Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 Hearing dates: 6 December 2023 Date of orders: 29 February 2024 Decision date: 29 February 2024 Before: Ward P at [1]; Gleeson JA at [208]; White JA at [209] Decision: 1. Allow the appeal. 2. Set aside the orders below made on 11 September 2023. 3. In lieu thereof, declare that the decision purportedly made by the second respondent on 15 September 2021 in relation to development application DA/0288/2021 lodged on 8 January 2021 is invalid and order that the decision be quashed. 4. Remit the determination of the said development application to the second respondent by itself and not by its delegate or sub-delegate. 5. Reserve the question of costs of the proceedings below and of the appeal. 6. Direct that within 14 days the parties file and exchange submissions of no more than five pages on what order should be made as to the costs of the proceedings below and of the appeal and that any submission in reply of no more than three pages be filed and served within a further seven days. 7. Subject to any further order, the costs of the proceedings below and of the appeal be determined on the papers. Catchwords: ENVIRONMENT AND PLANNING – Development applications – Delegation of assessment function of local council – Whether delegate had authority to determine application – Interpretation of relevant instruments of delegation and sub-delegation and policy – Whether primary judge erred by interpreting "submission by way of objection" by reference to the statutorily directed time period under the Environmental Planning and Assessment Act 1979 (NSW) – Whether objection was "a reasonable and unresolved objection resulting from the neighbour notification/exhibition process" – Whether objection was "resolved" ENVIRONMENT AND PLANNING – Development applications – Imposition of orders under s 25B of the Land and Environment Court Act 1979 (NSW) – Whether Council validly regranted consent – Whether there was substantial compliance within the meaning of s 25C of the Land and Environment Court Act 1979 (NSW) Legislation Cited: Environment Planning and Assessment Regulation 2021 (NSW), s 88 Environmental Planning and Assessment Act 1979 (NSW), ss 2.23, 4.15, 4.16, 4.17, 4.18, 4.61, 4.64, 8.8, cll 7, 14, 15 of Sch 1 Interpretation Act 1987 (NSW), ss 3, 32, 34, 49 Land and Environment Court Act 1979 (NSW), ss 25B, 25C Local Government Act 1993 (NSW), ss 22, 377, 378 Water Management Act 2000 (NSW) Protection of Environment Operations Act 1997 (NSW) Cases Cited: Bankstown City Council v Zraika; Roads and Maritime Services v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51 Belmorgan Property Development v GPT RE [2007] NSWCA 171; 153 LGERA 450 Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Comcare v Lilley (2013) 216 FCR 214; FCAFC 121 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2023] NSWLEC 93 Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 3) [2023] NSWLEC 104 KEPCO Bylong Australia Pty Limited v Bylong Valley Protection Alliance Inc [2021] NSWCA 216; 250 LGERA 39 KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 Lyons v Sutherland Shire Council [2001] NSWCA 430; 117 LGERA 334 Minister for Planning v Walker [2008] NSWCA 224; 161 LGERA 423 Newmont Yandel per Spigelman CJ and Handley AJA at (2017) NSWLR 411; [2007] NSWCA 195 Phelps v Western Mining Corporation Ltd [1978] FCA 50; 20 ALR 183 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Rossi v Living Choice Australia Ltd [2015] NSWCA 244 Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46 Category: Principal judgment Parties: Filetron Pty Ltd (Appellant) Innovate Partners atf Banton Family Trust 2 (First Respondent) Goulburn Mulwaree Council (Second Respondent) Representation: Counsel: J Lazarus SC (Appellant) J Hutton SC with G Ng SC (First Respondent) A Hammond (Second Respondent)