The Filetron case – an important judgment for all NSW local councils when determining a development application

The Land and Environment Court of NSW in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 (Filetron case) has delivered an important judgment for all NSW local councils in regard to determining a development application.

In Filetron case, which was a Class 4 judicial review proceeding in relation to the grant of Council’s development consent, the assessing Council Officer had delegated power to determine the development application. The assessing Council Officer in the Assessment Report effectively considered (and assessed) various matters raised by Filetron Pty Ltd in an objection made to the development application. Filetron Pty Ltd’s concerns were addressed and recorded in terms which concluded that the acceptance of the proposed development (and the recommendation for approval) was dependent upon the imposition of conditions (for example, that attendances would be “capped by condition of consent”). The Assessment Report did not include any proposed conditions, such that it must be assumed that conditions would be later drafted at the time of the formal act of determination. However, the Consent did not provide those proposed conditions.

Justice Robson considered that the assessing Council Officer’s failure to impose conditions which he had identified as necessary to the grant of the Consent was indicative of a failure to consider the matters in s 4.15(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). His Honour found that the assessing Council Officer’s failure to consider the mandatory matters breached s 4.15(1) of the EP&A Act, and that there had been a constructive failure by the Council Officer to exercise his delegated power to determine the development application under s 4.16 of the EP&A Act.

Key Takeaway

NSW local councils should be aware that:

• where an assessing Council Officer expresses a condition to be material to the grant of consent, it cannot be overlooked in the determination of the application
• if an assessing Council Officer’s conduct in determining the application involves a failure to consider mandatory matters, it may result in a breach of s 4.15(1) of the EP&A Act and amount to a constructive failure by the Council Officer to exercise their delegated power to determine a development application under s 4.16 of the EP&A Act, rendering the Consent liable to be declared invalid by the Court.

As Justice Robson stated, “At least implicitly, a determination to grant consent to a development application which was found to raise issues on matters relevant under s 4.15 of the EP&A Act pre-emptively requires consideration of the imposition of appropriate conditions to remedy such issues.”

The Filetron case can be read here.

For more information on the requirements of local councils in determining development applications, please contact Ben Swain in Brisbane via email ben.swain@gadens.com

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Authored by: 

Gerard Timbs, Partner
Ben Swain, Senior Associate