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October 2015 – Case law: Council officer acting as agent not delegate

In our July 2014 Newsletter (click here) we reported on the Land and Environment Court’s (LEC) judgement of DeAngelis v Pepping [2014] NSWLEC 108.

In De Angelis v Pepping [2015] NSWCA 236, the Court of Appeal overturned the LEC’s finding that , in signing an amendment to a Local Environmental Plan (“LEP Amendment”), Mr Pepping (the Manager Strategic & Assets at Wingecarribee Council) had acted as an agent for Council, despite not having valid delegated authority to do so.

A summary of the relevant facts, in relation to Mr Pepping’s authority, 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. ….”

  • By resolution made on 12 December 2012, the Council:
    • purported to accept the Minister’s delegations under s59 of the EP&A Act;
    • purported to delegate these functions to its General Manager and Mr Pepping;
    • resolved that the Department be advised that the officers nominated to perform the delegations were the General Manager and the Manager Strategic and Assets.
  • On 25 September a delegate of the Minister issued a gateway determination stating that the Planning Proposal to make the Amending LEP should proceed subject to conditions.  The authorisation included the following: “In exercising the Minister’s functions under section 59, the Council must comply with the Department’s ‘A guide to preparing local environment plans’ (Guide) and ‘A guide to preparing planning proposals’.”
  • On the same day, the Acting Deputy Director-General of the Department issued a written authorisation to the Council to exercise the functions of the Minister under s57 of the EP&A Act in relation to the Planning Proposal.
  • On 27 November 2013, the Council resolved in accordance with s 59 of the EPA Act and the Guide to proceed with the making of the Amending LEP.
  • By instrument dated 19 December 2013 the General Manager purported to delegate (pursuant to s 378(2) of the Local Government Act 1993) 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
  •  On 26 March 2014 the Parliamentary Counsel’s Office sent a draft instrument to the Council by email.
  • On 27 March 2014 the Council sent the Department by email a draft instrument signed and dated by Mr Pepping.

It was common ground in the appeal that:

  1. the Minister validly delegated to the Council the power to make the LEP Amendment;
  2. the General Manager could have signed the LEP Amendment since she had a delegation from the Council to do so.
  3. the General Manager, although she had power to sub-delegate to Mr Pepping authority to sign the instrument, had not validly done so.
  4. the Council lacked the power to delegate authority directly to Mr Pepping to sign the LEP Amendment.

Court of Appeal’s findings

The Council argued that the Council’s resolution to “proceed with the making of the amendment” should be understood as giving authority to Mr Pepping, as the Council’s agent, to carry out the “secretarial” function of signing the Amending LEP once the draft instrument was returned by Parliamentary Council.

The Court rejected this argument and found that the Council’s resolution did not authorise Mr Pepping to sign the Instrument, but rather the resolution provided authority for Council officers to forward the ‘final proposals‘ to the Department for the drafting of the LEP Amendment.

The Court of Appeal also referred to the administrative law principle that when a decision maker (such as a Minister) is entrusted with functions, although he has an express statutory power of delegation, he may in general act through a duly authorised officer of his department because administrative necessity meant it was impractical for him to carry out the administrative functions personally.  The Court of Appeal explained that this case is different because s377(1) permits the Council to delegate functions to the GM or another person but not to another employee of the Council (such as Mr Pepping).  The Court of Appeal found that “in light of this limitation on the Council’s power, it is difficult to construe the Council’s resolution as intended to authorise Mr Pepping to do as agent that which the Council could not authorise him to do in the exercise of delegate authority” (at 131).

Consequently, the LEP Amendment was invalid and of no effect.

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.



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