A recent decision in the NSW Land and Environment Court, Wingecarribee Shire Council v Uri Turgeman t/a Uri Design (2018) provided a reminder of the factors that will be considered by the Court when challenging a development after the expiry of the appeal period.
The case concerned consent for the development of residential flats. The Council sought a declaration that the consent was invalid and a restraining order. The summons was filed more than 3 months after the decision was made.
Under Rule 59.10(1) of the Uniform Civil Procedure Rules 2005, proceedings for judicial review of a decision must be made within 3 months. However, the Rules do provide discretion for extending the period. In exercising discretion, the Court has to take into account factors that are relevant to the circumstances, including the following factors:
- any particular interest of the plaintiff in challenging the decision;
- possible prejudice to other persons caused by the passage of time if the relief were to be granted
- the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision;
- the public interest.
These factors are not exhaustive and also include the length of the delay in commencing proceedings; the reasons for the delay; and whether the applicant has a reasonably arguable case. The weight to be given to these factors will depend on the circumstances and will require the Court to carry out a balancing exercise. In this case, the extension was granted.
Contact Our Land and Environment Court Solicitors
Szabo & Associates are experienced practitioners in Land and Environment Court matters. If you require assistance with any issues raised here, please call us on {{CONTACT_NUMBER}} or fill in our online contact form.