Supre Pty Ltd v Marrickville Municipal Council

[1989] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION:	Supre Pty Ltd v Marrickville Municipal Council [1989] NSWLEC 223
PARTIES:	APPLICANT Supre Pty Ltd RESPONDENT Marrickville Municipal Council
FILE NUMBER(S):	10414 of 1989
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	General Steel Industries Inc. v. Commissioner for Railway (NSW) 1964 112 CLR 125
DATES OF HEARING:	18/07/89, 21/07/89, 28/07/89
DATE OF JUDGMENT:	08/11/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: Last Friday I dismissed the Respondent's Notice of Motion to strike out the proceedings herein. I now publish my reasons for so ordering.

On 29th June, 1989 the Applicant filed in Court a class 1 application commencing the current proceedings under the Environmental Planning and Assessment Act 1979. The application was in the appropriate form and stated as "the decision appealed against ....... or otherwise the subject of the proceedings" -

"Deemed refusal of development application dated 24th March, 1988."

The application annexed a copy of the development application dated 24th March, 1988 together with an accompanying letter to Council dated 11th November, 1987.

The proceedings came before the Registrar at call-over held on 18th July, 1989 when the Respondent's legal representative asserted that the proceedings were lodged out of time. Thereupon the Registrar directed the Respondent to file a Notice of Motion returnable before the Duty Judge on 28th July, 1989. On 21st July, 1989 the Respondent filed its Notice of Motion seeking an order that the proceedings be struck out.

On 28th July, 1989 the Notice of Motion was stood over for 1 week and came before me on 4th instant. The Notice of Motion was supported by an affidavit of a Town Planner employed by the Respondent who deposed that the Applicant's development application dated 24th March, 1988 had been lodged with the Respondent on that day and that the said development application had not been determined by the Respondent.

The Applicant adduced evidence of correspondence passing between the parties from 1987 to 1989 concerning the development carried on by the Applicant at premises known as No. 6 Carrington Road, Marrickville being the development and the development site the subject matter of the aforesaid development application and the current proceedings. I shall not set forth the terms of this correspondence (it is annexed to the affidavit of John Leonard Jardim sworn on 3rd August, 1989) except to say that it includes a letter from the Respondent dated 6th September, 1988 referring to the Applicant's development application which after reciting the resolutions of the Respondent in respect thereof concludes by stating:-

"If you wish to appeal against the Council's decision as set out above, it should be made to the Registrar, The Land and Environment Court of New South Wales .......".

The Respondent's Motion to strike out the proceedings is based upon the terms of s.97(1) of the Environmental Planning and Assessment Act 1979 which relevantly provides:-

"97(1). An applicant who is dissatisfied with the determination of a consent authority with respect to his development application may appeal to the Court within 12 months after the date on which he received notice under section 92 in respect of that application or the date upon which that application is deemed to have been determined under section 96(1)." Section 97(1) is to be read with s.96(1) which relevantly provides that "Where a consent authority has not determined a development application ......... within a period of 40 days after lodgment of that development application ........ that consent authority shall, for the purpose only of section 97, be deemed to have determined that application by refusing consent on the date upon which that period expires."

The Respondent submits that the development application not having been determined by the Respondent within the 40 day period prescribed by s.96(1) the time to appeal provided for by s.97 is 12 months following the expiration of the 40 day period after 24th March, 1988 being the date upon which the development application was lodged.

Since the present proceedings were not commenced until 29th June, 1989 the Respondent submits that the appeal is beyond the time prescribed and s.97(1) and hence is incompetent and accordingly should be struck out.

The Applicant does not dispute the meaning and effect of ss.96(1) and 97(1) of the Act contended for by the Respondent. However it submits that the aforesaid correspondence establishes that the development application made on 24th March, 1988 had been the subject of a number of subsequent amendments, one made as recently as May 1989. As such the Applicant argues that the development application was still active or current when the appeal was made to this Court. Alternatively the Applicant argues that the Respondent's aforesaid letter of 6th September, 1988 constitutes a determination by the Respondent of the development application (in the exercise of the authority conferred by s.96(2)) against which determination the Applicant is entitled to appeal at any time within 12 months of the date of that determination. To the extent necessary the Applicant seeks leave to amend its class 1 application to include an appeal against that determination.

The Respondent denies that the making of amendments subsequent to a development application being deemed by virtue of s.96(1) to be refused can reactivate or reset the operation of s.96(1). It also denies that its letter of 6th September, 1988 constitutes a valid determination of the development application.

I must confess to some difficulty in appreciating the merit or wisdom of the Respondent's position in this matter because in order to establish its case it admits that it has still not determined a development application lodged with it some 16 months ago, an extraordinary delay indeed and one for which no explanation is offered. In the end and in the absence of explanation I think it tolerably clear that it simply takes its stand on the strict letter of the law. At all events I must determine the legal validity of its case bearing in mind that on a Motion to strike out proceedings the moving party must establish that the proceedings are virtually bound to fail cf. General Steel Industries Inc. v. Commissioner for Railway (NSW) 1964 112 CLR 125. In my opinion the Respondent has failed to establish its case to the required standard.

Because I have formed the view that the simplest solution to the problem raised by the present Motion is to grant leave to amend the originating process I do not think it necessary to finally rule upon the Applicant's argument that the operation of s.96(1) of the Act is stayed or reactivated in a case (such as the present case appears to be) where although a substantial period of time elapses from the lodging of a development application it remains under active consideration, involving perhaps subsequent amendments being made to the application in the course of negotiations between the Applicant and the consent authority.

I should perhaps observe that the Applicant's argument encounters obvious difficulty with the language of ss.96 and 97. Although from the interest of an applicant it might be reasonable to regard ss.96 and 97 as operating to confer an entitlement upon the Applicant to elect to treat as ground for appeal delay by the consent authority in determining his application it must not be overlooked that ss.96 and 97 are jurisdictional provisions delimiting the appeal entitlements of applicants for development consent, and more particularly prescribing the time within which appeal entitlements must be exercised.

It is to be noted that the Court has no power under the Act to extend the prescribed time to appeal.

However I do not stay upon the question because I am of the opinion that the amendment to the class 1 application sought by the Applicant to add to the decision appealed against the determination by the Respondent as set forth in its letter to the Applicant dated 6th September, 1988 should in the interests of justice be allowed. The class 1 application so amended obviously is within the prescribed time to appeal.

The Respondent's argument that its letter of 6th September, 1988 was not a valid determination under the Environmental Planning and Assessment Act 1979 is not so strong or convincing as to require or justify the conclusion that the Applicant's appeal is virtually certain to fail. Indeed if it were necessary to decide the matter I would entirely reject the argument. I should also say that quite apart from any question of estoppel which may arise it ill behoves the Respondent (as a public authority charged with the public duty of determining development applications) having once advised the Applicant of its right to appeal against a determination of the Respondent to thereafter contest the appeal on the basis that there was no valid determination.

For the foregoing reasons the Respondent's Motion to strike out the current proceedings must be dismissed.

COSTS

The Applicant having succeeded on the Motion seeks its costs. The Respondent opposes the application for costs on the basis that but for the amendment being allowed the Motion would have been successful. I am by no means sure that this proposition is sound but for the purpose of resolving the question of costs I am prepared to assume it to be correct.

As appears from Mr. Jardim's affidavit sworn on 27th July, 1989 the Respondent's Solicitors promptly responded to the service of the class 1 application by suggesting that the application was out of time. This suggestion was rejected as being misconceived by the Applicant's Solicitors in their letter of 12th July, 1989. When the proceedings came before the Registrar at call-over on 18th July, 1989 the Respondent maintained its view that the appeal was lodged out of time. This opinion was again rejected by the Applicant's Solicitors in their letter of 21st July, 1989 on grounds similar to those argued on the hearing of this Motion upon which I have expressed no final opinion. However the letter went further and contains the following:-

"However, in order to proceed further with this matter and to avoid needless interlocutory proceedings we are prepared to amend out client's application. You will note that by letter dated 6th September, 1988 the Council notified our client that it had considered the application and had passed a resolution in the terms as set out in that letter. We are prepared to accept this as a refusal of our client's application and accordingly enclose an amended Class 1 Application appealing against that determination.

We will be seeking to file the amended application at the call-over on 28th July, 1989 and for this purpose enclose draft consent orders for your consideration. We should be grateful if you could advise us by Monday, 24th July whether you will be consenting to such orders being made.

We give notice that if you intend to file a notice of motion to have the original Class 1 Application dismissed such an application will be opposed. If such a motion is filed and the Court subsequently grants us leave to file the amended application, we will be relying upon this letter for the purposes of any argument as to costs."

In the face of this advice the Respondent maintained its contrary opinion and so it contended on the hearing of the Notice of Motion. In these circumstances I see no reason why costs on the Notice of Motion should not follow the event. In particular even if it be the fact that the amendment of the class 1 application was necessary to defeat the Notice of Motion that fact provides no reason for denying the successful party its costs in the light of the more pertinent fact that the Applicant foreshadowed the amendment and sought the Respondent's consent thereto in an express endeavour to avoid unnecessary costs of interlocutory proceedings. There could be no reasonable justification for the Respondent doubting that such an amendment would have been granted by the Court and indeed no objection was raised to the amendment being allowed, although of course the Respondent argued that its letter of 6th September, 1988 was not a valid 'determination' of the development application.

In the circumstances I propose to allow the Applicant its costs on the Notice of Motion but limited to those costs incurred after 26th July, 1989 being the date of its Solicitors' letter seeking the Respondent's consent to the amendment to the class 1 application.

Accordingly I order the Respondent to pay the Applicant's costs of the Notice of Motion but limited to those costs incurred after 26th July, 1989.