Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council - [2024] NSWCA 41 - NSWCA 2023 case summary — Zoe

NSWNSWCA

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

[2024] NSWCA 41

Court of Appeal (NSW)|2023-12-06|Before: Ward P, Gleeson JA, White JA, Spigelman CJ

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2023-12-06

Before

Ward P, Gleeson JA, White JA, Spigelman CJ

Catchwords

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

Source

Original judgment source is linked above.

Catchwords

Roads and Maritime Services v Zraika (2016) 94 NSWLR 159[2016] NSWCA 51 Belmorgan Property Development v GPT RE [2007] NSWCA 171153 LGERA 450 Buck v Bavone (1976) 135 CLR 110[1976] HCA 24 Comcare v Lilley (2013) 216 FCR 214117 LGERA 334 Minister for Planning v Walker [2008] NSWCA 224161 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 5020 ALR 183 R v Australian Broadcasting TribunalEx parte Hardiman (1980) 144 CLR 13

Judgment (28 paragraphs)

[1]

Background

By way of additional background, I note as follows.
On 21 May 2013, effective from 5 July 2013, the Council adopted a "Development Assessment & Decision Making Policy" (Policy). The Policy objective was described as being "[t]o provide guidelines for the assessment and determination of Development Applications", and the Policy identified the Local Government Act 1993 (NSW) (LG Act) and the EP&A Act as the legislation relevant to the Policy. The Policy drew a distinction between "minor/routine applications" and "significant" applications, acknowledging 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"". Of the applications required to be referred to the Council for determination, the Policy specifically included "1. Any application which is subject to a reasonable and unresolved objection resulting from the neighbour notification/exhibition process".

[2]

First Judgment

As noted above, the primary judge found (First Judgment at [3]) that the Council's delegate had authority to determine the DA. At [34], his Honour noted that this issue raised the following questions: whether the Objection (defined as Filetron's 30 July 2021 letter) 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(d) of the EP&A Act; whether it was an "objection resulting from the neighbour notification/exhibition process" for the purpose of the Policy; and whether it was in any event capable of resolution by the delegate in his assessment and/or determination of the DA (and, if it was, whether it was resolved such that Mr Hedges had delegated authority to determine the development application).
The primary judge accepted that the general principles relating to the interpretation of primary legislation are equally applicable to construing instruments of delegation, such that the Instrument of Delegation must be read in context, including by reference to the legislation pursuant to which it was made and with which it must be consistent and, subject to any specific indication to the contrary, that the delegation should be read in a way that promotes its purpose ([72]-[74]). There is no dispute between the parties as to the general principles being applicable as accepted by the primary judge.
The primary judge considered (albeit not without some stated reservation) that the Objection Letter was not a submission made in accordance with the EP&A Act or the regulations within the meaning of s 4.15(d) and cl 15 of Sch 1 to the EP&A Act, it not having been lodged within the specified public exhibition period (see at [75]).
His Honour said (at [76]) that, read in context, the limitation provided in cl 9.3 of Sch 3 of the Instrument of Delegation was 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 the Council's decision to exercise its power to delegate functions; and that the Instrument of Sub-Delegation must also be construed in that manner, insofar as its terms and breadth largely replicate that of the Instrument of Delegation.
His Honour noted at [77] the similarity between the wording in the Instrument of Delegation ("submissions by way of objection") and, respectively, various provisions in the EP&A Act (s 4.15(1)(d), referring to "any submissions made in accordance with this Act or the regulations"; and ss 4.64(1)(l) and (t), referring to the making of submissions "by way of objection or otherwise" and "making submissions (including by way of objection)"). At [78], expressly by way of analogy only, his Honour referred to the provision in the EP&A Act that, for a person to be an "objector" for the purposes of appeal rights, the person must have made a submission within time (which his Honour considered suggested that, within the framework of the EP&A Act, an objection is one made within the applicable public exhibition period).
The primary judge considered, by reference to the above matters, that the preferable construction was that a submission 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 ([79]). His Honour said that this construction provided an objective reference point by which a delegate could determine which objections had to be resolved in order to determine a development application and promoted community participation in environmental planning while achieving the administrative efficiency sought by local government when delegating functions ([79]).
His Honour said that Filetron's construction (i.e., that a submission by way of objection meant any submission addressed to a decision-maker whenever made as long as it is made before the decision to grant or refuse development consent) would cause the Council considerable administrative inconvenience, noting that instruments are drafted to achieve practical outcomes; and rejected Filetron's construction ([80]).
While his Honour considered there to be some strength in Filetron's submission that, because the delegate had considered the Objection Letter (in the sense of taking it into account in the Assessment Report), the Objection Letter had been effectively received and was thus a submission by way of objection for the purposes of cl 9.3, his Honour said that this construction would cause a difficulty in practice (as it would enable a delegate to disregard an objection for it not to be received and hence not a submission by way of objection) and that it also ignored the process of resolution expressly contemplated by cl 9.3 ([81]).
At [82], his Honour said that the better view was that cl 9.3 appeared to be intended to "interact" with the assessment process prescribed by the EP&A Act (as Innovate had submitted).
The primary judge considered that there was no doubt that the delegate did consider the Objection Letter and that it was tolerably clear that the delegate understood that this was not a "submission" in the relevant sense (since he had stated that no submissions were received during the "assessment period") ([83]). His Honour went on to accept Innovate's submission that the delegate took the Objection Letter into account in an exercise of discretion, in the public interest, rather than as a public submission that he was required to consider as part of the assessment process ([84]). However, his Honour was careful to make clear that this finding was not material to his consideration of any alleged absence of authority; saying that, rather, it merely indicated 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). Pausing here, in submissions on the appeal Filetron says that this finding (that the Objection Letter had to be taken into account) is problematic in light of his Honour's earlier acceptance (in the same paragraph of the reasons) that it was taken into account in an exercise of discretion in the public interest.
His Honour then addressed the question as to the proper construction of the expression "reasonable and unresolved question resulting from the neighbour notification/exhibition process" in the Policy (in the context of the delegate's power to determine the application being further constrained by the requirement in cl 11 of Sch 3 of the Instrument of Delegation to comply with any adopted policy of the Council) (from [85]). For similar reasons to his earlier finding, the primary judge considered that the expression "objection resulting from the neighbour notification/exhibition process" was to be construed to refer to any submission made within the applicable statutory exhibition period ([86]); and hence the limitation in cl 11 did not arise to constrain the delegate's power to determine the DA ([87]).
In the event that he were wrong in finding that Filetron's Objection was not a "submission by way of objection", the primary judge went on to consider whether Filetron's Objection remained "unresolved" such that in those circumstances the delegate did not have delegated authority to determine the DA ([92]).
As to the meaning of "unresolved", his Honour said that, in circumstances where the existence of an "unresolved" submission limited the delegate's power to determine a development application, the Instrument of Delegation necessarily suggested that resolution of any submission may be effected during the evaluation and assessment process and not by determining an application ([94]). (That appears here to be accepted by Filetron.)
The primary judge accepted the respondents' common submission that the very existence of the limitation in relation to "unresolved" submissions contemplated the possibility of a submission being resolved in the course of the assessment process and of an application being able to be determined under the delegation on that basis ([95]); and did not accept Filetron's submission that, once a submission is made for the refusal of the application, that objection cannot be resolved in the grant of approval (which his Honour considered would have the effect of curtailing the broad delegation of power effected by the Instrument of Delegation). Similarly, his Honour did not accept that the single other alternative for resolution of a submission by a delegate was withdrawal of that submission, on the basis that this would effectively deprive a delegate of the power to determine any application to which submissions were made and not withdrawn ([95]).
The primary judge found that resolution of a submission made by way of objection under cl 9.3 and the Policy required consideration of the relevant submission and, at the delegate's discretion, adoption of an appropriate course of action to address the submission ([96]), identifying (by way of example only) the following possible courses of action: making a finding that an objection was not a cause for concern; recommending that an application be refused on the basis of an objection; or imposing a condition on consent on account of an objection. Innovate accepts that those examples contemplate a resolution in the course of the assessment process itself.
While his Honour considered there was some strength to Filetron's submission that an application the subject of an objection to the whole of the development might require referral to the Council for determination, his Honour said that in practice this construction would mean that any broadly framed objection, regardless of its individual merits, would have to be referred automatically to the Council for determination and this would be at odds with the purpose of a delegation (that being to filter the applications for which the Council's input was required) ([97]).
At [99] (a finding no longer challenged by Filetron) his Honour found that "unresolved" implied 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. His Honour said that it is the failure to resolve a submission by way of objection which results in a submission being "unresolved" and requiring referral to the Council for determination.
At [100], his Honour adopted similar reasoning in the construction of the expression "reasonable and unresolved objection" in the Policy. At [101], his Honour found that the term "unresolved" as used in the Policy was to be interpreted as referring to the status of an objection which has not been able to be solved by a delegate.
His Honour concluded, by reference to the Assessment Report, that on an objective view the delegate had resolved the issues raised by Filetron's Objection, such that there were no remaining unresolved submissions at the end of the assessment process (see [102]-[104]).
His Honour then turned to consider the complaint as to the failure by the delegate to consider statutorily mandated matters (there is no complaint on appeal as to his Honour's finding on this issue) (see from [105]). In the course of so doing, his Honour identified (at [124]) the failure to impose conditions as necessary to the grant of the Consent as being indicative of a failure to consider, among other things, Filetron's Objection, describing this as "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". Filetron relies on this as a specific finding that the Objection Letter fell within s 4.15(1)(e) and so was required to be taken into account. The respondents do not accept this.
As noted earlier, his Honour found that there was a failure to consider mandatory matters and thereby a breach of s 4.15(1) of the EP&A Act ([127]); that it would be appropriate to make a declaration of invalidity of the Consent ([134]); but that this was an appropriate case for the application of s 25B of the LEC Act ([141]). In the course of so doing, his Honour noted Filetron's submission that, if orders under s 25B were determined to be 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 appropriate ([140]).
Section 4.61 of the EP&A Act relevantly provides that: (1) This section applies to a development consent granted, or purporting to be granted, by a consent authority, to which an order of suspension applies under section 25B of the Land and Environment Court Act 1979. (2) The consent authority may revoke a development consent to which this section applies, whether or not the terms imposed by the Court under section 25B of the Land and Environment Court Act 1979 have been complied with. (3) However, if the terms imposed by the Court have been substantially complied with, the consent authority may revoke the development consent to which this section applies and grant a new development consent with such alterations to the revoked consent as the consent authority thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms. Such a grant of a development consent is referred to as a regrant of the consent.
The orders made by the primary judge under s 25B of the LEC Act (set out at [144] of the First Judgment) were: 1. The whole of the development consent DA0288/2021 dated 15 September 2021 issued by Council ('Consent') is suspended until further order under s 25C of the Land and Environment Court Act 1979 (NSW). 2. Orders (3)-(4) specify the terms of regrant of the consent with alterations, compliance with which will validate the Consent. 3. The alteration to the Consent to be considered by Goulburn Mulwaree Council is the imposition of a condition or conditions requiring a limitation on the number of patrons permitted to attend the cellar door premises in accordance with page 25 of the Revised Statement of Environmental Effects prepared by Perception Planning Pty Ltd dated 16 August 2021 and the preparation of a plan of management required to be observed in order to ensure compliance with any such condition. Inclusion of such terms in any regrant of the Consent will validate the Consent. 4. Within 21 days, Goulburn Mulwaree Council will carry out the consideration in Order (3) and issue: (a) A development consent amended only by a condition or conditions imposed in relation to the matter identified in Order (3); or (b) A statement of reasons why no such condition is required.

[3]

Second Judgment

As noted above, on 12 May 2023, the Council, through another delegate, issued a notice of determination regranting the Consent, subject to various amended conditions (the Regranted Consent).
Condition 51 of the Consent was amended to provide 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 with a maximum of 4 groups of 14 persons per day, totalling 56 persons per day permitted to attend the cellar door.
Condition 51A was inserted to provide for the preparation and provision of a "Plan of Management" prior to the provision of any Occupation Certificate. The condition stated that the Plan of Management must include specified matters including "the hours of operation", "guest numbers" and "guest management". The condition required that the Principal Certifier must be satisfied that the plan of management addresses these matters and "is consistent with the other conditions in this consent".
In the Second Judgment, the primary judge considered the written submissions of the parties as to whether there had been substantial compliance with the terms specified under s 25B of the LEC Act and the Consent had been regranted with the alterations specified in the First Judgment.
At [57], his Honour said that the orders made under s 25B of the LEC Act were aimed at remedying the delegate's oversight, by requiring consideration of the imposition of those considerations that had been identified as necessary. At [59], his Honour said that Order (3) of the First Judgment required consideration by the Council of the imposition of a condition limiting the number of patrons permitted to attend the cellar door premises, and the preparation of a plan of management prepared to ensure compliance with any such condition. His Honour did not accept that Order (3) purported to direct the content by which this outcome was achieved. (I interpose to add that one would assume that his Honour would be the most reliable source as to his intention in making the order - see, albeit in a different context, the observations in Newmont Yandel per Spigelman CJ and Handley AJA at (2017) NSWLR 411; [2007] NSWCA 195, at [182], [186], [195], [196]).
Having considered conditions 51 and 51A of the Regranted Consent, his Honour was satisfied that there had been compliance with Order (3) (see [60]-[65]).
The primary judge relevantly made the following orders pursuant to s 25C of the LEC Act (see Second Judgment at [69]): 1. Pursuant to section 25C(2) of the Land and Environment Court Act 1979 (NSW), the Court: (a) Declares that the terms in Order (3) of the orders made by the Court on 27 April 2023 have been substantially complied with. (b) Declares that development consent DA0288/2021 dated 12 May 2023 has been validly regranted. (c) Declares that the suspended development consent DA0288/2021 dated 15 September 2021 is revoked. (d) Revokes Order (1) of the orders made by the Court on 27 April 2023.

[4]

Appeal grounds

The grounds of appeal, as pressed, in respect of the First and Second Judgments are as follows: First Judgment 1. The primary judge erred in finding that the Second Respondent's delegate, Matthew Hedges, had authority to determine the development application the subject of the proceedings below, as the Appellant's Objection was not an "unresolved submission by way of objection" within the meaning of that expression in clause 9.3 of Schedule 3 of the Instrument of Delegation or a "reasonable and unresolved objection" in the Second Respondent's "Development Assessment & Decision-Making Policy". In particular, his Honour erred in making findings that: a) the term "submission[s] by way of objection in clause 9.3 of Schedule 3 of the Instrument of Delegation (referred to at [23]) must be limited to the consideration of submissions received during the statutorily directed time period under the Environmental Planning and Assessment Act 1979 (at [79]); b) the expression "objection resulting from the neighbour/exhibition process" contained in the Second Respondent's "Development Assessment & Decision-Making Policy" is to be construed to refer to any submission made within the applicable statutory exhibition period, consistent with clauses 7 and 15 of Schedule 1 of the Environmental Planning and Assessment Act 1979 (at [86]); … e) the Appellant's Objection (referred to at [10]) was not a submission by way of objection (at [92]); f) the term "unresolved" in clause 9.3 of Schedule 3 of the Instrument of Delegation: … (ii) is to be interpreted as referring to the status of an objection which has not been able to be solved by the delegate (at [101]); g) Mr Hedges resolved the issues raised by the Appellant's Objection such that there were no remaining unresolved submissions at the end of the assessment process (at [104]). Second Judgment … 3) The primary judge erred in finding that: a) The breadth of the plan of management contemplated in condition 51A of the Regranted Consent is sufficient to give effect to Order (3) of the primary judgment (and the purported concerns it purports to resolve) (at [61]); b) Condition 51A of the Regranted Consent is sufficient to direct the preparation of a plan of management that will ensure compliance with the conditions of the Regranted Consent (at [62]); c) Condition 51 of the Regranted Consent which requires that "details demonstrating compliance with this condition must be submitted to the principal certifier prior to the issue of any occupation certificate" is in, and of itself, sufficient to ensure compliance with the limitation condition (at [65]); and d) Mr Martin substantially complied with the Court Orders by considering and effecting the alterations thereby required (at [66]).
Filetron says that if it succeeds on either grounds 1(a) and (e), on the one hand, or ground 1(b), on the other hand; and then also on ground 1(f) or alternatively ground 1(g), then it is not necessary to consider ground 3 (as the Consent itself would be found to have been invalidly granted and hence the orders made by the primary judge under ss 25B and 25C of the LEC Act, respectively, cannot be sustained). The respondents accept (see AT 54.5-10) that if Filerton succeeds on ground 1 then ground 3 falls away.
The issues for determination therefore fall within the following three categories: first, whether Filetron's letter of 30 July 2021 was either a "submission by way of objection" within the meaning of that expression in cl 9.3 of Schedule 3 of the Instrument of Delegation (Grounds 1(a) and (e)); or an "objection resulting from the neighbour/exhibition process" within the meaning of that expression in the Policy (for the purposes of cl 11 of Schedule 3 of the Instrument of Delegation) (Ground 1(b)); second, whether, if so, Filetron's objections were "resolved", such that Mr Hedges had delegated authority to proceed to determine the DA (Grounds 1(f) and (g)); third, which is not strictly necessary to consider if Filetron succeeds on the earlier grounds, whether the terms of the Regranted Consent substantially comply with the terms of Order (3) of the First Judgment (Ground 3).

[6]

Filetron's submissions

As noted earlier, there is no dispute as to the general principles applicable to construction of the Instrument of Delegation which the primary judge set out in the First Judgment and it is not necessary here to repeat these. In addition, Filetron submits that the Instrument of Delegation is an "instrument" as that term is defined in s 3 the Interpretation Act 1987 (NSW) (Interpretation Act) and thus is to be construed in much the same way as a statutory provision, noting that instruments of delegation are to be construed "fairly but not over-generously". Filetron says that, as a species of instrument issued by a council like a development consent, any lack of clarity or certainty in the document "is the responsibility of the council and it must take the consequences".
Filetron submits that the primary judge erred in departing from the literal construction of cl 9.3, by which, as I understand Filetron's oral submissions, Filetron means that the literal construction of the expression "submissions by way of objection" is any application or submission that can be characterised as an objection (see at AT 16.16) provided that it is made prior to the determination of a development application. Filetron seems to draw no distinction in this regard between a "submission" (in which objection(s) is (or are) raised to an application) or an "objection" to an application which includes a submission in support of that objection (see AT 16.31); and it may be that any such distinction is only semantic. (Read having regard to the ordinary sense of the word, and not as a term of art, I would have thought a submission "by way of" objection implies that it is the making of an objection that is the way in which the submission is made, rather than the reverse; although nothing may turn on this.)
Relatedly, Filetron submits that his Honour erred by implying into the Instrument of Delegation an unexpressed limitation that "submission[s] by way of objection" is a reference only "to those received within the statutorily directed time period under the EPA Act"; i.e., as if cl 9.3 included the words "made within the statutorily directed time period (if any)". Filetron refers in this context to Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor), where French CJ, Crennan and Bell JJ said (at [38]): The question of whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of additions or omissions in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provisions. It is answered against a construction that fills "gaps disclosed in the legislation", or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
Filetron maintains that, because the additional words would fundamentally change the scope of the provision, they are not an available constructional choice, noting the admonition in Taylor (at [65]) that the "constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair". Filetron submits that the implication of the additional words in this case improperly amounts to redrafting the Instrument of Delegation, arguing that such a construction is not necessary to correct any grammatical drafting error which, if left uncorrected, would defeat the object of the provision (to use the language in Taylor). Rather, Filetron says that the primary judge's construction was informed by the policy reasons identified in the reasons, namely, that this construction would "provide an objective reference point by which a delegate can determine which objections he has to resolve" and that "[t]his construction further promotes community participation in environmental planning while achieving the administrative efficiency sought by local government when delegating functions".
In that regard, Filetron identifies the purpose of cl 9.3 as being to preserve the elected councillors' power to determine "contentious" applications in the community. (That argument, to my mind, turns on the meaning of "unresolved", treating something that is unresolved as synonymous with contentious.)
Noting that cl 9.3 applies to all "Applications" under a wide range of different legislative enactments, Filetron argues that the primary judge's construction would exclude all submissions by way of objection in relation to applications not made under the EP&A Act (because there would be no statutorily directed time period under the EP&A Act in respect of them and perhaps no statutorily directed time limit at all). Filetron argues that this construction defeats the object of the limitation; and says that the Instrument of Delegation must have a consistent meaning across all possible "Applications" (rather than different meanings depending upon whether or not the application is one made under the EP&A Act).
Filetron refers to the finding by the primary judge at [79] (that the word "submissions" (in the context of a development application under the EP&A Act) meant "submissions received during the statutorily directed time period under the EPA Act") as acknowledging that additional words must be supplied in order to make the primary judge's construction work.
Filetron submits that, had the drafter intended that "submissions by way of objection" be limited to submissions received within the statutorily directed time period under the EP&A Act, it was open to the drafter to make reference to the relevant sections of the EP&A Act, as occurred in cl 12 of Schedule 3 of the Instrument of Delegation (which makes a specific limitation in relation, among other things, to an approval in relation to an activity "for the purposes of Part 5 of the EPA Act where an environmental impact statement is required in connection with the activity").
Insofar as the primary judge (at [76]) expressly adopted a "narrow" construction of the exception in cl 9.3 (saying that the exceptions within the Instrument of Delegation are confined to certain "narrow limitations"), Filetron refers to cl 9.4, in regard to which it suggests that the express exceptions are not as narrow as the primary judge considered; but in any event Filetron says that, in so reasoning, the primary judge paid insufficient regard to the "self-evident" purpose of cl 9.3 (as identified above). Filetron argues that an application objected to by a submission that is a week late is no less contentious than one where the submission was lodged on time; and that the exception should therefore be interpreted broadly (and, it argues, literally) to accord with the purpose of the provision.
Pausing here, a practical difficulty with this explanation of the purpose of the delegation is that, on Filetron's construction, this would effectively leave the question of the delegate's authority in the hands of an objector (a consequence that Filetron appears to embrace); and that this would expose the Council to the administrative inconvenience of potentially having to deal with wholly unmeritorious (albeit contentious in the sense that the objector does not agree to withdraw it) objections rather than having them determined by a delegate (the latter being in my opinion more consistent with the purpose underlying the Instrument of Delegation).
Insofar as the primary judge (at [77]-[78]) places weight on the analogous language of "submission" and "objection" used in the EP&A Act, Filetron suggests that the language of "submission by way of objection" used in the Instrument of Delegation may be contrasted with that used in s 4.15(1)(d) ("any submissions made in accordance with the Act or the regulations"). Moreover, Filetron says that the phrase "submissions by way of objection" has a specific connotation within the EP&A Act, applying to "designated development" (referring to ss 4.18(3), 8.8(2) and the definition of "objector"), in which context an objector's statutory right to bring a merit appeal is dependent upon whether a submission is made within time but that, other than in respect of designated development, determining whether a submission has been made within time is of no continuing relevance to the determination of the application. Filetron says that the designated development analogy utilised by the primary judge is therefore inapt.
In that regard, Filetron argues that the primary judge's finding (at [84]) that a late submission was nevertheless required to be considered by the consent authority, pursuant to the statutory obligation to consider the public interest under s 4.15(1)(e) of the EP&A Act, supports its contention that a late submission does not lose its essential quality as a "submission" merely by reason of its lateness. Filetron cavils with the submission by Innovate that there was no such finding, emphasising the last sentence of [84] of the First Judgment (see above).
Filetron argues that the fact that "submission by way of objection" is a statutory phrase found in the EP&A Act and the LG Act supports its contention that the phrase should be given its ordinary literal meaning, submitting that the exception to the delegation in cl 9.3 was clearly intended to have broader operation than to those particular applications. Filetron argues that the references to that phrase in s 4.64(1)(l) and (t) of the EP&A Act are no more than references to persons who have made objections to applications for designated development (though I note that those provisions do not in terms refer to designated developments).
As to the primary judge's reliance (at [77]) on s 4.15(1)(d) of the EP&A Act, Filetron points out that that provision refers specifically to "submissions made in accordance with this Act or the regulations" and that such a limitation is not found in cl 9.3 of the Instrument of Delegation (an omission that Filetron submits it can be inferred was deliberate). Filetron also says that, at the time the Instrument of Delegation was approved by the Council, there was not necessarily any statutorily directed time limit for submissions (as the EP&A Act left such matters to a Council's development control plan in the case of most forms of development, pursuant to the former s 79A(2)).
As to the primary judge's reliance (at [79]-[80]) on the "administrative inconvenience" of the delegate not knowing whether he or she has delegated authority until the determination of the application, Filetron emphasises that the requirement for an assessment to be made as to whether the objection has been "resolved" might, on his Honour's construction, need to be deferred until the determination of the application in any event (since the delay in the confirmation of the delegate's authority might well occur irrespective of when the objection is made) and hence the delegate may still need to determine the issue of his or her authority at the time the application is determined.
Filetron then makes the alternative submission (if, contrary to its contention, the phrase "submission by way of objection" in cl 9.3 of the Instrument of Delegation is to be read as incorporating a temporal limitation) that such a temporal limitation should include not only the statutorily directed period (if any) for the particular kind of application in question but also such further period for submissions as the Council may allow. By way of example, Filetron says that this would include an extension of time as expressly contemplated in the CPP. Filetron submits that there is a textual basis in the Instrument of Delegation for such an implication, given that cl 9.4 precludes the exercise by the delegate of a delegated function in a manner which is inconsistent with the purpose, objectives or intended outcomes of any adopted policy of the Council (and Filetron argues that the CPP would be such a policy - a submission with which the Council cavils). Filetron argues that the administrative inconvenience referred to by the primary judge would not arise in such a case; and that the fundamental purpose of the exception in cl 9.3 would be preserved by ensuring that controversial proposals are referred for determination by the Council in the event that a late submission lodged with the Council's express consent remains unresolved at the date of determination.
On that alternative construction, Filetron says that the Council, acting consistently with its CPP, granted an extension to Filetron to provide its submission and that, as Filetron's submission was provided within that extended time frame, the submission was a "submission by way of objection" within the meaning of the Instrument of Delegation.

[7]

Respondents' submissions

Both respondents argue that the primary judge did not construe cl 9.3 as if it included additional words; rather, they contend that his Honour properly determined the meaning of the expression "submissions by way of objection" in cl 9.3 in light of, or in the context of, the legislation under which the relevant application was made (the EP&A Act). In effect, the respondents' argument appears to be that the expression is to be construed, in the case of applications made under the EP&A Act, as meaning submissions by way of objection "made in accordance with" any requirements for submissions under that Act.
Innovate submits that the words "submission" and "objection" have a degree of formality that is inapt to extend to every communication voicing opposition to the exercise of a particular statutory function that might be received by the Council irrespective of matters such as form and timing. Further, reference is made to the use of the words "submission" and "objection" in similar ways in both the EP&A Act and the Instrument of Delegation (as his Honour accepted at [77]).
As to whether a submission made outside the statutorily directed time period is one made in accordance with the EP&A Act (which provides a regime for the making and consideration of development applications), the respondents argue that the fact that a consent authority is entitled to take into account a late submission (in considering the public interest) does not mean it is obliged to do so. In this context, Innovate points to the observation by Hodgson JA (with whom Campbell and Bell JJA agreed) in Minister for Planning v Walker [2008] NSWCA 224; 161 LGERA 423 at [41] that a requirement to have regard to the public interest "operates at a very high level of generality, and does not of itself require that regard be had to any particular aspect of the public interest".
Similarly, while the Council accepts that it granted an individual extension of time to Filetron to make submissions until 30 July 2021, it says that the delegate was not required to consider those submissions pursuant to s 4.15(1)(d) of the EP&A Act (because Filetron's letter was not a "submission" made in accordance with that Act); and the Council says that the fact that the delegate exercised a discretion to do so does not mean that he thereby deprived himself of authority to determine the DA.
As to Filetron's reliance on the absence in cl 9.3 of the Instrument of Delegation of words specifically directed to the statutorily directed time period under the EP&A Act, it is noted that cl 9.3 relates to determination of applications not limited to those under the EP&A Act and hence it is submitted that the use of general language is explicable for that reason.
As to Filetron's complaint that the primary judge's construction would exclude all submissions not made under the EP&A Act (because there would be no statutorily directed time period under the EP&A Act in respect of them) the respondents argue that if, in relation to a given category of application, there are no statutorily mandated requirements for the making of a submission, then there would be no such exclusion because any submission opposing an application of that kind would be a "submission by way of objection" within the meaning of cl 9.3.
The Council cavils with the proposition by Filetron as to the purpose of cl 9.3 being to preserve the councillors' power to determine contentious applications, noting the finding by the primary judge (First Judgment at [76]) that the Instrument of Delegation granted the General Manager expansive powers subject to only narrow limitations to be "construed narrowly in a way which preserves the broad grant of power contemplated by the Instrument of Delegation as a whole".
The Council says that Filetron's submission that the literal construction of cl 9.3 would encompass any material conveyed to the Council, at any time, in opposition to a particular application being granted, would be unworkable. The Council points out that such a submission would mean that Filetron's 8 September 2021 letter (which was received after the completion of the Assessment Report and did not relate to any feature of the DA itself), could nevertheless operate to require the referral of the DA to the Council itself (see First Judgment at [80]); and says that the same would be true of any opposition to an application, from any person, made at any time, even if Council had determined there should be no process, or only a limited process, for third-party input into applications of certain kinds. Further, the Council emphasises that in those circumstances a delegate could not know whether he or she had authority to determine an application until the moment of making a determination.
Similarly, Innovate argues that it would follow from such a construction that the making of any submission would deprive the delegate of power (or at least make the delegate's power dependent on resolving the objection), even if the Council (and hence the delegate) was under no obligation to consider the submission.
Both respondents emphasise that the Instrument of Delegation is to be construed to give it a pragmatic and convenient operation where possible; and argue that Filetron's construction would be unworkable or lead to administrative inconvenience. The Council emphasises that subsidiary instruments (such as instruments of delegation, policies and development consents) are generally to be construed "not as documents drafted with legal expertise, but to achieve practical results"; and notes that, where necessary, this may require reading down conditions or limitations. The Council argues that, in some cases, the purpose of the relevant authorising legislation may compel an approach to the construction of subsidiary instruments which might in other circumstances seem imprecise, particularly when the instruments are directed at "practical activities not necessarily susceptible to high levels of precision" (citing Comcare v Lilley (2013) 216 FCR 214; [2013] FCAFC 121, at [67]).
As to Filetron's alternative construction (that, if limited by a temporal requirement the relevant period should extend to such further period for submissions as the Council may allow), apart from the complaint that this construction was not advanced at first instance, Innovate says that there is no textual foundation for this in the Instrument of Delegation; and that the scope of the delegation would then be dependent on the discretionary decisions of a council representative or representatives rather than an objective reference point based on the particular statutory regime under which the relevant application was made.
As to the CCP, which the Council says is not a "policy" as such, the Council argues that a discretionary extension of time to make a submission in effect is no more than a commitment to exercise its discretion to consider late material put forward by a particular person (noting that the CPP makes clear that the Council has the same discretion to consider late material even if no extension is granted). The Council says that, in those circumstances, despite the extension, Filetron's letter was not a "submission by way of objection" within the meaning of cl 9.3 of the Instrument of Delegation; rather, it was a matter taken into account by the delegate pursuant to an exercise of discretion.

[8]

Determination

As noted above, there was no dispute as to the applicable principles for construction of the Instrument of Delegation set out by the primary judge in the First Judgment at [72], although emphasis is placed by the parties on the need to construe development consents so as "to achieve practical results". Filetron argues that this must be understood in the light of the principle that practical considerations do not permit a re-writing of statutory instruments to meet what the court thinks is a permissible and practical outcome.
Clearly, cl 9.3 of Schedule 3 to the Instrument of Delegation must be construed in a way that enables a coherent operation across a range of "applications" that might be made under various statutes. However, I accept that, on a case by case basis, it is appropriate to construe the meaning of "submissions by way of objection" in the context of the relevant statute under which the subject application is made (here, of course, the EP&A Act in the context of a development application made under that Act).
The expression "submissions by way of objection" does not appear to be used in cl 9.3 of the Instrument of Delegation as a term of art (other than perhaps in the context of an objector's rights to appeal in relation to an application for designated development the EP&A Act); and it is expressed in general language. As submitted by the Council, that is perhaps not surprising since cl 9.3, as already noted, applies in relation to a range of applications.
I have no difficulty with the proposition that, in the context of a development application under the EP&A Act, cl 9.3 contemplates a submission by way of objection made in accordance with the regime provided for under that Act. However, although the regime for determination of development applications under the EP&A Act requires a minimum public exhibition period (during which a person who objects to an application "may" make submissions) and obliges the consent authority to consider and determine submissions made during that period, there is nothing to preclude a submission being made outside that period and nothing to preclude a consent authority, in its discretion, from considering submissions (including submissions making objection to the development application) which are lodged outside that time. To my mind that gives rise to the difficulty with the conclusion by the primary judge that the reference in cl 9.3 to "submissions by way of objection" means submissions of that kind which have been lodged within the "statutorily directed time period", i.e., within the period in which the consent authority would be statutorily required to determine the submissions.
I quite understand the practical dilemma that may confront the Council on the construction advanced by Filetron; in that, if a submission by way of objection extends to any submission that is lodged at whatever time as long as it is before the determination of the development application, then the delegate will not know whether he or she is able to exercise delegated authority until the very last moment and the Council will potentially be put to the practical administrative inconvenience of having to determine development applications that are wholly unmeritorious or spurious (or where the objections are of that ilk) simply because the submission has been lodged late.
However, the construction advanced by the respondents (and adopted with reservation by the primary judge) does seem to me inescapably to involve reading into cl 9.3 additional words (by reference to a temporal limitation not found in the clause). I am not persuaded that this is permissible even accepting that it would avoid administrative inconvenience and would support the object of the Policy which was in existence at the time the Instrument of Delegation was issued (that being to provide guidelines for the assessment and determination of development applications, in circumstances where there was an acknowledged distinction between minor/routine applications and those which were significant).
It can readily be inferred that the concern of the Council was that development applications (contentious from a community viewpoint or not) should be assessed and determined in an administratively convenient way (i.e., with the involvement in appropriate circumstances by a duly authorised delegate). However, that begs the question of what the Council intended by the limitation in cl 9.3 on the delegation in this context.
I cannot discern from the wording of cl 9.3 of the Instrument of Delegation, read in the context of the EP&A Act, an intention to limit the meaning of "submissions by way of objection" to those which are lodged within the public exhibition period.
While I accept that "submissions by way of objection" connotes a degree of formality (such that a mere communication raising a complaint might not fall within that term), I do not accept that a submission is not made in accordance with the EP&A Act simply because it is made outside the specified public exhibition period, particularly where the legislation does not preclude a late submission being considered at the discretion of the Council (or its delegate).
Accordingly, I consider that ground 1(a) is made good.

[11]

Respondents' submissions

The Council submits that the expression "objections resulting from the neighbour/exhibition process" for the purpose of the Policy (see cl 11 of the Instrument of Delegation) encompasses only submissions made within the applicable statutory exhibition period. The Council says that the Policy is directed specifically to the assessment and determination of Development Applications pursuant to the EP&A Act and submits that it is clearly desirable for there to be coherence between the construction of cl 9.3 and the relevant part of the Policy. (Filetron accepts that the Policy is directed specifically to the assessment and determination of development applications pursuant to the EP&A Act but says that, had it been intended that paragraph 1 of the Policy only apply to objections lodged in accordance with the statutory time frames set out in the E&PA Act, the Policy would have expressly so provided. Filetron also accepts that it is desirable for there to be coherence between the construction of cl 9.3 of the Instrument of Delegation and the relevant parts of the Policy but emphasises that it is the construction of the Instrument of Delegation, being later in time and required to accord with any adopted policy of the Council, which must cohere with the Policy.)
As to the meaning of "resulting from", Innovate argues that it is not sufficient that some causal link can be established (between, say, the public exhibition process and the making of a communication to the Council objecting to a particular development application); rather, Innovate says that the objection must be of a kind that can attract the epithet "unresolved"; and Innovate argues that a submission or objection that may be considered by Council at its discretion (or at the discretion of council officers) cannot sensibly be said to be "unresolved".
Innovate says that if there is nothing to which regard must be had, then there is no issue requiring consideration by the consent authority, and therefore nothing to resolve. Innovate thus submits that if the Council was under no duty to extend time to enable Filetron to make a late submission (noting that it is not suggested that it was), then whatever objection was conveyed in it was not capable of being an "unresolved objection" in the relevant sense.
The Council submits that (even accepting that the phrase "resulting from" requires a "common sense evaluation of a causal chain"), Filetron's 30 July 2021 letter of objection did not "result" from that process. The Council says that Filetron's letter was provided separately to, and after, the neighbour notification/exhibition process had ended; and that it was provided pursuant to an indication from the Council that a comment provided by Filetron on or before 30 July 2021 would be considered by an exercise of discretion. The Council thus argues that Filetron's letter did not meet the description in the Policy. (In reply submissions Filetron says that the fact that the letter was provided separately to and after the public exhibition process had ended does not detract from the clear causal link between the "neighbour notification/exhibition process" and the lodgement of the objection.)
The Council argues that acceptance of Filetron's contentions would mean that any objection, from any person, made at any time, could operate to require the referral of a development application to the Council itself, as long as any causal link could be drawn with the neighbour notification / public exhibition process.

[12]

Determination

It is relevant to note that the Policy refers to applications where there is a reasonable and unresolved objection "resulting from the neighbour notification/exhibition process"; not to reasonable and unresolved objections "made within the neighbour notification/exhibition period". Significantly, in my opinion, the effect of the primary judge's construction is that the Policy constraint is one that refers to the "period" in which the objection is lodged, not whether it is one "resulting from" the process.
In my opinion the words "resulting from … the process" should be given their ordinary meaning, i.e., as something arising from or out of the process (not necessarily requiring the objection to have been made in the period allowed for the public exhibition/neighbour notification process). So construed, the 30 July 2021 letter was in my view clearly a letter "resulting from" the process. Filetron was notified of the DA; it was informed of the public exhibition period in which submissions were to be made; it sought and obtained confirmation that the period for lodgement of submissions would be extended; and it lodged the 30 July 2021 letter which clearly raised issues in objection to the proposed development.
It is accepted by Filetron that the public exhibition period was not extended and hence that the Council was not obliged pursuant to s 4.15(1)(d) of the EP&A Act to consider and determine the objection. However, it can hardly be disputed that, had the Council (having confirmed an extension of time for the making of the submission) then, through its delegate, refused to consider the objections raised in the 30 July 2021 letter, there would have been scope for dispute by Filetron (say, of a denial of procedural fairness or perhaps seeking to invoke the principles of estoppel). In those circumstances, it is understandable that the primary judge considered that the Council might have been obliged to consider it under s 4.15(1)(e), in the public interest. Whether or not that would have been the case is not to the point. I see no basis for reading the words "resulting from the … process" as meaning that a submission that the Council might have a discretion whether or not to consider and determine is not one "resulting from the … process".
I consider ground 1(b) is also made good.

[14]

Ground 1(f)(ii) - meaning of "unresolved"

Filetron says that the effect of the primary judge's finding as to the interpretation of "unresolved" when used in both the Instrument of Delegation and the Policy (as referring to the status of an objection which has not been able to be "solved" by the delegate, whether by way of adoption of an appropriate course of action to address the submission or 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 of an objection, or otherwise) has the effect that an objection is "resolved" if it is rejected or dismissed by the delegate. Filetron maintains that the question of a delegate's authority arises prior to the determination of the objection (and that the concept of "resolution" here must be at a time prior to the determination itself - as it is an "unresolved" objection, assuming it be reasonable, that triggers the constraint on the delegate's authority).
Filetron maintains that rejection of an objection does not "resolve" it; rather, Filetron says that "resolution" involves the objection either being satisfied or withdrawn. Filetron now takes no issue with the finding of the primary judge (at [99]) that there is "a role for a delegate to attempt the resolution of an objection". However, Filetron says that, to extend that role to the right unilaterally to reject or dismiss the objection, goes further than attempting its resolution.
Filetron argues that, as a matter of construction, what must be resolved (for the purpose of the delegate's authority) is the "submission by way of objection" (or, more particularly, the "objection" itself), as distinct from the issues raised in that objection. Filetron points out that an objection may be made to the "whole of the development" (referring to the primary judge's recognition of this at [97]); and that an objection may not even provide reasons for the objection. (I interpose to note that this submission appears to run counter to the argument raised in the alternative in ground 1(g), i.e., that Filetron's objection was not "resolved" because certain of the issues in it were not addressed or considered. Filetron's response to that is simply to emphasise that it is an alternative submission: see at AT 22.43.)
Filetron says that the resolution of the objection contemplated by the Instrument of Delegation and the Policy can occur by withdrawal of the objection, or by confirmation by the objector that the objector's concerns have been satisfied; and that the notion of the resolution of a submission or objection implies an important role for the objector in that process.
Filetron accepts that the various ways in which the primary judge held (at [96]) that a submission or objection could be resolved are means by which a submission may be "addressed" but that says that none resolves the objection itself (which Filetron says would require acceptance by the objector of any proposed resolution). Filetron draws a distinction between "resolving" an objection (by negotiation) and "determining" it (the latter being said by Filetron to be the effect of the primary judge's construction).
Filetron submits that its construction is more certain; and less likely to lead to disputation as to the existence of the delegate's power to determine an application. Filetron says that the delegate will know whether the objection remains after the attempt at resolution contemplated by cl 9.3 has concluded; whereas, on the primary judge's construction, the delegate may not know whether he or she has authority to determine the application until the very last moment, when consideration is being given to what conditions, if any, are to be imposed on the approval.
Again, Filetron says that the Instrument of Delegation is an instrument made under the LG Act, and therefore an "instrument" within the meaning of the Interpretation Act. Filetron says that the delegation is to be construed so as not to be beyond power (Interpretation Act, s 32) and that it would be beyond power if it purported to delegate only the power to approve, but not the power to refuse, the application. Filetron says that, on the primary judge's construction, it is only where the delegate is unable to resolve the submission by addressing the issues raised in it that the delegate would not have power to determine the application. It says that those circumstances would almost certainly lead to a refusal; that is, the delegate has the power to approve but not to refuse the application (at least where there are objections submitted to the application). Therefore, Filetron says that the primary judge's construction is at odds with the Belmorgan principle (Belmorgan Property Development v GPT RE [2007] NSWCA 171; 153 LGERA 450 (Belmorgan), at [54]-[56], [57]), and should be rejected.
In oral submissions, Filetron refers to Lyons v Sutherland Shire Council [2001] NSWCA 430 at [31]; 117 LGERA 334 per Stein, Ipp and Rolfe JJA, to the effect that the question of the delegate's authority is an objective one (not determined by the subjective assessment of the delegate) (see AT 19).

[15]

Respondents' submissions

Both respondents distinguish between the process of assessment of a development application and its determination, emphasising that assessment and determination are separate functions (and may be undertaken by different people). Innovate points out that the carrying out of the assessment function does not produce any legal consequence for the proponent of the relevant development or any objectors; and the Council points out that neither cl 9.3 nor the Policy has any application to the prior process of assessment (because they both apply only to determining an application).
Innovate argues that the drafter of the Instrument of Delegation appears to have contemplated that: an objection might be resolved as part of the assessment process; given that that process does not, of itself, produce any legal consequence for the proponent or any objector, the resolution of an objection might involve an outcome that falls short of producing a legal, or otherwise binding, consequence; and that the resolution of an objection would involve something other than withdrawal of the objection or confirmation by the objector that his or her concerns have been satisfied (as Filetron suggests). Innovate says that this is because either of those outcomes (withdrawal of objection or confirmation by the objector) would result in there being no objection, as distinct from an objection that can be taken to have been resolved, at the time of determination of the relevant development application.
The respondents cavil with the proposition that "unresolved submissions by way of objection" contemplate that a resolution may only be reached if an objection were to be resolved to the satisfaction of the objector (or that the objector might have the status of arbiter).
Innovate submits that a submission by way of objection will be taken as "resolved" for the purposes of cl 9.3 of Schedule 3 to the Instrument of Delegation if, at the conclusion of the assessment process, the assessing officer regards the objection as "resolved" (meaning solved or ended) and that opinion is a reasonable one. Innovate accepts that the criterion of reasonableness is implied but says that the implication is orthodox (citing Buck v Bavone (1976) 135 CLR 110 at 118 (Gibbs J) and 131 (Mason J)); and that so much was accepted by the primary judge (First Judgment at [99]). Innovate says that it is in the light of that acceptance that his Honour's remark (First Judgment at [96]) must be understood, namely the observation that: resolution of a submission made 'by way of objection' … 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 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.
Innovate says that Filetron's construction of cl 9.3 involves a departure from the Belmorgan principle (namely, the proposition that "[t]he function of determining a development application by granting consent or refusing consent to the application is a single, indivisible function; there is not one power to grant consent and a separate power to refuse consent" - see KEPCO Bylong Australia Pty Limited v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 at [96]; 250 LGERA 39).
Innovate argues that if a submission by way of objection were made that identified or created some fundamental problem with a development application, such that consent could not reasonably be granted, the delegate would, on Filetron's construction, lack authority to decide to refuse development consent because, in this hypothetical, the submission by way of objection would not have been withdrawn and the objector continued to oppose the development. Innovate says that the more unanswerable an objection, the less authority a delegate would have to reject the application. Innovate says that the elected councillors would be troubled by entirely unmeritorious development applications which had been the subject of unanswerable objections. It is submitted that it can hardly have been the intention of those who approved the Instrument of Delegation that elected councillors would be required to deal with development applications in circumstances where the case for refusing consent, as put in a submission to the Council, was clear-cut and continued to be pressed.
Innovate contrasts this with the construction for which the respondents contend. It is said that, in the scenario here posited, the delegate, upon being confronted with an objection so compelling as to require refusal of the proposed development, would regard that objection as unanswerable and therefore "resolved" in favour of the objector, and on that basis, refuse consent to the relevant application; and that there would be no want of authority to refuse consent.
Innovate argues that, on Filetron's construction, the maintenance of an objection, no matter how spurious, would force a decision concerning a development application to be made by the Council, just as the making of an unanswerable objection would deprive a delegate of the Council of the authority to refuse consent. It is submitted that this construction would burden the Council with having to decide applications the subject of patently unmeritorious objections and applications that are themselves shown by an objector to be patently devoid of merit. Further, Innovate says the uncertainty that Filetron ascribes to the construction advanced by the respondents is over-stated. Innovate argues that, assuming that an objection is addressed during the assessment process, either by being dismissed or dealt with by means of proposed conditions or otherwise, there would be little difficulty for a delegate coming to a reasonably founded view as to whether the objection has been resolved.
The Council similarly argues that his Honour's construction produces the fairer and more convenient operation, and promotes the purpose, of the delegation.
The Council argues that, once the process of assessment is complete, a delegate of the Council will know whether any objections have been resolved, and whether he or she consequently has authority to determine the application. The position of the Council appears to be that in the present case the process of assessment carried out by the delegate (leading to the delegate's recommendation that the DA be approved in the respects indicated) occurred prior to the determination itself (albeit that Assessment Report itself appears to contain a determination).
The Council argues that a construction of "unresolved" which would require an objection to be satisfied or withdrawn in order for it to be "resolved" would be unworkable. The Council says that nothing in the legislative regime or in its documents expresses or implies any role for an objector in assessing a development application; and complains that Filetron's construction would grant extraordinary power to an objector, regardless of the merits of the objection.
As to the submission by Filetron that, on the primary judge's construction, a "delegate has the power to approve but not to refuse the application (at least where there are objections submitted to the application)", the Council maintains that a delegate plainly has power to refuse a development application, including for reasons unrelated to objections.
The Council submits that, properly construed, it is up to the assessing officer to determine whether an objection is "unresolved" for the purposes of cl 9.3 of the Policy; and says that that construction accords with the text, context and purpose of the instrument of delegation and the Policy.
The Council says that reference to an "unresolved" objection indicates that there are objections capable of resolution; and that an assessing officer may consider that resolution is achieved in any one of a number of ways (such as refusing parts of an application, imposing conditions on a consent, or finding that the evidence does not support a concern which has been articulated; all of which the Council says occurred in the assessment report for the DA). The Council argues that acceptance of Filetron's position would have the effect that the adjective "unresolved" in cl 9.3 and the Policy has no real work to do, unless an objector actively accepts that its submission had been resolved. The Council says that, otherwise, cl 9.3 and the Policy would apply whenever there were "submissions by way of objection" or "a reasonable objection".
The Council argues that, contextually, both cl 9.3 and the Policy place a limitation on an otherwise expansive power to determine applications by way of delegation and that the limitations should not be construed in a manner which will frustrate that otherwise broad grant of power. The Council points out that other limitations in both cl 9.3 and the Policy are similarly narrow (relating, for example, to applications which are "on the significant DA list", which seek to alter the applicable Local Environment Plan or the Development Control Plan, or which the Council specifically decides it will determine itself).
The Council says that the amendments to cl 9.3 adopted at its 4 October 2016 meeting are further suggestive of the assessing officer having a discretion to determine whether objections have been resolved. It is noted that, instead of adopting a "numbers" approach to objections (whereby any development that had three or more submissions had to go to the Council for determination), the choice was made to amend the delegations to give the assessing officer more discretion in relation to submissions. The Council says that it is consistent with the evident purpose of the broad delegations that the Council only wished directly to consider applications in relation to which there were objections which could not be resolved by the assessing officer.
The Council argues that its construction achieves "practical results", saying that it will lead to an assessing officer referring an application to the Council under cl 9.3 or the Policy if the officer has not been able to decide or solve the issues raised in submissions, or if the officer is uncertain how to proceed and that this is consistent with effective and efficient local government process. The Council says that, by contrast, Filetron's position effectively allows any objector, however minor or unfounded the objections (so long as that objection is "reasonable"), to force an application to be determined by the Council itself.
In reply submissions, Filetron disputes the premise of the respondents that the assessment of a development application and its determination are separate statutory functions. Filetron says that there is no separate assessment function in s 4.15 of the EP&A Act; that it is part and parcel of the determination function under s 4.16; and that this is made clear by the opening words of the chapeau of s 4.15(1) ("In determining a development application, a consent authority is to take into consideration…"). Filetron notes that the primary judge described the exercise of power by the delegate as "the indivisible function of determining the application subject to conditions" which "reveal[ed] a breach of s 4.15 and/or s 4.16 of the EP&A Act" (First Judgment at [115]); and that it has previously been observed by this Court in Rossi v Living Choice Australia [2015] NSWCA 244, at [265] that: Clearly enough the statutory scheme lays down a single process. Where a council is the consent authority, and an officer of the council carries out an assessment of a development application before a determination is made by the council, there is but one process.
Filetron argues that the fact that Mr Hedges' Sub-Delegation draws a distinction between the assessment and determination functions is irrelevant, noting that a sub-delegation cannot be employed to construe a superior instrument (the Instrument of Delegation), still less the Policy.
Insofar as the respondents' submissions construe cl 9.3 of the Instrument of Delegation (and the Policy) in a way which confers upon the delegate the role of determining whether a submission or objection has been "resolved" (subject to the constraint that the opinion formed by the delegate must be reasonable), Filetron points out that neither document refers in terms to any opinion required to be formed by the delegate as to that matter; rather, the status of a submission or objection is expressed in objective language ("unresolved"). Filetron argues that the Instrument of Delegation should not be construed as allowing the delegate to recite himself or herself into power (pointing out that the other exceptions in cl 9 are clearly objective and not dependent on the formation of any opinion by the delegate). Filetron submits that it is unlikely that it was intended that determination of whether a submission remained "unresolved" was to be a matter for the delegate alone to determine, as distinct from a matter to be determined objectively.
Filetron answers the respondents' submissions as to unworkability of its construction in circumstances where there may be unmeritorious or spurious objections by asserting again what it identifies as the fundamental purpose of cl 9.3 (namely, to leave in the hands of the elected councillors the power to determine contentious applications). Filetron maintains that there is no difficulty, from an administrative efficiency perspective or otherwise, with its construction and notes in relation to "spurious" objections, that the Policy requires referral to the Council where the objection is "unresolved" but only where it is "reasonable". Filetron says that if the objection is spurious (and by definition not "reasonable"), the application need not be referred to the Council for determination, and it may be determined by the delegate.
Filetron maintains that very real uncertainty would arise from the primary judge's construction (in that the delegate would be required to attempt to "resolve", not merely consider, every single issue raised in every single submission before forming a view as to whether he or she was authorised to determine the particular application).
Filetron cavils with the Council's submission that Filetron's construction would grant "extraordinary power to an objector, regardless of the merits of their objection". Filetron says that it is the "objection" itself that must be "resolved" as a whole, not the issues raised in it, in order for the delegate to have the power to determine the application. Filetron emphasises that it is the objector's objection; and submits that it should logically be a matter for the objector to decide whether or not it has truly been "resolved".
As to the Council's reliance on amendments to the final form of resolution adopted by the Council at its 4 October 2016 meeting, Filetron says that nothing in the Interpretation Act (s 34 or otherwise) supports the use of extrinsic materials in the interpretation of an "instrument" such as the Instrument of Delegation. Filetron says that, in any event, while the relevant limitation on the General Manager's delegation was changed from a purely "numbers" approach to one based on whether a submission has been resolved, that does not suggest an intention to give the delegate more discretion any more than it gives the objector more discretion over whether its objection is resolved or not. It is submitted that the purpose of that change was self-evidently to open up the possibility that an objection could be resolved but that how that was to occur was left unstated. Filetron maintains that this had to involve the objector.

[16]

Determination

In my opinion, whether or not a "submission by way of objection" or simply a "reasonable … objection" has been resolved must be able to be determined objectively. It cannot be for the delegate subjectively to recite himself or herself into power. And it must be able to determine, objectively, whether (prior to the determination itself) such an objection is unresolved.
However, the submissions advanced by Filetron as to the meaning of "unresolved" have the effect (which Filetron appears to embrace) that it is for the objector unilaterally to determine whether his or her objection has been "resolved". In my opinion this cannot have been the intention of cl 9.3 or the Policy. It would leave the delegation process effectively in the hands of an objector.
In my opinion, the constraint on the delegate's authority will not be enlivened if, objectively, during the assessment process and before the actual determination of the development application, the objection has been resolved in the sense that (assuming there is neither a consensual resolution between the objector and the applicant nor a withdrawal by the objector of the objection so that there remains an extant objection) the objection has been assessed and the person assessing the objection has formed a view as to the matters raised by the objection - for example, as to whether those matters can be addressed by the imposition of conditions, whether they have substance, or even perhaps whether they require referral to the Council or some other regulatory authority. In the present case, the Assessment Report provides objective evidence as to whether the objection as a whole has been resolved in that sense, prior to the determination itself.
Filetron's construction would in my opinion be unworkable and would not promote administrative convenience or the objects of the delegation itself. It cannot be the case that any broadly framed objection (so long as it is not spurious on its face) would have to be referred automatically to the Council for determination if the objector simply maintained its objection after the delegate's assessment of the objection.
I consider that the primary judge was correct in considering that this would be at odds with the purpose of a delegation being to filter the applications for which the Council's input was required.
Thus I consider that ground 1(f)(ii) is not made good.

[18]

Respondents' submissions

Both respondents maintain that the delegate considered Filetron's Objection Letter and resolved that objection.
As to the road access issue, Innovate says that Mr Hedges did not omit to address or resolve the matters identified by Filetron. It is noted that, in the Assessment Report, Mr Hedges said as to the possibility of upgrading site access: The existing right of access gives the Applicants the rights to upgrade the access as required to meet the requirements of Planning for Bushfire 2019. Furthermore, there is sufficient land outside the areas of biodiversity concern for the owners to undertake any road widening required and the consent can be conditioned to ensure that any access widening take place outside of areas identified on the biodiversity values map.
Innovate notes that, in directing himself to several of the issues sought to be ventilated in Filetron's submission, Mr Hedges indicated that all submissions could be reasonably "discharged" and concluded that "the proposal has been assessed as being in the public interest with no significant impact identified".
Innovate says that it may be inferred that Mr Hedges considered the matters identified by Filetron but simply did not regard them as having any merit; and that if that is correct, then, on the construction of cl 9.3 of Schedule 3 to the Instrument of Delegation adopted by the primary judge, the question is whether Mr Hedge's conclusion in that regard was reasonable. Innovate argues that, having regard to the detail of Mr Hedge's assessment of the DA, it could be so answered.
The Council notes that Mr Hedges determined that the DA was not for a "designated" or "integrated" development; that the fact that sufficient detail had been provided about the proposed "Agriculture Produce Industry" was specially referred to in the context of Mr Hedges' consideration of Filetron's letter of objection; and that Mr Hedges further determined that the site access roads did not need to be upgraded because the development would not result in an "intensification" of the use for which the right of access was granted over the relevant road. The Council says that the fact that road upgrades were not required was further referred to specifically in the context of the consideration of Filetron's letter of objection. Thus, the Council submits that Mr Hedges "resolved" the issues raised by Filetron's letter of objection.
As to the objection raised by Filetron regarding the need for an upgrade to the existing access roads to the Council's standards, Filetron says that the specific issue it raised was the need to upgrade the access road to the Council's standard for a rural road with a metaled surface, which was not incorporated into the DA. Filetron says that the passages in the Assessment Report relied on by the respondents address entirely different issues, namely whether the DA proposed any intensification of use of the right of way and whether any road widening was required to address bushfire concerns.
Further, Filetron says that the respondents' reliance on the ticking of the "Yes" box in answer to the question "Can all submission [sic] be reasonable [sic] discharged?" is misplaced; and that the question for present purposes is whether the particular objection raised by Filetron has been "resolved" (which Filetron maintains it was not), not whether it was merely considered or taken into account.

[21]

Filetron's submissions

Filetron notes that the question to be resolved was whether the action(s) taken by Council could properly be said to have substantially complied with Order (3), a matter in respect of which the Council, as the moving party, bore the onus (see ss 25C(2) and 25B(1)(b) of the LEC Act).
Filetron says that the express statutory requirement for "substantial" compliance with the Court's orders reflects the extraordinary nature of orders made under Division 3 of Part 3 of the LEC Act. Filetron accepts that it is appropriate for the Court to approach the discretion regarding the making of an order under s 25B based upon a wide range of considerations and a specific appreciation of the error that has occurred. However, Filetron emphasises that the endorsement of a regranted consent is explicitly made contingent on the requirement for "substantial compliance"; and says that the s 25C(2) function should not be approached with the same pragmatism that can and should inform the s 25B discretion. In this regard, Filetron emphasises that the purpose of the provision must still be informed by the requirement to ensure that public confidence in the legal and planning system is maintained.
Filetron says that substantial compliance requires compliance to the requisite degree with all terms and conditions; and that a failure substantially to perform i.e., to fail to meet the standard of "substantial" compliance, would carry no public confidence in the process sufficient to gain access to the extraordinary remedy. Filetron says that the statutory requirement for "substantial compliance" would be undermined if the consent authority took only casual or tokenistic action to comply with the orders made under s 25B but validating orders made under s 25C anyway.
Filetron says that Order (3) included both the requirement for an action to be performed and an objective for that action to achieve, emphasising that it referred to a condition or conditions being imposed requiring the preparation of a plan of management required to be observed "in order to ensure compliance with", relevantly, the condition or conditions for a limitation on the number of patrons permitted to attend the cellar door premises. Filetron says that there is nothing in the Regranted Consent conditions requiring the plan of management to ensure compliance with the limitation on cellar door numbers.
Complaint is made that Condition 51A of the Regranted Consent includes no express statement of the purpose of the plan of management set out in Order (3); rather, it only requires the plan of management to "include" matters listed in 5 bullet points (which include "Guest Numbers" and "Guest management") and provides that: The 'Principal Certifier' must be satisfied that the plan of management addresses the items identified in this condition and is consistent with the other conditions in this consent. (Reason: To ensure the site is appropriately managed)
Filetron says that nothing in the language of the conditions of the Regranted Consent directs the Principal Certifier as to the purpose of that "guest management"; that condition 51A does not require that the plan of management must include guest management provisions to ensure compliance with guest numbers provisions or that the two provisions must be connected in the plan of management. Filetron says that the Principal Certifier could not know that the requirement for "guest management" is to ensure compliance with condition 51. Filetron says that the conditions of the Regranted Consent would permit a plan of management that includes provisions regarding guest management which: are entirely separate to the guest numbers provisions; and have nothing to do with, and consequently are not inconsistent with, condition 51.
It is noted that condition 51A of the Regranted Consent requires the Principal Certifier to be satisfied that the plan of management be "consistent with" other conditions in the Consent. However, Filetron complains that this is qualitatively different to a requirement that the plan of management is to ensure compliance with a condition imposing a restriction on the number of cellar door patrons.
Filetron says that (contrary to the primary judge's finding at [64]) there is a difference of substance in this context between "consistent with" and "compliant". Filetron says that a provision which does not deal in any way with a condition of the Regranted Consent is consistent with that condition because it does not contradict the condition, and the two are compatible. Filetron maintains that the requirement to be consistent with each other condition of the Consent is in substance a negative obligation not to contain anything which is contradictory to or in conflict with any condition. It is submitted that, in Order (3), "compliance with any such condition" means to act in accordance with such condition. Order (3) provides that the plan of management is to ensure that action occurs. Filetron says that condition 51A is a negative obligation, that merely requires the plan of management to be consistent with the other conditions, meaning that the plan of management must not contradict or be in conflict with any other condition; whereas Order (3) is a positive obligation, that requires the preparation of a plan of management required to be observed in order to ensure compliance with any such condition. Filetron says that not only must the plan be consistent with any numbers-limiting condition but it must ensure compliance with it, in other words ensure that persons act in accordance with them.
Filetron says that, as a matter of construction, to achieve the purpose of the plan of management identified in Order 3, the content of the plan must set out steps to be taken to ensure compliance with the condition regarding numbers of patrons; and it follows that some guidance as to that content was necessary to be included in the condition.
Filetron says that, contrary to the primary judge's reasoning (at [63]), the "reason" stated at the foot of condition 51 ("To ensure the site is appropriately managed") is different to ensuring compliance with the conditions 51 and 64 and, accordingly, is insufficient to demonstrate "compliance" with Order (3). Filetron says that the reason does not form part of the conditions; it is something required under s 88(c)(ii) of the Environment Planning and Assessment Regulation 2021(NSW).
As to [65] of the Second Judgment, Filetron says that the first paragraph of condition 51 limits the maximum number of people permitted in the cellar door building at any one time; and that that part of the condition is to be complied with after issue of the occupation certificate because, prior to then the cellar door building cannot be occupied. The second paragraph requires display of a sign stating the maximum number of persons that are permitted in the cellar door building. Filetron says that the third and final paragraph of the condition, referred to by his Honour at [65], namely "Details demonstrating compliance with this condition must be submitted to the 'Principal Certifier' prior to the issue of any Occupation Certificate" can only refer to details of compliance prior to issue of the occupation certificate; and can only mean compliance with the second paragraph regarding signage.
Filtron argues that, in any event, condition 51 does not require submission of details of the method for ensuring compliance, such as by a plan of management which ensures that compliance, noting that it does not mention the plan of management at all. Accordingly, Filetron says that the third paragraph of condition 51 does not ensure compliance with the limitation condition.

[22]

Innovate's submissions

It is appropriate, given the stance the Council took at first instance, here to consider their submissions on this ground separately.
Innovate notes that there appears to be no dispute that the amendments to conditions 51 and 64 constituted "the imposition of a condition or conditions requiring a limitation on the number of patrons permitted to attend the cellar door premises in accordance with page 25 of the Revised Statement of Environmental Effects".
Innovate says that Filetron's assertion of a failure substantially to comply with his Honour's order (3) involves an attempt to distinguish between: a plan of management dealing with guest numbers and guest management that is required to be consistent with a condition that, staff and security guards aside, the cellar door host no more than 14 groups of 14 persons per day; and a plan of management required to be observed in order to ensure that, staff and security guards aside, the cellar door hosts no more than 14 groups of 14 persons per day. Innovate says that this in turn is premised upon the assertion that compliance with a condition entails acting in accordance with that condition, whereas consistency with such a condition merely involves "a negative obligation" not to contain anything which is contradictory to or in conflict with the condition" (referring to Filetron's submissions at [65]).
Innovate says that any such distinction does not assist Filetron in the circumstances of this case. In particular, Innovate says that Filetron's argument fails to recognise that the plan of management contemplated by Condition 51A is required specifically to address guest numbers and employee numbers. Innovate says that it is not the case that the plan of management can simply be silent as to the number of people who may be permitted in the cellar door building, and on that basis, be described as being consistent with, in the sense of not contradicting, Condition 51.
Innovate says that it is plain from the text of order 3 that the level of abstraction or generality at which such a condition was to be expressed was a matter for the Council's own consideration and determination. Innovate says that, implicit in Filetron's assertion to the contrary, is the notion that it is not possible to impose a requirement by reference to a purpose sought to be served without also describing how that purpose is to be achieved; and Innovate contends that there is no support for such a proposition.
Innovate notes that the reason given for the imposition of Condition 51A was "[t]o ensure the site is appropriately managed". It is submitted that what is involved in the appropriate management of the site must be understood by reference to the Regranted Consent as a whole, including Condition 51, with the result that, as the primary judge observed, "[t]he objective of ensuring compliance with any condition in the Regranted Consent relating to the management of the site is therefore clearly expressed" (Second Judgment at [63]). Innovate accepts that the stated reason for the imposition of a condition does not form part of the condition itself but says that there is nothing to suggest that recourse may not be had to the stated reason as an aid in interpreting the relevant condition. Innovate says that the words "is consistent with the other conditions in this consent" must be understood in the light of the need "[t]o ensure the site is appropriately managed".
As to Filetron's criticisms of what is said in the Second Judgment at [65], Innovate says that it is uncontroversial that the first paragraph of Condition 51 is directed to the use of the cellar door building after issue of an occupation certificate, and that the second paragraph is capable of being complied with before such a certificate is issued. However, Innovate says that it does not follow that the third paragraph (which requires that "[d]etails demonstrating compliance with this condition … be submitted to the 'Principal Certifier' prior to the issue of any Occupation Certificate") is concerned only with compliance with the second paragraph. Innovate notes that the third paragraph speaks of "compliance with this condition", as distinct from some part of it, which Innovate argues suggests that the word "compliance" is intended to capture the manner in which Condition 51 is to be complied with, not merely prior to the issue of an occupation certificate, but also into the future. Innovate says that there is certainly nothing in the text of Condition 51 to exclude the possibility that "compliance" extends to future compliance; and if that is correct, then the primary judge did not fall into error in concluding that Condition 51 is "in, and of itself, sufficient to ensure compliance with the limitation condition" (Second Judgment at [65]).

[27]

Order

Accordingly, I propose the following order: 1. Dismiss the appeal with costs.
GLEESON JA: I agree with White JA for the reasons his Honour gives.
WHITE JA: This appeal concerns the construction of an instrument of delegation of certain of the functions of the Goulburn Mulwaree Council to its General Manager. The delegation was made pursuant to s 377 of the Local Government Act 1993 (NSW).
On 19 October 2016, the Council passed the following resolution (omitting parts not relevant to this appeal): "… 3. That in accordance with s377 Local Government Act 1993 Council delegates to the General Managers the powers, functions, duties and authorities as specified in the attached 'Delegation of Authority' for the General Managers with the following amendments: a. Schedule 3 ─ Clause 9.3 to be amended to read 'in respect of which there are unresolved submissions by way of objection have been made to the subject matter of the application.' …"
The "attached 'Delegation of Authority'" referred to in this resolution relevantly provided: "Goulburn Mulwaree Council… (a) revokes all delegations previously given by the governing body of the Council to the General Manager, and (b) delegates to the General Manager, in accordance with this instrument of delegation, the Functions specified or described in Schedule 1 subject to: (i) the exceptions specified or described in Schedule 2, and (ii) the conditions and limitations specified or described in Schedule 3 … 1 Definitions 1.1 In this instrument: Act means the Local Government Act 1993. Application means an application for an Approval made to the Council. Approval means approval, consent, licence, permission or any authorisation. EPA Act means the Environmental Planning and Assessment Act 1979. Function means a function of the Council within the meaning of the Act, and for the avoidance of doubt excludes: (a) the functions of the General Manager referred to in s335(1), (2) and (3) of the Act, (b) the role of the governing body referred to in s223 of the Act, (c) the role of the Mayor referred to in s226 of the Act. General Manager means the person appointed by the Council pursuant to s334 of the Act to the position of general manager, and a person appointed by the Council pursuant to s336 of the Act to act in the vacant position of general manager. Minister means a Minister of the Crown in right of the Commonwealth or New South Wales. 2 Commencement 1.2 [sic] The delegations conferred on the General Manager by this instrument of delegation commence immediately after the passing of this resolution Acknowledgement I, Warwick Bennett acknowledge receipt of, and understand, the terms of this instrument of delegation. … Schedule 1 Functions Delegated All Functions of the Council capable of being lawfully delegated under s377 of the Act. Note: This Schedule must be read in conjunction with Schedules 2 and 3. Schedule 2 Functions Not Delegated … Schedule 3 Conditions & Limitations Applying to Delegated Functions … 9. A Function may not be exercised under delegation if it involves determining an Application: 9.1 which the Council has resolved is to be determined by resolution of the Council, 9.2 in breach of a development standard applying to the carrying out of development the subject of the Application, 9.3 in respect of which there are unresolved submissions by way of objection have been made [sic] to the subject matter of the application, 9.4 in a manner that is inconsistent with the purpose, objectives or intended outcomes of any policy adopted or approved by resolution of the Council applying to the Application. … 11. 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."
By an Instrument of Sub-Delegation dated 25 November 2020, the General Manager purportedly sub-delegated to Mr Matthew Hedges, a Senior Development Assessment Officer, the following functions under the Environmental Planning and Assessment Act 1979 ("the EP&A Act" or "the Act"):
It was common ground in the Land and Environment Court and on appeal that these delegations in the Instrument of Sub-Delegation were subject to the limitations in cl 9 of Sch 3 to the Instrument of Delegation from the Council to the General Manager. The General Manager could not sub-delegate a power which had not been delegated to him.
One of the policies adopted by the Council relevant to the application of cl 9.4 in Sch 3 to the Instrument of Delegation was the Council's Development Assessment and Decision Making Policy. This had been adopted on 21 May 2013 and came into effect from 5 July 2013. It was a policy that related to delegations of Council functions under, amongst other sections, s 377 of the Local Government Act. That policy 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. …"
On 9 July 2021, the Council sent a notice to the appellant (Filetron) at its post office box in Camperdown. The notice stated that the Council had received a development application from Perception Planning Pty Ltd for a proposed development at 154 Wollombi Road, Marulan. The proposed development was described as "three 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". The notice stated that the plans and supporting information would be available during the notification period on the Council's website. It advised Filetron that if it wished to make a submission regarding the development application, it should ensure that its submission was received by the Council by close of business on 23 July 2021.
On 21 July 2021, Ms Stephanie Mowle, Business Manager Planning and Environment of the Council, wrote to a Mr Tim Bainbridge, who was advising Filetron, saying: "Good afternoon Tim I understand your concerns regarding receipt of the neighbour notification letter via Australia Post and can confirm an extension for the lodgement of a submission in relation to this DA can be made until Friday 30 July 2021. The additional documents you have requested will be made available on Council's website by lunch time tomorrow. Kind regards"
It can be inferred that Mr Bainbridge had expressed concern that, given the limited time of 14 days for making submissions, notice of the development application to Filetron was sent by post to its post office box, rather than by swifter means. The development application was lodged by Perception Planning Pty Ltd on behalf of the first respondent ("Innovate") which owns 154 Wollombi Road, Marulan. Filetron was the owner of adjoining land. It is clear that the Council had had prior dealings with Innovate and Filetron or their advisors in relation to an earlier development application.
On 21 July, Mr Bainbridge asked for documents he would like to review and, on Friday 23 July, Ms Mowle advised that those documents had been uploaded to the Council's website.
On 26 July, Mr Bainbridge thanked Ms Mowle and said that he did not get a chance to download the documents on Friday as he was out of the office and it now seemed that the DA was officially off exhibition and that the link had been removed. This was consistent with the Council's advice of 9 July that the plans and supporting information would be available on its website during the notification period.
On 26 July, Mr Hedges advised that the documents would be back on the website in the next half hour until the close of business on that day.
On 30 July 2021, Mr Bainbridge sent an email to the Council enclosing a submission for Filetron in relation to the development application.
Filetron's submission dated 30 July 2021 was signed by its director, Mr Cottle. Mr Cottle objected to the application. His primary objection was that the proposed development, which included the establishment of cellar door premises, would create a conflict with his rural use of his property. Access to the property at 154 Wollombi Road is through a road over Filetron's land over which Innovate has an easement, presumably a right of carriageway.
Mr Cottle noted that the proposed development relied on access through his property. He submitted, amongst other things, that it was common for up to 400 cattle to be located within the paddocks intersected by the right of way as part of Filetron's rotational grazing regime and that sharing the access to the extent proposed by the application would create a significant land use conflict. He also submitted that the application should be considered in conjunction with an earlier development application that had been submitted (the details of which were not before the Court) which, he said, indicated that Innovate's intention was to obtain consent for an accommodation facility that provided luxury amenities and services to support accommodation for the benefit of guests, which would be contrary to the zoning for the property.
There is no doubt that in ordinary parlance this was a submission by way of objection to the application.
The minimum period prescribed by cl 7 of Sch 1 to the EP&A Act for the public exhibition of Innovate's development application was 14 days. Clause 15 of Sch 1 to the EP&A Act provides that: "15 Submissions during exhibition period (1) Submissions with respect to a plan, application or other matter may be made during the minimum period of its public exhibition under this Part. (2) If the plan, application or other matter is placed on public exhibition for a specified longer period, submissions may be made during that specified longer period."
Clause 15 does not say that submissions may only be made in that period. Section 4.15(1)(d) requires a consent authority to consider submissions made in accordance with the Act or the regulations. It does not prohibit the consent authority from considering submissions not so made. There is nothing in the Act that would preclude the Council from taking into account an objection made outside the specified minimum period. Authorities relied on by the respondents in relation to the position of objectors to an application for designated development (Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46; Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66) are not to the point. They are largely influenced by different and detailed provisions including the definition of an "objector" to "proposed designated development" as being a person who has made a submission under Sch 1 (s 1.4) and the grant of a right of appeal to objectors to designated development (s 8.8).
In this case, two days before the expiry of the prescribed minimum period for making submissions, the Council had advised Filetron's advisor that its submission could be made up to 30 July 2021. Its submission was made within the period specified. The Council would have denied Filetron procedural fairness if it had not had regard to its submission.
The Instrument of Delegation did not confine the reference to "submission by way of objection" to an objection lodged within the minimum specified period under the EP&A Act. I agree with Ward P that Filetron's objection was a submission by way of objection within the meaning of cl 9.3. In any event, it was an "objection" resulting from the neighbour notification/exhibition process within the meaning of the Council's Development Assessment and Decision Making Policy referred to at [6] above.
In my view, that submission was "unresolved" for the purposes of cl 9.3 at the time of Mr Hedges' purported determination of the application.
Section 4.15(1) of the EP&A Act relevantly provides: "4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and … that apply to the land to which the development application relates, (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." (Emphasis added)
Mr Hedges had regard to at least the matters in s 4.15(1)(a), (b) and (c) in purportedly determining the development application. In doing so he considered Filetron's submission. On 6 September 2021, he prepared what was called the "Assessing Officer's Development Application Assessment Report". In it he stated, amongst other things:

that the proposed use was permissible within the zoning with the exception of a proposed commercial kitchen/restaurant use;
that the use as proposed did not present a significant land use conflict. The proposed uses would not generate a significant amount of noise or smell and the public integration with the site was to be controlled by appointment only visits to the proposed cellar door, which would be capped by a condition of consent to four groups of 14 persons per day;
that it would not be unreasonable for the applicant to have expected that the use of the easement would allow them to pursue all activities associated with a rural property that would include minor traffic generating uses permissible with consent and that whilst there would be an increase in traffic over the right of way, that would not be an intensification of the use for which the right of access was granted and remained consistent with the use the right of access was granted for;
the two development applications lodged by Innovate were not linked and the proposed tourist and visitor accommodation only related to the existing residential building and as such did not give Council or the applicant scope to apply the use to the development application in question.

The assessment report (which is unsigned) concluded: "Having regard to the matters for consideration under s 4.15 of the Environmental Planning and Assessment Act 1979, it is considered that the proposed development is satisfactory, therefore the application is recommended for approval subject to conditions. I hereby determine this development application pursuant to s 4.16 of the Environmental Planning and Assessment Act 1979 by the granting of consent subject to conditions."
The development consent was granted on 15 September 2021 subject to conditions. It was signed by Mr Hedges as Senior Development Assessment Officer for and on behalf of the Council. Curiously, in the notice of determination of the development application, Mr Hedges stated: "No submissions were received during the course of the assessment".
Contrary to this statement, Filetron's objections were received, albeit outside the minimum period prescribed by cl 7 of Sch 1 to the Act. They were considered in the course of the assessment.
Section 4.16 of the EP&A Act relevantly provides: "4.16 Determination (1) General A consent authority is to determine a development application by - (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application."
Section 4.15 as relevantly quoted above sets out the matters that a consent authority is to take into account, so far as they are relevant, "in determining a development application".
The Act provides for a single process a council is to take in determining a development application, part of which is an evaluation of the application. This conclusion is consistent with decisions of this Court in Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [265]; Bankstown City Council v Zraika; Roads and Maritime Services v Zraika (2016) 94 NSWLR 159; [2016] NSWCA 51 at [94]-[98] and KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216 at [28]-[30], [96].
Mr Hedges' assessment report was such an evaluation which led to his determination to approve the application on conditions.
There was no antecedent resolution of Filetron's objections.
But unless there had been an antecedent resolution of Filetron's objections, Mr Hedges had no authority to determine the development application.
It may readily be accepted that one way in which an objection is resolved is by its being upheld or rejected; but only where that is done by a person with authority to do so.
The consideration of an objection, and the making of a decision as to its merits that would resolve the objection, are steps separate from the act of making the determination. So much is reflected in the structure of ss 4.15 and 4.16. The act of making the determination is the final step in the process of "determining" the application. The consideration of the objection and the making of a decision as to its merits was part of the process of determining the application. The limitation on the Function delegated to the General Manager under cl 9.3 was on the General Manager's "determining" the application, which reflects the language of s 4.15.

Parties

Applicant/Plaintiff:

Filetron Pty Ltd

Respondent/Defendant:

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

Legislation Cited (8)

Environment Planning and Assessment Regulation 2021(NSW)

Protection of Environment Operations Act 1997(NSW)

(Interpretation Act 1987(NSW)

Environmental Planning and Assessment Act 1979(NSW)

Land and Environment Court Act 1979(NSW)

Interpretation Act 1987(NSW)

Local Government Act 1993(NSW)

Water Management Act 2000(NSW)

Cases Cited (23)

tion 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)

Solicitors: CML Lawyers Pty Ltd (Appellant) Shaw Reynolds (First Respondent) Maddocks Lawyers (Second Respondent) File Number(s): 2023/00148061 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2023] NSWLEC 45; [2023] NSWLEC 93 Date of Decision: 27 April 2023; 11 September 2023 Before: Robson J File Number(s): 2021/00353279

Per White and Gleeson JJA: (2) The limitation on the delegated function, in respect of unresolved objections, applied to the determination of the application as a whole (which is a singular process including acts of considering submissions). There was no antecedent resolution of Filetron's objection, such that the delegate's authority to determine the application was restricted. The objection could not be resolved unilaterally by the delegate, but rather required the delegate to persuade an objector to withdraw it, to persuade the proponent to withdraw the application, or to bring contending parties to an agreement, such as by the imposition of conditions on a consent to which both or all agreed. The argument against this construction is a "flood-gates" argument that rarely is accepted: [237] - [246]. Phelps v Western Mining Corporation Ltd [1978] FCA 50; 20 ALR 183 at 189 (Deane J) cited.

Cited By (1)

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

JUDGMENT

WARD P: This appeal arises out of a dispute as to a development consent granted on 15 September 2021 for a residential and rural development of land in Marulan, New South Wales (the Property) which is owned by the first respondent, Innovate Partners Pty Limited (Innovate), as trustee of the Banton Family Trust 2.
In its development application (DA) lodged on 8 January 2021, Innovate sought consent for the development of three proposed buildings, identifying those as including "a secondary dwelling, cellar door premises, farm building, studio, swimming pool and outbuilding". Consent was also sought for the demolition of existing structures and non-native vegetation removal.
Mr Matthew Hedges, a Senior Development Assessment Officer, acting as delegate of the second respondent, the Goulburn Mulwaree Council (Council), issued a notice of determination on 15 September 2021, granting development consent DA/0288/2021 (Consent) for the demolition of the existing secondary dwelling and farm buildings and the construction of a secondary dwelling, cellar door premises, farm buildings, agricultural produce industry (a wine and olive production) and swimming pool complex (but not for the proposed third building which had been intended as a commercial kitchen).
The appellant, Filetron Pty Limited (Filetron), is the owner of adjacent land to that of the first respondent in Marulan. Filetron's land is used for grazing cattle associated with Filetron's cattle breeding and fattening operations. Access from the public road to the proposed development is via a right of access across the adjoining farming and grazing land owned by Filetron. A number of objections were raised by Filetron in relation to the proposed development in a letter from its town planning consultant sent to the Council on 30 July 2021, after the close (on 23 July 2021) of the advertised public exhibition period. The objections included complaint as to the impact of the proposed development on Filetron's cattle grazing operations. Further correspondence was forwarded by Filetron to the Council on 8 September 2021.
After the Consent was issued, Filetron commenced Class 4 judicial review proceedings in the Land and Environment Court, challenging its validity. Filetron sought a declaration that the Consent was invalid and an order quashing the delegate's determination of the DA. Ultimately, that challenge was pressed in the Land and Environment Court on two grounds (see the amended summons filed on 9 November 2022): first, that the Council's delegate had failed properly to consider certain matters under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and/or constructively failed to determine the DA under s 4.16 of the EP&A Act; and, second, that the Council's delegate did not have the authority of the Council to determine the DA.
In the Land and Environment Court proceedings, the Council filed a submitting appearance in relation to the first of those grounds (cognisant of the Hardiman principle (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at 35-36; [1980] HCA 13)), only making submissions as to the proper construction and interpretation of its policies and delegations (supporting the proposition that its delegate was properly authorised to grant development consent to the DA).
The primary judge held that the Council's delegate did have authority to determine the DA but that, in so doing, he had omitted consideration of certain statutorily mandated matters and hence had constructively failed to determine the application (see Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 (First Judgment) at [3]). The primary judge considered it appropriate to make orders for the conditional validity of the Consent in accordance with s 25B of the Land and Environment Court Act 1979 (NSW) (LEC Act) (First Judgment at [3]). Those orders wholly suspended the operation of the Consent and specified the terms of re-grant of the Consent with alterations, compliance with which would validate the Consent.
On 12 May 2023, pursuant to s 4.61 of the EP&A Act, the Council, acting by another delegate (Mr Scott Martin, Director Planning and Environment), issued a notice of determination for the re-grant of development consent DA0288/2021 (the Regranted Consent).
On 24 May 2023, the Council filed a notice of motion in the Land and Environment Court below seeking orders pursuant to s 25C(2) of the LEC Act declaring that the Consent (DA0288/2021) had been validly regranted. Filetron opposed the orders sought in the 24 May 2023 notice of motion. Filetron emphasises that, as the moving party, the Council bore the onus of satisfying the Court that there had been substantial compliance with the terms specified by the primary judge.
On 11 September 2023, the primary judge determined the 24 May 2023 notice of motion on the papers (written submissions having been filed by each of the parties), finding that the terms specified under s 25B of the LEC Act had been substantially complied with and that the Consent had been re-granted with alterations specified in the First Judgment (Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2023] NSWLEC 93 (the Second Judgment)). The primary judge made orders under s 25C(2) of the LEC Act validating the re-grant of the Consent and revoking the suspension of the Consent.
By amended notice of appeal filed on 27 September 2023, Filetron appeals from that part of the First Judgment dismissing ground 2 of its amended summons (i.e., the ground challenging the authority of the Council's delegate to make the determination) and the whole of the decision in the Second Judgment. A further amended notice of appeal was filed with leave at the commencement of the hearing of the appeal on 6 December 2023, the further amendment including reference to the primary judge's costs orders, in the event of success on the appeal.
On the appeal, Filetron abandoned various of its initial grounds of appeal in relation to the First Judgment (namely, grounds 1(c), 1(d), 1(f)(i)) and pressed only one ground of challenge to the Second Judgment (ground 3 - that being in substance a complaint that the Regranted Consent does not "substantially comply" with the Orders from the First Judgment).
For the reasons set out below, the appeal should be dismissed with costs.