The Planning Approval and the Bias Allegation
A local council approves a developer's 12-storey tower by a 5-4 vote. One councillor, Cr Bell, is a shareholder in a company that owns the adjacent site and had emailed the developer's consultant: 'I'm keen to see this get up - it helps my land value.' Cr Bell did not declare the interest, spoke in favour at the meeting, and voted with the majority. A residents' group seeks judicial review. The council argues the decision was correct on the merits and that any bias did not change the outcome. The group also alleges the council failed to consider a mandatory traffic report required by the planning scheme.
1. What grounds of judicial review are available, and what standard applies?
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The residents have two strong grounds. First, apprehended bias: a decision-maker with a pecuniary or personal interest in the outcome must disclose and recuse. The test is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the question. Cr Bell's shareholding plus the email expressing a personal financial motive plainly meets that threshold. Actual bias need not be proved, and the fact that the vote would have passed 4-4 or failed without her is irrelevant to the existence of the ground.
Second, failure to consider a relevant mandatory consideration: if the planning scheme requires the traffic report to be taken into account, ignoring it is an error of law. The court will ask whether the report was before the council and whether it was considered, not whether the council reached the right result.
The council's 'correct on the merits' argument is a merits review fallacy. Judicial review is concerned with legality, rationality, and procedural fairness, not the correctness of the outcome. The court will not substitute its own planning judgment.
2. What remedy is likely, and does the participation of Cr Bell invalidate the whole decision?
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The usual remedy is certiorari to quash the decision, with remittal to the council for redetermination without Cr Bell's participation. The court has discretion and may refuse relief if the error was immaterial, but bias is rarely immaterial because it goes to the integrity of the process. The presence of a financially interested councillor taints the decision even if the numbers would have been the same without her; the court cannot know how her advocacy influenced other councillors.
The failure to consider the traffic report provides an independent ground for quashing. The council must then reconsider the application lawfully, taking the report into account and with Cr Bell excluded. Declaratory relief may also be granted. Damages are not available in judicial review, though the developer may face delay and costs. The residents should also consider a complaint to the local government integrity body and whether Cr Bell's failure to declare breaches a statutory code of conduct.