McIlveen v Baiada Pty Limited - [2003] NSWLEC 174

Land and Environment Court

of New South Wales

CITATION: McIlveen v Baiada Pty Limited [2003] NSWLEC 174

PARTIES:
APPLICANT:
Robert Douglas McIlveen
RESPONDENT:
Baiada Poultry Pty Limited

FILE NUMBER(S): 40001 of 2002

CORAM: Lloyd J

KEY ISSUES:
Injunctions and Declarations :- development consents - extent of
Existing Use Rights: - nature and extent - liberal interpretation of consent - continuance and limitations

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A, s 81A(1), s 109(1), s 109(2), s 109B,
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 cl 7
Local Government Act 1919 s 342U
Tamworth Local Environmental Plan 1985
Tamworth Local Environmental Plan 1996

CASES CITED: Armstrong v Ashfield Municipal Council (2002) 124 LGERA 189;
Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council (2003) 124 LGERA 90;
Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198;
King v Lewis (1991) 74 LGRA 362;
King v Lewis (1995) 88 LGERA 183;
Mona Vale Pty Ltd v Pittwater Council (2003) 124 LGERA 449;
Moore Development Group Pty Ltd v Pittwater City Council [2003] NSWLEC 130;
Permewan Wright Consolidated Pty Ltd v Attorney- General (on the relation of Franklins Stores Pty Ltd) (1977) 36 LGRA 381

DATES OF HEARING: 23/06/2003, 24/06/2003, 25/06/2003 and 26/06/2003

DATE OF JUDGMENT:
07/24/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J B Maston (barrister) and Mr C Dimitriadis (barrister)
SOLICITORS:
Duncan Maclean
RESPONDENT:
Mr A E Galasso (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 18 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40001 of 2002

Lloyd J

24 July 2003

ROBERT DOUGLAS MCILVEEN

Applicant

BAIADA POULTRY PTY LIMITED

Respondent

JUDGMENT

Introduction

1 The respondent, Baiada Poultry Pty Limited, is using premises in West Tamworth for the killing, processing and packaging of poultry. The applicant, who owns a property opposite the respondent’s premises, claims a declaration that the respondent is carrying on development without development consent and that it is not entitled to so use its premises without first obtaining development consent. The applicant alternatively claims a declaration that the respondent is not entitled to use its premises to kill, process or package more than nine thousand birds per day. The applicant also claims consequential relief.

2 The respondent says that it is using its premises pursuant to a series of consents and approvals granted for each aspect of its activities; and it may lawfully do so under the protection afforded by ss 109B and 81A(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). The respondent alternatively says that its use of the premises is protected by s 109 of that Act. The respondent further says that none of the consents purport to limit in any way the number or quantity of birds killed, processed or packaged at its premises, or limit the number of employees engaged in the business.

3 Before turning to the detailed facts, it is convenient to consider, firstly, the relevant legislation controlling the lawfulness or otherwise of the…

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 McIlveen v Baiada Pty Limited

Details

AGLC: McIlveen v Baiada Pty Limited [2003] NSWLEC 174
Case: [2003] NSWLEC 174
Decision Date: 07/24/2003

CaseChat Overview and Summary

The case of McIlveen v Baiada Poultry Pty Limited, which was heard in the Land and Environment Court of New South Wales, involves a dispute between the applicant, Robert Douglas McIlveen, and the respondent, Baiada Poultry Pty Limited. The applicant claims that the respondent is operating its poultry processing facilities without the necessary development consents and is exceeding the permitted number of birds processed per day. The respondent argues that it has obtained all necessary consents and approvals under various planning instruments, including the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Local Government Act 1919.

The key legal issues the court had to decide include whether the respondent's use of the premises is lawful under the EP&A Act, the extent of the existing use rights, and whether the respondent is entitled to kill, process, and package more than nine thousand birds per day. The court had to consider several sections of the EP&A Act, including sections 76A, 109, 109B, and 81A(1), as well as transitional provisions in the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. The court also examined relevant case law to understand the implications of these sections and provisions.

In its judgment, the court found that the respondent had obtained numerous interim development consents and development consents over the years, which were valid under the EP&A Act and its transitional provisions. These consents allowed the respondent to carry out various ancillary activities on its premises without any limitation on the number of birds processed or employees. However, the court concluded that the core killing and processing activities were not subject to any specific consents and were thus governed by section 109 of the EP&A Act, which prohibits any enlargement or expansion of such use. The court determined that any intensification of the killing and processing activities would be unlawful unless permitted by a consent. Based on the evidence, the court found that the respondent's activities must be limited to the level of production as at 3 February 1986.

The court referred the matter to the Registrar to set a date for the hearing of evidence and submissions on the appropriate exercise of the Court’s discretion regarding the declaratory and injunctive relief sought by the applicant.

Orders