Balnaves Foundation Pty Ltd v Minister for Planning [2018] NSWLEC 152

Balnaves Foundation Pty Ltd v Minister for Planning [2018] NSWLEC 152

Although the delay was grossly excessive and unreasonable, the Court extended time because the case was fairly arguable, there was no prejudice to the respondents, the respondents did not oppose the application, the parties were ready for the final hearing, there was a public interest in determining whether the Council had power to impose condition 13, and the delay was not intentional nor was the Class 1 appeal used as a device to circumvent r 59.10.

Jurisdiction
Australia
Judgment Date
24 September 2018
Procedural Posture
Class 4 Judicial Review Proceedings / Instanter Application to Extend Time to Commence Judicial Review Proceedings
Outcome
Time to commence the Class 4 proceedings was extended to 31 May 2018 and Balnaves was ordered to pay the respondents' costs of the extension application.
Legal Topics
['extension of Time' 'judicial Review' 'development Consent Conditions' 'affordable Housing Contribution' 'validity of Regulation' 'costs']
['planning and Environment Law' 'administrative Law' 'civil Procedure'] ['extension of Time' 'judicial Review' 'development Consent Conditions' 'affordable Housing Contribution' 'validity of Regulation' 'costs']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Instanter Application to Extend Time to Commence Judicial Review Proceedings

Legal Issues

  1. 1 ['Whether r 59.10 of the Uniform Civil Procedure Rules 2005 required Balnaves to obtain an extension of time to commence proceedings challenging condition 13 of the development consent.' 'Whether the Court should extend time where Balnaves commenced the Class 4 proceedings more than two years after the consent was granted.' 'Whether former cl 15A of the Environmental Planning and Assessment Regulation 2000 was authorised by ss 157 and 159 and cl 1(1) of Sch 6 of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Although the delay was grossly excessive and unreasonable, the Court extended time because the case was fairly arguable, there was no prejudice to the respondents, the respondents did not oppose the application, the parties were ready for the final hearing, there was a public interest in determining whether the Council had power to impose condition 13, and the delay was not intentional nor was the Class 1 appeal used as a device to circumvent r 59.10.

Court Disposition

Time to commence the Class 4 proceedings was extended to 31 May 2018 and Balnaves was ordered to pay the respondents' costs of the extension application.

Orders

  • ['The time for the commencement of these proceedings is extended to 31 May 2018.' "Balnaves is to pay the respondents' costs of the extension application." 'The exhibits are to be returned upon the publication of this judgment on Caselaw.']