Auburn Municipal Council v Szabo

The appeal concerned the scope of development consent and the variation of an environmental protection licence. The parties were Auburn Municipal Council (the Appellant) and Weston Aluminium Pty Ltd (the Respondent), with the Environment Protection Authority also involved. The dispute arose from a variation to Weston Aluminium's licence to process by-products, which the Council argued constituted development requiring separate development consent under the *Environmental Planning and Assessment Act 1979* (NSW). The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were: (a) the precise scope of the variation made to licence no. 642 on 29 November 2001; and (b) whether the change in use requiring the licence variation constituted development requiring development consent under the *Environmental Planning and Assessment Act 1979* (NSW). The Court also considered whether a variation to an environmental protection licence under section 58 of the *Protection of the Environment Operations Act 1997* (NSW) was permissible if it involved development requiring consent under the *Environmental Planning and Assessment Act 1979* (NSW).

The Court of Appeal found that the approach adopted by the court below had miscarried, leading to the identification of false issues based on unexpressed assumptions. The Court reasoned that if the licence variation, properly understood, involved "development" requiring consent under the *Environmental Planning and Assessment Act 1979* (NSW), then it could not be lawfully made under section 58 of the *Protection of the Environment Operations Act 1997* (NSW), and any such variation would be invalid. The Court noted that the questions of the precise scope of the variation and whether it constituted development requiring consent were not adequately addressed.

The Court of Appeal allowed the appeal, set aside the orders made by the Land and Environment Court, and ordered that Weston Aluminium Pty Ltd pay the costs of the Appellant and the Second Respondent in the proceedings. The Court also granted an extension of time for the Appellant to seek leave to appeal and granted leave to appeal.