Posted on October 29, 2018 by Sue Puckeridge and

Thinking of challenging the validity of a development consent? The sooner, the better!

Generally proceedings challenging an administrative decision must be commenced within 3 months of the decision being made.  However, the Court does have the discretion to vary this time frame.

Three recent decisions in the Land and Environment Court involving challenges to the validity of development consents have required it to exercise this discretion.

This blog summarises the factors that the Court will consider when an application is made seeking an extension of time for the commencement of judicial review proceedings.

Exceptions to the 3 month limitation period

There is a strong public interest in requiring challenges to administrative decisions to be brought within a reasonable time.  It enables the proper business of government to be carried out and ensures that the reasonable interests of affected parties are not unjustly prejudiced.

The 3 month time limitation is contained in rule 59.10(1) of the the Uniform Civil Procedure Rules 2005 (‘UCPR‘). UCPR rule 59.10 will apply, subject to two exceptions:

• there is another statutory limitation period for commencing the proceedings; or
• the judicial review proceedings do not seek to set aside a decision.

In relation to development consents, section 4.59 of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) provides that any appeal against the validity of a development consent that is publicly notified must be commenced within 3 months of the date on which the determination of that development consent is publicly notified.

However, not all councils routinely notify development consents under this section and the Court has previously held that if the decision to grant development consent is not publicly notified, the three month period as set out in UCRP r59.10(1) applies (see Bankstown City Council v Ramahi [2015] NSWLEC 74 at [73]).

Relevant principles 

Each of the three recent cases involved the grant of a development consent which was not publicly notified in accordance with the predecessor to s4.59 of the EPA Act (s101) (see Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 (‘Turgeman‘); Balnaves Foundation Pty Ltd v Minister for Planning [2018] NSWLEC 152 (‘Balnaves‘); and  Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151 (‘Deep River‘)).

Relevant factors for consideration

In exercising the discretion to extend time, UCPR rule 59.10(3) requires the Court to take into account factors that are relevant in the particular circumstances of a case and identifies the following relevant factors:

(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.

These factors are not exhaustive and also include:

1. the length of the delay in commencing the proceedings;
2. the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and
3. whether the applicant has a fairly arguable case.

Delay & prejudice

There is no definitive length of delay which will result in the Court refusing to grant an extension of time. Each application will be determined on its own facts.  However, the question of potential prejudice to a party caused by the delay in commencing the proceedings will be a significant consideration in whether the Court grants the extension of time.

In Turgeman, the Court held: 

in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay … that is, delay caused by “deliberate inaction” … or “an intentional decision to delay” … and delay which is merely the result of a “bona fide mistake or blunder” … mere “oversight” … or caused by seeking to clarify rights and trying to solve the matter without litigation …

In Deep River, Turgeman and Balnaves the Court found that the delays in commencing each of the proceedings were the result of (amongst other factors) the parties’ attempts to resolve the issues in dispute without commencing litigation.

The circumstances in Balnaves were particularly troubling for the Court as part of the reason for the delay in the commencement of the Class 4 proceedings was the applicant’s “misguided” lodgement of a modification application to remove the impugned condition of consent and commencement of related Class 1 proceedings (which were commenced within time).

On the evidence, the Court found that there was nothing to suggest that applicant’s “use of the modification application and the subsequent Class 1 appeal was a device to circumvent the time limit contained in r59.10 of the UCPR. Had there been any suggestion whatsoever that this was the case, [the] application would have been disposed of quickly and adversely to Balnaves.”

In Deep River two neighbouring subdivisions were granted development consent by a council subject to conditions requiring them to install storm water infrastructure which would be shared across the boundaries of each subdivision. The company with the downslope subdivision (‘SAI‘) commenced judicial review proceedings approximately 2 years after the council granted development consent to the company with the upslope subdivision (‘MSC‘). SAI’s concern was that, due in part to a lack of finality in the conditions of MSC’s consent, the proposed drainage of storm water from MSC’s site had the potential to render part of the SAI site unsuitable for residential development.

MSC had constructed the storm water infrastructure upslope of SAI’s site between June and October 2017. However, SAI’s director did not notice it until February 2018 when he first visited the SAI site. Once SAI became aware of the issue it sought to resolve the issue with MSC without litigation.  Unable to achieve a resolution, proceedings were commenced in July 2018.

Moore J found that despite more than 2 years having passed between the MSC consent being granted and SAI commencing proceedings, in the circumstances, the delay did not disentitle SAI from the possibility of having time extended.

The more difficult element for the Court to balance was that of prejudice. MSC had already spent more than $10 million on its development and a number of allotments within its subdivision (in the vicinity of the relevant storm water infrastructure) were subject to contracts for sale. On the other hand, if the drainage issues were not resolved, SAI’s subdivision could be significantly detrimentally affected.

Ultimately, the Court found that the balance of prejudice was tipped slightly in SAI’s favour and granted the extension of time allowing SAI to challenge the validity of MSC’s consent.

Lessons to be learned

An extension was granted in each of the 3 cases discussed in this blog.  While they indicate that the Court is willing to grant extensions of time, the applicant bears the onus of establishing why the Court should exercise its discretion to extend time (Turgeman at [34]) and there is no guarantee that a Court will do so.  Potentially significant costs will be incurred in demonstrating that an extension is warranted.

Unless a development consent has been notified under s4.59 of the EPA Act within three months of the date of the decision, it is prudent to commence proceedings challenging such consents within 3 months of the decision having been made.

Should you require assistance with judicial review proceedings, extension of time applications or wish to discuss this blog, please email Sue Puckeridge, Partner at sue.puckeridge@lindsaytaylorlawyers.com.au or call her on 8235 9702.