The Local Government Act 1995 (WA) has recently undergone significant reform. These reforms will see changes to a wide array of matters including the introduction of optional preferential voting, the publication of CEO performance indicators and mandating live streaming of council meetings.
One subtle, but significant amendment has seen changes to the general function of local governments. In this article we consider the ramifications of amendments made to the general function, and how local governments should respond operationally to those amendments.
Section 3.1(1) of the Local Government Act 1995 (WA) (LG Act), sets out the general function of local governments. It states that the general function of a local government is to ‘provide for the good government of persons in its district’.
The LG Act specifies that this general function is to be construed liberally, in the context of a local government’s other legislative functions.
The Local Government Amendment Act 2023 (WA) (Amendment Act) was passed by parliament on 11 May 2023. The Amendment Act introduced a number of changes to the LG Act, including amendments to the general function of local governments as set out in s 3.1(1).
Section 21 of the Amendment Act inserted the following new provision into the LG Act under s3.1(1):
This new provision came into operation on 1 July 2023.
When were principles of sustainability first introduced into the LG Act?
Principles of sustainability were first introduced into the LG Act in 2004 by s 1.3, under the heading ‘Content and Intent’, which provided:
This section gave scope for local governments to consider these principles. However, its language was aspirational at best, with no guidance as to application or evaluation. Further, it did not adequately reflect the more recent importance given to particular issues.
Under the new s 3.1(1A), local governments are now required to have regard to the listed matters when performing their general function. These matters include promoting environmental and economic sustainability, recognising the interests of Aboriginal people and mitigating risks associated with climate change.
The amendment brings the LG Act into line with the considerations to be given ‘due regard’ under the Planning and Development (Local Planning Scheme) Regulations (s.67 of the Deemed Provisions). These require consideration of environmental, social and cultural heritage impacts of a planning proposal, as well as economic impacts in the form of loss of any community service or benefit. The LG Act now goes further than the Deemed Provisions in requiring more specific consideration of Aboriginal interests and engagement, and climate risks and mitigation.
It is worth noting that s 3.1(1A) does not limit the general function of local government. The good government of persons in the district remains the primary concern for all WA local governments.
Local governments may well have had regard to the listed matters when performing their general function in the past. However, the introduction of the new section now confirms that these considerations are not only permissible, they are mandatory. In effect, this introduces (or at least clarifies) a legal obligation of local governments.
This new obligation brings with it an emerging risk of court and SAT proceedings. That is, the decisions of local governments are now exposed to the risk of challenge if they fail to have regard to the types of matters introduced by the new section.
It is reasonable to predict that there will be differing interpretations as to what amounts to compliance with the new provision. There could certainly be debate over what ‘having regard to’ should look like in practice. The provision itself provides no guidance and it is to be hoped that the Department of Local Government, Sport and Cultural Industries will issue some in due course.
However, some guidance may be found in administrative law, which we expect will require local governments to demonstrate active intellectual engagement with the listed factors. Consequently, cursory consideration or ‘lip service’ by councils would likely be considered insufficient to amount to compliance.
Two landmark decisions made by the courts in the UK suggest that courts around the world are becoming more willing to characterise a decision as subject to judicial review in environmental matters. And they made reference to Scandinavian cases as well as cases decided in New South Wales.
Both these recent judgments challenged decisions of local governments, as well as the UK government.
In June this year, the UK Supreme Court (the highest court in that jurisdiction) held that the Surrey County Council’s failure to adequately consider greenhouse gas emissions rendered unlawful its planning approval of an oil extraction proposal. The Council had only considered the emissions released in setting up and operating the facility, and not downstream ‘combustion’ emissions.
Following the above decision, on 13 September, the UK High Court held that a planning permission given by the Minister (in lieu of the local government) was unlawful. This was because its decision was based on an assumption that the proposed coal mine would not result in a net increase in greenhouse gas emissions. The assumption was legally flawed for a number of reasons, including the failure to consider downstream emissions.
These decisions suggest that the common law is on the move. They show that the courts are becoming more willing to view administrative decisions on environmental issues as being about lawfulness, rather than about the evaluations made by local governments.
It is clear that climate change and the other issues listed in s 3.1(1A) are areas where local governments will need to be more diligent.
If there is any concern about whether local governments are being asked to intrude on State level issues, then the second reading speech for the Amendment Act is helpful. It suggests that consideration of the listed factors should be undertaken ‘in the context of the unique circumstances of its district’.
We note that a local government’s general function is limited in relation to governing some development approvals. In particular, ‘significant development applications’ may be made to the Western Australian Planning Commission (Commission) in accordance with Part 11B of the Planning and Development Act 2005 (WA).
Local governments cannot determine the outcome of ‘significant development applications’. However, they are entitled to make submissions to the Commission regarding significant development applications within their districts. The Commission must have due regard to any such submission. Indeed, it is reasonably arguable that a relevant local government should provide considered submissions to the Commission in the context of ‘significant development applications’, in order to discharge their obligations under s 3.1(1A).
In order to meet their obligations under the new section, local governments should establish procedures that ensure that reasonable consideration is given to the listed matters during decision-making processes.
Agenda items for council meetings are a key starting point. The following are some suggestions for action:
International and national agendas address the types of matters listed in s 3.1(1A). The provision brings such matters to the level where local governments now need to get actively engaged. The trend represented by the new section is a new type of challenge to the acceptability of the decision-making of local governments. New practices and approaches will be needed to ensure local governments adapt to meet them.
Managing Principal
Mob: 0421 302 541
