Raymond v Woollahra Municipal Council

[2006] NSWLEC 730

Land and Environment Court

of New South Wales

CITATION:

Raymond v Woollahra Municipal Council [2006] NSWLEC 730

PARTIES:

APPLICANT:
Ben Raymond

RESPONDENT:
Woollahra Municipal Council

FILE NUMBER(S):

10690 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- dismissal of Class 1 proceedings commenced out of time where applicant has done nothing to obtain extension of time after being given opportunity to do so.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 96
Land and Environment Court Rules 1996 Pt 17 r 1

DATES OF HEARING:

06/10/2006

EX TEMPORE JUDGMENT DATE:

10/06/2006

LEGAL REPRESENTATIVES:

APPLICANT:
N/A
SOLICITORS
N/A

RESPONDENT:
J P Merlino, Solicitor
SOLICITORS
Home Wilkinson Lowry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

6 October 2006

10341 of 2006

RAYMOND v WOLLAHRA MUNICIPAL COUNCIL

JUDGMENT

HIS HONOUR

:

1 The respondent seeks the dismissal of these proceedings in Class 1 of the Court’s jurisdiction. The proceedings are an appeal from a decision by the respondent council under s 96 of the Environmental Planning and Assessment Act 1979 refusing a development application. The basis for the dismissal application is that the proceedings were filed out of time and that the applicant has done nothing to obtain an extension of time.

2 The Council determination was on 28 April 2006. The proceedings were commenced on 7 August 2006. The Land and Environment Court Rules 1996 Pt 17 r 1 provide that a person may commence proceedings in relation to an appeal at any time within sixty days after the right of appeal first arises. The appeal was therefore commenced out of time.

3 The first return date of the Application was 26 September 2006 when the applicant appeared. The matter was then stood over to 3 October 2006 in order, I am informed, to give the applicant an opportunity, if he wished, to file a notice of motion extending the time in which to commence the proceedings. There was no appearance by the applicant on 3 October 2006 nor has the applicant filed any such notice of motion. On 3 October 3006 the matter was stood over until today. The applicant has not appeared today.

4 In the circumstances, I accept the submission that it is appropriate to dismiss the proceedings.

5 The respondent seeks costs. Given that the proceedings were commenced well out of time and the applicant has not made an application to extend the time despite being given an opportunity to do so and has not appeared on the last two occasions that the matter has been before the Court, I think that it is fair and reasonable to order the applicant to pay the respondent’s costs.

6 I make the following orders:

(1) the proceedings are dismissed.

(2) The applicant is to pay the respondent’s costs as agreed or assessed.