November 1994 by which the application of the prosecutor

for a permit under the Land Use Planning and Approvals Act

1993 ("the Act"), Div2 PtIV was not approved;

(b) a writ of mandamus should not issue, directed to the

respondent, requiring it to hear and determine the

application in accordance with the law; and

(c) further or other relief should not be granted.

2. The order nisi specified two grounds but the prosecutor argued only the first of those which is in the following terms:

"(i) That there was procedural unfairness and a breach of

natural justice in that there was bias on the part of Darryl

Gerrity who was a member of the West Coast Council and voted

when Council made the decision."

3. In addition, pursuant to the Rules of the Supreme Court, O72, r5(6), I allowed the prosecutor to rely on grounds to the following effect which were not specified in the order nisi:

1 The respondent failed to exercise or erred in the exercise

of its jurisdiction and/or erred in law in that it determined

the application on the basis that the relevant area was zoned

as Multiple Use and/or Residential when it was zoned

Non-urban by the relevant planning scheme, namely the Strahan

Planning Scheme 1988.

2 The respondent failed to exercise or erred in the exercise

of its jurisdiction and/or erred in law in that it took into

account irrelevant considerations being the advice from C

Eastaugh contained in his report dated 14 November 1994.

4. The prosecutor conducts the business of the Strahan Motor Inn at Strahan. On 10 December 1993 it made an application to the respondent, in its capacity as the relevant planning authority, seeking a permit pursuant to the Act in respect of an advertising sign. The sign already had been erected. That fact was not relevant to the consideration of the application, although until and unless a permit was granted there may have been no lawful basis for the erection and maintenance of the sign and it might have been the subject of an order under the Act, s64. The relevant land is and was subject to the provisions of the Strahan Planning Scheme 1988 ("the planning scheme"), a sealed scheme made under the Local Government Act 1962, which has continued in force pursuant to the Land Use Planning and Approvals (Consequential and Miscellaneous Amendments) Act 1993, s11.

5. A number of persons made representations to the respondent relating to the application, as permitted by the Act, s57(5). One of those representations was made by one Darryl Gerrity who was, and has been at all material times, a councillor of the respondent. That representation was in the following terms:

"I wish to lodge an objection to Strahan Inn's new sign as it

is not in keeping with town plan and and not in keeping with

town character and development."

6. The making of a representation relating to an application for a discretionary permit has particular statutory significance because the Act, s51(2)(c) requires a planning authority to take into consideration such a representation in determining an application for a permit and because, in the event that a planning authority grants a permit, the person who has made the representation may appeal to the Resource Management and Planning Appeal Tribunal ("the Tribunal") pursuant to the Act, s61(5).

7. On 18 January 1994 the respondent granted a permit in the terms of the application made to it by the prosecutor. The only member of the respondent who voted against the motion to grant the permit was Cr Gerrity. On 2 February 1994 Cr Gerrity and six other persons jointly instituted an appeal to the Tribunal against the grant of the permit to the prosecutor. The notice of appeal specified four grounds of appeal, some of which were misconceived. On 15 February 1994 the prosecutor's solicitors sent a letter to the respondent's solicitors in which it was suggested that in fact no permit was necessary because the sign in respect of which the permit was sought merely replaced a pre-existing sign. The letter further suggested that the respondent should rescind the grant of the permit. On 8 March 1994 the respondent purported to rescind the grant of the permit. That resolution was adopted unanimously. Cr Gerrity, having declared an interest, was not present when the matter was discussed and determined.

8. At the very least there must be considerable doubt whether the respondent had any power to rescind the grant of the permit, particularly after the institution of the appeal (see Naylor Pty Ltd v Bankstown City Council (1980) 2 NSWLR 630, Mekol Pty Ltd v Baulkam Hills Shire Council (No 2) (1971) 2 NSWLR 54 and Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 2 NSWLR 80).

9. It appears that the parties to the appeal assumed that the purported rescission was effective to take away the permit previously granted to the prosecutor because, on 11 May 1994, with the consent of the parties, the Tribunal dismissed the appeal. Whether the result is that the prosecutor was left with the permit intact, now unassailable by the appeal process, is a question which I am not required to determine. The present proceedings concern the subsequent application made by the prosecutor for a permit in relation to the same sign, but in respect of a slightly different location. It was a valid application which required consideration by the respondent in accordance with the provisions of the Act and the planning scheme.

10. Before I come to that further application it is necessary to mention one other matter. On 6 May 1994 Cr Gerrity and others made an ex parte application under the Act, s64 by which the applicants (inter alia) sought an order for the removal of the sign on the apparent basis that it constituted a breach of the planning scheme. The Tribunal issued a summons pursuant to s64(2). After hearing the parties, the Tribunal ordered that the prosecutor be precluded from using the sign by causing or permitting any part of it to be operated by or illuminated by electricity. It made that order after having found as a fact that the sign was not upon the prosecutor's land but upon Crown land. It concluded that it was inappropriate to require the prosecutor to do any act by way of making good the contravention of the planning scheme by way of trespassing on Crown land. The finding of the Tribunal as to the actual location of the sign explains why it became necessary for the prosecutor to make a further application for a permit allowing the sign to be placed a short distance from its existing location.

11. On 23 September 1994 the prosecutor made the further application for a permit. Once again Cr Gerrity made representations to the respondent. On this occasion they were in the following terms:

"I wish to object to the 'Strahan Inn' sign application on

the following grounds.

1 As the sign is illegal why hasn't the sign had its removal

ordered.

2 It is against Councils and the Strahan Town Advisory

Committees aim to 'retain, maintain and enhance the

historical character of Strahan'.

3 It is against the Town Plan in all aspects of 13.2, 7.3.3

and 7.3.5.

4 It is not a replacement sign.

5 Council has already disapproved the sign by recinding

(sic) its original approval motion.

6 Sign approval would set a sign precedent that would not

benifiet (sic) Strahan and other signs.

7 The sign is against the Strahan Consovation Studys (sic)

recommendations.

8 The sign would effectively turn away the types of

investors Strahan is presently attracting with substantial

success.

9 The sign is on a Tourist Road.

10 The sign requires the Director of Tourisms (sic)

authorisation.

11 It is against the adopted 'Wharf Development Plan' (page

5: 4.2.1).

12 In context of the surrounding building and feature the

sign is out scale (sic), its features vary dramatically from

other area features.

13 The signs flashing lights and arrows will be confusing to

motorists.

14 Strahan is presently attracting more tourists due to

eco-tourism and this sign would put Strahan into the garish

tourist town syndrome that would be of no benifiet (sic) to

Strahan."

12. The application came before a meeting of the respondent on 15 November 1994. Prior to the meeting the respondent had obtained the advice of Mr Clyde Eastaugh, a town planning and development consultant, in relation to the application. In obtaining this advice it may be assumed that the respondent was acting in accordance with the provisions of the Local Government Act 1993, s65 and in particular, subs(2) thereof. The particular matters as to which advice might have been considered to be appropriate were as to the provisions of the planning scheme insofar as they applied to the application and in relation to general planning principles and considerations. The discretion as to whether a permit is to be granted is one which is to be exercised by the councillors who meet to make the decision. It may be assumed that the purpose of s65 is to ensure that decisions on matters such as applications for planning permits are made by councillors only after they have been fully informed of the relevant considerations.

13. With all due respect to Mr Eastaugh the advice which he tendered, although extending over several pages, could not have been of any real assistance to the councillors in making an informed decision. Much of what is contained in the advice was entirely irrelevant and might well have been construed as an invitation to the respondent to refuse the application by reason of the prosecutor in the past having acted in breach of the planning scheme. It would have been quite wrong for the respondent to have refused the application on that basis. Some of the observations made by Mr Eastaugh amounted to legal advice, and erroneous legal advice at that. The only relevant advice given was in the form of a statement that the Multiple Use zone (within which Mr Eastaugh understood the relevant land to be situated) appeared to be an inappropriate zone in which to erect an advertising sign. As the planning scheme provided that an advertising sign was a discretionary use within the Multiple Use zone it would have been wrong for the respondent to decide the application upon the basis that in general terms advertising signs ought not to be permitted in the Multiple Use zone. Mr Eastaugh's advice concluded with the recommendation that the application be refused.

14. When the application came before the respondent on 15 November 1994 Cr Gerrity moved that Mr Eastaugh's advice "be adopted and the application not be approved". The motion was carried and the prosecutor's solicitors were advised on the following day that the application for the permit had not been approved.

15. On 23 November 1994 the prosecutor lodged an appeal against the respondent's decision with the Tribunal. That appeal has not as yet been heard or determined. Mr Eastaugh was advised of the institution of the appeal whereupon he furnished the respondent with a further report on 21 January 1995. In that report Mr Eastaugh stated that his previous advice that the land was zoned Multiple Use had been erroneous and that in fact the land was zoned Non-urban. He stated that had he been aware of the correct zoning he would have recommended to the respondent that it approve the application for a permit. He recommended that the respondent "reconsider the matter and if thought appropriate, support the application". By that I infer that he was recommending that the respondent support the appeal pending before the Tribunal or possibly that it rescind its earlier resolution and grant the permit.

16. In any event, the matter was further discussed at a meeting of the respondent held on 24 January 1995 when a motion was proposed that the earlier resolution "rejecting planning approval for the sign Strahan Inn be overturned". The motion was lost, three councillors voting in favour and four voting against. One of those voting against the motion was Cr Gerrity. Cr Gerrity requested that the minutes note that his opposition to the proposal that the permit be granted was based on his interpretation of the planning scheme. Some of the councillors who voted against the motion did so upon the basis that they considered that the matter ought to be determined by the Tribunal. Although they may not have appreciated this fact, for the reasons which I have expressed earlier, in taking this stance they were on solid legal ground.

17. I am satisfied that at all relevant times Cr Gerrity held a strong belief that a permit ought not to be granted so as to enable the sign to be placed on the prosecutor's land. Although some suggestions to this effect were made to him in cross-examination, I am not persuaded that he had any ulterior motives for opposing the grant of a permit. In particular, I am not persuaded that he was motivated by any desire to provide any economic advantage to others of the persons who made representations, many of whom were business competitors of the prosecutor. Having considered the provisions of the sealed plan and examined the photographs of the sign which were tendered, it is my view that an opinion, based on planning considerations, that it would be inappropriate to permit the erection of the sign is a reasonable opnion, although the same can be said about any contrary view.

18. The evidence establishes that for some months in late 1993 and early 1994 Cr Gerrity's wife was the employee of one of the other persons who made representations to the respondent in relation to both applications for a permit made by the prosecutor. It is arguable that whilst she was so employed Cr Gerrity had an indirect interest in any application for a permit in relation to the sign made by the prosecutor and that as a result the Local Government Act 1993, s48(1) prohibited Cr Gerrity from voting on the prosecutor's application at the meeting of the respondent on 18 January 1994. Whilst that is arguable it is far from clear that that was the position. That Act, s50(b) would operate so that by virtue of his wife's employment Cr Gerrity had an indirect interest in the matter but it may be that the prohibition contained in s48(1) only applies to interests within the meaning of s49 and not to indirect interests under s50. In any event, I do not think the matter is of any particular relevance. The relief sought by the prosecutor concerns the determination of the respondent of 15 November 1994 and the evidence does not justify a conclusion that at that time Cr Gerrity had any interest, either direct or indirect, which could attract the provisions of s48(1) resulting in the decision of the respondent being invalidated, even leaving aside the saving provisions contained in s56.

19. The prosecutor has submitted that the evidence discloses actual bias on the part of Cr Gerrity in relation to the application for a planning permit. It submitted that that bias was demonstrated by Cr Gerrity's course of conduct in relation to the prosecutor's sign prior to the making of the relevant application and by his making of representations concerning that application. The prosecutor further submitted that by reason of that bias Cr Gerrity was disqualified from voting on the application and that the fact that he did vote invalidated the resolution of the respondent by which the application was refused. If it can be said that Cr Gerrity was a disqualified person in the relevant sense at that time, then that submission is well founded. Authority is to be found for it in R v Sussex Justices ex parte McCarthy (1924) 1 KB 256 which was followed by the High Court in Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509.

20. Settled principles of law require the conclusion that the rules of natural justice regulated the exercise by the respondent of its power to consider and deal with the application made by the prosecutor for a planning permit (Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1989-1990) 169 CLR 648 at 653 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 at 576-577).

21. The particular power being exercised by the respondent was that conferred and governed by the Act, s51 which provides as follows:

"51 (1) Where, under a planning scheme or interim order, a

proposed use or development is subject to a requirement for a

permit, a person who wishes to undertake that use or

development must, before commencing that use or development,

make application to the planning authority by which the

planning scheme or interim order is administered for a

permit.

(2) In determining an application for a permit, a planning

authority

(a) must seek to further the objectives set out in Schedule

1; and

(b) must take into consideration such of the prescribed

matters as are relevant to the use or development the subject

of the application; and

(c) must take into consideration the matters set out in

representations relating to the application that were made

during the period referred to in section 57 (5).

(3) The decision of a planning authority on an application

referred to in subsection (1) is to be made by reference to

the provisions of the planning scheme or interim order as in

force at the date of its decision.

(4) A permit may be granted subject to such conditions or

restrictions as the planning authority may impose with

respect to any matter specified in the relevant planning

scheme or interim order."

22. The Act, s3(1) defines the expression "planning authority" as meaning a municipality or a marine board. Of particular importance in the context of the present case is s51(2)(c) which operated so as to require the respondent, in determining the prosecutor's application, to take into consideration (inter alia) the representations made by Cr Gerrity in relation to the application. It ought to be said that at least some of the propositions advanced by Cr Gerrity by way of representations were propositions which, had he advanced them in his capacity as a councillor during the course of debate on a motion concerning the application, would have been relevant and perfectly proper.

23. The prosecutor submits that it has been established that there was actual bias in the sense that Cr Gerrity came to decide whether the prosecutor ought to be granted a planning permit when he had already concluded how that matter was to be decided (see Re Macquarie University; ex parte Ong (1989) 17 NSWLR 113 at 135). However the prosecutor does not need to establish actual bias. In considering a judicial body the majority in the High Court in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 262-263 said:

"The view that a judge should not sit to hear a case if in

all the circumstances the parties or the public might

reasonably suspect that he was not unprejudiced and

impartial, and that if a judge does sit in those

circumstances prohibition will lie, is not only supported by

the balance of authority as it now stands but is correct in

principle. It would be wrong to regard the observations of

Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy

(1924) 1 KB, at p 259 as meaning that the appearance of

justice is of more importance than the attainment of justice

itself: cf Reg v Camborne Justices; Ex parte Pearce (1955) 1

QB, at p 52. However, his statement of principle, which was

recently reaffirmed in this Court in Stollery v Greyhound

Racing Control Board [1972] HCA 53; (1972) 128 CLR 509, at pp 518-519 does

go to the heart of the matter. It is of fundamental

importance that the public should have confidence in the

administration of justice. If fair-minded people reasonably

apprehend or suspect that the tribunal has prejudged the

case, they cannot have confidence in the decision. To repeat

the words of Lord Denning MR which have already been cited,

'Justice must be rooted in confidence: and confidence is

destroyed when right-minded people go away thinking: "The

Judge was biased".'"

24. Whilst the High Court was concerned with a judicial tribunal, the principles it enunciated also are of application to a statutory tribunal upon which is conferred the power to make discretionary decisions, such as whether or not a planning permit ought to be granted (R v City of Whyalla; Ex parte Kittel (1979) 20 SASR 386; R v City of Marion; Ex parte Independent Grocers Co-operative Ltd (No 1) (1984) 37 SASR 415; R v City of Marion; Ex parte Independent Grocers Co-operative Ltd (No 2) (1984) 37 SASR 436; Lower Hutt City Council v Bank (1974) 1 NZLR 545 at 549-551) although the nature of the tribunal may govern the precise ambit and nature of the principles which govern the exercise of a particular jurisdiction.

25. Of relevance is the way in which local government councils are elected. 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.

26. The law has conferred a variety of powers upon municipal councils. Some of those powers, such as the making of by-laws and planning schemes, clearly are legislative in nature. Instruments made by them have the force of law and operate as local legislation within the relevant municipal district. Other functions, such as the power to grant planning permits, are of an entirely different nature. The power to grant a planning permit is one to be exercised in accordance with the law and in particular in accordance with the provisions of the relevant planning scheme and s51. Whilst those provisions permit of the formation and application of subjective judgments on particular matters, the matters taken into account must be relevant to the exercise of the discretion.

27. For example, a refusal of the present application upon the basis that the prosecutor previously had committed a breach of the planning scheme would have been a decision made by reference to an entirely irrelevant consideration and not by reference to the considerations made relevant by the law. Similarly, a decision to refuse the present application by reference to a predetermined policy that no advertising signs would be allowed within the town of Strahan would not have been in accordance with the law because such a policy would have negated the provision of the planning scheme which provided that the use of land for that purpose was a discretionary use. Mere fixed views as to particular matters which are relevant to the exercise of the discretion conferred by s51, even if strongly expressed, ought not of themselves to be seen as a disqualifying factor. By conferring the role of a planning authority on a municipal council, the legislature may be assumed to have been aware of the nature of such a council and in particular that it is constituted by elected councillors.

28. Counsel for the respondent placed particular reliance on the judgment of Sopinka J in Old St Boniface Residents' Association Inc v City of Winnipeg (1990) 75 DLR (4th) 385 at 408-409:

"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."

29. With respect, I would agree with those observations in general terms, although I note that the court was concerned with a legislative function of a city council, albeit one only to be exercised after affording affected persons the opportunity to be heard. The two principal cases relied upon by Sopinka J, namely Re Cadillac Development Corporation Ltd and City of Toronto (1973) 39 DLR (3d) 188 and Re Oley and City of Fredericton (1984) 15 DLR (4th) 269, also were cases of that nature.

30. R v Amber Valley District Council, Ex parte Jackson (1985) 1 WLR 298 concerned an application for planning permission made to a council by a company to enable it to use land owned by the council as a recreation and leisure centre, the company having entered into a contract with the council whereby the former was appointed to manage the proposed development. Representations were made opposing the grant of a permit. Before the council was due to consider the application, the local group of the political party having a majority on the council resolved to support the application. The person who made the representation sought prohibition restraining the council from considering the application on the basis that its decision was likely to be biased and unfair and contrary to its statutory duty. Woolf J refused to grant the relief sought, making the following observations (at 307-308):

"I fully accept, particularly having regard to the

authorities to which I have referred, that there is an

obligation upon the district council to deal fairly with the

applications by KLF for planning permission and that in that

sense the principles of natural justice apply to the

consideration of an application for planning permission.

Furthermore, I agree that this court has the right to

intervene to prevent an application being dealt with in an

unfair manner or contrary to the principles of natural

justice by the district council. However, I cannot accept

that Webster J's test (in Steeples v Derbyshire County

Council (1985) 1 WLR 256 at 288) can be applied in this

situation. It is much easier for the court to interfere on

the basis of procedural unfairness than on the basis of bias

of the sort alleged in this case. It is to be noted that it

is not alleged here that the district council has entered

into any contract which precluded it from exercising an

independent judgment as was alleged against the county

council. Nor is it alleged that any individual district

councillor has some personal financial interest. My

conclusion as to what the evidence shows in this case is that

it indicates that the majority of the district council can

only be said to be 'biased' in the sense that they are as the

respondent's counsel contends 'politically predisposed' in

favour of the development in respect of which planning

permission is sought. It has become the Labour group's

policy to support the development. It is therefore likely

that any Labour member of the planning committee will be more

ready to grant planning permission than he would be if the

Labour group had remained adverse to the development. But

does this have the effect of disqualifying the Labour

majority from considering the planning application? It would

be a surprising result if it did since in the case of a

development of this sort, I would have thought that it was

almost inevitable, now that party politics play so large a

part in local government, that the majority group on a

council would decide on the party line in respect of the

proposal. If this was to be regarded as disqualifying the

district council from dealing with the planning application,

then if that disqualification is to be avoided, the members

of the planning committee at any rate will have to adopt

standards of conduct which I suspect will be almost

impossible to achieve in practice.

The rules of fairness or natural justice cannot be regarded

as being rigid. They must alter in accordance with the

context. ... I do not consider the fact that there is a

declaration of policy by the majority group can disqualify a

district council from adjudicating on a planning application.

It may mean that the outcome of the planning application is

likely to be favourable to an applicant and therefore

unfavourable to objectors. However Parliament has seen fit

to lay down that it is the local authority which has the

power to make the decision and an applicant for planning

permission in the normal way is entitled to have a decision

from the local authority ... "

31. The test laid down by Webster J in Steeples v Derbyshire County Council (supra) referred to by Woolf J is the following:

"... what amounts to a fetter upon the discretion in

question? In the absence of direct authority on this

question it seems to me that anything constitutes a fetter

for this purpose at the very least if a reasonable man would

regard it as being likely to have a material and significant

effect one way or another on the outcome of the decision in

question; and it may very well be that something appearing to

have less of an effect than that might constitute a fetter."

32. Whilst it may be said that the view taken in R v Amber Valley District Council, Ex parte Jackson (supra) is somewhat more liberal than that taken in R v City of Marion; Ex parte Independent Grocers Co-operative Ltd (No2) (supra) and the other South Australian cases which I have mentioned, none of the relevant authorities suggest that the nature of the body upon which the legislature has conferred the functions of a planning authority may not be taken into account in determining the content of that body's duty to act fairly.

33. 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.

34. Leaving aside the making of representations concerning the application for a planning permit the subject of the present proceedings, I do not consider that the evidence discloses any conduct or association of Cr Gerrity from which it might be concluded that he would consider the prosecutor's application other than fairly in the relevant sense. In particular, I do not consider that his making of an application for a civil remedy against the prosecutor does not amount to such conduct. The application did not proceed by reference to whether a permit ought or ought not to be granted to the prosecutor, but upon the basis that the sign, as erected, contravened the provisions of the planning scheme. The Tribunal held that it did contravene the planning scheme and granted a civil remedy. A desire to enforce a planning scheme, if necessary by means of a civil remedy, is one which it is perfectly reasonable to have, regardless of any view as to whether or not a permit ought to be granted to allow that which in the absence of a permit is unlawful. It may be thought to be unwise for a councillor to take such a step in relation to a contravention of a planning scheme enforceable by the council of which he is a member when the contravention does not affect his personal interests. Merely because taking such a step is unwise does not mean that it indicates bias in relation to a subsequent application for planning approval which would make lawful that which thenceforth had been unlawful.

35. That leaves the matter of the making of the representations concerning the prosecutor's application for a permit. The question is whether by reason thereof Cr Gerrity had already decided the application before it came before the Council (Re Macquarie University; ex parte Ong (supra)) or gave reason to fair minded persons to apprehend that he had already decided it (R v Watson; Ex parte Armstrong (supra)), thereby disqualifying him from participating in the decision making process so that it was invalid by reason of his participation (Stollery v The Greyhound Racing Control Board (supra)).

36. Whilst I leave open the question whether Cr Gerrity's conduct disclosed actual bias in the relevant sense, the fair-minded and responsible bystander might reasonably assume that having committed himself to a position evidenced by that representation he had closed his mind to the possibility of doing other than voting against the proposal. Cr Gerrity had a choice. He could choose to exercise his statutory right, not derived from his status as a councillor, to make representations and in that event have the rights conferred upon persons who make representations. Alternatively, he could consider the relevant material properly before the council and speak to any motion to grant or not to grant a permit. To do both was to make himself to some extent a judge in his own cause.

37. Cr Gerrity caused material, of which he was the author, to be placed before the respondent. By force of law, that material became part of that which the respondent was required to consider before determining the application. By making representations having statutory significance, Cr Gerrity moved from being an elected representative who held strong views on relevant planning matters to being, in effect, a party to the application before the respondent. He moved from being a decision maker, albeit one with strong views, required to judge all relevant material placed before the respondent by others to being the author of some of that material, being material of a highly partisan character. By his representations he unequivocally committed himself to a position. The reasonable bystander could not but apprehend that Cr Gerrity would adhere to that position regardless of what other material might be put before the respondent or of what other arguments might be advanced. On an application of the principles laid down in Stollery v The Greyhound Racing Control Board (supra), Cr Gerrity's participation in and presence at the discussion concerning the prosecutor's application vitiated the whole decision making process.

38. It follows that the basis for relief has been made out by the prosecutor. Counsel for the prosecutor submitted that in those circumstances the Supreme Court Civil Procedure Act 1932, s75(12)(b) entitles the prosecutor to relief by way of certiorari. As I understand counsel's submission it proceeds upon the basis that the word "determination" is to be equated with the record as referred to in many of the cases and that the record for present purposes includes the relevant minute which discloses Cr Gerrity's participation in the decision making process and the representations made by him which formed part of the material necessarily before the respondent in relation to the decision making process. I considered that question in R v The Minister Administering the Fisheries Act 1963; Ex parte National Australia Bank Ltd A57/1990 at 28-32. I adhere to the views which I there expressed insofar as they related to the meaning of the word "determination" appearing in s75(12)(b). In my view the "determination" in this case is the relevant material contained in the minutes of the respondent. Nothing contained in the minutes discloses illegality. Accordingly I hold that s75(12)(b) does not apply to this case.

39. However the decision of the Full Court in R v Minister for Sea Fisheries; Ex parte National Australia Bank Ltd (1991) Tas R 70 is authority for the proposition that in a case to which s75(12)(c) applies, and that paragraph applies to this case, there is no discretion to withhold relief except where the applicant for relief has engaged in such conduct as disentitles him to require the enforcement of his right. Counsel for the respondent submitted that I was free to, and ought to, depart from what was decided in that case upon the basis that it was inconsistent with the earlier decision of the Full Court in R v Tasmanian Racing and Gaming Commission; Ex parte Heatley A69/1976, noted at (1976) Tas SR (NC 21). I do not consider there to be any inconsistency between the two cases. The reference by Neasey J in Heatley, at 3, to the Supreme Court Civil Procedure Act, s86 containing "a general saving provision in relation to common law jurisdiction in respect of certiorari" must be understood by reference to the nature of s86, namely a provision which saves the jurisdiction of the court to grant (inter alia) certiorari notwithstanding the earlier provisions of the Act. There is no warrant for construing s86 in any way as cutting down jurisdiction otherwise conferred by the Act. Nothing that was said by Neasey J would justify such a conclusion.

40. It is not entirely clear from the respondent's submissions as to whether it asserted disentitling conduct within the meaning of s75(12)(c) on the part of the prosecutor. The respondent made a number of submissions concerning the action of the prosecutor in appealing against the determination sought to be impugned to the Tribunal, its conduct in not being ready for the hearing of that appeal when it was due to be heard and its delay in seeking the relief sought in the present proceedings. None of these matters can amount to disentitling conduct, in particular because the conduct on the part of Cr Gerrity which is complained of and justifies the grant of relief was not known to the prosecutor at the time that it instituted its appeal to the Tribunal.

41. The respondent also submitted that I should not grant any relief to the prosecutor until the appeal to the Tribunal has been determined. For the proposition that I should not grant relief until the Tribunal has determined the appeal, the respondent principally relied on Calvin v Carr [1979] UKPC 1; (1980) AC 574 at 595-596. However that case is of no assistance to it. In that case the Privy Council expressly approved Reid v Rowley (1977) 2 NZLR 472 where the New Zealand Court of Appeal held that the availability of a right of appeal to an administrative tribunal does not normally cure a breach of natural justice by a tribunal of first instance so as to deprive the courts of jurisdiction to redress the breach but that the availability of such right may be taken into account in considering the grant of discretionary remedies. What was held in Reid v Rowley confirms that there is jurisdiction to grant relief in the present case. As the grant of that relief is a matter of right and not discretion the availability of the right of appeal to the Tribunal is of no relevance. There is no occasion to delay the determination of the present proceedings until after the determination of the appeal to the Tribunal. The prosecutor was entitled to a lawful determination of its application by the respondent. It has yet to have that.

42. Some mention ought to be made of the Act, s59. Read literally, that section could have some unusual results. If the deemed decision referred to in s59(1) amounts to a deemed grant of a permit, then it might be said that by not making an application under s59(3) an applicant having the benefit of such a deemed decision acquires a permit which does not have attached to it any conditions. However of immediate concern is whether the quashing of the respondent's determination would result in a deemed decision by operation of s59(1). If that would be the result of the quashing of the determination there would be no occasion to grant mandamus.

43. I tend to the view that the rather convoluted provisions contained in s59 were intended to provide a remedy akin to that formerly provided, in a somewhat more satisfactory form, by the Local Government Act 1962, s758(2). The obvious purpose of s59(1) is to ensure that planning authorities deal with applications for permits promptly and, if they do not do so, to enable applicants to have the matter determined by the Tribunal. Despite my quashing the determination, there has been no failure of the respondent to determine the application within the meaning of s59(1) so that s59 has no application.

44. For these reasons I consider that the prosecutor ought to have relief to the effect of that which it seeks. It is unnecessary to consider the further grounds which I permitted the prosecutor to argue.

1 That the determination made by the respondent on 15

November 1994 concerning the application made by the

prosecutor for a permit under the Land Use Planning and

Approvals Act 1993, s51, be quashed.

2 That the respondent hear and determine that application

according to law.