WRITTEN BY Alice Menyhart & Victoria McGinness
The recent case of Inglis v Buckley  NSWLEC 77 offers some lessons in relation to the consideration of development applications by councillors, and is a reminder of the care required when delegating Council functions.
The case concerned a challenge in Class 4 of the Land and Environment Court to the validity of the decision by Snowy Valleys Council to grant development consent to a subdivision in a rural area. The decision was challenged on the basis that:
In considering these issues, the Court had access to the transcript from the relevant Council meetings and the development application file.
In relation to Issue 1, the Court found that the Council had not formed the requisite state of satisfaction required by the LEP; that the potential for land use conflict would not be increased as a result of the subdivision. In doing so, the Court:
The Court was ultimately not convinced that the Council had met the higher standard of being ‘satisfied’ about the essential matters in cl 4.2C(3)(c) of the LEP at the time the consent was granted. As that was a pre-condition to the grant of the development consent, the Council’s resolution to approve the development application was found to be invalid.
This matter offers a salient lesson to councillors and to Council officers who assist to brief the elected Council in relation to development applications that it is important that councillors are aware of any essential matters which must be satisfied before consent is granted, and that there be evidence of those matters being satisfied.
In relation to Issue 2, the Court then went on to consider whether the Council’s resolution, to grant consent and delegate the function of imposing the ‘standard conditions’, was also invalid for uncertainty, or because it purported to delegate only part of the function of determining a development application.
The Court concluded that, although the Council staff were aware of what standard conditions exist for subdivision development, the evidence did not establish that the councillors, acting collectively, were aware of the particular standard conditions which would be imposed.
While the Court declined to make a formal finding on whether this issue would independently invalidate the consent (as it was already invalid because of Issue 1), in our view, there are three lessons that can be taken from the Court’s discussion of this issue:
The lawful and effective delegation of council functions is essential to the effective and efficient operation of a local council. We regularly provide advice to local councils on what functions can be delegated and review and draft instruments of delegation to ensure they are effective. We also provide advice on whether decisions made by Councils are valid or vulnerable to being set aside, and act in judicial review proceedings.
 Aldous v Greater Taree City Council (2009) 167 LGERA 13;  NSWLEC 17 at .