Australia: Yeats Consulting Pty Ltd v Logan City Council: jurisdiction of the court

Yeats Consulting Pty Ltd v Logan City Council: When a Chief Executive Officer of a local government personally makes a decision for the purposes of establishing appeal rights.

SUMMARY

This In Brief examines the recent Planning and Environment Court decision of Yeats Consulting Pty Ltd trading as Sedgman Yeats [2014] QPEC 2. The Court clarified that a decision of a local government officer to issue an environmental protection order ("EPO") by way of delegated authority under the Environmental Protection Act 1994 (Qld) ("EPA"), is not a personal decision of the Chief Executive Officer of the relevant local government or a decision of the local government itself.

BACKGROUND

The appellants were the lawful owners of the relevant land which was subject to an EPO first issued on 17 June 2013, withdrawn and reissued with amendments on 27 June 2013 and again withdrawn and reissued on the same day to correct a typographical error. The appellant instituted two appeals against the Council issuing the EPOs which were substantively dealt with in mediation but with the question of costs reserved. The question of costs was the subject of this decision.

Council argued that the appellant was not entitled to costs as, procedurally, the Court did not have the jurisdiction to hear the appeal.¹

Under the EPA, a 'dissatisfied person' must first apply for an internal review of an 'original decision' before they can apply to the Court for review.² A dissatisfied person who is dissatisfied with a review decision may initiate an appeal to the Court.³ Only if the decision was made "by the local government itself or the chief executive officer of the local government personally" can a dissatisfied person appeal directly to the Court without first seeking internal review.⁴

Here, if the issue of the EPO (an original decision for the purposes of the EPA) was found to be made by the local government itself or the chief executive officer of the local government personally, the internal review process would not apply and the appellant would have been entitled to appeal directly to the Court enlivening its power to determine the appeal and award costs.

THE ARGUMENTS

The appellants argued that the internal review process was not applicable because the decision to issue the EPO was a decision made by the chief executive officer personally.⁵

They argued the evidence that while the decision was signed by a Council officer, the decision was made by the CEO personally because it included the use of words "on the behalf of Chris Rose, Chief Executive Officer". Furthermore, the appellant argued that because the decision annexed extracts of the EPA relating to appeal rights (which wouldn't have been included if an appeal wasn't possible) and that any ambiguity surrounding the making of the EPO should not be construed in favour of the Council.

The Council argued that the decision to issue the EPO was actually made by the Council compliance officer under his delegated authority and the words "on the behalf of Chris Rose, Chief Executive Officer" was just evidence that the officer was technically employed by, and answerable to, the CEO. Phrases such as "the Council seeks to ensure compliance" make it abundantly clear that the orders were issued by Council, acting through its delegate, who himself decided to issue and sign the EPO. They further argued this was supported by the inclusion of the internal review provision extracts, which Council says would not have been provided if an internal review was impossible.

DECISION

The Court rejected the appellant's arguments as untenable as it is who actually made the decisions which is the relevant consideration, not the way in which the decision is conveyed.⁶ As the original decisions are made by whoever issued the documents, it is the compliance officer under delegated authority who made the decisions and not the CEO personally.⁷ Therefore, the exemption did not apply, the appellants could not appeal directly to court without first having gone through the internal review process. As the Court did not have jurisdiction to hear the appeal, the application for costs was dismissed.

IMPLICATIONS

While the Council was ultimately successful in the proceeding, this case serves as a timely reminder of the practical drafting issues that repeatedly face local governments. Various pieces of legislation under which local governments act often prescribe different requirements for the issue of statutory notices.

For example, under s451 of the EPA, the administering authority may give a notice requiring the recipient to give the authority information but the notice may only be given if the authority suspects on reasonable grounds that person has knowledge of a relevant matter. If an officer, other than the CEO, is to issue the EPO or the Notice requiring information, there must be a delegation under s518 of the EPA to the authorised person. Yet, under section 465 of the EPA, an authorised person may exercise the power to require information from a person (when he or she suspects on reasonable grounds) that an offence has occurred and that person may be able to provide information,

With respect to "authorised persons" Councils should not be complacent about the words "appropriately qualified employee" as used in s517 of the EPA. This section allows the CEO to delegate to subordinates, provided they are appropriately qualified. Therefore, it is recommended that the employee be assessed for expertise or undergo a basic level of training regarding each and every Act that they will administer and enforce before becoming an "authorised person".

As a starting point, it is important that local governments ensure that it has delegated its powers accordingly and are conscious about when an officer is acting under delegated power and when the officer is acting as an authorised person. It is recommended that when acting as a delegate, that the word "delegate" actually be used in the statutory notice. Likewise, when an officer is acting in his or her "authorised person" capacity, those words be used on statutory notices or correspondence. This practice may not strictly be required but it serves two purposes:

• it clarifies the situation to the recipient of the notice; and
• it may serve to highlight the capacity under which the notice is given to the issuing officer who then may be prompted to check his or her authorising paperwork.

Some enforcement action, including prosecutions, have been abandoned by administering authorities before being heard in court because of problems with delegations and authorised person appointments.

Delegations and authorised persons documents should be accessible and routinely maintained.

Further, when local government legislation is enacted or substantially amended, it is prudent to review delegations for precise drafting reflecting the context of that legislation.

Footnotes

¹See paragraph [11] of Searles DCJ reasons for judgment.

²Environmental Protection Act 1994 (Qld) ("EPA") section 521.

³EPA section 531(1).

⁴Ibid section 521(12).

⁵This is the exception to section 521 provided in section 521(12).

⁶See paragraph [41] of the reasons.

⁷Ibid paragraph [43].

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