NSWNSWLEC

Reisinger v Placek

[2025] NSWLEC 11

Land and Environment Court (NSW)|2024-11-28|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-11-28

Before

Pain J

Catchwords

[2019] HCA 50 Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513
[1998] FCA 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63 Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304
[2019] NSWCA 68 Ho v Professional Services Review Committee [2007] FCA 603 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438

Source

Original judgment source is linked above.

Catchwords

[2019] HCA 50 Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513[1998] FCA 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304[2019] NSWCA 68 Ho v Professional Services Review Committee [2007] FCA 603 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438[2002] HCA 51 Hunter's Hill Council v Minister for Local GovernmentLane Cove Council v Minister for Local GovernmentMosman Municipal Council v Minister for Local GovernmentNorth Sydney Council v Minister for Local GovernmentStrathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1[2017] NSWCA 188 Isbester v Knox City Council (2015) 255 CLR 135[2015] HCA 20 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70[1990] HCA 31 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504[2008] NSWCA 209 Mosman Municipal Council v Minister for Local Government (No 2) (2017) 228 LGERA 38[2017] NSWCA 255 Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162[2009] NSWCA 300 Nichols v Singleton Council (No 2) [2011] NSWSC 1517 Oshlack v Richmond River Council (1998) 193 CLR 72

Judgment (24 paragraphs)

[1]

Solicitors: Michael Bowyer Advisory (Applicant) Bray, Jackson & Co (First and Second Respondents)

[2]

Submitting appearance (Third Respondent) File Number(s): 2024/00365597 Publication restriction: No

[3]

JUDGMENT

The Applicant Mr Reisinger lives next door to the First and Second Respondents Peter Placek and Andrea Koupilova in Vaucluse. The Third Respondent Woollahra Municipal Council (the Council) approved a development application made by the First and Second Respondents in 2024 for an inclinator on their property (2024 DA). In the amended summons for judicial review filed in Court at the hearing the Applicant seeks a declaration that the 2024 DA is invalid and of no effect.
The relief sought in the Further Amended Summons filed with leave after the hearing is an order: 3B … that the Council refer the 2024 DA to: (a) the local planning panel constituted by the Council: or (b) a person, not being an employee of the Council, to whom the function of determining the DA is validly delegated; for determination, on behalf of the Council.
The Council the Third Respondent filed a submitting appearance. The Applicant bears the civil onus of proof of establishing his case.
The First and Second Respondents filed an earlier development application in 2023 (2023 DA) for an inclinator which was approved by the Council. Construction work has been carried out pursuant to the 2023 DA. The 2023 DA was subject to challenge by the Applicant in judicial review proceedings heard by Justice Pritchard (2023 Proceedings). Before judgment was delivered those proceedings were discontinued because the 2024 DA was approved and a condition of consent required the surrender of the 2023 DA. The 2023 DA was surrendered on 16 October 2024.
It is agreed that the developments applications are largely identical except for two aspects. I was informed that the 2024 DA locates the motor and the standing location of the pre-fabricated car in different locations to the 2023 DA.
As a result of discussion at the outset of the hearing I understand that the main construction work has been carried out by the First and Second Respondents lawfully pursuant to the 2023 DA and the remaining work necessary to complete the project is electrical work and installation of the pre-fabricated car which does not require building work. The principal outstanding issue that remains were the Applicant to be successful is whether approval of the use of what has otherwise been built should be granted.
There is one ground of review, relying entirely on the principle in R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at 35-36 (Hardiman). The further amended summons states in part that '[in] the premises, in light of the active role played by the Third Respondent in defending the 2023 Consent in the 2023 Proceedings, and its refusal to have the 2024 DA independently assessed, a fair-minded lay observer might apprehend that the Third Respondent might not have brought an impartial and unprejudiced mind to the determination of the 2024 DA'.
This is the first time in this Court, and possibly any other court, where reliance has been placed solely on the Hardiman principle as founding an apprehension of bias such that a later administrative decision should be declared invalid. As the cases referred to by both parties identify, the Hardiman principle has generally played a role in two different contexts. Firstly, in relation to costs and whether a participating decision-maker should obtain or be subject to costs following substantive judicial review proceedings in which it participated, for example Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack), Henroth Investments Pty Ltd v Sydney North Planning Panel (2019) 239 LGERA 304; [2019] NSWCA 68 (Henroth), Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 (Murlan). Secondly, where a judicial review challenge is upheld and an administrative decision declared invalid whether on remitter for re-determination of a matter there is a need to avoid the perception that a decision-maker would not bring an impartial mind to bear on the decision required, for example Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513; [1998] FCA 3, Ho v Professional Services Review Committee [2007] FCA 603, Nichols v Singleton Council (No 2) [2011] NSWSC 1517. All the cases considered substantive grounds of administrative review in determining whether a decision was invalid before then considering the Hardiman principle in these two aspects.
Another novel aspect of these proceedings is the relief sought as set out above. The orders sought assume the Court can make an order directing the Council to conduct the assessment of the 2024 DA in the manner specified if the Applicant is successful. Whether the Council, and separately the Court, has power to make such an order on either alternative basis arises. If the Council does not have such power the Court does not either. Assuming there is such power whether the Court's discretion should be exercised to make such an order must be considered. Although probably able to be cured by an amended order, the relief sought also assumes that the First and Second Respondents will pursue the 2024 DA. Theoretically the First and Second Respondents may wish to withdraw it or lodge another development application.

[4]

Factual background

The parties agreed the following facts: The Parties 1. The Applicant, Mr Josef Reisinger, is the registered proprietor of land commonly known as 160 Hopetoun Avenue, Vaucluse NSW. 2. The First and Second Respondents Mr and Mrs Placek, are the registered proprietors of land commonly known as 158 Hopetoun Avenue, Vaucluse NSW. 3. 158 Hopetoun Avenue and 160 Hopetoun Avenue are adjoining properties and share a common boundary. 4. The Third Respondent, Woollahra Municipal Council (Council), is the Council for the local government area in which 158 and 160 Hopetoun Avenue are situated. 5. On receipt of development applications or modification applications, relevant Council Officers, being the Manager and Team Leaders of Development Assessment and the relevant referral department representatives attend the Development Application Review Committee ("DARC") Meeting to assess new applications and determine referral requirements, including external referral bodies and additional information required. The 2023 DA 6. On 23 August 2023 a development application for a new external inclined passenger lift and associated works on land at 158 Hopetoun Avenue, Vaucluse NSW was lodged and allocated a Council application reference number 'DA297/23' (2023 DA). 7. Council's Development Engineer reviewed the 2023 DA and considered that it did not require a referral. 8. Council's Trees and Landscape Officer reviewed the 2023 DA and considered that it required a referral. 9. Council's Heritage Officer reviewed the 2023 DA and considered that it did not require a referral but provided minor comments. 10. Council's Traffic and Parking Engineer reviewed the 2023 DA and considered that it did not require a referral. 11. Council's Sustainability Officer was identified as requiring a referral but advised by email dated 26 September that a referral was not required. 12. An assessment report for the 2023 DA was prepared by Christopher Hartas, Council Development Assessment Officer. 12. The 2023 DA was determined by Thomass Wong by the grant of development consent (2023 Consent). 14. Thomass Wong held the ostensible position of 'Team Leader - Development Assessment'. The 2023 Proceedings 15. On 28 November 2023 a Summons was filed by the Applicant commencing Land and Environment Court Proceedings No. 430567 of 2023 (2023 Proceedings). 16. On 20 December 2023, the Council filed an unconditional notice of appearance in the 2023 Proceedings. 17. The Council took an active role in the 2023 Proceedings as contradictor. 18. The Council adopted a position that in the event the grounds in the Amended Summons was made out, relief would not be granted as a matter of discretion. Notice of Motion for an expedition and interlocutory injunction 19. On 26 June 2024 the Council made submissions to the Court on the Applicant's Notice of Motion filed 26 June 2024 in the 2023 Proceedings against the grant of an interlocutory injunction. 2024 DA & 2024 Consent 20. On 4 July 2024 a development application (ref DA238/2024/1) described as for 'construction of new inclinator from the dwelling to the lower part of the rear yard' on land at 158 Hopetoun Avenue was lodged by Peter Downes Designs Pty Ltd on behalf of the owners of the land, the First and Second Respondents to these proceedings (2024 DA). … 22. … [T]he Council's Development Engineer reviewed the 2024 DA and provided recommended conditions of consent. 23. … [T]he Council's Heritage Officer reviewed the 2024 DA and raised no objection. 24. The 2024 DA was internally referred to: (a) Mr D. Prieto of Council's 'Landscaping' Department; (b) Mr L. Salvatore of Council's 'Health' Department 25. An assessment report for the 2024 DA was prepared by Mr K. Qi, Council Assessment Officer. 26. The 2024 DA was determined by Max Moratelli by the grant of development consent (2024 Consent). 27. Mr Max Moratelli held the ostensible position of 'Team Leader - Development Assessment' 2024 Proceedings 28. On 3 October 2024 these Class 4 Proceedings were commenced (2024 Proceedings).

[5]

Environmental Planning and Assessment Act 1979 (NSW) Part 2 Planning administration … Division 2.5 Local planning panels 2.17 Constitution of local planning panels (1) A council may constitute a single local planning panel for the whole of the area of the council. (2) The following councils must constitute a single local planning panel for the whole of the area of the council - (a) the council of an area that is wholly within the designated Sydney districts, (b) the council of the City of Wollongong, (c) the council of any other area prescribed by the regulations. (3) A single local planning panel may be constituted by 2 or more councils. In that case, any function exercisable by a council in relation to the panel is to be exercised jointly by all those councils. (4) The Minister may, under section 9.1, direct 2 or more particular councils referred to in subsection (2) to constitute a single local planning panel. (5) If a council fails to constitute a local planning panel that it is required to constitute, the Minister may constitute the panel and for that purpose is taken to be the council. (6) A local planning panel is subject to any directions of the Minister under section 9.1. (7) A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 9.1. 2.18 Members of local planning panels (1) The members of a local planning panel are to be appointed by the relevant council. (2) Each local planning panel is to comprise (subject to this section) the following 4 members - (a) an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration, (b) 2 other approved independent persons with relevant expertise, (c) a representative of the local community who is not a councillor or mayor. (3) A person is not eligible to be a member of a local planning panel constituted by a council if the person is - (a) a councillor of that or any other council … (4) For the purposes of this section, an approved independent person is an independent person approved by the Minister for appointment to the local planning panel or a person selected from a pool of independent persons approved by the Minister for appointment to the local planning panel. The Minister may approve different pools of independent persons. 2.19 Functions of local planning panels (1) A local planning panel constituted by a council has the following functions - (a) the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act, (b) to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 3.33 and that is referred to the panel by the council, (c) to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council. (2) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice. (3) This section does not limit the functions that may be exercised by a local planning panel under this Act. 2.20 Miscellaneous provisions relating to local planning panels… … (8) A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council. Section 381 of the Local Government Act 1993 does not apply to any such delegation. … Part 4 Development assessment and consent … Division 4.2 Consent authority 4.5 Designation of consent authority For the purposes of this Act, the consent authority is as follows - … (d) in the case of any other development - the council of the area in which the development is to be carried out. … 4.8 Exercise of consent authority functions on behalf of councils where local planning panel constituted (1) This section applies in respect of an area of a council for which a local planning panel has been constituted. (2) The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by - (a) the local planning panel, or (b) an officer or employee of the council to whom the council delegates those functions. (3) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel. (4) For the purposes of this section, the functions of a council as consent authority include - (a) the determination of development applications … Part 9 Implementation and enforcement Division 9.1 Ministerial and other enforcement powers 9.1 Directions by the Minister (1) The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction. (2) In addition to any direction which may be given under subsection (1), the Minister may direct a council - … (b1) on a matter relating to the establishment and procedure of a local planning panel, on the development applications (including applications to modify development consents) that are to be determined on behalf of a council by a local planning panel and on the planning proposals that are required to be referred to a local planning panel for advice …

[6]

Local Government Act 1993 (NSW)

Powers of delegation and the role of staff of a council are addressed in the LG Act as follows: Chapter 11 How are councils staffed? … Part 5 Other provisions concerning staff … 352 Independence of staff for certain purposes (1) A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member. (2) This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation. … Chapter 12 How do councils operate? … Part 3 Delegation of functions 377 General power of the council to delegate (1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following - (a) the appointment of a general manager … (t) this power of delegation, (u) any function under this or any other Act that is expressly required to be exercised by resolution of the council. … (2) A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Departmental Chief Executive except as provided by the instrument of delegation to the council. … 378 Delegations by the general manager (1) The general manager may delegate any of the functions of the general manager, other than this power of delegation. (2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council). (3) Subsection (2) extends to a function sub-delegated to the general manager by the council under section 377(2).

[7]

Council's Code of Conduct

The Council adopted a Code of Conduct which was last reviewed on 9 October 2024 as required by s 440 of the LG Act. It incorporated the Model Code of Conduct of Local Councils in NSW as required. The Code of Conduct states in part: 7 Relationships between Council Officials Obligations of Councillors and administrators … 7.2 Councillors or administrators must not: a) direct Council staff other than by giving appropriate direction to the General Manager by way of Council or committee resolution, or by the Mayor or administrator exercising their functions under section 226 of the LGA b) in any public or private forum, direct or influence, or attempt to direct or influence, any other member of the staff of the Council or a delegate of the Council in the exercise of the functions of the staff member or delegate c) contact a member of the staff of the Council on Council-related business unless in accordance with the policy and procedures governing the interaction of Councillors and Council staff that have been authorised by the Council and the General Manager d) contact or issue instructions to any of the Council's contractors, including the Council's legal advisers, unless by the Mayor or administrator exercising their functions under section 226 of the LGA. … Obligations of staff … 7.5 Members of staff of Council must: a) give their attention to the business of the Council while on duty b) ensure that their work is carried out ethically, efficiently, economically and effectively c) carry out reasonable and lawful directions given by any person having authority to give such directions d) give effect to the lawful decisions, policies and procedures of the Council, whether or not the staff member agrees with or approves of them e) ensure that any participation in political activities outside the service of the Council does not interfere with the performance of their official duties. … Inappropriate interactions 7.8 You must not engage in any of the following inappropriate interactions: a) Councillors and administrators approaching staff and staff organisations to discuss individual or operational staff matters (other than matters relating to broader workforce policy), grievances, workplace investigations and disciplinary matters b) Council staff approaching Councillors and administrators to discuss individual or operational staff matters (other than matters relating to broader workforce policy), grievances, workplace investigations and disciplinary matters … i) Councillors and administrators directing or pressuring Council staff in the performance of their work, or recommendations they should make …

[8]

2023 DA Correspondence

A Notification of the 2023 DA dated 13 September 2023 was sent to properties identified by the Council to be notified and stated Mr Chris Hartas was the assessment officer for the 2023 DA;
A letter dated 20 September 2023 was sent to Mr Moratelli at the Council by the Applicant in which the Applicant stated that he objected to the 2023 DA, outlined his preliminary objections to the 2023 DA and stated that he would provide a further comprehensive submission to Council within 4 weeks;
A letter dated 26 September 2023 sent to the Applicant by Mr Economou, Manager Development Assessment at the Council, acknowledged the Applicant's objection and said it had been referred to Mr Hartas;
A letter dated 3 October 2023 sent to Mr Economou by the Applicant stated that the letter dated 26 September 2023 had not acknowledged the timing of the Applicant's further comprehensive submission which would be provided by 20 October 2023 and requested that Mr Hartas confirm the comprehensive submissions would be considered within assessment of the 2023 DA;
An email sent by Mr Hartas to the Applicant on 4 October 2023 said that he would consider a detailed objection in his assessment if received prior to his final determination.

[9]

2024 DA Correspondence

A letter dated 8 August 2024 was sent to Mr Qi, designated assessment officer for the 2024 DA by the Applicant's solicitor seeking an extension of time to make further submissions regarding the 2024 DA;
An email was sent on 8 August 2024 to the Applicant's solicitor from Mr Qi granting a 10-day extension to the Applicant for submission of objections;
A Letter of Objection to the 2024 DA dated 19 August 2024 was sent to the Council for the attention of Mr Qi from DM Planning on behalf of the Applicant;
A Letter of Objection to the 2024 DA dated 19 August 2024 was sent to the Council for the attention of Mr Qi from the Applicant's solicitor which stated inter alia that a Council delegate determining the 2024 DA would breach the Hardiman principle given the Council's active involvement in defending the 2023 Proceedings and give rise to an apprehension of bias. The Applicant's solicitor wrote that as a result, determination of the 2024 LEC should be delegated to an independent expert (19 August 2024 Letter);
A letter dated 19 August 2024 was sent to the Applicant's solicitor from the Council acknowledging receipt of the Applicant's submission and noting it had been referred to Mr Qi;
An email was sent on 28 August 2024 to Mr Qi from the Applicant's solicitor requesting a response to the 19 August 2024 Letter;
An email was sent on 2 September 2024 to the Applicant's solicitor by Mr Moratelli, stating that the 19 August 2024 Letter had been reviewed and that at this stage 'we have determined that it is not necessary to re-allocate' the 2024 DA;
A Development Application Assessment Report authored by Mr Qi recommended approval of the 2024 DA. The end of the report stated: I Mr M Moratelli, Team Leader North East hereby concur with the recommendation contained in this report. This application may be determined pursuant to the delegation issued to me by the General Manager on 1 December 2023. Before exercising this delegation I: Reviewed the Officer's report Considered all relevant matters for consideration under Section 4.15 of the Environmental Planning and Assessment Act 1979. Mr K Qi ASSESSMENT OFFICER Mr M Moratelli TEAM LEADER Both officers signed the report.

[10]

Applicant's submissions

The Applicant submits that the Hardiman principle applies so as to underpin an apprehension of bias in the Council's determination to approve the 2024 DA given the Council's active participation in the 2023 Proceedings. Various cases identify the importance of the Hardiman principle, accepting this has to date been in the context of costs and/or the scope of remitter following the successful challenge to a decision: see Hardiman at 35-36, Oshlack at [12] (Gaudron and Gummow JJ), Muin at [25] (Gleeson CJ), Henroth at [56]. Given the low threshold for the test for apprehension of bias identified in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) there is no reason to limit its application to those circumstances. The fundamental object served by adherence to the Hardiman principle is to avoid the perception that a decision-maker on remitter would not bring a fresh and impartial mind to bear on the issue he or she is required to consider if the matter is remitted. Accordingly, a decision-maker may be disqualified from further involvement if its participation in litigation gives rise to a reasonable apprehension of bias.
The test of apprehension of bias identified in Ebner and more recently in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 (Isbester) identifies two steps. Recently Kiefel CJ and Gageler J have referred to a third step that reasonableness must be assessed from the perspective of a fair-minded lay observer: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [38] (Kiefel CJ and Gageler J), CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J), Isbester at [59] (Gageler J). The principles of apprehended bias apply to consent authorities under the EPA Act. A council is a consent authority under s 4.5(d) of the EPA Act. Such a function is exercised on behalf of a council by the body or position holder specified in ss 4.8(2)(a)-(b).
A local planning panel is independent of the Council: EPA Act s 2.17(7). Its members must be independent and have relevant expertise and it is not subject to the direction of a council: EPA Act ss 2.18(2)-(4). The position of a council employee is in a different category. The independence, or at least the perception of independence by a lay observer, is substantially lessened in the case of a delegate or sub-delegate employed by the Council. That is all the more so depending upon the level of subordination that the office holder occupies in the organisational hierarchy of the Council.

[11]

First and Second Respondents' submissions

No authority supports the Hardiman principle applying to invalidate a substantive decision made. The principle has been applied only in the context of arguments in relation to costs or orders for exclusionary remitter. Further in the absence of any decision or finding in the 2023 Proceedings the Hardiman principle cannot operate.
Active participation in the 2023 Proceedings cannot give rise to the Hardiman principle where the 2024 DA was approved by a different delegate of the Council.
The delegate who approved the 2024 DA was an expert qualified town planner supplied with a report from Mr Qi as an independent planning panel would have been so that 'independent assessment' in the manner sought in the relief based on the Hardiman principle does not arise.
No reasonable apprehension of bias is demonstrated on the facts.
In relation to the relief sought there is no power under the EPA Act or LG Act for the Council to refer the determination of a development application to a person independent of the Council.

[12]

Conclusion on whether basis for apprehension of bias

[13]

Hardiman principle in context

The Hardiman principle as identified by the Applicant provides that a tribunal or administrative decision-maker should refrain from taking an active role in proceedings challenging its decisions due to a risk that doing so creates an apprehension of bias in subsequent applications to it in relation to the same matter: Hardiman at 35-36.
Presentation of a case by a tribunal in relation to an appeal of its decision is 'exceptional': Hardiman at 36. The principle has been extended to administrative decision-makers, including councils: Oshlack at [46] (Gaudron and Gummow JJ), Murlan at [76]-[77] (Basten JA). Relevantly, if a Council has granted or refused a development application, it is expected to maintain impartiality in proceedings relating to that application lest it 'endanger the impartiality it would be expected to maintain upon any subsequent applications to it which might ensue were relief granted to the appellant': Oshlack at [12] (Gaudron and Gummow JJ). A council must avoid the perception that it has become a 'protagonist' in proceedings.
The Applicant identified three possible exceptions to the application of the principle, namely where the decision-maker makes submissions relating to its powers and procedures: Hardiman at 36, where there is no other contravener: Henroth at [56], or where there is no possibility of a remitter of the original application or one that is substantially the same. The exceptions are not closed: Murlan at [80] (Basten JA, Macfarlan JA agreeing).
Application of the Hardiman principle will depend on the particular circumstances before a court. A principal purpose in the cases considering it to date is to preserve the impartiality of a statutory decision-maker in subsequent decisions made after error by the decision-maker has been found and a fresh decision is to be made. No error by the Council was found by the Court in relation to the 2023 DA as the 2023 Proceedings were discontinued.

[14]

Apprehension of bias

The Applicant submits that because the Council acted inconsistently with the Hardiman principle its approval of the 2024 DA is affected by an apprehension of bias and is invalid. In Isbester, Kiefel, Bell, Keane and Nettle JJ expressed the 'double might' test in Ebner as follows (footnotes omitted) (at [21]): The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.
A third step is that the 'double might' test is applied in the context of the hypothetical fair-minded lay observer: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 at [38] (Kiefel CJ and Gageler J), CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J), Isbester at [59] (Gageler J).
The state of knowledge of the fair-minded lay observer includes that they are informed about the actual circumstances of a case: see McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [78] (Basten JA) (McGovern) citing Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at [87] (Mason CJ and Brennan J) (Laws). As Basten JA identified at [79]-[80] that state of knowledge to be attributed to them includes general understanding. The attribution of information is for the purpose of deciding whether there is a real possibility he or she would apprehend that the decision-maker might have a closed mind: at [83]. They can be taken to be aware of the nature of the decision, the context in which it was made and knowledge of the circumstances leading to the decision: Isbester at [23] (Kiefel, Bell, Kettle, Keane and Nettle JJ).
Because of my reasons below whether the Hardiman principle was breached by the Council's actions does not need to be resolved as a factual matter in my view. The preferable course is to assume the principle potentially could apply as a result of the Council's actions in the 2023 Proceedings.

[15]

No basis established for application of Hardiman principle in these circumstances

The application of the Hardiman principle in the manner asserted by the Applicant has not occurred before in any court in Australia so far as the Court is aware. No case was cited where a court declared invalid a development consent or any other decision solely because of the participation of the decision-maker in a court hearing process to defend an earlier decision where that court process was not finalised. As already identified the cases which consider the Hardiman principle follow the determination of substantive judicial review proceedings and concern the award of costs and whether an exclusionary remitter order ought be made. Conceptually in the absence of any substantive administrative law or similar error it is difficult to understand how the principle can be applied pre-emptively to prevent the Council, a necessary party to the proceedings as the decision-maker whose decision is challenged, from playing any active role regardless of the circumstances.
The Applicant emphasises the importance of the Hardiman principle and the particular circumstances in this matter whereby the 2023 DA and the 2024 DA are generally identical and that the Council took a very active role in the 2023 Proceedings, including opposing the grant of an interlocutory injunction which only affected the First and Second Respondents. Those circumstances, in the absence of any determination by a judge that the Council had legally erred in the approval of the 2023 DA, provide no basis for the principle to be applied. Seeking to apply the Hardiman principle in the manner sought essentially has it applying in a factual vacuum. In the absence of any findings of fact or error in relation to the 2023 DA approval by the Council, there is no finding of error or a decision by which a subsequent delegate can be said to have pre-judged the outcome necessitating consideration of the Hardiman principle.
In seeking to emphasise the gravity of the Hardiman principle, the Applicant relied on the council amalgamation cases Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government (2017) 224 LGERA 1; [2017] NSWCA 188 where Basten JA found that an exclusionary order on remitter was warranted in light of the error in decision-making found to have occurred on the part of the individual delegate in carrying out delegated duties in relation to council amalgamation proposals: at [349]-[358]. In the application to re-open proceedings on the basis (inter alia) that the Hardiman principle was not dealt with by the majority, Macfarlan JA and Sackville AJA found that 'in the particular circumstances of this case, the Delegate's contravention of the Hardiman principle [did] not give rise to a reasonable apprehension that the Delegate, if the matter was to be remitted, would be unable to bring an unprejudiced and impartial mind to the resolution of the one issue which, on the Court's reasoning, remains to be determined': Mosman Municipal Council v Minister for Local Government (No 2) (2017) 228 LGERA 38; [2017] NSWCA 255 at [63]. Their Honours quoted Laws at 100 (Gaudron and McHugh JJ), where it was said that disqualification would require a reasonable fear that the decision-maker's mind is 'so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her' (emphasis added), and considered the delegate would not be so prejudiced in this case: at [62]. The majority in that case and several others referred to by the First and Second Respondents suggest that generally an exclusionary remitter order is not made where the Hardiman principle does squarely arise following a finding of error on the part of a statutory decision-maker.

[16]

Statutory scheme means the Hardiman principle has no role

As identified in Isbester at [20] (Kiefel, Bell, Keane and Nettle JJ) the question of whether a fair-minded lay observer might apprehend a lack of impartiality by a decision-maker is a factual matter, in which the legal, statutory and factual context must be considered.
The assessment of an allegation of apprehension of bias must occur mindful of the statutory scheme under which a particular decision-maker is making an administrative decision, as emphasised by Spigelman CJ in McGovern at [6]-[7] cited in Isbester at [27] (Kiefel, Bell, Keane and Nettle JJ). Under s 4.5 of the EPA Act the Council was the consent authority under Part 4 of the EPA Act for both development applications.
The EPA Act enables the delegation of functions of an elected council to its officers, including the determination of development applications by council officers. Different assessment officers in the Council assessed the 2023 DA and the 2024 DA. Different authorised officers in the Council determined to approve the 2023 DA and the 2024 DA under their respective delegations. No criticism is made of the delegations made by the Council to the General Manager under s 4.8(2)(b) of the EPA Act, and by instrument of delegation to persons holding the office of 'Team Leader Development Control' pursuant to s 378 of the LG Act. No criticism is made of the assessment report prepared by Mr Qi for the 2024 DA. No criticism is made of Mr Moratelli's reasons for granting development consent to the 2024 DA.
The EPA Act requires that a development application be determined by a consent authority on the basis of the considerations in s 4.15(1) of the EPA Act. As the First and Second Respondents submitted, any action taken by the Council through its lawyers in the 2023 Proceedings is not relevant to that statutory determination. As the discussion below identifies there is no factual basis to assert that it was.

[17]

No apprehension of bias by delegate on facts

The basis for Mr Moratelli's decision to approve the 2024 DA, set out above at [28], was the assessment report of Mr Qi and his consideration of the factors in s 4.15(1) as he expressly states. The assessment officer and the delegated officer can be assumed to have town planning expertise in undertaking their duties in approving the 2024 DA. No evidence has been presented which can give rise to any inference that Mr Moratelli the Council's delegate for determination of the 2024 DA took into account the Council's action in taking an active role as a party in the 2023 Proceedings as part of his decision-making.
The circumstances of the determination of the 2024 DA by Mr Moratelli the delegated officer submitted to give rise to an apprehension of bias were the Applicant's solicitor's insistence that Mr Moratelli should have recused himself and the Council should have appointed an independent person external to the Council in the 19 August 2024 Letter. That submission was identified in the report of Mr Qi as part of the usual identification of submissions received from objectors. The Applicant seeks to conflate his position with the hypothetical fair-minded lay observer to be considered under the apprehension of bias test. This was done expressly in the 19 August 2024 Letter which stated that the Applicant was a fair-minded observer. A bootstraps argument was made that because the 19 August 2024 Letter set out the opinion that the Hardiman principle applied in the context of the 2024 DA and therefore required referral by the Council to an independent person outside the Council an apprehension of bias arose when the Council did not adopt that course. The Council was not required to adopt the position asserted by the Applicant's solicitor. Not doing so does not support a finding of apprehension of bias by a fair-minded lay observer aware of the factual circumstances of the decisions made by different delegates under the provisions in the EPA Act.
No evidentiary basis exists for attributing to Mr Moratelli any knowledge of or role in the determination of the 2023 DA. That the Applicant erroneously sent Mr Moratelli his objection to the 2023 DA in the letter dated 20 September 2023 in the absence of any other evidence cannot found a submission that Mr Moratelli was aware of the letter and certainly not that he had any role in the determination of the 2023 DA. No correspondence was sent by Mr Moratelli to the Applicant in relation to that objection or the 2023 DA generally. As the correspondence from other council officers to the Applicant in relation to the 2023 DA shows and as the Applicant was advised, different officers were dealing with the assessment and determination of the 2023 DA. No basis for applying Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 exists, the Applicant relying on Gleeson CJ at [22] that (footnotes omitted): Procedural unfairness can occur without any personal fault on the part of the decision-maker. But if the form of unfairness alleged is the actuality or the appearance of disqualifying bias, and that is said to result from the conduct or circumstances of a person other than the decision-maker, then the part played by that other person in relation to the decision will be important.

[18]

Council should not be considered as a whole

The Applicant's primary case was that because the function of approving a development application is a decision of the Council as a whole being a body politic (LG Act s 220(1)) then in the mind of the fair-minded lay observer the actions of the Council in one context, its active participation in the 2023 Proceedings must be attributed to all the Council's employees, regardless of what delegated functions they are performing. Sidney Harrison Pty Ltd v Corporation of the City of Tea Tree Gully (2001) 112 LGERA 320; [2001] SASC 27, where the South Australian Supreme Court held that a council had not validly approved a second application for a telecommunications facility, was said to support such an approach. The facts in that matter were quite different to this case as the council approving a telecommunications facility had a financial interest in that it would obtain rent from the use of its land: at [17]. The Applicant did not address the statutory scheme in South Australia which is important to understand the context for the decision. That case is of no assistance.
As already identified McGovern considered whether one or two biased councillors affected the decision of the whole 12 councillors. As a result of amendments to the EPA Act introduced in the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Act 2017 (NSW) which inserted inter alia s 23l (now s 4.8: Environmental Planning and Assessment Amendment Act 2017 (NSW)), elected councillors no longer approve individual development applications in a council area where a local planning panel has been constituted. Under s 2.17(2) councils in designated Sydney districts including the Council must constitute a local planning panel. Under s 4.8(2) a local planning panel or an officer or employee with delegated authority exercises the function of determining development applications. Under s 4.8(3) the relevant Minister can give directions under s 9.1 of when development applications are to be dealt with by local planning panels. Such a direction under s 9.1 has been issued, as summarised above at [13].
Local councils are generally large, complex organisations which out of necessity must operate through their officers in carrying out their many functions. Officers exercising statutory powers do so pursuant to a formal delegation. This statutory scheme can be considered a matter of which a fair-minded observer properly informed is aware and consequently I do not accept that the Council's actions are to be regarded as monolithic so that any action by a council as a corporate entity means that all council officers are to be assumed to adopt that position regardless of the duties they are undertaking. It follows that to the extent the Council's actions in the 2023 Proceedings were submitted to render it an antagonist of the Applicant, that approach should not be assumed to be the attitude of a delegated officer in the mind of the fair-minded observer aware of the statutory and factual context for the determination of the 2024 DA.

[19]

No apprehension of bias when delegated functions exercised

The assumed knowledge of the fair-minded observer asserted by the Applicant was selective. As the Applicant accepted a fair-minded observer would be aware of how councils operate and the mandatory Code of Conduct partly extracted above at [15]. The Applicant accepted the independence of a local planning panel from a council under the statutory regime in ss 2.17-2.20 of the EPA Act. The Applicant asserted a delegated council officer would be seen as less independent from a council.
No statutory or other basis exists to draw a distinction in relation to independence from a council between a local planning panel and a council officer exercising delegated functions, contrary to the submissions of the Applicant. As well as the provisions of the EPA Act concerning the delegation of functions and the determination of development applications in particular, the fair-minded observer can be assumed to be aware that the Code of Conduct extracted above at [15] exists, which under s 7.5(c) binds officers to carry out only reasonable and lawful directions given by any person having authority to give such directions and under s 7.8(i) prevents councillors and administrators directing or pressuring Council staff in the performance of their work, or recommendations they should make. Section 352 of the LG Act specifies that a member of staff is not subject to direction by the council or a councillor in relation to the provision of advice or a recommendation which applies to the preparation of the assessment report of Mr Qi. The basis for the Applicant submitting there was a lack of clarity in the application of s 352 is not apparent.
Further, the delegated officer, Mr Qi, had relevant expertise, as did the assessing officer, Mr Moratelli, which is another reason why additional independent assessment would not be warranted.
The Applicant who bears the onus of establishing his case has not done so as no evidence to support allegations of apprehension of bias based on the assumed application of the Hardiman principle have been identified. Applying the 'double might' test, in the mind of the hypothetical fair-minded lay observer, no apprehension of bias arises from the circumstances of the approval of the 2024 DA by the delegated officer because of the Council's actions in the 2023 Proceedings.
Given the applicable statutory regime there is no legal or other basis for applying the Hardiman principle in the novel manner contended for by the Applicant. As the Respondent submitted if there was a breach of the Hardiman principle by the Council taking an active role in the proceedings, that was cured by the determination of the 2024 DA by a different delegate.

[20]

Relief

As the Applicant is unsuccessful on the substantive case the question of relief does not arise for consideration. I do not need to determine whether the Court has power to direct a council in the exercise of its statutory function of determining a new development application in the terms sought by the Applicant of referral to a local planning panel or a person who is not an employee of the Council. Whether a council has statutory power to refer that decision under the EPA Act or another act in that manner would require determination. If a council does not have such power neither does the Court to make such an order. No case which has considered either of these options was referred to suggesting the Court has not been asked to consider this issue since the introduction of local planning panels in the EPA Act in 2017. The First and Second Respondents did not agree the Council has such referral powers under the EPA Act. The statutory interpretation issues which arose in the parties' arguments were complex and the answer for either referral option was not immediately apparent.
In any event, assuming that power existed to do so, whether the Court would exercise its discretion to make such an order in circumstances where a properly delegated officer has determined a matter in a way which is not otherwise criticised would have arisen.

[21]

In conclusion

The Applicant's summons is unsuccessful and will be dismissed.

[22]

Costs

The usual order in judicial review proceedings is that the unsuccessful party pays the legal costs of the successful party so that the Applicant would be liable for the First and Second Respondents' costs. The Third Respondent filed a submitting appearance save as to costs. The parties have not made any submissions on costs. The parties will be provided with two weeks to advise the Court of whether a different order to the usual order should be made. If no communication is received from any party the order will be made that the Applicant pay the First and Second Respondents' costs.

[23]

Order

The Court makes the following orders: 1. Summons 2024/00365597 is dismissed. 2. Costs are reserved.

[24]

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. Decision last updated: 26 February 2025

Reisinger v Placek

At a glance

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Judgment (24 paragraphs)

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Legislation Cited (4)

Cases Cited (32)