Councillor determinations: proceed with care

The recent case of Inglis v Buckley [2023] 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:

1. the Council did not form the positive state of satisfaction required by clause 4.2C(3)(c) of the Tumut LEP 2012. That clause allowed the Council to grant consent to the subdivision of land where one or more resultant lots did not meet the minimum lot size requirement only where certain criteria were met, including where the consent authority was satisfied that the potential for land use conflict will not be increased as a result of the subdivision; and
2. the Council resolution was invalid as it purported to delegate to the CEO delegation to apply ‘standard conditions of development consent’ to the notice of determination without the proposed conditions of consent being before the elected council.

In considering these issues, the Court had access to the transcript from the relevant Council meetings and the development application file.

Issue 1 – Council briefing

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:

1. acknowledged that there is a rebuttable presumption that all the material on the Council’s file is presumed to be known to the elected councillors. 
2. found that there was no evidence that the text of the relevant LEP clause was before the councillors. There was also no report from a council officer which recommended the approval of the application or specifically addressed the obligations of the Council in cl 4.2C(3), presumably because the application had been recommended for refusal.
3. noted that, while the clause was mentioned during the relevant Council meeting, awareness of an issue (being the requirement for compliance with cl. 4.1C(3)) alone is insufficient to amount to ‘satisfaction’ of it. The Court recognised that the need to be satisfied about a pre-condition to the grant of development consent is more onerous than, and can be contrasted with, the obligation to ‘take into account’ a mandatory relevant matter.  

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.

Issue 2 – Delegation and consent conditions

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:

1. a development consent cannot be granted in part by the elected Council and in part by a council officer; to do so would offend the principle of indivisibility of the function to determine a development application. As such, an elected Council cannot determine to grant consent to an application and then delegate authority to a council officer to determine the appropriate conditions; it needs to do both.
2. where an elected Council determines to grant consent and directs the staff to impose “standard conditions” an issue is not likely to arise provided those conditions are objectively and readily ascertainable – for example, if the conditions have been adopted in an earlier council resolution. It is then merely an administrative act for a council officer to draw up the Notice of Determination incorporating those conditions. [1]
3. if an elected Council determines to grant conditional approval to a development application, but there are not clear, standard conditions (or draft specific conditions) which it can direct be imposed, the determination should be deferred.

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.

For more information on delegations or judicial review please contact our Planning, Environment & Local Government team on 02 6274 0999 or see this related essential guide and case note.

[1] Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 at [20].