Land and Environment Court
of New South Wales
CITATION:
Weal -V- Bathurst City Council & Ors [1999] NSWLEC 132
PARTIES
APPLICANT:
W.J. WealRESPONDENTS:
Bathurst City Council and Ors
NUMBER:
40179 of 1998
CORAM:
Bignold J
KEY ISSUES:
Judicial Review :- Validity of development consent on "Wednesbury" principles-whether Council properly considered the noise impact of the approved development.
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
DATES OF HEARING:
05/18/1999; 05/19/1999; 05/20/1999; 06/02/1999
DATE OF JUDGMENT DELIVERY:
06/11/1999
LEGAL REPRESENTATIVES:
APPLICANT:
Mr T. Hale, Barrister
SOLICITORS:
Writer Ryan BoesenFIRST RESPONDENT:
SECOND RESPONDENT:
Mr W.R. Davison SC
SOLICITORS:
McIntosh McPhillamy
Mr D.R. Parry, Barrister
SOLICITORS:
Houston Dearn O'Connor
JUDGMENT:
TABLE OF CONTENTS
A. INTRODUCTION 1-10
B. PRIMARY FACTS RELATING TO THE DEVELOPMENT
CONSENT 11-73
(i) Background to development application 12
(ii) The making of the development application 13-17
(iii) The Council’s processing of the development application 18-60
(iv) The Council’s determination of the development application 61-63
(v) The grant of the development consent 64-68
(vi) Facts subsequent to the grant of the development consent 69-73
C. DID THE COUNCIL FAIL TO TAKE INTO CONSIDERATION
RELEVANT MATTERS? 74-139
D. DID THE COUNCIL TAKE INTO ACCOUNT IRRELEVANT CONSIDERATIONS? 140-148
E. WAS THE COUNCIL’S DETERMINATION UNREASONABLE
IN THE “ WEDNESBURY ” SENSE? 149-168
F. WAS THE COUNCIL GUILTY OF PARTIALITY OR BIAS? 169-173
G. WAS THE DELEGATION TO THE COUNCIL’S DIRECTOR UNAUTHORISED 174-182
H. DID THE COUNCIL’S RESOLUTION FETTER THEDISCRETION VESTED IN THE COUNCIL’S DIRECTOR? 183-188
I. DOES THE DEVELOPMENT CONSENT LACK THE REQUISITE CERTAINTY AND FINALITY? 189-195
J. CONCLUSIONS AND ORDERS 196-197
IN THE LAND AND Matter No. 40179 of 1998
ENVIRONMENT COURT OF Coram: Bignold J.
NEW SOUTH WALES 11 June 1999
WILLIAM JAMES WEAL
Applicant
v.
BATHURST CITY COUNCIL
First Respondent
TWENTIETH SUPER PACE NOMINEES PTY LTD Trading As SPECIALIZED CONTAINER TRANSPORT
Second Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. By his class 4 application, the Applicant, who resides at No 71 White Rock Road, Kelso, challenges the validity of a development consent purportedly granted by the first Respondent (the Council) to a development application made by the second Respondent (Specialized Container Transport) for an intermodal transport terminal to be developed on land known as lots 5, 6 and 7 DP581954, having frontage to Lee Street and White Rock Road, Kelso (the development site), situate at its closest point, a short distance (70m) from the Applicant’s residence.
2. As will appear, the disputes arising in the present case concern the close physical relationship between (i) the development site, located in an Industrial Zone, and existing residential development situate in the adjacent Rural/Residential zone and (ii) the proposed development on the development site with its potential to create significant environmental impacts (by virtue of the nature and scale of the development) on its neighbours, and the existing neighbouring developments (including the Applicant’s residence). A plan showing those relationships is annexed hereto and marked “A” (being a plan prepared by the Council showing the location of properties of persons who objected to…
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- [1999] NSWLEC 132
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