The findings of the Land & Environment Court in the case of Barca v Wollondilly Shire Council  NSWLEC 118 mean that, where a council officer decides whether an amended development application differs “only in minor respects from the original application”, councils should ensure that the officer has been properly delegated the power to do so.
In Barca v Wollondilly  NSWLEC 118, Pepper J considered whether a determination of a consent authority refusing to grant consent to an application for designated development was invalid by reason of its failure to properly comply with statutory notification and exhibition requirements.
Section 79(1) and (6) of the Environmental Planning & Assessment Act 1979 (EP&A Act) provides that if an original development application (which includes the material accompanying that application, such as an Environmental Impact Statement (EIS)) has been exhibited in conformity with s 79(1) and is later amended, the consent authority may dispense with the further exhibition of the amended application if the consent authority is of the opinion that the amended application differs “only in minor respects from the original application” (s 79(6)). Otherwise, the amended development application must be re-exhibited in accordance with s 79(1).
The evidence before the Court was that an officer of the council who had the daily control and carriage of the DA (Mr Rokobauer) formed the view that “the changes which were made between the Amended EIS from the Original EIS were minor only” and that he “was of the view that there was no requirement under the EP&A Act for re exhibition due to the operation of section 79(6) of the Act.”
The Court however found that there were material deficiencies in the original EIS that were sought to be addressed by the applicant in the amended EIS and thus the application could not be considered to have changed “only in minor respects”. The Court found as follows:
“ … the views expressed by Mr Rokobauer in his affidavit represented no more than his personal opinion and not those of the council. Put another way, in the absence of any delegation of the council’s functions to him, or any further information that would permit the Court to properly infer that the council was bound by his conclusion that the changes made to the original EIS in the amended EIS were “only minor”, very little, if any, weight was given to his evidence in this regard.”
Whilst the Local Government Legal’s Delegations Database includes a delegable function which arguably covers all functions under section 79, for the avoidance of doubt, in response to this case, we have included a new delegable function in the database which allows a council to delegate the authority to determine whether the differences between an original and an amended application (including the material submitted in support of it) are minor, for the purposes of public exhibition.
Note: This information is not to be relied upon as legal advice.