Australand Holdings Pty Ltd v Hornsby Council

These factors emerge from the judgment of the English Court of Appeal in Palata Investments Ltd v Burt and Sinfield Ltd (1985) 2 AllER 517 which has often been applied by courts in Australia, as is noted in the decision of the High Court of Australia in Jackamarra v Krakouer (1998) 195 CLR 516.

In the light of the Applicant's staunch resistance of the Council's Motion which is principally founded upon prejudice to be caused to the Applicant if the Council's Motion be allowed, it is appropriate, in my judgment, to adopt this settled approach rather than to apply the approach reflected in the Court of Appeal's majority judgment in Danny Kidron and Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 512 where Priestley JA, exercising the counterpart discretion under the Supreme Court Rules Pt 51 r 4(1) compendiously said at 578:

Where delay is small, an appeal is not hopeless, and no relevant prejudice will be caused by an extension of time, it seems to me that a due exercise of discretion requires the granting of an extension of time.

This compendious approach has been applied by this Court in other cases involving no prejudice, but here, prejudice to the Applicant is the fundamental ground for opposing the Council's Motion.

Accordingly, I proceed to exercise the discretion vested in the Court by reference to each of the identified major considerations.

I consider here both the fact of the Council's delay and the reasons for it.

As indicated earlier, the delay in the present case (measured from the expiry of the 28 days for appeal to the filing of the Council's original Motion) is some four weeks. In itself, this is not to be regarded as an unduly serious delay.

However, the reason for the delay has not been fully explained. I think that I am ultimately invited to infer that the principal cause of the delay was the fact that the Council's Solicitors did not receive, until 6 March 2000, the transcribed version of the Senior Commissioner's extempore judgment. By this time, of course, the 28 day appeal period had already long expired (ie on 4 February 2000).

At first blush (and I must admit this was my initial impression to the Council's original Motion), the absence in written form of the Senior Commissioner's judgment appears to provide a very satisfactory explanation of the delay, especially in the light of the requirement of pt 13 r 37 of the Rules of Court that the Notice of Motion instituting the appeal must be accompanied by a "brief but specific statement of the grounds relied upon in support of the appeal".

However, this first impression is not plausibly sustainable in the light of the following relevant facts: (i.) The Council's Solicitors and Barrister were in Court when the Senior Commissioner extemporised his reasons for judgment on 7 January 2000 at the conclusion of a hearing that had occurred on the preceding two days. (ii.) The Senior Commissioner's judgment when ultimately transcribed in typed form, occupies only 4 1/2 pages, including 18 paragraphs (most of which are directed to the question of the flood proneness of the development site). (iii.) An appeal pursuant to the Land and Environment Court Act 1979 s 56A against a decision of a Commissioner is limited to errors of law; (iv.) It has been the practice of the Court for many years that more often than not decisions of Commissioners are delivered extempore rather than by way of reserved judgment. The Council's legal representatives are to be taken to be very conversant with this Practice; (v.) It was not until 31 January 2000 (only some four days before the expiry of the 28 day appeal period) that the Council's Solicitors requested the Registrar to supply a copy of the Senior Commissioner's decision. In that letter, there was no request for urgency or any mention of the possibility of an appeal. (vi.) Until it served the Applicant on 2 March 2000 with a copy of the Council's Motion, the Council's Solicitors had not notified the Applicant of any intention on the part of the Council to seek the leave of the Court to appeal out of time.

In these circumstances, I am of the opinion that the Council has not provided a good or cogent reason for its delay in the present case.

In response to this finding, it might be asked: What could the Council reasonably have done to avert the present situation?

In my judgment, at the very least, it could have informed the Applicant of its interest in pursuing an appeal. Better still, it should have filed a Notice of Motion seeking an extension of time to appeal at least until it had been provided with a written version of the Senior Commissioner's extemporised judgment.

Unlike the Court of Appeal, the Rules of this Court do not provide for a "holding appeal" in respect of s 56A appeals. In these circumstances, if a party were truly in doubt concerning the reasons for an extemporised judgment delivered by a Commissioner (in the sense that it did not consider that it was in the proper position to exercise its rights at least until it had seen the judgment in written form) the sensible and convenient approach would be to file a Notice of Motion seeking an extension of time until seven days after it had received a typewritten version of the extemporised judgment. This is not to be wise after the event. The availability of such a holding action would, in my view, be obvious, especially to regular practitioners in this Court.

The Applicant relies upon the affidavit of Mr Neil McCallum (a Director of the Applicant), sworn yesterday.

In that affidavit, Mr McCallum deposes to the action the Applicant took in relation to implementing the development consent granted by the Senior Commissioner.

Some of that action (eg instructing experts to provide a construction certificate, advising existing tenants of the house erected on the development site that their leases would not be renewed after they expired on 27 February 2000) was taken during the pendency of the 28 day statutory appeal period.

However, no physical works were commenced on the development site during this period.

However, after the statutory appeal period had expired, the existing house on the development site was demolished. It was only after the demolition process had begun that the Applicant became aware of the Council's Notice of Motion seeking to extend the time to appeal.

Mr McCallum deposes to the amount of expenditure incurred by the Applicant in implementing the development consent.

The amount is significant. For example, the demolition of the house is said to have involved a loss of a capital asset valued at $300,000, plus the loss of its revenue raising capacity in the loss of rental of $3,300 per month.

I accept, of course, as a fact that some of the alleged losses are entirely referable to normal financing the approved development. However, the conclusion is inevitable that significant prejudice will be caused to the Applicant if leave to appeal out of time be granted, and if the resultant appeal were to be successful.

In this respect, it is important to bear in mind the following observations in the joint judgment of Brennan CJ and McHugh J in Jackamarra at 519 and 520 after citing a passage from the judgment of Lord Dennings M R in R v Secretary for the Home Department: Ex parte Mehta (1975) 2AllER 1084 at 1088:

These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent.

In my respectful opinion, those observations have particular application in the context of a planning appeal where this Court grants development consent as a result of upholding an appeal against the Council's determination of a development application under the Environmental Planning and Assessment Act 1979 , in circumstances where the Legislature has provided for a limited appeal only, ie one confined to error of law.

By its very nature, if a development appeal is determined by this Court by granting development consent, a considerable period of time involving considerable public scrutiny is likely to have been involved since the development application was first lodged with the Council seeking its consent.

In these circumstances, where this Court grants development consent, it is hardly surprising that a developer may wish to implement the consent with some dispatch, particularly where the deliberative processes have involved delay. If he does so while appeal rights are pending, (ie where an appeal has been filed) he of course must make a commercial decision whether to proceed to implement the development consent despite the risk that on appeal, the development consent may be set aside. This is but a normal incident of the planning process.

However, it is quite another thing to say that a developer who has obtained a development consent from this Court should be exposed to the risk of an appeal being allowed outside the statutory period for appeal. I do not think it would be fair to the person having the benefit of a development consent for him to be placed at further risk by acting upon the consent after the expiry of the statutory appeal period where no appeal has been instituted, because of the possibility of the unsuccessful party obtaining an extension of time to appeal.

Accordingly, I am satisfied that the Applicant would be exposed to the risk of significant financial prejudice if the Council's Motion were granted.

In view of my earlier consideration of the other relevant matters, which operate decisively in favour of the Applicant, I do not think that I need say much of this consideration.

The cited passage from Lord Denning's judgment in Mehta provides an instructive approach to an appellate court's view of the merits of the appeal case to be presented if leave to extend the time to appeal is granted.

However, in a case like the present where an appeal is confined to error of law, it is easier for the Court, when considering an extension of time application, to assess the merits of the case. Having carefully studied the reasons for judgment of the Senior Commissioner and the grounds for the Council's appeal (if leave be granted) I am bound to say that I think the Council's case is not strong on the merits, because it is difficult to discern any relevant error of law in the Senior Commissioner's judgment. His decision on its face appears to be pre-eminently a decision on the facts and if this be right, it is of course, immune from challenge in an appeal limited to errors of law.

Having regard to my consideration of the relevant matters, I am firmly of the opinion that the exercise of discretion called for by the Council's Motion decisively weighs in favour of the Applicant.

Accordingly, I order that the Council's amended Notice of Motion be dismissed with costs.

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