CSR Ltd v Fairfield City Council - [2001] NSWLEC 221

Reported Decision: 117 LGERA 77

Land and Environment Court

of New South Wales

CITATION: CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 221

PARTIES:
APPLICANT
CSR Ltd
RESPONDENTS
Fairfield City Council and Anor

FILE NUMBER(S): 10079 of 2001

CORAM: Pearlman J

KEY ISSUES: Question of Law :- preliminary question of law - whether class 1 appeal competent - costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 95A
Environmental Planning and Assessment Act 1979 unamended s 99
Land and Environment Practice Direction 1993 par 10

CASES CITED: CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 118;
Gibson v Mosman Municipal Council [2001] NSWLEC 201;
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78;
Monier PGH Holdings Ltd v Fairfield City Council and Anor (Lloyd J, NSWLEC, 20 October 1998, unreported);
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Pulver Cooper and Blackley Pty Ltd v Johnson and Anor (1998) 101 LGERA 76

DATES OF HEARING: 12/07/2001

DATE OF JUDGMENT:
09/24/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr T S Hale SC
SOLICITORS
Minter Ellison
FIRST RESPONDENT
Mr J B Maston (Barrister)
SOLICITORS
Marsdens
SECOND RESPONDENT
Mr M H Tobias QC
SOLICITORS
Kirkby & Associates

JUDGMENT:

IN THE LAND AND 10079 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 24 September 2001

CSR LTD

Applicant

FAIRFIELD CITY COUNCIL

First Respondent

JACFIN PTY LTD

Second Respondent

JUDGMENT

Introduction

1. The question which currently arises for determination in these proceedings is whether the class 1 appeal brought by the applicant is competent. The appeal was instituted by the applicant, CSR Ltd (“CSR”), against the deemed refusal of Fairfield City Council to grant an extension of a period of time specified in a condition of a development consent.

2. The background circumstances were outlined in an earlier judgment in the proceedings (CSR Ltd v Fairfield City Council and Anor [2001] NSWLEC 118) and it is unnecessary to repeat them in detail except to note two matters. First, a third party objector to the original development application was Jacfin Pty Ltd (“Jacfin”), and it has been joined as a second respondent to the current proceedings. Secondly, the development consent was granted to CSR by the Court on appeal in respect of designated development, comprising quarrying, landfilling and site restoration on lot 80 in deposited plan 106143, Old Wallgrove Road and Burley Road, Horsley Park (“the site”) (Monier PGH Holdings Ltd v Fairfield City Council and Anor, Lloyd J, NSWLEC, 20 October 1998, unreported).

3. Among the conditions to which the development consent was subject were the following conditions:

A. Deferred Commencement

This consent is granted pursuant to s 91AA of the Environmental Planning & Assessment Act 1979 and shall not be operative until the applicant complies with the matters in sub-paragraphs 1, 2, and 3 hereof to the satisfaction of the Council and the Environment Protection Authority.
1. The applicant shall investigate the condition of the completed landfill…

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] NSWLEC 221
Decision Date: 09/24/2001

CaseChat Overview and Summary

The case of CSR Ltd v Fairfield City Council before the Land and Environment Court of New South Wales concerned a class 1 appeal brought by CSR Ltd against the deemed refusal by Fairfield City Council to grant an extension of time for fulfilling conditions of a development consent. The key issue was whether the class 1 appeal was competent, specifically if the period stipulated in a condition of the consent could be extended under the relevant legislation. The case was heard by Pearlman J, who concluded that the appeal was incompetent as the period in question could not be extended under the Environmental Planning and Assessment Act 1979.

The court examined the statutory provisions and the conditions of the development consent, determining that the two-year period specified in the condition was not a variation of the five-year lapsing period as required by s 95A of the Act. Instead, the condition was intended to suspend the operation of the consent until certain requirements were met. Therefore, the court found that the appeal based on a deemed refusal to extend this period was not competent. The court also addressed other preliminary questions raised by the respondents but declined to answer some as they were hypothetical. Finally, the court ruled that the respondents were entitled to costs due to the exceptional nature of the preliminary question raised, which fundamentally impacted the proceedings.

Orders