Alcoa Australia Rolled Products Pty Limited v Holroyd City Council & Ors
[2006] NSWLEC 731
•2 November 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: Alcoa Australia Rolled Products Pty Limited v Holroyd City Council & Ors [2006] NSWLEC 731 PARTIES: APPLICANT
Alcoa Australia Rolled Products Pty LimitedFIRST RESPONDENT
Holroyd City CouncilSECOND RESPONDENT
THIRD RESPONDENT
Weston Aluminium Pty Limited
Leonard Morrice StephensFILE NUMBER(S): 10344 of 2006 CORAM: Jagot J KEY ISSUES: Appeal :- notice of motion to adjourn appeal against deemed refusal of application for designated development pending special leave application being determined - discretion - proceedings not adjourned LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 DATES OF HEARING: 02/11/2006 EX TEMPORE JUDGMENT DATE: 11/02/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr D Brigden (solicitor)
SOLICITORS
Holding RedlichFIRST RESPONDENT
Mrs L Finn (solicitor)
SOLICITORS
Abbott ToutSECOND RESPONDENT
THIRD RESPONDENT
Mr K Kanjian (solicitor)
SOLICITORS
Kanjian & Company
Mr L Stephens (in person)
SOLICITORS
N/A
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
2 November 2006
10344 of 2006
ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED
ApplicantHOLROYD CITY COUNCIL
First RespondentJUDGMENTWESTON ALUMINIUM PTY LIMITED
Second Respondent
Jagot J:
Introduction
1 This is a notice of motion filed by Weston Aluminium Pty Limited, the second respondent in these proceedings. The notice of motion seeks orders to vacate directions that I made on 11 September 2006. Those directions required the respondents to the proceedings to file and serve all expert reports on which they wished to rely by 27 October 2006 and all statements of lay witnesses by the same date.
2 The directions that I made were intended to ensure that the matter could come back to the Court on 2 November 2006 at which time directions would be made for the applicant to file and serve its expert and lay evidence and to enable the matter to be fixed for hearing.
3 Mr Stephens, the third respondent, joins in the application made by Weston Aluminium to vacate those directions and otherwise to adjourn the proceedings for mention on 29 March 2007. To understand the significance of the date 29 March 2007 it is necessary that I briefly record the events that occurred after I made my directions on 11 September 2006.
4 As disclosed in Mr Kanjian’s affidavit sworn 25 October 2006, the Court of Appeal delivered its decision on 4 October 2006 in which it found that there was no limitation or restriction on the development consents held by Alcoa in relation to its site preventing it from processing externally sourced dross, and that the substance appeal against the decision of Pain J ought not to be upheld (albeit for different reasons).
5 The effect of the Court of Appeal’s decision was to enable Alcoa to maintain its current activities including processing externally sourced dross. Subsequently, Weston Aluminium determined to lodge an application for special leave to the High Court. That application was lodged and the Registrar of the High Court has informed Mr Kanjian that the special leave application should be determined in March 2007. The special leave application is the basis for the notice of motion.
6 Mr Kanjian for Weston Aluminium submits that there is no utility to the current proceedings, as they involve an appeal by Alcoa against the Council’s deemed refusal of its application for development consent. Pursuant to the Court of Appeal’s decision, Alcoa presently has in place all necessary consents to carry out its activities.
7 Accordingly, and particularly in circumstances where, as here, the expert evidence will be technical, complicated and (I infer) expensive to prepare, Mr Kanjian submits that there is no prejudice to Alcoa by vacating the earlier directions and adjourning the proceedings until the end of March 2007 in order to ascertain the outcome of the special leave application.
8 If the special leave application fails, then Mr Kanjian’s says that Weston Aluminium intends to take no further part in these proceedings, and of course there would be a question overall as to whether Alcoa itself would wish to pursue these proceedings but that is a matter for Alcoa at that time.
9 If the special leave application is successful, then Mr Kanjian says that, until the matter is finally determined by the High Court, Alcoa would continue in accordance with its current operations. If Weston Aluminium was ultimately successful in the High Court, the consequence would be that the proceedings would still need to be remitted to the Land and Environment Court in order for what has been described as stage two of the proceedings relating to the exercise of discretion to be resolved. At that time, if appropriate, Alcoa could pursue this appeal. The consequence of all this, Mr Kanjian submits, is that there is no prejudice to Alcoa by reason of the adjournment because it can continue to do what it currently does in accordance with the Court of Appeal’s decision and would not otherwise be at risk of any instantaneous requirement to cease its activities because of the need for stage two, the discretionary aspect of the proceedings, to be heard and determined if Weston Aluminium succeeds in its special leave application and ultimately on the appeal. The absence of any prejudice has to be weighed up against the potentially significant expense to which the parties would be put by pursuing this appeal immediately.
10 Mr Stephens observed that he had understood from the last mention that it was a common position that these proceedings would be redundant if the Court of Appeal found in Alcoa’s favour. He was informed by various means that the Court of Appeal had so determined and understood that the proceedings were at an end.
11 Mr Brigden, appearing for Alcoa, makes the following submissions. First, he says that Alcoa has lodged its development application and has appealed in accordance with s 97 of the Environmental Planning and Assessment Act 1979 against the Council’s deemed refusal and is entitled to have its appeal determined as expeditiously as possible. Alcoa accepts that any person who made an objection is entitled to be heard at the hearing as if a party to the appeal as provided for in s 97(4) but says that such persons are not entitled to delay the hearing of the appeal absent some good cause.
12 Mr Brigden says that the reasons put forward by Weston Aluminium do not disclose any good cause. The inescapable fact is that Alcoa remains confronted by allegations that its current activities are not lawful. Although the Court of Appeal has found in Alcoa’s favour there remains the pending special leave application. Mr Brigden says that fact gives rise to a risk to Alcoa’s operations. In the proceedings before the Court of Appeal Weston Aluminium sought a declaration that Alcoa’s licence was void and of no effect and submitted both to this Court and the Court of Appeal that, if the licence was invalid, there was no discretion to permit Alcoa to continue its operations.
13 Mr Brigden says that the risk of the declaration being made against Alcoa would place Alcoa in an invidious situation. Mr Brigden refers to Alcoa’s standing in the community. As I understand that submission, if the licence or that part of the licence is declared void, Alcoa would be carrying out an unlawful activity. Mr Brigden also refers to the fact that Weston Aluminium is a commercial competitor of Alcoa.
14 I find the resolution of this notice of motion quite difficult in terms of the discretionary factors that it raises. It is the fact under s 97(4) that an objector to an application for designated development is entitled to be heard at the hearing of an appeal as if they were a party to the proceedings. The Council does not object to the grant of development consent by the Court, subject as I understand it to the imposition of conditions that the council believes appropriate. Accordingly, the real contradictors in the proceedings are Weston Aluminium and Mr Stephens.
15 There is a balance to be achieved in the interest of justice between the reasonable and appropriate expectations of all of the parties, in circumstances where the overriding purpose of the Land and Environment Court rules is to facilitate a just, quick and cheap resolution of the real issues in all proceedings. I have to balance the expectations of Alcoa, having come to the Court on its appeal, that it will be entitled to have its development application determined as expeditiously as reasonably possible, against the reasonable expectations of the respondents that the proceedings will not be conducted in such a way as to involve unnecessary expenditure. The balancing of these considerations in this matter is not straightforward.
16 Ultimately, however, it is my view that Alcoa is entitled to have these proceedings heard and determined with reasonable expedition. The fact that involvement in the proceedings will involve the other parties in preparation is an inevitable component of the exercise of rights by them under s 97(4).
17 On balance, I do not consider the fact that there is a pending special leave application to be a factor which ought to operate to lead to a lengthy adjournment of these proceedings in circumstances where Alcoa has exercised its appeal right, is ready to proceed to have this appeal heard and determined, accepts that Weston Aluminium and Mr Stephens must be involved in the proceedings because they are entitled to be heard as a party, and submits that it faces a risk by reason of the special leave application. And indeed, in one sense, irrespective of the special leave application, Alcoa would still be entitled to seek development consent for its activities, that being a matter for it to determine.
18 For those reasons I do not accede to the orders sought in the notice of motion other than that I recognise that because directions 3 and 4 of my directions have not in fact been complied with, I will have to vacate those directions, but I do not propose to adjourn the proceedings to await the outcome of the special leave application.
19 I make the following directions:
(1) Dismiss the second respondent’s notice of motion of 25 October 2006.
(2) Direct the third respondent to answer the applicant’s request for particulars by 23 November 2006.
(3) Direct the respondents to file and serve all expert and non-expert evidence on which they wish to rely by 30 November 2006.
(4) Order that the respondents not be able to rely on any expert or non-expert evidence unless filed and served in accordance with Order 3 absent leave of the Court.
(6) Reserve the costs of the second respondent’s notice of motion of 25 October 2006.(5) List the proceedings for mention before me at 9.15am on 7 December 2006.
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