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Insights on Gaining an Extension to Judicial Review Time Limitations: Balnaves Foundation Pty Ltd v Minister for Planning (2018)

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Judicial review is a review by a court which tests the legality of a decision. If someone wishes to seek judicial review of a decision, it is important to comply with any time limits.

Time limits apply for good reason, so even where it is possible under statute to seek an extension of time, it can be difficult to persuade a court to grant it and it will be necessary to show good reason for the delay in seeking judicial review.

 A challenge to an administrative decision must be commenced within three months of the decision having been made according to Rule 59.10(1) of the Uniform Civil Procedure Rules 2005 (UCPR). However, the court has some discretion to extend this time limit under Rule 59.10 (2).

The NSW Land and Environment Court case, Balnaves Foundation Pty Ltd v Minister for Planning (2018) NSWLEC 15, provides insight to the approach the court will take in considering the conditions which must be satisfied before an extension of a time limit will be granted.

Key Facts

In March 2016, Balnaves Foundation Pty Ltd (Balnaves) was granted consent by Waverley Council to alter and add to an existing residential flat building in Dover Heights, eastern Sydney. Condition 13 of the consent mandated payment of an affordable housing levy of $181000.

In June 2017, Balnaves’ solicitor wrote to the Council as to the validity of condition 13. After various exchanges between the parties, Balnaves submitted a modification application which included a request to remove condition 13. The Council approved the modification application but refused to remove condition 13.

In May 2018, Balnaves filed a so-called Class 1 appeal against the decision as well as a Class 4 Summons to challenge the validity of condition 13. In August 2018 the parties agreed to discontinue the Class 1 appeal pending the outcome of the Class 4 proceedings.

Key Issues

The question for the court was should it exercise its discretion to commence judicial review outside of the standard time limit, bearing in mind there is a clear public interest in requiring challenges to administrative decisions to be made within a reasonable period. This is to ensure the interests of the affected parties are not unjustly prejudiced and that the proper business of government can continue in a timely manner.

Rule 59.10 (2) provides the court with discretion to extend the time limit. In exercising its discretion, the court must take into consideration the factors listed in Rule 59.10 (3) relevant to the particular circumstances of the case, including:

  1. any particular interest of the plaintiff in challenging the decision,
  2. possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
  3. the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
  4. any relevant public interest.

Case law concerning the operation of Rule 59.10(2) has suggested several relevant principles to be considered. Firstly, the applicant bears the onus of establishing why the court should exercise its discretion to extend the time limit in the applicant's favour. Moreover, the factors to be considered on any application to extend a time limit are not limited to those in Rule 59.10. They also include the length of the delay, the reasons for the delay, and whether the applicant has a reasonably arguable case. The weight to be given to each of the relevant factors will depend on the circumstances of the particular case.

In Balnaves, the court considered the length of the delay as "grossly excessive" describing the reasons for the delay as "troubling". If the “Court had been confined to considering the factor of delay alone, leave would not have been granted”. The court was also concerned about the" misguided" attempt to resolve the issue by, first, the modification application and subsequently by negotiation with the Council and the filing of the Class 1 appeal.

However, the court found that the delay in commencing proceedings was not intentional although “had there been any suggestion whatsoever that this was the case, (the) application would have been disposed of quickly and adversely to Balnaves”. The court considered that the delay was partly the result of attempts by the parties to resolve the issues that were in dispute without commencing litigation.

On the evidence, the “Court granted an extension of time because the respondents had not opposed the application; both parties were ready and had expected that the matter would be fairly heard that day; and the unreasonable delay in filing the application was neither intentional, nor a result of the Class 1 proceedings being utilised to circumvent the time limit for judicial review”.

What does it mean?

This case offers a reminder of the factors that will be considered by a Court in an application for an extension to the time limit to commence judicial review proceedings.

The Courts are willing to extend time limits in the right circumstances. The applicant bears the burden of establishing why the court should exercise its discretion, but there is no certainty that the court will do so. There is no defined length of time which would lead to the court refusing to grant an extension of the time limit with each case being considered on its merits.

The costs incurred can be considerable, so if considering challenging the validity of consent for a development, it is best to do so in a timely manner.

Contact our Land & Environment Court Solicitors, Sydney, NSW

Szabo & Associates Solicitors are experienced practitioners in Land & Environment Court matters. If you require assistance or advice with judicial review proceedings, extension of time applications, or any other matters, please call us on (02) 9281 5088 or fill in our online contact form.

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