Posted on July 16, 2013 by 4

Refresher: relevant and irrelevant considerations

A recent Court of Appeal decision, Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 (Lo), provides the  opportunity for a refresher on the permissible scope of relevant and irrelevant considerations; such as, when evaluating a development application (DA).

The Principles

Types of ‘considerations’

There are three (3) types of ‘considerations’:

• ‘Relevant considerations’ – which Basten JA referred to as ‘mandatory considerations’ – are the matters that the decision-maker is bound to take into account. The mandatory considerations are derived from the terms of the specific statutory power, or implied from the subject matter, scope or purpose of the power.
• ‘Irrelevant considerations’ – are the matters which are not only ‘not mandatory’ but which are in fact prohibited from being considered, having regard to the subject matter, scope or purpose of the power.
• ‘Permissible considerations’ – are an often wide range of matters which lie between mandatory and prohibited considerations  – that is, factors, ‘which the decision-maker may weigh or disregard without committing an error of law’.

‘Taking into consideration’

Basten JA described this aspect of the evaluative process in the negative, by using examples of what constitutes a failure of the evaluative process at [10]:

• disregard of a relevant matter;
• failing to give adequate weight to a relevant matter of great importance;
• giving excessive weight to a permissible consideration of no great importance; and
• taking into account irrelevant matters.

How does this apply to DA evaluation?

Section 79C(1) of the Environmental Planning and Assessment Act 1979 (EPAA) contains a list of the mandatory considerations which a consent authority must take into account when deciding whether or not to grant consent.  It provides that the consent authority is to take into account, ‘…such of the following matters as are of relevance to the development…’. A failure to consider any one of those matters that is relevant would lead to an erroneous decision open to challenge.

However, each mandatory matter requires more attention than ‘mere lip service: Anderson v Director General of the Department of Environmental and Climate Change & Anor [2008] NSWCA 337 at [58].  The courts have said that the consideration must be ‘proper, genuine and realistic’, or at least ‘proper and genuine‘. In Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (Telstra), Preston J further observed at [203] that the ‘consideration’ of the relevant matters must be based on probative evidence. The decision reached must also involve a process of logical reasoning.‘

Finally, and as a practical matter, the consent authority needs to be able to show that each mandatory relevant matter was considered and that irrelevant matters were excluded. Usually, the best way to do so, is for the relevant matters to be addressed in an assessment report.