The Corporation of the City of Enfield v Development Assessment Commission and Collex Waste Management Services Pty Ltd Nos. SCGRG 94/645 and 94/798 Judgment No. 4706 Number of Pages 14 Administrative Law

[1994] SASC 4706

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Administrative law - Application for declaration and orders in nature of certiorari to quash planning consent granted by first defendant - plaintiff alleges that first defendant adopted incorrect procedure and acted ultra vires - correct procedure turns on whether use proposed is special industry - determination whether special industry made by first defendant - whether court can hear evidence and itself determine whether proposed use is a special industry - held, that first defendant cannot wrongly confer jurisdiction on itself by incorrect decisions on question of fact. Planning Act, 1982 s47; Development Control Regulations, 1982 r33, r38 and r4 and Supreme Court Rules 98.01. R v Connell; Ex Parte Hetton Bellbird Collieries Ltd (1944) 69 CLR
407; Foley v Padley (1984) 58 ALJR 454; R v Fulham etc Rent Tribunal Ex Parte Zerek (1951) 2 KB 1; JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR
432; Guaranty Trust Co of New York v Hannay and Co (1915) 2 KB 536 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921J 2 AC 438, applied. Save Blue Lagoon Beach Action Group v Kelvest Pty Ltd (1993) 81 LGERA 144 and Taylor v Hornsby Shire Council (1990) 69 LGRA 281, distinguished.

HRNG ADELAIDE, 10, 13 May, 15, 17 June 1994 #DATE 28:7:1994

Counsel for plaintiff:                Mr A J Besanko

Solicitors for plaintiff:             Piper Alderman

Counsel for defendant Commission:     Mr A R F Hall

Solicitors for defendant Commission: Crown Solicitor's Office

Counsel for defendant Collex:         Mr B R Hayes QC

Solicitors for defendant Collex:     Ward and Partners

ORDER
Declarations made.

JUDGE1 DEBELLE J The plaintiff, the Corporation of the City of Enfield ("the Council") has issued two sets of proceedings in which it seeks to challenge the validity of two decisions made by the first defendant, the Development Assessment Commission ("the Commission"), by which the Commission has granted planning consent to the second defendant, Collex Waste Management Pty Ltd ("Collex"). The parties are the same in both actions. The decisions granting planning consent were both made on 12 April 1994. Both decisions are challenged in each action.

2. In the first action (No 645 of 1994), the Council seeks declarations that the decisions granting the planning consent are ultra vires and void and orders in the nature of certiorari quashing the decisions. In the second action (No 798 of 1994), the Council seeks only declarations that the decisions granting planning consent are ultra vires and void. As will be seen, the Council relies on the same grounds in each action.

3. Central to the resolution of the issues between the parties in both actions is the nature of the proposed use of the land the subject of each development consent. It is common ground (a) that the two development applications concern the same parcel of land and that the land is within a General Industry zone prescribed by that part of the Development Plan which applies to the area of the Council, and (b) that a special industry is a prohibited use of land in that General Industry zone.

4. The Council says that the consent in each case is for a use of land which is a special industry as defined by the Development Control Regulations, 1982. Both the Commission and Collex dispute this, contending that, whatever the proper classification, the proposed used is not a special industry. The significance of the proper classification of the proposed use lies in the fact that the procedure to be implemented in determining whether planning consent should be granted differs according to whether the proposed use is or is not a special industry and as such a prohibited use. If the proposed use is a special industry and, therefore, a prohibited use in this General Industry zone, the Commission cannot grant planning consent unless (a) it has given public notice of the application, and (b) unless the Council and the Minister concur in the grant of planning consent.

5. Shortly stated, that is the effect of s.47(6) of the Planning Act and the relevant provisions of the Development Control Regulations. Other procedural steps must also be implemented and I will refer to them later. If the use is not prohibited, these procedures do not apply.

6. It is the Council's case that the prescribed procedures were not implemented by the Commission and, in particular, that (a) the Commission failed to give public notice of either application, and (b) the Council did not concur in the grant of either planning consent.

7. There is no evidence that the Minister concurred in the grant of either planning consent but the Council does not, it seems, rely on that ground. Although not expressly stated, the Council's claims are advanced on the footing that the procedures provided in s.47(6) of the Act and in the Development Control Regulations are mandatory and that a failure to comply with them will invalidate the decision: Scurr v Brisbane City Council (1973) 133 CLR 242; Victoria v The Commonwealth (1975) 134 CLR 81 at 183. If the procedures are mandatory and a failure to comply with them invalidates the decision, the Council will succeed on this application.

8. Both the Commission and Collex submit that the Council has no reasonable prospect of success in either action. It is necessary to review the events leading to these proceedings and the relevant law in order to put that submission into context.
    1. On 27 May 1993 Collex lodged a development
    application with the Council ("the first development
    application"). The first development application sought
    planning consent for "storage tank additions to existing
    liquid waste treatment plant on land at 500 Churchill
    Road, Kilburn". A report produced before the Commission
    on behalf of Collex disclosed that Collex proposed to
    expand an existing waste treatment plant to treat
    additional liquid waste. To that end, additional
    storage tanks were required. The liquid waste to be
    treated included grease trap waste, caustic waste, oily
    water, inert sludges, soluble oil, waste acid, mud and
    acid wash water. The report stated that these are waste
    liquids unsuitable for direct disposal to sewers. Under
    the heading "Odour Controls" the report stated:
    "Odours from the plant are most likely to arise from
    grease trap waste. All odorous wastes will be kept
    under vacuum in sealed pipework and tanks. Odorous
    gases will be vented via a stack extending 5 metres
    above the existing building on the land. It is proposed
    that activated carbon absorption of the odorous
    components will be undertaken."

2. As the proposed development was associated with the
    treatment and disposal of waste, the application had to
    be determined by the Commission: see Regulation 47 and
    the Seventh Schedule of the Development Control
    Regulations, 1982. On 8 June 1993 the Council sent the
    first development application to the Commission for
    determination.

3. On 25 June 1993 the Council wrote to the Commission
    informing it that it had resolved not to support the
    first development application.

4. On 27 July 1993 the Commission granted planning
    consent subject to certain conditions. The consent was
    for the "expansion of existing liquid waste treatment
    plant including additional storage tanks".

The Commission did not give public notice of the
    proposed development nor did it ascertain whether the
    Council concurred in granting consent. The Commission
    was, of course, aware the Council had already informed
    the Commission that it did not support the application.

5. On 28 September 1993, the Council issued proceedings
    in Action No 1761 of 1993 challenging the validity of
    the planning consent on a number of grounds. One of the
    grounds was that the proposed development was a special
    industry and that, as the use was a prohibited use, the
    procedures prescribed by the Planning Act and
    Development Control Regulations had not been complied
    with.

6. On 15 March 1994 Justice Matheson held that the
    planning consent granted by the Commission on 27 July
    1993 was invalid. In the event, it was not necessary
    for His Honour to determine whether the proposed
    development was a special industry as defined by the
    Development Control Regulations. However, His Honour
    did in passing note that the affidavits filed pointed
    "to the real possibility the subject development
    application was in fact for a special industry"
    (Matheson J's emphasis).

7. In the meantime, on 11 January 1994 Collex had
    lodged another development application ("the second
    development application") with the Council. The second
    development application applied for planning consent for
    "storage tank additions to existing liquid waste
    treatment plant". The application was made in respect
    of the same land as was the subject of the first
    development application. The second application stated
    that it was not proposed to treat grease trap waste.
    The Council sought and obtained further information from
    Collex concerning the nature of the proposed
    development.

8. On 28 January 1994 the Council sent the application
    to the Commission for determination.

9. The Council alleges that the second application is
    also for a special industry as defined. The Council
    obtained a report advising the differences between the
    first and second applications. It was advised inter
    alia, that:
    - It is no longer proposed to treat grease trap waste,
    which was the odorous material of most concern in the
    original application, although it was certainly not the
    only odorous material of concern.
    - In the new development, "no specific provision is made
    for the containment of odours, although all liquids,
    apart from the treat water, will be kept in enclosed
    tanks". It is no longer intended to include the odour
    control measures in the earlier application where the
    following provisions were specified.

On 24 February 1994 the Council sent the Commission a
    letter informing the Commission that it objected to the
    second development application.

10. On 12 April 1994 the Commission granted consent to
    the second development application subject to eight
    conditions. On 14 April 1994 the Commission informed
    Collex of the grant of planning consent.

11. The only material difference between the planning
    consent in respect to the first development application
    and the planning consent for the second application is
    that the second development application includes a
    condition which provides "no grease trap waste shall be
    treated on the site".

12. It appears from the manner in which the Commission
    has dealt with the second development application that
    it has concluded that the proposed use the subject of
    the second development application is not a special
    industry. The Commission did not give public notice of
    the application. Nor did it seek the concurrence of the
    Council. Indeed, as already noted, the Council had on
    24 February 1994 informed the Commission that it opposed
    the development.

13. On 12 April 1994 the Commission also purported to
    deal again with the first development application and
    grant planning consent. The consent was issued subject
    to certain conditions. There is no material difference
    between the terms of the planning consent granted on 12
    April 1994 and the planning consent granted on 27 July
    1993. The grant of consent, therefore, permits the
    treatment of grease trap waste. The grant of consent
    to the first development application may render the
    consent to the second application otiose. It appears
    from the manner in which the Commission has dealt with
    the first development application that it believes the
    application was for a use which was not a special
    industry. At no time, did it give public notice of the
    application nor did it seek the concurrence of the
    Council.

9. In the first action, no 645 of 1994, the Council seeks both declaratory orders and orders in the nature of certiorari, being
    (a) A declaration that the planning consent granted to
    Collex by the Commission on 14th April 1994 in relation
    to the first development application is ultra vires and
    void.
    (b) An order in the nature of certiorari to remove into
    this Court to be quashed the said decision made in
    respect of the first development application on the
    following grounds:
     (i) the proposed development is prohibited under the
     relevant provisions of the Development Plan;
     (ii) the defendant failed to comply with the
     provisions of the Planning Act 1982 in that it did not
     give public or any notice of the development
     application pursuant to Regulation 33 of the
     Development Control Regulations; and
     (iii) the defendant failed to comply with the
     provisions of the Planning Act in relation to a
     prohibited development.
    (c) A declaration that the planning consent granted to
    Collex by the Commission on 14th April 1993 in relation
    to the second development application is ultra vires and
    void.
    (d) An order in the nature of certiorari to remove into
    this Court to be quashed the said decision made in 7
    respect of the second development application on the
    following grounds:
     (i) the proposed development is prohibited under the
     relevant provisions of the Development Plan;
     (ii) the defendant failed to comply with the
     provisions of the Planning Act in that it did not give
     public or any notice of the development application
     pursuant to Regulation 33 of the Development Control
     Regulations; and
     (iii) the defendant failed to comply with the
     provisions of the Planning Act in relation to a
     prohibited development.

10. As already mentioned, central to the resolution of these issues is the question whether the use proposed by Collex is a special industry and, therefore, a prohibited use.

11. Before turning to the questions in action 798 of 1994, it is appropriate to deal with several issues. First, I examine the relevant planning legislation in greater detail. Section 47(1) of the Planning Act provides that no development shall be undertaken without the consent of the relevant planning authority. The combined effect of s.47(2) of the Act and of Regulation 47 and the Seventh Schedule of the Development Control Regulations is that, in the case of these two development applications, the Commission is the relevant planning authority. Section 47(5) of the Act provides that, when an application is made for planning consent for a proposed development for a use of land designated as prohibited in the Development Plan, that land use is prohibited unless planning consent is granted pursuant to s.47(6). Section 47(6) provides the procedure for dealing with applications for a prohibited use. Sections 47(5) and (6) provide:
    "(5) Where development of a particular kind is
    expressed, by use of the word 'prohibited' in the
    Development Plan, to be prohibited in a particular area,
    zone or locality, then, subject to subsection (6), such
    development is prohibited within that area, zone or
    locality.

(6) Where a development is proposed that would, apart
    from this subsection, be prohibited under
    subsection (5), the relevant planning authority may
    consent to that development if -
    (a) where the relevant planning authority is a council -
    the Commission concurs in the granting of the consent;
    or
    (b) where the relevant planning authority is the
    Commission - the Minister and, if the development is to
    be undertaken in the area of a council, the council
    concur in the granting of the consent."

12. Thus, unless the Council concurs, the Commission cannot grant planning consent. There is no appeal from a refusal to grant consent or a refusal to concur in the grant of planning consent: s.47(8). It will be noticed that s.47(5) refers to that which is prohibited by the Development Plan. The question whether a particular use is a prohibited use does not turn on the determination of a planning authority but on what is specified in the Development Plan. The Development Plan designates the uses which are prohibited, by providing that certain types of land use are prohibited in a particular zone. It is necessary to refer to the Plan to ascertain what uses are prohibited in the zone in which a particular development is proposed.

13. Regulations 52-56 of the Development Control Regulations prescribe the procedure to be followed when an application is made for a proposed use of land which is prohibited by the Development Plan. Nothing in these proceedings turns on the terms of those regulations. Regulations 33 and 38 are, however, relevant. When read together, they require, among other things, that public notice be given of an application for a development which is prohibited by the Development Plan. Although Regulation 38(1) provides that public notice need not be given of applications for certain kinds of development, Reg. 38(2) states that Reg 38(1) does not apply where the application is for a use which is prohibited. It provides:
    "(2) Subregulation (1) shall not apply to an application
    with respect to any kind of development which is
    prohibited by the principles of development control in a
    particular area, zone or locality."

14. The principles of development control prescribed for a particular zone, area, or locality to which Reg.38(2) refers are to be found in the Development Plan. Again, it will be noticed that the question whether a use is prohibited does not turn on the determination of a planning authority but on the terms of the Development Plan. Regulation 38(3) provides for an exception where the development is in the nature of additions or alterations to a building or for construction of a building which is ancillary to an existing building where the development is of a minor nature only. It is common ground that the development proposed by Collex does not fall within Regulation 38(3).

15. The Development Plan provides that a special industry is a prohibited use in the General Industry zone in which Collex proposes to locate the intended use. Thus, if the application by Collex is for a use of land which is a special industry as defined, it is a prohibited use and, therefore, the procedure prescribed by the Act and Regulations required the Commission at least
    (a) to give public notice of the application by Collex;
    and
    (b) not to grant planning consent until the Council and
    the Minister concurred in the granting of planning
    consent. As the Council did not concur, the Commission
    could not grant planning consent.

16. In other words, the question whether the Commission could determine the application without giving public notice and without the concurrence of either the Minister or the Council turned on the question whether the use proposed by Collex is a special industry. As a preliminary step, the Commission had to decide that question. Thus, the question whether the Commission implemented the correct procedure turns on whether the Commission has correctly decided that the proposed use is not a special industry.

17. A special industry is one of many kinds of land use which are defined in Reg 4 of the Development Control Regulations. It is defined to be:
    "an industry where the processes carried on, the methods
    of manufacture adopted or the particular materials or
    goods used, produced or stored, are likely -
    (a) to cause or create dust, fumes, vapours, smells or
    gases; or
    (b) to discharge foul liquid or blood or other substance
    or impurities liable to become foul, and thereby -
     (i) to endanger, injure or detrimentally affect the
     life, health or property of any person (other than any

     person employed or engaged in the industry); or
     (ii) to produce conditions which are, or may become,
     offensive or repugnant to the occupiers or users of
     land in the locality of or within the vicinity of the
     locality of the land on which (whether wholly or
     partly) the industry is conducted."

18. The question whether the use proposed by Collex is a special industry is a question of fact to be determined in accordance with the criteria specified in the definition. The Commission has either not considered that question or has determined that it is not a special industry. The evidence does not disclose which. The Council appears to assume that the Commission has decided it was not a special industry. In both actions, the only issue is whether the Commission was correct in so deciding. The Council contends that the proposed use is a special industry because the process of treating liquid waste as proposed by Collex is likely to cause or create fumes, vapours, smells or gases and thereby produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land in the locality of the proposed development and seeks to lead evidence to that effect. In order to determine that question it will be necessary to examine the nature of the proposed use and the likely emissions, if any, from that use. The affidavits so far filed suggests that it will be necessary to hear expert evidence on those topics.

19. Mr Hall, who appeared for the Commission, submitted that the question whether the proposed development was a special industry was a question of fact and the Commission's decision could not be impugned by this Court unless it could be 11 demonstrated its decision was unreasonable in the sense that it was a decision which a reasonable body of persons could not have reached. He referred to Save Blue Lagoon Beach Action Group v Kelvest Pty Ltd (1993) 81 LGERA 144 at 149. It was not appropriate, he submitted, for this Court to embark upon an enquiry on the disputed question of fact whether the use proposed by Collex was a special industry. Mr Hayes QC, who appeared for Collex, supported his submission. It is implicit in the submission of Mr Hall that it is for the Commission, and the Commission alone, to have an opinion or be satisfied that the proposed development is a special industry. Therein lies the flaw in Mr Hall's argument.

20. Although the Planning Act and the Development Control Regulations provide that the Commission has the statutory duty to determine applications for planning consent for a development associated with the reception, storage, treatment or disposal of waste. The question whether the proposed use of land is a special industry depends on whether the proposed use has the features listed in the definition of a special industry. While it might be necessary for the Commission to decide that question in the course of dealing with an application, there is nothing in the Act or Regulations which makes the Commission the sole arbiter of the question whether a proposed use is a special industry. Nor is there any provision in the Planning Act or in the Development Control Regulations which provides that the Commission must have an opinion or be satisfied on that question.

21. The resolution of the question whether the use proposed by Collex was a special industry determined the procedure to be implemented by the Commission in dealing with these applications for planning consent. It was a question of fact to be determined by reference to the objective criteria specified in the definition. It is not a case where legislation prescribes that the existence of an opinion is a prerequisite to an exercise of power. If that were so, this Court could not interfere unless the decision was unreasonable in the sense that no reasonable body of persons could have decided it: R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430-432; Foley v Padley (1984) 58 ALJR 454 at 455, 462. Instead, the question whether the Commission has properly exercised its powers turns on whether it has correctly decided whether the proposed use falls within the objective criteria specified in the definition of special industry. In other words, the question whether the Commission has power in this case to grant planning consent without giving public notice and without the concurrence of the Council depends on whether it has correctly decided that the proposed use is not a special industry. That is the type of question which this Court is frequently called upon to determine and there is no fetter of the kind which Mr Hall suggests upon the manner in which the Court should resolve that question. It is well settled that an administrative body acting under a statutory power cannot confer power on itself by a wrong decision on a point on which its power depends: Reid v Sinderberry (1944) 68 CLR 504, 511, R v Connell (supra) at 430; R v Australian Stevedoring Industry Board (1953) 88 CLR 100 at 118-119. The Commission cannot confer on itself power to determine this application by incorrectly deciding the question whether the proposed use is a special industry. If it does err and wrongly confers on itself a power it does not have, this Court can review that decision.

22. Generally speaking, the remedy of certiorari is not a suitable remedy by which to raise questions of fact for this Court to determine de novo. Thus, where questions of jurisdiction turn on disputed questions of fact about which there is a conflict of evidence, the Court will generally decline to interfere: R v Fulham etc Rent Tribunal ex parte Zerek (1951) 2 KB 1 per Devlin J at 11. By parity of reasoning, where, as here, the question whether the appropriate procedures have been implemented turns on a disputed question of fact, the Court may also be unwilling to interfere and inquire into that question. However, proceedings which seek declaratory orders do not suffer from the same limitation.

23. The jurisdiction of the Court to grant declaratory relief is very wide and judicial pronouncements appearing to restrict the circumstances in which relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction: J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR
432 at 435 and the cases there cited; see also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Oil Basins Ltd v The Commonwealth (1993) 178 CLR 643. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Co of New York v Hannay and Co (1915) 2 KB 536. As Lord Dunedin noted in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 at 448, the question must be real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought. Some of the factors affecting the exercise of discretion are noted by King CJ in J.N. Taylor Holdings Ltd (in liq) v Bond (supra) at 436-437. It might be added that the Council, as the local governing authority for this area, plainly has a real interest in having the questions determined. In addition to that interest, it has a special interest in establishing that the proposed use is for a special industry and hence a prohibited use so that it is necessary for it to concur in the decision to grant planning consent.

24. Although there are some early decisions which limited the role of the declaratory order on questions of fact, later decisions make it quite clear that, in an appropriate matter, a court may make a declaration on a question of fact. A brief note of some of the relevant decisions is to be found in Young, Declaratory Orders, (2nd ed.) para 602. The remedy is quite frequently used to determine questions of fact in town planning matters, see, for example, Auburn M.C. v F.N. Eckold Pty Ltd (1974) 2 NSWLR 148, where the question was whether building work had substantially commenced; Salmar Holding Pty Ltd v Hornsby S.C. (1971) 1 NSWLR 192, on appeal, 126 CLR 52, where the question was whether alterations to a convalescent hospital would convert the hospital from its then use as a rest home, which was not in breach of a building scheme, to premises used for a trade, which would be in breach of the building scheme. For other examples, see Young, op cit para 1211. It can, I think, fairly be said that the action seeking declaratory orders is firmly established as a means of determining disputed questions of fact in town planning matters.

25. Decisions such as Taylor v Hornsby Shire Council (1990) 69 LGRA 281 and Save Blue Lagoon Beach Action Group v Kelvest Pty Ltd (supra) on which Mr Hall relied must be distinguished. Those decisions proceed on the premise that the supervisory jurisdiction of the Land and Environment Court in New South Wales does not extend to a review of an administrative decision on its merits: see Taylor v Hornsby Shire Council (supra) at 285. In these proceedings, the Council does not seek to review the merits of an administrative decision. Instead, it challenges the decision on the ground the Commission had purported to exercise a power it did not have where the question as to the proper procedure turned, not on the opinion of the Commission, but on the determination of objective facts.

26. Even if the Court could only interfere with the decision of the Commission if it was held to be unreasonable, it is nevertheless, necessary to hear evidence on that question. The only evidence adduced so far is contained in the affidavit of Mr Davos and in the exhibits thereto. So far as the first development application is concerned, the evidence is that odours from the plant are most likely to arise from grease trap waste and may detrimentally affect the health or property of persons or will produce conditions which may become offensive to occupiers or users of land in the locality of the proposed development. Although Justice Matheson did not determine this issue, he did note that the affidavits filed on behalf of the Council "point to the real possibility that the subject development application was in fact for a special industry".

27. As far as the second development application is concerned, the effect of the evidence is that, notwithstanding the fact that Collex does not propose to treat grease trap waste, there is a virtual absence of odour control provisions and it is considered likely that the waste to be treated will produce highly odorous emissions which, under unfavourable meteorological conditions, could result in residential occupiers being subjected to offensive odours. In the present state of the evidence, there is a serious question whether the use proposed by Collex is a special industry and that it was unreasonable for the Commission to decide otherwise. In other words, the question whether the decision was reasonable can only be made after the evidence has been adduced by all parties. For that reason I do not comment on the adequacy of the evidence so far adduced other than to state that it raises a serious question as to whether the decision of the Commission was unreasonable.

28. In action No 645 of 1994 the Council primarily seeks orders in the nature of declarations. However, both Mr Hall and Mr Hayes QC referred to the terms of Rule 98.01, which, they submitted, should be interpreted strictly. They submitted that the fact that the Council primarily seeks declaratory relief and then an order in the nature of certiorari cannot alter the terms of Rule 98.01 which provide that an order in the nature of certiorari shall be brought by way of judicial review by summons and an application for declaration may be sought also in the summons. The application for declaration is, therefore, incidental to the application for judicial review so that, if the Council is unable to prosecute its claim for certiorari, the claim for declaratory relief falls with it. I expressed the view that this was an unduly technical approach to the terms of the rule. Nevertheless, I stood the matter over to enable the Council, if so advised, to issue proceedings seeking declaratory orders only. I did so reluctantly. In my view the rules do not require the strict construction for which Mr Hall and Mr Hayes QC contend. Further, the rules are intended to assist, not hinder, the proper resolution of issues between parties and the remedies are not mutually exclusive: Vine v National Dock Labour Board (1957) AC 488; Pyx Granite Co Ltd v Ministry of Housing
(1960) AC 260. While the limits of the remedy of an order in the nature of certiorari must be recognised and effect given to them, the width of the remedy by way of declaratory orders provided a means of resolving the procedural difficulties raised by Mr Hall and Mr Hayes.

29. The Council then issued another action (action No 798 of 1994) in which both the Commission and Collex are again named as defendants. The Council seeks declarations that the two planning consents granted on 12 April 1994 in respect of the first and second development application are ultra vires and void and an injunction restraining Collex from taking action pursuant to those consents. The grounds on which the Council asserts that each consent is ultra vires and void are the same as those on which it sought to invalidate the consent in the early proceedings, namely,
    1. that the proposed development is prohibited by the
    relevant provisions of the Development Plan;
    2. that the Commission failed to comply with the
    provisions of the Planning Act, 1982 in that it did not
    give public notice or any notice of either development
    application pursuant to Regulation 33 of the Development
    Control Regulations; and
    3. the defendant failed to comply with the provisions
    of the Planning Act in relation to an application for a
    use which is a prohibited use.

30. The issues in this action are to all intents and purposes the same as in the action No 645 of 1994. The facts relied on by the Council are the same as in the earlier action. Those facts are set out in an affidavit of Mr Paul Davos sworn on 24 May 1994. The affidavit of Mr Davos recites the history of the two applications for planning consent by Collex, notes the steps taken by the Council to inform the Commission of its opposition to the application and in particular its view that each of the applications is for a proposed use of land which should be characterised as a special industry. It is clear from the affidavit that the only ground on which the Council challenges the decisions granting planning consent is that the proposed use is a special industry and that the Commission has, therefore, failed to implement the proper procedures.

31. Both Mr Hall and Mr Hayes QC submit that these proceedings suffer from the same defect as action No 645 of 1994, namely, that the Court should not determine the question whether the proposed use is a special industry. That is, they say, a decision for the Commission and this Court cannot interfere unless the decision is one which a reasonable body of persons could not have reached. Consistently with that submission, on 16 June 1994, the Commission applied for the following orders:
    "1. That the points
    (a) Does the affidavit of Paul Davos sworn herein on 24
    May 1994 disclose grounds which, as a matter of law,
    could justify the granting by the Court of any of the
    relief sought by the plaintiff?
    (b) Should this Honourable Court, as a matter of law,
    hear evidence and determine for itself whether or not
    the developments proposed by Development Application No.
    060/244/93 and Development Application No. 060/625/93
    or by either of those Applications would be likely to
    cause or create smells and thereby to have any of the
    consequences or to produce any of the conditions
    specified in the definition of 'special industry' in
    regulation 4 of the Development Control Regulations
    1982 be reserved for the consideration of the Full
    Court.

2. Alternatively, that the points referred to in
    paragraph 1. of this application be disposed of before
    proceeding with any trial of the facts."

32. For the reasons already expressed, there is no impediment to this Court determining whether the use proposed by Collex is a special industry and hence determining whether the Commission has adopted the correct procedure in dealing with these two planning applications. I do not think it appropriate to refer the questions asked by the Commission to the Full Court. That course was opposed by the Council and it is, I think, preferable that I decide the issues. The parties may appeal if so advised.

33. The questions posed in the Commission's application must, therefore, be answered as follows:
    1(a). Yes.
    1(b). Yes.

34. In dealing with those questions, I have dealt with the order sought in paragraph (2) of the Commission's application.

35. Given the conclusions I have reached, I think that the most appropriate means of proceeding with these two actions is to stand over action No 645 of 1994 pending the hearing and determination of action No 798 of 1994. This will not cause any prejudice to the Commission or to Collex. Whether the Council succeeds or fails in action No 798 of 1994, it will in 18 all likelihood discontinue action No 645 of 1994 for, whatever the outcome, nothing could then be achieved by the orders sought in action No 645 of 1994. The only issue likely to be outstanding would be the costs of that action.

36. I will hear the parties on the terms of the order to give effect to these reasons.