Lawlink NSW: 4. Council Processes

Land and Environment Court - Working Party

4. Council Processes

4.1 Introduction

Councils generally have a wide discretion as to how development assessment is carried out. As a consequence, the processes employed by different councils may vary considerably depending on a range of factors such as the nature and extent of development in the area, the size and wealth of the council and whether the local government area is rural or metropolitan.

Different councils may also have differing views about their role in the planning system. For example, the Working Party was informed that some councils take the view that their role is to develop a vision for the future character of their local government area (through policy) and that development assessment should ordinarily be left to staff, with determinations being made under delegated authority. Other councils take the view that each development application should be determined by the elected representatives of the local community.

4.2 “Inappropriate political decision-making”

There is often a tension between the interests of the local community and the interests of the region or State as a whole. Councils, being locally-elected bodies with planning responsibilities under State laws, are susceptible to being caught in the middle. This has been explained as follows:

“It is inevitable that the close ties that local government has with its community affect a council’s decision making process. Councils at times are reluctant to take responsibility for the determination of some matters at the local level due to their being contentious and subject to political, factional, environmental or community pressures. Accordingly councils abrogate their responsibilities and allow the Court to make the decision. In this respect, it should be noted that some community groups have become very vocal and influential regarding local planning and development issues and this has resulted in the election of council representatives committed to the group or community views. Some of these views may be contrary to State planning policies, strategies or instruments.”

A number of submissions identified “inappropriate political decision-making” as a problem. However, caution needs to be exercised in labelling decisions “inappropriate” on account of their political context. The Working Party recognises that there is a political dimension to local planning decisions, just as there is at State level. The public interest is one of the considerations councils are required to take into account in determining development applications under section 79C of the Environmental Planning and Assessment Act 1979. Views expressed by members of the local community about planning matters are clearly relevant and need to be considered.

In practice, the line between acceptable determinations based on an analysis of the perceived public interest and those made improperly is a very difficult one to draw. A refusal to grant consent to a development which complies with all the objective standards is not, in itself, evidence of inappropriate political decision-making, as compliance with objective standards is not the only consideration.

The Working Party considers that one possible indicator of an inappropriate political decision is evidence that, in making the decision, the council failed to take into account all relevant considerations, or took irrelevant considerations into account.

Historical examples of council decisions which have been found to be invalid because they were motivated by inappropriate political considerations include: Bowser & Co; Re Municipal Council of Randwick (1927) 27 SR (NSW) 209, where a council imposed a condition on the erection of a petrol pump that it should be of Australian manufacture; and Wheeler v Leicester City Council [1985] 3 WLR 335, where a council banned certain football clubs from playing on its grounds because the clubs had toured South Africa during the apartheid regime.

Under the Environmental Planning and Assessment Act 1979, such decisions are likely to be questioned on the grounds that they go outside the heads of consideration listed in s79C of the Environmental Planning and Assessment Act 1979.

In Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333 the Council refused a development application to demolish an existing building and erect a new commercial building in its place. Council’s stated reasons were that the proposal involved an extension to a neighbouring premises, and that it did not want to be seen to condone a course of anti-social conduct which had apparently been associated with the existing building and the proposed extension. A senior assessor upheld the appeal against refusal, and costs wereHemmings J awarded costs against the Council on the grounds that it had failed to properly exercise its duty under s 90 (now s79C) of the Environmental Planning and Assessment Act 1979.

As noted above, submissions made to the Working Party indicate that sometimes councils will refuse an application for a development which is unpopular, or fail to determine it, irrespective of the merits of the proposal, in order to avoid the political backlash by blaming the Court when consent is granted on appeal. While the Working Party recognises this to be a problem it is difficult to suggest an effective remedy, other than that the Court should order costs against a council when inappropriate political decisions are seen to have been made. This matter is discussed further below, see 9.4 Costs orders.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.

most recently updated 19 September 2001