Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 Hearing dates: 17 May 2011 Decision date: 22 March 2012 Before: McColl JA at [1], Macfarlan JA at [123], Whealy JA at [124] Decision: 1. Grant leave to appeal. 2. Appellants to file the Notice of Appeal in the form of the draft amended notice of appeal in the White Book within seven days. 3. Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LOCAL GOVERNMENT - building control - development application - principles - whether application in respect of "designated development" - Environmental Planning and Assessment Act 1979 (NSW), s 77A - identification of "existing or approved development" - Environmental Planning and Assessment Regulation 2000 (NSW) Sch 3, Pt 2, cl 35

APPEAL - appeal from Land and Environment Court - whether order or decision on question of law - where decision required formation of opinion appeal available if decision maker asked the wrong question - Land and Environment Court Act 1979 (NSW), s 57

EVIDENCE - presumption of regularity - whether applicable to issue of whether original development consent given - whether original consent can be inferred from subsequent development consents