Land & Envi­ron­ment Court Declares Devel­op­ment Con­sent Invalid Over Fail­ure to Impose Rel­e­vant Conditions

The Land and Envi­ron­ment Court has held that the fail­ure to impose rel­e­vant con­di­tions on a devel­op­ment con­sent could ren­der it invalid.

Back­ground

Filetron Pty Ltd (Filetron) and Inno­vate Part­ners Pty Ltd atf Ban­ton Fam­i­ly Trust 2 (Inno­vate) were the own­ers of neigh­bour­ing prop­er­ties in Maru­lan, NSW, with Filetron’s land pro­vid­ing Inno­vate with a right of way/​access road over its land. 

In Jan­u­ary 2021, Inno­vate lodged a devel­op­ment appli­ca­tion (DA) for the demo­li­tion of var­i­ous struc­tures, and the con­struc­tion of a dwelling, cel­lar doors, farm build­ing, swim­ming pool, stu­dio, and outbuilding. 

Filetron lodged an objec­tion to the DA in rela­tion to the poten­tial for land use con­flict between Filetron’s agri­cul­tur­al oper­a­tions and the pro­posed use of Inno­vate’s prop­er­ty for a cel­lar door busi­ness. Filetron also had con­cerns about the access road being impact­ed by flood­ing in a one-in-100-year flood event. 

In con­sid­er­ing the DA and Filetron’s objec­tion, Goul­burn Mul­wa­ree Coun­cil (Coun­cil) con­sid­ered mate­r­i­al pro­vid­ed by Inno­vate, includ­ing a revised State­ment of Envi­ron­men­tal Effects (SEE Report), which pro­vid­ed details of the pro­posed oper­a­tion of the cel­lar door. This includ­ed lim­it­ing the days of oper­a­tion to four days a week, as well as the num­ber of peo­ple who could attend each day. 

In Coun­cil’s report assess­ing the DA (Assess­ment Report), it referred to the SEE Report and deter­mined that Filetron’s objec­tions could be man­aged by con­di­tions that lim­it­ed the num­ber of vis­i­tors to the cel­lar door, as well as requir­ing the can­cel­la­tion of book­ings in the event of flooding. 

On this basis, Coun­cil grant­ed con­sent to the Devel­op­ment Appli­ca­tion (Devel­op­ment Con­sent), which includ­ed a con­di­tion that ​‘the max­i­mum num­ber of per­sons per­mit­ted in the cel­lar door build­ing exclud­ing all staff and secu­ri­ty guards at any one time is 14 per­sons’. It also con­tained a con­di­tion that the devel­op­ment could only be car­ried out in accor­dance with plans and doc­u­men­ta­tion list­ed in a cor­re­spond­ing table. How­ev­er, the SEE Report was not one of the doc­u­ments includ­ed in that table. 

Filetron con­se­quent­ly filed Class 4 judi­cial review pro­ceed­ings against Inno­vate seek­ing a dec­la­ra­tion that the Devel­op­ment Con­sent was invalid on the basis that (amongst oth­er rea­sons) con­di­tions were express­ly iden­ti­fied as rel­e­vant con­sid­er­a­tions for the deter­mi­na­tion of the devel­op­ment appli­ca­tion, and the Coun­cil’s fail­ure to impose those con­di­tions fell short of the eval­u­a­tion exer­cise required by s 4.15 of the Envi­ron­men­tal Plan­ning and Assess­ment Act 1979 (EPA Act) or alter­na­tive­ly, result­ed in a con­struc­tive fail­ure to deter­mine the appli­ca­tion under s 4.16 of the EPA Act.

Find­ings

The Court referred to the Assess­ment Report, not­ing that the Devel­op­ment Con­sent failed to include any of the pro­posed conditions. 

The Court held that the fail­ure of the Coun­cil to incor­po­rate con­di­tions which it had iden­ti­fied as nec­es­sary to the grant of the approval was a breach of its oblig­a­tions under s 4.15 of the EPA Act – name­ly, the fail­ure to con­sid­er the rel­e­vant devel­op­ment con­trol plan, or the writ­ten objec­tion from Filetron (as a pub­lic inter­est mat­ter). In mak­ing this deci­sion, the Court not­ed the following:

• Nei­ther the SEE Report nor the Assess­ment Report were express­ly or implied­ly incor­po­rat­ed into the Devel­op­ment Con­sent as the doc­u­ments were not attached to the Devel­op­ment Con­sent nor referred to, and that a mere ref­er­ence to the SEE Report was insuf­fi­cient to con­sti­tute express incor­po­ra­tion into the Consent.
• The Coun­cil had assessed that a land use con­flict between the neigh­bours could be addressed by the impo­si­tion of con­di­tions, but the fail­ure to actu­al­ly impose those con­di­tions con­sis­tent with that assess­ment con­sti­tut­ed a fail­ure to con­sid­er the rel­e­vant matters.

With respect to Filetron’s sub­mis­sion that there had also been a breach of s 4.16 of the Act, the Court held:

1. Sec­tion 4.16(1)(a) of the Act pro­vides that, in deter­min­ing a devel­op­ment appli­ca­tion, a con­sent author­i­ty may grant con­sent uncon­di­tion­al­ly or sub­ject to conditions.
2. Sec­tion 4.17(a) of the Act pro­vides that a con­di­tion of con­sent may be imposed if it relates to any mat­ter referred to in s 4.15 of the Act.
3. A deci­sion to grant con­sent to a devel­op­ment appli­ca­tion which was found to raise issues on mat­ters rel­e­vant under s 4.15 required con­sid­er­a­tion of the impo­si­tion of appro­pri­ate con­di­tions to rem­e­dy such issues.
4. The con­di­tions to man­age the envi­ron­men­tal impacts were mate­r­i­al to grant­i­ng the approval, and accord­ing­ly con­di­tions to that effect should have been includ­ed in the Devel­op­ment Consent. 
5. With­out the con­di­tions pro­posed in the Assess­ment Report, the oper­a­tion of the cel­lar door had the capac­i­ty to grow con­sid­er­ably more than antic­i­pat­ed, which in turn left open the pos­si­bil­i­ty for the devel­op­ment to be sig­nif­i­cant­ly dif­fer­ent to the one to which Coun­cil had grant­ed consent.
6. As the intend­ed con­straints on the devel­op­ment were dealt with oth­er than by the impo­si­tion of con­di­tions (in accor­dance with s 4.17 of the Act), there was con­struc­tive fail­ure on the part of Coun­cil in the exer­cise of its statu­to­ry pow­er to deter­mine the DA sub­ject to con­di­tions under s 4.16 of the Act.

Accord­ing­ly, the Court deter­mined that the Devel­op­ment Con­sent is to be sus­pend­ed until con­di­tions are imposed that will val­i­date the consent. 

Impli­ca­tions

This deci­sion high­lights the impor­tance of impos­ing rel­e­vant con­di­tions on a devel­op­ment con­sent. The fail­ure by a con­sent author­i­ty to com­ply with its oblig­a­tions in this regard could ren­der a devel­op­ment con­sent invalid. 

The full deci­sion can be accessed here: Filetron Pty Ltd v Inno­vate Part­ners Pty Ltd atf Ban­ton Fam­i­ly Trust 2 and Goul­burn Mul­wa­ree Coun­cil [2023] NSWLEC 45