Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125

Land and Environment Court New South Wales

Medium Neutral Citation: Site Plus Pty Ltd v Wollongong City Council [2014] NSWLEC 125 Hearing dates: 9, 10, 17 August 2012 Decision date: 22 August 2014 Jurisdiction: Class 1 Before: Craig J Decision: 1. Appeal dismissed 2. The Applicant must pay the First Respondent's costs of the appeal. 3. Exhibits tendered on the appeal may be returned. Catchwords: APPEAL - s 56A of the Land and Environment Court Act 1979 - development application for development and operation of a resource recovery facility - appeal to Court pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 - s 97 appeal dismissed - necessity to characterise land use of both the site proposed for the facility and the private access road to the site proposed by the Applicant - whether Commissioner erred on a question of law when characterising the access road as use for the purpose of a resource recovery facility - permissibility of "road" purpose under Wollongong Local Environmental Plan 2009 - characterisation of development as a "question of law" under s 56A - no error of law

APPEAL - s 56A of the Land and Environment Court Act 1979 - development application for development and operation of a resource recovery facility - appeal to Court pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 -s 97 appeal dismissed - whether the Council failed to act as a model litigant - whether any failure occasioned a miscarriage of justice - "miscarriage of justice" as a question of law under s 56A - identification of decision of Commissioner occasioning "miscarriage of justice" - obligation of Council to have volunteered material directed to its use of the site when opposing the grant of consent on traffic grounds - Council use of the site and opinions of Council staff favourable to the application identified in evidence before the Court - no failure of Council to act as a model litigant - no error of law Legislation Cited: Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Evidence Act 1995 (NSW) Land and Environment Court Act 1979 (NSW) Local Government Act 1993 (NSW) State Environmental Planning Policy (Major Development) 2005 Uniform Civil Procedure Rules 2005 (NSW) Wollongong Local Environmental Plan 1990 Wollongong Local Environmental Plan 2009 Cases Cited: ACCC v Leahy Petroleum Pty Ltd [2007] FCA 1844 Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 Balenzuela v De Gail [1959] HCA 1; 101 CLR 226 Brennan v NSW Land and Housing Corporation [2011] NSWCA 298; 83 NSWLR 23 Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; 148 LGERA 11 Commonwealth Bank of Australia v Quade [1991] HCA 61; 178 CLR 134 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; 74 NSWLR 523 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Goodwin v Commissioner of Police [2010] NSWCA 239 Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 House v The King [1936] HCA 40; 55 CLR 499 ISPT Pty Ltd v Valuer-General [2009] NSWCA 31; 165 LGERA 25 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Lizzio v Ryde Municipal Council [1983] HCA 22; 155 CLR 211 Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 Mahenthirarasa v State Rail Authority (No 2) [2008] NSWCA 201; 72 NSWLR 273 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 P & C Cantarella Pty Ltd v Egg Marketing Board for the State of New South Wales [1973] 2 NSWLR 366 Scott v Handley [1999] FCA 404; 58 ALD 373 Scott's Provision Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 Site Plus Pty Limited v Wollongong City Council and anor [2011] NSWLEC 1371