The Supreme Court has recently considered whether a Council decision to approve a development application was affected by apprehended bias due to Council members having negotiated with the planning applicants through a mediation in the State Administrative Tribunal (Tribunal). The case is Sanders v City of South Perth  WASC 226.
Chief Justice Quinlan determined that there was no actual or apprehended bias.
The Council originally refused the development application for reasons that included that the proposed development significantly obstructed the view of the neighbours. The planning applicant sought a review of this decision in the Tribunal and the matter was referred to mediation.
The mediation was attended by the Mayor of the City, councillor 'C', and City staff and consultants. The mediation led to the production of amended plans, which were subsequently considered by Council and approved in an Ordinary Council Meeting in February 2018.
The neighbours sought a judicial review of the Council's decision in the Supreme Court on a number of grounds, including that the City's decision was affected by actual or apprehended bias in that the councillors had not brought a neutral and independent mind to the development application, the City having negotiated with the planning applicants through the mediation process.
Test for prejudgement bias
The bias alleged by the neighbours was bias in the form of prejudgement.
Quinlan CJ noted that the test for prejudgement bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the question to be decided.
The Chief Justice observed that the relevant 'state of mind' to be apprehended is that identified by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng  HCA 17, who stated that:
- decision makers sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publically expressed, without being accused or suspected of bias;
- the question is not whether a decision-makers mind is blank; it is whether it is open to persuasion;
- the state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence of arguments may be presented; and
- natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
In applying these general principles it is necessary to have regard to the nature of the power, the character of the repository of the power, and the circumstances in which the power is exercised.
The hurdle of proof
Quinlan CJ reviewed the legal authorities and observed that, in the context of planning decisions, the following formulation of the relevant test by McLure JA in Re MacTiernan: Ex parte Coogee Action Coalition Inc  WASCA 109 properly captured the necessary hurdle of proof in the allegation of prejudgement:
- in the case of prejudgment the question is whether there is a reasonable apprehension that the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented;
- an alternative formulation is whether a reasonable and informed member of the public would conclude there was a possibility that the decision-maker was not open to persuasion, bearing in mind it could properly form a preliminary view (even a strong preliminary view) as to the planning merits of the proposed development.
The comments of the Mayor and councillors
In submitting that there was actual or apprehended bias, the neighbours relied principally on comments made by the Mayor and a number of councillors at the February Council Meeting. In particular:
- councillor C referred to the 'opportunity to maintain the integrity of the mediated outcome by an approval';
- the Mayor stated 'I find it a challenge coming up with this determination and it's not something I've taken lightly however in good faith I entered the mediation and in good faith I am making the decision'; and
- councillor M stated 'the mediation process [at the Tribunal] resulted in the application we see before us today. I think it's fair to assume that the parties to the mediation consider that the present application, to the original application that is, complied with the Town Planning Scheme.'
Determination of the Chief Justice
Quinlan CJ did not agree with the neighbours submission, stating that his view was that these remarks, taken in context, neither individually nor in combination suggest the possibility of a mind 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented', noting that:
- the remarks were made by members of the Council after all the evidence and arguments had been presented. The members of Council were not expressing pre-determined or preliminary view, but rather views that had been reached after considering all of the relevant information;
- the statements, on a fair reading, do not suggest that any member of Council considered they were bound to give effect to a mediated outcome. The remarks as a whole suggest the councillors were aware that, whatever outcome had been agreed at the mediation, it was a matter for their independent consideration against the legislative criteria; and
- the fact that the final plans arose from a mediation should not preclude the Council's ability to reach the necessary state of satisfaction as to the legislative criteria.
The Chief Justice noted that the context in which the various comments were made is important.
It was the final consideration of the development application following a number of meetings and changes to the application. It is inevitable that some of the members of Council would by that stage have reached a view as to whether the application should be approved.
In this regard the Chief Justice considered that the comments of Basten JA in McGovern v Ku-Ring-Gai Council (2008) 72 NSW 504, in similar circumstances, were apposite:
"However, the fallacy underlying the appellant's case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on prejudgment merely to maintain one's original position if that position was properly adopted.
The evidence demonstrated two critical factors in this respect: first, Councillor Ryan's initial view was not uninformed and, secondly, she acted on the basis that Council should vote in accordance with recommendations made by its expert officers, unless they were shown to be wrong. The Court, in such a case, is not involved in assessing the correctness of views formed by decision-makers, except to the extent that holding a view shown to be erroneous may demonstrate a reasonable apprehension of bias in the sense of prejudgment, or reveal some legal error."
Quinlan CJ held that the Council was not affected by actual bias, nor might a fair-minded lay observer reasonably apprehend that the City might not bring an impartial mind to the question to be decided.
Councillors need to be aware of the danger of apprehended bias when determining planning applications and making other Council decisions, particularly where the City has negotiated with the applicants. Councillors must be careful in expressing their views and be open to persuasion and make decisions once having considered all the available information.
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