Filipowski v De Ocampo

[1998] NSWLEC 119

Land and Environment Court

of New South Wales

CITATION:	Metalcorp Pty Ltd v. Campbelltown City Council [1998] NSWLEC 119
PARTIES:	APPLICANT Metalcorp Pty Ltd RESPONDENT Campbelltown City Council
FILE NUMBER(S):	40181 of 1998
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993
CASES CITED:
DATES OF HEARING:	22/09/98
EX TEMPORE JUDGMENT DATE :	09/22/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr W. Davison Abott Tout RESPONDENT N/A

JUDGMENT:

1. This is an application by Metalcorp Limited (Metalcorp), an applicant in pending Class 1 proceedings in this Court for orders restraining the Campbelltown City Council (the Council) from resolving to adopt recommendation 1 of the Planning and Building Committee made at its meeting on 15 September 1998 until further orders of the Court. The resolution and recommendation is appended to the affidavit sworn by Jane Elizabeth Hewitt on 21 September 1988. The Committee recommends that the Council adopt the Motor Vehicle Wreckers Metal Recyclers Waste Disposal Depots and Junkyards Policy Development Control Plan No. 20 for the purposes of Clause 4 of Interim Development Order No. 21 (the IDO).

2. The question whether such a plan was already in force has been the subject of a prior determination by this Court in the past month when, on the hearing of Metalcorp's appeal against the Council's refusal of development consent to establish a metal recycling plant, the Council belatedly raised the point of law that the development was contrary to the terms of a development control plan in force under Clause 4 of the IDO. Instead of proceeding to an appeal on the merits (and the case had been prepared on that basis), the parties sought the determination (as a preliminary determination) of the question of law whether such a plan (a) was in force and (b) if so, whether it had the effect contended for by the Council (i.e. prohibiting the proposed development).

3. In my determination of the preliminary questions of law, I held that no such plan was in force for the purposes of Clause 4 of the IDO with a consequence that the proposed development by Metalcorp was development that might be carried out with the requisite development consent. Thereafter the hearing on the merits of the appeal was fixed for hearing by this Court. I am told such a hearing has been fixed for three days commencing on 23 October 1998.

4. What has happened (and this appears from the report annexed to Mrs Hewitt's affidavit) is the Council has received legal advice following my decision on the preliminary question of law and the matter has been the subject of consideration by the Council's Planning and Building Committee which has made the recommendation that I have earlier mentioned. The effect of the adoption of such a recommendation would, on the face of it, prove fatal to the pending appeal in as much as the Council could then contend that the development proposed was not in accordance with the development control plan in force under Clause 4 and hence was prohibited.

5. That the Council is alive to that prospect appears from the affidavit sworn by Lindsay Hunt on 21 September 1998. He is a consultant retained by Metalcorp in these proceedings and also retained by Metalcorp in the preparation of the environmental impact statement for the metal recycling facility, the subject of the present proceedings (the proposal being "designated development").

6. Mr Hunt's affidavit indicates that he attended the meeting of the Council's Planning and Building Committee on 15 September 1998 when he was given leave to address the Committee regarding Metalcorp's pending appeal to the Court and the possible adoption by the Council of the development control plan for the purposes of Clause 4 of the IDO. In his affidavit he deposes to giving an address to the Council, the terms of which are annexed to his affidavit. Then he says there was no discussion by the Committee on the merits of his address and the debate that he witnessed concentrated on the question of the exposure of the Council to costs, that matter having been included in the Committee's report to the Council considered at the meeting of 15 September.

7. Mr Hunt goes on to say in paragraph 6 of his affidavit that towards the end of the discussions on this matter the Chairman of the Committee, said words to the effect "This is the opportunity to deliver a killer blow. We can avoid proceedings and reject the development outright". Mr Hunt continues "a very brief debate followed and a recommendation to the Council was made by the Committee", that being the recommendation that I have referred to earlier, namely that the Council adopt the DCP and the policy for the purposes of Clause 4 of the IDO.

8. It was in these special circumstances that I have been persuaded that this is an appropriate case for the Court to intervene. Senior Counsel for Metalcorp informed me that the Council was aware of the company's application for interlocutory relief and that the Council has chosen not to appear today to resist the relief claimed. Senior Counsel for Metalcorp has also informed me that the Solicitors for the Council have suggested that if an ex parte interlocutory order be made, the question of its continuance be fixed before the Court on 19 October 1998. I observed that that is a mere four or five days before the scheduled hearing of the appeal, although I am told there is no significance in that juxtaposition of the events.

9. In any event, I am satisfied that Metalcorp has shown a prima facie case for impugning the proposed decision by the Council. As I said in the course of the presentation of the case, the Court does not lightly intervene in the processes of local councils in undertaking their responsibilities under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993. The present case, on the evidence presented, indicates that the Council may, in taking a decision to adopt a relevant development control plan for the purposes of Clause 4 of the IDO, be engaged in a course of action which is not legally open to it.

10. It is for those reasons that I have decided to grant the interlocutory order, having been told by Senior Counsel for Metalcorp that the recommendation of the Council's Planning and Building Committee that I have referred to is scheduled for consideration by the Council at its meeting to be held tonight. If the Council wishes to move the Court earlier than 19 October to vacate the interlocutory injunction, it has that opportunity pursuant to the liberty to restore that I have granted in order 3.

11. In all the circumstances and for the foregoing reasons, I make the orders set forth in the short minutes of order which has been prepared by Metalcorp's solicitors which I have amended and signed and placed with the Court papers.