Weal v Bathurst City Council

[1999] NSWLEC 217

Land and Environment Court

of New South Wales

CITATION:

Weal V Bathurst City Council & Anor [1999] NSWLEC 217

PARTIES

APPLICANT
Weal

RESPONDENTS
Bathurst City Council & Anor

NUMBER:

40179 of 1998

CORAM:

Bignold J

KEY ISSUES:

Practice & Procedure :- Practice and Procedure - supplemental judgment correcting an unintended slip.

LEGISLATION CITED:

DATES OF HEARING:

09/13/1999

DATE OF JUDGMENT DELIVERY:

09/14/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr T S Hale, Barrister
SOLICITORS
Writer Ryan Boesen

FIRST RESPONDENT
Mr W R Davison SC
SOLICITORS
McIntosh McPhillamy

SECOND RESPONDENT
Mr D R Parry, Barrister
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

IN THE LAND AND Matter No . 40179 of 1998

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 14 September 1999

WILLIAM JAMES WEAL

Applicant

v

BATHURST CITY COUNCIL

First Respondent

TWENTIETH SUPER PACE NOMINEES PTY LTE Trading As SPECIALIZED CONTAINER TRANSPORT

Second Respondent

SUPPLEMENTAL JUDGMENT

Bignold J:

1. In my reasons for judgment published on 11 June 1999 dismissing the Applicant’s legal challenge to the validity of a development consent granted by the first Respondent (the Council) to the second Respondent, reference is made in par 69, par 70 and par 100 to the grant by the Environment Protection Authority of a pollution control approval pursuant to the provisions of the Pollution Control Act 1970. This approval was granted on 31 July 1998 subsequent to the date of the grant of the challenged development consent.

2. The first two references appear in par 69 and par 70 under the heading “(vi) Facts subsequent to the grant of the development consent”. Those paragraphs are in the following terms:
69. Firstly, it is common ground that after the grant of the development consent, the EPA, on 31 July 1998, granted pollution control approval, pursuant to the provisions of the Pollution Control Act 1970 in respect of the approved rail/road terminal. That approval was subject to numerous stipulated conditions
70. This fact was received into evidence subject to relevance, and in conceding the fact, the Applicant made it plain that he did not accept the correctness or accuracy of the decision of the EPA to grant the pollution control approval.

3. The reference in par 100 goes beyond the earlier references in that it refers to some of the specific detail of the terms of the pollution control approval.

4. It is this last mentioned reference that has created some difficulty for the parties because it appears that the document comprising the pollution control approval ultimately was not received into evidence, even though I had earlier admitted it into evidence (over the Applicant’s objection) subject to relevance. The reason that the document was not ultimately admitted into evidence was the Council’s acceptance of the Applicant’s concession (in lieu of tendering the documentary evidence) that the requisite pollution control approval was granted by the Environment Protection Authority on 31 July 1998. (This concession is referred to in par 70 of my reasons for judgment). By mischance, the document physically remained in the tendered voluminous bundles of documents.

5. Whereas it may be debatable that the Applicant’s concession of the fact of the grant of the pollution control approval also extended to the detailed terms of that approval (some of which are referred in par 100 of my reasons for judgment) the parties collectively invite me, by consent, to vary my reasons for judgment by deleting par 100. By adopting this course, the Applicant’s concession is confined to the fact that the requisite pollution control approval was granted by the Environment Protection Authority but the precise terms of the approval are not revealed in the evidence.

6. I have considered the parties’ joint request and I am satisfied that par 100, as requested, may be deleted from my reasons for judgment without materially affecting either those reasons or the judgment. I am also satisfied that there is power to vary the published reasons either pursuant to the slip rule (Part 10 Rule 7 of the Rules of Court) or by consent of all the parties (Part 15 Rule 9 of the Rules of Court).

7. Accordingly, for the foregoing reasons, I order the deletion of par 100 of my reasons for judgment published on 11 June 1999.