EUI Pty Limited v Singleton Council

[2008] NSWLEC 178

Land and Environment Court

of New South Wales

CITATION:

EUI Pty Limited v Singleton Council [2008] NSWLEC 178

PARTIES:

APPLICANT
EUI Pty Limited

RESPONDENT
Singleton Council

FILE NUMBER(S):

10374 of 2008

CORAM:

Sheahan J

KEY ISSUES:

Section 96 Application :- extension of time for filing appeal; principles

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128
Buzzle Operations Pty Ltd v Breirl & Ors [2007] NSWSC 922
FAI Insurances Limited & Ors v Mainprize & Ors [2006] NSWSC 554
Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer & Another (1998) 195 CLR 516
Jassls Pty Limited v Valuer General [2006] NSWLEC 59

DATES OF HEARING:

21 May 2008

EX TEMPORE JUDGMENT DATE:

21 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Whitehouse, Solicitor of
Minter Ellison

RESPONDENT
Mr P Arnold, Solicitor of
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

21 May 2008

10374 of 2008 EUI PTY LIMITED v SINGLETON COUNCIL

EXTEMPORE JUDGMENT

1 His Honour: The Applicant EUI Pty Ltd moves the Court today for an order that the time for the bringing of its appeal pursuant to s.96(6) of the Environmental Planning & Assessment Act 1979 against a determination by the Respondent on 19 November 2007 be extended to 14 April 2008, the date on which the Applicant filed these Class 1 proceedings.

2 To comply with the Rules the appeal should have been lodged within sixty days, but the Court has power to extend that time for good cause.

3 Essentially the authorities establish that in considering such applications for extension, relevant factors include the length of time involved, the reason for the delay, the existence of any prejudice, and the existence or otherwise of an arguable case.

4 Those principles were set out by the Chief Judge, and applied by him albeit in a different context, in Jassls Pty Limited v Valuer General (“Jassls”) [2006] NSWLEC 59, where His Honour surveyed relevant authorities including some in this Court and those of the High Court in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer & Another (1998) 195 CLR 516.

5 The interests of justice are paramount, and the exercise of the discretion is not automatic. The four principal tests I have stated have evolved from such cases.

6 The Applicant’s position is explained in detail in the affidavit of his solicitor Mr Simon Ball dated 12 May, and I have had the benefit of perusing briefly some of the expert materials upon which the merits appeal will rest.

7 Put shortly, the Applicant determined that the appeal should not be commenced until and unless it had a level of confidence that the clearing of native vegetation required by the development would be approved by the relevant catchment management authority. Shortly before the Council made its determination on 19 November 2007 the authority indicated some difficulty with its approving the clearing. An expert was engaged, and there was some delay in the completion of her report, as extensive site investigations were required.

8 The Applicant was advised at the end of March that it could be confident of catchment authority approval, and it then proceeded to finalise and file its Class 1 application.

9 Rightly or wrongly the Applicant believes that it was appropriate to await that advice rather than embark on a course which would incur substantial costs for both parties to the proposed appeal, which may prove unnecessary, and would waste the Court’s time and resources.

10 The Council which will be the Respondent in any Class 1 appeal neither consents to nor opposes the extension of time, and the significance of that stance is that I can be satisfied that the favourable exercise of the Court’s discretion will cause the Council no prejudice, and a refusal may indeed prejudice the Applicant, who clearly has arguments to put to the Court.

11 The Applicant also took me to two Supreme Court decisions in analogous cases – FAI Insurances Limited & Ors v Mainprize & Ors [2006] NSWSC 554 and Buzzle Operations Pty Ltd v Breirl & Ors [2007] NSWSC 922.

12 I have reviewed all of the cases, and I note that Lloyd J’s decision in Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128 remains the summary of principles upon which this Court will rely, and that it did so in Jassls.

13 I am satisfied that there is, in all the current circumstances of this case, good reason to exercise the Court’s discretion in favour of the Applicant in the interests of justice, and I make the order extending the time for filing of this appeal to 14 April 2008.