Can objections to a development application lodged after the notification period has ended be taken into consideration?

A recent Court of Appeal decision in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council considered this question.

Key points

1. There is nothing in the Environmental Planning and Assessment Act (EP&A Act) which precludes or prohibits a consent authority from taking into account a submission made outside the prescribed exhibition period.
2. If a person needs more time to make an objection than what the exhibition period allows, look to the relevant Community Participation Plan (sometimes in a development control plan) to determine the circumstances if any in which you may request an extension.
3. A submission made or received outside the ordinary exhibition period, but within an extension provided pursuant to a Community Participation Policy (CPP), is a mandatory consideration to be taken into account pursuant to s4.15(1)(d), if not at least pursuant to s4.15(e) of the EP&A Act.

Background

The case of Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2024] NSWCA 41 (Filetron), concerned the legal construction of an instrument of delegation to determine development applications where the function could not be exercised if there were unresolved submissions by way of objection made to the subject matter of the application.

Before the exhibition period expired, Filetron requested an extension to the making of a submission. The Council’s CPP provided that an extension could be granted at the Council’s discretion, and in exercising that discretion Council granted Filetron an extension. Relevantly Council’s CPP also provided that even if no extension was granted, Council could also decide to consider or disregard the objection.

Council granted consent but had failed to resolve the objection made by Filetron. At first instance, Justice Robson in Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45, characterised the submission lodged as a matter of public interest under s4.15(1)(e) of the EP&A Act. Ultimately, Justice Robson found that the delegate had failed to take into account Filetron’s objection which was a relevant matter of public interest, and made orders suspending the consent with terms of regrant of the consent. Filetron appealed that decision.

Legislative requirements

Section 2.22 of the EP&A Act provides for the mandatory requirements for community participation as set out in the EP&A Act, which include any other forms of community participation as set out in a CPP.

The mandatory requirements are set out in Schedule 1 of the EP&A Act, and notably in cl.7, which provide for the minimum time within which submissions may be made, either in accordance with the CPP or if not CPP then 14 days, and cl.15 which provides the right for submissions to be made within that time.

Ultimately s4.15(1) of the EP&A Act provides for mandatory matters to be taken into account by a consent authority in determining a development application including relevantly at (d) any submissions made in accordance with the EP&A Act or the regulations, and at (e) the public interest.

The Filetron Decision

There were a number of questions put to the Court of Appeal (CoA) for determination (see [71]) but the primary question centred around whether the Filetron submission was received within the time prescribed by the EP&A Act and required to be taken into account: [103] – [124] per Ward P dissenting but upholding the appeal on these grounds, and [225] – [228] the majority agreeing with Ward P.

With respect to the taking into consideration of submissions made out of time, President Ward held at [106] and [123]:

"I have no difficulty with the proposition that, in the context of a development application under the EP&A Act, [the Delegation] 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."

"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 [by Filetron], 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."

The majority held at [226] and [227]:

"Clause 15 [of Schedule 1 of the EP&A Act] 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."

"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 [Filetron’s] submission was made within the period specified. The Council would have denied Filetron procedural fairness if it had not had regard to its submission."

(our emphasis)

The CoA ultimately found that the Council, although having taken Filetron’s objection into account (see [234]), proceeded to grant consent without having resolved Filetron’s objection, and consequently without power.