ALCOA AUSTRALIA ROLLED PRODUCTS PTY LTD v WESTON ALUMINIUM PTY LTD [2006] NSWCA 273

Reported Decision : 148 LGERA 439

New South Wales Court of Appeal

CITATION: ALCOA AUSTRALIA ROLLED PRODUCTS PTY LTD v WESTON ALUMINIUM PTY LTD [2006] NSWCA 273

HEARING DATE(S): 6 September 2006

JUDGMENT DATE: 4 October 2006

JUDGMENT OF: Spigelman CJ at 1; McColl JA at 2; Basten JA at 6

DECISION: (1) In matter no. 40293 of 2006; (a) grant the Applicant an extension of time within which to seek leave to appeal up to and including the day on which the summons for leave to appeal was filed in this Court; (b) grant the Applicant leave to appeal; (c) allow the appeal and order that the application by Weston Aluminium Pty Ltd filed in matter no. 41622 of 2003 in the Land and Environment Court be dismissed with costs; (d) order the Respondent, Weston Aluminium Pty Ltd to pay the costs of the Appellant of the appeal; (2) In matter no. 41009 of 2005; (a) allow the appeal and set aside order 2 made in the Land and Environment Court on 9 December 2005; (b) in lieu thereof, order that the applicant in that Court, Weston Aluminium Pty Ltd, pay the costs of the Second Respondent of the application before Pain J; (c) order the Appellant to pay the Second Respondent's costs of the appeal.

CATCHWORDS: ENVIRONMENTAL LAW – Building and town planning – scope of development consent – construction by reference to existing activities – incorporation by reference of material extrinsic – when reference to extrinsic material permissible. - ENVIRONMENTAL LAW – Noxious and offensive trades and premises – licensing under environmental protection legislation – aluminium processing plant – licence permitting reprocessing of by-product conditional upon development consent – variation of licence – whether power to vary subject to s 50(2) - Protection of the Environment Operations Act 1997 (NSW), ss 50(2), 58, Environmental Planning and Assessment Act 1979 (NSW), s 91