Australia: What has the council considered? A contrast of two recent local government cases

To what extent will an error in a report or briefing note invalidate the decision of a local government or its delegate? Two recent decisions of the Queensland Planning and Environment Court provide a useful contrast and practical lessons.

In making administrative decisions, whether in relation to a development application, infrastructure charging or otherwise, it is well-established that a local government decision-maker (either the Council itself or a delegate) is required to act lawfully, by taking into account all relevant considerations, not taking into account irrelevant considerations, and acting reasonably.

If the decision-maker fails to comply with these procedural requirements, this can result in a decision being invalidated.

In practice, the question of whether the decision-maker has complied with these requirements is complicated by the fact that the decision-maker will rarely conduct an independent review of every document relevant to the decision. Instead, the decision-maker will often rely to a significant extent, if not entirely, on reports or briefing notes prepared by other Council officers. For example, in relation to development applications, the decision-maker will generally be briefed with an "assessment report" prepared by a Council planning officer.

GOLDER V MARANOA REGIONAL COUNCIL & ORS [2014] QPEC 68 ("GOLDER")

In this case, a submitter challenged the lawfulness of a development approval on various grounds including that the Council had erred in law by failing to have regard to environmental issues.

Under the relevant legislation, the Council was expressly required to consider environmental impacts.¹ However, the assessing officer's report advised that because environmental issues were separately regulated by the Department of Environment and Heritage Protection, the Council should not refuse the development application, or impose conditions, on the basis of environmental concerns.

As a result, the Court held that the assessing officer's report had failed to properly take into account a relevant consideration, namely environmental issues.²

This then led to the question of whether the deficiencies in the report meant that the Council's approval was invalid.

Crucially, when the development application was ultimately considered at a Council meeting, the only material before the Council was the assessing officer's report.³ This led to the "inescapable conclusion" that the report had formed the basis for the Council's decision.⁴ In short, the officer's errors became the Council's errors.

The Court did not accept the Council's argument that the approval was nonetheless valid because the officer's report had attached planning scheme references dealing with environmental issues. The Court held that, in light of the "prominent position" of the officer's statements, it could not "be seriously argued" that the less prominent attachments would have materially affected the Council's decision.⁵

Accordingly, the Court held that the Council had unlawfully failed to consider environmental issues, and the approval was invalidated.

WHELDON & ANOR V LOGAN CITY COUNCIL & ANOR [2015] QPEC 22 ("WHELDON")

This case also concerned a submitter challenge to the lawfulness of a development approval authorised by the Council's delegate, on the basis of various alleged issues with findings in the assessment report (prepared by a different Council officer).

Ultimately, the Court did not uphold any of the submitter's complaints in relation to the assessing officer's report.⁶

The Court also commented that, even if those complaints had been made out, the issues in the report would not necessarily have invalidated the decision.

Unlike in Golder, there was no evidence that the delegated decision-maker had relied solely upon the findings and recommendations in the officer's report.⁷ The Court stated that unless the officer's findings had been "expressly incorporated by reference" by the delegate, it could not be said that the report could "reliably show the delegate's deliberations or the decision".

Given this, any errors in the report could not be said to have affected the ultimate decision and,⁸ accordingly, the challenge was dismissed.

IMPLICATIONS

The differing outcomes in Golder and Wheldon demonstrate that the importance of an assessing officer's report will vary from case to case, but also provide a few important lessons for local governments.

A key difference between the two cases is that in Golder it was clear on the evidence that the Council had not considered any material other than the assessing officer's report. In contrast, in Wheldon, there was no basis for assuming that the delegate had relied upon, much less adopted, the officer's findings.

This demonstrates the importance of ensuring that local governments maintain a clear record of exactly what material is provided to and considered by the decision-maker.

However, the reasoning in Golder suggests that merely providing the decision-maker with a broad package of material may not be sufficient to overcome prominent statements in an assessment report. Absent minutes recording exactly what material was considered, it may be difficult to persuade a Court that the decision-maker was not significantly influenced by the report.

While not expressly stated in the judgments, it appears that the identity of the decision-maker may have influenced the differing approaches taken by the Court in each case . It appears that, in Wheldon, the Court implicitly assumed that the Council's delegate had the necessary expertise and background to inform itself regarding the application. In contrast, in Golder, it is clear that the Court was not willing to make such an assumption, to the point of accepting, without any direct evidence, that the Councillors would have been highly influenced by the statements in the officer's report.

Ultimately, the key lesson from these cases is that reports or briefing memos can have important implications for the validity of a decision. While the reasoning in Wheldon indicates that issues within a report or memo will not necessarily be fatal, care should always be taken in drafting such reports or memos, particularly where a decision may be potentially sensitive or controversial.

Footnotes

¹[36]-[37].

² [40].

³[53].

⁴ [53].

⁵[54].

⁶ See [81], [91]-[94] and [97].

⁷ See [78] and [86].

⁸[78].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year Australasian Legal Business Awards	Employer of Choice for Women Equal Opportunity for Women in the Workplace (EOWA)