Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd - [2001] SASC 173

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] SASC 173
Decision Date: 25 May 2001

CaseChat Overview and Summary

Australian Waste Pty Ltd and Pathline Australia Pty Ltd appealed from the Environment Resources and Development Court's decision that it had jurisdiction to hear appeals by Suweal Pty Ltd, Mallala Pty Ltd, Downs Holdings Pty Ltd, and Compaction Application Tips Pty Ltd (collectively, the Bolderoff companies) against the Development Assessment Commission's refusal to approve their applications for waste disposal on four separate parcels of land. The appeal raised questions about the Environment Court's jurisdiction and whether the Commission had sufficient information to determine the nature of the development. The court held that each of the applications should be considered separately, and thus, 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. The appeal was allowed, and the order of the Environment Court dismissing the appellants’ objection to its jurisdiction was 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.

Orders