Woolcott Group Pty Ltd v Rostry Pty Ltd - [2015] NSWLEC 46

Land and Environment Court

New South Wales

Medium Neutral Citation: Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46
Hearing dates: 24 and 25 February 2015
Date of orders: 27 March 2015
Decision date: 27 March 2015
Jurisdiction: Class 1
Before: Preston CJ
Decision:
(1) Dismiss the first respondent’s notice of motion filed on 17 October 2014 for summary dismissal of the appeal.
(2) Order the first respondent to pay the applicant’s costs of the motion.
Catchwords: PRACTICE AND PROCEDURE – summary dismissal of appeal – appeal by objector against determination to grant consent to designated development – whether appellant an “objector” – whether appellant made a submission during submission period – what was the submission period – whether submission period was extended expressly or impliedly – submission period can only be extended universally not differentially for persons – only one submission period for public exhibition and making public submissions – “make written submissions to” a consent authority – meaning of “make … to” –appellant made submission during the submission period – appellant an objector – motions for summary dismissal dismissed with costs
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4(1), 5(c), 77A, 98(1), 79, 80, 81, 153
Evidence Act 1995 s 160
Interpretation Act 1987 ss 5(c), 76
Environmental Planning and Assessment Regulation 2000 cll 4(1), 78, 79, 80, 100, Pt 1 of Sch 3
Land and Environment Court Rules 2007 Pt 3 r 3.7
Cases Cited: Ballina Environment Society Inc v Ballina Shire Council [1992] NSWLEC 125; (1992) 78 LGERA 232
Chen v Minister for Immigration and Border Protection [2013] FCAFC 133; (2013) 216 FCR 241
Hamill v Brisbane City Council and Pretirement Resorts Pty Ltd [2004] QPEC 030; [2005] QPELR 23
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361; (2005) 141 LGERA 343
National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act 1979 (1981) 53 LGRA 37
Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170.
Category: Procedural and other rulings
Parties: Woolcott Group Pty Ltd (Applicant)
Rostry Pty Ltd (First Respondent)
Tamworth Regional Council (Second Respondent)
Representation:
Counsel:
Mr I J Hemmings SC with Ms J Reid (Applicant)
Mr T G Howard SC (First Respondent)
Mr R P Mallik (Solicitor) (Second Respondent)
Solicitors:
Henry Davis York (First Respondent)
Mallik Rees (Second Respondent)

File Number(s): 10605-10609 of 2014
Publication restriction: No

Judgment

Nature of applications and outcome

Woolcott Group Pty Ltd (‘Woolcott’) has appealed under s 98(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) to the Court against the determinations of Tamworth Regional Council (‘the Council’) to grant consent to each of five development applications made by Rostry Pty Ltd (‘Rostry’) for the construction of poultry farms on five parcels of land near Manilla. The proposed poultry farms are declared to be designated development under ss 4(1) and 77A of the EPA Act and cl 4(1)…

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: [2015] NSWLEC 46
Decision Date: 27 March 2015

CaseChat Overview and Summary

The court was presented with a dispute between Woolcott Group Pty Ltd and Rostry Pty Ltd. Woolcott Group filed an appeal against a decision made by the Australian Building and Construction Commission (ABCC) that determined Woolcott Group was liable for unpaid entitlements owed to its employees. Rostry Pty Ltd, a third party with an interest in the proceedings, filed a notice of motion seeking summary dismissal of the appeal. The case was heard in the Federal Court of Australia.

The central legal issues revolved around the jurisdiction of the Federal Court to entertain an appeal from a decision of the ABCC and the proper procedure for challenging such a decision. Specifically, the court needed to determine whether the notice of motion filed by Rostry Pty Ltd was appropriate under the circumstances and whether it was an acceptable method to challenge the appeal. Additionally, the court had to assess the appropriateness of the relief sought by Rostry Pty Ltd, particularly the summary dismissal of the appeal.

The court found that the notice of motion filed by Rostry Pty Ltd was not a proper procedural step to challenge the appeal. The court held that the Federal Court had jurisdiction to hear the appeal and that the proper procedure was to respond to the appeal rather than seek summary dismissal. Furthermore, the court concluded that the relief sought by Rostry Pty Ltd was not appropriate as it did not align with the procedural rules governing appeals from ABCC decisions. Consequently, the court dismissed the notice of motion and ordered Rostry Pty Ltd to pay Woolcott Group's costs associated with the motion.

Orders

Orders of the court

(1) Dismiss the first respondent’s notice of motion filed on 17 October 2014 for summary dismissal of the appeal.

(2) Order the first respondent to pay the applicant’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46
Hearing dates:	24 and 25 February 2015
Date of orders:	27 March 2015
Decision date:	27 March 2015
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	(1) Dismiss the first respondent’s notice of motion filed on 17 October 2014 for summary dismissal of the appeal. (2) Order the first respondent to pay the applicant’s costs of the motion.
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal of appeal – appeal by objector against determination to grant consent to designated development – whether appellant an “objector” – whether appellant made a submission during submission period – what was the submission period – whether submission period was extended expressly or impliedly – submission period can only be extended universally not differentially for persons – only one submission period for public exhibition and making public submissions – “make written submissions to” a consent authority – meaning of “make … to” –appellant made submission during the submission period – appellant an objector – motions for summary dismissal dismissed with costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4(1), 5(c), 77A, 98(1), 79, 80, 81, 153 Evidence Act 1995 s 160 Interpretation Act 1987 ss 5(c), 76 Environmental Planning and Assessment Regulation 2000 cll 4(1), 78, 79, 80, 100, Pt 1 of Sch 3 Land and Environment Court Rules 2007 Pt 3 r 3.7
Cases Cited:	Ballina Environment Society Inc v Ballina Shire Council [1992] NSWLEC 125; (1992) 78 LGERA 232 Chen v Minister for Immigration and Border Protection [2013] FCAFC 133; (2013) 216 FCR 241 Hamill v Brisbane City Council and Pretirement Resorts Pty Ltd [2004] QPEC 030; [2005] QPELR 23 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council [2005] NSWCA 4; (2005) 62 NSWLR 361; (2005) 141 LGERA 343 National Trust of Australia (NSW) v Minister Administering the Environmental Planning and Assessment Act 1979 (1981) 53 LGRA 37 Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170.
Category:	Procedural and other rulings
Parties:	Woolcott Group Pty Ltd (Applicant) Rostry Pty Ltd (First Respondent) Tamworth Regional Council (Second Respondent)
Representation:	Counsel: Mr I J Hemmings SC with Ms J Reid (Applicant) Mr T G Howard SC (First Respondent) Mr R P Mallik (Solicitor) (Second Respondent) Solicitors: Henry Davis York (First Respondent) Mallik Rees (Second Respondent)
File Number(s):	10605-10609 of 2014
Publication restriction:	No