DEXUS Funds Management Ltd v Blacktown City Council (No 2) [2011] NSWLEC 247

DEXUS Funds Management Ltd v Blacktown City Council (No 2) [2011] NSWLEC 247

The hearing should not be vacated because the judicial review proceedings and the Class 1 appeal had different foci, the applicant was not a party to the Class 1 appeal and could not raise its legality arguments there, the Class 1 appeal might prejudice the judicial review by substituting the Court's consent for the council's decision, resolution of the judicial review might assist later determination of the development application, prior adjournment authorities were not directly relevant, and the second respondent had delayed in commencing its Class 1 appeal and seeking an adjournment.

Jurisdiction
Australia
Judgment Date
16 November 2011
Procedural Posture
Class 4 Judicial Review Proceedings Challenging Development Consent / Interlocutory Application by the Second Respondent to Vacate the Judicial Review Hearing and Adjourn It Until After a Class 1 Appeal
Outcome
The second respondent's notice of motion was dismissed and the second respondent was ordered to pay the applicant's costs of the motion.
Legal Topics
['development Consent' 'judicial Review' 'class 1 Merits Appeal' 'adjournment or Vacation of Hearing' 'costs of Motion' 'environmental Planning and Assessment Act 1979']
['planning and Environment Law' 'administrative Law' 'civil Procedure'] ['development Consent' 'judicial Review' 'class 1 Merits Appeal' 'adjournment or Vacation of Hearing' 'costs of Motion' 'environmental Planning and Assessment Act 1979']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging Development Consent / Interlocutory Application by the Second Respondent to Vacate the Judicial Review Hearing and Adjourn It Until After a Class 1 Appeal

Legal Issues

  1. 1 ["Whether the hearing of the applicant's Class 4 judicial review proceedings should be vacated and adjourned until after the second respondent's recently commenced Class 1 appeal is heard and determined." "Whether the second respondent should pay the applicant's costs of the motion."]

Ratio Decidendi

The hearing should not be vacated because the judicial review proceedings and the Class 1 appeal had different foci, the applicant was not a party to the Class 1 appeal and could not raise its legality arguments there, the Class 1 appeal might prejudice the judicial review by substituting the Court's consent for the council's decision, resolution of the judicial review might assist later determination of the development application, prior adjournment authorities were not directly relevant, and the second respondent had delayed in commencing its Class 1 appeal and seeking an adjournment.

Court Disposition

The second respondent's notice of motion was dismissed and the second respondent was ordered to pay the applicant's costs of the motion.

Orders

  • ["The second respondent's Notice of Motion filed 10 November 2011 is dismissed." "The second respondent to pay the applicant's costs of the motion filed 10 November 2011." 'By 4.00pm on 17 November 2011 the second respondent to file and serve its Amended Points of Defence.' 'Extend the time to 10.00am on 22 November...