Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council - [2023] NSWLEC 45 - NSWLEC 2022 case summary — Zoe

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

[2023] NSWLEC 45

Land and Environment Court (NSW)|2022-11-22|Before: Robson J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-11-22

Before

Robson J

Catchwords

[2017] NSWCA 263 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83
(2017) 223 LGERA 43 Commonwealth v Baume (1905) 2 CLR 405
[1905] HCA 11 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
[2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43

Source

Original judgment source is linked above.

Catchwords

[2017] NSWCA 263 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83(2017) 223 LGERA 43 Commonwealth v Baume (1905) 2 CLR 405[1905] HCA 11 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43(2012) 190 LGERA 119 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23(2006) 143 LGERA 277 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38(2007) 150 LGERA 333 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24[1986] HCA 40 One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125[2001] FCA 54 Parks Holdings Pty Ltd (t/as Gladstone Chemicals) v Chief Executive Officer of Customs [2004] FCA 820(2004) 81 ALD 365 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 R v Australian Broadcasting Tribunal

Judgment (23 paragraphs)

[1]

[4]

Background

To provide context to the parties' submissions, an understanding of the salient background facts, which are largely uncontested, and of the applicable policy and instruments of delegation is necessary. Further facts are recorded later in this judgment in my consideration of the parties' submissions.
Filetron and Innovate each own adjacent land at Wollumbi Road, Marulan. Innovate's land, the subject of the development application, being Lot 1 in DP 1222194 ('site'), known as 154 Wollumbi Road, is accessed via a right of way over Filetron's land, being Lot 455 in DP 771909. Filetron's land is used for grazing cattle associated with Filetron's cattle breeding and fattening operations.
On 8 January 2021, Innovate lodged a development application with Council seeking development consent for a residential and rural development on the site described as involving "[t]hree proposed buildings, which include a secondary dwelling, cellar door premises, farm building, studio, swimming pool and outbuilding. Also, demolition of existing structures and non-native vegetation removal". Material lodged with the development application included inter alia a "Statement of Environmental Effects" dated 6 January 2021; architectural plans; and a report styled "Wastewater Management Assessment" dated 19 November 2020, which was superseded by a revised "Wastewater Management Assessment Report" dated 5 May 2021 ('Wastewater Report').
In accordance with the Goulburn Mulwaree Community Participation Plan ('Community Participation Plan'), the development application was publicly notified and advertised on Council's website and in the Goulburn Post during a public exhibition period scheduled between 9 July 2021 and 23 July 2021. The development application was also notified to affected landowners and neighbours on or about 9 July 2021.
At Filetron's request, on 23 July 2021, Council further uploaded to its website the following documents which accompanied the development application: a geotechnical report, a traffic report, a contamination report, and the relevant pre-lodgement meeting minutes. These documents were subsequently removed from Council's website on 26 July 2021.
The public exhibition and notification documents required public submissions to be received by either close of business or 5pm on 23 July 2021.
On 30 July 2021, Filetron lodged an objection to the development application ('Objection'), and on 8 September 2021, emailed a letter to Council purporting to be a public submission regarding the development application.
Filetron's Objection, which was not lodged during the advertised public exhibition period, raised concerns primarily in relation to the potential for land use conflict between Filetron's agricultural operations on its land (including cattle located in paddocks intersected by the right of way) and the proposed use of the site and consequently of the right of way (referred to variously as the "access road" or "track") over Filetron's land to access the proposed development; and secondly, in relation to the potential for the access road to be impeded by flood waters in a one-in-100 ARI (Average Recurrent Interval) event.
On 16 August 2021, Innovate (through its agent) wrote to Council responding to both a request from Council for further information and to the public submissions received by Council concerning the development application (including Filetron's Objection), and provided a "Revised Statement of Environmental Effects" dated 16 August 2021 ('Revised SEE'). Innovate's agent's letter of response stated: "The proposed Cellar door will trade Thursday to Sunday each week. Daily operations will include four (4) groups of fourteen (14) people per day, which results in a daily capacity of fifty-six (56) guests and a capacity of two hundred and twenty-four (224) guests per week. The statement of environmental effects has been updated to reflect this and is provided as Attachment 4. The Wastewater report and traffic impact assessment provided as part of the application are consistent with the above. The traffic report which accompanies the application clearly outlines both peak and non-peak hour traffic generation for the operation of the proposed development. The proposed use includes wine tastings by invite-only including appointments with groups of 14 persons. Employee numbers include two (2) permanent employee[s] and (2) casual employees. Deliveries will be via mini-van and short wheel-based trucks, approximately two times per week."
The Revised SEE (under "Description of the Development") stated: "The operational details for the cellar door premises would be as follows: Hours of operation Not open to the public, rather, wine tastings will be by private appointment. The proposed Cellar door will trade four days each week (including public holidays). Daily operations will including four (4) groups of fourteen (14) people per day, which results in a daily capacity of fifty-six (56) people and a capacity of two hundred and twenty-four (224) people per week."

[5]

On 6 September 2021, Matthew Hedges, Council's Senior Development Assessment Officer, prepared an assessment report which recommended that the development application be approved subject to conditions ('Assessment Report').
In the Assessment Report, Mr Hedges identified Filetron's Objection and recorded that "[t]he operation of the cellar door can be managed to ensure that any booking[s] are cancelled in the event that the access road is at risk of becoming inundated", and that "the public integration with the site is to be control[led] by appointment only visits to the proposed cellar door which will be capped by [a] condition of consent (4 x groups of 14 persons per day) as detailed by [Innovate] in their submission documentation".
More particularly, under the heading "Rural Land Use Conflict" (dealing with "Principal Development Controls - Rural"), the Assessment Report provided: "The uses proposed as part of the Development Application do not present a significant land use conflict. The proposed uses will not generate a significant amount of noise or smell and are appropriately located to provide access that will not interfere with the residential access to the principle dwelling located on the land. Furthermore, the public integration with the site is to be control[led] by appointment only visits to the proposed cellar door which will be capped by [a] condition of consent (4 x groups of 14 persons per day) as detailed by [Innovate] in their submission documentation."
Under the heading "Water" (dealing with "Impacts/Suitable Control Measures"), the Assessment Report provided: "The objection submitted has identified that the access trac[k] can become inundated with overland flow during periods of extensive rainfall and may potentially create issues for those wishing to leave the site. Whilst this would be an issue if the proposed development site was within the areas [o]f inundation itself, the access being inundated would not represent an issue. The operation of the cellar door can be managed to ensure that any booking[s] are cancelled in the event that the access road is at risk of becoming inundated and those who are staying or reside at the property as part of the existing and proposed residential accommodation can shelter in place during the time the access road is inundated without any risk to life occurring."
On 15 September 2021, Mr Hedges, purportedly acting under delegation, issued a notice of determination (stated to be for and on behalf of Council), granting development consent to the development application, subject to conditions ('Consent'). The Consent described the approved development as: "Demolition of the existing Secondary dwelling and farm buildings. Construction of a secondary dwelling, cellar door premises, farm buildings, agricultural produce industry and swimming pool complex."
The Consent contained, inter alia, the following conditions: "4. Development in Accordance with Documentation The development must only be carried out: a) in compliance with the conditions of this Notice of Determination; and b) in accordance with the approved plans and documentation listed in the table below: … DOCUMENT REF. REV TITLE OF PLAN OR DOCUMENT DATE. 0040821-02 Wastewater Management Report 05 May 2021

[7]

Council's policy and delegations

While there is no dispute that Council had delegated certain functions to Mr Hedges, the process enabling such delegation provides context to the parties' submissions.
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. Those sections provided: 377 General power of the council to delegate (1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following - … 378 Delegations by the general manager … (2) The general manager may sub-delegate a function delegated to the general manager by the council to any person or body (including another employee of the council). …
At an ordinary meeting of Council on 4 October 2016, Council resolved pursuant to s 377(1) of the LG Act to delegate to its General Manager certain powers and functions specified in an instrument titled "Instrument of Delegation", of which Sch 3 sets out the "Conditions & Limitations Applying to Delegated Functions". Clause 9.3 of Sch 3 ('cl 9.3') provided: "9. A function may not be exercised under delegation if it involves determining an Application: … 9.3 in respect of which there are unresolved submissions by way of objection [that] have been made to the subject matter of the application." (Emphasis added.)"
Further, cl 11 of Sch 3 of the Instrument of Delegation ('cl 11') stated: "A Function may not be exercised under delegation if it involves granting an Approval that is at variance with any requirement or standard fixed or specified by or under any law or any adopted policy of the Council." (Emphasis added.)
At all material times, Council had adopted a "Development Assessment & Decision-Making Policy" ('Policy'), which stated: "It is acknowledged that there needs to be a system of delegation to staff to assess and determine "minor/routine" applications for approvals while Council retains an assessment and determination role for "significant" applications. The following applications will be referred to Council for determination: 1. Any application which is subject to a reasonable and unresolved objection resulting from the neighbour notification/exhibition process." (Emphasis added.)
Council's Community Participation Plan dated 5 November 2019 ('Community Participation Plan') sets out the mandatory requirements for community participation in relation to the assessment of development applications. The Community Participation Plan aims to "provide the community with early opportunities to participate in strategic planning", including by "ensuring the community has reasonable time to provide input" and prescribed in this regard, in Appendix 1, that the minimum timeframe for the lodgement of submissions in relation to development applications is 14 days, subject to exceptions. However, it contemplates under the heading "Guide to making submissions", that: "If you cannot provide a submission by the closing date of the public exhibition period, contact Council to request an extension. Extensions are considered on a case by case basis and are decided on a discretionary basis. If no extension is granted, Council may also decide to consider or disregard the submission on a discretionary basis."
On 25 November 2020, Mr Hedges was appointed by Council's General Manager (acting under delegation from Council) as a "Senior Development Assessment Officer". On the same day, the General Manager signed an "Instrument of Sub-Delegation" to Mr Hedges which granted him pursuant to s 378(2) of the LG Act "the functions identified in Schedule 1, subject to any condition or limitation identified in Schedule 1" ('Instrument of Sub-Delegation'), including the following functions in relation to development applications: "Environmental Planning and Assessment Act 1979 Function Code Function Condition/Limitation (if any) Evaluation of DA - Authority to carry out all function of the council as consent authority associated with the administration and evaluation of an application for development consent. EPA Act 004A … Pursuant To - Part 4 of the EP&A Act and Part 6 of the EP&A Regulation. Determination of DA - EPA Act 004B Authority to carry out the functions of the council as consent authority associated with the determination of an application for development consent and associated functions. Pursuant To - Part 4, specifically section 4.16 of the EP&A Act and Part 6 of the EP&A Regulation."

[9]

Summary of issues

In the above circumstances, the parties agreed that Mr Hedges was authorised, on behalf of Council, to determine development applications, subject to various conditions and limitations relevantly including those in cll 9.3 and 11 of Sch 3 of the Instrument of Delegation.
As will be considered in further detail, Filetron contends, first, that Mr Hedges did not have delegated authority to determine the development application and grant the Consent because there were "unresolved submissions by way of objection", and, in any event, that Mr Hedges failed to properly consider and determine the development application because the Consent did not include any conditions providing for the management of the cellar door premises, or concerning the cancellation of events, in the circumstance of the access road being inundated, or a "capacity" condition in the terms otherwise advanced in the Assessment Report. Innovate and Council respond that, as there were no "unresolved submissions" (either because the Objection was not lodged within the 14-day exhibition period specified in the Community Participation Plan or the period specified in cl 15 of Div 3 of Pt 1 to Sch 1 of the EP&A Act, such that it was not a "submission made in accordance with this Act or the regulations" within the meaning of s 4.15(1)(d) of the EP&A Act, or if it was, it had been resolved), Mr Hedges had power to determine the development application.
Filetron, in response, submits that Council had "expressly extend[ed] time" to allow for consideration of its Objection such that it could effectively be characterised as a "submission" for the purposes of the EP&A Act.
As to Filetron's further claims, Innovate (but not Council) contends that the Consent incorporated certain documents which contained appropriate restrictions on the capacity and operation of the approved development.
Although the parties prepared a detailed statement of issues, given the submissions received, the essential, somewhat interrelated issues, are: 1. In relation to the alleged absence of authority to determine the development application: 1. Whether the Objection was a "submission by way of objection" for the purposes of cl 9.3 of Sch 3 of the Instrument of Delegation and/or a submission for the purposes of s 4.15(1)(d) of the EP&A Act? 2. Whether the Objection was an "objection resulting from the neighbour notification/exhibition process" for the purpose of the Policy? 3. Whether the Objection was, in any event, capable of resolution by Mr Hedges in his assessment and/or determination of the development application? If so, whether it was resolved such that Mr Hedges had delegated authority to determine the development application? 1. In relation to the alleged failure to consider mandatory matters/constructive failure to determine the development application: 1. Whether, Mr Hedges, in his assessment of the development application, found that certain conditions for the management of the site were necessary to be imposed on any grant of development consent? 2. Whether, Mr Hedges, in his determination of the development application, failed to consider matters including - the Assessment Report, Filetron's Objection, the applicable development control plan, or the likely impacts of the approved development, including the potential for land use conflicts arising in relation to the rural land use and/or evacuation from the cellar door (or other) premises in the event of flooding over the means of access/egress? 3. Whether specific documents, being the Revised SEE, the Assessment Report, and/or the Wastewater Report, were incorporated into the Consent such that there was no failure of Mr Hedges to consider the relevant material nor a constructive failure to exercise the power to impose conditions? 1. Should the Court make a declaration that the Consent was invalid or make an order under s 25B of the Court Act?

[11]

Applicant's position

Filetron firstly submits (albeit pleaded as "Ground 2" in its amended summons) that Mr Hedges lacked delegated authority to determine the application in circumstances where its letter of objection to Council dated 30 July 2021 constituted an "unresolved submission by way of objection", as provided for in cl 9.3 of Sch 3 of the Instrument of Delegation.
This submission turns largely on the proper construction of the scope of Council's delegation to Mr Hedges, noted at [27] above, and in particular the meaning of the expression "submissions by way of objection", and of the word "unresolved".
In relation to the former, Filetron submits that Mr Hedges' delegated power is to be limited when a proposed development is "controversial in the sense of objections having been made". In circumstances where Council has not expressly incorporated in its Instrument of Delegation a requirement that submissions be received within a public exhibition period (including, for example, that established by the EP&A Act), Filetron contends that there is no basis for failing to consider, in the assessment of a development application, submissions that were received outside a stated exhibition period. This construction is further supported by the broad application of the Instrument of Delegation in respect of "all legislation handled by the Council" rather than merely with reference to the EP&A Act. In any event, Filetron submits that the imposition of a timeframe (as suggested by Innovate and Council) would require a delegate to assess whether any given objection was made within time and would thereby create uncertainty over the existence of the delegated power to determine a development application. On this basis, Filetron contends that the construction it advances should be preferred.
Filetron therefore submits that its Objection constituted a relevant submission by way of objection within the meaning of cl 9.3 of Sch 3 of the Instrument of Delegation and ought to have been considered as such in Mr Hedges' assessment of the development application.
Filetron further contends that its Objection, being a submission (by way of objection), remained "unresolved" as a result of there being no outcome that resulted in the Objection being "resolved", in particular because there were "no proposed or draft conditions [being] included within or with the Assessment Report". Filetron submits that a delegate must be objectively satisfied that an objection to a development approval has been resolved. In circumstances where the "objection [was] to the form of the development itself", and where there is no evidence of "Mr Hedges turning his mind to the correct question", the Objection could not be merely resolved by the grant of Consent. Further, Filetron maintains that resolution of a submission could not be effected during the determination of the development application as this would enable a delegate to recite themselves into power.
In further support of its submission regarding Mr Hedges' lack of delegated authority to determine the development application, Filetron relies on cl 11 of Sch 3 of the Instrument of Delegation, at [24] above, which proscribes the exercise of a delegated power to grant an approval that would be at variance with the requirements of any adopted policy of Council. Relevantly, Filetron points to the list, in the Policy, of "significant" applications that must be referred to Council (at [25] above], which includes "[a]ny application which is subject to a reasonable and unresolved objection resulting from the neighbour notification/exhibition process." On this further basis, Filetron submits that the existence of an (unresolved) objection results in an application no longer being "minor/routine", and thereby not capable of determination under delegation.
Filetron's other ground of review (pleaded as "Ground 1" in its amended summons) is that Council failed to consider mandatory matters prescribed under s 4.15(1) of the EP&A Act, and/or constructively failed to determine the development application in circumstances where Mr Hedges did not incorporate into the Consent certain conditions that he had expressly identified in the Assessment Report as necessary for the development application to be approved, including specific requirements for the management of the cellar door premises (for example, directing that bookings be cancelled at times of anticipated flood events affecting the access road or capping the maximum number of patrons per day (at [15]-[17] above)).
Noting that Council takes no active position (having entered a submitting appearance in relation to Ground 1 of the amended summons), Filetron rejects Innovate's contention (noted later in this judgment) that conditions for the management of the site the subject of the development application were effectively addressed in the Consent by the incorporation of material, being the Revised SEE, the Assessment Report, and the Wastewater Report.
Specifically, Filetron notes that neither the Revised SEE nor the Assessment Report were expressly or impliedly incorporated in the Consent. Filetron highlights that the only express reference to the Revised SEE in the Consent appears in the list of definitions and submits that a contextual analysis of the Consent shows no intention to incorporate impliedly that document. Further, while Filetron accepts that the Wastewater Report had been incorporated into the Consent under Condition 4 (at [18] above), it submits that it did not contain any restriction on the proposed use of the site amounting to "management" in the terms identified as necessary in the Assessment Report.
In circumstances where conditions for the management of the proposed development were expressly identified as relevant considerations for the determination of the development application, Filetron submits that Mr Hedges' failure to address and impose corresponding conditions in the Consent fell short of the evaluation exercise required by s 4.15(1)(a)(iii), (b), (d) and (e) of the EP&A Act or alternatively resulted in a constructive failure to determine the application under s 4.16 of the EP&A Act.
On the basis of its submissions, Filetron seeks a declaration that the Consent is invalid. Alternatively, if the Court finds in its favour on Ground 2 of its amended summons (absence of proper consideration/constructive failure to determine the development application), but against it in relation to Ground 1 (absence of delegated authority), Filetron submits that an order providing for conditional validity under s 25B of the Court Act and for the imposition of a new condition in the Consent (as suggested by Innovate) should include a requirement for the preparation of a "plan of management required to be observed in order to ensure compliance with any such condition": Tcpt, 22 November 2022, p 70(41-43).

[12]

Innovate's position

Innovate rejects both grounds of review advanced by Filetron. In relation to the alleged absence of power, Innovate submits, first, that Mr Hedges was empowered to determine the development application on the basis that Filetron's Objection was not a "submission" for the purposes of either cl 9.3 of Sch 3 of the Instrument of Delegation or of the Policy (of relevance by virtue of cl 11) insofar as it was not lodged during the exhibition period specified for the development application; and secondly, if this contention is not accepted by the Court, that any submission had, in any event, been "resolved" in the Assessment Report finalised by Mr Hedges.
Innovate submits that the expression "submission by way of objection" in the Instrument of Delegation ought to be construed in accordance with the process prescribed by the statute under which the relevant development application is made, being for present purposes the EP&A Act. In this regard, Innovate emphasises textual references in the Instrument of Delegation to the language of the EP&A Act, including the similar usage of the term "submissions" in s 4.15(1)(d), and of the expression "submissions … by way of objection" in s 4.64(1)(l) and (t) of the EP&A Act, and in cl 9.3 of Sch 3 of the Instrument of Delegation. Adoption by Council of similar phrasing indicates that the Instrument of Delegation was intended to interact with the process for assessment of development applications prescribed under the EP&A Act, and therefore that the expression "submission by way of objection" in cl 9.3 refers to a submission made in accordance with the process prescribed under the EP&A Act.
As such, Innovate contends that in order to be characterised as a "submission by way of objection" to the development application, to which the EP&A Act applied, an objection had to be made during the applicable public exhibition period as required by cl 15 of Sch 1 of the EP&A Act (and prescribed by the Community Participation Plan pursuant to cl 7 of Div 2 of Pt 1 to Sch 1 of the EP&A Act). Innovate submits that this construction is to be favoured to that advanced by Filetron insofar as the statutory exhibition period provides a clear and workable criterion for deciding whether a document sent to Council is a "submission by way of objection" and thereby promotes administrative efficiency.
Despite submitting that Filetron's Objection was not a "submission" for the purposes of the EP&A Act, Innovate contends that it had in fact been considered by Mr Hedges, at least as a matter of public interest that was relevant to the evaluation of the development application. However, it submits that receipt or consideration by a delegate of material in relation to a matter of public interest (pursuant to s 4.15(1)(e) of the EP&A Act), by contrast with "submissions" considered under s 4.15(1)(d), does not have any bearing upon the existence of a delegated power to determine a development application.
In the event that the Court does not accept its construction of the word "submissions" in the Instrument of Delegation, meaning one that must be received within the statutorily determined time (as noted above), Innovate submits that Filetron's Objection was in any event considered and "resolved" in the course of the assessment process.
Innovate contends that resolution of an objection, or lack thereof, occurs in the course of the assessment of a development application in one of three ways, being, first, a "recommendation made by the assessing officer that deals with the objection"; second, an explanation in the assessment report as to "why the objection does not provide a reasonable reason for refusal"; or third, a "change in the nature of the development application". As such, whether an objection has been resolved is, in Innovate's submission, an objective question subject to a requirement of reasonableness.
In circumstances where Mr Hedges specifically addressed in his Assessment Report each matter raised in Filetron's Objection; provided explanations for his conclusions that each matter had been satisfactorily solved; and addressed himself directly to the question of whether all of the matters had been resolved, Innovate submits that the Objection has been, on an objective view, resolved within the meaning of both the Instrument of Delegation and of the Policy.
In relation to Filetron's claim that cl 11 of Sch 3 of the Instrument of Delegation and the Policy both mandated referral of the development application to Council for determination, Innovate submits that, properly construed, cl 11 requires that the terms of a development consent granted by a delegate on behalf of Council comply with any adopted policy of Council, but does not impose any requirement in relation to the process by which a development consent is to be granted. In circumstances where Filetron's claim only concerns the manner in which the Consent was granted and where none of the terms of the Consent are alleged to be at variance with the Policy, Innovate submits that Filetron's discrete reliance on the Policy has no basis.
In relation to Filetron's second ground of review that there has been a failure to consider mandatory matters (listed under s 4.15(1) of the EP&A Act) or a constructive failure to determine the development application (in accordance with s 4.16 of the EP&A Act), Innovate submits that the Consent imposes controls in relation to the maximum number of patrons through the cellar door premises such that it cannot be said that Mr Hedges failed to consider mandatory matters or constructively failed to determine the development application.
Innovate submits that the conditions which Filetron claims are lacking in the Consent were effectively addressed by the express and necessary incorporation of extrinsic material in the Consent. Innovate emphasises, first, that the Revised SEE, provided on 16 August 2021, in response to matters raised in the Objection, proposed restrictions in relation to the daily operation of the cellar door premises (at [13] above), including capacity limits on the maximum number of patrons and submits that, in circumstances where the Consent was only granted for the carrying out of the development as described in the Revised SEE, references to the "development" or the "development application" in the Consent must necessarily be taken to include the Revised SEE.
Innovate further submits that Condition 4(b) of the Consent (at [18] above) expressly incorporates the Wastewater Report which it suggests imposes capacity limitations in relation to the maximum number of patrons through the cellar door premises component of the proposal by stating, in explaining the allowances used to calculate the land area requirement for the proposed soil-based wastewater disposal system, as follows: "4. Cellar door trading of 56 persons per day @ 28 litres/person (based on a typical daily allowance for the equivalent category of restaurants) - 4 days per week." in circumstances where the "allowance" reflects some of the limitations identified in the Revised SEE.
If the Court does not accept its submission that the Consent is effectively conditioned by the incorporation of the Revised SEE to only allow for a maximum of 56 patrons per day, Innovate relies on its statement of intention that it would limit the number of visitors through the cellar door premises to 56 persons per day in the Revised SEE (at [13] above) and submits that it was open to Council's delegate, in determining the application, to proceed on the basis of that statement of intention without imposing a specified and separate condition.

[13]

Council's position

Council confirms that because of its potential role as a future decision-maker in relation to the development application, and consistent with the principles outlined by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35, it only makes submissions in relation to Ground 2 of Filetron's amended summons (raising absence of delegated authority).
Council rejects Filetron's contention that Mr Hedges did not have the authority to determine the development application. In summary, Council, adopting a similar position to Innovate, submits, first, that Filetron's Objection (and its second letter of 8 September 2021) was not a submission for the purposes of the EP&A Act or of the Policy; and second, and alternatively, that Mr Hedges resolved the Objection for the purposes of the limitations in each of cl 9.3 of Sch 3 of the Instrument of Delegation and the Policy.
Council contends that the wording "submissions by way of objection" is to be construed in accordance with the statute under which an application is made and determined, and as the assessment and the determination of a development application are functions of Council under the EP&A Act (which is made clear by s 22 of the LG Act), in the absence of any contrary intention, in the context of a development application, "submissions" in cl 9.3 should be taken to have the same meaning as in the EP&A Act, namely a submission made during the public exhibition period. As Filetron's Objection was not submitted during the public exhibition period which ended on 23 July 2021, it was not a submission by way of objection under cl 9.3 of Sch 3 of the Instrument of Delegation.
Council further submits that the expression "reasonable and unresolved objection" in the Policy (at [25] above) is to be construed in the same way as "submissions" under the Instrument of Delegation, being confined to a submission made within a publicly established timeframe in accordance with cl 15 of Sch 1 of the EP&A Act. Again, in circumstances where Filetron's Objection was not made during the public exhibition period prescribed for the development application, it could not be characterised as an "objection resulting from the neighbour notification/exhibition process" for the purposes of the Policy.
In relation to Filetron's submission that it had been granted an extension of time to lodge its objection, Council contends that it had merely been granted an extension of time to make a submission which Council committed to exercise its discretion to consider as a matter in the public interest under s 4.15(1)(e) of the EP&A Act. In doing so, Council relies on Preston CJ of LEC's consideration in Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46 ('Woolcott Group v Rostry') of the requirements for extending a public exhibition period in relation to a designated development under then s 79 of the EP&A Act, and his Honour's finding at [70] that "[t]here can only be one submission period during which all persons may make a written submission with respect to the development applications." Council therefore submits that it did not have power to extend the submission period for the purpose of the public exhibition period differentially and cannot be taken to have done so, and rejects, on that basis, Filetron's claim that it was granted a discrete extension of time to lodge its submission.
Council therefore submits that the limitations arising from both the Instrument of Delegation and the Policy did not apply to constrain Mr Hedges' authority to determine the development application.
In the alternative, Council contends that Filetron's Objection had been validly resolved such that Mr Hedges was authorised to determine the development application under delegation.
Council rejects Filetron's construction of the term "unresolved" as having the characteristics of an objection that had not been withdrawn. Rather, Council submits that the existence of a limitation on a delegate's power in relation to "unresolved objections" indicates that there are objections capable of resolution. Again, reflective of Innovate's submissions, Council contends that resolution of an objection occurs during the assessment of a development application, and may be achieved in a number of ways, at the assessing officer's discretion, including by "refusing an application, imposition of a condition on a consent or finding that the evidence does not support a concern which has been articulated".
Council submits that both the Instrument of Delegation and the Policy require a wholly objective assessment of whether an objection has been resolved. By reference to the Assessment Report, Council submits that Mr Hedges had so resolved the concerns expressed in Filetron's alleged submission.
That construction is supported, in Council's submission, by ordinary principles of statutory interpretation as applicable to instruments of delegation, including that a construction which produces a "more convenient operation", is to be preferred so long as it conforms to the legislative intention. In this regard, Council contends that its construction is consistent with the broad grant of power contemplated by the Instrument of Delegation in that it promotes the efficiency of local government processes.

[15]

Were there any "submissions by way of objection"?

Although not without some reservation, I consider that the Objection, having not been lodged within the public exhibition period specified in the notification of the application (in accordance with cl 7 of Sch 1 of the EP&A Act), was not a "[submission] made in accordance with this Act or the regulations" within the meaning of s 4.15(1)(d) and cl 15 of Sch 1 of the EP&A Act. In making this finding, I accept the common submission of Innovate and Council that the expression "submission by way of objection" in the Instrument of Delegation is to be construed on a case-by-case basis in light of the legislation under which an application is made, and therefore, for present purposes, in accordance with the meaning given to those words under the EP&A Act.
Conscious that an executive document is to be construed consistently with the purpose it seeks to achieve and in light of the legislation pursuant to which it was made, I note that the Instrument of Delegation (by reference to which the Instrument of Sub-Delegation (at [27] above) is to be considered) grants the General Manager expansive powers, involving "[a]ll functions of the Council capable of being lawfully delegated under s 377 of the Act", which relevantly includes the assessment and the determination of development applications. The breadth of that delegation of power is reinforced by the otherwise narrow limitations listed in Sch 2 of the Instrument of Delegation, which largely relate to compliance by a delegate with any resolution, policy or budget adopted from time to time by Council. Read in context, the limitation provided in cl 9.3 of Sch 3 of the Instrument of Delegation is therefore to be construed narrowly in a way which preserves the broad grant of power contemplated by the Instrument of Delegation as a whole, and by Council's decision to exercise its power to delegate functions. Insofar as the Instrument of Sub-Delegation largely replicates, in its terms and breadth, the conditions and limitations provided for in the Instrument of Delegation, I find that cl 9.3 of Sch 3 is to be given a similarly narrow reading in its application to the sub-delegation.
Indeed, the Instrument of Delegation (the powers in which I find to be effectively sub-delegated to Mr Hedges) although infelicitously drafted, does comfortably relate to the manner in which similar words such as "submission" and "objection" are used in the EP&A Act. I note the similarity between the wording in the Instrument of Delegation and, for example, s 4.15(1)(d) of the EP&A Act, which requires a decision-maker to take account of "any submissions made in accordance with this Act or the regulations", and s 4.64(1)(l) and (t), which respectively provide that the regulations may address "the making of submissions, by way of objection or otherwise, with respect to proposed development and the consideration of submissions", and "the notification of applicants and persons making submissions (including by way of objection) of the determination of development applications…".
Further, and by analogy only, the EP&A Act provides that for a person to be an "objector" (for the purposes of appeal rights that are available to an objector in relation to a development application for designated development), they must have made a submission within time so as to comply with cl 15 of Sch 1 of the EP&A Act: Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66 at [66]-[67]. This finding suggests that, within the framework of the EP&A Act, an objection is one made within the applicable public exhibition period.
Given these matters, I consider the preferable construction to be that a "submission", and more relevantly "submission[s] by way of objection", for the purposes of cl 9.3 of Sch 3 of the Instrument of Delegation must be limited to the consideration of submissions received within the statutorily directed time period under the EP&A Act. Interpreting cl 9.3 of Sch 3 as being limited to submissions made within the public exhibition period provides an objective reference point by which a delegate can determine which objections he has to resolve to be able to determine a development application: see again by analogy, Woolcott Group v Rostry at [94]. This construction further promotes community participation in environmental planning while achieving the administrative efficiency sought by local government when delegating functions.
The alternate construction (as suggested by Filetron) that a "submission by way of objection" means any submission addressed to a decision-maker (whenever made, as long as it is made before the decision to grant development consent) would lead to the situation where any document which is received by a delegate (as decision-maker) and which opposes a proposed development, would be regarded as a "submission by way of objection". Consequently, any such submission (assuming it remained "unresolved") received, for example, after a public exhibition period which has been advertised under Sch1, Pt 1 of Div 3 of the EP&A Act (and/or a Community Participation Plan), and at any time before determination by a delegate, would deprive a delegate of the authority to determine the development application. Any interpretation to that effect would cause Council considerable administrative inconvenience. As such, conscious that instruments are drafted to achieve practical outcomes, I do not accept Filetron's construction of cl 9.3 of Sch 3 of the Instrument of Delegation.
Further, while there is some strength in Filetron's submission that because Mr Hedges considered the Objection, in the sense of taking it into account (as is clear from the Assessment Report), the Objection had been effectively "received", and on that basis the Objection was a "submission by way of objection" for the purpose of cl 9.3 of Sch 3, I find that this construction creates a difficulty in practice because it would enable a delegate to disregard an objection for it to not be received and thereby to not be considered a submission by way of objection. That construction also ignores the process of resolution which I consider is expressly contemplated by cl 9.3 of Sch 3 of the Instrument of Delegation.
As I have found above, the better view is that cl 9.3 of Sch 3 of the Instrument of Delegation appears to be intended to "interact" with the assessment process prescribed by the EP&A Act, as submitted by Innovate.
In any event, there is no doubt, as considered later in this judgment, that Mr Hedges did consider the Objection and it is also tolerably clear that he understood that it was not a "submission" in the relevant sense because the Consent specifically noted that: "The application was notified to surrounding owners and no submissions were received during the assessment period."
Consequently, I accept Innovate's submission that Mr Hedges took the Objection into account in an exercise of his discretion, in the public interest, rather than as a public submission that he was required to consider as part of the assessment process. As s 4.15(1)(e) of the EP&A Act makes plain that a consent authority is to consider relevant matters of public interest in its evaluation of a development application, I consider that a submission lodged in relation to a development application can be characterised as such as a matter of public interest. Be that as it may, insofar as the Instrument of Delegation does not condition Mr Hedges' power to determine a development application by requiring the resolution of any submission made in the public interest, this finding is not material to my consideration of any alleged absence of authority. Rather, it merely indicates that Filetron's Objection had to be taken into account in the exercise of the power to determine an application (when considering mandatory matters listed under s 4.15(1) of the EP&A Act).
To the extent that Mr Hedges' power to determine the application was further constrained by a requirement in cl 11 of Sch 3 of the Instrument of Delegation (at [24] above) to comply with any adopted policy of Council, a question also arises as to the proper construction of the expression "reasonable and unresolved objection resulting from the neighbour notification/exhibition process" in the Policy (at [25] above).
In this regard, and conscious of the principles stated at [72]-[74] above, I note, first, that the Policy states that its objective is "[t]o provide guidelines for the assessment and determination of Development Applications"; and second, that under the heading "Legislative Provisions", it lists two statutes, being the LG Act and the EP&A Act. In circumstances where development applications are a function of the EP&A Act, and where the Policy is expressly stated to be made by reference to that statute, similarly to my finding above, I consider that the expression "objection resulting from the neighbour notification/exhibition process" is to be construed to refer to any submission made within the applicable statutory exhibition period, consistent with cll 7 and 15 of Sch 1 of the EP&A Act, being for the present purpose, during the period between 9 July 2021 and 23 July 2021 (in accordance with the Community Participation Plan).
On this basis, and in light of my finding above that Filetron's Objection was not made within the public exhibition period, there was no objection for the purpose of the Policy that would involve "granting an Approval" at variance with the Policy, and therefore the limitation in cl 11 of Sch 3 of the Instrument of Delegation did not arise to constrain Mr Hedges' power to determine the application.
In relation to my findings above, I do not accept Filetron's submission that the minimum public exhibition period of 14 days, which commenced on 9 July 2021 and ended on 23 July 2021, had been expressly extended to 30 July 2021 on the basis of Council's email to Filetron of 21 July 2021, which stated: "I understand your concerns regarding the receipt of the neighbour notification letter via Australia Post and confirm an extension for the lodgement of a submission in relation to this DA can be made until Friday 30 July 2021."
While Council's email may have had the effect of extending the submission period for Filetron's benefit, this cannot be taken to amount to an extension of the applicable public exhibition period. In Woolcott Group v Rostry, Preston CJ of LEC considered the principles governing the extension of a public exhibition period in relation to a development application concerning a designated development pursuant to then s 79 of the EP&A Act. As noted above, his Honour concluded at [70], that "[t]here can only be one submission period during which all persons may make a written submission with respect to the development applications". Although his Honour was considering the relevant provision as it related specifically to designated developments, simply stated, an extension of time for the purpose of making submissions to a development application requires a concurrent extension of the period during which a development application and accompanying information are placed on public exhibition and made available for inspection. The advertisement of a public exhibition period has the same purpose in relation to any type of development application lodged under the EP&A Act, being to inform and promote community participation in planning matters in an administratively efficient manner. As such, I find Preston CJ of LEC's elicitation of the principle relating to the extension of a public exhibition period for designated development in Woolcott Group v Rostry to be equally applicable to non-designated or other developments.
Relevantly, the material accompanying Innovate's development application was removed from Council's website on 26 July 2021. On that basis, I find that, while Council may have impliedly extended the public exhibition period until 26 July 2021, no extension of the length advanced by Filetron had been granted.
In passing, I note that I have considered the Community Participation Plan relied upon by Filetron in its submissions regarding the alleged extension of the public exhibition period, and in particular the provision noted at [26] above. While I accept that the Community Participation Plan contemplates the possibility of extension of time for the lodgement of submissions beyond the final date of the applicable public exhibition period, upon plain reading of the provision, I do not consider that it provides any ground for extending the public exhibition period itself. In any event, executive instruments are presumed to be compliant with the legislation which they apply, and I therefore read the Community Participation Plan's references to a public exhibition period by reference to the process for extending a public exhibition period prescribed by the EP&A Act (and explained by Preston CJ of LEC in Woolcott Group v Rostry).

[16]

Was the Objection resolved?

The limitation conditioning Mr Hedges' power in cl 9.3 of Sch 3 of the Instrument of Delegation and in the Policy (by application of cl 11) is twofold. It is enlivened first, by the lodgement of a submission by way of objection which, second, remains "unresolved" at the end of the assessment process. If I am wrong in my finding above that Filetron's Objection was not a "submission by way of objection", a question arises as to whether it remained "unresolved" such that Mr Hedges did not have delegated authority to determine the application. Resolution of that question is, in turn, contingent upon construction of the term "unresolved" as it appears in the Instrument of Delegation and the Policy.
This question must be considered in the context of the various administrative practices and arrangements adopted by Council and, as submitted by Innovate, in light of the distinction enshrined in ss 4.15 and 4.16 of the EP&A Act between the assessment of a development application and the task of determining such an application (which is relevant in circumstances where Mr Hedges prepared both the Assessment Report and subsequently determined the application).
I note at the outset that, in circumstances where the existence of an "unresolved" submission limits Mr Hedges' power to determine a development application, the Instrument of Delegation necessarily suggests that resolution of any submission may be effected during the evaluation and assessment process, and not by determining an application.
Further, I accept the common submission of Innovate and Council that the very existence of the limitation in relation to "unresolved" submissions contemplates the possibility of a submission being resolved in the course of the assessment process and of an application being able to be determined under delegation on this basis. That being the case, I do not accept Filetron's submission that "once a submission is made for refusal of the application, that objection cannot be resolved in the grant of the approval". That construction has the effect of curtailing the broad delegation of power effected by the Instrument of Delegation on the basis of a criterion (submission for refusal) which is not identified in the Instrument of Delegation. Similarly, I do not accept that the single other alternative for resolution of a submission by a delegate is withdrawal of that submission for that would effectively deprive a delegate of the power to determine any application to which submissions were made and not withdrawn.
I find that resolution of a submission made "by way of objection", under cl 9.3 of Sch 3 of the Instrument of Delegation and the Policy (by application of cl 11), requires consideration of the relevant submission and, at the delegate's discretion, adoption of an appropriate course of action to address the submission, be that (by way of example only) by making a finding that an objection is not a cause of concern; by recommending that an application be refused on the basis of an objection; or by imposing a condition on a consent on account for an objection. I do not consider, however, that resolution of an objection for present purposes imposes a separate obligation upon the delegate to formulate conditions which would have the effect of satisfying the objection(s) lodged. This construction is supported by a plain reading of cl 9.3 of Sch 3 of the Instrument of Delegation and by the context in which the clause operates, being a broad delegation of power aiming to facilitate Council's processing of development applications.
Bearing in mind the distinction drawn by Council in the Policy between the assessment and the determination of "minor/routine" applications for approvals (at [25] above]), which can be delegated, and that of "significant" applications, which ought to remain within the purview of Council as consent authority, I find that there is some strength in Filetron's submission that an application which is the subject of an objection to "the whole of the development" may require referral to Council for determination. However, in practice this construction means that any broadly framed objection, regardless of its individual merits, would have to be automatically referred to Council for determination. Such an outcome is at odds with the purpose of a delegation, being to filter the applications for which Council's input is required.
Further, I find the express use of the term "unresolved" in cl 9.3 of Sch 3 of the Instrument of Delegation to be material. It is trite that the words used in an instrument must prima facie be given some meaning and effect, and that the Court is not at liberty to consider any of the words used as superfluous or insignificant: Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414 (Griffith CJ). The term "unresolved" is relevantly defined in the Macquarie Dictionary as: "1. (of questions, problems, etc.) not decided or solved. 2. (of persons) uncertain how to act, or in an opinion."
It is therefore apparent that the term "unresolved" qualifies an outcome. As such, I find that in light of the broad delegation of power contemplated by the Instrument of Sub-Delegation, "unresolved" implies a role for a delegate to attempt the resolution of an objection, subject to a requirement of reasonableness as is inherent in any administrative decision-making process. It is the failure to resolve a submission by way of objection which results in a submission being "unresolved" and requiring referral to Council for determination.
I adopt a similar reasoning in relation to the construction of the expression "reasonable and unresolved objection" in the Policy (which, as noted earlier in this judgment, applies as a limitation to Mr Hedges' power to determine an application by virtue of cl 11 of Sch 3 of the Instrument of Delegation). First, I consider that it is likely, in the absence of any contrary indication, that Council intended that the term "unresolved" be given the same meaning in a policy expressly stated to relate to "development assessment and council decision-making" and in a limitation concerning a delegation of the power to determine development applications. Further, in circumstances where it is clear that the Instrument of Delegation was drafted to interact with the Policy (this is made evident by cl 11), I find it desirable to construe the term "unresolved" harmoniously across both instruments: Project Blue Sky at [70]. In support of this construction, I note the conjunctive use of the adjective "reasonable", which suggests that an assessment of the reasonableness of an objection is, in any event, to be conducted by a delegate before referral to Council can even be considered.
I therefore find that the term "unresolved", as used in the Policy, is to be interpreted as referring to the status of an objection which has not been able to be solved by a delegate.
Having interpreted the meaning of "unresolved submission" for the purposes of both the Instrument of Delegation and the Policy, it is necessary to determine whether Mr Hedges had in fact resolved the Objection. In this regard, I note the following remarks made in relation to the Objection in the Assessment Report: "One submission was received from the neighbouring land owner at 152 Wollumbi Road, who's property is burdened by the right of access to the proposed development site. The submission raised a number of issue[s] with the proposed development under separate headings and [these] have been addressed as they have been raised in this submission."
Prima facie, the above quote indicates that Mr Hedges did in fact turn his mind to Filetron's Objection. The Assessment Report subsequently attends to each of the following matters which were raised in the Objection: landowner consent; proposed operation; description of proposed development; biosecurity risk; bushfire assessment; flooding; water supply; wastewater traffic impacts; construction impacts; and RU2 Zone objectives. Mr Hedges made a finding in relation to each of the matters raised in the Objection, including recommending the imposition of conditions of consent in relation to the levels of use of olives and grapes; the widening of the access road outside of areas identified on the biodiversity values map; the restriction of the commercial operations to the use of tank water collected from the long building; and the limitation on the operation of the cellar door premises to four days per week. These considerations supported Mr Hedges' finding that "all submissions be reasonably discharged". While Filetron claims that this formulation asked the wrong question, I note that the Assessment Report completed by Mr Hedges appears to be a substantively proforma document and that allowance must be given to the fact that it was not drafted with legal expertise and that it merely aimed to achieve practical results.
In these circumstances, I find it plain that, on an objective view, Mr Hedges resolved the issues raised by Filetron's Objection such that there were no remaining unresolved submissions at the end of the assessment process.

[17]

Did Mr Hedges fail to consider mandatory matters or constructively fail to determine the development application?

With regard to its second ground of review, Filetron alleges that there has been a failure to take into account mandatory matters for consideration in s 4.15(1) of the EP&A Act, and/or a constructive failure to determine the development application (per s 4.16 of the EP&A Act) in circumstances where Mr Hedges, when he determined the application, did not incorporate into the Consent conditions which he had expressly identified in the Assessment Report as necessary. As noted above, Innovate responds that the relevant concerns in the Objection were effectively addressed in the grant of the Consent by way of the express and/or necessary incorporation of the revised SEE; and further, by the express incorporation of the Wastewater Report via Condition 4(b) of the Consent. It is therefore appropriate to briefly summarise the legal principles relevant to the construction of development consents and the incorporation of extraneous documents.
Development consents must be read in a common-sense way and construed, not as documents drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 ('Westfield') at [36] per Hodgson JA (Tobias and Basten JJA, agreeing); Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 ('Bunderra') at [158] (Payne JA); Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359 ('Snowy Monaro Regional Council v Tropic Asphalts') at [35] (Bathurst CJ). Nevertheless, principles of statutory construction can be of assistance in construing a development consent, in particular the general principle that an instrument must be construed to produce a harmonious result and to "give meaning to every word" of its provisions: Project Blue Sky at [70]-[71]; Snowy Monaro Regional Council v Tropical Asphalts at [35] (Bathurst CJ).
Further, development consents, being public documents operating in rem for the benefit of successors in title, are generally not to be construed by reference to extrinsic evidence other than to identify a thing or place referred in such consent: Westfield at [41] (Hodgson JA, Tobias and Basten JJA agreeing), citing House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23] (Mason P, Stein and Giles JJA agreeing). This narrow allowance for references to extrinsic material owes to the fact that it is fundamental that consent-holders be able to determine with precision what is permitted by a development consent.
It is however well established that reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 ('Allandale') at [24]-[25] (MacFarlan JA); Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83; (2017) 223 LGERA 43 ('Cheetham v Goulburn Motorcycle Club') at [61] (Basten JA).
While mere approval of an application does not incorporate all of the material accompanying the application, in Allandale Meagher JA summarised the circumstances in which a document may be taken to be expressly incorporated in a development consent: "[45] A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it: Szabo at 434; Sydney Serviced Apartments Pty Ltd at 408. However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself: Sydney Serviced Apartments Pty Ltd at 408; Alcoa at [39], [40]."
His Honour further noted that what is sufficient to constitute incorporation by necessary implication is less clear. Significantly, the cases to which his Honour referred to at [46]-[48] in relation to incorporation by necessary implication were ones in which reference had to be made to extraneous documents to make the consent meaningful, but where the documents incorporated did not fundamentally alter the meaning of the consent: for example, Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340 at [88] (Tobias AJA); Bunderra at [38]-[39].
In Cheetham v Goulburn Motorcycle Club, Basten JA drew at [62]-[63], a distinction between the incorporation of extraneous material for the purpose of construing a consent and incorporation to assist the identification of the scope of the proposal for which consent was sought. By reference to the reasons of Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [107]-[108], his Honour held that it was possible, in the latter circumstance, to identify the nature of the activity to be undertaken by reference to relevant contemporaneous evidence including for example a statement of environmental effects lodged in support of the development application.
In applying these principles, I remain conscious of the dangers of travelling beyond the development consent itself and of the frequently cited caution given by Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 323-324: "…the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent."
Bearing in mind the above principles, and for the reasons that follow (largely accepting Filetron's submissions), I find that, as neither the Revised SEE nor the Assessment Report had been incorporated into the Consent, there has been both a failure to consider the matters raised in those documents and a constructive failure to determine the application.

[18]

Failure to consider mandatory matters under s 4.15(1) of the EP&A Act

As I found above (at [102]-[104]), the Assessment Report effectively addressed the various matters raised by Filetron's Objection. In particular, Filetron's primary concerns in relation to the potential for land-use conflict and the potential for the access to and from the site to be impeded by floodwaters were considered (and assessed) by Mr Hedges in the Assessment Report. These concerns were addressed and recorded in terms (noted at [16]-[17] above) which concluded that the acceptance of the proposed development (and the recommendation for approval) was dependent upon the imposition of conditions (for example, that attendances would be "capped by condition of consent"). The Assessment Report did not include any proposed conditions, such that it must be assumed that conditions would be later drafted at the time of the formal act of determination. However, the Consent did not provide those proposed conditions.
In particular, there were no conditions imposing requirements for first, the management of the cellar door premises including control over patrons; second, the cancellation of bookings in view of anticipated flood events; and third, the capping of maximum numbers of patrons through the cellar door on any one day. Again, these are matters which had been expressly identified by Mr Hedges as informing the exercise of his evaluation under s 4.15 of the EP&A Act and the basis upon which he was able to recommend approval in the Assessment Report, and subsequently determine the development application under s 4.16 by grant of consent on 15 September 2021. As such, I accept Filetron's submission, and find that the absence of such conditions in Mr Hedges' exercise of the indivisible function of determining the application subject to conditions, reveals a breach of s 4.15 and/or s 4.16 of the EP&A Act.
Conscious of the principles noted at [106]-[112] above, I do not accept Innovate's submission that conditions in the terms contemplated in the Assessment Report were effectively imposed by the incorporation into the Consent of various documents including the Assessment Report, the Revised SEE, or the Wastewater Report.
First, I do not consider that the Revised SEE has been expressly or impliedly incorporated in circumstances where the document was not attached to the Consent or otherwise referred to in the Consent (other than being defined in the "definitions"). Consistently with the principles summarised above, I find that this mere reference to the Revised SEE is insufficient to constitute express incorporation into the Consent, and I emphasise that an approval must generally be limited to its own terms.
In addition, I do not consider there is a need to imply the statements of intention provided in the Revised SEE into the terms of the Consent, and/or the conditions attached thereto. Incorporation by implication may well be appropriate in circumstances where an approval would otherwise be deprived of meaning. However, in circumstances where the Consent describes, in clear terms, the development for which it grants approval, and provides in Schedule 1 a list of conditions to which the approved development is to be subject, I consider that there is no ambiguity in the Consent which requires clarification by incorporation of the Revised SEE.
Further, while I accept that a statement of environmental effects was a prescribed document for the development application process, I do not consider that it must, on this basis, be understood as being incorporated in the Consent simply by various references to the word "development". This is particularly so in circumstances where the Consent (in particular, Condition 1) records what is in fact the "Approved Development and Use" (noted at [18] above), and imposes conditions at variance with those contemplated in the Revised SEE, including for example a limit, in Condition 64 of Section H of Schedule 1, on the "Maximum Capacity" of the cellar door premises to 14 persons at any one time rather than to 56 patrons per day.
Secondly, I find similarly, that in the absence of any references to the Assessment Report in the Consent, that document had not been expressly incorporated, and I accept Filetron's submission that there is no relevant ambiguity that incorporates it by necessity.
Thirdly, while I accept that the Wastewater Report has been expressly incorporated under Condition (4)(b) (and noting that Condition 4, at [19] above, provides that the development must "only be carried out" in accordance with, inter alia, the Wastewater Report), I find the reference in that report to "[c]ellar door trading of 56 persons per day…" (noted at [60] above) to be no more than a basis or integer for the calculation (or as submitted by Filetron, one of the "modelling assumptions") used for the purpose of determining the land area requirements for a soil-based wastewater disposal system. I consider that these "assumptions" are not expressions of any undertaking for the management of the site, or methods for the control of visitors in circumstances where the Wastewater Report only relates to the provision of a wastewater management system which itself has been designed on the basis of anticipated (or advised) attendances and usages. For example, apart from the clause referred to (at [60] above), the report dealt with aspects of the human usage of the development, including the number of bedrooms and the like in the proposed development. This material, whilst indicative of proposed usage does not, in my view provide some form of control. As such, I consider that the Wastewater Report cannot support Innovate's claim that it contained or described a restriction on the proposed use of the site.
Although it is apparent that the reference to "allowance" in the Wastewater Report reflects the same limitations identified in the Revised SEE, I do not consider that individually or together either the Revised SEE or the wording in the Wastewater Report can be considered an appropriate form of management (or condition) in relation to the proposal.
As considered earlier, Mr Hedges, in the Assessment Report, considered various discrete concerns raised in the Objection which he concluded could be addressed by way of the imposition of conditions relating to the management and conduct of the proposed development. In determining a development application, a consent authority is required under s 4.15(1) of the EP&A Act to consider, inter alia, the following matters: (1) Matters for consideration - general … (a) the provisions of - … (iii) any development control plan … … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
I consider that Mr Hedges' failure to impose conditions which he had identified as necessary to the grant of the Consent is indicative of a failure to consider, in determining the application, first, the applicable development control plan (in particular cl 5.9); second, the Assessment Report as relevant to the suitability of the site for development under s 4.15(1)(c); and third, Filetron's Objection, which was a relevant matter of public interest to the extent that Council gave an undertaking that it would consider it under s 4.15(1)(e) of the EP&A Act.
Clause 5.9 of the Development Control Plan requires consideration of any conflict between the development application and the rural use of the land. Mr Hedges discretely considered this matter in the Assessment Report, and relevantly found that any such conflict could be managed by the imposition of a condition in the Consent limiting the daily capacity of the cellar door premises to "4 x groups of 14 persons per day". In circumstances where this control has not been imposed in the Consent, I find that it reveals a failure by Mr Hedges to consider the Development Control Plan in his determination of the application.
I further note Innovate's submission that, in circumstances where a condition had in fact been imposed in the Consent in relation to the maximum capacity of patrons through the cellar door premises, Mr Hedges did not fail to consider this matter but merely changed his view on the appropriate condition to be imposed. While situations where a consent authority lawfully decides to disregard an assessing officer's recommendation are conceivable (see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40; [1986] HCA 40), this would largely turn on the wording and importance of the relevant recommendation in relation to the grant of consent. In the present case, I find that Mr Hedges had expressed this condition to be material to any grant of consent, and therefore that it could not be overlooked in the determination of the application.
On this basis, I find that Mr Hedges' conduct in determining the application involved a failure to consider mandatory matters and thereby breached s 4.15(1) of the EP&A Act.

[19]

Constructive failure to determine the development application under s 4.16 of the EP&A Act

As a result of my findings above in relation to Mr Hedges' failure to consider mandatory matters under s 4.15 of the EP&A Act, I find that there has been a constructive failure by Mr Hedges to exercise his delegated power to determine the development application under s 4.16 of the EP&A Act.
Section 4.16(1)(a) of the EP&A Act provides that, in determining a development application, a consent authority may grant consent unconditionally or subject to conditions. The imposition of conditions in a consent is governed by s 4.17, which relevantly provides: (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent…
At least implicitly, a determination to grant consent to a development application which was found to raise issues on matters relevant under s 4.15 of the EP&A Act pre-emptively requires consideration of the imposition of appropriate conditions to remedy such issues.
As noted above, the Assessment Report appreciated, inter alia, the potential conflict of the proposed development with the rural use of the land as well as the potential impact of inundation events in terms which concluded that specific conditions ought to be imposed in the Consent to restrict capacity at and access to the cellar door premises. Significantly, the Assessment Report did not consider the appropriateness of alternate conditions. It should be inferred from the conclusions of the Assessment Report that, Mr Hedges, in his role in assessing the application, had accepted that those conditions were material to granting approval for the application. Accordingly, those conditions should have been contained within the Consent in order to properly give effect to Mr Hedges' intention, as described in the Assessment Report.
Without the conditions proposed in the Assessment Report, the operation of the cellar door premises has the capacity to grow substantially more than anticipated if the condition was imposed. As such, it left open the possibility for the development to be significantly different to the one to which Mr Hedges granted consent: see by analogy, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [100]-[101] (Basten JA).
In circumstances where the intended constraints on the development were dealt with other than by the imposition of corresponding conditions (in accordance with the mechanisms provided under s 4.17 of the EP&A Act), I find that there has been a constructive failure on the part of Mr Hedges to exercise its statutory power to determine the application subject to conditions under s 4.16 of the EP&A Act.
As a result of my findings concerning Mr Hedges' conduct in determining the development application and breaches of the EP&A Act, and subject to consideration of s 25B of the Court Act, I find that it would be appropriate to make a declaration of invalidity of the Consent.

[20]

Discretion under s 25B of the Court Act

In the event of this Court finding that Mr Hedges had delegated authority to determine the application but failed to consider mandatory matters under s 4.15 of the EP&A Act and thereby constructively failed to determine the application, Filetron and Innovate submit that an order under s 25B of the Court Act, suspending the operation of the Consent and specifying the terms of compliance with which will validate the Consent, would be appropriate. Council made no submission, nor took any position in this regard.
Section 25B of the Court Act confers upon the Court the power to suspend the operation of a consent in whole or in part, or alternatively to make orders to validate a development consent that would otherwise be invalid. The provision is in the following terms: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order - (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation) - (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.
Substantial compliance with an order made under s 25B of the Court Act entitles a consent authority to subsequently apply for an order under s 25C declaring that a consent is valid, or alternatively regranting the development consent: 25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order - (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 4.61 of the Environmental Planning and Assessment Act 1979, the Court may make an order - (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension.
The principles applicable to the operation of s 25B of the Court Act were considered by Biscoe J in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [30]-[46] in a manner which I adopt without recitation, and more recently considered by Pepper J in Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 at [116]-[122].
Given my findings above, invalidity for present purposes arises from the manner in which Council's delegate has determined the Consent. As submitted by Innovate, the failure could be considered to be a failure to "translate" matters that were properly considered at the assessment stage into conditions. While there has been judicial discussion as to whether the power in s 25B of the Court Act extends to permitting an order for conditional validity of a development consent where there has been a complete absence of power to grant it and/or whether s 25B is concerned primarily with the rectification of technical breaches, I consider that the exercise of the Court's discretion under s 25B is not confined to invalidity arising from a failure to carry out matters preliminary to the granting of a development consent: Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [21] (Hodgson JA); [31]-[38] (Tobias JA).
While I accept that the appropriateness of an order under s 25B of the Court Act is contingent upon the nature of the invalidity under consideration, I note that a delegate's failure to impose a condition meant to give effect to Council's intention has been considered an appropriate case of the application of s 25B: see by analogy, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [106] (Basten JA). I nonetheless take notice of a general judicial reluctance to make orders under s 25B to remedy a failure to consider mandatory matters under the EP&A Act insofar as consideration of any one particular matter may necessitate a reopening of the whole determination process and require a weighing and balancing of that matter against all other relevant matters, and may lead to refusal of the application: Aldous v Great Taree City Council (2009) 167 LGERA 13 at [100] (Biscoe J). Be that as it may, I find that in the particular circumstances of this case, the conditions which would be required to be imposed by an order under s 25B have effectively already been considered and defined in the Assessment Report, and their addition to the Consent is unlikely to raise difficulties. Although Innovate provided draft orders reflecting s 25B, as noted at [49], Filetron submitted that, if the Court determined that orders pursuant to s 25B were appropriate, an additional requirement for a plan of management to ensure compliance with conditions limiting the number of persons attending the cellar door premises would be desirable.
I find that this is an appropriate case for the application of s 25B of the Court Act, and I am prepared to make an order under s 25B(1) provisionally suspending the operation of the Consent, and specifying the terms the compliance with which will provide ground for an application under s 25C. Given my findings above and having closely considered the Assessment Report, I also consider that it is appropriate that there be a plan of management, as suggested by Filetron, to ensure compliance with the anticipated conditions.

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

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