Weal v Bathurst City Council

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.