(Jones DCJ - 4 June 2014)
Download the judgment

Application – where applicant sought to raise four preliminary matters prior to the substantive hearing of the appeal – whether matters ought to be heard and determined as preliminary matters or heard at the same time as the substantive hearing of the appeal – whether matters raised so fundamental as to require them to be determined as preliminary matters

Facts: This proceeding concerned applications brought by the Applicants (Mr Golder and Westrex Services Pty Ltd) (Westrex) to have four matters dealt with by way of a preliminary points hearing prior to the substantive hearing of their respective appeals.

The substantive proceedings were two submitter appeals against Council's decision to approve a development application lodged by We Kando Pty Ltd (We Kando) for a development permit for a material change of use – high impact industry (waste water storage pond) and a development permit for environmentally relevant activity (ERA) 56 – regulated waste storage. The development application was impact assessable and was required to be publicly notified. The Department of Environment and Heritage Protection (DEHP) was a concurrence agency. DEHP had no requirements for the development application and approved the environmental authority application subject to conditions.

The four preliminary points identified in Westrex's applications were:

  1. Public notification
    Westrex submitted that We Kando had not complied with its public notification obligations under the Sustainable Planning Act 2009 (SPA).
  2. Finality
    The conditions imposed by Council on its approval of the development application required We Kando to submit an Environmental Management Plan (EMP) to Council to be approved prior to commencement of the use. The EMP was to be in accordance with Schedule 9 of the Bungal Shire Council Planning Scheme 2006 (Scheme). The Scheme stated that the Council could refuse an application if an EMP had not been completed to Council's satisfaction.
  3. Responsibility
    The DEHP prepared a concurrence agency response to the application. Council then prepared a report in support of the application, stating that "because the environmental management of waste water storage facilities [was] controlled by an environmental authority which [was] approved by the [DEHP], the Council should not refuse a development application on any grounds which [were] within the scope of the environmental authority..."

  4. Westrex submitted that Council's decision to approve the application was defective in that Council failed to carry out an independent assessment of the environmental impacts and management issues associated with the proposed development, instead relying on the conditional approval granted by DEHP.

  1. Characterisation
    Westrex submitted that the ERA component of the development application was not properly characterised. It was submitted that what would actually occur went beyond the waste water storage contemplated by ERA 56 and would include at least some level of treatment.

Council and We Kando opposed the applications, save for the public notification point which all parties agreed should be dealt with as a preliminary point.

Decision: The Court held, in allowing the applications in part:

  1. The "finality" point did not involve significant contested factual issues nor was it likely to require further evidence. It could be dealt with on the material currently filed in the Court.
  2. The "finality" point was a matter about which a judicial final or conclusive decision could be made.
  3. The "responsibility" point was disposed of in the same way as the "finality" point.
  4. Unlike the other matters, it was likely that if the "characterisation" point were to be dealt with in a preliminary manner, some evidence would be required including the potential cross examination of expert witnesses and would be likely to result in the hearing going beyond one day. Further, unlike the other matters, even if Westrex succeeded on the point, it did not go directly to the standing of the Council's decision to approve the development. It would not result in the Council's approval being invalid. It could readily be dealt with during the conduct of the substantive appeal.
  5. It was appropriate that the "notification", "finality" and "responsibility" points raised by Westrex be heard and determined as preliminary matters prior to the substantive hearing of the appeals.

You might also be interested in...