Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7

Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7

The appeals failed because the primary judge did not err on any question of law. The Liverpool LEP did not apply to the Pt 3A project and was only a permissible consideration; in any event, the primary judge considered its objectives, correctly treated the specific permission in Sch 1 cl 11 as limiting the weight of inconsistent E2 zone objectives, and did not ignore cl 11(3). His reasons were adequate. On noise impacts, the primary judge understood the evidence, accepted that Moorebank's measures would not protect all of the R3 land, and made an evaluative judgment that further measures were not appropriate; that judgment was reasonably open and not legally unreasonable.

Jurisdiction
Australia
Judgment Date
07 February 2018
Procedural Posture
Appeals to the Court of Appeal Under S 57(1) of the Land and Environment Court Act 1979 (nsw) on Questions of Law From Land and Environment Court Decisions Concerning Approval of a Materials Recycling Facility Under Pt 3 a of the Environmental Planning and Assessment Act 1979 (nsw). / Appeal; Both Appeals Heard Together.
Outcome
Both appeals dismissed with costs.
Legal Topics
['major Project Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979 (nsw)' 'liverpool Local Environmental Plan 2008 (nsw)' 'zone Objectives and Additional Permitted Uses' 'resource Recovery Facility' 'noise Impacts and Mitigation Conditions' 'adequacy of Reasons' 'legal Unreasonableness' 'appeal on a Question of Law']
['environment and Planning' 'administrative Law' 'appellate Procedure'] ['major Project Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979 (nsw)' 'liverpool Local Environmental Plan 2008 (nsw)' 'zone Objectives and Additional Permitted Uses' 'resource Recovery Facility' 'noise Impacts and Mitigation Conditions' 'adequacy of Reasons' 'legal Unreasonableness' 'appeal on a Question of Law']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeals to the Court of Appeal Under S 57(1) of the Land and Environment Court Act 1979 (nsw) on Questions of Law From Land and Environment Court Decisions Concerning Approval of a Materials Recycling Facility Under Pt 3 a of the Environmental Planning and Assessment Act 1979 (nsw). / Appeal; Both Appeals Heard Together.

Legal Issues

  1. 1 ['Whether the primary judge erred by failing to take into account the objectives of the E2 Environmental Conservation zone in the Liverpool Local Environmental Plan 2008 (NSW).' 'Whether the primary judge erred by failing to consider the context, general purpose and policy of cl 11 of Sch 1 to the Liverpool Local Environmental Plan 2008 (NSW).' 'Whether the primary judge erred by failing to differentiate between development permissible under cl 2.5 without recourse to cl 11 and development permissible only under cl 11.' 'Whether the primary judge erred by failing to take into account cl 11(3) of Sch 1, which provided for repeal of cl 11 on 1 September 2018.' 'Whether the primary judge failed to give adequate reasons for finding that the proposed materials recycling facility was consistent with the Liverpool Local Environmental Plan 2008 (NSW).' 'Whether the primary judge erred in finding that noise impacts on the Tanlane land zoned R3 Medium Density Residential could be managed by conditions and had been the subject of reasonable and sufficient mitigation measures.' "Whether the primary judge's decision was affected by legal unreasonableness."]

Ratio Decidendi

The appeals failed because the primary judge did not err on any question of law. The Liverpool LEP did not apply to the Pt 3A project and was only a permissible consideration; in any event, the primary judge considered its objectives, correctly treated the specific permission in Sch 1 cl 11 as limiting the weight of inconsistent E2 zone objectives, and did not ignore cl 11(3). His reasons were adequate. On noise impacts, the primary judge understood the evidence, accepted that Moorebank's measures would not protect all of the R3 land, and made an evaluative judgment that further measures were not appropriate; that judgment was reasonably open and not legally unreasonable.

Court Disposition

Both appeals dismissed with costs.

Orders

  • ['Both appeals dismissed with costs.']