Land and Environment Court of New South Wales CITATION : Nirimba Developments Pty Limited v Blacktown City Council and Anor [2007] NSWLEC 315 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Nirimba Developments Pty Limited PARTIES : RESPONDENT Blacktown City Council and Anor FILE NUMBER(S) : 10989 of 2006 CORAM: Bly C KEY ISSUES: Development Application :- Notice of Motion - apprehension of bias LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Livesey v NSW Bar Association (1983) 151 CLR 288.; Preferred Projects v Warringah Council (1999) NSWLEC 283 DATES OF HEARING: 8/05/2007 EX TEMPORE JUDGMENT DATE : 8 May 2007 APPLICANT Mr A. Johnson, solicitor LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr T. Hale, SC Instructed by Mr D. Brigden of Holding Redlich JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES T A Bly 8 May 2007 10989 of 2006 Nirimba Developments Pty Limited v Blacktown City Council and Anor This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 On 23 October 2006, proceedings were commenced before me in relation to appeal No 10063 of 2006 ("the first appeal") involving a development application for a residential flat building at Quakers Hill. When that matter commenced there were discussions in relation to the use of a right of way to provide access to that residential flat building and as a result of those considerations the applicant decided to invite the court to consider a second application for the use of the right of way, that being appeal No 10989 of 2006 ("the second appeal"). 2 In my judgment dated 25 October 2006, I decided that both appeals should proceed but that the second appeal should be adjourned in response to the second respondent's request to enable it to prepare a statement of issues and obtain expert evidence. 3 Whilst the second appeal involved matters very much the same or possibly even exactly the same as those matters involving the right of way aspects of the residential flat building that appeal was not considered in the judgment. The decision of the Court in relation to the first appeal was that the appeal is upheld and conditional development consent would be granted. The orders in that matter have now been finalised as the required traffic engineering information enabling the drafting of certain conditions associated with the right of way. 4 By notice of motion the second respondent submits that I should not hear and determine the proceedings in the second appeal on the basis of apprehended pre-judgment. 5 Whilst I have not seen a statement of issues in relation to the first appeal I understand that those issues are essentially the same as the issues in the first appeal insofar as they apply to the right of way. As a consequence it is apparent that a fair reading of my judgment in the first appeal would indicate that I have effectively determined the issues that need to be determined in the second appeal. 6 During a case management held on 27 March 2007 in dealing with aspects of the right of way issues were raised including the impact of the use of the right of way on the second respondent's property. I then observed that I thought that I had considered effectively those issues. Indeed, I went further to say that I thought that the issues associated with the second appeal had been decided. 7 In submissions the second respondent invited me to consider the decision of the High Court in Livesey v NSW Bar Association (1983) 151 CLR 288. In that case Mahoney JA identified four matters to be taken into account in dealing with the question of whether the parties or the public might entertain a reasonable apprehension that a judge might not bring an impartial and unprejudiced mind to the resolution of the question involved. 8 Those matters or tests comprise the following: - (a) The disqualification of a judge for apprehended pre-judgment depends on form rather than substance. (b) Whether there is an unacceptable appearance of pre-judgment is to be decided not according to likelihood but according to possibility. (c) It is to be judged not according to what the court and the parties know but according to the impressions of a lay person who does not know the facts. (d) There will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case. 9 Dealing with the first of those four tests I understand this to be one, for the most part, of appearance and if an otherwise uninformed member of the public would gain the impression from past behaviour then a concern arises that the matter might look as if it has been pre-judged. This is very much like the second test which needs to be applied not according to likelihood but according to possibility. The application of these tests leads me to the conclusion that based upon the facts of my judgment in the first appeal and my utterances during the case management that the possibility of a member of the public gaining an impression that the issues have been prejudged is reasonably likely. 10 Similarly I have no difficulty accepting, in terms of the third test that a lay person would gain an impression from my judgment and utterances during the case management that I would most likely answer the issues in the same way and would therefore have effectively pre-judged the matter. 11 As for the fourth test I doubt that any issue of credibility arises but the facts of the second appeal and the relevant facts associated with the first appeal are plainly essentially, if not actually, identical and this supports the possibility, if not likelihood, that the appearance of pre-judgment would be the case. 12 I was asked to consider the fact that the second appeal has effectively commenced. However, I have not effectively heard any evidence in relation to it even though the evidence in the first appeal would appear to be likely to be the same as that for the second appeal but given that no statement of issues was provided at that time I could not know that for any certainty, nor could I have been aware of any result of the public notification of that application. Another commissioner hearing this matter will I expect need to visit the site, something which I would not need to do if I were hearing it and that is a matter for consideration but I do not think it should be determinative. 13 In the circumstances I have decided that, to paraphrase the words of Talbot J in Preferred Projects v Warringah Council (1999) NSWLEC 283, that a reasonably minded member of the public could reach a conclusion or entertain a reasonable apprehension that I would not be able to bring to bear on this matter an unbiased and unprejudiced mind. Therefore, the notice of motion is upheld. ___________________ T A Bly Commissioner of the Court Dlc/ljr 06/08/2007 - Correction to legal representatives for the Applicant - Paragraph(s) Coversheet 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.