Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd

AUSTRALIAN WASTE PTY LTD & ANOR v COMPACTION APPLICATION TIPS PTY LTD & ORS
[2001] SASC 173
Land and Valuation Division

DEBELLE J. This appeal from the Environment Resources and Development Court concerns the question whether that court had jurisdiction to hear four separate appeals against decisions of the Development Assessment Commission. The appeals concerned four separate applications for development approval to use land for disposing of waste by four separate companies which, for reasons which will appear, I will call “the Bolderoff companies”.
The Bolderoff Companies
The Bolderoff companies are
Suweal Pty Ltd (“Suweal”);
Mallala Pty Ltd (“Mallala”);
Downs Holdings Pty Ltd (“Downs Holdings”); and
Compaction Application Tips Pty Ltd (“Compaction”).
It is common ground that Suweal, Mallala and Downs Holdings are controlled by Fred Nominees Pty Ltd (“Fred Nominees”) which holds all of the shares in Mallala and Downs Holdings and 75 percent of the shares in Suweal. Compaction is effectively controlled by Fred Nominees which owns one A class share. The other shareholder is Mr Bill Bolderoff who holds one B class share. Mr Fred Bolderoff is the sole director of each company.
Mr Fred Bolderoff also holds one ordinary share in Fred Nominees. Two other shares are issued. One ordinary share is held by Ms Maryann Shubin and one A class share is held by Mr Daniel Bolderoff. The directors of Fred Nominees are Mr Fred Bolderoff and Ms Deborah Bolderoff. There is no evidence proving the voting rights of ordinary shareholders and holders of A and B class shares in any of these companies.
Mr Bolderoff also directly or indirectly controls two other companies. One is Remove All Rubbish Co Pty Ltd (“Remove All Rubbish”), a well-known company involved in waste removal. Fred Nominees holds 75 percent of the shares in Remove All Rubbish. The second company is Northern Environmental Recyclers Pty Ltd and Mr Bolderoff is the only shareholder and only director of that company. Although there are other companies in the group, these are the only companies which need be noticed in respect of this appeal.
The company structure is illustrated in the following diagram. It is apparent that Mr Fred Bolderoff effectively controls all companies in the group.

Four Applications for Waste Disposal

On 26 February 1999 Suweal, Mallala, Downs Holdings and Compaction all applied for development approval to use four separate parcels of land near Inkerman for waste disposal. Inkerman is a little south of Port Wakefield. The four parcels of land are on the eastern side of Highway 1 or, as it is usually called, the Port Wakefield Road, a little south of the Australian Army Proofing Range. The proposed landfill operations are intended to be conducted on land adjacent to other land already used for that purpose by Pathline Australia Pty Ltd (“Pathline”), one of the appellants. The separate parcels of land, the subject of each of the four applications, are shown on the diagram below. The land used by Pathline is also shown.
All four applications were lodged with the Wakefield Regional Council. Each application described the proposed development as “Landfill (proposing to receive less than 20,000 tonnes of waste per annum)”. The documents which accompanied each application stated that the applicant sought “to establish a minor landfill that will receive less than 20,000 tonnes per annum of waste”. Later in the documents it was stated that “a maximum of 19,950 tonnes per annum will be accepted at the site”. The terms of each application and the material in each application were identical in all material respects. The differences concerned specific references to the subject land, its topography, and the proposed layout of the development on each parcel of land.
As the four applications sought to develop land for the disposal of waste, the relevant planning authority was the Development Assessment Commission: see s 34(1)(b)(i) of the Development Act 1993, reg 38 and Schedule 10 of the Development Regulations. On 1 March 1999 the Council delivered the applications to the Commission. The Commission classified each development as a Category 3 development and, pursuant to s 38 of the Development Act 1993, gave public notice of the applications. The Commission received 72 representations opposing the applications. The objectors included Australian Waste Pty Ltd (“Australian Waste”) and Pathline, the present appellants. Pursuant to its powers contained in s 39 of the Act, the Commission sought further information. In July 1999 additional information was provided in support of each application. The additional information for each application was once more identical in all material respects, the differences again relating to specific aspects of each site.
The Commission was also required to refer these applications to a number of governmental agencies. For present purposes, it is sufficient to note that those agencies included the Environment Protection Authority (“the EPA”). The Commission was required to refer the application to that Authority by the combined operation of s 37(1) of the Development Act and by reg 24 and Schedule 8(11) and 22(3) of the Development Regulations. The EPA directed that each application should be refused. The Commission was obliged to comply with the direction and refuse each application: see Schedule 8(11) of the Development Regulations.
The four parcels of land, the subjects of the four applications, are all within the area of the Wakefield Regional Council and are subject to the Development Plan for that area. The land is in an area designated as “Enterprise Zone”. It is the only Enterprise Zone in the Council area. The Development Plan states in Objective 1 that the zone is intended to be developed with “a diversity of activities including rural industries, manufacturing, tanneries, intensive animal keeping, storage, the reception and disposal of waste, and farming”. Although the reception and disposal of waste is an intended use in this zone, use of land for that purpose is not a complying development. In addition, where the use of land for waste disposal involves depositing 20,000 tonnes or more of waste in each year, that use is a non-complying development. That is the effect of Principle 12 of the principles of development control for the Enterprise Zone which provides that “Landfill proposing to receive 20,000 tonnes or greater volume of waste per annum” is, subject to certain listed exceptions, a non-complying development. The exceptions listed in Principle 12 do not have any relevance in this appeal. Disposal of waste by landfill, where the waste is less than 20,000 tonnes per annum, is neither a complying land use nor a non-complying land use so that any person intending to use land for this purpose must seek the consent of the Commission.
One particular consequence of land being a non-complying development lies in the fact that an applicant for development approval to use land for a non-complying development has no right to appeal from a decision of a planning authority refusing to grant development approval: s 35(4) of the Development Act.
The Commission refused to grant development approval to all four applications. The reasons for the decision were the same for each application, namely:
“1.The application is contrary to the objectives and principles of development control that relate to orderly and economic development, minimisation of environmental impacts and minimisation of potential conflicts with the adjoining land uses.
2.The EPA has directed the Commission to refuse the application.”
All four applicants appealed to the Environment Resources and Development Court (“the Environment Court”). The respondents to the appeals included Australian Waste and Pathline.
Australian Waste and Pathline questioned the jurisdiction of the Environment Court to hear the appeals. They contended that the four planning applications were in effect for one development which was a non-complying development in that it was proposed to receive a total volume of waste in excess of the 20,000 tonne limit prescribed in the Development Plan. Thus, they contended, by reason of s 39(4) of the Development Act, the four Bolderoff companies could not appeal to the Environment Court. Australian Waste and Pathline asked the Environment Court to determine these three questions:
“1.Whether Appeal Nos 48 of 2000, 49 of 2000, 50 of 2000 and 51 of 2000 are incompetent by reason of Section 35 subsection (4) of the Development Act 1993 because they seek approval for a non-complying development where approval from the Development Assessment Commission has been refused.
2.Did the Development Assessment Commission have sufficient information to, or was there a defect or deficiency in the application and accompanying documents or information such that the Development Assessment Commission could not,
2.1 determine the nature of the development pursuant to regulation 16 of the Development Regulations 1993;
2.2 decide for the purposes of s.35(3) of the Development Act 1993 whether the development described in the said applications was of a kind described as a non-complying development.
3.If the answer to question 2 or any part thereof is that the Development Assessment Commission did not have sufficient information or that there was a defect or deficiency in the application and accompanying documents or information,
3.1 were the applications for development plan consent incompetent or invalid;
3.2 is the decision of the Development Assessment Commission that the development described in the said applications was not of a kind described as non-complying one that is made without jurisdiction, or invalid, or void.”
The court examined those questions. It held that each of the applications should be considered separately so that no application was in respect of a non-complying development. The court held that it therefore had jurisdiction. The court also held that the second and third questions raised issues which were in the nature of judicial review of the Commission’s conduct in handling the development application. As it had no power of judicial review, it could not answer either question.
Australian Waste and Pathline have appealed to this Court. The Commission and the Environment Protection Authority were joined as respondents to the appeal. Both have stated that they will abide the order of the court.
The Nature of the Development
The resolution of the issues in this appeal turns on the terms of reg 16 of the Development Regulations. Regulation 16 is in these terms:
“ 16. (1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
(2) If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact.”
As is apparent from the terms of reg 16(1), the obligation to determine the nature of the development exists only if the application will require assessment against a Development Plan. In a number of respects, each of the four applications required the Commission to assess the proposed development against the provisions of the Development Plan. They included the necessity to determine the quantity of waste to be disposed of in each year in order to determine whether or not the application was for a non-complying development. In addition, as each application sought to dispose of less than 20,000 tonnes in each year and was therefore a consent development, the applicant had to satisfy a number of requirements set out in the principles of development control for this zone. These are sufficient to show that the Commission was required to assess the development proposal in each application against the Development Plan. Other issues could no doubt be identified. Thus, reg 16(1) imposed an obligation on the Commission to determine the nature of the development. Mr Hayes QC, who appeared for the respondents on this appeal, did not suggest the contrary. Once reg 16 comes into operation, the relevant planning authority has a statutory duty or obligation to determine the nature of the development. That is made clear by the use of the word “must” in both subsections (1) and (2): Enfield City Council v Development Assessment Commission (1994) 82 LGERA 43 at 45.
The next question is whether the development was a non-complying development. The Environment Court held that it was not, stating that each application had to be considered separately. The court’s reasons were expressed in these terms:
“It is not open to the relevant authority, when faced with several applications by different applicants, for the same kind of development, each proposed on a discrete parcel of land, to do other than determine each application. It is not helpful to speak of attempts to subvert strategies and policies. The reality of the matters is that at the relevant time, each applicant was entitled to have determined, its application for development, being in each case, a landfill proposing to receive less than 20,000 tonnes per annum, and therefore not being a kind of development which was non-complying in the relevant (Enterprise) zone.”
This reasoning misconceives both the nature of the task imposed on a planning authority by reg 16(1) and the powers of the planning authority in discharging that task.
The Environment Court’s reasoning proceeds on the footing that four applications were made by four separate applicants in respect of four separate parcels of land. None of those facts is necessarily a decisive factor. As Stephen J pointed out in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 500 – 501, town planning involves two critical integers, land and use. Thus, an application for development approval involves a question of definition, what land and what use? It is that task which the planning authority must undertake when performing its duty under reg 16. That task requires the planning authority to decide whether an application, when viewed objectively and in a practical sense, and with such other information as it has obtained, constitutes one development.
When determining the nature of a development, the planning authority is entitled, if not obliged, to examine all of the information before it in relation to the application. In addition, it may request additional information from the applicant pursuant to the powers vested in it by s 39(2) of the Development Act. That power is expressed in very wide terms. It enables the planning authority to request “such additional documents or information ... as the relevant authority may reasonably require”. The planning authority, therefore, has the power to equip itself with all relevant information to assess a development application and, in particular, the nature of the development. That power was exercised in this case and, as already noted, the applicants provided further information to the Commission in July 1999. Curiously, the Commission did not seek information concerning the relationship between the four applicants. (I note in passing that the EPA and another governmental agency, Primary Industries and Resources SA, did obtain such information.) However, the solicitors for Pathline provided the Commission with searches from the Australian Securities and Investment Commission as part of the representation on behalf of Pathline. A report from Primary Industries and Resources SA also provided some company searches. In my view, a planning authority is not confined to information supplied by an applicant. It is entitled to rely as well on relevant and reliable information provided by those who make representations in relation to the development under consideration. There would be little point in a person being able to make the representations pursuant to s 38 of the Development Act if a planning authority could not rely on relevant and reliable information in those representations. It is also entitled to rely on information supplied by governmental agencies to which it must refer the application. The terms of s 33 of the Development Act do not require a different conclusion since s 33 is concerned only with the matters against which a development must be assessed. Section 33 does not deal with the nature of the material to which a planning authority is entitled to refer for the purpose of making the required assessment.
If examination of the application suggests that it is related to another application, the question arises whether it is permissible and appropriate for the planning authority to examine the other application for the purpose of determining the nature of the development. For the reasons which follow, I think it is. Although there is no provision in either the Development Act, the Development Regulations, or this Development Plan which expressly authorises a planning authority to consider one application with another for the purpose of determining the true nature of an application, neither is there any provision which expressly prohibits a planning authority from doing so.
The object of the Development Act is to provide for proper, orderly and efficient planning and development in the State: s 3 of the Development Act. With the intent of achieving that purpose, the Act provides for the creation of Development Plans with the object, among others, of enhancing “the proper conservation, use, development and management of land and buildings”: s 3(c) of the Act. The task of providing proper, orderly and efficient planning and development is vested in planning authorities whose task it is to determine whether to grant development approval. That task usually requires the planning authority to determine the nature of the application with assistance from either the Development Regulations or the Development Plan, to assess the proposal against any relevant requirements prescribed by the Development Regulations or the Development Plan, to assess the proposal against the amenity of the locality and the overall objectives of the Development Plan, and then to determine whether or not to grant development approval. Not infrequently, that task will require the planning authority to consider the proposal against existing land use and development in either the neighbourhood or the locality of the proposed development. The planning authority does not have a choice but an obligation to discharge that latter task and that obligation is imposed by the joint operation of the Development Act, the Development Regulations and the relevant Development Plan. The manner in which a planning authority discharges the task of determining whether to grant development approval is outlined in City of Mitcham v Freckmann (1999) 74 SASR 56 at 62 – 63.
It follows that, if a proposed development is to be assessed in the light of existing development, it should also be considered in the light of any other development proposed in the area of which the planning authority is aware. The very concept of town and country planning and the rationale underlying it requires such a conclusion.
Similarly, where two or more applications are made to a planning authority for development approval for proposed developments which impinge upon one another in any respect or which in some other way are related to or affect one another, the planning authority is entitled, if not obliged, to consider them together. The authority to do so stems generally from the combined operation of the Development Act, the Development Regulations and the relevant Development Plan. In particular, it stems from the terms of reg 16. Most applications for development approval will require the application to be assessed against a Development Plan.

When discharging the task imposed on it by reg 16(1), the planning authority must objectively examine the documents and other information before it and, as a matter of practical reality, decide what the nature of the development is. To the extent that the documents and other information before the planning authority may disclose links between one application and another, that is a relevant factor. Similarly, the extent to which the documents and other information may disclose intentions of the applicants, they too are relevant because those intentions may disclose whether, in truth, the four separate applications are for one larger development.
The same conclusion may be reached by another route. The “nature” of a thing is its essential characteristics or attributes, its fundamental character: see Oxford English Dictionary and Macquarie Dictionary. When determining the nature of a thing, one is not limited to an examination of mere appearances but may go behind them to examine its real substance. Thus, the capacity, indeed obligation, of a planning authority to determine the nature of a proposed development pursuant to reg 16 requires it to determine the development’s essential qualities or attributes. Regulation 16 requires the authority to stand back and look at the development proposed in the application together with any other relevant fact, for example, a related application. In other words, the authority is able to go behind the form of the application, the guise in which the applicant has clothed the development, and get to the substance or reality of the matter to decide what, in truth, is the nature of the development. In the case of a non-complying development, this conclusion is reinforced by reg 16(2) which operates if the authority “is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan” (emphasis added). Significantly, reg 16(2) does not refer to an application for a kind of development described as non-complying but, rather, merely requires it to relate to such a development. The terms of reg 16(2) make it apparent that the authority can traverse beyond the application so that, if the application relates to another application and the consideration of both applications shows that there is in fact one development which is a non-complying development, in this case a landfill proposing to receive more than 20,000 tonnes of waste a year, the authority must give notice to the applicant of that fact. Regulation 16 is a means by which planning authorities can ensure that an applicant is not seeking to evade the requirements, and equally importantly, the intentions, of a Development Plan in respect of non-complying developments. The power to determine the nature of a development is, in a sense, more effective than some kind of avoidance provision, particularly when coupled with a provision such as s 39(2) of the Development Act which enables the authority to obtain additional information. At the very least, reg 16 stands in place of such a provision.
Although this application is limited to one parcel of land, it has features which disclose that it is linked with other intended land uses and forms part of one overall development. When any one of the four applications is examined together with the additional information supplied to the Commission by the applicant and by governmental agencies, the following picture is disclosed.
(1)The maximum amount of fill to be dumped on the land is 19,950 tonnes per annum.
(2)The site will operate for three months in each year until the limit of 19,950 tonnes is reached.
(3)The site office will be operating for three months only in each year. The site office will be a transportable building.
(4)The hours of intended operation will be from 6.00am to 10.00pm with waste being received between 7.00am and 7.00pm.
(5)There will be no staff present when the site is not being operated.
(6)Weekly inspections of the closed site will be made to check security, to check the presence of vermin, and to undertake whatever steps are necessary to ensure good management of the site.
(7)The staff will be a site manager and two machine operators. (The original application stated the staff would comprise four persons.)
(8)The equipment will be an excavator, trackscavator, landfilling compactor, dump truck, wheel loader, and water truck equipped with pump and hoses for fire fighting.
(9)The equipment to be used on the site will be moved to other sites in rotation.
(10)Each applicant will receive waste which will be processed first at a processing plant at Burton operated by a related company, Northern Environmental Recyclers Pty Ltd.
(11)Daily records will be kept of the number and type of trucks delivering waste to the site.
(12)Up to 20 covered tipper trucks will deliver waste to the site on each day, each truck having the capacity of 28 tonnes per load.
(13)All types of waste will be accepted except prohibited waste.
(14)The public will not be allowed access to the site.
(15)150 millimetres of site soil material will be placed over the waste at the end of each day.
The fact that the applicant intends the site to operate for three months only in each year, coupled with the fact that it was one of four applications for landfill disposal of waste in this location, requires examination of the other applications. That examination discloses that each application is in almost identical terms and, in particular, that information concerning the intended operation of the site, that is to say, all of the matters listed in paras (1) to (15) and others are expressed in identical terms. Significantly, it discloses that the four sites will be operated on a rotational basis. While not expressly stated, it is apparent that staff and equipment will be moved from site to site.
The documents which form part of each application show that the intention is to operate these sites on a rotational basis moving from one site to another in rotation as the limit of 19,950 tonnes is reached on each site. Thus, it is readily apparent from all of these facts that the four separate applications disclose that the nature of this development is in truth one large operation for the receipt of waste totalling 79,800 tonnes in each year. That, by any chalk, is a very substantial waste fill operation. It substantially exceeds the volume of waste received by Pathline at the adjoining site. (Pathline had earlier received approval as a major development or project pursuant to Part 4 Division 2 of the Development Act which required it to submit an environmental impact statement.)
It could hardly be doubted that this is intended to be one operation. Any remaining doubts are entirely displaced when it is known that all four applicants are related to one another, are related to Northern Environmental Recyclers Pty Ltd from which they will each receive waste and are controlled or effectively controlled by one person, namely, Mr Fred Bolderoff. Although this is plainly a transparent attempt to avoid at least the consequences of being a non-complying development, it is unnecessary as well as unhelpful to rely on that fact. It is necessary only to determine the nature of the development. The fact that each application forms part of one development venture is merely confirmed by the relationship between the applicants.
The conclusion that it is one development proposal is also confirmed by the correspondence between Mr Fred Bolderoff and Remove All Rubbish on the one hand, and the legal, engineering and town planning advisers for this proposal on the other. It discloses a scheme to avoid being classified as a non-complying development. There is an arbitrary allocation of a company to each of the four parcels of land and attempts are made to keep the four developments separate. There is town planning advice to ensure the applications appear to be separate. It is contained in a letter of 8 June 1999 to Mr Argent at Remove All Rubbish and states, among other things:
“It will be necessary to ensure that the applications enjoy no operational linkages and cannot be construed as being part of a single ‘development’ otherwise the applications will be viewed as collectively providing for the receipt of in excess of 20,000 tonnes of waste annually, and be subject therefore to a non-complying development assessment.”
While it may be true, as Mr Hayes QC contended, that an applicant for development approval may prepare his application in such a way as to avoid difficulties presented by either the Development Act, the Development Regulations or the Development Plan, a planning authority must, nevertheless, determine the nature of the application. Regulation 16 imposes a clear duty to do so. If there is evidence which points to the fact that the application is for a land use which extends beyond the land, the subject of the application, the planning authority is required by reg 16 to decide what is the nature of the development and what land is to be used for that development. To that end, it may be necessary to examine other related applications. I repeat, it is not a question of deciding whether the applicant is seeking to avoid the operation of the Development Act, the Development Regulations or a Development Plan. Instead, the task is always the same, namely, to determine the nature of the development.
The conclusion that the nature of the development is one waste disposal operation on four separate sites is further reinforced when consideration is given to conditions which the Commission might have imposed had it approved the development. The Commission might have thought that, in the interest of the proper management of each site, the site should not be operating at the same as another and so decide to impose conditions which would have that effect. That, indeed, would have been consistent with the intentions of the applicants. Indeed, it would be necessary to impose such a condition given the intention to move equipment from one site to another. So, for example, the Commission might impose a condition that, while Suweal operates its site, the other three sites should not be in operation. Like conditions would be required for the other three sites. Conditions might also be required to ensure proper maintenance of closed sites while the fourth is being used. As soon as the Commission began the task of formulating an appropriate condition or conditions, the links between each would show that it is, in truth, one development.
The position would be no different if these were four applications in respect of four separate, yet contiguous, parcels of land by four different companies which were entirely at arms length and not in any sense related to one another. If it felt it appropriate, the Commission would be entitled to seek additional information for the purpose of determining whether the four companies intend to operate at the four sites as one in some kind of joint venture. As with the present case, the formalities or technicalities of the Development Plan may well have been complied with, but the development proposed is, in truth, one operation.
Mr Hayes QC sought to rely on the observations of Wells J in Santin v Corporation of the City of Woodville (1971) 1 SASR 336. That case concerned applications for three separate subdivisions submitted by three brothers named Santin. In fact, as Wells J found (at 337), the three proposed plans of subdivision were related and “fitted into one another like three pieces of a jigsaw puzzle”. At pages 343– 344, Wells J referred to an issue whether the Santin brothers had sought to avoid the provisions of the Planning and Development Act 1966 which then controlled land development and which required a certain percentage of subdivided land to be retained as reserves. His Honour said:
“I should say at once that, in my opinion, such a suggestion, if made seriously, would be entirely misconceived. Unless an ‘evasion section’ (of the kind that are to be found in Acts like the Income Tax Assessment Act 1936-1970 (Cth.)—see s. 260) is written into the Act, the sole question is whether the applicant has complied with the Act; his motives and intentions are completely irrelevant, unless they can be shown to bear on the matters to be taken into account by the appropriate authority.”
For the following reasons, those remarks do not assist the resolution of the issues in this case. First, the Planning and Development Act 1966 and the Control of Land Subdivision Regulations 1967 which were then in force did not require a planning authority to determine the nature of a development. Thus, in marked contrast to the statutory régime prevailing at the time of the decision in Santin, reg 16 requires a planning authority to determine the nature of the development and development is defined to include an application to divide land. There will be instances where an application to divide land will have to be assessed against the provisions of a Development Plan. The fact that a planning authority has not only the ability, but the obligation in the circumstances prescribed by reg 16, to determine the nature of a development enables the authority to deal with a scheme to avoid the operation of the legislation in a way which the Planning and Development Act did not. Secondly, the proviso in the passage quoted from the reasons of Wells J indicates that, on occasions, motives and intentions might be relevant. For the reasons already given, in this case intentions, but not motives, are relevant in that it is clear that the intention is to operate the four sites for the disposal of waste as one larger development.
In his argument, Mr Hayes QC sought to uphold the decision of the Environment Court by postulating a number of hypotheses for the purpose of seeking to demonstrate flaws in the appellants’ position. Although it is sometimes helpful to test a proposition against hypothetical situations and perhaps by a reductio ad absurdum, the exercise may on occasions be unhelpful because it overlooks the realities of any particular situations. That was the position here. One example is sufficient. The dumping of waste is permitted in this Enterprise Zone only. The zone is relatively small, a fact which is emphasised in a report of the Commission’s principal planner dated 25 November 1999 which noted that, if these four proposals are permitted, this operation and that of Pathline will occupy nearly one half of all of the land in this zone, leaving little land for other intended uses.
For these reasons, the nature of this development as disclosed in each of the four applications is to undertake a landfill operation involving disposal of waste with a volume in excess of 20,000 tonnes per annum. It is, therefore, a non-complying development by reason of Principle 12 of the principles of development control in the Enterprise Zone in this Development Plan. Each appeal involves an appeal from the refusal of an application which discloses that it is part of the one large development. It is, therefore, an appeal in respect of a non-complying development. By reason of s 35(4) of the Development Act, the Environment Court does not have jurisdiction to hear and determine each of the appeals instituted by each of the respective Bolderoff companies.
In the course of these reasons, I have referred to the obligations of a planning authority and, in particular, of the Commission when undertaking the task required by reg 16. In no sense is this appeal an application for judicial review. I refer to both for the purpose only of showing what reg 16 requires and the reasoning by which a court, as well as a planning authority, would conclude that this is one development.
Given the conclusion that the Environment Court did not have jurisdiction and should have dismissed the appeals on that footing, it is unnecessary to deal with the two remaining questions. Nevertheless, I will briefly examine them. The Environment Court has no power of judicial review. Both questions seek to ascertain whether the Commission had sufficient information before it. The questions seek to examine the Commission’s handling of the development applications and they are in the nature of judicial review. In the particular circumstances of these appeals, the Environment Court’s powers are limited to hearing and determining the appeal. The Environment Court was correct in not dealing with the questions. I add that the file of the Commission in relation to each application was evidence in the Environment Court. An examination of those files shows that each contains sufficient information for the Commission to determine the nature of the development.
For all of these reasons, this appeal should be allowed. The order of the Environment Court dismissing the appellants’ objection to its jurisdiction is set aside and, in lieu thereof, there will be an order that the Environment Court does not have jurisdiction to hear and determine the four appeals.

[2001] SASC 173

25 May 2001