Neate v Shellharbour City Council (No 2) [2007] NSWLEC 541

Neate v Shellharbour City Council (No 2) [2007] NSWLEC 541

An exclusionary remitter order was not appropriate because, although the Senior Commissioner had made errors of law in applying the instruments for assessment of flood risk and had applied the wrong legal test, his judgment was not framed in language suggesting personal views apart from those errors, the additional circumstances found to justify apprehended bias in Basemount, Preferred Projects and Castle Constructions were absent, and by applying the wrong legal test he had not yet determined the real merits issue. A fair-minded observer would not reasonably apprehend pre-judgment if the matter were remitted to the Senior Commissioner.

Jurisdiction
Australia
Judgment Date
28 August 2007
Procedural Posture
Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Decision of the Senior Commissioner / Final Orders on Remitter and Costs After Appeal Upheld on Questions of Law
Outcome
Appeal upheld; matter remitted to the Senior Commissioner; Applicant ordered to pay the Respondent's costs other than the remitter hearing on 24 August 2007.
Legal Topics
['section 56 a Appeal' 'remitter to Commissioner' 'exclusionary Remitter Order' 'reasonable Apprehension of Pre Judgment' 'floodplain Risk Management Development Control Plan' 'costs']
['planning and Environment' 'administrative Law' 'civil Procedure'] ['section 56 a Appeal' 'remitter to Commissioner' 'exclusionary Remitter Order' 'reasonable Apprehension of Pre Judgment' 'floodplain Risk Management Development Control Plan' 'costs']

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Procedural Posture

Appeal Under S 56 a of the Land and Environment Court Act 1979 Against a Decision of the Senior Commissioner / Final Orders on Remitter and Costs After Appeal Upheld on Questions of Law

Legal Issues

  1. 1 ['Whether an exclusionary remitter order should be made under s 56A(2) of the Land and Environment Court Act 1979 so that the matter be remitted to a commissioner other than the Senior Commissioner.' 'Whether there was a reasonable apprehension of pre-judgment by the Senior Commissioner if the matter were remitted to him.' 'Whether the Council, having succeeded in the s 56A appeal, should have its costs.']

Ratio Decidendi

An exclusionary remitter order was not appropriate because, although the Senior Commissioner had made errors of law in applying the instruments for assessment of flood risk and had applied the wrong legal test, his judgment was not framed in language suggesting personal views apart from those errors, the additional circumstances found to justify apprehended bias in Basemount, Preferred Projects and Castle Constructions were absent, and by applying the wrong legal test he had not yet determined the real merits issue. A fair-minded observer would not reasonably apprehend pre-judgment if the matter were remitted to the Senior Commissioner.

Court Disposition

Appeal upheld; matter remitted to the Senior Commissioner; Applicant ordered to pay the Respondent's costs other than the remitter hearing on 24 August 2007.

Orders

  • ['The appeal is upheld.' 'The matter is remitted to the Senior Commissioner for hearing in accordance with my judgment dated 21 August 2007.' "The Applicant must pay the Respondent's costs other than the remitter hearing on 24 August 2007." 'Exhibits may be returned.']