Posted on June 15, 2023 by Katie Mortimer and Stuart Simington
The LEC finds a Local Planning Panel determination valid, despite the Panel being incorrectly constituted
Last week the Land and Environment Court determined that a Local Planning Panel’s (LPP) decision to refuse development consent was valid, despite one member of the LPP being invalidly appointed.
This is the first judgment considering the implication of an incorrectly constituted LPP since the 2017 reforms to the Environmental Planning and Assessment Act 1979 (EPA Act) that require LPPs to exercise local council’s consent authority functions in certain circumstances.
Before 1 July 2021, the Chair of the Strathfield Local Planning Panel was appointed with the Minister for Planning and Public Spaces’ approval (Former Chair).
In May 2021, the Department of Planning and Environment (DPE) advised Strathfield Municipal Council that it proposed to approve a different Chair for the LPP (from 1 July 2021). Correspondence followed between the council and DPE, where the council requested a review of the decision and the Former Chair’s re-appointment as permanent Chair.
In June 2021, the Former Chair was purportedly re-appointed by the council as Chair of the LPP from 1 July 2021. It was accepted in the proceedings that the Former Chair acted as Chair from July 2021 onwards without a proper appointment.
On 6 October 2022, the LPP actually refused a DA lodged by Sykton Holdings No 5 Pty Ltd (Skyton) (Decision).
Later in October, Skyton commenced a merit appeal in the Land and Environment Court against the Council’s actual refusal.
Constitution of LPPs
Section 2.18(2) of the EPA Act requires a local planning panel to comprise 4 members, being:
(a) an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration,
(b) 2 other approved independent persons with relevant expertise,
(c) a representative of the local community who is not a councillor or mayor.
‘An approved independent person’ is defined in s2.18(4) to mean:
‘an independent person approved by the Minister for appointment to the local planning panel or a person selected from a pool of independent persons approved by the Minister for appointment to the local planning panel.’
It was accepted that the LPP was not correctly constituted as from 1 July 2021, the Former Chair was not approved by the Minister.
Questions for Determination
The Council sought that the Court determine whether section 52 of the Interpretation Act 1987 operated to make the Decision valid, or alternatively whether the common law de facto officer doctrine applied to make the Decision valid. Given the findings on the first question, the Court did not need to consider the second question.
Section 52 of the Interpretation Act 1987 provides that:
52 Proceedings of statutory bodies
(1) Any act or proceeding of a statutory body shall not be called into question merely because of—
(a) any vacancies in the membership of the body,
(b) any defects in the appointment of any members of the body,
(c) any disqualifications of any members of the body,
(d) any minor irregularities in the manner in which any meetings of the body have been convened or conducted, or
(e) the presence or participation at any meetings of the body of any persons not entitled to be present or to participate at those meetings.
(2) This section applies to a statutory body in addition to, and without limiting the effect of, any provision of the Act by or under which the body is constituted.
However, the Interpretation Act 1987 applies to an Act or instrument, ‘except in so far as the contrary intention appears in this Act or in the Act or instrument concerned’: section 5(2).
The proceedings centered on whether the LPP is a statutory body as referred to in section 52, and if so, whether the EPA Act contains any contrary intention that would prevent section 52 applying.
The Court’s Findings
The LPP is a Statutory Body
Pain J found that the LPP is a statutory body to which s52(1) of the Interpretation Act 1987 applies. ‘Statutory body’ is not defined in the Interpretation Act 1987, but LPPs are bodies whose legal existence arise pursuant to section 2.17(2)(a) of the EPA Act.
The EPA Act did not oust Section 52
Pain J also found that the EPA Act does not contain any statutory indicators suggesting that section 52 of the Interpretation Act 1987 should not apply to the circumstances of this case.
Her Honour found so because the EPA Act provides that a quorum for an LPP meeting is a majority, rather than all 4 members. Pain J held this is an enabling measure which prevents all members of the body needing to participate in decision making. As the Strathfield LPP made the Decision by unanimous resolution of 4 members, there was a requisite quorum without the Former Chair’s vote. The Decision consequently was an ‘act … of a statutory body’ as required by section 52.
Her Honour also relied on provisions in the EPA Act allowing for vacancies in membership, removal of members and oversight of a local planning panel, as showing that in the circumstances, the EPA Act did not oust the application of section 52(1) due to any contrary intention.
Whether this decision can be applied to any future decision by an incorrectly constituted LPPs will hinge on the factual circumstances.
Interestingly, Pain J raised that if section 2.18(3) of the EPA Act had been in issue in the case, being a provision which specifies people who are not eligible for LPP membership such as a councillor of any council or a property developer, then it would have been more likely that a contrary intention would be found in the EPA Act such that section 52 of the Interpretation Act 1987 would not apply.
In the circumstances of this case, the Former Chair was an otherwise qualified and independent person entitled to exercise functions, save only for a defect in his appointment.
You can read the decision here: Skyton Holdings No 5 Pty Ltd v Strathfield Municipal Council  NSWLEC 61
To discuss this post, please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.