Ipoh Pty Ltd v Sydney City Council - [2005] NSWLEC 514

Reported Decision: (2005) 142 LGERA 373

Land and Environment Court

of New South Wales

CITATION:
Ipoh Pty Limited v Sydney City Council [2005] NSWLEC 514

PARTIES:
APPLICANT:
Ipoh Pty Limited
RESPONDENT:
Sydney City Council

FILE NUMBER(S):
10323 of 2005

CORAM:
Pain J

KEY ISSUES:
Practice and Procedure :- whether class 1 application filed out of time

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 82, s 97
Environmental Planning and Assessment Regulation 1994 cl 48A, cl 70B
Environmental Planning and Assessment Regulation 2000 cl 55, cl 113
Interpretation Act 1987 s 33

CASES CITED:
Integral Energy Pty Limited v Blue Mountains City Council [1998] NSWLEC 284;
Songkal Pty Limited v Warringah Council (2000) 111 LGERA 71;
Sydney City Council v Ilenace Pty Limited [1984] 3 NSWLR 414;
Weldon v Neal (1887) 19 QBD 394

DATES OF HEARING: 08/09/2005
14/09/2005 (written submissions)
16/09/2005 (written submissions)

DATE OF JUDGMENT:

10/19/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Ayling SC and Dr S Berveling (barrister)
SOLICITORS:
Home Wilkinson Lowry
RESPONDENT:
Mr M Craig QC
SOLICITORS:
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

19 October 2005

10323 of 2005 Ipoh Pty Limited v Sydney City Council
JUDGMENT

1 Her Honour: The Respondent, Sydney City Council (“the Council”) has filed a Notice of Motion dated 10 August 2005 seeking an order that these Class 1 proceedings be dismissed on the basis that the Class 1 Application was filed outside the statutory appeal period.

2 The Council owns the Queen Victoria Building (“the QVB”) at 429 – 455 George Street, Sydney. The Applicant leases the QVB. On 12 January 2004, the Applicant lodged development application no. D2004/00015 (“the development application”) to upgrade parts of the QVB. On 13 September 2004, the Applicant lodged an amendment to the development application, which was accepted by the Council. The Council has not yet determined the development application. These Class 1 proceedings were commenced on 12 April 2005.

3 If the calculation of the statutory appeal period is 12 months and 40 days from the date of the amended development application the Class 1 Application was lodged within time. If not, the Applicant accepts that the appeal is out of time because the appeal was lodged more than 12 months after the date of the deemed refusal. It is surprising given how long these provisions have been in operation that this is not a settled question, but that appears to be the case.

4 Section 97(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) provides:

(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant’s development application (including a determination on a review under section 82A) may appeal to the Court within 12 months after:

(a) the date on which the applicant received notice, given in accordance with the regulations of the determination of that application, or

(b) the date on which that application is taken to have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 514
Decision Date: 10/19/2005

CaseChat Overview and Summary

In the matter of Ipoh Pty Limited v Sydney City Council, the Land and Environment Court of New South Wales was tasked with determining whether a Class 1 appeal, lodged by Ipoh Pty Limited against a decision of the Sydney City Council, was filed within the statutory appeal period. The crux of the legal dispute lay in interpreting the relevant provisions of the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000 concerning the timeline for lodging an appeal when an amendment to a development application is accepted by the council. Specifically, the court had to ascertain whether the appeal period should commence from the date of the original development application or from the date of the amended application.

The court thoroughly examined the statutory language and previous case law to resolve this issue. Pain J highlighted the importance of statutory interpretation that aligns with the purpose of the legislation, as mandated by the Interpretation Act 1987. The judge acknowledged the Council's argument, grounded in the deemed refusal provisions of the Act and Regulations, but ultimately sided with the reasoning in Integral Energy Pty Limited v Blue Mountains City Council, where Talbot J had held that the appeal period should indeed commence from the date of the amended application. Pain J concluded that this approach better served the legislative intent of allowing councils adequate time to consider applications before they are subject to appeal. Consequently, the court ruled that Ipoh Pty Limited's Class 1 appeal was timely filed, as it was lodged within 12 months and 40 days from the date the amended development application was accepted by the Council. The Notice of Motion filed by the Council to dismiss the proceedings was therefore dismissed, and costs of the motion were reserved.

Orders