COUNCIL OF CASINO v ELJO PTY LTD and ANOR [1996] NSWCA 535

COUNCIL OF CASINO v ELJO PTY LTD and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY ACJ, CLARKE and BEAZLEY JJA 12 August 1996, 19 September 1996 [1996] NSWCA 535

S68 Local Government Act 1993 — activities to be carried out only with the approval of Council — transport of waste for fee or reward — appeal from Council's refusal of application — s89 Local Government Act 1993 — Council and Court to give effect to applicant's objectives to the extent compatible with public interest

Prior to the introduction of the Local Government Act 1993, the Council of Casino, the appellant, was responsible for the collection and disposal of waste in the municipality. This task was carried out by contractors selected on a tender basis. When the new Act came into force the respondent, Richmond Waste, sought approval in accordance with s68 to carry out the activity of transporting waste for fee or reward. The application was refused by the Council. The respondent sought a review of the decision and the Council adhered to its refusal. The respondent then lodged an application in the Land and Environment Court appealing from that determination.

The appeal, which proceeded by way of rehearing in accordance with s89 of the new Act, was heard by Bignold J. Although his Honour did not accept the respondent's submission that the Council took into account an irrelevant consideration, namely, the maintenance of its existing monopoly, he allowed the appeal on the basis that there was no evidence that the proposed activity would

or may undermine the Council's existing arrangements. The Council now appeals.

Held:

(1) His Honour did not err by reversing the onus of proof or adopting a wrong onus. On the contrary, what he was doing was considering, as he was bound to, the public interest matters raised by the Council in opposition to the grant of the application.