CITATION: Weal v Bathurst City Council & Anor [2000] NSWCA 88
FILE NUMBER(S): 40509/99
HEARING DATE(S): 6 April 2000
JUDGMENT DATE: 24/11/2000
PARTIES: William James Weal - Appellant Bathurst City Council - First Respondent Twentieth Super Pace Nominees Pty Ltd (t/as Specialized Container Transport)
JUDGMENT OF: Mason P Priestley JA Giles JA
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 40179/98
LOWER COURT JUDICIAL OFFICER: Bignold J
COUNSEL: T S Hale SC & E A White - Appellant W R Davison SC - First Respondent D R Parry - Second Respondent
SOLICITORS: Writer Ryan Boesen, Toukley - Appellant Housten Dearn O'Connor, Burwood - First Respondent McIntosh McPhillamy & Co, Bathurst - Second Respondent
CATCHWORDS: TOWN PLANNING - development consent - whether council failed properly to take into consideration the noise impact of the development - deferred commencement condition that consent not to operate until "relevant approvals" by EPA had been obtained - despite deferred commencement condition, council still obliged to consider noise impact - (by majority) on facts, should be inferred that it did not properly do so.
LEGISLATION CITED:
DECISION: (By majority) (1) Dismiss the first respondent’s application to adduce fresh evidence on the appeal. (2) Appeal allowed. (3) Set aside the orders made by Bignold J dismissing the application and as to costs. (4) Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect. (5) Order the respondents to pay the appellant’s costs of the proceedings before Bignold J and of the appeal.
JUDGMENT:
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40509/99
LEC 40179/98
MASON P
PRIESTLEY JA
GILES JA
Friday 24 November 2000
WEAL v BATHURST CITY COUNCIL & ANOR
JUDGMENT
MASON P: I have had the benefit of reading the judgment of Giles JA which sets out the facts and identifies the relevant legal principles.
I agree that the application to adduce fresh evidence in the appeal should be rejected, for the reasons stated by Giles JA.
For reasons set out by Giles JA, it is clear that the Council recognised the significance of noise to the development application. It responded in part by conditions 31, 51, 59, 65 and 66 of the development consent, but principally by condition 1 of the deferred commencement conditions:
1.This consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained.
REASON: Because of representations to that effect made by that body. (Section 90(1)(n) of the Environment Planning and Assessment Act, 1979, as amended.)
If condition 1 was a legally deficient response or evidence of a legally deficient approach to the Council’s duty then the consent could not be justified by reference to the particular conditions which deal…
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.
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AGLC
Weal v Bathurst City Council [2000] NSWCA 88
Case
[2000] NSWCA 88
Decision Date
CaseChat Overview and Summary
The case of *Weal v Bathurst City Council* involved an appeal to the Court of Appeal of New South Wales concerning a development consent granted by the Bathurst City Council to a third party for an intermodal transport terminal. The appellant, Mr Weal, challenged the validity of this consent, arguing that the Council had failed to properly consider the noise impact of the proposed development.
The primary legal issue before the Court was whether the Bathurst City Council had adequately taken into consideration the potential noise impact of the development, as required by planning legislation, despite a deferred commencement condition that stipulated the consent would not operate until certain environmental approvals were obtained from the EPA. The Court was also required to determine if, on the facts, it could be inferred that the Council had not properly considered this crucial aspect of the development.
By majority, the Court found that while the Council was obliged to consider the noise impact even with a deferred commencement condition, the evidence did not support the conclusion that it had failed to do so. The majority reasoned that the Council had recognised the noise issue and made a decision that accommodated it, fulfilling its duty under section 90(1)(b) of the relevant planning act to consider the environmental impact and any means to mitigate harm. The Court adopted the formulation of "proper, genuine and realistic consideration upon the merits" as the standard for taking matters into consideration, and concluded that the Council's actions met this standard, even if there were signs of the Council being anxious to proceed.
Consequently, the Court of Appeal allowed the appeal, setting aside the previous orders that had dismissed the appellant's application. The development consent was declared void and of no force or effect, and the respondents were ordered to pay the appellant's costs. The Court also dismissed an application by the first respondent to adduce fresh evidence on the appeal.
Orders
Orders of the court
(By majority) (1) Dismiss the first respondent’s application to adduce fresh evidence on the appeal. (2) Appeal allowed. (3) Set aside the orders made by Bignold J dismissing the application and as to costs. (4) Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect. (5) Order the respondents to pay the appellant’s costs of the proceedings before Bignold J and of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There is little point in searching for a definitive statement of what is involved in taking something into consideration. I am however, attracted to Gummow J’s formulation of “proper, genuine and realistic consideration upon the merits”. This was in the context of s5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292). The formulation has been carried across to the proper consideration ground of review and now appears to have general acceptance in the Federal Court of Australia (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 57 where the authorities are collected by Merkel J).There was no failure to take the noise problem into consideration For the reasons which follows, I cannot characterise the Council’s actions as failing such a test. Sometimes there will be a failure to take matters into consideration where the decision-maker is shown to have had inadequate personal acquaintance with the facts and issues and where the decision-maker was no more than a rubber stamp for someone lower in the administrative hierarchy. Parramatta City Council v Hale (1982) 47 LGRA 319, upon which the appellant placed considerable reliance, was such a case. There, the course of proceedings at the critical meeting “precluded the members of the council as a group from having virtually any opportunity to comprehend and evaluate, from their own resources, or with the aid of the council’s expert officers, the significance of material changes in highly relevant aspects of matters the council was required under s90(1) to take into consideration” (per Street CJ at 336). This did not happen in the present case, even if there are signs that the Council was anxious to proceed without further delay. The outer potential of the noise issue was recognised and a decision made which accommodated it. Section 90(1)(b) required the Council to take into consideration the impact of the particular development on the environment. And, because harm to the environment was likely to be caused due to noise, the Council was also obliged to take into consideration “any means that may be employed to protect the environment or to mitigate that harm.” Many other relevant factors had to be taken into consideration, including the economic effect of the development in the locality (s90(1)(d)). The weighing of factors tugging in opposite directions was the task of the Council, not the Court. Nevertheless, the duty to take noise into consideration required more than simple advertence to the noise issue. I agree with Giles JA that there had to be an understanding of relevant matters and their significance to the decision required to be made, as well as a process of evaluation sufficient to warrant the description of the matters being taken into consideration. Legally sufficient consideration of the noise issues extended to consideration as to appropriate conditions limiting and controlling noise if consent was to be forthcoming.