Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited (No. 2)

[2004] NSWLEC 652

Land and Environment Court

of New South Wales

CITATION:	Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited (No. 2) [2004] NSWLEC 652
PARTIES:	APPLICANT: Weston Aluminium Pty Limited RESPONDENT: Alcoa Australia Rolled Products Pty Limited
FILE NUMBER(S):	41622 of 2003
CORAM:	Lloyd J
KEY ISSUES:	Practice and Procedure :- motion for expedited hearing - belated application unsuccessful
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 97, s 98 and s 124
CASES CITED:
DATES OF HEARING:	23/11/2004
EX TEMPORE JUDGMENT DATE :	11/23/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr P C Tomasetti (barrister) SOLICITORS: Henry Davis York RESPONDENT: Mr D Brigden (solicitor) SOLICITORS: Freehills

JUDGMENT:

- 1 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 23 November 2004

LEC No. 41622 of 2003

WESTON ALUMINIUM PTY LIMITED v ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (No. 2) [2004] NSWLEC 652

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion for expedition filed in Court this morning. The application for relief was originally filed on 23 December 2003. In that application the applicant sought declarations that the use of the respondent’s premises by the respondent for the processing of aluminium dross, other than aluminium dross produced on those premises, was unlawful and prohibited.

2 The proceedings, as I have noted, were commenced on 23 December 2003. On 25 March 2004 the Chief Judge ordered that the proceedings be heard in two parts. The first part was to determine whether the respondent had obtained development consent to carry out the treating, processing, or re-processing of aluminium dross at its premises, other than dross generated within those premises. The second part was to address the question of discretion, if necessary.

3 The matter came before me for hearing on 19 and 20 August, 2004. In an ex tempore judgment delivered on 20 August 2004 I found that the processing of dross, other than dross generated on the respondent’s property, was unlawful and was not covered by any extant development consent. This finding was contrary to the view of the council, which thought that the activity did have consent. The proceedings were then set down for hearing on the question of the exercise of the course of discretion. The parties attended before the Registrar on 12 November 2004 and consented to the matter being set down for the conclusion of the hearing on 21, 22 and 23 March 2005. Finally, as I have noted, the applicant brings a notice of motion for expedition today.

4 Where a party seeks an expedited hearing, it should act promptly. After all, why should a court give a case priority when the applicant for expedition has not sought an expedited hearing at the outset, but has itself delayed in making its application?

5 The applicant suggests that the aluminium dross which is being processed at the respondent’s premises is a hazardous substance. As I understand it, however, the respondent is currently processing the same material which it generates on site with consent, which activity will continue. Moreover, the respondent’s activities are also the subject of a licence issued by the Environment Protection Authority which suggests, at least on a prima facie basis, that the respondent’s activities are being properly controlled.

6 The respondent has, since my findings of 20 August 2004, had a number of attendances upon Holroyd Council with the intention of lodging a development application to regularise its activities. The development for which consent would be sought is designated development. This in turn gives rights to other parties pursuant to ss 97(4) and 98 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

7 I am, therefore, not persuaded that the motion for expedition should be granted. Moreover, I should indicate that in the light of the brief facts which I have recited that if a development application is lodged before the hearing date of 21 March 2005, the Court will entertain an application from the respondent under s 124(3) of the EP&A Act to adjourn the proceedings to enable any such development application to be processed.

I hereby certify that the preceding 7 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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