Land and Environment Court Extends Time for Judicial Review Proceedings Due to Lack of Public Notification

The court granted an extension of time for the applicant to commence judicial review proceedings due to the lack of public notification of the development application. The applicant argued that they were unaware of the decision until the works were observed, and the court accepted that the applicant had a particular interest in challenging the decision.

[NAME]: [NAME] v [NAME] [2017] NSWLEC 165 Hearing dates: 17 November 2017 Date of orders: 20 November 2017 Decision date: 20 November 2017 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [16] Catchwords: NOTICE OF MOTION – seeking leave to extend time to commence judicial review proceedings – development application not publicly notified – applicant only became aware of works once consent had been granted – Motion not opposed by the respondents Legislation Cited: Uniform Civil Procedure Rules 2005 ([NAME]), r 59.10 Cases Cited: Dyason v Butterworth [2015] NSWCA 52 [COMPANY] v [NAME] [2017] NSWLEC 97 Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113 Category: Procedural and other rulings Parties: [NAME] (Applicant) [NAME] (First Respondent) Byron Shire Council (Second Respondent) Representation: Counsel: [redacted] By consent (First Respondent) Submitting Appearance (Second Respondent)

Solicitors: [redacted] [NAME] (First Respondent) [COMPANY] (Second Respondent) File Number(s): 2017/00291599 Publication restriction: No

ex temPore Judgment 1. The matter before me is a Notice of Motion filed by the applicant, [NAME], seeking an order under r 59.10(2) of the Uniform Civil Procedure Rules 2005 ([NAME]) ('UCPR') extending the time for commencing judicial review proceedings.

2. On 26 September 2017, [NAME] filed a Summons seeking relief in relation to the decision of the second respondent, Byron Shire Council ('Council'), to grant consent to a development application filed by [NAME], the first respondent, concerning alterations and additions to [NAME]' residence at [ADDRESS], [ADDRESS]. The alterations and additions involve the construction of a "solar loft" and/or an "attic extension".

3. The Summons seeks a declaration that the consent given by Council on 21 October 2016 is of no force and effect, and an order restraining [NAME] from carrying out the works. Order 1 of the Summons seeks an extension of time for the applicant to commence proceedings for judicial review.

4. On 10 November 2017, [NAME] filed a Notice of Motion seeking the relief referred to above being "that leave be granted to extend the time to commence proceedings to 26 September 2017 pursuant to pt 59.10 Uniform Civil Procedure Rules".

5. The Motion proceeded to hearing before me on 17 November 2017. [NAME] was represented by [NAME], solicitor, and I was informed that [NAME] consents to an order for the extension of time to commence proceedings, and asks that costs be reserved. I was informed by [NAME] and accept that Council has filed a submitting appearance in the substantive proceedings, and does not oppose the relief sought in the Motion.

Background 1. The background facts are uncontentious and may be summarised as follows. 1. [NAME] and [NAME] are adjoining neighbours in [ADDRESS]. 2. [NAME] lodged a development application on 20 September 2016 with Council seeking alterations and additions to her existing dwelling house.

3. Council determined that public notification of that development application was not required.

4. Development consent was granted by Council on 21 October 2016.

5. The construction of the new works first came to the attention of the [NAME] on or about 6 June 2017; approximately seven and a half months after the consent had been granted. 6. [NAME] became concerned that, on his construction, the "proposed new attic addition" shown in the approved plans extended beyond the building height plane.

7. At that time [NAME] made inquiries of both the first respondent and Council and retained solicitors.

8. Despite some correspondence and attendances between the parties, a settlement was not able to be reached.

9.

Accordingly, [NAME] commenced proceedings by Summons on 26 September 2017.

Principles 1. The law relating to the commencement of proceedings "out of time" is r 59.10 of the UCPR, which provides: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

1. Recently in [COMPANY] v [NAME] [2017] NSWLEC 97, Molesworth AJ helpfully set out at [13] a summary of the relevant principles: In essence, [NAME] agreed on the relevant legal principles which should guide the Court in determining whether or not to grant an extension of time in judicial review proceedings. The principles which were identified by both parties were as follows: (1) In addition to considering the four factors set out in rule 59.10(3), the Court ought to also consider: the length of the delay, the reasons for the delay, and whether the applicant has a fairly arguable case: Bankstown City Council v Ramahi [2015] NSWLEC 74 at [74]; Dyason v Butterworth [2015] NSWCA 52 at [65]; and [NAME] v [NAME] (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]; (2) The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the Court to carry out a balancing exercise: [COMPANY] v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7] and O'Connor v New South Wales [2017] NSWSC 598 at [66]; (3) The question of potential prejudice to a party caused by the delay is a significant consideration in all matters: [NAME] v [NAME] at [66]; and (4) The rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced: [COMPANY] v Dubbo City Council (No 2) at [7].

1. The summary refers to and adopts an earlier judgment of this Court, Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113, where Biscoe J observed at [7]: A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities, but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.

1. Relatively recently the Court of Appeal in Dyason v Butterworth [2015] NSWCA 52 noted at [65]: UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from [NAME] v Director of Public Prosecutions ([NAME]) [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: [NAME] v [NAME] (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]).

1. The particular concern in relation to whether an extension of time should be granted is not to be confined either to the significance of the delay or to the question of whether the plaintiff or applicant has a fairly arguable case. Each application turns on its particular facts.

Consideration 1. Adopting the principles above, I consider it appropriate to grant leave pursuant to r 59.10 of the UCPR. My reasons may be briefly stated:

1. First, [NAME] has a particular interest in challenging the decision. He was not notified of the development and has accordingly been prejudiced in that he has been denied the opportunity to participate in the development application process. He is an immediately adjacent neighbour and has provided evidence of the impacts he has experienced as a result of the development being undertaken.

2. Second, Council does not appear to suffer any prejudice if [NAME] is allowed to commence the proceedings out of time. Additionally, [NAME] has not marshalled any evidence of any prejudice being associated with the commencement of proceedings out of time.

3. Third, [NAME] first became aware of Council's decision on either 6 June 2017, when he observed the building works on the adjoining property, or at least on 26 June 2017 when he inspected Council's file. Before this time, [NAME] was not in a position to know of Council's decision.

4. Fourth, [NAME] was made aware of the potential problems with the development and [NAME]' concerns immediately upon [NAME] first becoming aware of those issues. Despite this, and I make no criticism, [NAME] continued to construct the development.

1. I am moved by the fact that the reasons for the initial delay are clear, that is, that [NAME] was unaware of the decision to grant consent and once he became aware of Council's decision, he took steps promptly to clarify his rights and try and solve the matter without litigation.

2. I express no view in relation to the strength of the case except to note that on the material before me, it appears to be properly arguable.

3. In the circumstances, I order that pursuant to r 59.10 of the UCPR, the time for the applicant to commence judicial review proceedings in respect of the decision of Council on 20 October 2016 be extended to 26 September 2017, being the date on which [NAME] filed his Summons in these proceedings.

Orders 1. [ADDRESS] orders that:

1. The applicant is granted leave to extend the time to commence judicial review proceedings to 26 September 2017 pursuant to Part 59, rule 59.10 of the Uniform Civil Procedure Rules 2005 ([NAME]).

2. The first respondent is to serve its response to the Summons by 8 December 2017.

3. The applicant is to serve its affidavits in chief and bundle of tender documents by 9 February 2018.

4. The first respondent is to serve its affidavits in chief and bundle of any additional documents by 2 March 2018.

5. The applicant is to serve any affidavits in reply and bundle of any additional documents in reply by 23 March 2018.

6. The matter is listed for a second directions hearing before the List Judge on Friday, 6 April 2018.

7. At the second directions hearing the parties are to hand to the Court an agreed estimate or competing estimates of the time required for the hearing broken down as follows: 1. opening addresses, 2. tender of written evidence and objections, 3. cross-examination, 4. any view of properties, and 5. closing submissions.

1. If leave to cross-examine a witness is to be sought, leave should be sought, if practicable, at the second directions hearing.

2. Costs are reserved.

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