Darley Australia Pty Ltd v Walfertan Processors Pty Ltd

Darley Australia Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned a development application made by Walfertan Processors Pty Ltd (the respondent) for a facility at a site previously used for pig farming. The appellant, a neighbour, contended that the proposed development constituted "designated development" under the *Environmental Planning and Assessment Act 1979* (NSW) and therefore required a full environmental impact statement.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in law by failing to properly consider whether the proposed development was "designated development" and, relatedly, whether it had correctly identified the "existing or approved development" at the site for the purposes of the *Environmental Planning and Assessment Regulation 2000* (NSW). The court also considered whether the presumption of regularity applied to the existence of an original development consent and whether the burden of proof regarding existing use rights was a principal contested issue.

The Court of Appeal held that the Land and Environment Court had not erred in law. It reasoned that the primary judge had correctly applied the relevant statutory provisions and had not asked the wrong question in determining the nature of the development. The court found that the evidence did not support the appellant's contention that the original development consent could be inferred from subsequent consents, and that the presumption of regularity was not applicable in the circumstances. The court also determined that establishing existing use rights was not a principal contested issue in the merits hearing.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.