DeBattista v Minister for Planning and Environment [2018] NSWLEC 202

Land and Environment Court New South Wales

Medium Neutral Citation: DeBattista v Minister for Planning and Environment [2018] NSWLEC 202 Hearing dates: 26, 27 and 28 September, 19 and 22 October 2018 and written submissions by 23 November 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [193] Catchwords: JUDICIAL REVIEW - apprehended bias - Council proposal to amend local environmental plan to reduce permitted development height - no challenge to Gateway Determination by Minister's Delegate - challenge to Council processes - allegation that Council's processes tainted by apprehended bias - apprehended bias alleged against the elected Council - apprehended bias also alleged against three nominated individuals who were not members of the elected Council - approach to be taken to Council decision-making - distinction between political and administrative decision-making - whether issue of apprehended bias arises for political decision-making processes - held apprehended bias test not applicable - prematurity - no evidence that the elected Council would not approach consideration of the planning proposal in an appropriate fashion in light of the outcome of community consultation concerning it - premature to consider restraining the Council from proceeding with the planning proposal given the defect in the community consultation process undertaken having caused that process to miscarry JUDICIAL REVIEW - denial of procedural fairness - planning proposal put on exhibition for community consultation defective in a material respect - defect causes community consultation process to miscarry and therefore of no effect - defect in community consultation process requires Council to consider whether it wishes to recommence community consultation on a correct basis - correct basis would require new community consultation process on the basis of a revised planning proposal - any report to be put to the Council following a new community consultation process would be based on submissions made with respect to a planning proposal compliant with the Gateway Determination findings - declaration of invalidity of community consultation process sufficient and appropriate COSTS - two grounds pleaded - Applicant unsuccessful on Ground 1 - Applicant successful on Ground 2 - preliminary view that there should be no order as to costs - parties should be permitted the opportunity to seek some other costs order - costs reserved Legislation Cited: Civil Procedure Act 2005, s 98(1) Environmental Planning and Assessment Act 1979, ss 56 to 58 and 117 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, cl 16 Uniform Civil Procedure Rules 2005, r 42.15 Cases Cited: Anderton v Auckland City Council [1978] 1 NZLR 657 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 David DeBattista v Shoalhaven City Council [2017] NSWLEC 1602 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 F & D Bonaccorso Pty Ltd v Canada Bay Council (No 2) (2007)158 LGERA 250; [2007] NSWLEC 537 Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140 Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438; [2002] HCA 51 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for Immigration v Jai Legeng (2001) 205 CLR 507; [2001] HCA 17 Lower Hutt City Council v Bank 1 NZLR 545 Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Preferred Projects (Buildings) Pty Ltd v Warringah Shire Council (1999) 106 LGERA 144; [1999] NSWLEC 283 R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 Category: Principal judgment Parties: David DeBattista (Applicant) Minister for Planning and Environment (First Respondent) Shoalhaven City Council (Second Respondent) Representation: Counsel: Mr P Tomasetti SC/Ms A Hemmings, barrister (Applicant) Submitting appearance (First Respondent) Mr A Pickles SC/Ms F Berglund, barrister (Second Respondent)