In brief - Understand the obligations of councillors and local government officers
When seeking a development approval from the local government, it is useful to understand the basic obligations of councillors and local government officers in performing their functions.
Getting your application right increases your chances of success
To avoid disputes and lessen the overall costs of the development approval process, it is recommended that you:
• seek a recommendation from another developer or the Planning Institute Australia for a good town planner to help you to prepare an application
• take strategic advice from the town planner and other relevant consultants for the design of the development and the preparation of the development application
• understand the way the application will be assessed, including its potential weaknesses
• design a proposal that has planning merit, so that local government officers and councillors can justify a decision to approve it
Roles and responsibilities of the local government
The local government is ordinarily empowered to administer the planning laws of the relevant State, including the determination of development applications.
These powers must be exercised within the scope of the power, in good faith and with reasonable care.
A local government officer's role is to assess a development application and advise the local government. Occasionally a development application may be decided by an officer exercising a delegated authority from the local government.
A councillor may be involved in a development application in various roles, including as a mediator between interests, an elected community representative and a decision maker.
Political aspects of a development proposal
A development application may be open for public submissions, which the decision maker will be required to consider in deciding whether to give an approval.
If your development is controversial and you wish to engage a councillor as a mediator between you and the interests opposing the proposal, a high level of formality should be expected. The councillor will likely seek delegated authority from the council to assist in negotiations and involve other local government officers in any meetings with you.
You may also approach your elected representative as a member of the public and communicate your views in support of the proposal. However, keep in mind that the councillor has a responsibility to represent the current and future interests of all residents and your views will not be the only views they must consider.
Lobbying activities (such as a professional lobbyist acting for a third party client) may be the subject of State laws. Become familiar with these requirements if you are undertaking lobbying.
In a decision maker role, a councillor will need to keep an open mind until all information is available, including the recommendations of the local government officers and any public submissions.
Balancing the private and public interests involved
Overall, the laws governing planning and development seek to balance the private property interests of landowners and the public interest in orderly development.
Having considered public submissions on a development proposal, the decision must be made in accordance with planning principles and the applicable planning laws, based on the merits of the application. The decision must be made in good faith, which would include avoiding any improper purpose, bias or personal or preferential interest.
Ordinarily, an officer's recommendation will be followed by a local government unless there is a finely balanced planning issue involved and there are good grounds why a contrary decision is justified.
A councillor's overall responsibility is to act in the public interest for the whole local government area. This means the decision must be a decision that a reasonable elected councillor who is not influenced by personal considerations would make.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.