Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited (No. 3)

[2005] NSWLEC 149

Land and Environment Court

of New South Wales

CITATION:

Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited (No. 3) [2005] NSWLEC 149

PARTIES:

APPLICANT:
Weston Aluminium Pty Limited
ACN 075 245 108

RESPONDENT:
Alcoa Australia Rolled Products Pty Limited
ACN 069 853 229

FILE NUMBER(S):

41622 of 2003

CORAM:

Lloyd J

KEY ISSUES:

Practice and Procedure :- notice of motion for adjournment - development application has been lodged - designated development - relevant factors

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 124(3)

DATES OF HEARING:

11/03/2005

EX TEMPORE JUDGMENT DATE:

03/11/2005

LEGAL REPRESENTATIVES:

APPLICANT:
Dr N Brunton (solicitor)
SOLICITORS:
Henry Davis York

RESPONDENT:
Mr J C Robson SC
SOLICITORS:
Freehills

JUDGMENT:

- 3 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Friday, 11 March 2005

WESTON ALUMINIUM PTY LIMITED v ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (No. 3) [2005] NSWLEC 149

EX TEMPORE JUDGMENT

1 The notice of motion for an adjournment under s 124(3) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) will, in the exercise of the Court’s discretion, be granted to enable the development application that has now been made to be determined. In opposing the application Dr N Brunton, appearing for the applicant, Weston Aluminium Pty Limited, relies upon the affidavits filed in relation to the second part of the case dealing with the exercise of the Court’s general discretion to grant final relief. Those affidavits go in some detail into the merits of the respondent’s activities and which the development application now seeks to regularise. The present motion, filed on behalf of the respondent, Alcoa Australia Rolled Products Pty Limited, however, seeks to defer consideration of the Court’s discretion to grant final relief, including any detailed consideration of the merits.

2 The grounds upon which I am prepared to grant the adjournment are largely those advanced by Mr J C Robson SC his submissions, which I find persuasive and which I adopt. There are, however, two factors that are highly relevant.

3 The first is the fact that this is designated development. It is appropriate that the council as the relevant consent authority should give the appropriate notifications, and the public and third parties should be given every opportunity to make submissions on the very kind of issues which are raised in the affidavits that have been filed in these proceedings. It would be wrong for the Court to embark upon a determination of the merits when third parties have a right to be heard. Importantly, it would be wrong for the Court to do so in the absence of the consent authority and without first knowing the views of the consent authority, which is not a party to these proceedings. The situation is one for which s 124(3) of the EP&A Act is designed.

4 The affidavit evidence that has been filed will not necessarily be wasted and can be used in the making of submission on, and in the consideration of, the development application. If there is to be any appeal from the determination of the consent authority then, of course, any objectors will have a right to appear as parties and raise the same or similar issues on a full merit appeal.

5 The second factor is that the activity which the applicant seeks to restrain has been going on for some time. The proceedings have been travelling at a somewhat leisurely pace and there does not seem to be any great urgency. The respondent’s activities which infringe the existing development consents have been carried on since the year 2000. The applicant commenced these proceedings on 23 December 2003. On 25 March 2004 the Chief Judge directed that the proceedings be heard in two parts. The first part was heard over two days on 19 August and 20 August 2004 and, in an ex tempore judgement, I found in favour of the applicant on the question of whether the respondent’s activities were authorised by the existing development consents. The second part of the case relating to the granting of final relief in the exercise of the Court’s discretion is set down for hearing on 21 to 23 March 2005 inclusive, and it is that part of the case for which the adjournment is sought. Importantly, the respondent’s activities are currently licensed by the Environment Protection Authority, which has imposed conditions upon the respondent’s operation to ensure that it is being conducted properly.

6 For these reasons I am inclined to grant the relief sought in the respondent’s notice of motion; that is, that the hearing dates of 21 to 23 March 2005 inclusive be vacated and the matter be stood over for further mention on 9 September 2005, to enable the consent authority to determine the development application for the activities which the applicant seeks to restrain.

I hereby certify that the preceding 6 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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