Posted on October 30, 2016 by Sue Puckeridge 2

Acting under delegation – Do you have the power?

The Courts are often required to consider the validity of decisions made pursuant to delegated authority. A recent decision of the Land and Environment Court provides an example of the difficulties which may arise when the terms of an instrument of delegation are not clearly and simply drafted.

In  Kinloch v Newcastle City Council [2016] NSWLEC 109, the Land and Environment Court was required to consider whether a development consent, determined by a Council officer, (‘Consent‘) was beyond power because Council’s Instrument of Delegation granted the exclusive power to a committee of Council to make the determination.

In summary, the Consent approved alterations and additions to a dwelling.  The proposed development did not comply with the DCP controls in relation to building envelope, set back, privacy, landscaped area and view sharing but the assessing officer concluded that the development complied with Council’s objectives and policies, would not cause undue impact on the streetscape, amenity in the area, or on the natural environment and should be approved.

He prepared an assessment report in which he recommended approval of the application and this report was referred to Council’s Development Assessment Panel (Panel) for peer review.

The Panel considered that the development application was satisfactory and recommended approval with conditions. The assessing officer formally adopted the Panel’s recommendation and subsequently determined the development application by granting the Consent.

Clause 1 of Council’s adopted Instrument of Delegation granted certain delegations to the Development Applications Committee (DAC), a committee of the whole of Council.

Relevantly, the delegation provided as follows:

1. ‘The Development Applications Committee (DAC) …be delegated authority to determine development applications under the Environmental Planning and Assessment Act 1979 (NSW) (subject to the limitations in Schedule 1) if: …

1.3 Council Officers recommend approval of a development application which conflicts with Council’s adopted objectives and policies except where the conflict is minor and strict compliance would be unreasonable or unnecessary; or …’

It is immediately apparent that there are a number of issues with the drafting of this delegation.  What does – ‘conflict‘ mean? What were ‘Council’s adopted objectives and policies‘? How should the phrase ‘the conflict is minor and strict compliance would be unreasonable or unnecessary’ be interpreted?  Who decides if the conflict is ‘minor’?

There was general agreement before the Court that the reference to ‘Council’s adopted objectives and policies’ in clause 1.3 of the Instrument of Delegation was a reference to both local environmental plan (‘LEP‘) and development control plan (‘DCP‘) controls and the undefined term ‘conflict’ should be given its ordinary meaning.

The applicants in the Court proceedings argued that the conflicts with the DCP were not minor and consequently, there was no power for the assessing officer to make this determination because the application should have been referred to the DAC which had the exclusive authority under the Instrument of Delegation.

Each of the relevant controls in the DCP identified performance criteria and an acceptable solution.  The applicants argued that a proposal conflicts with the provisions of the DCP if it varies from the ‘acceptable solutions’ contained in the relevant controls regardless of whether the development satisfied the performance criteria contained in the DCP.

The Court accepted the applicant’s argument that if a proposal conflicts with Council’s policies and objectives in a way which is more than minor, the Instrument of Delegation mandates that the DAC assess and determine the development application.  It rejected Council’s argument that the operation of the delegation required a two-part test — the delegation to the DAC was enlivened only where the conflict was  “not minor” (the “first test”),and separately, where strict compliance would be reasonable and necessary (the “second test”).

Instead the Court held that once it is decided that a variation is not minor, it ‘is unnecessary to also consider whether the strict compliance with relevant Council policies is ‘unreasonable or unnecessary’. The requirement to consider whether strict compliance with relevant Council policies is ‘unreasonable or unnecessary’ only arises if it has been determined that the ‘conflict’ is ‘minor’, because the ‘exception’ is a composite statement…‘ (at [14])

The Court then undertook the exercise of evaluating the conflicts between the application and Council’s LEP and DCP in order to determine if two of the asserted impacts were minor.  It found that they were not. Accordingly the application should have been referred to the DAC.  Since it was not, the assessing officer did not have the power to approve the application and the consent was invalid.

As such, it was not a question of whether the assessing officer or the Panel considered the conflicts to be minor, but whether on an objective basis the conflicts were in fact minor.

Instruments of Delegation regularly place limitations or exclusions on the exercise of power.  However, as can be seen, unless these are expressed in a manner which is unambiguous and can be readily understood, without the need for detailed legal analysis, the decisions made pursuant to the exceptions may not withstand scrutiny.  Avoiding prescriptive exceptions may ultimately be a more efficient option.