In the case of DeAngelis v Pepping  NSWLEC 108, the Land and Environment Court has held that a council officer, in signing an amendment to a Local Environmental Plan (“LEP Amendment”), acted as an agent, rather than as a delegate, of the Council.
The case involved a challenge to the validity of an LEP Amendment by the owner of land which would be rezoned as a result of the amendment. One of the grounds challenging the validity of the instrument was the absence of authority to make the LEP Amendment.
A summary of the relevant facts are as follows:
- On 14 October 2012, the Minister delegated all of his functions under section 59 of the EP&A Act (Making of Local Environmental Plans by Minister) to all councils subject to conditions including that the Director-General gives a written authorisation to exercise the delegation.
- On 13 November 2012 the Council delegated its functions to its General Manager pursuant to s 377 of the Local Government Act 1993.
- At around this time the Minister wrote to the General Manager of Council about the delegation to Council under s 59 of the EP&A Act, relevantly in the following terms:
“To implement the new policy I have delegated to councils all my functions under section 59 of the Environmental Planning and Assessment Act, 1979 for the making of Local Environmental Plans (LEPs).
To be able to exercise these delegations, your council must write to the department advising that they are accepted. Councils are also requested in their response to nominate the officers or employee of council who will be granted the proposed delegation. ….”
4. On 12 December 2012, the Council resolved as follows:
THAT Council accepts the Delegations of the Minister for Planning and Infrastructure under section 59 of the Environmental Planning and Assessment Act, 1979 as outlined in the report.
THAT in accordance with Section 381 of the Local Government Act 1993; Council delegate to the General Manager and the Manager Strategic & Assets the functions under section 59 of the EP&A Act.
THAT the Department of Planning and Infrastructure be advised in writing that Council accepts the right to exercise the delegations under section 59 of the EP&A Act and that the officers of Council nominated to perform the delegations are:
a. Jason R Gordon, General Manager
b. Mark Pepping, Manager Strategic & Assets
5. The history of LEP amendment is more complex however for these purposes, it is relevant that the Council submitted a planning proposal to the Department of Planning and Infrastructure, the Minister issued a gateway determination and on 27 November 2013 the Council resolved to proceed with the making of the draft LEP.
6. In April 2013 Parliamentary Counsel issued an Information Sheet on the Online notification of delegated LEPs which read in part as follows:
Before signing an LEP, the Council’s delegate must verify that the LEP and map cover sheet (if any) are the same as those listed in the Opinion for the LEP. The map cover sheet must also refer to all the maps accompanying the LEP.
Once the LEP, and any map cover sheet, has been signed by the Council’s delegate, send a request to the Department of Planning and Infrastructure for online notification of the LEP on the NSW legislation website. The LEP that will be notified is the one held by PCO for which the Opinion was given. Delegated LEPs must not be retyped or altered in any way. Altered LEPs cannot be notified on the NSW legislation website. If changes to the LEP are required, contact the PCO. For changes to maps or the map cover sheet, contact the Department.
7. By instrument dated 19 December 2013 the General Manager of the Council purported to delegate certain powers to the Group Manager Strategic & Assets, including the following powers under the EP&A Act:
|DEPARTMENT OF PLANNING CONCURRENCE||
To be Council’s nominated Planning Officer for the purpose of all delegations from the Department of Planning
. . .
|LOCAL ENVIRONMENTAL PLANS||
To prepare a Draft Local Environmental Plan pursuant to Section 54 of the Environmental Planning and Assessment Act in relation to minor or procedural matters to remove anomalies, provided that any such action is to be reported to Council prior to the preparation of a submission to the Minister for the making of a Local Environmental Plan
8. On 26 March 2014 the Parliamentary Counsel’s Office sent a draft instrument to the Council by email.
9. On 27 March 2014 the Council sent the Department by email a draft instrument signed and dated by Mr Pepping.
It was common ground that the Minister validly delegated to the Council the power to make what became the LEP Amendment and it was also common ground that the General Manager could have signed the LEP since he had a delegation from the Council to do so. The question for the Court was whether the General Manager could, and did, sub-delegate his power to Mr Pepping.
The Council argued alternate positions, as follows:
- The Council had sub-delegated its power to its General Manager who had in turn sub-delegated his or her power to Mr Pepping (the Delegation Route); or
- The decision to make the LEP Amendment was a decision of Council. The decision was carried into effect by its servant or agent, Mr Pepping, signing the instrument prior to its publication. This act was done by Mr Pepping as the Council’s servant or agent and therefore was done by the Council as principal (the Agency Route).
The Court found as follows:
139. … I am not persuaded that the Council or the General Manager had sub-delegated its, his or her power to Mr Pepping.
142. In specifying that Mr Pepping was to sign the instrument, I consider that it was appointing Mr Pepping as its agent to sign the document on its behalf, as distinct from vesting him with any delegated power to do so …. an express statutory power of delegation does not necessarily exclude an implied power to act through agents.
145. Because all Mr Pepping was doing was acting as a functionary, amanuensis and signatory, he was, in my view, an agent who could be authorised by the Council (see s 355 of the LGA) to perform acts that had to be performed by natural persons, such as signing an instrument to signify that it corresponded with the Council’s resolved intent. He was neither forming an independent judgment, nor making any decision that was within the Council’s function to make. He was merely carrying into effect that which the Council, as a statutory body rather than a natural person, could not itself practically do. There was a “practical necessity” (see O’Reilly at 12 per Gibbs J) for a natural person to check, for example, that the maps identified in the draft instrument corresponded with that were identified in the Planning Proposal.
Section 355 of the Local Government Act 1993 provides that a function of a council may be exercised in several ways, including “by the council by means of the councillors or employees, by its agents or contractors, …” or “by a delegate of the council”. This case reinforces the importance of council officers understanding the capacity in which they are acting, which involves ensuring that, if applicable, they have the necessary sub-delegated power to carry out a statutory function of council.
Note: This information is not to be relied upon as legal advice.