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
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
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
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.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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