A guide to the Delegation of Council Functions
A quick guide to The Cans, the Can’ts, the Whats, and the Hows of Delegation AND Sub-delegating Council Functions under Legislation and the Common Law
THE AUTHORITY TO DELEGATE
Chapter 12, Part 3 of the Local Government Act 1993 (NSW) (‘LGA’) governs the power of Councils to delegate their functions.
Principally, section 377 of the LGA affords Councils the power to delegate certain functions to general managers or to other persons or bodies (other than directly to other Council staff).
The statutory regime is designed to facilitate delegations of authority, in recognition of the important functions delegates play in maintaining the effective and efficient governance of Councils. However, the scope of the power to delegate is not without restrictions and Councils need to be aware of the legislative and common law principles governing delegations.
TO WHOM CAN A COUNCIL DELEGATE?
Section 377 of the LGA provides that Council functions can be delegated to general managers and to other persons or bodies. However, the Council cannot delegate directly to an employee of the council other than the general manager.
Section 49 of the Interpretation Act 1987 (NSW) provides some further guidance:
- Where a Council seeks to delegate a function to someone other than the General Manager, the delegation must be made to either a specified person or body (by name), or to a particular officer or the holder of a particular office (by reference to the title of the office concerned): section 49(1).
- If a function has been delegated to the holder of a particular office or position, the delegation does not cease to have effect merely because the specific person holding the office or position ceases to occupy that particular office or position. Where this arises, the person occupying the office in the meantime is taken to be the delegate: section 49(8).
A function can only be delegated to an office or position that is in existence at the time that the delegation is made: Australian Chemical Refiners Pty Ltd v Bradwell (1986) 10 ALN at N96.
HOW TO DELEGATE
Section 377 of the LGA requires delegations to the general manager to be made by Council resolution.
Section 49(2)(b) of the Interpretation Act requires delegations be in writing or evidenced in writing.
Delegations can be general or limited: section 49(2)(a) of the Interpretation Act. Where a function may be exercised in relation to a number of different matters or classes of matters, the delegation may be restricted to only certain matters or classes of matters.
The delegation may be made subject to conditions: section 49(3) of the Interpretation Act. Any conditions restricting the exercise of the delegation must be satisfied for the exercise of the delegation to be valid: Aldous v Greater Taree City Council  NSWLEC 17.
THE SCOPE OF DELEGATED POWER
A delegation can cover a wide range of functions. Additionally, section 378 of the LGA gives a general manager the power to delegate any of his functions, including functions that have been delegated to him by the Council.
The delegation of a function includes the power to exercise any other function that is incidental to the delegated function: Interpretation Act, section 49(4).
Where the exercise of a statutory function requires the formation of an opinion, belief, or state of mind, when the function is delegated it is the opinion, belief or state of mind of the delegate and not the primary decision maker that controls the exercise of the function: Interpretation Act, section 49(7).
Even where a function has been delegated, the primary decision maker (the Council or general manager) may still exercise the function at any time prior to its exercise by the delegate: Interpretation Act, section 49(9).
Some functions must be exercised by the Council itself and cannot be delegated. The Council’s non-delegable functions are set out in section 377(1)(a)-(u) of the LGA and include (but are not limited to):
- the appointment of a general manager;
- the making of a rate or a determination as to the levying of a rate;
- the making of a charge;
- the fixing of a fee;
- the borrowing of money;
- voting of money for expenditure on council works, services or operations;
- the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment);
A Council is precluded from delegating a function that is specifically required by any legislation to be exercised by resolution of the Council: section 377(1)(u) of the LGA.
A Council and a general manager are precluded from delegating their power of delegation: sections 377(1)(t) and 387(1) of the LGA.
Where the exercise of discretion is involved in the exercise of a Council function, the function cannot be delegated in a way that requires the discretion to be exercised in a specific way. For example, section 80 of the Environmental Planning and Assessment Act 1979 (NSW) confers power on the council to determine whether to grant consent to a development application. The function conferred involves the exercise of discretion as to whether or not to approve the application unconditionally, to approve it subject to conditions, or to refuse it. The Council cannot delegate the power to approve a development application without also delegating the power to approve it subject to conditions or to refuse it: Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor  NSWCA 171.
A Council is also obliged to review all of its delegations within the first 12 months of each term of office: section 380 of the LGA.
NB: this is a ‘guide’ only. The legal principles discussed about are intended to provide a general overview of the legal principles applicable to the delegation of Council functions. It is not exhaustive and does not constitute legal advice. Should any questions or issues arise regarding delegation please feel free to contact BAL Lawyers on (02) 6274 0999 or seek alternative legal advice.