Legal Insights

The importance of maintaining up-to-date and accurate registers of delegations

By Blake Dyer, Hayley Tam & David Le

• 25 November 2021 • 5 min read

On 24 August 2021, the Land and Environment Court of New South Wales (Court) handed down the decision in South East Forest Rescue Inc v Allied Natural Wood Exports Pty Ltd and Anor [2021] NSWLEC 89 declaring a development consent purportedly granted by Bega Valley Shire Council (Council) to be invalid, void and of no force and effect. Justice Robson’s judgment is a useful reminder of the need for local councils and other government bodies to maintain accurate and up-to-date registers of delegations.

Background

Council purported to grant development consent (Development Consent) to Allied Natural Wood Exports Pty Limited (Allied) for development concerning the expansion of an existing chip mill in Eden, New South Wales. The decision to grant consent was made by Council’s Manager, Planning and Sustainability.

Class 4 judicial review proceedings were commenced in the Court by way of summons filed by South East Forest Rescue Inc (South East), seeking declaratory and consequential injunctive relief for the Development Consent. Allied sought to add an additional ground 1A, which became the main issue in the proceedings.

Key issue

The key issue was whether the decision to grant the Development Consent was invalid because the Council officer who made it did not have delegated authority to do so. In particular:

  • Council’s ‘Register of Delegations’ did not include a delegation of the function determining development applications from the Council to the General Manager
  • the purported sub-delegation of the function of determining development applications from the General Manager to the Manager, Planning and Sustainability was ineffective or invalid.

South East and Allied agreed that the delegate was not authorised to determine the development application and that it would be appropriate for some form of declaratory relief to be granted. However, Allied opposed any immediate injunctive relief being ordered.

Despite the agreement between the parties, the Court needed to:

  • be satisfied that the relief was appropriate in the circumstances
  • resolve the disagreement for the grant of consequential injunctive relief.

Findings

Justice Robson was satisfied that it was appropriate to grant declaratory and consequential injunctive relief.

Delegation of functions and declaratory relief

Under the Local Government Act 1993 (NSW) (LG Act), a delegation of a function to a council officer who is not the general manager occurs by a two-stage process:

  • a council may delegate a function to a general manager under section 377(1)
  • a general manager may sub-delegate the function to a council officer under section 378(2).

Part 1 of the Council’s Register of Delegations set out a specific list of delegated functions, but did not delegate any functions of Council under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) or the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation).

Allied and South East agreed, and Justice Robson accepted, that the delegate of Council was not authorised to determine the development application, and its decision to do so was beyond power.

Council made a short submission relying on Basten JA’s comments in Belmorgan Property Pty Ltd v GPT Re Ltd,[1] whereby a broad delegation was made to cover “all of the functions of Council, as provided in the [Local Government] Act”. However, in these proceedings, Justice Robson found that there was no analogous broad delegation that picked up and utilised the scope of section 22 of the LG Act. Rather, the actual delegations were set out under 15 discrete headings, none of which included a delegation of the power to determine development applications under the EP&A Act.

Consequential injunctive relief

Allied asked the Court to delay the commencement of any injunctive relief for a period of seven weeks to enable it to complete the building works and attend to some safety and storm-water matters. This would not involve the active operation of the development.

The Court referred to sections 9.45 and 9.46 of the EPA Act, which empower the Court to remedy or restrain a breach of the Act. It also referred to case law which permits the Court to soften, according to the justice of the particular circumstances, the application of the rules that would otherwise produce an unjust result in the particular circumstances.

The Court decided that consequential injunctive relief ought to be granted, but delayed the commencement of the order for a period of 21 days from the date of judgment, on the basis that:

  • Allied's conduct had been in accordance with the purported Development Consent granted by Council
  • Allied properly engaged with the new position once informed about the further ground
  • three weeks should be enough time for Allied to attend to necessary matters, for safety and storm-water.

What are the implications for local councils and state government authorities?

This case is a timely reminder of the importance of maintaining accurate and up-to-date delegation registers by local councils. In particular, if local councils intend for a council officer (other than the general manager) to have certain functions, such as the right to determine development applications, the council must:

  • delegate a function to a general manager
  • the general manager must sub-delegate the function to the council officer.

The importance of ensuring that proper delegations are in place is just as relevant to state government authorities who, for example, delegate to officers their environmental assessment functions under Division 5.1 of Part 5 of the EP&A Act.


[1] [2007] NSWCA 171.

By Blake Dyer, Hayley Tam & David Le

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