Bolinger v Blackmore Design Group [2015] NSWLEC 38

Bolinger v Blackmore Design Group [2015] NSWLEC 38

Leave to appeal out of time was refused because Ms Bolinger provided no evidentiary explanation for the delay, the substantive proceedings had concluded with final orders and development consent, further delay would substantially prejudice Blackmore, and the proposed s 56A appeal did not disclose a fairly arguable question of law. The Commissioner's consideration of delay in a joinder application filed the day before the hearing was a relevant discretionary factor and did not reveal legal error.

Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Class 1 Appeal/application for Leave to Appeal Out of Time Under S 56 a of the Land and Environment Court Act 1979 From a Commissioner's Refusal of Joinder in S 97 Appeal Proceedings / Procedural Ruling on Leave to Appeal Out of Time and Dismissal of Summons
Outcome
No leave to appeal out of time was granted and the summons dated 5 November 2014 was dismissed.
Legal Topics
['development Consent Appeal' 'joinder of Parties' 'appeal From Commissioner on Question of Law' 'extension of Time' 'non Party Appeal Rights']
['planning and Environment' 'civil Procedure'] ['development Consent Appeal' 'joinder of Parties' 'appeal From Commissioner on Question of Law' 'extension of Time' 'non Party Appeal Rights']

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Procedural Posture

Class 1 Appeal/application for Leave to Appeal Out of Time Under S 56 a of the Land and Environment Court Act 1979 From a Commissioner's Refusal of Joinder in S 97 Appeal Proceedings / Procedural Ruling on Leave to Appeal Out of Time and Dismissal of Summons

Legal Issues

  1. 1 ['Whether an appeal can lie under s 56A of the Land and Environment Court Act 1979 from an interlocutory decision refusing joinder where the person seeking to appeal was not a party to the substantive proceedings.' 'Whether leave to appeal out of time should be granted.' 'Whether the applicant had a fairly arguable case or substantial merit in proposed grounds of appeal from the refusal of joinder.' 'Whether the Commissioner made an error of law by giving weight to delay in the joinder application.']

Ratio Decidendi

Leave to appeal out of time was refused because Ms Bolinger provided no evidentiary explanation for the delay, the substantive proceedings had concluded with final orders and development consent, further delay would substantially prejudice Blackmore, and the proposed s 56A appeal did not disclose a fairly arguable question of law. The Commissioner's consideration of delay in a joinder application filed the day before the hearing was a relevant discretionary factor and did not reveal legal error.

Court Disposition

No leave to appeal out of time was granted and the summons dated 5 November 2014 was dismissed.

Orders

  • ['No leave to appeal out of time for the summons dated 5 November 2014 is granted.' 'The summons dated 5 November 2014 is dismissed.']