Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2)

[2023] NSWLEC 93

Land and Environment Court

New South Wales

Medium Neutral Citation:

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council (No 2) [2023] NSWLEC 93

Hearing dates:

On the papers (written submissions filed 16, 28, 30 June and 7 July 2023)

Date of orders:

11 September 2023

Decision date:

11 September 2023

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [69]

Catchwords:

Judicial Review — Orders previously made in Class 4 proceedings for conditional validity of development consent — Declaration as to validity now sought under s 25C of the Land and Environment Court Act 1979 (NSW) — Statutory construction of the scheme for validating consent — Court orders substantially complied with — Declarations made — Costs reserved

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.61

Interpretation Act 1997 (NSW), ss 30, 33

Land and Environment Court Act 1979 (NSW), ss 25A, 25B, 25C, 25D, 25E

Local Government Act 1993 (NSW), ss 21, 22, 377

Cases Cited:

Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317

Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4

Ex-Christmas Islanders Association Inc v Attorney-General (Cth) (2005) 149 FCR 170; [2005] FCA 1867

Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45

Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7

Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333

McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835

Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249; [2018] FCAFC 110; (2018) 162 ALD 427

Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154

Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 99

Category:

Principal judgment

Parties:

Filetron Pty Ltd (ACN 054 309 009) (Applicant)
Innovate Partners Pty Ltd (ACN 131 941 145) atf Banton Family Trust 2 (First Respondent)
Goulburn Mulwaree Council (Second Respondent)

Representation:

Counsel:
J Lazarus SC with M Seymour (Applicant)
J Hutton SC with G Ng (First Respondent)
A Hammond (Second Respondent)

Solicitors:
CML Lawyers Pty Ltd (Applicant)
Shaw Reynolds Lawyers (First Respondent)
Maddocks Lawyers (Second Respondent)

File Number(s):

2021/00353279

Publication restriction:

Nil

Judgment

1. Following a successful challenge by Filetron Pty Ltd (‘Filetron’) to the validity of a development consent DA0288/2021 granted by Goulburn Mulwaree Council (‘Council’) on 15 September 2021 (‘Consent’), I made orders under s 25B of the Land and Environment Court Act 1979 (NSW) (‘Court Act’) suspending the operation of the Consent and specifying the terms the compliance with which would validate the Consent: Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 (‘primary judgment’).

2. By notice of motion filed 24 May 2023, Council seeks various orders under s 25C(2) of the Court Act including a declaration that, following actions taken by Council to satisfy the orders made in the primary judgment, the Consent has been validly regranted.

3. For the reasons that follow, which assume a familiarity with the factual background detailed in the primary judgment, I am satisfied that the terms specified under s 25B of the Court Act have been substantially complied with and that the development consent has been regranted with alterations specified in the primary judgment, as required by s 4.61 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).

Background

4. The orders made pursuant to s 25B of the Court Act on 27 April 2023 are as follows:

“(1) The whole of development consent DA0288/2021 dated 15 September 2021 issued by Goulburn Mulwaree 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.

(4)   Within 21 days, Goulburn Mulwaree Council will carry out the consideration set out 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.

…”

(collectively, ‘Court Orders’)

5. On 12 May 2023, Council, acting via a delegate, Scott Martin, Director of Planning and Environment, issued a notice of determination “for and on behalf of [Council]” for the regrant of the development consent pursuant to s 4.61 of the EPA Act (hereinafter, for convenience only, ‘Regranted Consent’). The circumstances giving rise to the regrant were recorded in the notice of determination, which provides:

“…

Regrant of Determination: This regrant of consent is determined pursuant to s 4.61 of the Act following orders of the Land and Environment Court made on 27 April 2023. It is determined under delegated authority by regranting consent subject to the conditions listed in Schedule 1 on 12 May 2023.

….

REASON FOR THE DECISION:

Development consent granted on 15 September 2021 was the subject of a Class 4 appeal to the Land & Environment Court of NSW. Court orders issued on 27 April 2023 suspended the development consent pursuant to s 25B of the Land and Environment Court Act 1979 (NSW), and required Goulburn Mulwaree Council to consider an alteration to the consent pursuant to s 4.61 of the Act in relation to specified conditions. It has been determined that it is appropriate to regrant the consent with conditions of the kind specified.

…”

6. The Regranted Consent contains an alteration to condition 51 of the Consent, and includes a new condition 51A:

“ALTERED CONDITION UPON REGRANT OF CONSENT

51.   Maximum capacity

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.

A sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in this Notice of Determination that are permitted in the cellar door building.

Details demonstrating compliance with this condition must be submitted to the ‘Principal Certifier’ prior to the issue of any Occupation Certificate.

(Reason:   To ensure capacity is managed as approved)

NEW CONDITION IMPOSED UPON REGRANT OF CONSENT

51A. Plan of management

Prior to the issue of any Occupation Certificate the person having the benefit of this Notice of determination must prepare a plan of management and provide a copy to the ‘Principal Certifier’. The Plan of Management must include the following:

•   The hours of operation.

•   Guest Numbers.

•   Guest management.

•   Employee Numbers.

•   Arrangements for the evacuation of patrons during extreme weather events and water inundation of the access track.

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)”

7. In the notice of motion the subject of this judgment, Council seeks the following relief:

“Pursuant to section 25C(2) of the Land and Environment Court [Act] 1979, that the Court:

1   Declares that the terms of regrant of the consent with alterations as set out in the orders made by the Court on 27 April 2023 in the proceedings, have been complied with.

2   Declares that development consent DA0288/2021 dated 12 May 2023 has been validly regranted.

3   Declares that the suspended development consent DA0288/2021 dated 15 September 2021 is revoked.

4   Revokes Order 1 of the orders made by the Court on 27 April 2023.

…”

8. The relief sought by Council is consented to by Innovate Partners Pty Ltd atf Banton Family Trust 2 (‘Innovate’) but opposed to by Filetron, who asserts that the actions purportedly taken by Council to regrant the Consent fail to substantially comply with Orders (3) and (4) of the primary judgment contrary to the requirements in s 4.61 of the EPA Act such that an order under s 25C(2) of the Court Act is not available.

9. Council reads the affidavit of its solicitor, Blake James Dyer, affirmed 24 May 2023. Mr Dyer deposes to the facts summarised above and annexes the Regranted Consent. Council also provides, by way of an annexure to its written submissions filed 28 June 2023, the “Instrument of Sub-Delegation to Scott Martin, Director Planning and Environment”, signed on 24 November 2020 by Warwick Bennett, General Manager of Council, upon which Mr Martin relied to determine the Regranted Consent.

Statutory Framework

10. Sections 25A to 25E of the Court Act, alongside with s 4.61 of the EPA Act, provide for the conditional validity of consents that would otherwise be declared invalid following successful judicial review proceedings. Relevant parts of these provisions are recited below. Although contained in separate statutes, these provisions constitute a single scheme and should be read together: Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [38].

11. As considered in the primary judgment at [136]-[141], s 25B of the Court Act empowers the Court to make orders suspending a defective consent and specifying the steps which must be taken to enable its validation. While not directly relevant to this notice of motion, for context, it provides:

25B   Orders for conditional validity of development consents

(1)   The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order—

(a)   suspending the operation of the consent in whole or in part, and

(b)   specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)   Terms may include (without limitation)—

(a)   terms requiring the carrying out again of steps already carried out, or

(b)   terms requiring the carrying out of steps not already commenced or carried out, or

(c)   terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

12. Section 4.61 of the EPA Act empowers a consent authority, upon satisfaction of certain conditions, to revoke and regrant a development consent to which an order of suspension under s 25B of the Court Act applies, and relevantly provides:

4.61   Revocation or regrant of development consents after order of Court

(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.

(4)   No preliminary steps need be taken with regard to the regrant of a development consent under this section, other than those that are required to secure compliance with those terms.

…

13. Compliance with s 4.61 of the EPA Act subsequently enables a consent authority to apply to the Court pursuant to s 25C of the Court Act for declarations and orders with respect to a development consent regranted with (or without) alterations. The provision is in the following terms:

25C   Orders for validity of development consents

(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order—

(a)   declaring that the terms have been substantially complied with, and

(b)   declaring that the consent is valid, and

(c)   revoking the order of suspension.

(2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 4.61 of the Environmental Planning and Assessment Act 1979, the Court may make an order—

(a)   declaring that the terms have been complied with, and

(b)   declaring that the development consent has been validly regranted, and

(c)   declaring that the suspended development consent has been revoked, and

(d)   revoking the order of suspension.

14. The parties have provided detailed written submissions which raise, in my view, three interrelated issues for consideration in determining whether to make orders pursuant to s 25C(2) of the Court Act. These issues, which broadly relate to the availability of Council’s power to regrant the Consent under s 4.61 of the EPA Act (and the resulting effect on the validity of the Regranted Consent), are:

1. Whether Council was required to first revoke the Consent before being able to regrant it under s 4.61 of the EPA Act? (‘Issue 1’)

2. Whether Council was able to comply with Order (3) of the primary judgment via a delegate so as to enliven the operation of s 4.61 of the EPA Act? (‘Issue 2’)

3. Whether conditions 51 and 51A are sufficient to effect substantial compliance of the Regranted Consent with the Court Orders? (‘Issue 3’)

Consideration

Issue 1: revocation of the Consent

Submissions

15. With respect to Issue 1, Filetron submits that ss 4.61(2) and (3) of the EPA Act precondition the regrant of a consent (suspended by order under s 25B of the Court Act) upon the revocation of the original suspended consent. In circumstances where Council has failed to adduce evidence that the Consent has been revoked, Filetron submits that this requirement has not been satisfied and, therefore, the power to regrant the Consent was never available to Council. As a result, the Regranted Consent is defective, and the Court would not make a declaration pursuant to s 25C(2) of the Court Act that it has been validly regranted.

16. Innovate, on the other hand, submits that the powers to revoke and regrant may be exercised simultaneously within a single instrument, and that Council had in fact done so in the Regranted Consent by incorporating statements effectively conveying that the Consent had been revoked (at [5] above). This course of action is said to be supported by s 4.61(4) of the EPA Act which relieves a consent authority from having to take any formal steps to effect the revocation and/or the regrant of a suspended consent. Innovate’s position therefore appears to be that the grant of a new consent revokes the earlier Consent by implication.

17. Filetron disputes this contention and submits that in circumstances where the functions of revoking and regranting a consent are clearly delineated under s 4.61 of the EPA Act, they must be exercised separately. In this regard, Filetron emphasises that there is a distinction between the power to revoke under s 4.61(2), and the power to regrant a revoked consent under s 4.61(3). In Filetron’s submissions, the fact that s 4.61(3) of the EPA Act expressly provides for the revocation and subsequent grant of a new consent militates against Innovate’s position that a regrant can automatically, or by implication, revoke the original consent. On the basis of its construction of the provision, Filetron submits that revocation of a suspended consent constitutes a jurisdictional precondition to the exercise of the power to regrant a consent.

18. As a result of Council’s failure to revoke the Consent, Filetron submits that Council has not lawfully exercised its power under s 4.61 of the EPA Act and thereby failed to comply with the Court Orders.

19. Council did not address this issue.

Findings

20. The determination of Issue 1 involves consideration of Council’s conduct and invites an exercise of statutory construction of the applicable statutory provision. In this regard, I rely upon the well-established principles that the words of a legislative provision must be read by reference to considerations of the text, context and purpose of the underlying statute, and having regard to the mischief to which it was directed: s 33 of the Interpretation Act 1987 (NSW) (‘Interpretation Act’); Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4 at [23] per Kiefel CJ, Gageler and Keane JJ. Moreover, the context is to be understood in the widest sense and considered in the first instance rather than merely when an ambiguity arises.

21. It is therefore appropriate to briefly consider the statutory background in which s 4.61 of the EPA Act operates. As referred to at [10] above, s 4.61 operates in conjunction with ss 25A to 25E of the Court Act as part of a scheme directed to the validation of consents that would otherwise be invalid. The reach of a court’s orders pursuant to s 25C(2) complements the power vested in a consent authority to regrant a consent by operation of s 4.61 of the EPA Act. Properly understood, the scheme provides for judicial supervision of a consent authority’s steps in rectifying a consent. To the extent necessary, a construction of s 4.61 consistent with the overall scheme, and which promotes its effective application is to be preferred to one that would not: s 33 of the Interpretation Act.

22. Section 4.61 of the EPA Act provides a consent authority with two options in relation to a development consent that has been suspended under s 25B of the Court Act: revocation under subs (2); or, and only if the terms of a court’s orders have been substantially complied with, regrant under subs (3). With respect to the second alternative, subs (3) defines “regrant” as the outcome following from a revocation and grant of a new development consent with such alterations to the revoked consent as necessary. I note pre-emptively that I consider the processes respectively contemplated by s 4.61(2) for a mere revocation of a suspended consent, and by s 4.61(3) for a revocation intended to be followed by the grant of a new consent, to be independent.

23. The intent of s 4.61(3) is, understandably, that there would not be two consents operating concurrently in relation to one development application. A ‘suspended’ consent remains a consent. Although trite, when a consent is suspended or revoked, the development application to which it applies effectively remains undetermined and the regrant effects that determination. It is therefore clear that a consent authority is required to revoke a suspended consent to be able to grant a new one. The real issue in these proceedings is whether these functions can be exercised concurrently, or by implication, or if they are required to be exercised separately. As will be seen, I favour the first view.

20. Although not so raised, Filetron’s position seems to be that the words “revoke the development consent … and grant a new development consent” (emphasis added), which appear in subs (3) are to be read disjunctively, with the effect that these functions are separate and must be exercised accordingly. I do not accept this construction and the literal reading of the provision that it purports to effect. While I find that there must be a revocation of the Consent to effect a regrant, I consider the statutory language to be permissive of a simultaneous revocation of the instrument being regranted. My reasons follow.

21. First, and although not determinative, I note that the word “and” is ordinarily used conjunctively and should be given its usual meaning: Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249; [2018] FCAFC 110 at [27], [36]. Further, read as a whole, subs (3) indicates that both powers are to be exercised to effect the outcome of a regrant. This context favours giving a cumulative effect to the word ‘and’, such that both powers are part of one process and may be exercised concurrently. Further, there is no contrary indication in the statutory wording suggesting that revocation and regrant cannot effectively be undertaken by one instrument.

22. This construction is supported by subs (4) which provides that “no preliminary steps need be taken with regard to the regrant …”. The lack of formality by which the process of regrant is to be undertaken weighs in favour of reading s 4.61 of the EPA Act as not requiring a discrete and anterior action to revoke a suspended consent.

23. Finally, reading the provision as allowing Council to remedy a suspended consent (which was necessarily found to be otherwise invalid thereby triggering s 25B of the Court Act) by revoking it and granting a new consent simultaneously is, in my view, consistent with the purpose of the scheme and the terms of s 4.61 of the EPA Act. The purpose of the scheme is to facilitate the rectification of consents that would otherwise be held invalid and to provide for curial supervision of that process, and I consider the construction proposed on the present facts to provide a practical route to do so.

24. Further, while the requirement to revoke an earlier suspended consent arises from the undesirability of having multiple consents running in relation to the same development application, that risk is equally mitigated where, in the circumstances, the Consent was impliedly revoked by a regrant. Overall, to hold otherwise and prefer Filetron’s construction would impose an additional layer of formality not required by the provision and would defeat the purpose of a scheme aimed at alleviating the administrative inconvenience, delay and costs involved in having to reapply for a development consent declared invalid.

25. In this regard, I accept Innovate’s submission that the mere omission of an express reference to the revocation of the Consent does not detract from that which is plainly conveyed by the terms of the Regranted Consent. This is particularly so in the context of a judicially supervised scheme whereby a court is able to assess on a case-by-case basis whether an instrument successfully revokes and regrants a consent. In the present case, and as referred to above, in circumstances where the context for the Regranted Consent was expressly stated, I consider this to be sufficient to convey that the earlier Consent was being revoked to make way for the Regranted Consent on terms to reflect the Court Orders.

26. Finally, to support its position that a revocation and a regrant must be exercised separately, Filetron placed some reliance on Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 99, where Biscoe J adjourned the hearing of a notice of motion seeking orders pursuant to s 25C(2) of the Court Act in circumstances where the parties had apparently agreed that an adjournment was appropriate in consideration that Penrith City Council had not discretely revoked four suspended consents the subject of the regrant. The brief judgment is, however, of little precedential value to the construction of s 4.61 of the EPA Act in circumstances where it was delivered ex tempore and the parties consented to the adjournment and the judgment merely gave effect to that agreement without detailed consideration of the operation of the statutory scheme. Further, the judgment did not provide context to what the parties agreed to be Penrith City Council’s failure to revoke the impugned consents, including whether it had sought (or intended) to revoke the suspended consents in the instrument of regrant. It is therefore difficult to apply the outcome then reached to this present matter.

27. In addition, and in any event, I note that the presumption of regulatory applies to support Innovate’s position that Council has in fact validly revoked the Consent. This presumption has been described as being a rule of very general application that “where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”: McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 (‘McLean Bros’) at 850 per Griffith CJ. McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 clarified at 164 its operation in the public law context:

“Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.”

32. It has been relevantly considered capable of applying to concerns over whether a development consent has been granted.

33. The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: McLean Bros at 849-51 per Griffith CJ. In deciding whether it is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances: Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 (‘Hill v Woollahra’) at [52]. A relevant inference is that, so long as the public authority involved does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: Hill v Woollahra at [53]. It is then a question of fact whether the substance of the question has been addressed.

34. In my view, the presumption can be invoked in the present circumstances to demonstrate that the Consent has been revoked. I consider that there has been a revocation implicit in Council's decision. It is clear from the words in the Regranted Consent that the earlier consent would not endure, and that the power reposed in Council under s 4.61 of the EPA Act was being relied upon. This is because the instrument is expressly stated to be a “regrant” determined pursuant to s 4.61 of the EPA Act, following a suspension under s 25B of the Court Act, and effecting alterations in accordance with the Court Orders. In circumstances where a regrant under s 4.61(3) is expressly defined as following on from a revocation, it follows that this particular instrument granting a new development consent would, by the same measure, revoke the earlier Consent if that had not already been done. It is therefore clear that both powers were being exercised. The decision to determine the Regranted Consent is only consistent with there being a prior revocation.

35. I also note that it has not been shown that the requisite formalities for the regrant have not been complied with by Council.

Issue 2: delegation to Mr Martin

Submissions

36. With respect to Issue 2, Filetron submits that compliance with the Court Orders is the trigger for the regrant of a consent under s 4.61 of the EPA Act (and therefore for an application under s 25C(2) of the Court Act) and emphasises that Orders (3) and (4) of the primary judgment were directed at “Goulburn Mulwaree Council”. Despite this, Filetron emphasises that the consideration of the alteration to the Consent conditions required by the Court Orders appears to have been effected by Mr Martin allegedly acting on behalf of Council pursuant to an instrument of sub-delegation. Although conceding that Mr Martin had power under the instrument of delegation to regrant the Consent under s 4.61 of the EPA Act, Filetron submits that securing compliance with court orders is a non-statutory function that cannot be delegated under s 377 of the Local Government Act 1993 (NSW) (‘LG Act’) and had to be performed by Council itself. As such, Council failed to satisfy the Court Orders which would have validated the Regranted Consent. To the extent that failure to substantially comply with the Court Orders is raised in this ground, there is an overlap between Issue 2 and 3.

37. Innovate and Council both oppose Filetron’s position. Council refers to the instrument of sub-delegation to Mr Martin which it notes includes, inter alia, all the functions of Council as a consent authority associated with the determination of development applications, including the authority to revoke and regrant a development consent to which an order of suspension applies under s 4.61 of the EPA Act.

38. As for the legality of the sub-delegation, Council records that s 377 of the LG Act specifically allows for the delegation to the general manager or any other person of any of Council’s functions “under this or any other Act”.

39. Innovate provided an analysis of the statutory provisions governing the delegation of powers within the context of local government in order to address Filetron’s submission that Mr Martin could not have performed the function of complying with the Court Orders. In particular, Innovate records that the term “function” in s 377 of the LG Act is defined in the Dictionary to the LG Act to include a “power, authority and duty” under a statute. On this basis, it submits that the taking by a consent authority of steps to satisfy statutorily prescribed conditions enlivening the power in s 4.61 of the EPA Act is itself a function under an Act.

Findings

40. In my view, the delegation of authority to act to comply with the Court Orders was available and valid and does not raise any concerns as to the validity of the Regranted Consent.

41. Filetron’s submission that compliance with Orders (3) and (4) of the primary judgment was non-delegable by Council, which I do not accept, appears to presume that the power to be delegated was that of complying with the Court Orders. I do not consider this position to be correct. Rather, the delegation concerned the performance of the functions under s 4.61 of the EPA Act.

42. Sections 21 and 22 of the LG Act provide that Council has the “functions” conferred or imposed on it under the LG Act or “under any other Act or law”. Relevantly, as Innovate submits, the term “function” is defined in the Dictionary to the LG Act to include a “power, authority and duty”. As for the meaning of “under an Act”, a decision made in pursuance of an enactment will generally be regarded as being made under that enactment: Ex-Christmas Islanders Association Inc v Attorney-General (Cth) (2005) 149 FCR 170; [2005] FCA 1867 at 190. Section 377 then allows for the delegation, by resolution of a council, of “any of [its] functions under this Act or any other Act” (with specified exceptions which are not presently relevant).

43. The relevant function of Council in this case relates to the consideration of alterations to the suspended Consent suggested by Order (3) of the primary judgment. The source of power to do so is located within s 4.61 of the EPA Act, and in particular subs (3), which provides that, upon substantial compliance with the terms imposed by a court, a consent authority may “… grant a new development consent with such alterations to the revoked consent as [it] thinks appropriate having regard to the terms themselves and to any matters arising in the course of complying with the terms.”

44. It is apparent, and seems to be accepted by the parties, that the power to act in respect of s 4.61 of the EPA Act is a “function” under an enactment and is therefore capable of being delegated under s 377 of the LG Act. Noting that the power in s 4.61(3) is conditional upon substantial compliance by a consent authority with the terms imposed by a court in making an order under s 25B of the Court Act, it follows in my view that the function under s 4.61(3) necessarily extends to taking such steps as are necessary to comply with the Court Orders. To that extent, I reject Filetron’s contention that compliance with the Court Orders cannot be delegated under s 377 of the LG Act. It would be inimical to the valid exercise of that function which expressly requires consideration of and compliance with court orders. In this regard, and for completeness, I note that I reject the dichotomy suggested by Filetron between a power to comply with the Court Orders and the power to perform a function under s 4.61. This is because court orders are not a source of power but rather an obligation, the power to comply with which is contained in s 4.61.

45. Put simply, I consider that compliance with Order (3) of the primary judgment which requires (at least) that Council considers an alteration to the Consent, involved the exercise of a power or authority (or the performance of a duty) “under an Act”. Moreover, as I accept that the power conferred by s 4.61 of the EPA Act is a function under an Act, I consider the actions (or steps) taken to enliven the power (in s 4.61) to be a “function” under an Act.

46. Since compliance with Orders (3) and (4) of the primary judgment is required to enliven the power in s 4.61 of the EPA Act, I find that it was a function incidentally capable of being lawfully delegated to Mr Martin pursuant to s 377 of the LG Act.

Issue 3: substantial compliance with the Court Orders

Submissions

47. With respect to Issue 3, Filetron submits that condition 51A of the Consent (at [6] above), which requires that a plan of management be prepared to address matters including “guest numbers” and “guest management”, falls short of “substantially” complying with Order (3) of the primary judgment which it claims requires inclusion of the objective to be achieved by the plan of management, namely to ensure compliance with any condition limiting the number of patrons permitted to attend the cellar door premises. The basis of this submission is an alleged failure by Council to specify in condition 51A that the plan of management is prepared specifically for the purpose of ensuring compliance with a condition limiting capacity at the cellar door premises required to be imposed by Order (3) of the primary judgment.

48. While acknowledging that condition 51A presently requires the plan of management to be consistent with the other conditions of the Regranted Consent, Filetron submits that this is qualitatively different from “securing” compliance with other conditions in that instrument. As a result, in its current form, condition 51A would allow for a plan of management, the observance of which would not ensure compliance with the other limitation conditions in the Consent, including condition 51. In addition, Filetron submits that contrary to best industry practice, condition 51A provides no facility for deficiencies in the plan of management to be remedied by amendment, and that this reflects Council’s lack of intent to effect “substantial compliance” with the Court Orders.

49. Unsurprisingly, Innovate and Council both dispute these contentions. Innovate’s position is that there is only a semantic difference between explicitly requiring compliance with a condition and requiring consistency with other conditions in the Regranted Consent, including that condition. In this regard, Innovate submits that consistency with condition 51, understood as “not contemplating contraventions of” that condition, is sufficient to comply with Order (3) of the primary judgment. To the extent that Filetron emphasises the role of condition 51 in enforcing planning controls relating to land use conflict, wastewater management, and flood risks, Innovate responds that it constitutes an attempt to imply into Order (3) terms which it does not contain.

50. Further, considering the limited scope of Order (3), Innovate submits that it does not prescribe the content of the plan of management required to be prepared, but rather leaves this matter to Council’s own consideration and determination.

51. While conceding in reply submissions that Orders (3) and (4) of the primary judgment did not require Council to consider these subsidiary matters, Filetron nevertheless maintains that consideration of the planning controls listed in s 4.15(1)(a) of the EPA Act ought to have informed compliance with the Court Orders and therefore Council’s purported exercise of its function under s 4.61 of the EPA Act.

52. Council makes limited submissions to the effect that it considers conditions 51 and 51A of the Regranted Consent to accord with Order (3) of the primary judgment.

Findings

53. In assessing whether the Regranted Consent substantially complied with the Court Orders, it is first helpful to clarify the construction to be given to the terms of these orders (recorded at [4] above) and the corresponding conditions in the Regranted Consent. In particular, a question arose in the parties’ submissions as to whether Order (3) required the imposition of a discrete condition clarifying that the plan of management aims to ensure compliance with a condition limiting capacity at the cellar door premises the subject of the development application, and whether condition 51A can be found to satisfactorily comply with Order (3) of the primary judgment.

54. As noted above, Filetron submits that Council failed to comply with Order (3) in that condition 51A, as presently drafted, merely requires that the plan of management be consistent with the other conditions of the Regranted Consent (including a condition in relation to guest management) but does not specify that the plan of management’s objective is to ensure compliance with those conditions. This submission depends upon a certain construction of both limbs of Order (3) of the primary judgment and of condition 51A, which I reject.

55. Although I consider that the orders of a court should be generally framed with a view to them being “self-contained and self-explanatory”, I agree with Santow JA’s observation in Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [129], albeit in a significantly different context, that the purpose of a court order is “to give effect to a judgment” and that it must thereby conform to that judgment. As such, an order is not completely self-contained when it comes to its interpretation, and it is appropriate to have regard to the reasons for judgment when resolving ambiguity (if there be any) as to its terms.

56. Considering this allowance, I refer to my findings in the primary judgment that in assessing the development application lodged with Council by Innovate, a delegate of Council had identified the need for conditions to be imposed, if consent was granted, for the management of guests at the cellar door premises the subject of the development application in order to address various concerns, including the potential for land-use conflict and flood risk. The delegate however failed to impose any such conditions when determining the development application. In circumstances where these conditions related to matters, the consideration of which is mandated by s 4.15 of the EPA Act, I found that the delegate’s failure to incorporate them into the Consent was indicative of a constructive failure to determine the development application.

53. It is against this backdrop that the orders of the primary judgment must be read. That is, the orders made under s 25B of the Court Act were aimed at remedying the delegate’s oversight, by requiring consideration of the imposition of those conditions that had been identified as necessary.

54. It is interesting to note, albeit not determinative, that, in oral submissions made at the primary hearing in relation to the appropriateness of a s 25B order and the form that such an order would take if the Court were to find against Innovate and Council, senior counsel for Filetron stated in relation to draft orders proffered by Innovate:

“We propose these words to be added at the end of that form. Conveniently our friends have prepared it without a full stop so they can just go on. I would propose the following, "and the preparation of a plan of management required to be observed in order to ensure compliance with any such condition."

So it's not just the imposition of a condition in the determination, but also a plan of management for the detailed dispositions necessary to achieve that […]”

(Tcpt, 22 November 2022, p 70(39-46))

59. The orders suggested were so made. Despite not finding the terms of the Court Orders ambiguous, I note for clarity that Order (3) of the primary judgment requires consideration by 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 that any such condition is complied with. Notably, and contrary to Filetron’s submissions, I consider that the Order (3) does not purport to direct the content by which this outcome is to be achieved.

60. Condition 51 of the Regranted Consent (at [6] above) addresses the first limb of Order (3) by imposing a condition limiting the numbers of patrons permitted to attend the cellar door premises. The parties do not contest that this has been appropriately achieved.

61. Condition 51A of the Regranted Consent (at [6] above), in turn, addresses the second limb of Order (3) by requiring the preparation of a plan of management which must address a number of matters including the hours of operation, guest numbers, guest management, employee numbers, and arrangements for the evacuation of patrons during extreme weather events and water inundation of the access track. To the extent that this is disputed, I am satisfied that the contemplated breadth of the plan of management is sufficient to give effect to Order (3) of the primary judgment (and the concerns it purports to resolve).

62. Condition 51A of the Regranted Consent also explicitly requires that the plan of management be “consistent with the other conditions in this consent”. The issue raised by Filetron is whether this provision is sufficient to direct the preparation of a plan of management that will ensure compliance with the conditions of the Regranted Consent, as is submitted by Filetron to be required by Order (3) of the primary judgment. I am of the view that it is.

63. Although not determinative, I note that condition 51A specifies under the label “reason”, that the objective of the plan of management relates to the appropriate management of the site. It is plain that what is considered to be appropriate in these circumstances is to be ascertained by reference to the terms of the Regranted Consent as a whole, including condition 51. The objective of ensuring compliance with any condition in the Regranted Consent relating to the management of the site is therefore clearly expressed. Further, and contrary to Filetron’s submissions, the phrase “consistent with” does not qualify the objective of the plan of management but merely provides directions for its preparation. Moreover, it appears that condition 51A, which provides for a plan of management regulating the development as a whole, goes beyond Order (3), which on one view only required compliance with conditions limiting capacity at the cellar door premises. I take this to be indicative of Council’s intent to effect substantial compliance with the Court Orders.

64. In any event, I consider that there is no material difference in the circumstances between the words ‘consistent with’ and ‘compliant’. The Macquarie Dictionary, online ed, accessed 6 September 2023, defines “consistent” relevantly as the quality of “agreeing or accordant; compatible; not self-opposed or self-contradictory”. The phrase “in compliance with” is similarly defined as “in keeping or accordance with”. Both words require the outcome of achieving material coherence with, for example, the provisions of a consent. As such, and while I find merit in Filetron’s general submission that there is a difference in substance between compliance and consistency, I do not consider this to be material in the circumstances.

65. Further, and although not raised by the parties in their submissions, I note that condition 51 of the Regranted Consent requires that “details demonstrating compliance with this condition must be submitted to the principal certifier prior to the issue of any occupation certificate”. I consider this condition to be in, and of itself, sufficient to ensure compliance with the limitation condition, which is the exact purpose for which a plan of management was also suggested to be prepared. On one view, nothing in Order (3) of the primary judgment mandated the preparation of a plan of management. Rather, it must be seen that this course of action was suggested to Council as a pathway to ensure compliance. It is clear that Council has adopted this suggestion, and I do not find that Council should be in any way put at a disadvantage by the steps it has taken (possibly out of an abundance of caution) to comply with the Court Orders.

Conclusion

66. Having carefully considered each of Filetron’s objections to the relief sought in the notice of motion, and for the reasons given above, I do not consider there to be any basis for an exercise of discretion against Council. In particular, I find that Council had effectively revoked the Consent, adequately delegated the task of complying with the Court Orders to Mr Martin who, in turn, substantially complied with the Court Orders by considering and effecting the alterations thereby required. Weighing up all these circumstances, I am satisfied that the declarations sought by Council under s 25C(2) of the Court Act can and should be made.

Costs of the notice of motion

67. In circumstances where the Court has only received limited submissions from the parties as to the costs of the notice of motion, and despite my primary inclination that there should be no order for costs, I consider that the parties should have the opportunity to address this matter. I therefore reserve costs, and direct the parties, should they desire to do so, to file and serve any submissions in relation to costs (limited to two pages) on or before 3 October 2023.

68. The parties have also provided submissions in relation to the costs of the substantive proceedings, which I will consider in a separate judgment.

Orders

69. The Court makes the following orders:

1. Pursuant to section 25C(2) of the Land and Environment Court Act 1979 (NSW), the Court:

1. Declares that the terms in Order (3) of the orders made by the Court on 27 April 2023 have been substantially complied with.

2. Declares that development consent DA0288/2021 dated 12 May 2023 has been validly regranted.

3. Declares that the suspended development consent DA0288/2021 dated 15 September 2021 is revoked.

4. Revokes Order (1) of the orders made by the Court on 27 April 2023.

2. Costs of the notice of motion filed 24 May 2023 are reserved.

3. Costs of the substantive proceedings are reserved.

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Decision last updated: 11 September 2023