McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209

Reported Decision: 161 LGERA 17072 NSWLR 504

New South Wales Court of Appeal

CITATION: McGOVERN v KU-RING-GAI COUNCIL [2008] NSWCA 209 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 June 2008

JUDGMENT DATE: 1 September 2008

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 64; Campbell JA at 234

(1) In proceedings no. 40103 of 2007: (a) dismiss the appeal; (b) order the appellants to pay 75% of the second respondent's costs of the appeal and 25% of the Council's costs of the appeal.

(2) In proceedings no. 40114 of 2008: DECISION: (a) grant the applicants leave to appeal and direct that the notice of appeal be filed within seven days; (b) in respect of the appeal, set aside the orders made by Pain J in the Land and Environment Court on 11 February 2008 and in lieu thereof order that the applicants pay: (i) 25% of the costs of the Council, and (ii) 75% of the costs of the second respondent of the proceedings in that Court incurred after 28 October 2005.

(3) Order that the respondents pay 75% of the appellants' costs of the proceedings in this Court, in the following proportions, namely 50% payable by the Council and 25% payable by the second respondent.

CATCHWORDS: ADMINISTRATIVE LAW – bias – distinction between acts of prejudgment and conflicts of interest – test for prejudgment – whether local councillors incapable of persuasion - ADMINISTRATIVE LAW – bias – test for reasonable apprehension of bias – differences in application of test to judicial and administrative decision-makers – statutory context of decision-making process – level of knowledge of fair-minded observer – whether local council acting as consent authority created reasonable apprehension of bias – whether conduct of council officer created reasonable apprehension of bias – whether councillors formed views after consideration of available information– Local Government Act 1983 (NSW) ss 8, 232, Chapter 7 – Environmental Planning and Assessment Act 1979 (NSW) s 79C - ADMINISTRATIVE LAW – procedural fairness – whether objector to development application entitled to procedural fairness - ADMINISTRATIVE LAW – validity of decision-making process – whether decision invalid if member of collegiate decision-making body tainted by apprehended bias – characteristics of collegiate decision-making bodies – "but for" test - COSTS – discretion to award – order as to costs in unresolved part of proceedings relating to previous development application – whether unsuccessful applicant pays two sets of costs – respondents joined in similar interest – where one respondent is decision-maker – Civil Procedure Act 2005 (NSW) ss 64(3), 98 – Courts Legislation Amendment Act 2007 (NSW) Schedule 6[28] – Land and Environment Court Act 1979 (NSW) s 58(3)(c) – Uniform Civil Procedure Rules 2005 (NSW) r 42.1, Schedule 6, cl 15 - LOCAL GOVERNMENT – building control – development applications – how development application must be made – whether substantial compliance with statutory requirements – whether irrelevant considerations taken into account – documents and information required for development application – requirements of development control plans – Environmental Planning and Assessment Act 1979 (NSW) s 78A, 79C – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2 - LOCAL GOVERNMENT – regulation and administration – powers, functions and duties of local council – whether decision by local council granting development consent invalidated by reason of apprehended bias – whether councillors formed views after consideration of available information – whether communications between councillors and agent of applicant created apprehension of bias – whether conduct of council officer created apprehension of bias – Local Government Act 1983 (NSW) ss 8, 232, Chapter 7 - STATUTORY INTERPRETATION – whether requirements for valid development applications mandatory – standard of compliance with statutory requirements – Environmental Planning and Assessment Act 1979 (NSW) s 78A – Environmental Planning and Assessment Regulation 2000 (NSW) cll 50, 51, Schedule 1, Part 1, cll 1, 2 - WORDS & PHRASES – "fair-minded observer" – "reasonable apprehension of bias"