Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)

[2010] NSWLEC 259

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2010] NSWLEC 259

PARTIES:
APPLICANT:
Hoxton Park Residents Action Group Inc

FIRST RESPONDENT:
Liverpool City Council

SECOND RESPONDENT:
Australian Federation of Islamic Councils Inc

THIRD RESPONDENT:
Malek Fahd Islamic School Limited

FILE NUMBER(S):
40178 of 2010

CATCHWORDS:
JUDICIAL REVIEW :- abandonment of constitutional reply to time bar defence under s 101 Environmental Planning and Assessment Act 1979 - proceedings dismissed.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s 101
Land and Environment Court Act 1979, s 25B

CASES CITED:
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242

CORAM:
Biscoe J

DATES OF HEARING:
14 December 2010

EX TEMPORE DATE:
14 December 2010

LEGAL REPRESENTATIVES

APPLICANT:
Ms A Penklis
SOLICITORS:
Penklis Lawyers

RESPONDENTS:
Mr A Galasso SC with Mr G Newport
SOLICITORS:
Goldrick Farrell Mullan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

14 December 2010

40178 of 2010

HOXTON PARK RESIDENTS ACTION GROUP INC v LIVERPOOL CITY COUNCIL & ORS

EX TEMPORE JUDGMENT

INTRODUCTION

1. HIS HONOUR: On 26 November 2010 I upheld one ground of challenge to the validity of a development consent for the erection of a school and road at Hoxton Park, observed that the claim was prima facie time barred under s 101 of the Environmental Planning and Assessment Act 1979, rejected the applicant’s reply that the s 101 notice was defective and adjourned the proceedings for the purpose of hearing the second and third respondents’ application for an order for conditional validity under s 25B of the Land and Environment Court Act 1979: Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242.

1. That course would have left until last the applicant’s constitutional reply to the s 101 time bar defence. I had been under the impression that that course corresponded with the parties’ wishes, however the second and third respondents subsequently submitted that the preferable course was to hear the applicant’s constitutional reply to the s 101 time bar defence first. I would have agreed with this course except that this morning the applicant unexpectedly informed the Court that it no longer presses its constitutional reply.

1. Accordingly, as the s 101 time bar defence has succeeded, the application must be dismissed.

1. The second and third respondents seek their costs of the proceedings.  That is formally opposed by the applicant who, however, makes no supporting submissions.  Costs usually follow the event in Class 4 proceedings such as these.  In the absence of submissions by the applicant, I see no reason why the usual costs order should not be made in this case.

1. The orders of the Court are as follows:

1.     The application is dismissed.

2.     The applicant is to pay the second and third respondents’ costs.