May v Northern Beaches Council [2023] NSWCA 205

May v Northern Beaches Council [2023] NSWCA 205

The application for extension of time was refused because leave to appeal would be refused on each proposed ground. The challenges to the original development consent, first modification decision and construction certificate were commenced outside the 3 month period in UCPR r 59.10, and r 59.10(5) did not apply because the applicant's allegations of jurisdictional error, if established, would have the consequence that the affected decisions should be set aside. In any event, the proposed grounds did not show any sufficient doubt about the primary judge's conclusion that the judicial review claims disclosed no arguable jurisdictional error, nor any issue of principle, public importance or...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Application for Extension of Time and Leave to Appeal From an Interlocutory Land and Environment Court Decision Summarily Dismissing Judicial Review Proceedings; Notice of Motion to Stay Costs / Court of Appeal Determination of Summons Seeking Leave to Appeal and Notice of Motion
Outcome
Extension of time refused; summons seeking leave to appeal dismissed; applicant ordered to pay the second respondent's costs of the leave application; notice of motion dismissed; applicant ordered to pay the second respondent's costs of the notice of motion.
Legal Topics
['leave to Appeal' 'extension of Time' 'judicial Review of Development Consent and Modification Decisions' 'jurisdictional Error' 'summary Dismissal' 'uniform Civil Procedure Rules 2005 (nsw) R 59.10' 'civil Enforcement Proceedings' 'stay of Costs Order']
['administrative Law' 'planning and Environment Law' 'civil Procedure' 'appeals'] ['leave to Appeal' 'extension of Time' 'judicial Review of Development Consent and Modification Decisions' 'jurisdictional Error' 'summary Dismissal' 'uniform Civil Procedure Rules 2005 (nsw) R 59.10' 'civil Enforcement Proceedings' 'stay of Costs Order']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal From an Interlocutory Land and Environment Court Decision Summarily Dismissing Judicial Review Proceedings; Notice of Motion to Stay Costs / Court of Appeal Determination of Summons Seeking Leave to Appeal and Notice of Motion

Legal Issues

  1. 1 ['Whether an extension of time should be granted to seek leave to appeal the primary judgment.' "Whether leave to appeal should be granted from the interlocutory decision summarily dismissing the applicant's judicial review claims." 'Whether UCPR r 59.10 barred the judicial review challenges to the development consent, first modification decision and construction certificate decision.' 'Whether the exclusion in UCPR r 59.10(5) applied because the applicant said he was not seeking to set aside the decisions.' 'Whether the proposed grounds disclosed any arguable jurisdictional error concerning the development consent, modification decisions, construction certificate, cl 4.3 of the Pittwater Local Environmental Plan 2014, s 96 or s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW), cl 98E or cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW).' 'Whether the notice of motion to stay a costs order should be granted.']

Ratio Decidendi

The application for extension of time was refused because leave to appeal would be refused on each proposed ground. The challenges to the original development consent, first modification decision and construction certificate were commenced outside the 3 month period in UCPR r 59.10, and r 59.10(5) did not apply because the applicant's allegations of jurisdictional error, if established, would have the consequence that the affected decisions should be set aside. In any event, the proposed grounds did not show any sufficient doubt about the primary judge's conclusion that the judicial review claims disclosed no arguable jurisdictional error, nor any issue of principle, public importance or...

Court Disposition

Extension of time refused; summons seeking leave to appeal dismissed; applicant ordered to pay the second respondent's costs of the leave application; notice of motion dismissed; applicant ordered to pay the second respondent's costs of the notice of motion.

Orders

  • ['Extension of time to seek leave to appeal the primary judgment refused.' 'Summons seeking leave to appeal dismissed.' "Applicant to pay the second respondent's costs of the application for leave to appeal." 'Notice of motion filed by the applicant on 27 July 2023 dismissed.' "Applicant to pay the second...