Land and Environment Court of New South Wales CITATION : Marina Bay Developments Pty Ltd v Pittwater Council [2007] NSWLEC 853 APPLICANT Marina Bay Developments Pty Ltd PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10898 of 2007 CORAM: Bly C KEY ISSUES: Development Application :- Preliminary question,single party communication,prejudgement of application. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Bonfoal Pty Limited v Botany Bay City Council, (10417 of 1998); CASES CITED: Australian National Securities Limited v Spedlee Securities Limited & Ors 1992 26 NSWLR 411; Re JRL; Ex parte CJL DATES OF HEARING: 18/12/2007 EX TEMPORE JUDGMENT DATE : 18 December 2007 APPLICANT Mr A. Galasso, SC Instructed by Mr T. Flaherty of Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT Mr C. McEwen, SC and Mr A. Pickles Barrister Instructed by Mr J. Brown of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 18 December 2007 10898 of 2007 Marina Bay Developments Pty Ltd v Pittwater Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 The Chief Judge has allocated to me the matter of Marina Bay Developments Pty Limited and Pittwater Council, (File No. 10898 of 2007), listed to commence on-site at 9.30am on 18 December 2007. The appeal, under the Environmental Planning and Assessment Act 1979, involves the Pittwater Council's refusal of a development application for a residential development at Bayview on the shores of Pittwater. 2 On 17 December 2007, the Respondent Council's solicitors wrote to the Court under instructions to make an application that I should, at the commencement of the proceedings, disqualify myself from the hearing on two grounds: 1. on 14 December 2007 the Commissioner telephoned the Applicant's solicitor and therefore, engaged in a single party communication; and 2. by inference of what was said, that the Commissioner has prejudged the Development Application the subject of the proceedings. 3 On 13 December 2007 I had a telephone conversation with Mr T Flaherty, the Applicant's solicitor, in the case. This conversation is reflected in his affidavit dated 17 December 2007. This affidavit reveals in essence my conversation with him inquiring as to whether there were any proposed amended plans being prepared in response to the joint experts report on the Court's file. That affidavit also reflects that I asked him to inform the Respondent's solicitor of our conversation. 4 In turn Mr Flaherty had a conversation with the Respondent's solicitor, Mr J Browne, on 14 December 2007. This conversation is reflected in his affidavit dated 17 December 2007. 5 On behalf of the Respondent Mr McEwen submits in essence that because I had a conversation with one party in the absence of the other then an apprehension of bias arises. In reference to the affidavits he submitted that notwithstanding their contents a concern nevertheless arises because it cannot be known for certain what was said in its entirety or indeed how it was said. The concern of not knowing results in an apprehension of bias 6 In support of his submissions Mr McEwen referred me to the judgments in Bonfoal Pty Limited v Botany Bay City Council, (10417 of 1998); Australian National Securities Limited v Spedlee Securities Limited & Ors 1992 26 NSWLR 411; and the High Court's decision in Re J.R.L.; Ex parte CJC. 7 Whilst I understand the principles of procedural fairness reflected in those cases, on their facts I do not accept that they sufficiently correlate to the facts in this instance, that involve my seeking to obtain on an agreed basis the relevant plans before the commencement of the hearing. 8 Mr McEwen's submitted that these differences are irrelevant but I do not agree with him. Instead as Mr Galasso submitted, the test is objective and on the facts as represented in the affidavits there can be no apprehension of bias. Nor is there any unfair advantage for the Applicant or disadvantage for the Respondent. 9 In the circumstances, I do not accept that on the basis of my reading of the materials on the Court's file and subsequently, directly asking for ordinarily consequential materials (the plans), to be provided before the hearing a reasonable person would believe me to be biased or to have prejudged the application. 10 In terms of the efficiency of the Court it is appropriate for Commissioners to be properly prepared when they attend hearings especially those that begin on site and such preparation includes being acquainted with the relevant plans. 11 In reaching my decision I have given some but not determinative weight to the fact that the matter is ready to proceed and the consequences of not doing so will add unnecessarily to the cost of the proceedings. 12 I have therefore decided not to disqualify myself ___________________ T Bly Commissioner of the Court Cc/ljr 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.