Kate Taylor – Solicitor, Local Government, Planning and Litigation
The lengthy process of administrative decision-making might seem frustrating, and even unnecessary at times. Those in the know, we’re sure, are no stranger to this perception. However, as Pulitano Pastoral Pty Ltd v Mansfield Shire Council [2017] VSC 421 (27 July 2017) (“the Pulitano Case”) reminds us, there are important reasons for these thorough procedures.
Baked into our legal system is the right to procedural fairness, which is particularly potent for the protection of individuals against the power of the state and underpins much of the discussion arising from the Pulitano Case. Additionally, the Pulitano Case reminds us that matters of statutory construction will (and should) impact upon the practical daily operations of Council staff.
In the Pulitano Case, the Supreme Court of Victoria (“VSC”) heard a matter for judicial review of two administrative decisions under the Road Management Act 2004 (Vic) and the Local Government Act 1989 (Vic) respectively as made by Mansfield Shire Council (“Council”). The challenge to these decisions was made on the basis that firstly, Council’s decision to deregister part of Fridays Lane in Bonnie Doon did not comply with procedural fairness, and secondly, that Council’s decision to discontinue Fridays Lane was unreasonable and that Council failed to give adequate reasons for its decision.
The first decision made by Council under challenge was made on 15 September 2015 to deregister part of Fridays Lane pursuant to its powers under section 17(4) of the Road Management Act 2004. This section requires a road authority to decide that a road is no longer reasonably required for public use before it can determine to remove the road from the road register.
The VSC heard that in the resolution passed by Council, it did not state that it had decided that Fridays Lane was no longer reasonably required for public use, and further that Fridays Lane was not even mentioned in the resolution. In an attachment to the resolution, it could be discerned that Fridays Lane was no longer included in the register, and therefore inferring its specific removal, however the VSC determined that it is not permissible to infer a council’s purpose from an officer’s report.
In the circumstances of this case, the plaintiff and Council officers had been in detailed correspondence with respect to the plaintiff’s private access via the public road to his property. The plaintiff’s private right of access to the public road would be adversely affected should the road be deregistered. Council did not hear from the plaintiff prior to resolving the remove the road from the register.
On the same date, Council also passed a resolution, which predetermined that Fridays Lane was not reasonably required as a road and resolved to commence discontinuance procedures (including commencing procedures under section 223 of the Local Government Act 1989). This is relevant to the second decision under challenge.
The second decision by Council, made on 24 March 2016, was to discontinue the road pursuant to Clause 3 of Schedule 10 of the Local Government Act 1989 and having considered the submission by the plaintiff listed its reason for determining the discontinuance was that it was not reasonably required as a road. In a letter from a Council officer following this decision, the reasons for Council’s decision were stated as being that the submission did not contain a compelling argument.
The VSC determined that legal procedures under the Act in this decision by Council were miscarried.
Among other things, the VSC provided that the construction of section 223 of the Local Government Act 1989 clearly states that the powers, duties and functions under this section must be carried out by Council and cannot be delegated, except for administrative procedures necessary to carry out the functions under this section. Council, in this case, could not delegate the giving of its reasons for its decision in consideration of submissions received by Council under this section.
In exercising its powers under the relevant Acts, and not precisely adhering to required legal procedure, the VSC determined that Council acted without jurisdiction to remove the road from its register, denied natural justice to the plaintiff, and miscarried legal procedures in its decision-making.
After hearing the Pulitano Case, the VSC determined that both decisions made by Council were invalid and Council’s decisions with respect to Fridays Lane were quashed. This decision reinstated Fridays Lane as a public road and relisted Fridays Lane on the road register.
For officers and decision-makers in Local Councils, the lessons from the Pulitano Case remain a vivid, daily reminder of the weight of responsibility in exercising administrative decision-making.