The Land and Environment Court has held that the failure to impose relevant conditions on a development consent could render it invalid.
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.
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.
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  NSWLEC 45
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