Council assessment officers bear the burden of being decision makers in relation to public policy. This carries a responsibility to demonstrate fairness in the decision making process and to allow the applicant an opportunity to demonstrate that his or her application is capable of being compliant with planning policy before the planning authority can refuse it.
This is particularly true in relation to town planning as each development application and each site has a different set of rules applicable to it and it is possible to get as many interpretations of those rules as you can find town planners.
Common law has established a requirement for decision makers to show procedural fairness in the decision making process:
“..Cooper v Wandsworth Board of Works, held that it had been unlawful for the Board to have demolished the plaintiff’s house under an order which it had made pursuant to a statutory power when it had not given the plaintiff the opportunity to appear before it to contest the making of the order. There Byles J traced the heritage of the rule, referring to observations of Fortescue J in 1723 in Dr Bentley’s Case where he said:
“… God himself would not condemn Adam for his transgression until he had called him to know what he could say in his defence: Gen: iii.9”*
As anyone who has attempted to lodge a development application with Council would know; it is quite difficult to meet all the requirements stipulated by Council perfectly on the first go. So; if the applicant must meet rigorous tests for simply lodging a development application – then surely the assessing officer must also rigorously abide by the regulations and be mindful of procedural fairness in the assessment of that application.
Assessment officers must demonstrate that their decisions are in accordance with the various planning instruments in relation to an application and they must also be seen to be unbiased in their decision making process. Justice must not only be done – but be seen to be done.
A framework for procedural fairness in the assessment of development applications is provided in the Environmental Planning and Assessment Regulations. If these measures are not followed then it is easy to slide off the narrow road of procedural fairness and fall into a murky space where it is not apparent that the decision maker has been fair and unbiased.
Council officers must maintain a professional and timely response in relation to the process around the assessment of development applications. It is not enough to merely email or telephone an applicant with regards to expectations. This can easily result in misperceptions between both the Council and the applicant. The old fashioned pen and paper – or at least hard copy of a typed letter is the least a regulatory authority should provide with regards to their intentions and it is actually stipulated through Clause 112 of the E P and A Regulations.
Very few development applications get approved without Council requiring some kind of modification or additional information. How long should Council give for the applicant to provide this information? Normally Councils’ would provide a letter to the applicant detailing the amount of time allowed to respond with the information – this is normally 28 days and often this time frame is extended because co-ordinating consultants can be like herding cats.
Where an applicant is demonstrating that they are actively engaged in responding to Council requests and working towards a positive outcome for a site then shouldn’t Council accommodate that within a reasonable time period? Wouldn’t that fall within a conception of procedural fairness?
Assessment and determination of development applications requires a soft touch – the process is not in fact a tick and flick exercise or a sausage factory as many like to portray it. A relationship between the applicant and the assessment authority is inevitable as a result of their humanity and you would expect a level of good faith where an applicant demonstrates their willingness to moderate and comply with Council requirements.
Providing reasonable and clear guidance to applicants and allowing for a reasonable opportunity for applicants to meet any additional requirement would in my opinion; fall within the jurisdiction of procedural fairness as established through the common law and conversely; not allowing reasonable time for the applicant to respond would actually result in an irrational decision wasting time and money for no reason other than to expedite the assessment of an application – especially if the final outcome would result in a positive outcome for the community and the environment.
Fundamentally – assessing officers need to carefully consider their decisions within a broader jurisprudence context – their decisions cant be based on their personal determination times or other such nonsensical workplace measures – as the implications of their decisions reach beyond their workplace and affect investment and economic development and the care and protection of the environment of the community.
To finish with a quote from Steven Rares and the article he wrote called Blind Justice: the pitfalls for administrative decision making 2006*
- that gave me much food for thought on this topic and provides sage advice to all assessment officers out there:
“..it is better that in making decisions one acts honestly and fairly, with as much attention to all relevant requirements as possible, so that, as the vast majority of decision-makers diligently do, one does one’s duty according to law.”