Metalcorp Pty Ltd v. Campbelltown City Council [1998] NSWLEC 119

Land and Environment Court of New South Wales

CITATION : Metalcorp Pty Ltd v. Campbelltown City Council [1998] NSWLEC 119 APPLICANT Metalcorp Pty Ltd PARTIES : RESPONDENT Campbelltown City Council FILE NUMBER(S) : 40181 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1993 CASES CITED: DATES OF HEARING: 22/09/98 EX TEMPORE JUDGMENT DATE : 09/22/1998

APPLICANT Mr W. Davison LEGAL REPRESENTATIVES: Abott Tout RESPONDENT N/A

JUDGMENT: 1. This is an application by Metalcorp Limited (Metalcorp), an applicant in pending Class 1 proceedings in this Court for orders restraining the Campbelltown City Council (the Council) from resolving to adopt recommendation 1 of the Planning and Building Committee made at its meeting on 15 September 1998 until further orders of the Court. The resolution and recommendation is appended to the affidavit sworn by Jane Elizabeth Hewitt on 21 September 1988. The Committee recommends that the Council adopt the Motor Vehicle Wreckers Metal Recyclers Waste Disposal Depots and Junkyards Policy Development Control Plan No. 20 for the purposes of Clause 4 of Interim Development Order No. 21 (the IDO).

2. The question whether such a plan was already in force has been the subject of a prior determination by this Court in the past month when, on the hearing of Metalcorp's appeal against the Council's refusal of development consent to establish a metal recycling plant, the Council belatedly raised the point of law that the development was contrary to the terms of a development control plan in force under Clause 4 of the IDO. Instead of proceeding to an appeal on the merits (and the case had been prepared on that basis), the parties sought the determination (as a preliminary determination) of the question of law whether such a plan (a) was in force and (b) if so, whether it had the effect contended for by the Council (i.e. prohibiting the proposed development).