Weal v Bathurst City Council & Anor [2000] NSWCA 88

Weal v Bathurst City Council & Anor [2000] NSWCA 88

By majority, the Council did not properly take the noise impact of the development into consideration as required by s 90(1) of the Environmental Planning and Assessment Act 1979. Although it adverted to noise and imposed a deferred commencement condition requiring relevant EPA approvals, the Council did not reach its own view about the likely noise impact or the means of mitigating it, but left the critical issue to the EPA approval process amid unresolved conflict between the proponent's consultants and the EPA. Section 91AA did not permit the Council to defer consideration of that mandatory matter. The later evidence of modification of the consent was not admitted because it was not...

Jurisdiction
Australia
Judgment Date
24 November 2000
Procedural Posture
Appeal From Class 4 Proceedings in the Land and Environment Court Concerning Validity of Development Consent / Court of Appeal Judgment
Outcome
First respondent's application to adduce fresh evidence dismissed; appeal allowed by majority; development consent declared void and of no force and effect; respondents ordered to pay costs.
Legal Topics
['development Consent' 'deferred Commencement Consent' 'noise Impact' 'relevant Considerations' 'wednesbury Unreasonableness' 'fresh Evidence on Appeal']
['town Planning' 'environmental Planning and Assessment' 'administrative Law' 'judicial Review'] ['development Consent' 'deferred Commencement Consent' 'noise Impact' 'relevant Considerations' 'wednesbury Unreasonableness' 'fresh Evidence on Appeal']

Case Brief

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Procedural Posture

Appeal From Class 4 Proceedings in the Land and Environment Court Concerning Validity of Development Consent / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether Bathurst City Council failed properly to take into consideration the noise impact of the proposed intermodal transport terminal when granting development consent.' "Whether a deferred commencement condition requiring relevant approvals by the Environment Protection Authority satisfied the Council's obligation to consider noise impact under s 90(1) of the Environmental Planning and Assessment Act 1979." "Whether the Council's decision in relation to noise impact was Wednesbury unreasonable." 'Whether the first respondent should be permitted to adduce fresh evidence on the appeal concerning a later modification of the consent.']

Ratio Decidendi

By majority, the Council did not properly take the noise impact of the development into consideration as required by s 90(1) of the Environmental Planning and Assessment Act 1979. Although it adverted to noise and imposed a deferred commencement condition requiring relevant EPA approvals, the Council did not reach its own view about the likely noise impact or the means of mitigating it, but left the critical issue to the EPA approval process amid unresolved conflict between the proponent's consultants and the EPA. Section 91AA did not permit the Council to defer consideration of that mandatory matter. The later evidence of modification of the consent was not admitted because it was not...

Court Disposition

First respondent's application to adduce fresh evidence dismissed; appeal allowed by majority; development consent declared void and of no force and effect; respondents ordered to pay costs.

Orders

  • ["Dismiss the first respondent's application to adduce fresh evidence on the appeal." 'Appeal allowed.' 'Set aside the orders made by Bignold J dismissing the application and as to costs.' 'Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998...