Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

After balancing the relevant factors under r 59.10 and the authorities, the Court held that time should be extended. The Council had an interest and responsibility in upholding the EPAA and its notification policy; there was no evidence of prejudice to the respondents; the delay was adequately explained and was not deliberate or unreasonable; public interest supported enforcement of the statutory planning scheme and notification requirements; and the Council had a fairly arguable case that the consent was beyond power because of the review decision-maker's status, lack of delegated authority, and failure to notify the review application.

Jurisdiction
Australia
Judgment Date
18 September 2018
Procedural Posture
Class 4 Judicial Review Proceedings / Interlocutory Application to Extend Time to Commence Judicial Review Proceedings Under R 59.10(2) of the Uniform Civil Procedure Rules 2005
Outcome
Extension of time granted; consequential orders made.
Legal Topics
['extension of Time for Judicial Review' 'development Consent' 'review of Determination' 'delegated Authority' 'public Notification' 'procedural Fairness']
['planning and Environment Law' 'administrative Law' 'civil Procedure' 'local Government Law'] ['extension of Time for Judicial Review' 'development Consent' 'review of Determination' 'delegated Authority' 'public Notification' 'procedural Fairness']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Interlocutory Application to Extend Time to Commence Judicial Review Proceedings Under R 59.10(2) of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether the time for the Council to commence judicial review proceedings concerning the 14 September 2017 determination should be extended to 6 April 2018 under r 59.10(2) of the Uniform Civil Procedure Rules 2005.' 'Whether the Council had a particular interest in challenging the decision, whether prejudice was caused by delay, when the Council became aware of the decision, and whether any relevant public interest supported an extension.' 'Whether the Council had a fairly arguable case that the development consent was invalid because the review decision was made contrary to former s 82A(6) of the Environmental Planning and Assessment Act 1979, without proper delegated authority under s 378(2) of the Local Government Act 1993, and without notification required by former s 82A(4) of the Environmental Planning and Assessment Act 1979 and cl 113A(2) of the Environmental Planning and Assessment Regulation 2000.']

Ratio Decidendi

After balancing the relevant factors under r 59.10 and the authorities, the Court held that time should be extended. The Council had an interest and responsibility in upholding the EPAA and its notification policy; there was no evidence of prejudice to the respondents; the delay was adequately explained and was not deliberate or unreasonable; public interest supported enforcement of the statutory planning scheme and notification requirements; and the Council had a fairly arguable case that the consent was beyond power because of the review decision-maker's status, lack of delegated authority, and failure to notify the review application.

Court Disposition

Extension of time granted; consequential orders made.

Orders

  • ['Pursuant to r 59.10(2) of the UCPR the time for the Council to commence judicial review proceedings with respect to the determination made on 14 September 2017 to grant development consent to DA 16/0618.01, be extended to the date of filing of this summons on 6 April 2018.' "Each party pay its own costs of, and...