Shah Friends Pty Ltd v Cumberland Council [2023] NSWLEC 31

Land and Environment Court New South Wales

Medium Neutral Citation: Shah Friends Pty Ltd v Cumberland Council [2023] NSWLEC 31 Hearing dates: 13 March and supplementary written submissions by 22 March 2023 Date of orders: 5 April 2023 Decision date: 05 April 2023 Jurisdiction: Class 1 Before: Moore J Decision: See orders at [118] Catchwords: APPEAL ‑ Council issues Stop Use Order to Applicant requiring cessation of use of premises as a waste or resource transfer station ‑ Applicant appeals against imposition of the order ‑ existing development consent for use of the premises as a foundry ‑ Applicant contends that its use of the premises for recovery of metal and other materials falls within the use permitted by the foundry development consent ‑ Commissioner upholds Council's characterisation as a waste or resource transfer station ‑ Commissioner rejects Applicant's characterisation of its use ‑ Commissioner dismisses the appeal against the order, modifying its terms and ordering cessation of the Applicant's use within 28 days ‑ Applicant commences appeal pursuant to s 56A of the Land and Environment Court Act 1979 ‑ appeal based on five grounds said to reflect errors of law by the Commissioner ‑ operation of Stop Use Order stayed until determination of the Applicant's appeal ‑ at hearing of the appeal, the Applicant abandons three of the five grounds originally pleaded but seeks leave to add an additional ground asserting a further error of law on behalf of the Commissioner ‑ leave to rely on proposed added ground not opposed by the Council ‑ leave granted ‑Ground 1 alleges Commissioner wrongly construed 1979 development consent on too narrow a basis ‑ Commissioner committed no error in construing 1979 development consent ‑ Ground 1 fails ‑ new Ground 1A alleges inaccurate delineation of geographic scope of Stop Use Order renders it invalid ‑ scope of Stop Use Order can only apply to premises lawfully occupied by the Applicant ‑ Ground 1A fails - Grounds 2, 3 and 4 not pressed ‑ Ground 5 pleads that the material processed by the applicant was not waste ‑ the basis of this ground not raised before the Commissioner in the fashion advanced on appeal ‑ Council did not oppose determination of the ground ‑ material processed by the Applicant on the site not waste ‑ Ground 5 established ‑ appeal upheld ‑ Stop Use Order set aside. COSTS ‑ presumption costs follow the event in s 56A appeals ‑ ability to depart from presumption in appropriate circumstances - appropriate to depart from presumption as Applicant successful on basis not argued before the Commissioner ‑ no order for costs of the appeal unless some different costs order sought within 14 days of decision - if different costs order sought, determination to be on written submissions Legislation Cited: Civil Procedure Act 2005, s 98(1) Cumberland Local Environmental Plan 2021 Environmental Planning and Assessment Act 1979, ss 8.18 and 9.34(1)(a) Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, s 56A State Environmental Planning Policy (Infrastructure) 2008 State Environmental Planning Policy (Transport and Infrastructure) 2021 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223 Shah Friends Pty Ltd v Cumberland Council [2022] NSWLEC 1537 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28 Category: Principal judgment Parties: Shah Friends Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Counsel: Mr R Lancaster SC/Ms A Pearman, barrister (Applicant) Ms N Hammond, barrister (Respondent)