Temelkovski v Wright [2016] NSWLEC 112

Temelkovski v Wright [2016] NSWLEC 112

Although the Applicants had an arguable case concerning failure to notify them of the development application, they knew by April 2016 of the development consent, the alleged notification failure, and the availability of Court relief, yet did not commence proceedings until 29 July 2016. Their attempts to obtain Council reassessment, negotiate design changes, and delay in making a GIPA request did not adequately explain the delay. In the meantime the First Respondent, through no fault of her own, reasonably relied on the consent, completed demolition, commenced substantial building work, incurred substantial expenditure, and faced irremediable prejudice. The substantial delay and prejudice...

Jurisdiction
Australia
Judgment Date
01 September 2016
Procedural Posture
Class 4 Judicial Review Proceedings / Applicants' Notice of Motion Dated 29 July 2016 Seeking Leave to Extend Time to Commence Proceedings Under UCPR R 59.10
Outcome
Applicants' Notice of Motion dismissed; extension of time to commence judicial review proceedings refused.
Legal Topics
['extension of Time for Judicial Review Proceedings' 'development Consent Notification' 'prejudice From Delay' 'public Interest in Finality of Development Consents' 'costs']
['administrative Law' 'environmental Planning Law' 'civil Procedure'] ['extension of Time for Judicial Review Proceedings' 'development Consent Notification' 'prejudice From Delay' 'public Interest in Finality of Development Consents' 'costs']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Applicants' Notice of Motion Dated 29 July 2016 Seeking Leave to Extend Time to Commence Proceedings Under UCPR R 59.10

Legal Issues

  1. 1 ['Whether the Court should extend time under UCPR r 59.10 for the Applicants to commence judicial review proceedings challenging the development consent granted on 21 November 2015.' "Whether the Applicants' delay in commencing proceedings was adequately explained." "Whether prejudice to the First Respondent and her family from work and expenditure undertaken in reliance on the development consent outweighed the Applicants' interest in challenging alleged non-notification." 'Whether public interest considerations favoured enforcement of development notification provisions or finality of development consents.']

Ratio Decidendi

Although the Applicants had an arguable case concerning failure to notify them of the development application, they knew by April 2016 of the development consent, the alleged notification failure, and the availability of Court relief, yet did not commence proceedings until 29 July 2016. Their attempts to obtain Council reassessment, negotiate design changes, and delay in making a GIPA request did not adequately explain the delay. In the meantime the First Respondent, through no fault of her own, reasonably relied on the consent, completed demolition, commenced substantial building work, incurred substantial expenditure, and faced irremediable prejudice. The substantial delay and prejudice...

Court Disposition

Applicants' Notice of Motion dismissed; extension of time to commence judicial review proceedings refused.

Orders

  • ["The Applicants' Notice of Motion dated 29 July 2016 is dismissed." "The Applicants are to pay the Respondents' costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by the Applicants within 14 days of this judgment." 'The exhibits are to be returned.']