Community Association DP270447 v ATB Morton Pty Ltd

The Community Association DP270447 sought judicial review of orders made by the Land and Environment Court of New South Wales, which had granted development consent to ATB Morton Pty Ltd. The dispute concerned the imposition of an easement over land owned by the Community Association to provide access for the development. The Community Association also appealed against the refusal of its development consent application. The proceedings were heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the Community Association's application for judicial review was made within a reasonable time, given the substantial and unexplained delay. It also had to consider whether the Land and Environment Court had jurisdiction to impose an easement under section 40 of the *Land and Environment Court Act 1979* (NSW) in separate proceedings commenced while an appeal was pending. Further issues included whether lot owners of land subject to the *Community Land Development Act 1989* (NSW) and other registered easement holders were necessary or proper parties to the application for an easement, and whether the court erred in law in its formulation or application of the test for imposing an easement under section 88K of the *Conveyancing Act 1919* (NSW), including the imposition of a condition regarding daily truck movements.

The Court of Appeal dismissed the application for judicial review, finding that there had been substantial and unexplained delay, and that the case sought to be advanced was weak. The court applied principles relating to the timeliness of judicial review applications and the discretionary nature of extending time. Regarding the appeal against the refusal of development consent, the court considered the jurisdiction of the Land and Environment Court to impose easements and the joinder of parties. The court found no error of law in the formulation or application of the test for imposing an easement, nor in the imposition of the condition on truck movements, noting that third parties had been informed of the application and had not sought to be joined.

Consequently, the appeal was dismissed with costs. The application for judicial review was also dismissed, with the Community Association ordered to pay the defendants' costs.