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
Westrex submitted that We Kando had not complied with its public
notification obligations under the Sustainable Planning Act
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.
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
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.
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
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:
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 "finality" point was a matter about which a
judicial final or conclusive decision could be made.
The "responsibility" point was disposed of in the
same way as the "finality" point.
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.
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.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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