Baiada v Waste Recycling & Processing Service of NSW

[1999] NSWCA 139

Reported Decision: 130 LGERA 52

New South Wales

Court of Appeal

CITATION:	BAIADA & ORS v WASTE RECYCLING & PROCESSING SERVICE OF NSW [1999] NSWCA 139 revised - 02/06/99
FILE NUMBER(S):	CA 40389/97
HEARING DATE(S):	11 November 1998
JUDGMENT DATE:	18 May 1999
PARTIES :	BAIADA & ORS v WASTE RECYCLING & PROCESSING SERVICE OF NSW
JUDGMENT OF:	Mason P at 1; Sheller JA at 63; Powell JA at 63

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40220/96
LOWER COURT JUDICIAL OFFICER:	Talbot J

COUNSEL:	T F Robertson (Appellant) J B Maston (Respondent)
SOLICITORS:	Bartier Perry & Purcell (Appellant) I V Knight - Crown Solicitor (Respondent)
CATCHWORDS:	ENVIRONMENTAL LAW - Use by Council of land for waste depot - Breach of Environmental Planning and Assessment Act 1979 - No consent granted by Council before commencement of operation of Depot - What constitutes development consent - Consent not recorded in appropriate register - Whether absence of a record is evidence for absence of consent; EVIDENCE - Burden of proof - Civil standard - Onus of proof - Civil onus - Negative proposition - Evidential burden carried by defendant; EVIDENCE - subpoena - proper construction of
DECISION:	Allowed by majority

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40389/97
LEC 40220/96


MASON P
SHELLER JA
POWELL JA

Tuesday 18 May 1999

BAIADA & ORS
v WASTE RECYCLING AND PROCESSING SERVICE OF NSW

JUDGMENT

1 MASON P: The appellants are residents of Marsden Park who were unsuccessful in proceedings in the Land and Environment Court. They seek to restrain the continued use by the respondent of the Grange Avenue Waste Management Centre as a putrescible solid waste depot.
2 The depot has been in continuous use as a rubbish tip since 1974. It was resumed by the Blacktown Council for that purpose. It was a Council tip until 1977 and thereafter has been operated as a rubbish depot by the respondent. A lease from the Council to the respondent permits and effectively constrains the respondent to use the site as a rubbish depot. Particular aspects of the depot, necessary for its effective use as a rubbish tip, have been the subject of formal development consents emanating from the Council to the respondent. Despite all this, the appellants established at trial that no development consent had been granted by the Council to the respondent which permitted and controlled the use of the site generally as a rubbish depot, as required by the relevant planning instrument. (That finding stands unchallenged on appeal.) Nevertheless, the appellants failed to persuade the trial judge that no consent had been granted by the Council to itself. The dismissal of the proceedings consequent upon that finding is challenged in the appeal. If the appellants are successful, they face a protracted hearing on discretionary issues relating to the injunction they seek.
3 There is an air of total unreality about this case. It has the appearance of a moot set by an examiner with the philosophical interests of a medieval schoolman who has little knowledge of the rules of procedure and evidence. The pleadings reveal confusion about the location of the onus of proof. Overt acts clearly indicating approval of conduct are said not to represent or evidence development consent, because they were done alio intuitu. Conversely, the very acts as between lessor and lessee held not to constitute or establish consent from the lessor to the lessee are said nevertheless to constitute or establish consent from the lessor to itself. The ancient fiction of a “lost modern grant” has been invoked.
4 At each stage of the proceedings the parties have joined issue in a manner which (despite good intentions) has impeded the Court from addressing the substantial merits of the whole dispute. I refer to the decision (at trial) to defer consideration of discretionary issues and the decision of the respondent (on appeal) to file no notice of contention in relation to the finding that the Council did not grant consent to the respondent. This Court must assume, in an adversary system, that each of those decisions was properly taken. But each decision has contributed in its own way to my feeling of substantial unease in being confined in the Court of Appeal to addressing the limited matters raised for consideration.
Acquisition and operation of waste depot
5 The depot stands on Lot 3 in DP 571348. It was resumed and vested in the Blacktown Municipal Council (now the Blacktown City Council) on 17 May 1974. The resumption was effected at the initiative of the Council pursuant to the Local Government Act 1919 (“the 1919 Act”). The express purpose of the resumption as gazetted was:
for the purpose of providing, maintaining, managing, controlling and regulating a sanitary depot and destructor for the disposal or destruction of depot-rubbish.

6 The land has been used for this purpose since 1974.
7 The resumption process was under way in 1971. It involved the Council in considering and rejecting neighbours’ complaints about the proposal, and negotiating between 1972 and 1974 with the Department of Public Health, the State Planning Authority, the Department of Local Government and the respondent. (The respondent is constituted under the Waste Recycling and Processing Service Act 1970. It was previously known as the Metropolitan Waste Disposal Authority and is now known as the Waste Recycling and Processing Service of New South Wales (“WRAPS”).)
8 We were not referred to any statutory requirement for the Council to have involved the respondent in the resumption application that was being handled by the Department of Local Government. Perhaps it was government policy. Perhaps it was because the respondent contemplated taking over the site, as it later did. The respondent indicated its agreement with the proposed development and informed the Minister for Local Government accordingly.
9 The Department of Health was involved because s283(4) of the 1919 Act required “the situation” of any sanitary depot to be subject to the approval of the Minister of Health. The Health Commission of New South Wales negotiated with the Council as to the conditions upon which approval would be based. These negotiations involved the Council in the detailed investigation of matters relevant to environment and amenity including drainage, site capacity, run off and control of leachate. The Minister’s formal approval for the use of the area as a sanitary depot for the disposal of garbage, subject to conditions, was notified to the Council on 11 December 1974.
10 The application for resumption was processed by the Department of Local Government and culminated in an Executive Council Minute on 8 May 1974 that was gazetted on 17 May 1974.
11 The dumping of rubbish commenced in late 1974, initially under the control of Council employees. Grange Road West was sealed as far as the depot. Quotes were called for the erection of an amenities block, fencing, clearing, connection of water and electrical services and the construction of roadworks within the depot.
12 By mid-1974 there was controversy about a proposal that had apparently emanated from the respondent. The proposal was that the depot would be used as a regional depot. The Council resolved on 16 July 1974 to inform the respondent that it objected strongly to such use. Nevertheless, from at least as early as 1976 the respondent was negotiating with the Council about a proposed take-over and expansion of the depot. A letter of 24 December 1976 shows the respondent willing to negotiate terms and conditions.
13 On 26 January 1977 the Council resolved to invite the respondent to take over the depot on a lease basis. The respondent was notified accordingly on 2 February 1977. On 28 April 1977 the respondent wrote to the Council enclosing a drawing showing how it proposed to develop the site. The letter sought permission to enter the site for the purpose of constructing a new access road and carrying out preparatory site works. This permission was notified on 19 May 1977.
14 The respondent took over the operation of the depot from 1 July 1977. In August 1977 the respondent sought and obtained formal consent in accordance with Pt XIIA of the 1919 Act for the installation of a weighbridge office and truck bay. The written application which led to this consent disclosed the proposed use of the weighbridge office and truck bay for use as “waste disposal depot”. In 1979 a toilet block was installed and once again formal consent was sought and given. Development consent for an amenities building issued to the respondent in 1991. In 1996 consent issued to the respondent for construction of three surface water retention dams.
15 Lease negotiations can sometimes take time to come to fruition. The formal Lease of the site was executed in favour of the respondent on 23 August 1985. The term of the Lease is:
Ten (10) years commencing on 1 July 1977 or until the demised land shall have been completely filled with waste and the surface of the filled area restored to the levels and treated in the manner herein after provided whichever shall first occur.
There was an option for renewal. Among the usual covenants was a covenant to keep the demised land open to the public for the receipt of waste between stated hours on certain conditions (cl 7).
The planning requirements before the Environmental Planning & Assessment Act 1979
16 During the 1970s the planning requirements touching the land derived from Pt XIIA of the 1919 Act. These include the ordinances made under that Act and especially the Blacktown Planning Scheme Ordinance (the “BPSO”) which was first gazetted in 1968.
17 The BPSO was in common form. By reference to the land use table for the relevant zoning (Non-urban 1(a)), the consent of the Council was required for development as a tip (see cll 6(2) and 23). Part V dealt generally with consents. Clause 33 required any application for consent to be made in writing to the responsible authority and to be accompanied (in the case of a development consent) by:
a plan in triplicate sufficient to identify the land to which the application relates and particulars in writing, in triplicate, of the purpose for which the building, work or land is used at the date of the application and the purpose for which consent is sought.

18 Remaining clauses in that Part required the consent authority to take various matters into consideration and to consult with various authorities. It has not been suggested that there was any failure to do so in the present case. Rather, the appellants have contended that no consent was sought and/or given under the BPSO.
19 Clause 40(1) permitted the responsible authority to grant an application for consent unconditionally or subject to conditions or to refuse to grant such application. Notice of a decision was required to be given to the applicant (cl 40(2)).
20 Clause 77 required the Council to maintain a public register of consents.
21 Ordinance No 1 under the Local Government Act provided (in cl 58) that:
Whenever it is provided by or under the Act than any permit, authority, approval, consent or certificate is to be, or may be, given or granted by the Council, or Mayor, or President, the same shall be in writing signed by the Mayor, or President, or Clerk.

22 Ordinance No 32 provided (in cl 4A):
Permits and Approvals under Part XIIA of the Act

4A. The Council shall cause to be kept in some suitable form a register of every permit, authority and certificate granted by, or application made to the Council, under Part XIIA of the Act.

23 Upon the commencement of the Environmental Planning and Assessment Act 1979 (EPA Act) on 1 September 1980, extant consents granted in respect of an application made under a former planning instrument continued in force and effect according to their tenor, subject to the Act (see Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 3, cl 7).
The challenge fails in the land and environment court
24 In October 1995 the solicitor for the appellants wrote to the respondent stating that certain letters previously provided did not constitute development consent.
25 The respondent replied on 6 November 1995. So far as relevant, it stated that the following advice had been received from the Blacktown Council:
A search of Council’s records so far has failed to locate the requested original development consent. Investigations have revealed that Council, pursuant to the provisions of the Local Government Act 1919, resumed the subject land in 1974 for the purpose of establishing a sanitary tip/garbage depot.

On 14th August 1974 approval was sought from the Metropolitan Waste Disposal Authority, a statutory authority established in 1971 for Waste Management in the Sydney Region, for a proposed garbage depot. The authority granted permission on 2nd September 1974 subject to standard conditions of approval. It would appear that operations commenced shortly after this date with the 1975 aerial photograph showing some evidence of disturbance to the lower portion of the site.
In 1977 Council leased the land to the Metropolitan Waste Disposal Authority who assumed control and developed the site into a regional depot. Various development consents were subsequently issued to the Metropolitan Waste Disposal Authority in 1977, 1979 and 1981 for works associated with the waste depot. Details of these consents are as follows:

· Notice of Determination No 4586 (5/8/77) for construction of a weighbridge, office and truck bay - DA-2319.
· Notice of Determination No 14149 - toilet block (23/10/79) - DA-2936.
· Notice of Determination No 436 - amenities building (9/4/81) - DA-3481.

….
Waste Service is of the opinion that it has been and is operating the Grange Avenue Waste Management Centre in accordance with all necessary Council approvals. There appears to be no valid reason for Waste Service to consent to any orders restraining the further use of the Site as a Waste Management Depot for any period or upon any terms. In essence the giving of such consent could be deemed to be an acknowledgement that Waste Service is operating the Centre unlawfully, which is disputed. It is the view of Waste Service that any problems could be resolved through a mediated Community Agreement without the necessity for court proceedings and the associated costs involved therewith, and Waste Service would recommend the continuance with the Independently Facilitated Consultation Process.

[“Waste Service” was a trading name of the respondent.]
26 Proceedings were commenced on 26 September 1996 in the Land and Environment Court. The appellants claimed a declaration that the use of the land for purposes of a putrescible solid waste depot was unlawful; and an order that the respondent cease using the land for that purpose until development consent for that use was granted.
27 Points of Claim and of Defence were exchanged. Relevantly the appellants pleaded:
7. No development consent for the use of the land for purposes of a putrescible solid waste disposal or garbage depot was granted by the Council before the commencement of the operation of the Depot, and no such consent has since been granted.

8. In the premises, the use of the land for purposes of a putrescible sold waste disposal or garbage depot is in breach of the Environmental Planning and Assessment Act 1979 .

28 In its Defence the respondent pleaded:
3. In answer to paragraph 7 the Respondent says at all material times its use of the land was carried on pursuant to all necessary consents and approvals.

4. The Respondent denies paragraph 8 of the Points of Claim.
5. In the alternative the Respondent says that in the exercise of discretion the Court would not make any of the orders sought in the class 4 Application.

Para 3 of this pleading and the particulars explaining it (see below) saw the respondent purporting to assume an onus which the law did not impose upon it.
29 In response to a request for particulars of the “necessary consents and approvals” referred to in para 3 of the Points of Defence, the respondent’s solicitor indicated by letter dated 13 December 1996:
The respondent says that the approval of the Council to the use of the land was necessary before and after the use commenced. The respondent further will say that the relevant approval of the Blacktown Council was obtained:

(a) on 2.8.1972 when the Blacktown Council resumed the land; and/or
(b) in November and December, 1973 following consultation by the Blacktown Council with the Health Commission of New South Wales and the State Planning Authority of New South Wales as to the conditions under which the use of land was permitted to take place for the stated purpose; and/or
(c) thereafter when the Blacktown Council permitted the land to be used for the stated purpose; and/or
(d) on 2.2.1977 when the Blacktown Council approved the use of the land under lease; and/or
(e) on 5.8.1977 when the Blacktown Council approved the weighbridge and truck bay on the land (DA 2319); and
(f) on 23.10.1979 when the Blacktown Council approved a toilet block on the land (DA 2936); and
(g) on 9.3.1981 when the Blacktown Council approved an amenities building on the land (DA 3481).

Declining to provide particulars of the denial in para 4 of the Defence, the solicitor added nevertheless:
However, by virtue of the matters particularised above, the use of the land for the stated purpose is not in breach of the EPA Act.

30 The appellants’ solicitor pressed for further information in relation to para 3 of the Defence. In a letter dated 25 March 1997 the respondent was asked to indicate the date on which Blacktown Council first granted development consent under the Blacktown Planning Scheme Ordinance for the use of the land for purposes of a putrescible solid waste depot. The solicitor’s response (by letter dated 9 April 1997) was:
The dates on which the Blacktown Council first granted development consent are referred to in the particulars provided to para 3 of the Points of Defence in the letter dated 13 December 1996. Those particulars give the relevant alternative dates.

31 The Council responded to a subpoena issued by the appellants by producing photocopies of two registers relating to Grange Avenue, Marsden Park. The first register had entries spanning the period 7 February 1974 and 24 October 1979. There were columns for “Land description”, “File No.”, “Consent”, “Applicant”, “Development Approved” and “Date”. This register contains entries concerning consents granted to the respondent for the weighbridge office and truck bay (5 August 1977) and the toilet block (23 October 1979).
32 The second register spans the period between 18 November 1980 and 23 January 1997. There are columns for “Deter. No.”, “File No.”, “Applicant”, “Property Description”, “Development” and “Date”. This register records the consent to the respondent for the construction of three surface water retention dams on 24 May 1996.
33 No other relevant consents are recorded in the registers.
34 An order was made for the postponement of the hearing and determination of the issue of the exercise of the Court’s discretion whether or not to make orders.
35 As I read the judgment of the learned trial judge, his conclusion favourable to the respondent involved the following steps:
1. No written form of development consent is in evidence. Nor is there any direct evidence that such consent was ever applied for or obtained.
2. The appellants, as the moving parties, bore the onus of proof of the absence of development consent (Jones v Sutherland SC [1979] 2 NSWLR 206 at 212-3).
3. The response to a subpoena issued to the Council produced copies of two registers (of consents). These entries include recordings of consents for the weighbridge office and truck bay (1977), toilet block (1979) and three surface water retention dams (1996) but no other entries referable to the land. In particular, there is no entry for DA 3481 (amenities building) which is referred to in the letter of 6 November 1995 from the respondent which is set out above (para 25). No witness was called to give evidence in relation to the keeping of the register or the nature of inquiries made before the documents were produced.
4. There is no evidence of the nature or extent of records kept by the Council in regard to development consents.
5. None of the approvals obtained by the Council from other agencies such as the respondent, the Department of Public Health, the SPA and the Department of Local Government related to or comprised development consent under the BPSO.
6. Nor did the Council’s actions in resuming the land, satisfying the requirements of s283 of the 1919 Act, or approving the use of the land under lease, constitute development consent or absolve the respondent from its obligation to obtain development consent.
7. In the light of these matters the judge inferred that no development consent had been granted to the respondent.
8. The Council’s response to the subpoena could not be regarded as an admission against the respondent. And its probative weight generally was limited by the absence of evidence as to the nature of or the extent of records kept by the Council, or the manner and extent of the search undertaken in order to produce documents in answer to the subpoena. The absence of reference to the 1991 development consent for the amenities building also undermined the weight of the register as a proof of the non-existence of consent.
9. In these circumstances, Talbot J concluded that:
In the absence of any attempt to prove the manner and method of recording the making of development consents and the determination thereof and the nature of the search undertaken in respect of the council records, it is not open for the Court to conclude on the balance of probabilities that consent was not obtained, particularly by the council.

The essential question is one of fact. Even though the applicants have been able to show that the existence of a development consent is not established, it is the omitted facts that create a problem. The problem is exacerbated by the prospect that the council may have resolved to grant development consent to itself without either issuing a formal written consent or causing an entry to be made in the appropriate register at the time. This possibility has not been excluded. The failure by BCC to keep prescribed records, either in accordance with its own planning instruments or the Regulations under the EPA Act, does not have the effect of invalidating a consent.
The absence of the recording of any consent however supports the drawing of the necessary inference. If the Court could be satisfied it has before it the entirety of the council’s records, including resolutions regarding the Grange Avenue property, together with an explanation of any search undertaken, it may have been in a position to accept the submissions put by Mr Robertson on behalf of the applicants to draw the inference that no development consent has been granted. Unfortunately for the applicants that is not the case.
As Windeyer J said in Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 577, it is not to be assumed that the council and its officers neglected their duties or discharged them in a perfunctory manner.

36 This passage indicates that Talbot J was prepared to infer that no general development consent was ever granted to the respondent. However, the appellants had failed to exclude the possibility that the Council may have resolved to grant consent to itself. His Honour’s concluding remarks made this point clearly:
Conclusion

Although nothing that discloses the grant of development consent for the depot to the council or the present respondent has been shown to exist, the Court is not prepared to infer that there is no such consent. The Court is not aware of a challenge raised at any relevant time prior to the time related to the commencement of these proceedings. Therefore this is not a case of a person being told that holding a consent is needed and expecting that person to say so if it did. Nor is it a case where there is evidence of an inquiry made as to the existence of a consent and the response is relied upon to infer that no consent exists.
It is not necessary for the absence of a grant of development consent to be established by irrefragable inference. The fact of omission is, in respect of a grant of consent by the council to itself, not probable to a sufficient degree. However, the respondent has within its power the ability to rebut the inference in respect of any consent granted to it and yet has not done so. I am therefore prepared to infer that no development consent has been granted to the respondent, other than for the specific purposes referred to in the evidence. In my opinion, the applicants have not proved their case by failing to establish on the balance of probabilities the absence of a grant of consent to anyone else, including the council.
It follows therefore that the respondent has been successful and accordingly the appropriate order is that the application be dismissed.

An issue not raised in the appeal

37 Surprisingly, there was no notice of contention raised to challenge the finding that the Council’s dealings with the respondent did not constitute or evidence development consent to the respondent. I would have thought it strongly arguable that the Lease itself constituted consent given that it expressly authorised use of the Council’s land as a tip (cf Holloway Brothers Ltd v Hill [1902] 2 Ch 612).
38 There is a body of case law discussing what constitutes consent under a prescribed scheme such as the BPSO. There is also a parallel line of authorities discussing what constitutes approval of a subdivision application. See generally Wilcox, The Law of Land Development pp126-130, 392-397. The question whether a consent has been given is one of fact that is capable of proof by evidence of express consent by the responsible authority (or a duly authorised delegate) or by conduct evidencing consent (Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 576-7 per Windeyer J. See also Pearson v Leichhardt MC (1997) 93 LGERA 206 at 211). Several cases discuss whether particular correspondence from a council identified with sufficient specificity the development approved of, or whether the words of approval in a particular case had sufficient finality (see eg Holmes v Ryde MC (1969) 90 WN(NSW) Pt 1 290 at 293-4; Loretta Constructions and Investments Pty Ltd v Gosford SC [1972] 2 NSWLR 340 at 343-4; Foote v Browne (1977) 35 LGRA 146; Trehy and Ingold v Gosford City Council (1990) 69 LGRA 295). These cases indicate that a letter or other document may constitute consent notwithstanding the absence of formal reference to the provision giving authority to consent in the particular case.
39 Since there is clear evidence that the Council did in fact approve of the garbage depot, the clearest evidence being the resolution authorising the lease to that effect, this case does not throw up any issue of an unauthorised agent purporting to estop the consent authority by representing, contrary to the fact, that consent had been given (cf Russell v Brisbane City Council [1955] St R (Qd) 419; Maurice v Bankstown Municipal Council (1962) 8 LGRA 173).
40 Nevertheless, the present case is distinguishable because it is not possible to point to any document indicative of the Council adverting to its power to grant or withhold consent. We have not been referred to any case in which conduct clearly evincing and evidencing consent for one purpose (eg the grant of a lease) is said to constitute consent or approval for another (eg a development application). Here of course there was no direct evidence of any application for consent in terms. But equally there was no direct evidence of the absence of any such application.
41 The respondent’s letter of 28 April 1977 (para 13 above) was an application of sorts, albeit that it fell short in some respects of the formalities stipulated in clause 33 of the BPSO (para 17 above). Non-compliance with formalities touching the manner in which an application is made or dealt with or in which a consent is recorded does not itself necessarily invalidate a consent. Indeed, proof that a consent has issued may enliven an obligation by the consent authority to complete and perfect any necessary formalities (Ex parte Forssberg; In re Warringah Shire Council (1927) 27 SR(NSW) 200; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1).
42 In other contexts at least, a public authority may purport to act in reliance upon one source of authority and thereby satisfy the requirements of an additional or alternative source of authority (Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85-6). Of course the present context is slightly different in that there is said to be no direct evidence of the Council intending to grant general consent for the purposes of the BPSO. In Holroyd Municipal Council v Rogers (1969) 17 LGRA 388, the issue by council of refreshment room licences under Ordinance 69 was held not to operate as a consent to the use of the land under the County of Cumberland Planning Scheme Ordinance. However, this decision turned upon grounds other than the contention that an act done by council with one purpose could not serve the dual purpose of constituting planning consent (see at 392).
43 This said, the point has not been debated in the Court of Appeal. The finding that the appellants established that no relevant consent had been granted to the respondent stands unchallenged.
The appellants’ submissions
44 The appellants challenged the trial judge’s refusal to infer that the Council omitted to grant itself consent. On the basis that the Court of Appeal was in as good a position as Talbot J, we were invited to draw the inference that he was not persuaded to draw.
45 The appellants accepted that if there is a consent, the fact that it is not recorded in the appropriate register would not invalidate that consent. However, they submitted that absence of a record is evidence of absence of consent. I do not understand this latter proposition to have been disputed, and I would accept it for reasons developed below.
46 The appellants relied upon:
(a) the documentary evidence demonstrating that no reference to a consent was made at any of the times particularised by the Respondent as constituting a grant of consent;

(b) the failure of the Respondent to call evidence of a consent to itself or to Council, from its own knowledge, its records or the records or knowledge of its lessor the Council, despite its request to Council for advice about the consent …;
(c) the absence of the consent from the public register of consents which Council was required by law to keep as a record of all consents relating to the land;
(d) the absence of any application for consent, which Council was required to keep and make available for public inspection;
(e) Council’s admission which was adopted by the Respondent that after search it had been unable “to locate the requested original development consent” …;
(f) the proximity of the respective interests of Council and the Respondent. (Appellants’ submissions §10)

47 The appellants challenged the trial judge’s approach to the non-production of any application or consent in response to the subpoena directed to it. It was submitted that non-production was probative, both as an admission by a party in privity with the respondent and as direct evidence of the non-existence of consent. It was not incumbent upon the appellants to go further and call evidence of the record-keeping practices of the Council or the search undertaken by the subpoena. His Honour’s reliance upon the non-production of the 1981 development consent as indicative of the inaccuracy of the register as a whole was said to be unfair in that no such point was taken at the trial.
48 It was further submitted that Talbot J had applied a standard of proof higher than the balance of probabilities, because he had relied upon the failure of the appellants to exclude “the possibility” that the Council may have granted consent without a formal written consent (see the passage quoted in para 35 above).
49 Finally, it was submitted that Talbot J erred in applying the presumption of regularity to defeat inferences otherwise arising from the absence in the Council’s records of reference to any development consent. The Council was required by its own planning instrument to maintain a record of its consents (BPSO, cl 77). If it had issued a consent to itself, it should be presumed that it would have recorded it (cf Jones at 226 per Mahoney JA).
The respondent’s submissions
50 The respondent did not dispute the proposition that the BPSO applied to the Council as developer. It accepted that it was open for the Council to give consent (to itself) under the BPSO.
51 The respondent submitted that the subpoena to the Council was defective in that it did not call for production of any development consent issued before the commencement of the EPA Act on 1 September 1980.
52 The appellants’ submission that Talbot J approached the matter otherwise than on the balance of probabilities was disputed. It was said that the correctness of his decision was reinforced by appreciating that the appellants’ case involved a serious breach of s76 of the EPA Act that carries concurrent criminal and civil liability (cf Evidence Act 1995 s140(2)(c)).
53 It was submitted that there was lacking the type of evidence referred to by Waddell J in Jones v Sutherland SC (1978) 38 LGRA 432 at 437 namely:
· the calling of a person who is able to state what was the system of record-keeping at the Council during the relevant period; and
· who could say that, if any consent had been granted, it would have been recorded in a particular way; and
· go on to say that he or she had searched the record and that there was no record of any consent being given to the use in question.

Proving a negative: subpoena to record-keeper

54 It is common ground that the appellants bore the onus of proving the negative proposition which they tendered, namely that no relevant consent existed. This onus did not shift, despite the respondent’s assertions that consent existed in its Defence and in the letter of particulars (cf Coshott v Sakic NSWCA, unreported, 3 September 1998).
55 Where, however, relevant facts are peculiarly in the knowledge of a defendant or where the defendant has the greater means to produce evidence relating to those facts, then provided the plaintiff establishes sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden (Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 391; Apollo Shower Screens Pty Ltd v Building and Industry Long Service Payments Corporation (1985) 1 NSWLR 561). This principle would have assisted the appellants in seeking to disprove the existence of consent granted to the respondent. However, they succeeded on this point and no notice of contention has been raised against them.
56 There was much debate before us about the proper construction of the subpoena. There was dispute as to whether the subpoena called for production of consents that issued prior to 1980; and whether the obligation currently stemming from s104 of the EPA Act to keep a “register of consents granted under this Division” extends to consents deriving their ultimate authority from the 1919 Act. I find unnecessary to resolve that debate, because there is sufficient ambiguity on the point to lead to the conclusion that the failure to address or clarify it at trial precludes the appellants from drawing any probative inference from the non-production of any consents.
57 But whatever the proper scope of the subpoena, it led to the production of the two registers. These contain many entries, including (as indicated) entries concerning particular consents in favour of the respondent. In my view Talbot J was correct to regard the registers as providing evidence of the non-existence of consents other than those recorded therein. The principle is stated in Wigmore on Evidence (Chadbourn rev) at §1633(6):
Since the assumption of the fulfilment of duty is the foundation of the exception, it would seem to follow that if a duty exists to record certain matters when they occur, and if no record of such matters is found, then the about them is evidence that they did not occur; or, to put it another way, the record, taken as a whole, is evidence that the matters recorded, and those only, occurred.
See also Evidence Act 1995, s69(4).
Did the appellants establish absence of consent to the Council?
58 I do not read Talbot J as holding that the records produced were incapable of providing evidence on the matter of the Council’s consent to itself. But Talbot J was not bound to accept that such evidence established the negative proposition contended for. Did he err, nevertheless, in holding that the appellants had failed to make good their contention? This is a matter in which this Court is in as good a position as the trial judge.
59 Despite the infelicitous reference to the appellants’ failure to exclude the “possibility” that the Council had granted itself consent, I do not find that his Honour erred in failing to decide the matter according to the standard of proof required by s140 of the Evidence Act. Reading the reasons for judgment as a whole, the case was decided according to the civil onus.
60 Nevertheless, in my view the appellants did establish to the requisite standard that no consent had been granted by the Council to itself. My reasons follow:
(a) The registers were as probative in relation to the non-existence of consent to the Council as they were in relation to the non-existence of the relevant consent to the respondent. That is because they purported on their face to record all development consents for the area that included the land covering the period within which consent by the Council to itself (had it been given) would have been given. The Council did not acquire the land until May 1974, ie after the first entry in the first register. Notwithstanding the submissions to the contrary of the respondent, I think it unlikely that the Council would have addressed the issue of development consent prior to acquisition of the land and independently by the negotiation with the Department of Health (para 9 above). The small gap between the last entry of the first register and the first entry in the second is probably explicable by the absence of any consents during that period. But in any event it covers a time (1979-1980) after the control of the tip had passed to the respondent and after particular consents had been granted on the application of the respondent.
(b) Talbot J cited Windeyer J in Brickworks (at 577) in support of the proposition that it is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. However, this particular application of the presumption of regularity cuts both ways in the present case. True it is that the appellants bear the onus of establishing the failure to do an action (ie obtain consent) the breach whereof is punishable at law. But the same can be said about the Council’s obligations stemming from the BPSO and Ordinance 32 to record any consent in the register. In Brickworks there was no doubt that an application for consent had been presented to Council.
(c) The evidentiary groundwork was not laid for drawing the distinction that was ultimately critical to the determination of this case at trial. Indeed, it is somewhat unclear why his Honour was prepared to infer that no consent had been granted to the respondent, but was not prepared to infer that no consent was granted by the Council to itself. The same primary material is relevant to each. The appellants submitted that the Council may have assumed that it had attended to this formality or it may have believed that (in the light of the concurrence of the State Authority: cf AB 213) it was unnecessary for a consent authority to provide or record by resolution or otherwise the granting of consent to itself. Ultimately, this submission was almost entirely speculative. But so too, in my view, was the contrary submission that the Council would not have overlooked the matter.
(d) This was a case where it was proper to infer that, if the respondent held a relevant consent or evidence thereof, then it would have been produced. The proceedings were civil proceedings in which the appellants established evidence from which an inference favourable to their ultimate contention was clearly capable of being drawn. The respondent had it within its means to produce evidence of consent if it had it. Its failure to do so leads to an inference that no such evidence exists (Jones at 226). In the concluding portion of his judgment (set out at para 36 above) Talbot J suggested that this principle was inapplicable because no challenge had been raised “at any relevant time prior to the time related to the commencement of these proceedings”. In these circumstances he was not prepared to draw any inference against the respondent for not having produced the consent. With respect to his Honour, I do not understand any basis for limiting the relevant period to that prior to the commencement of the proceedings (cf Jones v Dunkel (1959) 101 CLR 298, Commercial Union Assurance Company of Australia Ltd vFerrcom Pty Ltd (1991) 22 NSWLR 389).
(e) In my view the inference of lack of consent can more safely be drawn in the light of the letters of particulars from the Crown Solicitor’s office which are extracted above. Coming from the solicitor for a party in the context of providing a response to a request for particulars, the letters are properly to be read as admissions that no “relevant approval” was obtained other than the approvals identified in the letter of 13 December 1997 (none of which were found to constitute an approval under the BPSO). The point is made even clearer in the letter of 9 April 1997 which stipulated that:
The dates on which the Blacktown Council first granted development consent are referred to in the particulars provided…in the letter dated 13 December 1996. Those particulars give the relevant alternative dates.
Although the onus remained with the appellants, these responses had probative force (cf Lustre Hosiery Ltd v York (1935) 54 CLR 134 at 143).
(f) It is true that the appellant did not call anyone to prove the system of record keeping at the Council during the relevant period. But the appellants were not obliged to do so having regard to the probative effect of the registers produced.
(g) Talbot J considered that the accuracy of the register was undermined by the absence of any record relating to the development consent referred to in para (g) of the particulars provided by the Crown Solicitor’s Office on 13 December 1996 where it was stated that:
On 9.4.1981 … the Blacktown Council approved an amenities building on the land (DA 3481).
I am prepared to assume that this letter provides some evidence that there was a development consent given on this occasion. If so, the register is deficient because it contains no reference to it. However, I am not prepared to regard this omission as a sufficient basis for outweighing the probative effect of the other matters tending to prove that there was no relevant consent. I therefore find it unnecessary to address the appellants’ submission that it was unfair for an inference to be drawn based upon the omission of the register to record any dealing relating to the 1981 consent because the matter was not raised at trial.
(h) To my mind, this is an area where the law should lean in favour of doing things “by the book”. A Council is not above the law, and should as a general proposition stand accountable for its actions. The creation of proper records evidencing the seeking and granting of consent serves several functions, including that of being the means of forcing a decision-maker to ensure due consideration of relevant issues and interests. Bearing in mind that the civil onus is involved, I see no reason why a court should hasten to draw a favourable inference in circumstances where the Council itself was shown to have been unable to produce the ultimately relevant consent.
61 For these reasons I would uphold the appeal and set aside the orders made in the Court below. The parties were agreed that it would be appropriate to declare that no development consent exists for the use of the land as a putrescible waste depot. This agreement was made in the context that it did not foreclose the discretionary phase of the proceedings by suggesting any position in relation to the injunctive relief sought by the appellants. The costs of the separate issue chosen by the parties should follow the event, as at trial.
62 I propose the following orders:
1. Appeal allowed.
2. Set aside the orders made by Talbot J on 30 May 1997.
3. In lieu thereof, declare that no development consent exists for the use of the land in lot 3 DP 571348 as a putrescible waste depot.
4. Remit the proceedings to the Land and Environment Court for the determination of remaining issues.
5. Respondent to pay the appellants’ costs of the proceedings on the issue determined.
6. Respondent to pay the appellants’ costs of the appeal.
63 SHELLER JA: I agree with Mason P.
64 POWELL JA: I have read the Judgment which has been prepared by Mason P, with which Judgment I understand Sheller JA to agree. Although I agree with the comments which Mason P has made as to the parties’ conduct both of the hearing at first instance and of the appeal, I regret that I am unable to share his Honour’s views as to the fate of the appeal.
65 At the heart of the Appellant’s case is the assumption - the validity of which appears to me to be doubtful, and the basis for which, although sought by me on several occasions (see, for example, T3,13,15) during the course of the hearing of the appeal, was not identified by counsel - that if, in 1974, a council wished, or if a council now wishes, to undertake, in the area for which it then was, or now is, the responsible authority, a form of development which could, or may, lawfully be undertaken only with the consent of the council, as such responsible authority, the council then was, and now is, obliged to lodge with itself a formal written application for development consent, to pay to itself the fees required to accompany such an application, to consider whether consent to such development ought to be granted, then to issue to itself a formal notice of its determination of the application, and, finally, to record the fact of its giving that consent in a register kept by it.
66 As best as - in the absence of any assistance from counsel - I can judge it, the basis for the assumption that this was the position in 1974 was, first, the inclusion in planning scheme ordinances of provisions - such as those contained in cll 38-38 of the Blacktown Planning Scheme Ordinance (“BPSO”) - providing for applications for the consent of the relevant responsible authority to be made in writing to the responsible authority; providing for the responsible authority, when dealing with such an application to take into account certain matters; providing for the relevant responsible authority, before determining applications for certain types of development, to consult with other bodies such as the - then - State Planning Authority (“the SPA”); of provisions - such as that contained in cl 40 of BPSO - providing for the giving of notice as to the determination of an application for development consent; and of provisions - such as that contained in cl 77 of BPSO - for the keeping by the relevant responsible authority of a register of consents.
67 As best as I can judge it in the circumstances, the basis for the assumption that this is the present position would appear to be the provisions of Pt 4 of the Environmental Planning and Assessment Act (“the EPA Act”) 1977 and of the Environmental Planning and Assessment Regulation.
68 I can readily accept that, if some statute or a planning scheme ordinance or other like instrument provides that, before consent to a particular form of development may be given, the relevant responsible authority must consult with, or obtain the concurrence of, or obtain the approval of, some other person or body, or take some other step, as, for example, advertising the application for development consent, then a council which proposes to carry out development of that type within the area for which it is the responsible authority must first consult with, or obtain the concurrence of, or obtain the approval of, that other person or body, or take that other step, before it may lawfully carry out the proposed development.
69 So, too, I can readily accept that, if a council proposes to carry out, in an area for which it is not the responsible authority, development of a type which may only lawfully be carried out if the consent of the responsible authority be given, then the council is obliged to seek, and obtain, the consent of the relevant responsible authority (see, for example, Deniliquin Municipal Council v. Murray Shire Council (1988) 58 LGRA 161) and, for that purpose, to make a formal application for development consent.
70 However, even if one is to accept that a council which proposes to carry out, in the area for which it is the responsible authority, development of a kind which may only lawfully be carried out with its consent as such responsible authority, must consent to the carrying out of that development (as to which see Prospect County Council v. Blue Mountains City Council (1992) 28 NSWLR 301, 316F per Mahoney JA (as he then was) 317F per Handley JA) I see no reason why the giving of consent must - although we were informed (T 3) that, in practice, this now commonly happens - be preceded by the lodging by the council with itself of a formal application for development consent, and be followed by the issue by the council to itself of a formal notice of determination of the application, and the recording of consent in a register, in default of which the development, when undertaken, is to be regarded as having been undertaken without consent and, thus, as having been, and being, unlawful.
71 Notwithstanding the absence, in the present case, of evidence of a formal development application lodged by the council with itself, of the issue by the council to itself of a formal notice of determination, and of a record of development consent having been given being contained in a formal register kept by the council, it seems to me that the materials which were tendered on the hearing - and, in particular, the material which is to be found in the council’s records, and to which I later refer - lead irresistibly to the conclusion that the council did, in fact, consent to the subject land being developed, and operated, as a waste disposal depot, which consent enured for the benefit of the Respondent when, in 1977, the Respondent took over the operation of the depot.
72 The BPSO which was prepared by the council, and which in its original form, was gazetted on 26 April 1968, at that time applied to all land within the - then - Municipality of Blacktown, the subject land being then located within a Non-urban (a) Rural (25 acre minimum area) zone. Within such a zone, land could be used for the purposes of a waste disposal depot only with the consent of the council as the responsible authority (cll 23,25) applications for consent being provided for in cl.35.
73 It should be noted that, although the council, as the responsible authority, had the power to consent to the establishment and operation within its area of a waste disposal depot, and although the council had power itself both within, and outside, its area to establish and operate a waste disposal depot (Local Government Act 1919 (“the LG Act”) s.283(1)(a),(3)):

1. the situation of any such depot was subject to the approval of the Minister for Health;
2. after the coming into operation of the provisions of the Waste Disposal Act 1970 (“the WD Act”), no such depot could be established or operated without being registered with, and then only in accordance with any conditions imposed by, the Respondent, then known as the Metropolitan Waste Disposal Authority.

74 It might also be noted, at this stage, first, that s.18 of the WD Act empowered the Respondent - which is a statutory body representing the Crown (s.7(1)(b) of the WD Act) - subject (inter alia) to any ordinance, to establish, whether within or outside the Metropolitan Waste Disposal Region, waste disposal depots, and, for that purpose to acquire land; and, second, that, although lands of the Crown - including statutory bodies representing the Crown - were made subject to the provisions of Part XIIA of the LG Act and of ordinances made thereunder (ss 4, 342B LG Act - see also McCarthy v. Strathfield Municipal Council (1963) 10 LGRA 32; Auburn Municipal Council v. Boles Transport Co. Pty. Limited (1978) 37 LGRA 398) ) cl 37 of the BPSO provided - as did similar clauses in other ordinances - that the responsible authority could not refuse an application by (inter alia) the Crown or a statutory body representing the Crown nor attach conditions to its consent except with the concurrence of the Minister (see McCarthy v. Strathfield Municipal Council supra).
75 However, to return to the narrative: although it is not entirely clear that this was so, it would seem (see AB 48,72) that, as at 1971, the council operated a waste disposal depot - which was also used by Baulkham Hills Shire Council - which depot was expected to reach the end of its useful life by the end of 1974 or thereabouts. It would further appear (see AB 43) that, with that prospect in mind, the council directed its staff to develop a proposal for the acquisition of land upon which a new waste disposal depot could be established.
76 On 3 November 1971 (AB 43-45), the council resolved to serve upon the owner of the subject land, and upon any interested party, notice of intention to resume the subject land. (Ordinance 77 cl 3) It should be noted, here, that the power of resumption conferred on a council by ss. 532, 536 of the LG Act was limited to “(a) purpose under (the LG) Act” (as to the effect of a resumption for purpose other than a purpose under the LG Act see Howarth v. McMahon (1951) 82 CLR 442; cp Collins v. Willoughby Municipal Council (1967) 87 WN (Pt 1) 216).
77 It would, however, appear (AB 46) that, before that notice had been served, Hollinsworth Pty. Limited (“Hollinsworth”), the owner of the land of which the subject land formed part, had become aware of, and had made representations to the council in an attempt to dissuade it from proceeding with, the proposal.
78 Those representations proved unsuccessful, and the council, in February 1972, once more resolved to serve notice of its intention to resume the subject land. That notice appears to have been served upon Hollinsworth, the Electricity Commission (“Elcom”) - which had an easement for transmission lines over the subject land - and upon a mortgagee in March 1972.
79 Thereafter, formal objections to the proposal were lodged by Hollinsworth and by private individuals and organisations - such as the Marsden Park Progress Association - who, and which, were opposed to the proposal. As was required (Ordinance 77 cl 4), those objections were considered by the council which, in August 1972 (AB 49,219), resolved to proceed with the proposal, and to execute an application to the Governor for approval to resume (Ordinance 77 cl 2 ). At the same time, the council resolved to inform the Respondent of its actions and to seek the Respondent’s assistance and support by way of representation to the Minister for Local Government. The Respondent appears (AB 50), on the following day, to have provided to the council details of the information which it required to accompany any application for the establishment and operation of a waste disposal depot. The Respondent appears (AB 206) to have provided to the council details of its standard conditions of approval shortly thereafter.
80 Following the provision of some of the information sought by the Respondent and discussions between officers of the council and of the Respondent, the latter, in a letter written in December 1972 (AB 55), informed the council that it had informed the Minister that it agreed with the proposal and supported the council’s acquisition of the subject land (the letter from the Respondent to the Minister appears at AB 212).
81 It would seem that, at some time prior to 14 November 1973, council had sought from the Health Commission preliminary approval for its proposal to establish and to operate a waste disposal depot on the subject land, and that that approval, together with an indication of the conditions to which it was made subject, had been conveyed to the council prior to that date (AB 214).
82 That having been done, the council, at its meeting of 14 November 1973, resolved (AB 215) that a letter be written to the Health Commission advising that “(the council) was in agreement with all (the Health Commission’s) conditions on (its) preliminary approval except condition No. 5 as it is anticipated that this natural watercourse will be diverted around the high side of the garbage depot and taken down the electricity easement in such a way that no contamination of this watercourse will occur from the garbage depot site”. A letter to that effect was written to the Health Commission on 27 November 1973 (AB 214) and a copy of the council’s resolution was forwarded to the Local Government Department in February 1974 (AB 218).
83 As the same meeting (AB 213), the council resolved to request “urgent approval (of the SPA) of the garbage depot site as it (was) expected that this new area (would) be required by July 1974”. Shortly thereafter (AB 216), the Secretary of the Department of Local Government advised that the SPA had agreed “to the use of the subject land for garbage disposal purposes”. The SPA’s letter to the Department of Local Government - seemingly dated 31 October 1973 - advising of the SPA’s consent to the council’s use of the subject land as a waste disposal depot appears (AB 252) no longer to be in existence.
84 At its meeting of 17 April 1974, the council resolved (AB 67) “that quotes be called for the erection of an amenities block, fencing, clearing, connection of water and electrical services and construction of road works within the proposed garbage depot at the western end of Grange Avenue, Marsden Park”.
85 On 8 May 1974 (AB 222), His Excellency the then Governor, approved of the council publishing a notice of resumption of the subject land “for the purpose of providing, maintaining, managing, controlling and regulating a sanitary depot and destructor for the disposal or destruction of depot rubbish”. The giving of such approval was thereafter advertised in the Government Gazette of 17 May 1974 (AB 223).
86 Thereafter, on 28 May 1974, the town clerk signed a form (AB 66), addressed to the Department of Public Health, of particulars of site - the subject land - proposed by the council for use as a sanitary depot for the disposal of garbage and trade waste.
87 Although it is not entirely clear that this was so, it seems (AB 67) that, at its meeting of 5 June 1974, the council resolved “that the amenities building at the new Grange Avenue Garbage Depot be erected by use of the Council’s outdoor staff wherever possible and block work, carpentry and electrical work be carried out at standard contract rates: this matter to be left in the hands of the Municipal Health Surveyor” and “All other works such as water service, installation of septic tank, fencing and roadworks be left in the hands of the Municipal Engineer.”
88 Instructions for the carrying out of those works appear (AB 68-69) then to have been given by the appropriate officers of the council.
89 On 12 June 1974 (AB 220), the council resolved to execute, and to have published, a notice of resumption of the subject land for the purposes which had been proposed. The Common Seal of the council was affixed to that notice on 20 June 1974, which notice appears (AB 12) thereafter to have been published in the Government Gazette of 28 June 1974.
90 It would seem (AB 69) that, at its meeting of 26 June 1974, the council resolved to vote an amount of $29,000.00 “for the sealing of Grange Ave. West … from Richmond Rd towards the new garbage depot.”
91 It would appear that, by this time, the Respondent was proposing that the council’s proposed waste disposal depot on the subject land should be operated, not as a local, but, as a regional, depot, and had written to the council to that effect. That this was so is demonstrated by the resolution passed by the council at its meeting of 24th July 1974, which resolution (AB 70) was, in part, “that (the Respondent) be informed that … Council objects strongly to the use of council’s proposed depot at Grange Avenue … as a Regional Depot … (and that) Council has been involved in considerable expenditure in the acquisition of this land plus $43,000 for sealing of Grange Avenue to the depot gates; $6,000 for an amenities block plus additional costs for preparation and fencing of the area.” A letter to that effect (AB 71) was forwarded to the Respondent in early August 1974.
92 The council’s objections - which objections appear to have been supported by the then local member in the State Parliament (AB 75) - appear (see AB 77R) to have given the Respondent pause for some time thereafter.
93 Meantime, in mid-August 1974, the council wrote to the Respondent (AB 74) seeking permission to commence tipping “at (the) new depot … prior to the submission of all details”. That letter produced a reply dated 2 September 1974 (AB 77), which letter was, in part, as follows:
“The Authority is prepared in the circumstances to grant permission to use this depot prior to the receipt of all the required information subject to:

a. the operation being conducted in accordance with the ‘Standard Conditions of Approval to the Establishment and operation of a controlled Landfill Depot’ No. SW1A as amended and attached hereto.
b. Compliance with such other conditions as the Authority may consider necessary upon receipt of full plans and specifications for the project.
A notice in respect of this Depot, as required under Act. No. 97 of 1970 Section 29 is enclosed.”

94 By letter dated 11 December 1974 (AB 79,224) the Health Commission advised the council that “(the) Minister for Health, on the advice of the Health Commission … and in accordance with the provisions of Section 283(4) of (the LG Act had) approved of (the subject land) for use as a sanitary depot for the disposal of garbage at Marsden Park subject to (certain enumerated) conditions” - those conditions appear to have been the same as those which had earlier been notified to, and accepted by, the council with the exception of condition 5, which adopted the amendment suggested by the council in its letter of 27 November 1973 to the Health Commission (AB 214).
95 Although the materials which are before the Court do not clearly demonstrate that this was so, it seems reasonable to proceed upon the basis - the contrary not having been asserted during the course of argument - that, even if it had not earlier done so, the council commenced to operate a waste disposal depot on the subject land in early 1975.
96 It is convenient, here, to pause for the purpose of summarising, briefly, the effect of what I have recorded above. It is this: having previously had its staff develop a proposal to acquire land within its area for the purpose of establishing and operating a waste disposal depot, the council - the responsible authority for that area - in November 1971 formally resolved to give notice of its intention to resume the subject land for that purpose, and thereafter took all such steps - those steps being the subject of formal resolutions - as were required of it in order that it might resume the land, and obtain the consents of the relevant Minister, the SPA and the Respondent to authorise it to establish and operate the waste disposal depot, and, as well, formally resolved to carry out, and voted funds to enable it to have carried out, the works which needed to be carried out, before the depot could commence operations.
97 Despite all this, it is said that the council, although the responsible authority, did not give development consent which would render lawful the carrying out of those works, and the use of the land as a waste disposal depot. This is a proposition which I am quite unable to accept.
98 Whether or not someone has given consent to something is a question of fact. It may be proved that he did so by proving an express consent or by showing conduct evidencing consent (Booton v. Clayton (1948) 48 SR 336, 339 per Jordan CJ). As Windeyer J said in Brickworks Limited v. Council of the Shire of Warringah (1963) 108 CLR 568, 576):
“The position of a collective body is not radically different from that of an individual. The consent of a corporate body, such as the Council, to any course of action must be given at a duly convened meeting. And ordinarily it is given by a resolution that expressly, or by necessary implication, imports consent” (my emphasis)
In the present case, as it seems to me, it is impossible to believe that the members of the council did not understand what it was which they had, from time to time, over the period of 3 years, or more, resolved upon in relation to the establishment and operation of the waste disposal depot, it following that the various actions resolved upon, and carried into effect, in my view necessarily imported consent.
99 Although what I have written so far is, in my view, sufficient to determine the fate of this appeal - for the council’s consent would enure for the benefit of the Respondent - it is as well that I record, and deal with, the events which occurred after January 1975.
100 I would have thought that those later events would, of themselves, provide evidence of the council’s having given development consent - if it were otherwise needed - to the Respondent’s operating the waste disposal depot. However, the fact that the Respondent has not filed a Notice of Contention to that effect means that it is not open to me to deal with this matter on that basis. Nonetheless, it is, I believe, open to the Court to treat those later events as providing further evidence of the council’s having given development consent to the establishment and operation of the waste disposal depot.
101 Despite the fact that, as I have earlier recorded, following the council’s objections, in August 1974, to the Respondent’s proposal that the waste disposal depot be operated as a regional depot, the Respondent did not then press the matter, it appears once more to have raised the matter in the latter part of 1976, at which time, so it would seem (AB 237), its proposal was that it take over control of the depot - that is, assume responsibility for financial and policy matters - but delegate to the council the responsibility for the conduct and supervision of operations at the depot.
102 At its meeting of 15 December 1976, the council resolved (AB 237) that:
“a. The (Respondent) meet and discuss with members of the Council and its officers the terms and conditions for the (Respondent) to take over and develop the Grange Avenue Depot as a Regional Depot …

b. The (Respondent) be informed at the meeting … that the Council would be prepared to lease the Grange Avenue tip at a nominal fee …”

103 Following that meeting, the council, at its meeting of 26 January 1977, resolved (AB 239) (inter alia) that:
“a. Council invite (the Respondent) to take over the Marsden Part depot on a lease basis.

b. The suggested lease rental be $5000 per annum.
c. Council requires the area to be contoured to future detail to accommodate a golf course.
d. Council decline to operate the depot by day labour and suggest to (the Respondent) that it enter into contract with the garbage contractor to carry out such work.”

A letter to that effect (AB 240) was written to the Respondent on 2 February 1977.
104 At its meeting on 8 February 1977 the Respondent resolved (AB 87) (inter alia):
“1. That subject to satisfactory finalisation of detailed negotiations relating to all aspects of the proposed takeover of the Grange Avenue Depot as a regional facility the Authority agrees to lease the subject area from the Council at a rental of $5000 per annum.

2. That finalisation of the detail referred to in (1) above be left in the hands of the director.
3. That in the terms of the resolution negotiations be continued with the Council.”

105 In a report by the Deputy Director to the Director dated 30 March 1977 (AB 87) the following (inter alia) appears:
“It is proposed that the initial site preparation be carried out by the Authority using hired plant. This work, which will include access roads, all construction and fencing, will need to be completed prior to the formal takeover of the depot on 1st July this year. The estimated cost of initial site preparation is $95,000.

Existing buildings including amenities and gatekeepers hut are to be made available to the Authority under the terms of the lease, however not all the buildings will be suitable for use at a Regional Depot.
A works schedule has been developed which provides for the site preparation to commence in May, and tenders for the operation of the depot and weighbridge installation to be called by mid April.”

106 In a letter dated 28 April 1977 (AB 241) the Deputy Director sought the council’s permission - notwithstanding that the proposed lease would not then have been executed - to enter the site on 9 May 1977 for the purpose of constructing new access roads and preparatory site works. Confirmation of the giving of such consent was conveyed by the Town Clerk in a letter dated 19 May 1977 (AB 242).
107 Although the formal lease had not then been executed - it appears not to have been executed by the Respondent until 23 August 1985 (AB 229) - the Respondent commenced operations on the site on 1 July 1977 (AB 89-90).
108 At some time which - save that it must have been prior to 5 August 1977 - is not clear, the Respondent lodged with the council an application for development consent (AB 245) to the construction of a weighbridge and office, collection office and wash bay the proposed use of which was said to “waste disposal depot”. Development consent was (AB 243) granted on 5 August 1977.
109 At some time which - save that it must have been prior to 23 October 1979 - the Respondent sought from the council development consent for what was described variously as “toilet block” (AB 246) and “amenities building for Grange Avenue Regional Depot” (AB 248), the latter description appearing in the notice of determination which issued following the grant of consent on 23 October 1979 (AB 246).
110 As I have previously recorded, the formal lease was not executed by the Respondent until 23 August 1985, the term of the lease being the subject of a clause in the following terms (AB 232):
“1. The term of this Lease shall be ten (10) years commencing on 1 July 1977 or until the demised land shall have been completely filled with waste and the surface of the filled area restored to the levels and treated in the manner herein after (sic) provided whichever shall first occur PROVIDED HOWEVER that if the Lessee shall desire to take a renewed Lease of the demised land for a further term, on a year by year basis from the expiration of the term of this Lease and of such desire shall prior to the expiration of the said term give to the Lessor six (6) calendar months previous notice in writing and shall in the meantime duly perform and observe the covenants and agreements by and on the part of the Lessee contained in this Lease up to the expiration of the term hereby granted and shall pay the rent (if demanded) the Lessor will at the cost of the Lessee demise to the Lessee the hereby demised land for a further term, on a year by year basis, at a rental as determined by Clause 6 hereof and otherwise subject to the same covenants, agreements and provisos as are contained in this Lease except in respect of this present covenant for renewal.”

(my emphasis)

111 The lease provided that there were conferred on the Respondent the following ‘rights and liberties” (AB 230,231):
“(1) To excavate the soil and overburden and to remove or clear any trees or vegetation on the demised land.

(2) To open and make such excavations levels watercourses and other works whether upon or below the surface of the demised land as may be necessary or convenient for the use of the demised land for the purposes herein provided .
(3) To erect upon the demised land offices and conveniences for workmen and other persons employed at the demised land in accord with plans and upon sites approved by the Lessor. Such offices and conveniences shall be and shall remain in the absolute property of the Lessee.
(4) To make within the demised land any roads or ways which may be necessary or convenient for the purposes herein provided.
(5) To use and repair any existing roads or ways over or into the demised land for the purposes herein provided and in particular maintain and keep in good repair that part of the road Grange Avenue lying between the demised land and Richmond Road.
(6) To do all things which shall be convenient or necessary for the purposes herein provided and for obtaining the benefit of the rights liberties and privileges granted by this Lease but in all cases to do nothing which will prevent the re-instatement of the demised land for those purposes hereinafter agreed.”
(my emphasis)

112 The lease also contained the following (inter alia) covenants on the part of the Respondent (AB 232-234):
“3. The Lessee further covenants for itself and its successor as follows:

(1) To work or use the demised area in a proper and efficient manner and in accord with approved methods practised at similar undertakings and to observe and comply with the requirements of any statute regulation by-law or ordinance relating to the operations of the Lessee and with all lawful requirements of Government and Statutory Authorities.
(2) To keep all buildings, roads, watercourses and other works now standing and being or which during the term shall be constructed erected built placed or made in or upon the demised land and used for the purpose of disposal of waste under this Lease in good and substantial repair condition and working order.
………
(4) To keep the Lessor indemnified against all actions, proceedings claims and demands in respect of any injury, loss damage or liability in respect or arising out of the use of the demised land by the Lessee including any flooding, seepage or leaching emanating from the demised land or caused to or by persons lawfully using or upon the demised land for the purpose of disposing of waste .
………
(7) The Lessee will keep the demised land open to the public for the receipt of waste between the hours of 2.30 am and 4 pm on Monday, Tuesday, Thursday and Friday between 7 am and 4pm on Wednesday and between 8am and 5pm on Saturday and Sunday in each week PROVIDED THAT the Lessee shall have the right to vary change or alter the hours of opening of the demised land and if this discretion is exercised by the Lessee the Lessee shall use its best endeavours to give to the Lessor notice (in writing or otherwise) of the variation change or alteration PROVIDED FURTHER that the Lessee will not extend the hours of opening the demised land without first advising and consulting with the Lessor.
………
(9) The Lessee will at the end of the term of this Lease yield and deliver up to the Lessor the quiet and peaceable possession of the demised land cleared of all buildings (but not including the recycling centre ) machinery or other moveable plant used and employed by the Lessee in on or about the demised land AND will within that term or such extended time as shall be agreed upon by the parties hereto will grade off fill and spread top soil over and plant grass over the demised land and in the course of such grading and filling will as near as can be grade or level the demised land to the contours and levels as are shown on the plan R34/63 annexed hereto as ‘B’, or such amended levels as shall be agreed upon by the parties.”
(my emphasis)

113 Finally the lease provided (inter alia) (AB 236):
“10. The Lessor agrees with the Lessee that it will so far as is practicable ensure that all domestic waste and refuse collected by or on its behalf from the residents of Blacktown City be disposed of by depots operated by the Lessee including its depot established upon the demised premises.

(my emphasis)

114 At some time which - save that it must have been prior to 24 May 1996 - is not clear the Respondent applied to the council for development to construct on the subject land - described in the notice of determination (AB 249) as “Lot 3 DP471348 Grange Avenue Marsden Park (Grange Avenue Waste Management Centre)” - of 3 surface water retention dams, consent to that development apparently being granted on 24 May 1996.
115 The fact that the Respondent continued in occupation of the subject land at that time would suggest that it had held over as lessee pursuant to the provisions of cl 1 of the lease (see para 46 (above)).
116 The result of all this is that, after January 1977, the council, the responsible authority for the area, granted to the Respondent, originally in an informal way - but subject to a formal resolution of the council - and, later, in a formal way, a lease for a purpose which, unless it had previously been, or was then, made the subject of development consent, could not lawfully be carried out, and both required the Respondent to carry out that purpose (see cl 3) and committed itself to the furtherance of that purpose (see cl 10). Further, on a number of occasions thereafter, and prior to the commencement of these proceedings, the council gave express development consent to the erection and use of buildings, and for the carrying out of works, the only purpose of which, to the knowledge of the council, was the furtherance of a use which, so the Appellants would have it, had never been made the subject of development consent, and was, and at all times had been, unlawful.
117 These later actions on the part of the council - particularly when considered together with the earlier actions of the council - invite comments similar to those made by Windeyer J in Brickworks Limited v. Warringah Shire Council supra at 576-577:
“It is, no doubt, possible to imagine that the President and all the Councillors and the Shire Clerk and the Planning Officer were somehow mistaken as to what the Council had decided, and that their later actions were the consequence of their believing that they had in fact earlier given their consent. But that, it seems to me, could only be so if the Councillors and the officers of the Council had all been inattentive or careless. There are no grounds for thinking that was so. The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the ‘responsible authority’. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner.”

118 In my opinion the appeal should be dismissed with costs.

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