Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45

Background

In this decision that was handed down on 27 April 2023 Justice Robson found that an assessing officer failed to consider statutorily mandated matters under s 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act) because he had omitted to consider the Applicant’s objections that were submitted outside the public exhibition period as ‘matters of public interest’, and therefore failed to determine the DA. The Court found that even if a public exhibition period has finished, a council must still take any objectors’ submissions into account under s 4.15 of the EP&A Act as ‘public interest’ matters.

Facts

The Applicant (the adjacent landowner to the development site) lodged an objection to a proposed development outside of the public exhibition period. The Applicant argued that Council’s assessing officer (the Delegate) failed to properly consider certain matters under s 4.15(1) of the EP&A Act and constructively failed to determine the DA under section 4.16 of the EP&A Act. The Delegate accepted the late objection from the Applicant and invited the Developer to respond to those objections. The Developer submitted a Revised SEE addressing the objections. The issues raised in the objections were then considered in the Delegate’s Assessment Report. The Assessment Report also considered the Developer’s Revised SEE and concluded that the issues raised by the Applicant in its objections could be dealt with by way of conditions to the development consent. The draft conditions were set out in the Assessment Report. However, when the Delegate issued his ‘notice of determination’ granting development consent, the document did not include the draft conditions.

Court decision

The Court found that the Delegate did have authority to determine the DA, but that the Delegate omitted consideration of required matters, and therefore failed to determine the application.

The Court confirmed that the delegation of a function to a council officer (other than the General Manager) under the Local Government Act 1993 (NSW) (LG Act) is a two-stage process: First, a council may delegate any of its function to a general manager pursuant to s 377(1); and second, a general manager may sub-delegate any of those functions to a council officer pursuant to s 378(2) of that Act.” Council had resolved pursuant to section 377(1) of the LG Act to delegate to its General Manager certain powers and functions set out in the document “Instrument of Delegation”. Schedule 3 of that document set out the “Conditions & Limitations Applying to Delegated Functions” and included a stipulation that a function cannot be exercised under delegation if there are ‘unresolved submissions by way of objection’. Council had a separate “Development Assessment & Decision-Making Policy”, which required that any applications that are subject to ‘a reasonable and unresolved objection resulting from the neighbour notification/exhibition process’ should be referred back to Council.

The Court found that as the Applicant’s objections were submitted outside of the public exhibition period, they were to be considered by the Delegate, not as ‘public objections’ under the EP&A Act (within the public notification/exhibition framework), but rather as matters of public interest under s 4.15(3) of the EP&A Act. As such, the Delegate was not required to refer the application back to Council for review.

However, the Court found that as neither the Revised SEE nor the Assessment Report had been incorporated into the notice of determination, there had been “both a failure to consider the matters raised in those documents and a constructive failure to determine the application”. This was because the Delegate had expressly identified these as matters informing the exercise of his evaluation under s 4.15 of the EP&A Act and were the basis upon which he was able to recommend approval in the Assessment Report. The Court found that as the Delegate had expressed this condition to be material to any grant of consent, it could not be overlooked in the determination of the application. On that basis, the Court found the Delegate’s conduct in determining the application “involved a failure to consider mandatory matters and thereby breached s 4.15(1) of the EP&A Act”.

The Court ordered that the consent be suspended until further order under s 25C of the Land and Environment Court Act 1979. The Court also ordered that Council reconsider the conditions of consent relating to issues raised by the Applicant (as set out in the Revised SEE and the Assessment Report) and within 21 days issue an amended development consent or A  Statement of Reasons why no such condition is required.

Whilst Justice Robson did not make any judicial findings on the Council’s sub-delegations, his  Honour noted that in this case they were confusing. In the context of this decision, Councils may wish to look at their sub delegations from time to time and consider whether they conflict with any other internal policies.