Land and Environment Court of New South Wales CITATION : Stanisic Associates v Sydney City Council [2005] NSWLEC 270 Stanisic Associates (Appl) PARTIES : Sydney City Council (Resp) FILE NUMBER(S) : 10097 of 2005 CORAM: McClellan CJ KEY ISSUES: Practice and Procedure :- Whether a matter can go back to a Commissioner who has informally expressed views in relation to the matter DATES OF HEARING: 22 March 2005 EX TEMPORE JUDGMENT DATE : 03/22/2005 C Drury (Appl) Phillips Fox (Solicitors - Appl) LEGAL REPRESENTATIVES: C Leggat (Resp) Maddocks (Solicitors - Resp) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES McCLELLAN J TUESDAY 22 MARCH 2005 10097/05 STANISIC ASSOCIATES v SYDNEY CITY COUNCIL JUDGMENT 1 HIS HONOUR: This matter comes before me this morning because of some difficulties in relation to its future progress. Those difficulties are built out of problems which have occurred in the past. The matter came before Commissioner Watt for determination last year. During the course of consideration by Commissioner Watt a legal question was raised which was referred to me and I determined it. Although that question did not necessarily determine the outcome of the proceedings it nevertheless was important for it involved a construction of the relevant development control plan. 2 When the matter first came before Commissioner Watt it was, so I understand it, the subject of agreement between the Council and the applicant. The issue which required determination as a matter of law was raised in the course of the proceedings by the Commissioner. It was necessary for the Commissioner to deliberate upon the matter because, as I understand it, a number of objectors were invited to place their positions in relation to the matter before the Court, notwithstanding that the Council had indicated that it would concur in its approval. 3 Difficulties arose once the legal question had been determined and the applicant resolved to withdraw the appeal with the expectation that the Council would grant an approval. It was believed this would be the most efficient means of disposing of the matter. Regrettably, that turned out not to be an efficient mechanism and the applicant has now brought a fresh appeal in relation to the matter. As I understand it, that appeal is in relation to an application which has been amended following the consideration of the court appointed expert's report in relation to the previous application. I am not sure as to the extent of the amendments but, I assume they address a problem which had been identified by the court expert. 4 The parties are at odds as to whether or not the matter should go back to Commissioner Watts. The Council says that it should go back to Commissioner Watts. I have been informed of views which the Commissioner has expressed, apparently informally, in relation to the matter, which suggests that the Council believes that the Commissioner will refuse it. The applicant resists the appointment of Commissioner Watts because no doubt, amongst other things, the applicant perceives that the Commissioner, by reason of the informal communication, is unlikely to approve it. 5 In those circumstances, it seems to me that it would be undesirable if the matter was to go back to Commissioner Watts. Any matter in this Court should be determined by a person who neither party has any reason to believe has any pre-determined view in relation to the matter. And, unfortunately, from the material before me and submissions placed before me from the bar table, this is unlikely to occur in the present case. 6 This is not a criticism of the Commissioner, it is merely an outcome which has developed from the way the matter has progressed. 7 The parties need to make arrangements for the court expert to update his report. For this purpose I grant leave to approach the court expert and arrange a date for the filing of the supplementary report. The parties also have liberty to approach the Registrar forthwith to obtain a hearing date which, of course, should be after the supplementary report is available but at the earliest possible convenient date. ********** 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.