LGEMA - Local Government Elected Members Association

LG Development Approval Risk Changed 7 October 2026 re Climate Change by High Court in MACH decision: Part Five: A practical governance response in context of WA's climate policy and its gas industry

MACH reinforces an important principle: where the applicable law makes a matter relevant, decision-maker must actually consider it.
This is particularly relevant in WA. WA is Australia’s largest LNG-exporting State and accounted for about 12% of global LNG exports in 2024. At same time, WA has recognised climate change, climate resilience and adaptation in its own policy, planning and LG Act framework.

Existence of a major LNG industry does not make climate change legally irrelevant. Nor does climate policy mean every Council must oppose or consider climate impacts in every decision.

The practical response is:
• Identify the applicable legal and planning framework.
• Assess whether climate change is legally relevant.
• Record the evidence and reasoning.
• Decide according to the applicable law.
• Retain the decision-making record.

Councils need to use this response separately for a development decision, subdivision and rezoning recommendations.

ARIC: Does Council have controls to identify, demonstrate consideration of legally relevant climate issues? Not about requiring particular outcome, but about lawful decision-making, accountability.

LG Development Approval Risk Changed 7 October 2026 re Climate Change by High Court in MACH decision: Part Four: No third-party merits review in WA > higher risk of corruption influence (WA only Australian jurisdiction without TPMRs)

WA has no general third-party merits-review pathway for development, subdivision, rezoning approvals. Thus legal compliance, clear decision making record particularly important. IE third party cannot ask SAT to remake development approval because climate change not given any or sufficient weight; but it can ask Supreme Court to review breach of a statutory obligation on a judicial review application.

What Councils can do now: treat failure to consider a legally relevant climate matter as a potential decision-making and legal risk, not merely a difference of opinion.

ARIC: could include this within its review of legal, governance, strategic risks.

LG Development Approval Risk Changed 7 October 2026 re Climate Change by High Court in MACH decision: Part Three: Record the reasoning

MACH demonstrates importance of decision-maker actually considering statutory matter—not simply mentioning climate change somewhere in report.

WA's Climate Adaptation Strategy also calls for stronger public-sector climate capability, accountability.

For WA Councils, the question is not whether every decision must consider climate change. It is whether or not, in the particular decision, the applicable law makes the issue relevant or mandatory consideration.

What Councils can do now: strengthen report templates so that reporting employees identify relevant climate risks, the statutory or planning source of the consideration, the evidence relied upon, and the Council’s response.

ARIC: can test whether or not decisions’ audit trail demonstrates material legal and climate risks were actually considered.

LG Development Approval Risk Changed 7 October 2026 re Climate Change by High Court in MACH decision: Part Two: Planning Strategies, Policies

Do not confuse planning with development or recommendation decisions.

Local Planning Policy, State Planning Policy or Planning Code are part of the planning framework within which context particular development, subdivision or rezoning decisions or recommendations are made.

State Planning Strategy 2050 identifies rising sea levels, flooding, bushfire, changing temperatures and rainfall as matters affecting land use, infrastructure and the built environment. Planning informs local planning schemes, strategies and development assessments.

Key risk is whether or not development, subdivision, rezoning decision or recommendation properly applies relevant statutory framework.

What Councils can do now: require decision reports to identify the relevant planning instruments and explain how each legally relevant climate consideration has been addressed.

ARIC: could periodically review whether significant planning risks are being identified, assessed and reported rather than left implicit.

LG Development Approval Risk Changed Today Re Climate Change: Part One In The High Court

High Court’s decision today in "Mach Energy Australia Pty Ltd v Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc [2026] HCA 35" (MACH) is a warning for development decision-makers: where legislation requires climate-related matters to be considered, that obligation cannot simply be overlooked.

WA has also expressly recognised climate change in State Planning Strategy 2050, & WA Climate Policy and Climate Adaptation Strategy.

What Councils can do now: ask employees to identify, for every significant development decision, whether or not climate change, greenhouse-gas emissions, climate hazards or adaptation are legally relevant—and expressly record consideration.

ARIC: where appropriate, ARIC could ask if climate-related legal and decision-making risks are identified in the Council’s risk register, adequately controlled.

CONDUCT BREACHES REGIME (REPLACING MINOR BREACH) THREE: NEW PROCEDURE

New conduct breach practice and procedure is not settled because we have not had enough decisions from Adjudicator to be clear where LG Act is unclear.

Once breach has been referred to Adjudicator from LGI, practice and procedure from then is matter for Principal Adjudicator. Do not accept any decisions/statements from LGI or Department or someone representing them until Adjudicator has made a statement or finding about point and ask for any clarification you need from Adjudicator about the referral in your response to conduct complaint.

State and Federal Cost Shifting to LG Ratepayers Widespread: Some Evidence Based Examples

1. Whale carcass removal, disposal — LGs have incurred significant, documented costs for State/Commonwealth-related fauna issue.

2. Bushfire prevention, emergency management — substantial statutory, operational responsibilities borne by LGs without full cost recovery.

3. State planning and development functions — LGs absorb significant costs administering State planning, development requirements, processes.

4. Building regulation — LGs carry costs associated with State building regulatory functions.

5. State levy administration — LGs collect, administer State-imposed levies while absorbing associated administrative costs.

6. Domestic pet cat management — LGs bear substantial statutory registration, enforcement, pound, management costs.

7. Citizenship ceremonies — LGs provide Commonwealth function using LG staff, facilities, resources without equivalent Commonwealth reimbursement (noting the pledge which is part of ceremony is one of statutory requirements to become a citizen).

Cost Shifting to LG ratepayers is as unacceptable as it is widespread, and is not confined to whale carcass removal.

ALGA and WALGA: Representation or Delegation

When ALGA or WALGA represent local governments, who/what are they representing?

1. Trustee Representation: Representing without asking
When a body acts on behalf of others without asking for their direct input.
Representative like trustee who uses own judgment, knowledge, values to decide what is best for bodies they represent, rather than asking the group what they want?
OR
2. Delegate Representation: Asking first, then representing views
When a body asks every member for their views and faithfully mirrors those exact views?
OR
3. Consensus-based representation: Democratic mandating; Advocacy

LG Amalgamation Rules Proposed Changes: Shutting Out Electors

LG Act Schedule 2.1 requires that where LG Advisory Board recommends an order to abolish two or more districts and amalgamate them into one or more districts, at least 250 or 10% of electors of one of those districts can require a poll; if at least 50% of district's electors vote and majority vote against recommendation, Minister is required to reject Advisory Board's recommendation.

WALGA published policy is different: electors affected by any boundary change or amalgamation proposal should be entitled to petition Minister for binding poll; and structural reform, including amalgamations, should only be undertaken voluntarily.

LG Minister is proposing to remove elector poll provisions (to facilitate voluntary amalgamations) by removing existing elector-triggered, potentially binding poll safeguard for amalgamations falling within present Schedule 2.1 clause 8 mechanism, reducing elector-poll rights and moving in the opposite direction to WALGA's existing policy.

The precise legal effect awaits amending Bill.