The Council officer's report referred to the EA and said that, because the wastewater storage facility was "controlled by" the EA, the Council should not refuse the development application on any grounds that were within the scope of the EA. The report also said that if the Council gave a decision contrary to that of DEHP, then the Council would be in a position of defending that decision to both the applicant and DEHP in the event of an appeal. The officer's report was subsequently considered at the Council's meeting and it was decided to approve the application.
The point raised in the Originating Application was that Council had abrogated its responsibility to assess the development application. The error alleged was that Council did not consider the environmental effects of the development and instead relied upon DEHP's assessment of those issues which lead to the granting of the EA. As such, Council was lead into procedural error by the report prepared by its officer, which was relied upon in the decision to approve the development application.
The Council provided evidence that it had obtained advice from specialist officers and an external consultant, and carried out site inspections and a workshop. Further, the Council's decision was a split vote, which was argued suggested a level of independent consideration by individual councillors. However, the Court found that none of this material (aside from the officer's report) was before the Council when it made its decision. The Judge thought that the prominence of the incorrect advice from the officer in the report meant that it could not seriously be argued that it could not have materially affected the Council's decision to approve the development application.
The Court ultimately declared that the Council had erred in law by deciding the development application on the basis that it should not refuse it on any grounds which were within the scope of the EA granted by DEHP. The Court found that "The Council had impermissibly abrogated its duty to properly assess the application by abrogating its duty to the concurrence agency and therefore the decision was invalid". The Court went on to consider whether section 440 of SPA was available (which applies where there has been noncompliance with SPA) and concluded that it was not. The Judge's view was that s 440 did not extend to such a fundamental error and that it would be inappropriate to excuse what was, effectively, an unlawful decision by the Council as assessment manager.
Key points from the judgment include that:
- In undertaking impact assessment (a concept defined by Schedule 3 of SPA, with the process set out in section 314 of SPA) a Council must consider the environmental effects of the proposed development and the ways of dealing with the effects.
- While Council was obliged to consider the response by DEHP, Council was solely responsible for deciding the development application.
- It was an error of law to give "no real independent attention" to the discretion conferred on Council, as the decision maker, such that the exercise of the discretion was really that of another person.
The Golder decision is particularly instructive to local governments about responsibility for assessing development applications. It is an important reminder that, while a local government must consider a concurrence agency response, it is not permissible to rely on that response in place of the Council's own independent assessment of a development application. The appropriateness of a land use (including environmental effects and the ways of dealing with those effects) must be assessed, even though conditions may be imposed through an EA to control operational aspects of development.
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