Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189

Baulkham Hills Shire Council v Basemount Pty Ltd & Anor [2003] NSWCA 189

Because the Commissioner had previously determined the same factual merit issues for the same development applications, there was a reasonable apprehension of pre-judgment; thus, remitter must be to a differently constituted bench. The wider discretion under s56A(2)(b) permits exclusionary orders. Costs should follow the event after reversal of the primary judge’s decision.

Jurisdiction
Australia
Judgment Date
18 July 2003
Procedural Posture
Appeal / Judgment of Court of Appeal After Leave Granted
Outcome
Appeal allowed
Legal Topics
['development Applications' 'procedural Fairness' 'bias Apprehension' 'remitter Orders']
['administrative Law' 'planning and Environment Law'] ['development Applications' 'procedural Fairness' 'bias Apprehension' 'remitter Orders']

Case Brief

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Procedural Posture

Appeal / Judgment of Court of Appeal After Leave Granted

Legal Issues

  1. 1 ['Whether a reasonable apprehension of bias required remittal to a different Commissioner' 'Whether procedural fairness was denied' 'Scope of remitter for reconsideration of development applications' 'Entitlement to costs following outcome reversal']

Ratio Decidendi

Because the Commissioner had previously determined the same factual merit issues for the same development applications, there was a reasonable apprehension of pre-judgment; thus, remitter must be to a differently constituted bench. The wider discretion under s56A(2)(b) permits exclusionary orders. Costs should follow the event after reversal of the primary judge’s decision.

Court Disposition

Appeal allowed

Orders

  • ['Set aside Order (3) made by Pearlman J on 2 October 2002' 'Both proceedings remitted to a Commissioner or Commissioners (other than Commissioner Murrell) or to a Judge of the Court for re-hearing and re-determination conformably with these reasons for judgment' 'Respondents to pay the costs of the Council in the...