Baiada v Waste Recycling & Processing Service of NSW

Baiada appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning the operation of a waste depot. The dispute centred on whether the respondent, the Waste Recycling & Processing Service of NSW, had obtained the necessary development consent under the *Environmental Planning and Assessment Act 1979* (NSW) before commencing operations at the depot. Baiada contended that no such consent had been granted or, if it had, it had not been properly recorded as required by law.

The primary legal issues before the Court of Appeal were whether the respondent had breached the *Environmental Planning and Assessment Act 1979* by operating the waste depot without development consent, and whether the absence of a record of consent in the appropriate register constituted evidence that no consent had been granted. The court also considered the proper construction and effect of a subpoena issued in the proceedings.

The majority of the Court of Appeal found that the onus of proving the existence of development consent rested with the respondent. They reasoned that the respondent was asserting a positive fact (the existence of consent) which was necessary to justify its actions. The absence of a record in the council's register, while not conclusive proof of the absence of consent, was a significant factor. The court applied the civil standard of proof, requiring the respondent to demonstrate on the balance of probabilities that development consent had been lawfully granted.

The appeal was allowed by a majority of the Court of Appeal.