Posted on August 11, 2014 by
Challenge to LEP dismissed
A recent challenge to the validity of an amendment to the Wingecarribee Local Environmental Plan 2010 was dismissed by a Judge of the Land and Environment Court. In doing so, the Court made three interesting findings about the procedures for the making of LEPs and DCPs including in what circumstances an officer without delegation can nevertheless act as the agent of the Council.
The Applicant in DeAngelis v Pepping  NSWLEC 108 argued that the Council failed to properly carry out its community consultation requirements for a planning proposal and that the Council’s officer, Mr Pepping, did not have the authority to make the amendment under the Council’s delegation from the Minister. It was also argued that a DCP amendment, consistent with the planning proposal, was invalid because it had not been publicly exhibited.
In dismissing each of the challenges, Adamson AJ held that:
- Mr Pepping had authority to make the amendment as agent for the Council – being the party which did have the delegation.
- In carrying out the community consultation, the Council only had to comply with the mandatory requirements of the “A guide to preparing local environment plans”.
- The Council did not need to exhibit the changes it made to the DCP arising from the amendment of the LEP.
Authority as Agent
On 14 October 2012, the Minister had delegated his plan making powers to councils generally for certain amendments to LEPs.
On 30 November 2012, the Minister wrote to the General Manager of the Council regarding the delegation, relevantly in the following terms: :
To be able to exercise these delegations, your council must write to the department advising that they are accepted. Councils are also requested in their response to nominate the officers or employee of council who will be granted the proposed delegation. The name and position of the employee is required.
By resolution made on 12 December 2012, the Council purported to accept the Minister’s delegations, relevantly as follows: 
2. THAT the Department of Planning and Infrastructure be advised in writing that Council accepts the right to exercise the delegations under section 59 of the EP&A Act and that the officers of Council nominated to perform the delegations are:…
b. Mark Pepping, Manager Strategic & Assets [the respondent]
It was common ground that the Minister validly delegated the power to make the amended LEP to the Council . However, the Applicant contended that the Council had the delegation, not Mr Pepping, because the Council’s power to delegate was limited to a power to delegate powers to the General Manager: see s377 of the Local Government Act 1993 and there had accordingly been no valid delegation of the power from the Council to Mr Pepping.
Adamson AJ rejected this, saying that Mr Pepping could still act as the agent of the Council.
 In specifying that Mr Pepping was to sign the instrument, I consider that it was appointing Mr Pepping as its agent to sign the document on its behalf, as distinct from vesting him with any delegated power to do so… As Mason J said in Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 37, an express statutory power of delegation does not necessarily exclude an implied power to act through agents.
 Because all Mr Pepping was doing was acting as a functionary, amanuensis and signatory, he was, in my view, an agent who could be authorised by the Council (see s 355 of the LGA) to perform acts that had to be performed by natural persons, such as signing an instrument to signify that it corresponded with the Council’s resolved intent. He was neither forming an independent judgment, nor making any decision that was within the Council’s function to make. He was merely carrying into effect that which the Council, as a statutory body rather than a natural person, could not itself practically do.
This approach overcomes some of the inflexibilities in s377 of the Local Government Act 1993 whereby delegations from the Council need to be delegated first to the General Manager and then sub-delegated by the General Manager to staff.
Mandatory community consultation requirements
After Council submitted the planning proposal to the Minister, the gateway determination issued by the Minister provided, amongst other things, that the Council was to comply with the notice requirements in the Department’s “A guide to preparing local environmental plans” and “A guide to preparing planning proposals”, and to make the planning proposal publicly available for 14 days.
The Council publicly exhibited the planning proposal for 14 days, having it published in the local newspaper and on its website which also provided the links to the proposed land zoning maps. The Council also sent letters to 435 persons, including the DA Applicant, and some owners adjoining the Applicant’s land. Nonetheless, the Council admitted to not sending the letter to two adjoining owners:  – .
The Court referred to the relevant clause of “A guide to preparing local environmental plans” at  and held that not all of the requirements of that document are mandatory.
 … I consider that it would be inconsistent with the natural meaning of the text of the Gateway Determination and the Guide to read all matters in section 5.2.2 as being mandatory notice requirements when the Guide does not use the language of compulsion throughout the section but distinguishes between those matters that are mandatory (as signified by the word “must”) and those matters which are left to the judgement of the Council, such as by what means public exhibition is to be notified. The words “generally undertaken” are not, in my view, words of compulsion.
 In my view… the Council … was not obliged to comply with the three dot points under the description of how public exhibition is “generally undertaken” as long as what it actually did could be described as “public exhibition”. …
On this basis, Adamson AJ held that the Council:  – :
- was not obliged to notify all adjoining landowners,
- was not obligated to specify the address for submissions to be sent – it was enough that the letter contained the Council’s address in its letterhead,
- was not obligated to inform the recipients of letters of the Ministers delegation,
- was not obligated to send out the letters prior to the exhibition period commencing,
- was not required to exhibit the proposed draft amended DCP with the planning proposal.
Why was the Council not required to exhibit the DCP?
Essentially Adamson AJ said it was because changes made to the DCP were cognate with the LEP, despite not being exhibited, and it would have lead to a public inconvenience for the Council not to have made those amendments.
It was noted that Clause 18 of the EPA Regulations provide that a Council “must” give public notice of the exhibition of a draft DCP, and “must” publicly exhibit the draft for at least 28 days, and that the word “must” generally imports and obligation to do something.
However, Adamson AJ held that to have done so in this case would have lead to a public inconvenience:
 …In circumstances where an amendment to a LEP creates an inconsistency with… [a current] DCP, it is desirable that the Council amend the DCP as soon as possible to bring its form into conformity with the applicable environmental planning instrument to reduce the risk that the public will have to engage in the reconciliation between instruments…
 I do not consider that, having regard to the status of a DCP and the circumstance that its amendment might amount to no more than a regularisation of a change effected by a LEP (as I consider it to have been in the present case), non-compliance with the provisions of the Regulations ought to be construed as leading to invalidity.
The result is quite unusual. Despite the mandatory language of the regulation, there now seem to be some DCP amendments that need to be exhibited and some that don’t. It will all depend on the circumstances. The category that does not need to be exhibited seems to be limited to amendments that merely correct an inconsistency between the DCP brought about by an LEP amendment.
What does this mean for Council’s?
- Provided Council has delegation from the Minister to make LEPs, then a person with requisite Council authority of the Council can validly sign the instrument as agent for the Council.
- A planning proposal need only be exhibited in accordance with the Minister’s mandatory requirements as identified in the gateway determination.
- A DCP amended merely to reflect changes made to an LEP may not need to be exhibited.