A recent decision of the NSW Land and Environment Court has highlighted the risk to councils of not following the correct process to effectively delegate their functions.
The case of Friends of Glebe Wetlands Inc v Littlewoods Civil Contracting Pty  (“Friends of Glebe”) was handed down by the Land and Environment Court on 21 March 2022. The case concerned the grant of consent to an application to modify a residential subdivision consent given by the Bega Valley Shire Council (the Council) and its potential impact on a colony of Grey-headed Flying-Fox inhabiting the adjacent wetlands.
In May 2021 a Senior Town Planner at the Council approved the modification of a subdivision consent (the determination). The Friends of Glebe Wetlands Inc. were concerned that the revised layout would increase the impacts of the subdivision on a flying fox colony and brought Class 4 proceedings in the NSW Land and Environment of NSW challenging the validity of the determination. The central question determined by the Court was whether the Council’s Planner held a valid delegation to enable them to make the determination.
The Local Government Act 1993 (the LGA) establishes the statutory framework for the delegation of the legislative functions given to a Council. In Friends of Glebe, the Court reiterated the ‘two step’ process for delegating a function under the LGA, the first step being for the Council to delegate a function to a general manager pursuant to s 377(1) of the LGA, and second, for the general manager to sub-delegate the function to a council officer pursuant to s 378(2).
The evidence before the Court was that the General Manager had not been delegated any functions under the EPA Act by the Council. As a person cannot subdelegate a function not properly delegated to them, the General Manager’s purported sub-delegation to the Senior Planner was invalid. As a result, the Court declared the determination invalid, void and of no force and effect and issued an order quashing the decision.
In her reasons for giving declaratory relief, her Honour Justice Pepper observed that “the making of the declaration marks the disapproval of the Court of the conduct of the Council in not ensuring that appropriate delegations were in place”. Her Honour also noted that the declaration “will serve to encourage this, and other councils, to implement and follow proper processes in respect of the issuing of delegations so that decisions are made with the necessary statutory power to do so”.
The Council was also ordered to pay a portion of the Applicant’s costs.
The effective delegation of council functions is essential to the efficient operation of a local council. The key lesson from this case is the importance of strictly following the procedure for delegating Council functions and the benefit of reviewing and checking delegations regularly.
To help Councils to prepare instruments of delegation BAL has partnered with RelianSys, a leading provider of automated governance solutions, to provide a fully-integrated web-based program for Council Delegations. Information about the RelianSys – BAL Delegations Register can be found here.
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