Local Government Legal

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May 2012 – Council ordered to furnish a Statement of Reasons on a s96 Determination

In the case of Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC105, the Applicant sought an order that the Maitland City Council provide a statement of reasons in relation to the Council’s decision to approve a modification application pursuant to s96(2) of the EP&A Act to modify the Council’s existing development consent for a waste and landfill facility which the Council owns and operates.

Rule 4.3(b) of the Land and Environment Court Rules 2007 provides that, in any proceedings in which a public authority’s decision is challenged or called into question, the Court may make an order directing the public authority to furnish any other party with a written statement setting out the reasons for the decision, being a statement that includes:

(i) the public authority’s findings on any material questions of fact, and

(ii) the evidence on which any such findings were based, and

(iii) the public authority’s understanding of the applicable law, and

(iv) the reasoning process that led to the decision …

An Order was made by the Court in the context of class 4 judicial review proceedings brought by an adjacent landowner to the landfill (Vincent Land) challenging several aspects of the independent town planning report prepared on behalf of the Council to assess the modification application. Vincent Land argued that it did not know whether the Council had adopted the views expressed in the town planning report in making its decision, and in order for Vincent Land to properly and efficiently plead its claim, it was entitled to know with greater precision the matters that the Council had considered in resolving to approve the modification application.

The Council, in resisting the claim, argued that several of the Councillors did not have an independent recollection of the matters they had taken into account and that being required to obtain individual statements from each Councillor as to their reasons for approving the application would cause the Council to incur significant costs.

Pepper J ordered the Council to provide a modified statement of reasons, setting out to the best of the council’s (or a person authorized to provide a statement on the Council’s behalf) knowledge, information and belief, the reasoning process that led to the Council’s approval of the s96 modification application and a list of all the material the Council took into account in making the decision.

Note:  This information is not to be relied upon as legal advice

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