Application 320 of 2009
(Durward SC DCJ - 20 September 2011)
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the judgement
Environment and Planning – decision of Council approving development application for MCU – extensions to dwelling – code assessable – whether invalid – whether errors of fact, taking into account of irrelevant considerations and failure to taken into account relevant considerations – whether failure to apply planning scheme provisions – whether Decision Notice is defective – whether pre-judgment of development application – whether delegation proper or validly executed
Facts: The Applicants filed an Originating Application which sought to overturn Council's decision to approve a development application made by the First Co-Respondent on behalf of the Second Co-Respondents for a development permit for a material change of use for extensions to a detached house and preliminary approval for building work in relation to land located at Yarrawonga Drive, Castle Hill. The proposal involved the addition of one storey and expansion of a car parking area.
The Applicants' dwellings sat above the subject site on a slope and the proposed development would interrupt their views by the elevation of the roof line.
The development application was made under the Integrated Planning Act 1997 (IPA), was code assessable and did not require public notification. However, the Applicants made numerous submissions to Council about the application prior to lodgement and during the assessment process.
The Amended Originating Application sought declarations that Council's decision was invalid on administrative law grounds. The arguments included that Council:
- made errors of fact amounting to jurisdictional error;
- failed to properly consider relevant considerations and took into account irrelevant considerations;
- made a decision so unreasonable that no reasonable assessment manager could have made it; and
- erred in law.
It was also argued that Council's decision was:
- invalid on the basis of a reasonable apprehension of bias because a Mr Licciardello (Council's Director of Planning and Economic Development) also owned a vacant block within 200 metres of the subject site; and
- invalid because it failed to give proper, genuine and reasonable consideration to the development application and the Applicants' submissions.
- The Applicants argued that when all the grounds of invalidity were considered together, their cumulative effect was that the Court should find the decision of Council invalid, set it aside and remit the development application to the Council to be determined according to law.
Decision: The Court held, in dismissing the application, that:
- The test of "reasonable apprehension of bias" was to be objectively applied. Rather than asking was "was done", for example, "the question is one of possibility (real and not remote), not probability".
- The allegations against Mr Licciardello were very serious allegations akin to an allegation of fraud and they required very careful consideration before being made. The mere fact of ownership was not enough to raise any reasonable apprehension of bias on the part of a fair minded observer having some knowledge of the facts and being apprised of the relevant circumstances.
- The delegation to Mr Licciardello was regular and authorised. It could not be the case that because a person had a wish or expectation for an administrative function by a local authority to be performed in a particular way, that the local authority is bound to do what is wished, expected or requested.
- The Applicants bore the onus of proof on the balance of probabilities. If the applicants were to succeed in establishing that Council's decision was "unreasonable" they would have to show that there was an overwhelming case of unreasonableness, or that the decision was "indefensible" or "so absurd that no sensible person could ever dream that it lay within the powers of the authority".
- The test of the assessment manager's necessary satisfaction in s. 3.5.13(2) of IPA [that the application complies with all applicable codes] could only be challenged in limited circumstances. The test was one of justifiable rather than sound opinion. It was only necessary that the opinion be reasonably open to the assessment manager and the opinion formed by the assessment manager must be accepted unless it could be shown to have been one that no reasonable person could have formed, or that it was based on irrelevant considerations or that in some other way it was unjustifiable.
- The development application in reality, despite the Applicants' very great concerns, was a simple proposal. The Applicants' were concerned about their panoramic views. However, there was not and cannot be absolute guarantee of such an amenity. The proposal was thoroughly assessed. The Council was satisfied that it was able to be approved. The Council did not act unreasonably in the relevant legal sense.
- Council assessed the development application thoroughly. It gave attention to the informal representations of the Applicants. It applied an alternative solution. It had not acted unreasonably in the Wednesbury sense. There had been no factual error, irrelevant considerations taken into account or failure to take into account relevant considerations. There had been no pre-judgment of any material matter. This was not a case of apprehended bias as alleged against the authorised delegate. A decision by delegation was entirely regular and appropriate. There had been no procedural irregularity or jurisdictional error by the Council.
- The Applicants had not discharged their onus. The application should be refused.
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