Land and Environment Court New South Wales Medium Neutral Citation: Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127 Hearing dates: 20 October 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [86]. Catchwords: JUDICIAL REVIEW: whether there was apprehended bias in the assessment of a development application and the granting of consent by a local planning panel – whether the local planning panel was independent from the council – whether there was apprehended bias by reason of the council's ownership of the land upon which the development was partly to occur – whether there was apprehended bias by reason of the council purportedly expressing support for the development – whether there was apprehended bias by reason of the council's asserted pecuniary interest in the outcome of the assessment of the development application – no apprehended bias found. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 2.17, 2.18, 2.19, 2.20, 4.15, 4.8, 9.1 Local Government Act 1993, ss 8, 24, 45(2), 253, Div 2, Ch 6, Pt 2, Ch15, Pt 10 Cases Cited: Alexander v Yass Valley Council (2011) 184 LGERA 123; [2011] NSWLEC 148 Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA at 185 R v Hendon Rural District Council; Ex parte Chorley [1933] 2 KB 696 R v South Australian Planning Commission; Ex parte City of Burnside (1986) 45 SASR 487 Category: Principal judgment Parties: Seek Justice Pty Ltd (Applicant) Minister for Planning (First Respondent) Blue Mountains City Council (Second Respondent) USM Events Pty Ltd (Third Respondent) Representation: Counsel: I Jeray (Applicant) T To (Third Respondent) Solicitors: N/A (Applicant) Department of Planning and Environment (First Respondent) Marsdens Law Group (Second Respondent) Sparke Helmore (Third Respondent) File Number(s): 2022/299420 Publication restriction: Nil JUDGMENT Seek Justice's Challenge to the Consent Granted for an Ultra-Trail Running Event is Expedited 1. By amended summons dated 7 October 2022, the applicant in these Class 4 proceedings effectively seeks to challenge the consent granted to the third respondent, USM Events Pty Ltd ("USM"), to hold the 2022 Ultra-Trail Australia Event ("the event"). 2. The event is a running race over various distances (the most gruelling of which is over 100km) in and around Katoomba in the Blue Mountains. It is scheduled to be held on 27 to 30 October 2022. It was originally to occur in May 2022, but the event was postponed due to inclement weather. 3. The development application ("DA") was submitted on 20 January 2022, however, for reasons that were not explained, consent for the event was not determined by the Blue Mountains Local Planning Panel ("the Panel") and issued by the Blue Mountains City Council ("the Council") until 19 September 2022 (that is, five weeks prior to the commencement of the event). It was not in dispute that the determination of the consent was not published on the Council's website until around 6 October 2022. Upon publication, Seek Justice immediately commenced proceedings. It cannot be said that Seek Justice has delayed in bringing its challenge. 4. Both the first respondent, the Minister for Planning ("the Minister"), and the Council have filed submitting appearances in the proceedings. 5. Ivan Jeray, the sole director of Seek Justice, appropriately filed a notice of motion seeking expedition of the hearing. That motion was heard by me in my capacity as list judge on Friday, 14 October 2022. The hearing commenced at 3.00 pm and concluded at 5.30 pm. Ultimately, expedition was granted unopposed by USM on the basis that if not expedited, subject-matter of the litigation will have been spent (the event will have taken place), that there had been no delay by Seek Justice in bringing its challenge, that the parties could meet a compressed timetable (albeit with considerable and commendable effort) for the preparation of the matter for a final hearing and, critically, that only certain prayers for relief would be subject to expedition, with the remainder of the amended summons to be adjourned to a later date. As Jeray conceded, stopping the event from taking place was Seek Justice's immediate goal. 6. Therefore, only the following two prayers for relief were expedited: 5 Declare development consent file no. X/57/2022 issued by Blue Mountains City Council as invalid. 6 Declare the 2022-2023 eco-tourism licences issued by Blue Mountains City Council to USM Events Pty Ltd, as invalid. 1. The hearing commenced at 9.00 am on Thursday, 20 October 2022 and concluded at approximately 4.30 pm. Reasons would have been published earlier but I was occupied with list judge matters for all of Friday, 21 October 2022. 2. The judgment has been written without the benefit of transcript as none was ordered by the parties, and as a consequence, daily transcript was not available. 3. For the reasons that follow, Seek Justice's judicial review proceedings insofar as it concerns the matters agitated in this hearing by the two prayers for relief identified above are not maintainable and must be dismissed. Issues for Determination 1. Seek Justice filed some brief written submissions that it sought to develop orally: The Minister for Planning's Local Planning Panel Direction* called "Development Applications and Applications to Modify Development Consents" allows a local planning panel of a council to determine development applications when a council has conflicts of interest in development applications. However, a local planning panel that is constituted by a council is not independent from the council, as it forms part of and thus represents the council. Accordingly, a local planning panel does not remove a council's conflict of interest and thus it cannot accept, evaluate and determine development applications when a council has conflicts of interest in development applications. The Minister's direction therefore undermines the integrity** and the public's confidence in the planning laws of NSW and consequently is invalid. The second respondent has pecuniary and non-pecuniary conflicts of interest in development application X/57/202. Given the "Development Applications and Applications to Modify the Development Consents" direction is invalid, the second respondent could not accept, evaluate and determine the development application X/57/2022 and its consent for development application X/57/2022 is therefore invalid. 1. It appears, therefore, that Seek Justice challenges the consent granted to the event on the following bases: 1. first, that the Panel could not lawfully determine the DA for the event because of various conflicts of interest relating to, among other things, the use of Council owned land; and 2. second, that the Panel could not lawfully determine the DA because of a pecuniary conflict of interest relating to the fees that the Council charged for the determination of the DA, fees associated with the issuing of an ecotourism licence, and fees for the use of the car park referred to immediately above. Evidence of the Parties 1. Seek Justice relied upon a relatively small number of documents that were individually tendered. An equally modest bundle of documents was relied upon by USM. It is not necessary to individually identify all of the documents. USM further relied upon an affidavit of Geoffrey Meyer sworn 19 October 2022. 2. Meyer is the Managing Director of the IRONMAN Group in Oceania, which comprises USM and other related corporate entities. USM conducts the event, which is the largest trail running event in the southern hemisphere and third largest in the world. It is part of an international series of races around the globe. There are approximately 6,615 registered participants for the event. 3. The event course traverses land owned and managed by the Council (a matter not in dispute), the NSW National Parks and Wildlife Service, WaterNSW, a handful of private landowners, and Crown land. Consent has been secured to operate the event on these lands. 4. It was an agreed fact that the Council gave its consent for the use of land owned by it. Of the 39 such sites identified by Seek Justice, it was not in dispute that the Council land included: 1. the car park at Katoomba Golf Course, in respect of which the Council had issued USM with a licence to use the land and for which it charged a fee; 2. the Katoomba Sports and Aquatic Centre; 3. various roads; and 4. the car park at Council Chambers and the Council depot (in case of wet weather). 1. According to Myer, USM has paid the following amounts to the Council in connection with the carrying out of the event: $5,000 for the use of the Katoomba Golf Course, plus a $10,000 damage bond; and a DA fee of $716.40. 2. Meyer deposed to the logistics of running the event which, as may be expected for a race this size, are considerable. In addition to the hundreds of staff directly employed to run the event, there are numerous contractors who receive direct financial benefit from providing their services to the event (electricians, bus hire companies, course signage services, graphic designers, gear suppliers, medical providers, and so on). During cross-examination, Meyer stated that many of these third parties had been paid up front and that the money could not be recouped by USM if the event was cancelled. 3. The event also uses a number of venues and facilities in and around Katoomba such as Scenic World and the Katoomba Christian Convention. Side events are held in Katoomba in conjunction with the race. 4. In addition, the event attracts lucrative sponsorship which will be lost if it does not go ahead. 5. Approximately 20,000 visitors are expected to visit Katoomba for the race. Furthermore, given the number of race registrants, it is expected that approximately $3,000,000 will be spent locally by entrants alone. 6. Meyer estimated that the financial impact to "our business" if the event did not proceed would be "in the vicinity of $2.5 million". There would also be significant reputational damage. 7. I have no doubt that if the event does not go ahead by reason of this challenge, then USM, direct and indirect third party providers, and the local community will suffer irreparable financial harm. 8. In respect of USM, it should also be observed that at no point did Seek Justice allege that USM did anything unlawful to secure the consent or that it has engaged in any disentitling conduct. 9. Seek Justice did not, it should be further noted, submit that the running of the event will cause harm to the environment, other than harm to the integrity of the planning system of New South Wales. 10. It was an agreed fact that the Council has previously issued an ecotourism licence to USM under its ecotourism licencing scheme to hold the event for the 2018/2019, 2019/2020 and 2020/2021 years. 11. According to USM, no such licence has been issued by the Council to it in respect of this event, or at all, for the 2021/2022 or 2022/2023 years. I accept this to be the case. It is consistent with correspondence to this effect to Jeray from the Council dated 19 May 2022. 12. Although Meyer said in cross-examination that he "believed" that an application for the grant of an ecotourism licence had been made, his evidence was equivocal, viz, "you'd have to ask the race director". He also stated that in his experience the ecotourism licence was only issued about a week before the event was held. 13. Although Jeray tried to give evidence from the bar table that a Council officer had told him that an ecotourism licence would be issued to USM, the Court did not permit him to do. This is because, leaving aside matters of form, no notice of this evidence had been provided to USM and it could not meet or challenge the evidence on the day of the hearing. That the Council did not issue USM with an ecotourism licence was a matter that was discussed with Seek Justice during the hearing of the notice of motion for expedition. 14. Having said this, I accept that the licence has been applied for by USM and is pending determination by the Council. Again, this is consistent with the letter from the Council to Jeray dated 19 May 2022 ("the licence has not yet been issued", emphasis added), Meyer's evidence, and the fact that ecotourism licences have been issued to USM for this event by the Council in previous years. While it seems curious that no ecotourism licence has been issued to date by the Council given the imminency of the event, as Meyer stated, the licence is not usually issued until the week of the race (see the content of the letter dated 19 May 2022). However, it remains the fact that no ecotourism licence has been issued by the Council to USM in respect of the event as at the date of the hearing. 15. As it transpires, contrary to the submission of Seek Justice, it is not necessary for the Council to issue an ecotourism licence for the consent to be granted and the event to proceed. This is explained below. 16. Finally, although the concept of support is somewhat amorphous, I find that the Council generally "supports" the event. This is evidenced by its consent to the event over the past several years and from correspondence from the Council's Events Co-ordinator to the Race Director dated 9 August 2021, where such a sentiment was expressed (having said this, I accept that this was just a single individual's opinion and not that of the Council as a collective body). The Consent is Granted 1. In order to determine Seek Justice's claims, it is essential to understand the circumstances of and the legislative scheme governing, the assessment and grant of the consent and the issuing of any ecotourism licence. 2. The Panel was constituted pursuant to s 2.17(2) of the Environmental Planning and Assessment Act 1979 ("the EPAA"). It was not a matter of contention that the Council is in an area that is wholly within the Greater Sydney Region: 2.17 Constitution of local planning panels … (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. 1. The Panel was subject to any direction issued by the Minister (see s 2.17(6) of the EPAA). 2. Membership of the Panel is governed by s 2.18(1) of the EPAA, which states: 2.18 Members of local planning panels (1) The members of a local planning panel are to be appointed by the relevant council. 1. There are several important aspects to the Panel's membership apparent from the statutory scheme. Critically, the members must be independent. Section 2.18(2) provides as follows: (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. 1. An "approved independent person" is defined in s 2.18(4) of the EPAA as: (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. 1. A person is not eligible to be a member of the Panel if they are councillor of the council constituting the Panel, or of any other council (s 2.18(3)): (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, or (b) a property developer within the meaning of section 53 of the Electoral Funding Act 2018, or (c) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002… 1. The functions of the Panel are relevantly set out in s 2.19 of the EPAA: 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… 1. The Panel must give written reasons for its decision and must make them publicly available on "a website of or used by the panel" (s 2.20(2) of the EPAA). 2. The "council is to provide staff and facilities for the purpose of enabling a local planning panel to exercise its functions" (s 2.20(4)). 3. The Panel exercises consent authority functions "on behalf of" the Council (s 4.8 of the EPAA): 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, … (5) In this section, development application includes applications to modify development consents. 1. Several directions were issued by the Minister under s 9.1 of the EPAA. Section 9.1(1) is in the following terms: 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. 1. And s 9.1(2)(b1) of the Act states: 9.1 Directions by the Minister (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… Ministerial Directions are Issued to the Council 1. At its Ordinary Meeting held on 27 February 2018, the Council noted the process prescribed by the Department of Planning and Environment for the mandatory establishment of the Panel. It resolved to establish the Panel (see Minute 62). The Business Paper of the Ordinary Meeting noted the remuneration rates for the Panel (item 16.5). The Council agreed that the Panel was to continue meeting at Council Chambers (item 16.7). It was observed that the ongoing costs associated with the Panel would impose a significant financial burden on the Council (item 16.9). 2. The Council resolved: 2. That the Council notes the establishment of a selection panel to comprise the Mayor, Deputy Mayor, General Manager and Local Planning Panel Chair… 5. That the Council endorses the selection panel meeting, once the Local Planning Panel has been established, to review expert and community members and to nominate new expert members or undertake additional expressions of interest processes for community representative as required… 1. None of the selected Panel members were councillors. 2. The tenure of the Panel members expired on 30 June 2021. New members were selected, none of whom were councillors and all of whom were qualified to be on the Panel. 3. Seek Justice relied upon three Ministerial directions issued to the Council: 1. Local Planning Panels Direction – Naming Local Planning Panels issued by the Minister on 22 June 2018, which stated that "A council to whom this direction applies is to name the local planning panel the "[Local government area] local planning panel" ("Naming Direction"); 2. Local Planning Panels Direction – Operational Procedures dated 30 June 2020. In terms of its "Application", the direction stated that: Application This direction applies to a local planning panel constituted under the Environmental Planning Assessment Act 1979 (Act). Note: Local planning panels are independent committees appointed by councils to determine certain development applications and to provide advice on planning proposals. A local planning panel is not subject to the direction or control of the council, except on matters relating to panel procedures or the subject to the direction or control of the council, except on matters relating to panel procedures or the time within which the panel is to deal with a matter that is not inconsistent with this direction. Subject to these procedures, any direction by council and the requirements of the Act, the panel is to determine how to call meetings and conduct its business. It directed local planning panels "to comply with the operational procedures set out in Schedule 1 to this direction", which included the operational procedures concerning the selection of the Panel ("Operational Direction"); and 1. the Local Planning Panels Direction – Development Applications and Applications to Modify Development Consents also issued on 30 June 2020 ("DA Direction"). The stated objective of the DA Direction was to identify the development applications and applications to modify development consents that were to be determined by local planning panels "on behalf of councils". It applied to the Council. The Direction stated that local planning panels of councils were to determine development applications for development of a kind specified in the Schedule to the Direction. Item 1 of Schedule 1 was in the following relevant terms: SCHEDULE 1 1. Conflict of interest Development for which the applicant or land owners is: (a) the council, (b) a councillor, (c) a member of council staff who is principally involved in the exercise of council's functions under the Environmental Planning and Assessment Act 1979… 1. The Panel was correctly named having regard to the Naming Direction. It was also not alleged by Seek Justice that the Operational Direction was not complied with. 2. The complaint by Seek Justice is that the Panel and the Council were effectively one and the same entity and that the Panel lacked the necessary independence to assess and determine the DA. This is important because, according to Seek Justice, the Council, by reason of the use of its land and the collection of fees, was placed in a position of conflict of interest when it (albeit through the vehicle of the Panel) granted consent and issued any ecotourism licence. 3. The Panel's Assessment Report dated 19 September 2022, plainly identified that the proposed development the subject of the DA "involves a conflict of interest as it includes use of Council owned land". Because the DA was in respect of development for which the landowner was the Council, the Panel was required to determine the DA pursuant to the DA Direction. This is precisely what occurred. No Bias Arises Invalidating the Consent 1. Seek Justice argued that the decision to grant consent was infected by bias because: 1. the Panel and the Council were not separate bodies. The Panel was selected by the Council, used the Council's website and met at the Council's offices. It made its decisions "on behalf of" the Council; 2. the Council owned part of the land upon which the event was to be held. Therefore it could not grant the consent, or have the Panel grant consent on its behalf; 3. the Council was a supporter of the event, and therefore, it had prejudged the DA; and 4. the Council received income from the running of the event, which gave rise to actual or apprehended bias. The Panel is Independent from the Council 1. As stated above, the consent was granted by the Panel on behalf of the Council. This does not, however, as Seek Justice submitted, mean that the Panel did not act independently in making the determination. On the contrary, when regard is had to the statutory scheme establishing the Panel and its functions, it becomes clear that the Panel is wholly independent from the Council. This is because: 1. the Council was required to establish the Panel (see the Operational Direction); 2. the members of the Panel were obliged to be, and were, independent of the Council. None of the members were councillors. While they were selected by the Council, this did not render the Panel members lacking in independence, especially when regard is had to the statutory selection criteria; 3. that the Panel was called the "Blue Mountains Planning Panel" was mandated by the Naming Direction; 4. that the Panel was remunerated by the Council again does not compromise the Panel. The rates of remuneration were set by the Minister, and not the Council; 5. the fact that the Panel used the Council's website and met at Council Chamber also did not compromise its independence (see s 2.20 of the EPAA); and 6. the Panel was required by the DA Direction to determine the consent because the Council was the landowner. 1. In short, the mandated structural separation of the decision-making functions of the Panel and the Council in respect of the determination of the DA ensures independence and impartiality in the Panel's assessment function. There is nothing in the consent determination by the Panel that is suggestive of partiality in the Panel's decision to grant consent. Seek Justice was not able to point to any aspect of its deliberation, in either the determination or the Assessment Report, that were in any way deficient in this regard. 2. The decision to grant the consent was not from any identifiable position of conflict merely because the Panel assessed the DA on behalf of the Council. No actual bias is established by Seek Justice by reason of either the composition of the Panel or the manner in which it assessed and determined the DA. 3. Likewise, having regard to the statutory regime set out above with respect to the establishment of the Panel, including its membership and functions, it cannot be concluded that a fair minded lay observer might reasonably apprehend that the Panel might not bring an impartial mind to bear the assessment of the consent on behalf of the Council (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], Charisteas v Charisteas (2021) 393 ALR 389; [2021] HCA 29 at [11] and Alexander v Yass Valley Council (2011) 184 LGERA 123; [2011] NSWLEC 148 at [74]-[78]). 4. While a fair minded observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular decision-maker, the reasonableness of the any suggested apprehended bias must be considered in the context of ordinary practice (Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13] and Charisteas at [12]). 5. In this context, it must be born in mind that the standards applicable to claims of prejudgment will vary. Nevertheless, the bias rule applies to multi-member public authorities such as the Panel (and, for that matter, the Council) and prejudgment can occur, or can be perceived to occur, especially if a consent authority has worked with a proponent in relation to the formulation of a development such that its acceptance is a foregone conclusion (see, for example, R v South Australian Planning Commission; Ex parte City of Burnside (1986) 45 SASR 487 at 503-505). 6. In McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 the following examples were given of the application of the bias rule to multi-member decision-making bodies such as the Panel (at [38] per Spiegelman CJ): 38 In the context of multi-member decision-making bodies that are not courts, or subject to the same stringent requirements as courts, a disqualifying conflict of interest of a character which the apprehended bias principle would require the person not to participate in, indeed not even be present at, the decision-making process has been held to exist where: • the person is the complainant or accuser with respect to the matters the subject of inquiry: Dickason v Edwards (1910) 10 CLR 243; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509. • the person formally opposed an application and made representations to the decision-making body of which s/he was a member, where those representations were required by statute to be taken into account: R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411. • the person opposed the application and instructed a lawyer to appear at the hearing to argue against its acceptance: R v London County Council; Ex parte Akkersdyk; Ex parte Fermenia [1892] 1 QB 190; Frome United Breweries Company Ltd v Justices of Bath [1926] AC 586. • the person otherwise becomes, in substance, a party to the proceedings: see Cooper v Wilson [1937] 2 KB 309 at 322-324, 344-345; R v West Coast Council; Ex parte Strahan Motor Inn (at 427). 1. However, none of these illustrations are apposite to the present case. 2. It can be important to distinguish between cases of prejudgment and a conflict of interest. As Spigelman CJ observed in McGovern (at [25]-[28]): 25 Many of the authorities upon which the appellants rely are not cases of pre-judgment. It is important, in my opinion, to distinguish a conflict of interest case from a pre-judgment case. There are two relevant differences. 26 A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of "closure" of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course. 27 Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn. 28 Many of the authorities upon which the appellants relied employed the language of pre-judgment but are, on their facts, cases in which one of the decision-makers has, as a matter of substance, placed himself or herself in the position of conflict of interest, indeed becoming a party to the decision-making process. Where a person's involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not, in my opinion, one of "pre-judgment" but one of "conflict of interest". 1. In the present case, the characterisation of the alleged mischief does not matter because neither prejudgment (in the sense articulated in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA at [185]) nor a conflict of interest arises by the Panel granting the consent. Not only was the Panel established by the Council wholly independent from that latter entity, there is nothing to indicate that it did not make, or appear to make, an independent decision in respect of the DA. 2. The circumstances here may be usefully distinguished from the facts in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20. In that decision, it was held that the council officer involved in the criminal prosecution of a dog owner was subsequently a member of an administrative panel deciding the dog's fate. This gave rise to a perception of prejudgment (at [46] and [63]). In the present case, no member of the Council constituted the Panel. The Council as Landowner 1. As set out above, the Minister is specifically empowered to give directions to councils in relation to DAs that are to be determined by local planning panels (see ss 4.8(3), 9.1(1) and (2)(b1) of the EPAA set out above). 2. The DA Direction expressly identifies a conflict of interest where a council is the owner of the land the subject of development. In such a case, the DA Direction expressly mandates that the DA be determined by the local planning panel. This is to ensure that there is no conflict of interest (actual or perceived) and that independence in the decision-making process is maintained at all times. 3. Put another way, the determination of the DA by the Panel in this instance was specifically authorised by the EPAA. There can, therefore, be no assumption of bias (actual or apprehended) in circumstances where the Panel discharged its function as intended by the operation of the regulatory regime. The Council as a Supporter of the Event 1. The amended summons neither identified how the Council supported the event nor identified what that protean term meant. The email dated 9 August 2021 relied upon by Seek Justice as evidencing the Council's purported support, was merely the opinion of the Council's Events Coordinator and not that of the Council. 2. While it may be accepted that the Council was generally supportive of the event on the basis that the event brought an economic and social benefit to the local community, this should not be conflated with prejudgment of USM's DA (or give rise to any conflict of interest), which was in any event, being assessed by the Panel - not the Council - an independent body. The Panel's attitude to the event is not known. The Council as Pecuniary Interest Holder 1. There was evidence that the Council earned money from the event by the charging of a fee for the licence of the Katoomba Golf Course car park to USM and the fee associated with the lodgement of the DA. 2. While fees are charged for each registrant pursuant to the ecotourism licence issued in respect of the event (see item 11 of the 2020/2021 ecotourism licence issued to USM), no licence has been issued for 2021/2022 or 2022/2023. As a consequence, no fees have been charged. 3. Further, although such licences have been issued to USM in the past in relation to the Ultra-Trail race, there is no statutory requirement under the EPAA, the Local Government Act 1993 ("the LGA") (in respect of community land), or even the Crown Land Management Act 2016 (in respect of Crown land reserved for specified purposes and managed by the Council), that an ecotourism licence must be issued in order to obtain development consent. The grant of consent did not depend upon the existence of the licence (even if an ecotourism licence was issued by the Council, it is not a mandatory consideration under s 4.15 of the EPAA). 4. While leases and licences may be granted under the LGA in respect of community land and Crown land managed as community land (the two categories of land that would attract an ecotourism licence), they are not mandatory (s 45(2) of the LGA). Rather, if such licence is granted then the grant can only be in accordance with Div 2 of that Act. There is nothing in Pt 2 of Ch 6 of the LGA that requires the use or occupation of public land to occur by way of licence or lease (cf s 47D of the Act which provides that exclusive use and occupation otherwise than in accordance with a lease or licence is prohibited. By contrast, non-exclusive use is not proscribed. As stated below, the use by USM of the trails for the purposes of the event is non-exclusive). 5. This resolves for present purposes the issue of any reasonable apprehension of bias occasioned by any pecuniary interest on the part of the Council arising out of the issuing of an ecotourism licence to USM in respect of the event. In summary, no licence was issued and no licence was required. 6. In respect of the DA fee and the fee for the use of the Katoomba Golf Course car park, Seek Justice alleges that a pecuniary conflict of interest arises sufficient to give rise to an apprehension of bias in the determination of the DA. 7. Previously it was the case that bias was presumed almost conclusively upon proof of a direct pecuniary or proprietary interest in the subject matter of the proceedings (in this case the assessment of the DA). But this position has since been eschewed (Ebner (at [54] and Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 at [69]) because "the variety of arrangements under which persons may order their affairs makes a rigid distinction between direct and indirect interests artificial and unsatisfactory" (Ebner at [26]). Nevertheless, in Ebner the particular significance of financial conflicts of interest was recognised and it was said that "where a judge has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of the litigation" this will "ordinarily result in disqualification" (at [58]). 8. The principle has been applied in the context of local government and multi-party decision-making bodies (R v Hendon Rural District Council; Ex parte Chorley [1933] 2 KB 696). 9. Applying the legal principles espoused above to the circumstances of this case, it is clear that no apprehension of bias arises. This is because: 1. first, the decision to grant consent was that of the Panel, not of the Council, for the reasons given earlier in the judgment; 2. second, it cannot be said that the pecuniary interest was "not insubstantial" given the amount of the fees at issue; 3. third, in respect of the fees charged to use the car park, the charging of fees for the use of public land is expressly authorised by the LGA (see generally Ch 15, Pt 10). The Council adopted the Blue Mountains Delivery Program 2022-2026 and Operational Plan for 2022-2023 pursuant to the LGA ("the Operational Plan"). The Operational Plan was subject to public submissions before adoption (s 253 of the LGA). A component of that Operational Plan is the Blue Mountains Fees & Charges 2022-2023 ("Fees & Charges"), which determines fees for a wide range of sport and recreation activities held on Council land. The fees are applied without discrimination between users or uses. The provision of services in the form of the use of public land aligns with the objects of the LGA in relation to councils (s 8) and is one of the basic service functions of a local government authority (s 24 of the LGA). The charging of fees for use of Council lands is therefore an incident of landownership permitted by the LGA which does not, of itself, interfere with the impartial function of determining DAs under the EPAA either by the Council or the Panel; and 4. fourth, the logical corollary of Seek Justice's submission is that no council or public body with a decision-making function could ever charge a fee for the use of its services, administrative or otherwise irrespective of whether or not it was permitted to do so by statute. I do not accept the correctness of this proposition. Discretion to Grant Relief 1. Even if the above reasoning is incorrect, I would not, as a matter of the exercise of the Court's discretion, grant the relief sought in the amended summons. As the evidence of Meyer demonstrates, USM, numerous third parties (both direct and indirect), the registrants, and the local community would be materially disadvantaged and suffer significant prejudice if the consent was declared invalid and set aside only days prior to the commencement of the event. 2. In circumstances where USM has not engaged in any unlawful activity or disentitling conduct (such as delay) and where the development the subject of the consent is not otherwise harmful to the environment (the participants must, for example, share the race trail with member of the public. The event does not enjoy exclusive possession of the land upon which it is conducted) or to Seek Justice, and having regard to the financial detriment that would be suffered by USM and the other entities referred to above if the event was cancelled through no fault of USM (see the evidence of Meyer summarised above. While it is possible that USM could be indemnified in respect of some loss under the Acknowledgment and Assumption of Risk and & Release and Indemnity Agreement governing the event, this was far from certain having regard to the scope and construction of the Agreement), it would not be an appropriate exercise of the Court's discretion to grant the declaratory relief and set aside the consent. I would decline to do so. 3. In arriving at this conclusion I am nonetheless mindful of Seek Justice's submission that because the integrity of the planning system of the State has been undermined by a decision infected by bias, the public interest demands that the consent be set aside. 4. While the Court must have regard to the public interest in deciding whether or not to grant relief in the exercise of its discretion, in my opinion, the damage to USM and to the public by not permitting the event to proceed far outweighs the public interest in declaring the consent invalid and setting it aside. Costs 1. Although the remainder of the amended summons has yet to be determined by the Court, this does not preclude the Court from presently making a costs order in respect of this aspect of the proceedings. 2. These being Class 4 proceedings, costs normally follow the event and Seek Justice, not having enjoyed success in respect of prayers 5 and 6 of the amended summons, should accordingly pay USM's costs. 3. Seek Justice may, however, contend that a different costs order ought to be fashioned and it should be given an opportunity of making appropriate submissions in relation to the issue of costs should it seek to do so. This is reflected in the orders made by the Court. Orders 1. The formal orders of the Court are therefore as follows: 1. prayer for relief 5 in Seek Justice's amended summons is dismissed; 2. prayer for relief 6 in Seek Justice's amended summons is dismissed insofar as it seeks relief with respect to any ecotourism licence issued by the Council in respect of the event; 3. Seek Justice is to pay the Council's costs of the hearing of the matter on 20 October 2022, unless, within 28 days of the publication of this judgment, an alternative costs order is sought by either party; 4. the remainder of the amended summons is stood over to the List Judge on 25 November 2022 for the making of further directions; and 5. the exhibits are to be returned. ********** 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: 25 October 2022