Sky Design and Concepts Pty Limited v Pittwater Council [2008] NSWLEC 313 | Case summary

JUDGMENT Introduction 1 His Honour: The applicant company appeals under s 56A of the Land and Environment Court Act 1979 against a decision by Commissioner Hoffman to reject the company's class 1 appeal against the Council's refusal of a development application seeking approval (in Commissioner Hoffman's words) "of an addition to an existing building to complete a four-storey house at 220 McCarr's Creek Road Church Point Pittwater". 2 Commissioner Hoffman heard the appeal on 12 February 2008. The court file contains detailed notes taken by Council's solicitor on the site inspection which commenced the proceedings on that date. At the conclusion of the hearing, the learned Commissioner reserved his decision, and he delivered his judgment on 7 May 2008 - see [2008] NSWLEC 1170. 3 Mr Stephen May, a licensed builder, who is a director of the applicant company and a resident on the subject site, appeared for the Applicant both before Commissioner Hoffman and before me. Council was represented by Ms MRM Carpenter of counsel before the Commissioner, and by Mr A Pickles of counsel on this appeal. Mr May tendered a comprehensive bundle of documents (Exhibit S1), and the transcript of the hearing (Exhibit S2). He had previously filed a Statement of Grounds of Appeal, and comprehensive written submissions, upon which he expanded orally at the hearing on 25 August 2008. Mr Pickles also filed written submissions and expanded on them orally at the hearing. 4 Like the Commissioner at first instance, I allowed Mr May substantial latitude in the way he presented his argument on this appeal, but I made clear to him that it could succeed only if he established an error of law on the part of the Commissioner. 5 This project has quite a history before the Council, and Mr May has many complaints about (1) the way the Council has dealt with it, (2) the way the Council conducted these proceedings, and (3) the Commissioner's decision in his class 1 appeal. The Class 1 appeal proceedings 6 Council has been prepared to entertain the building of a substantial residential project on this fairly confined and restricted site, but the company appears to have dealt with Council on an adversarial basis, and has declined to negotiate. 7 Council refused the relevant application on approximately ten grounds, a couple of which turn upon an asserted lack of adequate information produced by the Applicant. Several others turn upon what is considered to be unacceptable impacts on premises at 222 McCarr's Creek Road, largely in terms of solar access, privacy, and view sharing. The Statement of Environmental Effects asserted there were no undesirable impacts, but the evidence before the Commissioner clearly showed serious matters to be considered in this regard. The existing development on the site has little impact on No.222, but the present proposal appears to increase the level of impact substantially. Council is prepared to allow exceptions, but has declined this application on the basis that the proposed design creates unacceptable impacts. 8 On consideration of the transcript and the judgment, I find absolutely nothing to criticise in the way the Commissioner actually conducted the class 1 appeal. 9 Following the site visit there was little objection to the documentary material tendered as exhibits by each side. There were fruitful discussions between Mr May and Ms Carpenter regarding her issues with some of the form and content of one document Mr May sought to tender (Exhibit D before the Commissioner), and the remaining issues about it were then congenially resolved in dialogue with the Commissioner. The two advocates opened their respective cases in detail, and Mr May had every opportunity to cross-examine the council planner and the planner retained by the neighbour objector. Commissioner Hoffman clearly delineated his role in such appeal proceedings, and the need for the court to focus on the application at hand, rather than the history of the Applicant's "long running battle with council" over use of the site. The court sat late on the appointed hearing date so that Mr May could make his oral submissions in full. The Commissioner then took a substantial period of time to consider his decision. His judgment is clear and comprehensive. The Appellant's complaints about the Class 1 appeal 10 Mr May alleges a failure by the Commissioner to apply relevant and appropriate "planning principles". He also argues that the Commissioner took into account irrelevant considerations, and wrongly gave weight to, for example, a development control plan. He complains of the failure to require a SEPP 1 objection. He refers to many other alleged errors on the part of the Commissioner - inappropriate reference to a floor space ratio, an erroneous finding there was inadequate information available, refusal of the application for lack of a landscape plan and/or on the grounds of the height limit, wrongly dealing with the carport and view issues, erroneous interpretation of application of the foreshore building line, and wrongful acceptance of the evidence of Council's expert officer, Mr Chris Wilson. He claims that Council deliberately misled the Commissioner and presented false evidence before him, and that the Commissioner erred in allowing the Respondent's objection to parts of his written response to evidence presented by the Council, and failed to consider his submissions. He asserts that an incorrect finding/statement of fact amounts to an error of law. 11 Mr May also asserts that the applicant company was denied procedural fairness because of a conversation between Ms Carpenter and the Commissioner, outside the court and its processes, just prior to the delivery of the Commissioner's judgment on 7 May 2008. In essence, this is an allegation of apprehended bias, brought "after the event". Proceeding to judgment on the class 1 appeal if that bias ground were later found to be made out would amount to an error of law by the Commissioner. 12 I will proceed now to deal with the grounds of appeal based on the substantive proceedings, before returning to the procedural fairness/ "apprehended bias" ground. 13 Many of Mr May's arguments on this appeal repeated factual and merits arguments he made unsuccessfully before the Commissioner, where he argued he and his company "should be entitled" to do what they planned and desire on their valuable land. Clearly Mr May's intention in bringing this s 56A appeal is to have the development application now determined in his company's favour by a judge of the court, as a "higher authority" than Council or a Commissioner. Because of that, much of the material placed before the court on this s 56A appeal concerns factual matters and issues of merit (eg the height issue, foreshore building line, landscape proposals), but he tried to argue many of his points (see [10] above) as if they were, in essence, questions of law. See Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [6]-[16]. 14 The Commissioner's reasons for judgment may not have satisfied Mr May, but they clearly satisfy the tests laid down in the cases - see Roggiero v Valuer General (NSW) [2008] NSWLEC 170; (2008) 159 LGERA 411 at [21]-[28]. 15 It is clear from the judgment that the Commissioner carefully considered all the Applicant's submissions. He did not accept all of them, but he concluded that, despite the deficiencies in some of the material, there was sufficient information available to him to determine the appeal. In doing so he preferred the Applicant's submissions on that point to those of Council. 16 A perusal of the discussion about Exhibit D does not support Mr May's complaint about rejection of some of his evidence (T9-14). The Commissioner correctly noted that if numeric controls appear impractical to apply to a particular development application, the objectives of the various controls should be followed. Mr May's complaint about references to floor space ratio is unfounded, as the Commissioner clearly referred to it only to illustrate that the height, bulk and scale of the proposal were unacceptable. Mr May's assertion that an incorrect finding of fact amounts to an error of law cannot be accepted - Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. Likewise there is nothing advanced to support the allegation of "irrelevant considerations". 17 The Commissioner accepted Mr Wilson's evidence, it being the only truly expert planning evidence available to him. On behalf of the objector, another planner also gave evidence, and much latitude was allowed by the Commissioner in Mr May's cross-examination of both Mr Wilson and Mr Boston. Decisions on acceptance of witnesses, and on the weight given to evidence (eg the DCP), are questions of fact for the adjudicator. 18 The submissions regarding SEPP 1 are wrongly premised. No objection under SEPP 1 was lodged in this case, and none was appropriate in all the circumstances of this case. SEPP 1 cannot be used to render "approvable" that which is prohibited by an LEP (see T15), and no dispensation of a development standard was at issue here. 19 True it is, as Mr May submitted before both Commissioner Hoffman and myself, that this court has laid down in a series of decisions by the learned Senior Commissioner, Dr John Roseth, a set of "planning principles", some of which touch upon issues raised in the class 1 appeal in this matter - e.g. "height and bulk" in Veloshin v Randwick Council [2007] NSWLEC 428 ("Veloshin"), "view sharing" in Tenacity Consulting v Warringah [2004] NSWLEC 140, "impact on neighbours" in Pafburn v North Sydney Council [2005] NSWLEC 444 ("Pafburn"), "overshadowing"/"solar access" in Parsonage v Ku-ring-gai [2004] NSWLEC 347, "overlooking"/"visual privacy" in Super Studio v Waverley [2004] NSWLEC 91 and Meriton v Sydney City Council [2004] NSWLEC 313, and "small or narrow sites" in CSA Architects v Randwick City Council [2004] NSWLEC 179. 20 However, as Roseth SC made plain in Veloshin (at [32]), such principles are laid down to "guide", rather than "bind", decision-makers when they assess key questions that frequently arise in class 1 appeals. In Pafburn (at [19]-[25]) he set out five "common themes" which run through these planning principles. All of those themes inform decision-making such as that required of Commissioner Hoffman in this case, but they are not determinative in every case regardless of its own unique factual matrix. One of the five themes invites attention to the value of seeking "a more skilful design" to "reduce or eliminate" adverse impacts. It is such an option that Council insists it has sought to pursue in this case, in light of the neighbour's objections and Council's other concerns, with no response from the Applicant. 21 The Court of Appeal in Segal and Another v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 made clear that the question of whether or not to follow any of this suite of planning principles in a particular case is a question of fact for the decision-maker, so no error of law is involved in choosing not to do so. (See in particular [95]-[99], per Tobias JA). 22 I can find no error of law in the matters of which Mr May complained in respect of the proceedings and evidence, and I turn now to the allegation of denial of procedural fairness, or apprehended bias, arising after the hearing. Procedural Fairness/Apprehended Bias The complaint and the evidence 23 When the parties attended court on 7 May for the delivery of the Commissioner's judgment, there was some delay, and a conversation took place at the bar table between the solicitor for the Council (Trudy Sheehan) and Mr May. That conversation revealed to Mr May that Ms Carpenter had recently had a conversation with Commissioner Hoffman. 24 Ms Sheehan deposes that Mr May said words to the effect of "I have been in contact with the court on a number of occasions to enquire when the judgment would be delivered", to which she responded: "we have not been in contact with the court. However, we were hoping it would be soon because Marion Carpenter ran into Commissioner Hoffman in the street outside a coffee shop and Commissioner Hoffman commented to her that he thought he had a decision of hers coming down soon ". 25 Mr May concedes that he "didn't ask if this was the full extent of the conversation" between Ms Carpenter and Commissioner Hoffman, but there is before the court also an affidavit from Ms Carpenter which actually recounts its "full extent". 26 Ms Carpenter's evidence is that on or about the afternoon of 6 May 2008, she encountered Commissioner Hoffman in the vicinity of a coffee shop near the entrance to the court building. After an inconsequential conversation involving the usual pleasantries and a discussion about coffee and the weather, they parted company, and, as they did so, the Commissioner, she says, said words to the following effect - " Oh, Ms Carpenter, I will be publishing my decision in one of the matters you appeared in shortly. There are a few typos to be corrected ". 27 Ms Carpenter says that she simply thanked the Commissioner and returned to her chambers (in the court building), leaving him in the shop. In par 15 of her affidavit she says: " Although the Commissioner did not say which decision it was, I knew that it was Sky Design Concepts Pty Limited v Pittwater Council because that was the only matter in which I had appeared before the Commissioner where a decision was outstanding ". 28 Mr May has challenged none of this affidavit evidence, and I accept it as a truthful and complete account of the two relevant conversations. 29 Mr May has raised the Carpenter-Hoffman conversation as a matter of concern, rather than as an allegation of actual bias, and this court must properly address his concern in determining his appeal. 30 I now set out below, in full, the four versions of Mr May's complaint: · In his "Statement of Grounds" filed on 17 July 2008 (in the last two paragraphs, on p3) he said: " Councils (sic) Solicitor Trudy Sheehan, advised in a conversation whilst waiting for the commissioner that their Barrister had run into the Commissioner in a coffee shop and she was told that a decision would be handed down shortly. Know (sic) as a matter of procedural fairness we require this matter to be re heard before a Judge as I didn't ask if this was the full extent of the conversation, and must say that I'm somewhat concerned if the Commissioner is talking to the Respondent on any matter of a case where the decision is pending ." · In his "Written Submissions" filed on 30 July 2008 (at p8) he said: " The commissioner departed from procedural fairness: Following the conclusion of the hearing in having contact with a member of Councils legal team whilst I was advised that they were told a decision would be handed down shortly. I didn't ask if this was the full extent of the conversation, and must say I'm somewhat concerned if the Commissioner is talking to the respondent legal team whilst a decision is pending ." · In his oral submissions in this appeal (T5, LL39-44) he said: "The Commissioner departed from procedural fairness following the conclusion of the hearing in having contact with a member of council's legal team. Whilst I was advised that they were told that a decision would be handed down shortly I didn't ask if this was the full extent of the conversation and I must say I'm somewhat concerned if the Commissioner is talking to the respondent's legal team whilst the decision is pending ." · In his response to the Respondent's oral submissions (T16, LL25-34) he said: " I've read the affidavits that were filed in relation to the conversation that took place with the Commissioner. I'd say that any dialogue that took place isn't appropriate. Now, the affidavit of Marion Carpenter says that on 6th a conversation took place and the decision was handed down on 7th so the time line between when she said the conversation took place which is on 6th and the decision was handed down on 7th - from when they had a 20 minute conversation outside the court with Mrs Sheahan (sic), I don't know, did she run into Mrs Sheahan (sic) in the coffee shop that afternoon as well, the time line between 6th and 7th when the decision was handed down at 2 o'clock, to me it just doesn't make any sense from what is put in their affidavit s." 31 The latter part of the last quotation does not reflect the evidence, but none of the articulations of his complaint goes any further than what Ms Carpenter and Ms Sheehan freely concede actually occurred. The test to be applied 32 The appropriate test for apprehended bias in this court and elsewhere is well established and universally adopted - would a fair-minded, lay but informed observer apprehend that there was a real, as distinct from remote, possibility that the decision-maker hearing the matter would not bring an impartial mind to the resolution of the issues between the parties? 33 There are many authorities to which the decision-maker can turn for guidance on these issues. In most of them the challenge is posed during the trial, and in front of the decision-maker, and most concern established prior relationships, or inappropriate conduct (including failure to disclose relevant facts and circumstances) during a hearing, rather than casual encounters. See City of Canada Bay Council v Bonaccorso Pty Ltd (No.2) [2007] NSWCA 368. However, whatever the circumstances, one returns to the familiar test. 34 A two-step formula to test for apprehended bias was established by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ("Ebner"); (2000) 205 CLR 337 - see 344-355. It is necessary, firstly, to identify what indeed might lead a judicial officer to decide a case other than on its legal or factual merits. The second limb of the test is whether there is any logical connection between the relevant events and a feared deviation from the impartial decision of the case on its merits. 35 In Aussie Airlines Pty Limited v Australian Airlines Pty Ltd and Another (1996) 65 FCR 215 ("Aussie Airlines"), Merkel J referred (at 226) to the "requirement for a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. It is the capacity of the association to influence the decision rather than the association as such that is disqualifying". 36 I surveyed many of the cases in my recent decision to recuse myself from further consideration of a matter in Australian Lifestyle Corporation Pty Ltd v Wingecarribee Shire Council (No.2) [2008] NSWLEC 132, in which I made the point (at [5]) that the decision to withdraw from a matter once commenced "is not to be lightly made, as a positive decision will inevitably result in cost, delay and inconvenience to all concerned". That opportunity to withdraw was not made available to the Commissioner in this present matter, nor the Assessor of the court in Connell v Armidale City Council [1995] NSWLEC 110 ("Connell"). I also said (at [6]): "The clearly obvious, or easily proven, 'innocence' of any relevant circumstances or events matters not. Nor does it matter that a judge might be, as I am here, confident, in all the circumstances, that he could bring an independent mind to the matter. Justice must not only be done, but be clearly seen to be done". However, the possibility of the decision being in some way "tainted" must be "firmly established" (per Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 549 par [135]). 37 It is the possibility, real and not remote, of an apprehension being reasonably formed by a fair-minded lay person observing the behaviour events or circumstances complained of, which is the test. As Merkel J observed in Aussie Airlines, the uninvolved observer must be treated as fully informed of the facts and circumstances constituting the association relied upon. The apprehension must be reasonable and must arise upon an understanding of the actual circumstances in which the claim of possible bias is made. 38 In the present case, a claim of apprehended bias has not been made in terms, but a question of propriety has been raised after an adverse decision was given. Consideration 39 As Mr Pickles says, the first difficulty faced by Mr May is that he did not take the opportunity, when the Commissioner came on the bench to deliver the judgment, of raising his concerns. Accordingly, the Commissioner has never been given the opportunity to rule on any question of whether or not he should have recused himself from delivering judgment in the matter, the hearing of which he had by then long ago completed. Had Mr May been legally represented the opportunity may have been taken, on the day judgment was delivered, to put some objections to the Commissioner regarding his continuing with the case, even at that very late stage. See Vakauta v Kelly (1989) 167 CLR 568, and Connell. 40 As Talbot J pointed out in Connell, it is not appropriate to now make any inquiry of Commissioner Hoffman. Absent some response having been sought and obtained from the Commissioner, this court on a s 56A appeal is operating in somewhat of a vacuum dealing with the matter, and I can deal with it only on the limited evidence which I have set out. 41 One can understand the reaction of a lay and unrepresented litigant who comes to feel some unease or disquiet when informed, just before he finds out he has lost his case, that a conversation of any sort had taken place between his opponent and the decision-maker. Being then upset by the outcome of his case it is understandable that, when he challenges that decision by lodging an appeal, he brings to attention his suspicion that something untoward may have occurred. 42 Mr May contends on this appeal that "any dialogue" between his opponent and the Commissioner "isn't appropriate" (T16, LL26-27). The court has no way of knowing whether Mr May is expressing a genuine belief that any association at all between Ms Carpenter and Commissioner Hoffman, outside of the formal hearing of his case or any other, would necessarily infect the Commissioner's decision in that case, but he is certainly manifesting a concern or unease about the Commissioner's decision in this particular matter, given that the conversation took place. 43 Unease and concern are not enough; the established objective test must be satisfied, and the appellate courts have warned judges and other quasi-judicial decision-makers against any over-eagerness to recuse themselves from cases when a question of apprehended bias arises. 44 Court and tribunal decision-makers, as a strict and general rule, seek to avoid (1) being listed in matters where some apprehension of bias might possibly be suggested, and/or (2) any incident, even a chance encounter, which might engender any such concerns. They make sure never to speak about the substance of a matter to one party in the absence of the other, and they avoid, as far as possible, direct contact with either party or its representative while the case is current, to avoid any risk or suspicion in this regard. They disclose during cases, at the earliest opportunity in the hearing, any circumstances or associations which might, if they remain undisclosed, create some unease about the absolute fairness of the process they follow in their work. 45 Many counsel and solicitors who appear in this court have chambers in the court building or nearby. All entrants to the building share the same doorway, foyer, lifts and amenities. Inevitably, from time to time, there is extra-curial interaction between bench and representatives. Sometimes an unexpected, possibly compromising, event occurs. Commissioners and Judges of the court frequently encounter parties and their representatives, in circumstances totally unrelated to the courtroom, or to the cases dealt with by the court, e.g. at social and professional events, or casually in the street, shops, foyer, lifts, etc. 46 In all those instances, it is not a question of how the decision-maker thinks or feels about the situation; it is a question of whether or not the test is satisfied. At the same time, it would not be fair to attribute to the fair minded lay observer the level of understanding that a lawyer would have of the way in which members of a tribunal or court interact on a daily basis with the public and the profession, or how they so readily divorce such interactions from the process by which they reach their decisions. 47 Mr May, on my perusal of the transcript before Commissioner Hoffman and on my observation of him before me, seemed comfortable and familiar with the process by which proceedings are conducted in this court. I am satisfied that he would expect and understand that solicitors and counsel who regularly appear here would frequently have unrelated social dealings with its adjudicators. Neither he, nor anyone with his knowledge of the operations of the court, nor the uninterested lay observer advised of the facts, would apprehend that a chance meeting at the doorway of a coffee shop in the vicinity of the court building or, for that matter, anywhere else, could influence the outcome of a matter that had been so exhaustively dealt with at hearing and considered for so long by the Commissioner before delivery of judgment. 48 In this instance, a short informal conversation occurred between counsel and the adjudicator, long after the conclusion of the hearing and almost immediately prior to the delivery of a considered judgment. The proceedings were not discussed, and the conversation provided no more than a casual/chance opportunity for the Commissioner to convey personally the information that his judgment would be "delivered shortly". Such random opportunities to advise of a forthcoming delivery of judgment are customarily taken by judges and other court representatives. 49 Advice of a time and date for judgment is normally conveyed separately to the various parties. There is no ban on such information being conveyed directly by and to those directly involved. There is no rule or principle that supports Mr May's contention that "any dialogue … isn't appropriate". Nothing at all was said about the questions before the Commissioner, nor about how he might have addressed them. He was merely advising counsel briefed in the matter that he had reached his conclusion and was on the verge of delivering his reasons for judgment. 50 The bare assertion, or the fact, of such a conversation taking place does not demonstrate any connection between that conversation and any likely deviation from a determination on the merits. See Ebner and Aussie Airlines. The Commissioner's decision on all the technical issues before the court on the class 1 appeal could not possibly be influenced by a conversation about the weather, and the value of coffee, concluding with an indication by him, "by the way", that he was about to deliver his decision. 51 Applying the requisite test of apprehended bias to all the information available about the conversation between the Commissioner and counsel in this case, I am convinced that that test has not been met. (Cf. the decision of Cowdroy AJ in Bonfoal Pty Limited v Botany Bay City Council [1998] NSWLEC 282, where His Honour disqualified two assessors (as this court's commissioners were then styled) from the further hearing of proceedings because of the inappropriate circumstances surrounding an unscheduled site visit they made with counsel for only one side). 52 The fair minded and informed observer, knowing all these facts, and knowing as one of those facts the degree of latitude and consideration extended to Mr May by Commissioner Hoffman at the hearing, would not, in my view, conclude that there was any inappropriate level of contact between Ms Carpenter and the Commissioner, such that the Commissioner may not bring an impartial and unprejudiced mind to the resolution of the class 1 appeal. 53 I have concluded, therefore, that I cannot uphold the appeal on this ground. Conclusions 54 As the Applicant/Appellant has failed to establish any error of law on the part of the Commissioner, this appeal is dismissed. 55 The question of costs is reserved. 56 The Exhibits may be returned.

Sky Design and Concepts Pty Limited v Pittwater Council

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