Land and Environment Court New South Wales

• Medium Neutral Citation: Wiedeman v Randwick City Council [2013] NSWLEC 159
• Hearing dates: 15, 16 October 2012
• Decision date: 27 September 2013
• Before: Craig J

Decision

1. Summons dismissed.

2. Applicant to pay the respondent's costs unless within seven days application is made for a different order.

3. Exhibits may be returned.

• Catchwords: ADMINISTRATIVE LAW - judicial review - apprehended bias - use of neighbourhood park for junior sports authorised by a development consent and temporary licence under s 108 of the Crown Lands Act 1989 - application to modify consent made under s 96 of the Environmental Planning and Assessment Act 1979 - Council only authority able to determine the application - principle of necessity - application for modification assessed by external independent consultant - assessment of comparable park use by reference to cost of use of competing parks - whether assessment was made by reference to cost of other parks - no conflict of interest; ADMINISTRATIVE LAW - judicial review - procedural fairness - representation by council as to assessment of application for modification of development consent by reference to an external independent planning consultant - planning consultant draft report amended by others - amendments accepted by consultant - amendments did not effect any change of substance to consultant's report - expectation that representation would be fulfilled - no denial of procedural fairness - summons dismissed
• Legislation Cited: Crown Lands Act 1989 (NSW); Civil Procedure Act 2005 (NSW); Development Act 1993 (SA); Environmental Planning and Assessment Act 1979 (NSW); Local Government Act 1993 (NSW); Randwick Local Environmental Plan 1998; Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Alexander v Yass Valley Council [2011] NSWLEC 148; (2011) 184 LGERA 123; Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HL Cas 759; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Sidney Harrison Pty Ltd v City of Tea Tree Gully [2001] SASC 27; (2001) 112 LGERA 320
• Category: Principal judgment
• Parties: Trudy Wiedeman (Applicant); Randwick City Council (Respondent)
• Representation: P J McEwen SC with M D Seymour (Applicant); S A Duggan SC (Respondent); Booth Boorman Kiely (Applicant); Norton Rose Fulbright (Respondent)
• File Number(s): 40627 of 2012

Judgment

1 Bardon Park at Coogee (Bardon Park or the Park) is an urban park under the control and management of Randwick City Council (the Council). Use of the Park by children aged between 6 and 12 years for football training in the late afternoon and early evening on two afternoons each week during the football season was the subject of a development consent granted by the Council to itself in 2007.

2 In April 2011, the Council resolved to modify that consent. The modification had the effect of allowing an increased number of children, within the age groups earlier identified, to use the Park for training on two nominated days; to allow a section of the Park to be line marked and to allow those training the children to erect one set of portable goal posts at each training session and to be removed at the conclusion of each session.

3 Trudie Wiedeman resides in premises that adjoin the Park. Ms Wiedeman seeks an order declaring the decision of the Council to modify the 2007 consent to be invalid. She also seeks to restrain the Council from acting on the modified consent.

Background to the dispute - briefly summarised

4 In December 2010 works to upgrade the condition of Bardon Park commenced. The work then intended included the removal of the existing grassed surface in the central section of the Park, the laying of new turf in that section and subsequent line marking within that area so as to facilitate its use for football training. As a first step in carrying out this work, the central section of the Park was closed by the erection of temporary fencing. By reason of complaints from residents, directed to the closure of the Park over the holiday period, work ceased until January 2011 when it resumed and then continued until completion.

5 However, as a consequence of the number of complaints received concerning the works in the Park, the then Mayor proposed that the Council give further consideration to the use of that Park. To that end a Mayoral Minute was tabled at the meeting of the Council held on 22 February 2011. In that Minute the Mayor stated that an application for modification of the 2007 development consent would be made for determination by the Council. The Minute identified the manner in which the application would be assessed for, and considered by, the Council. The tabling of the Mayoral Minute was preceded by a letter from the General Manager of the Council to a number of residents, in effect pre-empting the Mayoral Minute by indicating that an application for modification of the 2007 development consent would be prepared and its assessment carried out in the manner subsequently stated in the Mayoral Minute.

6 The decision to consent to the application to modify the 2007 development consent was made by the Council's Planning Committee on 12 April 2011. On that same day, the Works Committee of the Council considered a report in respect of the use of Bardon Park. Among other matters, that report identified the cost of landscaping works, yet to be carried out in the Park, in accordance with a decision so to do that had been made by the Council in December 2010. The report also identified the cost of installing lighting in the outer area of another park or reserve known as Coogee Oval, that cost being considerably in excess of the landscaping work to be carried out in Bardon Park. The resolution of the Works Committee at that meeting sought to maintain the present use of Bardon Park, relevantly its continued limited use for junior football training during the football season.

7 In the context of these events, invalidity of the Council's decision to consent to the modification application is founded upon two grounds. First, it is contended that the decision was infected by error due to apprehended bias arising from a conflict of interest, that interest being a financial interest in retaining use of the Park when considering the cost of alternate facilities at another park. Secondly, it is contended that there was a denial of procedural fairness in that, having understood the modification application was to be assessed in the manner represented by the Mayoral Minute and the General Manager, Ms Wiedeman was not notified that the process was changed with the consequence that she was denied the opportunity to make further submissions to the Council concerning the application.

8 The evidence upon which these issues must be determined is not the subject of any significant dispute. Primarily, the evidence is documentary. What is in dispute is the correct interpretation of, or inferences to be drawn from, the documents that have been tendered in evidence. In order to address this dispute, it is necessary to describe the relevant events and documents in more detail.

Bardon Park

9 The Park is described as having an address known as 71R Mount Street, Coogee. It comprises a reserve for public recreation under the Crown Lands Act 1989 and is managed by the Council for that purpose under the provisions of that Act. The Park has an area of about 1.5 hectares.

10 The Park is described as having a central area that is flat and grassed, with perimeter trees predominately growing adjacent to and along the eastern and western boundaries. A croquet court and club building are located in the south-eastern section of the Park. Apart from the croquet court, the Park is described as being used for various recreational activities both passive and active. It is a park in which dogs are allowed to run off-leash.

11 The Park is identified as a neighbourhood park in the Council's Neighbourhood Parks Generic Plan of Management. The Plan of Management records that (p 14):

"... informal sport is accepted as appropriate on neighbourhood parks - this usually means that playing fields do exist but are not of a standard size, nor would they have lighting, permanent posts or be used solely for the purpose of team sports."

12 The planning controls imposed upon development within Bardon Park are, relevantly, those contained in Randwick Local Environmental Plan 1998 (the LEP). Under the provisions of that instrument, the Park is zoned 6A Open Space. Development for the purpose of "[r]ecreation" or "[w]orks (but not buildings) involved in landscaping, gardening or bushfire hazard reduction" is development that does not require development consent: cl 18. The term "recreation" is relevantly defined in cl 49 of the LEP to mean:

"... recreational or leisure activities which promote the physical, cultural or intellectual welfare of persons within the community."

The 2007 Development Consent

13 On 24 April 2007, the Council resolved to grant to itself development consent for work described as:

"Installation of three 18 metre height [sic] light towers to allow for use of Bardon Park for organised sports training until 7.30pm on Tuesdays & Thursdays."

That consent was subject to a number of conditions (the 2007 Development Consent).

14 Relevant to be noticed for present purposes are conditions 3 and 4. As those conditions were the subject of the later modification application, it is appropriate to quote them in full:

"3. The light towers must only be operated on Tuesday and Thursday between 4.30pm and 8.00pm.

4. Until such time as a specific plan of management for Bardon Park is prepared in accordance with the provisions of the Local Government Act 1993 the following conditions shall apply to the proposal:

• The light poles must not protrude above the level of the adjacent bank of trees, with a maximum height permissible of 18 metres.

• The proposed light towers must be turned on and off centrally or automatically, not by any user.

• No line markings or goal posts are to be installed.

• The approval for use is limited to the following age groups:

(i) Under 6, 7 and 8 years of age - between 4.30pm and 6.00pm

(ii) Under 9, 10, 11 and 12 years of age - between 6.00pm and 7.30pm.

• The use of the park for football training must be ceased [sic] by 7.30pm on Tuesday and Thursday.

• A maximum of 21 players with 2 supervisors be allowed to use the park for football training between 4.30pm and 7.30pm on Tuesday and Thursday.

• No change rooms, toilet facilities or other temporary/permanent structures are to be placed within the park.

• The impact of the use on the physical condition of the reserve and the impact on the surrounding neighbourhood are [sic] to be monitored and reported to Council 12 months after the commencement of the use.

• Traffic and parking impacts are to be monitored by Council's Officers, for a period of 12 months after commencement of the use, and reported to Council.

• A separate application is required to be submitted to and approved by the Council for any proposed changes to the pattern or intensity of use of the park."

15 The 2007 Development Consent was granted in order to accommodate use of the Park by young members of the Coogee Dolphins Junior Rugby League Club (Coogee Dolphins). Following the grant of the 2007 Development Consent, football training on the Park was undertaken by Coogee Dolphins. It would seem that use of the Park authorised by the 2007 Development Consent was the subject of a temporary licence, granted during each football season pursuant to s 108 of the Crown Lands Act. On application each year a licence was issued to the senior rugby league body with whom the Coogee Dolphins was affiliated. Nothing, for present purposes, turns upon the terms of each licence.

16 In October 2010, Coogee Dolphins applied to use another park known as Grant Reserve for the purpose of football training. The club wished to accommodate a larger number of junior players at training than the 21 players to which it was limited by the 2007 development consent. That application was first considered by the Works Committee of the Council on 7 December 2010 when the Committee resolved to refuse the club's application.

17 However, at the ordinary meeting of the Council on 14 December 2010, the Works Committee resolution of 7 December was rescinded. At the 14 December meeting the Council resolved to permit training by the Coogee Dolphins to continue on the Park from 3.30pm to 7.00pm on Tuesday and Thursday between the months of March and September and to allow up to 60 children to attend training at any one time. The Council also resolved to carry out works to the Park involving the renovation of "the surface of the park to ensure a safe playing surface for the children and a well maintained surface all year round for all of the community". Line marking of the Park for the "designated football season" was also accepted. Funds were allocated for landscaping and seating "to improve the amenity of the park for all."

18 Before commencing work at the Park, an impact assessment of the proposed works was carried out by Council staff for the purpose of observing the provisions of Pt 5 of the Environmental Planning and Assessment Act 1979 (EPA Act). The work proposed for the purpose of carrying out that assessment was described as:

"- Eradicate the existing turf surface

- Decompact the existing surface

- Laser level the surface

- Install automated irrigation system with pop up sprinklers

- Install new turf

- Installation of additional park benches

- Installation of additional dog litter dispensers and garbage bins

- Installation of general planting."

19 The proponent for the purpose of the Pt 5 assessment was described as being the Co-ordinator of Projects within the Council. After checking a number of items within a document prepared to assess environmental impacts, the author of the assessment report drew the conclusion that there would be no substantial overall impact from carrying out the proposed improvements to the Park. The assessment report noted that temporary measures would be implemented to close the Park for recreational activity while the proposed works were undertaken.

20 Works approved as a consequence of the Council's decision of 14 December commenced on 22 December when temporary perimeter fencing was erected in the Park. A letter of that same date was sent by the Council to residents living adjacent to or in the vicinity of the Park, describing the scope of the works proposed and indicating that the Park would be closed while that work was undertaken, expected to extend into January and February of 2011.

21 Almost immediately, complaint was received from local residents, particularly as to the timing of the works. Park closure would deprive residents of access to the Park over the Christmas and New Year periods. As a result, the erection of temporary fencing was suspended during this period but resumed in early January of 2011. Works thereafter continued until completion.

22 Apart from the concerns expressed by reason of the temporary closure of Bardon Park, a number of residents complained to the Council as to the lack of consultation about the works and the impact that they would have by potentially increasing park use for active recreation. Ms Wiedeman was one to express that concern, having first learned of the work in the Park upon her return from vacation on 17 January 2011. Her immediate response was to complain by email to the then Mayor, Councillor Murray Matson. From the terms in which her email was expressed, it is apparent that Ms Wiedeman and Councillor Matson were well-known to each other.

23 On 11 February 2011, the Council's General Manager wrote to a number of residents, including Ms Wiedeman, concerning the work already undertaken at Bardon Park and its use for training by members of Coogee Dolphins. After summarising the history of Park management by the Council under past and present Crown lands legislation and the Council's Neighbourhood Parks Generic Plan of Management, the letter referred to the 2007 Development Consent authorising installation of light poles and use of the Park on nominated days and for limited hours to accommodate football training. The General Manager's letter than continued:

"While it remains arguable whether a Section 96 application is required to vary the development application [sic] conditions of DA/148/2007, I have determined that Council will undertake a Section 96 application for the increase in the number of children from 21 to 60, hours of operation and linemarking. The Section 96 application will be assessed by an external independent consultant and reported to Council for consideration and determination. The Section 96 application will be publicly exhibited."

24 In an email communication from Councillor Matson to Ms Wiedeman on 14 February 2011, he said:

"A consultant will be hired to write the section 96 application.

A second consultant will be hired to assess the application, probably in April. The Councillors will not get it till [sic] after that."

25 Councillor Matson subsequently prepared a Mayoral Minute to be tabled at the meeting of the Council held on 22 February 2011 (the Mayoral Minute). Having referred in the Mayoral Minute to the resolution of the Council on 14 December 2010, the subsequent commencement of works and the temporary cessation of those works at the request of residents, he identified the level of complaint that he had received as a consequence of the Council's decision. In that context he wrote, "I consider the failure to refer the matter to the Coogee Precinct Committee to have been a mistake." He then continued:

"An external independent consultant has commenced preparing a section 96 application to address the increase in children training at Bardon Park, the line marking and the installation of removable goal posts. The section 96 will be reported to Council after it has been publicly exhibited and assessed. The assessment will be undertaken by a second external independent planning consultant and Councillors will debate the recommendation at a council meeting."

26 The Mayoral Minute concluded by making three recommendations. They were:

 

"That:

(a)  the Council report in relation to providing a suitable long-term location for the Coogee Dolphins be brought forward from September 2011 to April 2011.

(b)  the report assesses Coogee Oval and Latham Park as two such possible long-term options but not Grant or Trennary Reserves.

 (c)  Council refers the completed assessment report on the Section 96 application to the Coogee Precinct Committee prior to consideration by Councillors."

The Minutes of the Council of 22 February 2011 are not in evidence so as to disclose what, if any, resolution was passed by the Council in response to the Mayoral Minute.

27 On 1 March 2011 an application to modify the 2007 Development Consent, made under s 96 of the EPA Act, was lodged with the Council. The application form nominated the Council as the applicant. The application was accompanied by a report bearing the same date and prepared by SJB Planning Pty Ltd, a company carrying on a town planning consultancy practice (the SJB Report). The SJB Report stated that the application was for amendment of Conditions 3 and 4 of the 2007 Development Consent. After describing the physical features of Bardon Park, the grant of the 2007 Development Consent and the actions of the Council since December 2010, the report detailed an assessment of the impacts upon the Park consequent upon the proposed amendment of Conditions 3 and 4.

28 Notice of receipt of the modification application lodged on 1 March was given by letter from the Council to about 145 landowners whose properties were located in the vicinity of the Park. Those letters indicated that the application could be inspected at the Council's Customer Service Centre at 30 Frances Street, Randwick for a period of 14 days expiring on 23 March 2011. An advertisement to similar effect appeared in a local newspaper.

29 As a consequence of this public notification and advertising, a large number of submissions were received by the Council. These included three submissions made by Ms Wiedeman.

30 The draft of an assessment report, prepared in the format ordinarily used by Council staff when submitting a report to the Council for consideration of a development application or modification application, was received on 28 March 2011 by the Council's Manager of Development Assessment, Mr Kerry Kyriacou. The draft assessment report had been prepared by staff of Willana Associates Pty Ltd (Willana), a town planning consultancy retained by the Council to assess the modification application (the Draft Report). Upon receipt of the Draft Report, Mr Kyriacou forwarded it to the Council's external solicitors, Shaw Reynolds Bowen & Gerathy (the Solicitors).

31 The Solicitors made a number of amendments to the Draft Report. They did so by incorporating their suggested amendments into the body of the Report that was provided to them. Having made those amendments, the Draft Report was returned to Mr Kyriacou in electronic form. The suggested amendments made by the Solicitors were shown in track change mode in the electronic form of the document. The Draft Report, incorporating the changes suggested by the Solicitors, was then sent to Mr S Harding, the town planner and director of Willana, who had primary responsibility for the preparation of an assessment report. In fact, Mr Harding had little input into the preparation of the Draft Report as he had been absent from work due to illness while that Draft Report was being prepared.

32 Having received the Draft Report incorporating the amendments made by the Solicitors, Mr Harding read it and then caused it to be recorded in his company's computer record system as the final assessment report directed to the modification application. He did not thereafter make contact with Mr Kyriacou concerning that report. In affidavit evidence read in the proceedings, Mr Harding stated that had he been "unsatisfied with any aspect of the Assessment Report" he would have discussed it with Mr Kyriacou. He also stated that had the Report "contained or failed to contain, recommendations or statements which were not supported by me I would have contacted Mr Kyriacou to discuss the matter with him."

33 The Draft Report as read by Mr Harding incorporating changes and amendments made by the Solicitors (the Willana Assessment Report or the Report) was forwarded to Councillors on 1 April 2011. The Report was not provided in track change mode.

34 On or about 4 April 2011, Ms Wiedeman found in her home mailbox a computer disc. The provider of that disc was neither identified nor known to her. After inserting the disc into her computer and gaining access to its contents, she found it to contain a copy of the Draft Report in WORD format into which track changes to that document were recorded by date and author. The document so displayed revealed the changes or amendments made to the Draft Report by the Solicitors. A printout of that document with its track changes was annexed to the affidavit of Ms Wiedeman read in these proceedings. I will return to those changes when discussing the challenge made by Ms Wiedeman to the modification consent on the ground that she was denied procedural fairness.

35 By letter dated 4 April 2011, Ms Wiedeman was advised by the Council that the modification application would be considered at a meeting of the Council's Planning Committee to be held on 12 April 2011. The letter also advised that if Ms Wiedeman wished to address the meeting in respect of the modification application then contact with Council's staff should be made by 2.00pm on 12 April so as to indicate her intention so to do. Further, the letter provided an email address to which documents could be sent for consideration by Councillors, provided they were sent by 3.00pm on the day of the meeting. Ms Wiedeman was also advised that a copy of any report to be considered at the meeting could be obtained from the Council's Customer Service Centre after 12 noon on 6 April 2011, that is, six days prior to the meeting at which the application was to be considered.

36 The Willana Assessment Report was considered by the Planning Committee of the Council on 12 April. At that meeting the Council resolved to grant consent to the modification application subject to conditions.

37 Condition 1 of the 2007 Development Consent had identified the plans that had been submitted at that time. In Condition 1 of the modification consent granted on 12 April 2011, reference to those plans and supporting documents as they had appeared in the original Condition 1 was repeated with the following words added:

"... as amended by Section 96(2) application number 148/2007/A submitted to Council on 1 March 2011 by to [sic] allow for the following:

- The hours of use of the park shall be 3.30pm to 7.00pm on the designated days of Tues and Thurs for junior football training.

- Limit the use of Bardon Park for junior football training between the months of March and September.

- Ensure that the park lights are extinguished at 7.30pm.

- Allow the park to be line marked for the designated football season only.

- Allow the erection of removable goal posts at the southern end of the park for football training on designated days and designated times only (to be erected and removed only on the days of training).

- Allow up to 60 children with at least 2 supervisors at any one time to use the park."

38 Two further conditions were added to the modification consent, amending Conditions 3 and 4 of the 2007 Development Consent. Those further Conditions were:

 

"2. The light towers (flood lights) must only be operated on Tuesday and Thursday and then until 7.30pm.

3. Until such time as a specific plan of management for Bardon Park is prepared in accordance with the provisions of the Local Government Act 1993, the following conditions shall apply to the proposal:

• The light poles must not protrude above the level of the adjacent bank of trees, with a maximum height permissible of 18 metres.

• The light towers must be turned on and off centrally or automatically, not by any user.

• The lights must be turned off at 7.30pm.

• Line marking of the Park surface for junior football training may be made from March to September.

• Removable goal posts may be erected at the southern end of the park only, and are to be erected only and removed on the days of training.

• The approval for use is limited to the following age groups:

(i) Under 6, 7 and 8 years of age - between 3.30pm and 6.00pm.

(ii) Under 9, 10, 11 and 12 years of age - between 6.00pm and 7.00pm.

• The use of the park for junior football training must cease by 7.00pm on designated training days of Tuesday and Thursday.

• A maximum of 60 children with at least 2 supervisors be allowed to use the park for football training between 3.30pm and 7.30pm and only on Tuesdays and Thursdays.

• No change rooms, toilet facilities or other temporary/permanent structures are to be placed within the park.

• The impact of the use on the physical condition of the park and the impact on the surrounding neighbourhood are to be monitored and reported to Council 12 months after the commencement of the use.

• Traffic and parking impacts are to be monitored by Council's Officers, for a period of 12 months after commencement of the use, and reported to Council.

• A separate application is required to be submitted to and approved by the Council for any proposed changes to the pattern or intensity of use of the park."

39 Notification that the application for modification had been granted was given to Ms Wiedeman, together with all other persons who had lodged objection to the modification application, by letter dated 18 April 2011.

40 The Works Committee of the Council also met on 12 April 2011 to consider the use of Bardon Park. A Works Report (the Works Report) was prepared for that meeting by the Council's Director of City Services as a consequence of the resolution of the Council on 22 February that a report be prepared "in relation to providing a suitable long-term location for Coogee Dolphins" and that the report assess "Coogee Oval, Latham Park and other suitable locations as possible long-term options but not Grant or Trennary Reserves". Having identified the stated needs of Coogee Dolphins, the Report made observations about the use of a large number of parks and reserves within the Randwick local government area by schools and sporting organisations, together with the capacity of each of those parks and reserves to accommodate the use sought by Coogee Dolphins. Reference was made to the works already carried out at Bardon Park and the commitment to provide landscaping that had been the subject of the Council's resolution in December 2010. The estimated cost of that landscaping work for which a landscape plan had been prepared was stated as being $60,000.

41 The Report prepared for the Works Committee also discussed the present use of Coogee Oval and the restrictions that the Council imposed upon that use at night. The Report indicated that the Council had hitherto expressed its opposition to the night use of the Oval and the provision of lights for that purpose. Although it was acknowledged that Coogee Dolphins had used the outer field for afternoon training, provision of lighting for that area only was estimated at $160,000.

42 Other limitations upon the use of Coogee Oval were identified as were limitations upon the use of other parks. In the result, the Works Report recommended that the Coogee Dolphins continue to train at Bardon Park "for two nights a week".

43 The minutes of the Works Committee meeting on 12 April 2011 record that the recommendation of the Works Report was adopted. Amendments moved at that meeting to the terms of the recommendation were lost. The minutes do not record the extent to which the content of the Works Report was discussed at the meeting. However, as will become apparent, the reference in the Report to expenditure of $60,000 for landscaping at Bardon Park and the estimate of $160,000 to provide lighting to the outer area of Coogee Oval are matters upon which Ms Wiedeman relies in support of her claim that the Council's decision to grant consent to the modification application was infected by apprehended bias due to conflict of interest.

Conflict of interest

44 Mr P J McEwen SC who, with Mr M Seymour, appeared for Ms Wiedeman, submitted that the decision of the Council on 12 April 2011 to consent to the modification should be set aside because it was given in circumstances that attracted the principle of apprehended bias by reason of conflict of interest. Mr McEwen expressly disavowed any reliance upon pre-judgment as an aspect of the apprehended bias that was alleged.

45 Initially, a conflict of interest on the part of the Council was claimed to arise by reason of the Works Report and the consideration of it at the Works Committee Meeting on 12 April, being the same date upon which the Council resolved to consent to the modification application. Later in the course of submissions, Mr McEwen contended that the absence of an independent report assessing the modification application for consideration by the Council was the second factual element founding the contention that the modification application had been determined when the Council had a conflict of interest in so doing.

46 The Council accepted that when determining the modification application, it was bound to do so in a manner that did not transgress the principle of apprehended bias (McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 per Spigelman CJ at [2], Basten JA at [71]). Both parties accepted that, stated in terms of principle, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Council might not bring an impartial mind to the determination of the application before it (McGovern at [72]). It is the application of this test to the circumstances attending the Council's decision on 12 April 2011 upon which the parties differ.

47 As the judgments in McGovern make clear, the judicial paradigm for application of the apprehended bias test is not usually appropriate to assess the actions of a statutory decision-maker. At [7] and [8], Spigelman CJ said:

"7. How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who was obliged by statute to perform those functions. The content of what the test required varies from one context to another by a process involving, and usually determined by, statutory interpretation.

8. Each of the elements in the apprehension of bias principle requires a context specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process."

48 Relevant for present purposes is the circumstance that the Council is an elected body exercising a discretionary power under the provisions of Pt 4 of the EPA Act. That power is expressed in broad terms. Such a power was described by the Chief Justice in McGovern at [13] as being one -

"... to which multiple considerations apply and with respect to which the range of permissible opinion is extraordinarily wide - including issues of policy, taste and philosophy - not least by the adoption of an express formulation as to what constitutes "the public interest": (s 79C(1)(e) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"))."

In the context of those remarks, it is relevant to notice that when determining the modification application, the Council was bound to consider those matters referred to in s 79C(1) of the EPA Act "as are of relevance to the development the subject of the application": s 96(3). Clearly, the "public interest" was required to be considered when determining the application that is the subject of these proceedings.

The Works Report

49 The first of the two evidentiary factors relied upon by Ms Wiedeman in support of this ground of challenge is the decision of the Works Committee on 12 April following consideration of the Works Report. In my opinion, neither the Report nor the resolution of the Works Committee founds a sound basis for the contention of invalidity that is advanced by Ms Wiedeman.

50 The Works Report was prepared as a consequence of the resolution of the Council on 22 February 2011 requiring that a report be prepared addressing the long-term "location" for Coogee Dolphins including the assessment of the suitability of two nominated parks for that purpose. As I have endeavoured to describe earlier in these reasons, the Works Report was a lengthy report addressing the present use and condition of existing parks and reserves, including, but not confined to, the two parks nominated in the 22 February resolution for particular but not exclusive consideration. The Works Report also addressed the capacity of the parks to accommodate the use required by Coogee Dolphins, taking account of the need to maintain parks in a suitable condition and prevent degradation by overuse. A table annexed to the Report assessed the perceived requirement for use by Coogee Dolphins, as it related to each park and reserve under the Council's management and responsibility. The extent of present use of, and facilities available within, each park were also identified.

51 As I have already recorded, the February resolution nominated two parks for specific consideration. One of those, namely Latham Park, together with another park known as Burrows Park were recorded as being "fully utilised for competition and training" by a number of sporting organisations and schools. As a consequence, use by Coogee Dolphins could only be contemplated at either park if one of the organisations presently using the park was displaced.

52 The other nominated park was Coogee Oval. The manner in which that Oval was presently used both in summer and winter by senior sporting organisations was identified, as was the Council's long held policy not to allow night use of that Oval. The report records that the Council had previously rejected applications both by senior football and cricket organisations for the installation of lights that would allow use for night games and training.

53 In that context, the author of the Works Report indicated that to provide lighting to the relevant Australian Standard for the outer area of Coogee Oval, an estimated cost of $160,000 would be incurred. The report continued by identifying the susceptibility of the Oval to water inundation in heavy rain, requiring its temporary closure. Reference was also made to the fact that during winter a temporary grandstand is erected "which encroaches on the 'outer area' leaving a small irregular space." The inference drawn from that observation is that the residue of the 'outer area' is unlikely to be suitable for football training by reason of its shape and dimension.

 

54 Prior to discussion of the possible options, the Works Report records that the "playing surface" of Bardon Park has already been renovated and a landscape plan for the park prepared. A copy of the landscape plan for the Park is attached to the Report which makes provision for six new separately located seats "under shaded tree canopy"; provides for the planting of new trees and shrubs on the perimeter of the park and provides new disabled access paths and new entry paving "between new garden beds". The landscaping works so identified are estimated to cost $60,000. Those works do no appear to be directly related to the use of the park for football training between 3.30pm and 7.00pm on two afternoons each week between March and September.

55 The Works Report concludes by indicating that the best long-term location for a training ground for the Coogee Dolphins is Bardon Park. While acknowledging its classification as a neighbourhood park, the report identifies a number of other neighbourhood parks also used for junior sport training; it also identifies other parks in which "multiple user groups" are required to "share" the open space.

A conflict is not established

56 There are several matters of present relevance that arise from the Works Report and the Works Committee consideration of it. First and contrary to the implication of Ms Wiedeman's submissions, the author of the report does not, in terms, found the recommendation that is made upon a comparison of costs between $60,000 for the Park and $160,000 for new lighting on the outer area of Coogee Oval. As I have said, the cost of $60,000 for landscaping of the Park appears to be unrelated to the use of a section of the park for football training. The report gives reasons unrelated to the cost of lighting the outer area of Coogee Oval when recommending the continued use of Bardon Park as a training ground for junior members of the Coogee Dolphins.

57 Secondly, the Works Report reflects consideration of park use on a basis that extends beyond a comparison between Coogee Oval and Bardon Park. Rather, the assessment is based upon a comparison among a large number of parks and reserves. As a consequence, there is no logical basis, founded upon the terms of the report, to infer that it was, in effect, a decision to be made by incurring a cost of $60,000 to preserve the present position as against incurring a likely cost of $160,000 if the venue for junior training was to be changed.

58 Thirdly, while it may be assumed that the Works Report was provided to the members of the Works Committee, neither the minutes nor the resolution at the meeting of 12 April 2011 reveal the basis upon which the decision of the Committee was made. As I have indicated, the report does not reasonably or rationally lead to the conclusion that the decision to be made essentially involves a weighing of expenditure depending upon which of two venues is selected.

 

59 Fourthly, even if such estimated costs as were disclosed in the Works Report were considered by members of the Works Committee as a significant factor in arriving at the determination to be made, that fact would not lead to the conclusion that the hypothetical lay observer might reasonably apprehend that the Council might not bring impartial consideration to the determination of the preferred park for long-term use by Coogee Dolphins for training.

60 As the Council was the entity charged with the control and management of the parks and reserves identified in the Works Report, any fair-minded observer would reasonably anticipate, if not expect, that in making any decision in respect of park use, the cost implications of the decision would be taken into account along with such other factors as were relevant to its decision. While the lay observer might not be acquainted with the intricacies of the provisions of Pt 2 of Ch 6 of the Local Government Act 1993 pertaining to the management of "community land", there would certainly be an appreciation of the need for the Council to manage all parks and reserves in such a way that took proper account of the public interest, including the equitable distribution of financial resources needed to maintain and manage all of the parks and reserves for which the Council was responsible.

61 Fifthly, while the Works Committee addressed the Council's earlier decision to bring forward a report on the long-term availability of parks able to be used by Coogee Dolphins for junior football training, it was the Planning Committee that addressed and determined the application made under s 96 of the EPA Act to modify the 2007 Development Consent. The subject matter of the latter application was the alteration of hours for football training, an increase in the number of children using the Park during those limited training hours, the proposal to erect portable goal posts at each training session and the line marking of the central section of the Park during the football season. The report prepared for the Planning Committee and directed to the assessment of that application contained no financial assessment or comparison of the kind identified in the Works Report or any financial assessment at all. Moreover, neither the minutes of the Planning Committee nor the resolution of that Committee on 12 April 2011 reflect consideration of financial matters when arriving at the decision made by that Committee on that day.

62 Even if it be the case that the material considered by the Planning Committee included the Works Report and resolution of the Works Committee, I am unable to accept that a fair-minded lay observer might reasonably apprehend that the Planning Committee might not bring a collegiate mind, devoid of conflict of interest, to the consideration and determination of the application at hand by reason of the two cost estimates identified in the Works Report. That is so for the reasons that I have earlier expressed. Understanding the considerations that must be brought to bear upon the determination of the modification application, including the 'public interest' under s 79C(1)(e) of the EPA Act, a consideration of the estimated costs identified in the Works Report, would not reasonably be seen as evidencing a conflict of interest when arriving at the decision that the Planning Committee was required to make.

 

63 In support of its submission that in arriving at its decision to consent to the modification application, the Council had a conflict of interest arising from the cost estimates contained in the Works Committee Report, Ms Wiedeman relied upon the decision of Debelle J in Sidney Harrison Pty Ltd v City of Tea Tree Gully [2001] SASC 27; (2001) 112 LGERA 320. There a development consent had been granted by the defendant council for the erection of a telecommunications tower. The plaintiff threatened and subsequently commenced proceedings challenging the validity of the council's action in so doing. Among the grounds of threatened challenge were procedural irregularities in the processing of the application which involved public notification. At the request of the council, and against the possibility that the claimed irregularities may successfully impugn the consent that had been granted, a further development application was lodged with the council seeking the grant of consent to the telecommunications tower for which the first consent had been granted. The telecommunications tower was to be erected on land owned by the Council for which the owner of the tower would be required to pay a significant rent.

64 The defendant council recognised that in addressing the second development application it had a conflict of interest. That interest arose not only from the possibility of receiving a rental upon the grant of consent but also by reason of its interest in resisting an adverse order in the proceedings commenced by the plaintiff.

65 Under the provisions of the Development Act 1993 (SA), the Minister had the power to appoint the Development Assessment Commission to act as consent authority in respect of a particular development when requested so to do by a council. The defendant council had made such a request to the Minister, acknowledging receipt of the second development application and requesting that it be the subject of a declaration appointing the Commission as the consent authority. The council had done so on the basis that it had already made a decision that it believed to be correct but acknowledging that having made that decision there was a potential conflict of interest in determining the second application.

66 Having stated the test for "appearance of bias" consistent with the way in which I have earlier identified that test, Debelle J considered that in the case before him the appearance of bias took the form of pre-judgment (at [15]). As the council had accepted that it should not determine the second application, the issue that fell for determination by his Honour was whether the Minister should be directed to exercise his power under the Development Act to declare the Development Assistance Commission as the consent authority. He determined that he should do so, declaring that the Council was disqualified from hearing and determining the second development application and also declaring that the Commission should consider and determine the application.

67 Notwithstanding reliance by Ms Wiedeman upon the decision in Sidney Harrison, I do not discern any statement of principle by Debelle J supporting her reliance upon the discussion of cost estimates in the Works Report as founding a claim of conflict of interest against the Council. As I have indicated, the context of that discussion does not reveal that any decision was made based upon a decision to prefer a lesser expenditure over a greater expenditure. Unlike the position that pertained in Sidney Harrison, there was no commercial or income advantage to the Council that potentially favoured the selection of one park for use over the other.

68 Moreover, there is a further important point of distinction between the position that pertains in the present case and that which pertained in Sidney Harrison. Unlike the South Australian legislation, there is no provision under the EPA Act that enabled the modification application presently being considered to be determined by another consent authority. The only authority able to determine that application was the Council. If, contrary to my earlier finding, a conflict of interest had been demonstrated, the principle of necessity nonetheless required that the Council determine the application (Dimes v Proprietors of Grand Junction Canal Pty (1852) 3 HLC 759; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Mason CJ and Brennan J at 88-89).

69 No doubt the potential to invoke the principle of necessity occasioned Ms Wiedeman to add to her initial submission by indicating that in the circumstances of the present case it was incumbent upon the Council to obtain an independent assessment of the development application. In making the latter submission, she relied upon the decision of this Court in Alexander v Yass Valley Council [2011] NSWLEC 148; (2011) 184 LGERA 123.

70 In Alexander the respondent council owned land adjoining land owned by the second respondent. The council agreed to sell its land to the second respondent although the contract for sale was expressed to be conditional upon development consent being granted for multi-unit residential development on both the land that was the subject of the contract for sale as well as the adjoining land owned by the second respondent. The development application contemplated by the contract for sale was submitted by the second respondent and conditional development consent was later granted by the respondent council.

71 Mr Alexander contended that the development consent was invalid. One of the grounds of challenge to the validity of the consent was that the respondent council had a conflict of interest giving rise to an apprehension of bias. That conflict was said to arise from the fact that the land the subject of the development application was owned by the council and that it was party to the contract for sale of its land, the completion of which was conditional upon development consent being granted.

72 While the potential for conflict of interest to arise was acknowledged by Pain J, the submissions advanced by Mr Alexander were not sustained. The challenge failed having regard to the particular circumstances of the case which included the terms in which the condition pertaining to the grant of development consent were framed together with a provision of the contract entitling either party to terminate if development consent was not granted. Further, the respondent council had required that an assessment of the development application be carried out by an adjoining council, the report by staff of the latter council together with the consideration of that report by the director of the respondent council having been made publicly available well in advance of the meeting at which the respondent council determined to grant development consent.

73 Ms Wiedeman contrasts the position that pertained in Alexander with the present case. She refers to the independent assessment in that case which she submits was fundamental to the decision reached. With respect to that submission, I do not read the decision in that way. While the fact of the independent assessment was acknowledged (at [89]), it was but one of a number of the surrounding circumstances of which the fair-minded lay observer would be aware when determining whether the apprehended bias test was satisfied in the circumstances of that case (at [90]). Certainly, the decision in Alexander does not lay down any principle that where a council decision involves the use of land owned by it, an independent assessment of the proposed use is necessary such that the absence of such an assessment will found a claim that the decision made determining land use is demonstrative of one made where a conflict of interest has not been negated. As Pain J makes clear, all of the circumstances pertaining to the making of the impugned decision must be examined before determining that a particular decision is infected by apprehended bias as a consequence of a conflict of interest (at [83]).

74 For reasons already stated, I do not agree that the decision made on 12 April 2011 to consent to the modification application involved a choice between expending $160,000 at Coogee Oval or expending $60,000 at the Park. As a consequence, there is no basis for the independent assessment said to be required in order to address Ms Wiedeman's conflict of interest ground of challenge.

75 However, even if the Works Report, the Works Committee decision upon it and the decision of the Planning Committee are construed as involving a choice based upon the competing costs of improvements to the respective parks, I do not consider that a decision so founded would support the contention that the fair-minded lay observer might reasonably apprehend that the Council might not have brought an impartial mind to the decision that it made. That lay observer would be cognisant of the responsibility of the Council to manage the facilities within its parks and reserves, taking account of the costs likely to be incurred in providing a facility or facilities. Unlike the position that pertained in Alexander, the Council in the present case did not stand to gain by fulfilling a bargain that had been made with a third party. The decision directed to long-term park use was a decision of a policy nature, balancing or resolving competing community interests in the use of public reserves. No "independent" report could reasonably be perceived as a precondition to giving effect to that policy decision.

Procedural fairness

76 The claim of invalidity made by Ms Wiedeman on the ground that she was denied procedural fairness is said to be founded upon the Mayoral Minute coupled with the General Manager's letter of 11 February 2011 which preceded the tabling of that Minute at the meeting of the Council on 22 February 2011. Those documents, so it is submitted, represented to the reader of them, that:

(i)  an application for modification of the 2007 Development Consent would be made to the Council under the provisions of s 96 of the EPA Act;

(ii)  an external consultant would prepare the application;

(iii)  once lodged the application would be publicly exhibited inviting submissions in respect of the application;

(iv)  thereafter, the application would be assessed by a second external planning consultant; and

(v)  the recommendation of the external consultant would be referred to the Council for decision following exhibition and assessment.

77 There is no issue that steps (i), (ii) and (iii) were observed. The application submitted in accordance with s 96 of the EPA Act on 1 March 2011 was prepared and supported by the SJB Report. Thereafter, receipt of the application was notified to a number of landowners and was also the subject of an advertisement in a local newspaper. Submissions were received as a consequence of that public notification and the submissions received provided to Willana for the purpose of providing an assessment of the application.

78 The failure to take those steps identified as steps (iv) and (v) are central to Ms Wiedeman's contention. The terms in which those steps are framed will be considered shortly. However, on the basis that all five steps reflect the content of the documents relied upon, it is submitted that they created a legitimate expectation that the applicant and the community would be advised if those steps, relevantly steps (iv) and (v) were to be changed. It is submitted, those steps were not taken yet, no notice was given of the intention so to do prior to the determination made on 12 April 2011 to grant consent to the modification application.

79 By reason of the failure to adhere to the representation identified in step (iv), in that the Willanna Assessment Report was tainted by the intervention of the Solicitors, Ms Wiedeman submits that she and the community have had their legitimate expectation that the recommendation of an external planning consultant would be debated at a Council meeting frustrated. The consequence, so it is submitted, is that there is practical unfairness because Ms Wiedeman lost the opportunity for the Council to consider two recommendations contained in the Draft Report that were not included in the final Report considered by the Council. Support for the principle articulated in the submission is said to be found in the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

80 When considering this submission, it is first necessary to determine whether steps (iv) and (v) as articulated by Ms Wiedeman truly reflect the content of the General Manager's letter, the Mayoral Minute and the Council's resolution as a consequence of the Mayoral Minute being tabled.

81 I have set out at [23] the relevant paragraph from the General Manager's letter of 11 February 2011. Critical, for present purposes, is the last sentence of that paragraph which, for convenience, I repeat:

"The Section 96 application will be assessed by an external independent consultant and reported to Council for consideration and determination. The Section 96 application will be publicly exhibited."

82 While the letter clearly represents that the modification application will be assessed by an external independent consultant, it does not represent that the external consultant's report will be the only material provided to the Council. Thus, it is not strictly correct to assert, as step (v) framed by Ms Wiedeman does, that the recommendation of the consultant would be the only recommendation submitted to the Council.

83 The Mayoral Minute needs to be considered in its entirety and in its context as a minute or document being submitted to the Council for an appropriate resolution. The content of the Mayoral Minute that must be considered for present purposes is not only that part that I have extracted at [25], but also the recommendation contained in the Minute that I have extracted at [26]. The discursive material contained in the body of the Minute could not reasonably create any expectation without also considering the content of the recommendation that represents the action required consequent upon the material discussed. Recommendation (c) of the Minute is relevant for present purposes. It is to the effect that the independent assessment report be referred to the Coogee Precinct Committee before being considered by the Council. The referral of the Report to that Committee carries with it the implication that the Committee would have input to the consideration given by the Council to the modification application.

84 Moreover, no reasonable expectation could arise from the content of a Mayoral Minute known to be tabled at a meeting of the Council without also considering the terms of any resolution that addressed the Minute and the recommendations contained within it. As I have earlier recorded, the tendered documentary material does not contain a copy of the Minutes of the Council of 22 February. However, there are other documents in evidence from which it may be inferred that the Council adopted recommendations substantially in accordance with those contained in the Minute. There are two sources for that inference.

85 First, the Works Report to which I have earlier referred states that it was prepared in response to the resolution of the Council of 22 February 2011 expressed in terms of recommendations (a) and (b) of the recommendations contained in the Mayoral Minute. Second, in a memorandum to Councillors dated 1 April 2011, the Council's Director of City Planning referred to the resolution of the Council on 22 February 2011 in terms that are similar but not identical to recommendation (c) of the Mayoral Minute. The relevant resolution of 22 February quoted in the Director's memorandum is stated as being:

"Council refers the completed assessment report on Section 96 to Coogee Precinct Committee and Coogee Dolphins prior to consideration by Councillors".

A resolution in those terms is also quoted in the Works Report as reflecting the decision of the Council on 22 February 2011. In the absence of the minutes of the meeting on the latter date, I accept that as being the relevant resolution by the Council consequent upon consideration of the Mayoral Minute. (I interpolate that the Report was provided to both the Coogee Precinct Committee and Coogee Dolphins on or shortly after 1 April 2011).

86 While a copy of the Mayoral Minute may have been available from the offices of the Council to those who sought it, as did Ms Wiedeman, the content of any representation said to arise from it must properly be informed by reference to the resolution reflecting the manner in which the Council, as the collegiate body, determined to address its content. As a unilateral statement intended for consideration by the Council, the Mayoral Minute did not and could not operate of its own force as reflecting any representation on the part of the Council.

87 Considered in this context, a reading of the Mayoral Minute together with the resolution of the Council may be seen as representing:

(i) that a report assessing the modification application would be prepared by an independent planning consultant, such assessment to include consideration of submissions received as a consequence of the public exhibition of the modification application;

(ii) once received, the consultant's report would be provided to the Coogee Precinct Committee and to the Coogee Dolphins for consideration by those bodies, enabling them to make such submissions as each of them wished to make in respect of the application and its assessment by the consultant together with any recommendation that the consultant's report may contain;

(iii) the report, the response from the nominated bodies together with such other material as was relevant to the application would be considered by the Council at the time of determining that application.

It cannot be inferred that either the Mayoral Minute or the resolution of the Council intended to restrict the material to be considered in a way that did not give full effect to the provisions of s 96 of the EPA Act, including subsection (3), which enjoined the Council to consider those matters referred to in s 79C(1) of the Act as were of relevance to the application.

88 I have framed the relevant content of the representation in the manner indicated because the submissions made by Ms Wiedeman tended to frame her steps (iv) and (v) too narrowly. The inference I drew from those submissions was that when determining the modification application the Council was constrained to consider only the planning consultant's report and such recommendation as was contained within it.

89 The gravamen of the submission by Ms Wiedeman is that the assessment report provided to the Council was not an assessment of the modification application undertaken by an external independent planning consultant. This, so it is submitted, is a consequence of the amendments made to the Draft Report by the Solicitors. Although the Draft Report in track changed mode demonstrates that a number of amendments were suggested and made, the focus of the submission is upon two recommendations contained in the Draft Report but not included in the final Report that was provided to Councillors.

90 Under the heading "Recommendation", paragraph A of the Draft Report recited the terms in which consent should be granted to the modification of conditions 1, 3 and 4 of the 2007 Development Consent and also recited the conditions that should be imposed upon the modification consent. Paragraph A is substantially reflected in the decision of the Council, the relevant terms of which I have quoted at [37] and [38]. Paragraphs B and C of the "Recommendation" were:

"B. That Council, as the consent authority, resolve to prepare a specific Plan of Management for Bardon Park in accordance with the provisions of the Local Government Act 1993.

C. That Council require the development consent to be surrendered upon cessation of the 12 month period or when the training facility is relocated to a permanent training ground, (whichever occurs first)."

These were the recommendations omitted from the Report provided to Councillors.

91 While the omission of those recommendations may be illustrative of the concern expressed by Ms Wiedeman, it should not be used to elide the legal basis of the ground upon which the decision of the Council is impugned. That ground, as I have already indicated, is a denial of procedural fairness. As articulated by Mr McEwen, procedural fairness was denied by failing to alert Ms Wiedeman that the report was not an independent assessment report prepared by an external consultant planner. Having regard to the representations upon which she relies, Ms Wiedeman says that had she been told by the Council that the assessment report being considered by Councillors was not prepared by an independent planning consultant, she would have made further submissions to the Council in respect of the application.

An independent planning report?

92 As I have earlier indicated, the editing or amendment of the Draft Report by the Solicitors founds the claim that the Report considered by the Councillors was not an assessment prepared by an independent planning consultant. The evidence adduced from Mr Harding would seem to me to be fatal to that claim.

93 I have earlier set out in some detail the involvement of Mr Harding in the preparation of both the Draft Report and the final Report. The Draft Report was prepared by his staff. After it was edited by the Solicitors, the Draft Report in the form ultimately provided to Councillors was returned to him. He accepted it, in its amended form, as the final assessment report prepared by his company for the Council in respect of the subject application (paragraph 7 of his affidavit sworn 4 October 2012).

94 Mr McEwen accepted that Mr Harding read the edited or amended report and did not take issue with the changes that had been made. An email sent to Mr Kyriacou on 31 March 2011, a printout of which is annexed to Mr Harding's affidavit, indicates that Mr Harding was conscious of the "sunset condition" namely, the condition imposing a 12 month limitation upon the consent, that was recommended in the Draft Report. He did not regard that condition as essential to his assessment.

95 Importantly, the evidence from Mr Harding, which I accept, demonstrates that the final Report provided to Councillors did reflect his independent assessment of the modification application, including his assessment of the submissions that had been received in respect of it. Nothing contained in the Mayoral Minute, the resolution of the Council addressing that Minute or the General Manager's letter of 11 February 2011 represented that the external consultant retained to prepare the assessment would not discuss the preparation of the assessment report with any other person. The fact of discussion with others or the consideration of suggested amendments does not, without more, detract from the independent thought and consideration given to preparation of the report. Moreover, Mr McEwen accepted that the Council did not give any direction or instruction to Mr Harding as to the expected outcome of his or his company's assessment of the application.

96 There are two further matters to be noticed relevant to Mr Harding. First at the time of his retainer Mr Harding was informed that the Council would also be seeking advice from its Solicitors in relation to the application. His expectation was that there would be some input to the report from the Solicitor prior to its consideration by the Council. So much is apparent from paragraph 8 of his affidavit sworn 4 October 2012. Second, Mr Harding was not required for cross examination on the material contained in his affidavit. His unchallenged evidence is the basis of the findings I have made as to his preparation and consideration of both the draft and the final assessment reports.

97 My finding that the Report prepared for the Council was one that met the description of the report identified in the General Manager's letter, the Mayoral Minute and the resolution in respect of that Minute is sufficient to dispose of the present head of claim. Ms Wiedeman's "legitimate expectation" that an independent assessment report would be provided was fulfilled and as a consequence there has been no denial of procedural fairness.

98 If, contrary to my finding, Mr Harding, on behalf of Willana, did not embrace the edited or amended assessment report as his own, it is necessary to consider the changes made by the Solicitors to the Draft Report. Whether those changes reflect any change of substance is important to be considered. In the present context, an amendment or change that does not alter the substance of the assessment undertaken by Willana would not offend the principle of procedural fairness invoked by Ms Weideman.

99 As Gleeson CJ observed in Lam at [37]:

"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

100 If the Report made available to Councillors reflected the essence and substance of the assessment by Willana of the modification application and did so conformably with the requirements of the EPA Act, no practical injustice arises from the fact that the text of the Draft Report has, in part, been amended.

101 I make reference to the preparation of the assessment report in accordance with the requirements of the EPA Act for a particular reason. The representation, properly distilled from the Council documents to which I have referred, was that the modification application would be the subject of independent assessment. It did not represent that a general assessment of the use of Bardon Park would be made by the consultant. That observation is relevant to complaint made of amendments to the assessment report. Understanding that a draft report was to be provided to the Solicitors, as Mr Harding did, it was clearly intended that the content of the report should address the application to be determined and not some wider issue directed to Park use.

102 It is also relevant to notice that the report both in draft and in its final form is a comprehensive and detailed report extending over some 29 pages. The structure of the Draft Report as sent to Mr Kyriacou was not amended by the Solicitors nor have the topics addressed in that report been altered. No alteration has been made to the manner in which the Draft Report identified and summarised the various submissions that were received by the Council following public exhibition of the modification application.

103 Annexed to the written submissions prepared on behalf of the Council is a detailed analysis of the alteration made to the Draft Report as reflected in the track change mode version in which the document came to be prepared. I have considered and been assisted by that analysis. I have also compared the report in track change mode with the Report ultimately made available to Councillors (Exhibit A, tab 24; Annexure C to the affidavit of Stewart Harding sworn 4 October 2012).

104 I do not intend to address each of the amendments made. Neither party did so in the course of their respective submissions. However, there are some matters that do need to be noticed, particularly having regard to the amendments or changes relied upon by Ms Wiedeman. First, it is apparent that not all amendments intended by the Solicitors were embraced in the final Report. By way of example, the final paragraph of the "Executive Summary" found at the commencement of the Draft Report stated:

"To provide clear direction to the future uses of the park and given that the Neighbourhood Parks Generic Plan of Management does not reflect the current demands and needs of the local community, (as indicated by the findings of the Recreational Study Needs) it is recommended that Council resolve to prepare a specific Plan of Management for Bardon Park."

105 The document prepared by the Solicitors in track change mode showed that paragraph to be struck through, indicating an intention that it be deleted. The final Report provided to Councillors retains that paragraph.

106 It will be recalled that the deletion of the recommendation for preparation of a specific plan of management was the subject of complaint by Ms Wiedeman. As is apparent, the body of the report retains that recommendation. The deletion of paragraph B under the heading "Recommendation" at the conclusion of the Draft Report is understandable. The preparation of a new plan of management had no direct connection with the manner in which the 2007 Development Consent was proposed to be modified. Importantly, it was open to the Council to prepare a new plan of management at any time independently of the exercise of any function under Pt 4 of the EPA Act.

107 Recommendation C contained in the Draft Report, requiring surrender of the consent in terms that I have quoted in [90] was struck through by the Solicitors and does not appear in the report provided to Councillors. However, the absence of this recommendation is balanced against the discussion that is to be found within the final report directing attention to the control which the Council exercises over Bardon Park as a public reserve. In a passage responding to submissions received by the Council to the effect that the Council had not acted in accordance with the Crown Lands Act and Local Government Act 1993, the Report states that control over the pattern and intensity of use of the Park is able to be exercised by the Council, given that it manages the Park under the provisions of the Crown Lands Act. Reference is made to the control it is able to exercise through the issue of a temporary licence or permit under s 108 of the Crown Lands Act. As the Report also identifies, that is the mechanism that the Council has used since grant of the 2007 Development Consent. That passage was included in the Report by the Solicitors in place of a more cryptic response that appeared in the Draft Report.

108 The terms in which draft recommendation C were framed would appear to have presented some legal difficulty and thus reference to an additional mechanism of control identified by reference to the Crown Lands Act and the issue of temporary licences was seen to address the substance of the draft recommendation. The temporary licences to which the Report referred were identified as "seasonal permits" thereby indicating their short term duration.

109 I therefore conclude that the failure to include recommendations B and C in the Report effected no change of any substance to the Draft Report. No other specific amendment to the Draft Report is identified by Ms Wiedeman as founding her claim. Although the amendments were numerous, I accept the submission of the Council that apart from amending or inserting matters of legal consequence, such textual changes as were made to the Draft Report by the Solicitors were directed to form rather than substance. I did not understand the submission of Mr McEwen to contend to the contrary other than the general submission that by dint of the amendments, the Report ceased to be an independent assessment report, a submission that I have already addressed.

110 The points of claim filed by Ms Wiedeman allege (at [23]) that by reason of the amendments made to the Draft Report, they resulted "in a different application to modify the Consent ... than had been exhibited." There is no evidence to support that averment. The modification application lodged with the Council on 1 March, together with the SJB Report, was the application that was publicly notified and was the application that was addressed in the Willana Assessment Report. There is no evidence before the Court to suggest that the modification application was amended prior to its determination. The consequential allegations found in the points of claim to the effect that the "amended modification application" was neither notified or advertised with the consequence that no public submissions were received on the "amended application" are not supported by evidence. I did not understand the submissions made by Mr McEwen either written or oral, to support these allegations.

111 The claim that Ms Wiedeman and others were denied procedural fairness by reason of the failure of the Council to notify them that the assessment report being considered by the Council at its meeting on 12 April 2011 was not an independent consultants report has not been made good. The Report considered by Councillors was prepared by Willana and its content adopted by the responsible director of that company, Mr Harding. In any event, objectively judged, the Report considered by the Councillors reflected, in substance, the assessment of the modification application undertaken by Willana.

112 On the basis of my determination of this issue, it becomes unnecessary to make any final decision in response to the submission of the Council directed to the opportunity for Ms Wiedeman to have made further submissions to the Council prior to 12 April 2011. On the assumption that the expectation of an independent assessment was unfulfilled, the Council submits that having received the computer disc displaying the Draft Report with the Solicitor's amendments on 4 April 2011, there was ample opportunity for Ms Wiedeman to exercise the right she claimed she was denied by drawing the Council's attention to the fact that the Report had been amended by the Solicitor and stating the further matters she wished to raise as a consequence. Not only did her previous representations to the Council demonstrate that she was able to make ready contact with the Mayor but also she was invited by the Council, along with other members of the public, to provide any further documents for consideration prior to the Council meeting and, as well, to address the Council meeting in relation to the modification application. In fact, she made no contact with the Council after receipt of the computer disc on 4 April.

113 Those facts suggest an opportunity available to Ms Wiedeman to address her concern. Whether they provide sufficient response to a claim that there had been denial of procedural fairness generally, on the assumption that the report submitted to Councillors did not meet the terms of the representation made as to its intended provenance, is not a matter that is presently necessary to be decided.

Conclusion

114 For the reasons that I have indicated, Ms Wiedeman has not established that the decision made by the Council on 12 April 2011 to modify the 2007 Development Consent was made in circumstances where the Council had a conflict of interest. In assessing the use of Bardon Park it did no more than apply those considerations to that assessment that would be expected of a council properly exercising its functions under both the Crown Lands Act,as manager of a reserve for "public recreation" under that Act, and also in exercise of responsibilities under the Local Government Act for the management of "community land". Relevantly, understanding those statutory responsibilities, there is no basis established upon which the fair-minded lay observer might reasonably apprehend that the Council might not have brought a mind to the exercise of power appropriate to a democratically elected body entitled to bring to bear upon the exercise of that power issues of policy, taste and philosophy.

115 Moreover, the decision made on 12 April 2011 by the Planning Committee to consent to the modification of the 2007 Development Consent was made after considering an assessment of the application made by an external independent consultant. That report was prepared following public exhibition of the modification application and included consideration of submissions received as a result of that notification. Upon the evidence led in the proceedings, the Report considered by Councillors fulfilled the representations made in respect of its provenance in the General Manager's letter of 11 February 2011, the Mayoral Minute tabled at the meeting on 22 February 2011 and the resolution of the Council consequent upon that Minute. As a consequence, there was no denial of procedural fairness to Ms Wiedeman or others.

116 Accordingly, the challenge to validity of the decision made on 12 April 2011 to modify the 2007 Development Consent is not sustained. This result renders it unnecessary to consider the submissions of the parties directed to the exercise of discretion in making orders had the challenge to validity been upheld. The summons will be dismissed.

117 I have not heard argument as to costs. As Ms Wiedeman has been unsuccessful costs, would ordinarily follow the event, resulting in an order that she pay the Council's costs: Civil Procedure Act 2005, s 98; Uniform Civil Procedure Rules 2005 Pt 42, r 42.1. I propose to so order but if Ms Wiedeman seeks a different order then application to that effect should be made within seven days.

Orders

118 The orders that I make are as follows:

1. Summons dismissed.

2. Applicant to pay the respondent's costs unless within seven days application is made for a different order.

3. Exhibits may be returned.

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Decision last updated: 27 September 2013