Court Rejects Bias Allegations Against Local Planning Panel
In the recent case of Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127, the applicant sought to challenge the determination of the Blue Mountains Local Planning Panel (Panel) in relation to an ‘ultra-trail’ running event to be conducted in and around Katoomba in the Blue Mountains. The applicant contended that, amongst other defects, the Panel and the Council were effectively one and the same entity and that the Panel lacked the necessary independence to assess and determine the DA. The Court, in reviewing the statutory and regulatory framework of Local Planning Panels as against the various defects alleged by the applicant, including allegations of apprehended bias on the part of the Panel, held that there was no basis to set aside the development consent.
Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127
The applicant’s case was relatively novel, arguing that the integrity of the NSW planning system of the State had been undermined by a decision of the Panel, which was infected by bias, requiring the consent to be set aside on public interest grounds. The bias arose out of the following circumstances, according to the applicant:
- the Panel and the Council were not separate bodies. The Panel was selected by the Council, used the Council’s website and met at the Council’s offices. It made its decisions “on behalf of” the Council;
- the Council owned part of the land upon which the event was to be held. Therefore, it could not grant the consent or have the Panel grant consent on its behalf;
- the Council was a “supporter” of the event and, therefore, it had prejudged the DA; and
- the Council received income from the running of the event, which gave rise to actual or apprehended bias.
Structural Separation
The Court held that the mandated structural separation of the decision-making functions of the Panel and the Council in respect of the determination of the DA ensures independence and impartiality in the Panel’s assessment function. There is nothing in the consent determination by the Panel that is suggestive of partiality in the Panel’s decision to grant consent. The applicant was not able to point to any aspect of its deliberation, in either the determination or the Assessment Report, that were in any way deficient in this regard.
The Court further observed:
- the Council was required to establish the Panel by Ministerial direction made under s 9.1(1) and (2)(b1) of the Environmental Planning and Assessment Act (EPA Act).
- the members of the Panel were obliged to be, and were, independent of the Council. None of the members were councillors. While they were selected by the Council, this did not render the Panel members lacking in independence, especially when regard is had to the statutory selection criteria.
The Council as Landowner
The Minister for Planning is specifically empowered to give directions to councils in relation to DAs that are to be determined by local planning panels (ss 4.8(3), 9.1(1) and (2)(b1) of the EPA Act). In Minister’s Local Planning Panels Direction dated 30 June 2020, the Minister expressly identified a conflict of interest where a council is the owner of the land the subject of a DA. In such a case, the DA must be determined by the local planning panel, which is what occurred in this case. On that basis, absent any evidence to the contrary, there can be no assumption of bias, actual or apprehended, in circumstances where the Panel discharged its function as intended by the operation of the Ministerial direction and regulatory regime.
The Council as Supporter of the Event and Prejudgment
The Court held that, while it may be accepted that the Council was generally supportive of the event on the basis that the event brought an economic and social benefit to the local community, this should not be conflated with prejudgment or give rise to any conflict of interest. Moreover, it was not any perceived “prejudgment” by the Council that was relevant, but rather the Panel, about which there was clearly no evidence of prejudgment. The Panel’s attitude to the event was not known.
The Council as Pecuniary Interest Holder
In relation to the allegation of financial conflicts of interest, the Court cited the observations noted in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337: “where a judge [Tribunal] has a not insubstantial, direct, pecuniary or proprietary interest in the outcome of the litigation” this will “ordinarily result in disqualification” (at [58]).
In applying the relevant principles, the Court held that, while Council held a pecuniary interest in the event (charging of a fee for the licence of the Katoomba Golf Course car park and the fee associated with the lodgement of the DA), this did not give rise to any conflict of interest or apprehended bias, for the following reasons:
(a) first, the decision to grant consent was that of the Panel, not of the Council;
(b) second, it cannot be said that the pecuniary interest was “not insubstantial” given the amount of the fees at issue;
(c) third, the charging of fees for the use of public land is expressly authorised by the Local Government Act 1993 (LG Act) and other properly adopted plans, including the Blue Mountains Fees and Charges 2022-2023 Policy, which determines fees for a wide range of sport and recreation activities held on Council land. The charging of fees for use of Council lands is therefore an incident of landownership permitted by the LG Act which does not, of itself, interfere with the impartial function of determining DAs under the EPA Act either by the Council or the Panel; and
(d) fourth, the logical corollary of the applicant’s submission is that no council or public body with a decision-making function could ever charge a fee for the use of its services, administrative or otherwise irrespective of whether or not it was permitted to do so by statute. The Court was prepared to accept that proposition.
Discretion to Grant Relief
For completeness, the Court countenanced the discretionary power available to the Court if, for whatever reason, the Court’s reasoning was incorrect in relation to the applicant’s primary arguments.
In short, the Court was not prepared to entertain that discretion, on the grounds that numerous third parties involved in the sporting event (both direct and indirect), including registrants and the local community, would be materially disadvantaged and suffer significant prejudice if the consent was declared invalid and set aside only days prior to the commencement of the event. The Court observed that the damage to the event organisers and to the public by not permitting the event to proceed far outweighs the public interest in declaring the consent invalid and setting it aside.
Observations
The determinations of Local Planning Panels are not above judicial scrutiny, as observed by this challenge. However, what is clear is that the legislative and regulatory framework surrounding the establishment and operation of Local Planning Panels, including Ministerial directions issued under the EPA Act, renders the integrity of the decision-making powers of Local Planning Panels relatively safe from challenge (leaving aside merit-based appeals), save where it can be established that actual or apprehended bias has infected the decision-making process.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
Liability limited by a scheme approved under Professional Standards Legislation.
Authors: Anthony Perkins & Claire Parsons
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