Land and Environment Court of New South Wales CITATION : Addenbrooke Pty Ltd v Woollahra Municipal Council [2009] NSWLEC 95 10004 of 2009 Addenbrooke Pty Limited FIRST RESPONDENT: Woollahra Municipal Council SECOND RESPONDENT: Sydney Harbour Foreshores Committee 10005 of 2009 PARTIES : APPLICANT: Addenbrooke Pty Limited FIRST RESPONDENT: Woollahra Municipal Council SECOND RESPONDENT: Sydney Harbour Foreshores Committee THIRD RESPONDENTS: Ktut Arya & Ors FILE NUMBER(S) : 10004; 10005 of 2009 CORAM: Biscoe J KEY ISSUES: PROCEDURAL FAIRNESS :- apprehension of bias principle – whether judge disqualified from hearing merits appeal from refusal of development consent because he had expressed an opinion in an earlier merits appeal that development will not have an unreasonable visual impact. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(4) Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 10314 Addenbrooke Pty Limited v Woollahra Municipal Council [2008] NSWLEC 190 Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 CASES CITED: Castle Constructions Pty Limited v North Sydney Council [2007] NSWCA 164, (2007) 155 LGERA 52 Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 McGovern v Ku-Ring-Gai Council [2008] NSWCA 209, (2008) 161 LGERA 170 Preferred Projects (Building) Pty Limited v Warringah Council [1999] NSWLEC 283, (1999) 106 LGERA 144 DATES OF HEARING: 15 June 2009 EX TEMPORE JUDGMENT DATE : 15 June 2009 APPLICANT: Mr A Galasso SC and Mr A Pickles, barrister SOLICITORS: Mallesons FIRST RESPONDENT: Mr N Hutley SC SOLICITORS Deacons LEGAL REPRESENTATIVES: SECOND RESPONDENT: Mr M Rolfe (agent) SOLICITORS: n/a THIRD RESPONDENTS: Mr P Clay, barrister SOLICITORS Geoff Farland, Landerer & Co JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 15 June 2009 10004 of 2009 and 10005 of 2009 ADDENBROOKE PTY LIMITED v WOOLLAHRA MUNICIPAL COUNCIL & ANOR EX TEMPORE JUDGMENT 1 HIS HONOUR: This is an application for me to disqualify myself from hearing these two appeals on the basis of apprehended bias. 2 The appeals are from the deemed refusal by Woollahra Municipal Council of two development applications by Addenbrooke Pty Ltd relating to, respectively, the Point Piper Marina and the Rose Bay Marina. At the commencement of the hearing earlier this morning, the third respondents in the Point Piper Marina appeal made the disqualification application orally. Addenbrooke and the other respondents in the appeals do not support the disqualification application. 3 The third respondents are residents of Wunulla Road, Point Piper. They were objectors to the development application in relation to the Point Piper Marina and appear as if they were parties pursuant to s 97(4) of the Environmental Planning and Assessment Act 1979. 4 The apprehension of bias, it is said, arises because in my judgment in an earlier case I pre-judged an issue in the present case when I expressed an opinion that the Point Piper Marina will not have an unreasonable visual impact and made related statements. In the earlier case I dismissed an appeal by Addenbrooke against the council's deemed refusal of an earlier application for the development of both marinas: Addenbrooke Pty Limited v Woollahra Municipal Council [2008] NSWLEC 190. The third respondents rely on the judgment at [65], [66] and [94] where I said: "65 The visual impact of the proposal is the principal issue between the parties and the major concern raised by residents. The main focus of the visual impact inquiry is the Rose Bay Marina development. 66 In my opinion, the proposed Point Piper Marina will not have an unreasonable visual impact. The impact of the proposed Point Piper Marina on views from the public domain will generally be mitigated. It replaces an existing marina. It is viewed from the south against the backdrop of the Royal Motor Yacht Club. It is viewed from the east against the backdrop of Point Piper and is partly shielded by Rose Bay Marina. It represents a relatively modest increase in size. The Royal Motor Yacht Club does impact on views from the public domain but, in my opinion, the proposed Point Piper Marina will not unreasonably exacerbate this impact. The proposed development will, however, impact on views from properties in Wunulla Road. … 94 Having bifurcated the existing marinas, the proposal will create at the Rose Bay Marina three berthing arms and the impression of a wall of boats, many of them very large. 75 of the 124 boats at Rose Bay Marina will be larger than 15 metres, whereas at present 92% of boats at both marinas are less than 15 metres. For a significant distance along the Esplanade and New South Head Road the boats will obscure prime views extending as far as Manly. In contrast, the proposed development of Point Piper Marina is relatively modest and is buried visually in the shadow of the existing structure and the Point Piper backdrop. The size and scale of the proposed Rose Bay Marina will dominate west Rose Bay. In my opinion, it will have a very adverse visual impact." 5 I concluded my judgment by saying that "my conclusions in respect of the visual impact of the proposed Rose Bay Marina are sufficient to lead to dismissal of the appeal and refusal of the development application": at [184]. 6 I understand that for the third respondents the visual impact of the Point Piper Marina is an important issue, perhaps the issue with which they are primarily concerned. The third respondents say that the position here is stark, that the development proposed is the development in respect of which on the prior occasion I said the Point Piper Marina would not have an unreasonable visual impact, and that this is the issue they seek to argue in the present appeal. It appears to be common ground that the proposed structure for the Point Piper Marina in the present Point Piper Marina appeal is close to identical to that which was the subject of consideration on the earlier occasion. 7 The test of apprehended bias was stated in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6] – [7] as follows (omitting citations): "[6] …a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. [7] …The question is one of possibility (real and not remote), not probability…." 8 The hypothetical fair-minded lay observer is one who is properly informed but is not presumed to have a detailed knowledge of the case: Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at [13]. 9 The third respondents fasten upon the application of the apprehended bias principle to a pre-judgment case in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411. By a 3-2 majority, the Court of Appeal found that the trial judge, having heard the first of a number of related proceedings, should not hear any further proceedings. The third respondents refer in particular to the judgment of Meagher JA at 448 – 449, who reluctantly regarded himself as bound to join the majority, and submit that it is sufficient to give rise to a perception of pre-judgment that a judge has determined an issue which arises in a later case. In my view, the case is distinguishable. It is important to read the case in the context of its circumstances. The circumstances were that the further proceedings raised the same issues, which depended or might depend upon the evidence of the same witnesses in respect of whom the judge had made adverse findings either of fact, or upon their credit or had commented adversely upon their recollection or commercial integrity: at 426 and 432. Mahoney JA, in the majority, said that he confined what he had to say to the issues of fact and credibility of the kind there in question: at 437. It is in that limited context that Mahoney JA's later statement is to be understood: that there would be an unacceptable appearance of pre-judgment if the judge previously dealt with the issue of fact or credibility which would be before him in the subsequent case: at 438. 10 In Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 at [26] Rothman J said that ANI v Spedley involved a series of cases in which identical issues arose and in which, in the first such case, the judgment depended on adverse findings on the credit of witnesses involved in the corporation; that finding was central to the judgment; and all other proceedings depended on the same evidence from the same witnesses called by the corporation. 11 The third respondents cite Preferred Projects (Buildings) Pty Limited v Warringah Council [1999] NSWLEC 283, (1999) 106 LGERA 144. In that case, Talbot J dealt with an application that a Commissioner of this Court should not hear an appeal for refusal of a development consent because the Commissioner had previously heard an appeal in respect of the site and in dismissing that appeal made observations about the form of development which may be acceptable. There was then a second appeal, which appears to have been reflective of those observations. Talbot J held at [28] that he was satisfied that: "in circumstances where the Commissioner has offered an opinion about what might be acceptable, and what steps might be taken to remedy defects in the earlier development application there is a real apprehension on the part of a casual observer that having invited, as it were, a reformatting of the development application to meet the criticisms that were raised in the earlier proceedings, he might have predetermined the matter. A casual observer would be entitled to reach that view." 12 That case is distinguishable because it is not the basis of this disqualification application that in the earlier proceedings I offered an opinion about what might be acceptable and what steps might be taken to remedy defects. 13 The third respondents cite Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164, (2007) 155 LGERA 52. In that case a majority of the Court of Appeal, after allowing an appeal on a question of law, applied the apprehension of bias principle and directed the remitter to a Commissioner of this Court other than the Commissioner who had decided the matter. Tobias JA quoted the primary judge who said that the Commissioner had expressed "his dislike of the proposal in trenchant and powerful terms and appears to have given his individuated preferences priority over the provisions and intent of the planning scheme": at [65]. His Honour held that the nature and expression of the Commissioner's findings were such as to clearly give rise to a reasonable apprehension that he may not decide the case on a remitter impartially in the relevant sense: at [85]. That case is distinguishable. It is not suggested that any such factors were present in my earlier judgment and that, for that reason, I should disqualify myself. 14 In my earlier judgment I said that the proposed Point Piper Marina will impact on views from properties in Wunulla Road. If that is a predetermination in the relevant sense, it is against Addenbrooke, not against the third respondents. I distinguished between the impact of the proposal on views from the public domain and on views from properties in Wunulla Road: at [66]. The evidentiary focus in the earlier proceedings was very much on the former and there was very little evidence in relation to the latter. That may have been because the third respondents did not seek to be heard or to call evidence in the earlier proceedings. 15 In contrast, in the present proceedings there is a joint experts report in relation to visual impact. Three experts compiled that report, one for Addenbrooke , one for the council and one for the third respondents. They are different visual impact experts from those who gave evidence in the earlier proceedings. Their report says that the impact of the Point Piper Marina redevelopment from the public domain would be low and would not, of itself, be a reason for refusal. That seems consistent with my judgment in the earlier proceedings. They go on to consider the cumulative effect of the Point Piper and Rose Bay marina redevelopments and the impact on views from properties in Wunulla Road. 16 Thus, new experts, including an expert retained by the third respondent, are to give evidence on the visual impact issue, and I will hear other evidence on that issue. Unlike ANI v Spedley, this is not a case where the determination of that issue will or might depend on the same evidence from the same witnesses called on the previous occasion about whom I made adverse findings of fact or upon their credit. 17 In the circumstances, I do not think that a fair minded, properly informed lay observer, might reasonably apprehend that I might not bring an impartial mind to the resolution of the view impact questions that I will be required to decide. 18 I do not stay to consider whether it is arguable that the statutory scheme for development consents and merits appeals is such that the "open to persuasion" test for apparent bias by pre-judgment applicable to a consent authority (see McGovern v Ku-Ring-Gai Council [2008] NSWCA 209, (2008) 161 LGERA 170 at [23]) should also apply to this Court in a merits appeal (where it stands in the shoes of the consent authority); and, if so, whether this should lead to the opposite conclusion from that reached in Preferred Projects. 19 The third respondents' application that I disqualify myself from hearing these appeals is dismissed. 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