Weal v Bathurst City Council - [1999] NSWLEC 132

Land and Environment Court

of New South Wales

CITATION:

Weal -V- Bathurst City Council & Ors [1999] NSWLEC 132

PARTIES

APPLICANT:
W.J. Weal

RESPONDENTS:
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 Boesen
FIRST RESPONDENT:
Mr W.R. Davison SC
SOLICITORS:
McIntosh McPhillamy
SECOND RESPONDENT:
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

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…

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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Details

Case: [1999] NSWLEC 132
Decision Date: 11/06/1999

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, William James Weal challenged the validity of a development consent granted by Bathurst City Council to Specialized Container Transport for an intermodal transport terminal in Kelso. The primary dispute centered around the noise impact of the proposed development on neighbouring residential properties, including Weal's residence. The court considered several issues: whether the Council failed to consider relevant matters, took into account irrelevant considerations, acted unreasonably in the Wednesbury sense, exhibited partiality or bias, improperly delegated its authority, fettered its discretion, and whether the development consent lacked certainty and finality. The court examined the documentary evidence and concluded that the Council had properly considered the relevant matters, including the noise impact of the development. The Council's decision to grant the development consent was deemed reasonable, and no evidence of partiality, improper delegation, or fettering of discretion was found. The court dismissed Weal's application and reserved the question of costs.

Orders