BAIADA & ORS v WASTE RECYCLING & PROCESSING SERVICE OF NSW [1999] NSWCA 139

BAIADA & ORS v WASTE RECYCLING & PROCESSING SERVICE OF NSW [1999] NSWCA 139

The appellant established, to the civil standard, that no development consent had been granted by the Council to itself for the use of Lot 3 DP 571348 as a putrescible waste depot, based on absence of any record in the official registers, admissions by solicitors, and failure by respondent to produce such evidence, justifying a declaration that no such consent exists.

Jurisdiction
Australia
Judgment Date
18 May 1999
Procedural Posture
Appeal / Decision on Appeal
Outcome
appeal allowed by majority
Legal Topics
['development Consent' 'burden of Proof' 'environmental Planning and Assessment Act 1979' 'council Use of Land' 'consent Registers' 'subpoena and Evidential Burden']
['environmental Law' 'evidence'] ['development Consent' 'burden of Proof' 'environmental Planning and Assessment Act 1979' 'council Use of Land' 'consent Registers' 'subpoena and Evidential Burden']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether development consent existed for use of land as waste depot under Blacktown Planning Scheme Ordinance and Environmental Planning and Assessment Act 1979' 'Whether absence of consent record is evidence for absence of consent' 'Allocation of evidential and legal burden of proof in establishing absence of consent']

Ratio Decidendi

The appellant established, to the civil standard, that no development consent had been granted by the Council to itself for the use of Lot 3 DP 571348 as a putrescible waste depot, based on absence of any record in the official registers, admissions by solicitors, and failure by respondent to produce such evidence, justifying a declaration that no such consent exists.

Court Disposition

appeal allowed by majority

Orders

  • ['Appeal allowed' 'Orders made by Talbot J dated 30 May 1997 set aside' 'Declaration that no development consent exists for the use of the land in lot 3 DP 571348 as a putrescible waste depot' 'Proceedings remitted to Land and Environment Court for determination of remaining issues' "Respondent to pay the...