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

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

The Court held that the Regranted Consent validly revoked and regranted the suspended consent under s 4.61 of the Environmental Planning and Assessment Act 1979 (NSW). Revocation did not have to occur by a separate anterior instrument and was implicit in the instrument expressly described as a regrant pursuant to s 4.61 following the Court's s 25B orders. Council's function under s 4.61, including taking steps required to comply with the Court Orders, was capable of delegation to Mr Martin under s 377 of the Local Government Act 1993 (NSW). Conditions 51 and 51A substantially complied with Order (3): condition 51 imposed the patron-number limitation and condition 51A required a plan of...

Jurisdiction
Australia
Judgment Date
11 September 2023
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Development Consent / Notice of Motion Filed 24 May 2023 by Goulburn Mulwaree Council Seeking Orders Under S 25 C(2) of the Land and Environment Court Act 1979 (nsw) After Earlier S 25 B Orders Suspending the Consent
Outcome
Council's notice of motion was granted; declarations and orders under s 25C(2) were made, with costs reserved.
Legal Topics
['conditional Validity of Development Consents' 'revocation and Regrant of Development Consent' 'substantial Compliance With Court Orders' 'delegation of Council Functions' 'statutory Construction']
['environmental and Planning Law' 'administrative Law' 'local Government Law'] ['conditional Validity of Development Consents' 'revocation and Regrant of Development Consent' 'substantial Compliance With Court Orders' 'delegation of Council Functions' 'statutory Construction']

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Development Consent / Notice of Motion Filed 24 May 2023 by Goulburn Mulwaree Council Seeking Orders Under S 25 C(2) of the Land and Environment Court Act 1979 (nsw) After Earlier S 25 B Orders Suspending the Consent

Legal Issues

  1. 1 ['Whether Council was required to first revoke the suspended consent before being able to regrant it under s 4.61 of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether Council was able to comply with Order (3) of the primary judgment via a delegate so as to enliven s 4.61 of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether conditions 51 and 51A were sufficient to effect substantial compliance with the orders made on 27 April 2023.']

Ratio Decidendi

The Court held that the Regranted Consent validly revoked and regranted the suspended consent under s 4.61 of the Environmental Planning and Assessment Act 1979 (NSW). Revocation did not have to occur by a separate anterior instrument and was implicit in the instrument expressly described as a regrant pursuant to s 4.61 following the Court's s 25B orders. Council's function under s 4.61, including taking steps required to comply with the Court Orders, was capable of delegation to Mr Martin under s 377 of the Local Government Act 1993 (NSW). Conditions 51 and 51A substantially complied with Order (3): condition 51 imposed the patron-number limitation and condition 51A required a plan of...

Court Disposition

Council's notice of motion was granted; declarations and orders under s 25C(2) were made, with costs reserved.

Orders

  • ['Pursuant to section 25C(2) of the Land and Environment Court Act 1979 (NSW), the Court declares that the terms in Order (3) of the orders made by the Court on 27 April 2023 have been substantially complied with.' 'The Court declares that development consent DA0288/2021 dated 12 May 2023 has been validly...