Good Decision Making - Burning Permits under the Environment Protection (Air Quality) Policy 2016 & the Application of Council Policy
LG Leader April 2017
The Environment Protection (Air Quality) Policy 2016 (the Policy) commenced operation in July last year and regulates burning in the open. The Policy restricts certain burning activities from being undertaken within a metropolitan council or within a township in a non-metropolitan council outside the fire danger season without a permit.
Clause 6 of the Policy gives ‘relevant council delegates’ discretion to issue a burning permit outside of a fire danger season to authorise persons to undertake these burning activities. Specifically, a burning permit may only be issued (outside of the fire danger season) for one or more of the following burning activities:
- burning agriculture or forestry waste; or
- burning off vegetation for fire prevention or control; or
- burning vegetation for any other purpose
(the prescribed burning activities).
In this context, a question that commonly arises is whether councils can simply decide (i.e. as a policy position) not to allow the prescribed burning activities to take place in their area (in the case of a metropolitan councils) or in their townships (in the case of non-metropolitan councils) at all and refuse to issue permits under the Policy on that basis alone.
The answer to this question is ‘no’. The reasons for this are linked to the administrative law principles regarding the role and application of policy. These principles include that a policy cannot be inconsistent with legislation or operate to fetter the exercise of discretion conferred by legislation.
Councils can, of course, adopt a policy to provide guidance to the relevant council delegate in assessing applications and imposing conditions on a permit. However, a council policy cannot operate to simply prohibit prescribed burning activities in a council’s area or its townships (as the case may be) or, prevent persons from making applications for burning permits. A policy in these terms that purported to operate to fetter the relevant council delegate’s discretion to issue burning permits as conferred by the Policy would be ultra vires and would not be binding on the relevant council delegate.
If the council receives an application for a permit (noting it cannot prevent persons from making an application), the relevant council delegate is required to assess the application on its merits and either grant or refuse the permit as he/she sees fit. In doing so he/she must have regard to and evaluate the circumstances relevant to the application. This includes having regard to any relevant council policy. However the relevant council delegate is free to depart from that policy where he/she considers there are justifiable grounds to do so.