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…

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.

Continue reading Filipowski v De Ocampo

Details

AGLC: Filipowski v De Ocampo [1998] NSWLEC 119
Case: [1998] NSWLEC 119
Decision Date: 09/22/1998

CaseChat Overview and Summary

In the case of Metalcorp Pty Ltd v. Campbelltown City Council, the applicant Metalcorp sought an interlocutory order to restrain the Campbelltown City Council from adopting a recommendation by its Planning and Building Committee to adopt a development control plan for metal recycling facilities. The Court was asked to intervene given the timing of the Council's recommendation, which was made shortly before the scheduled hearing of Metalcorp's appeal against the Council's refusal of development consent. The legal issues focused on whether the Council's decision to adopt the development control plan was legally permissible, particularly in light of the Court's prior determination that no such plan was in force.

Bignold J held that the Council's decision to adopt the development control plan was potentially unlawful and could undermine the pending appeal. The judge considered the evidence presented, including affidavits from both sides, and observed that the Council had not appeared to contest the application for interlocutory relief. The Court concluded that Metalcorp had demonstrated a prima facie case for the injunction, emphasizing that the Court does not intervene lightly in local council decisions. Given the circumstances, including the Council's apparent intent to use the development control plan to reject Metalcorp's development outright, the judge found it appropriate to grant the relief sought by Metalcorp.

Accordingly, the Court issued an interlocutory order restraining the Campbelltown City Council from adopting the recommendation of its Planning and Building Committee until further orders of the Court. The order was made effective immediately, considering the urgency indicated by the timing of the Council's meeting scheduled for the same evening. The Court also granted the Council the opportunity to move earlier than scheduled to vacate the injunction if it so wished.

Orders