Corbett Constructions Pty Ltd v Wollondilly Shire Council

Land and Environment Court (NSW)|2017-09-27|Before: Molesworth AJ, Mr P

A council alleges that an appeal of a deemed refusal is incompetent

On 1 July 2016, Corbett Constructions Pty Ltd ('Corbett') lodged development application 472/2016 with the Wollondilly Shire Council ('the Respondent Council') seeking development consent for, inter alia, the proposed development of 34 townhouses and 44 units on land known as 91-103 Menangle Street, Picton ('the development application').
On 8 June 2017, Corbett commenced proceedings, by way of a Class 1 Application, appealing against the deemed refusal of the development application pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 ('EPA Act').
On 22 August 2017, the Respondent Council filed a Notice of Motion seeking the following orders: that the proceedings be dismissed due to being commenced beyond the prescribed period under s 97 of the EPA Act; that Corbett pay the Respondent Council's costs of the proceedings; and any other order that the Court deems appropriate.

The chronology of relevant events

On 11 July 2016 - 10 days after the development application was lodged - the Respondent Council sent a letter to Corbett requesting that Corbett provide it with further information that the Respondent Council deemed necessary for the development assessment process.
In particular, the further information required to be provided included: a residential flat building architectural design verification; a new Building Sustainability Index ('BASIX') statement; a 'phase 1' contaminated site assessment; a flood impact assessment concerning fill; a concept emergency evacuation plan; a development staging plan; a swept path (garbage collection) plan; a cut and fill plan; adaptable housing plans; a detailed addendum to the statement of environmental effects; and a response to a multiplicity of other comments and queries.
It is convenient to set out part of the final section to the letter of 11 July 2016 in full: Will this delay the assessment of my application? This is a request for further information under Clause 50, 60 or 67 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) and as such the assessment period for the application has stopped in accordance with the provisions of Clause 109, 110 or 111 of the Regulation. If we do not receive the requested information within 28 days, or if alternative arrangements have not been made, the application may be determined on the current information provided and your application may be refused…
On 20 September 2016, a date well beyond 8 August 2016 (which was 28 days after the letter of 11 July 2016), Corbett and the Respondent Council exchanged e-mails pertaining to the development application. In the first relevant e-mail, Corbett stated "[w]e are in receipt of your letter of 11 July and note it has taken some time to make a considered response". This e-mail concluded with the comment from Corbett that "[w]e look forward to discussing the DA in the coming weeks with a view to prompt assessment." Further relevant e-mail correspondence relating to the development application was sent on 23 September 2016 and 29 September 2016.
On 11 October 2016, the Respondent Council sent a further formal letter to Corbett. The opening paragraph to that letter was as follows: "I refer to previous correspondence dated 11 July 2016 and ongoing communication requesting the submission of additional information to facilitate the assessment of the abovementioned application." After noting that "the requested information has not been received", it was stated that "[i]f the information is not received within seven (7) days it will be assumed that you wish to have the application determined on the information already submitted".
On 18 October 2016, the Respondent Council sent an e-mail to Corbett stating: "I note that I have previously provided until 18 October for the provision of the outstanding information. If this information is not provided by the end of this week (21 October 2016) I will prepare my assessment report to the JRPP based upon the information provided".
Later on 18 October 2016, Corbett sent an e-mail to the Respondent Council confirming that "[m]uch information was delivered to Council's front desk this afternoon". This information included a 10 page covering letter dated 17 October 2017 detailing Corbett's response to the particulars of the Respondent Council's request for further information of 11 July 2016 and related letter of 11 October 2016.
On 30 March 2017, the Respondent Council sent a further detailed letter to Corbett responding, inter alia, to the additional information provided by Corbett to the Respondent Council on 18 October 2016. As with the Respondent Council's letter of 11 July 2016, the letter concluded with the statement that: If we do not receive the requested information within 28 days, or if alternative arrangements have not been made, the application may be determined on the current information provided and your application may be refused…

The statutory framework

The prescribed development assessment procedure under the EPA Act is primarily set out under Part 4 of the EPA Act and Part 6 of the Environmental Planning and Assessment Regulation 2000 ('the Regulation'). In particular, Division 2 of Part 4 of the EPA Act delineates the procedures for assessing development that needs consent and Division 5 delineates the special procedure for integrated development (see also Division 3 of Part 6 of the Regulation). Integrated development is development that requires development consent and one or more of the separate statutory approvals set out under s 91. (I interpose here to note that it is agreed that the development the subject of these proceedings is integrated development.)
The conclusion of the development assessment process is the determination of the consent authority to either grant consent (subject to conditions or unconditionally) or refuse to grant consent to a development application: s 80. However, Division 2 of Part 4 of the EPA Act also provides for circumstances in which consent is taken to have been refused. Relevantly s 82(1) stipulates that: A consent authority that has not determined a development application within the relevant period, prescribed by the regulations, applicable to the development the subject of the development application is, for the purpose only of section 97, taken to have determined the application by refusing consent on the date on which the period expires.
If consent is taken to have been refused under s 82, the relevant applicant may appeal this deemed refusal to this Court pursuant to s 97(1)(b), but only within six months after the date of that deemed refusal.
In order to ascertain the date on which a development application is deemed to have been refused, it is necessary to refer to the clauses under Division 11 of Part 6 of the Regulation. The relevant period prescribed by the Regulation after which a development application is taken to have been refused (a 'deemed refusal') under s 82 of the EPA Act depends on what category of development the proposed development is. In the case of integrated development (as defined under s 91), the relevant "deemed refusal period", measured from the date on which "the development application is lodged", is prescribed as 60 days: cl 113(1)(b)(ii) (although see cl 107). This period of 60 days, as well as other periods, is defined as the "assessment period" for the purpose of Division 11 of Part 6: cl 106(d). In order to calculate this assessment period, and therefore ascertain the date on which a development application is deemed to be refused, one has to consider cll 107-112.
As will become apparent later in this judgment, it is useful to set out cl 109 of the Regulation: 109 Days occurring while consent authority's request for additional information remains unanswered (1) Any day that occurs between the date of a consent authority's request for additional information under clause 54 and: (a) the date on which the information is provided to the consent authority, or (b) the date on which the applicant notifies, or is taken to have notified, the consent authority in writing that the information will not be provided, whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods. (2) Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged with the consent authority.
Given the inter-relationship of clause 109 with clause 54, and the critical relevance of cl 54 to the motion before the Court, it is also convenient to set out the pertinent provisions of cl 54: 54 Consent authority may request additional information (1) A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application. (2) The request: (a) must be writing, and (b) may specify a reasonable period within which the information must be provided to the consent authority. (3) The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C(1)(b)-(e) of the Act or in any relevant environmental planning instrument. … (5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of: (a) any period specified as referred to in subclause (2) (b), or (b) such further period as the consent authority may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.

The Respondent Council's claim that the proceedings are incompetent

As has been foreshadowed, the Respondent Council's case on the motion is that that these proceedings were commenced beyond the prescribed period for commencing an appeal under the EPA Act and the Regulation. The fundamental claim that underpins this case is the proposition that the Respondent Council's letter of 11 July 2016 - requesting further information pursuant to cl 54 of the Regulation - only 'stopped the (deemed refusal) clock' (by virtue of cl 109) until 8 August 2016. If so, the Respondent Council reasoned that it must follow that these proceedings were commenced beyond the prescribed six month window (as measured from 8 August 2016; the date of the deemed refusal). Consequently, the Court was said not to have jurisdiction to hear and dispose of these proceedings: citing, inter alia, Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146 at [96]-[97].
To make good this fundamental claim, the Respondent Council commenced by drawing the Court's attention to the terms of sub-clauses (2) and (6) of clause 54 of the Regulation. The Respondent Council submitted that the effect of these sub-clauses is that if an applicant for consent fails to provide any requested information by the end of a reasonable period for doing so specified in that request, then the applicant "is taken to have notified the consent authority that the information will not be provided". In such circumstances, the Respondent Council asserted that, by dint of cl 109(1)(b), the deemed refusal clock only stops until the date of the end of the specified period.
In this context, the Respondent Council contended that Corbett was taken to have notified the consent authority that the information requested in the Respondent Council's letter of 11 July 2016 would not be provided on 8 August 2016. According to the Respondent Council, this is because that letter allegedly specified that the requested information was required to be provided within 28 days of the letter (ending on 8 August 2016) unless alternative arrangements were made. The Respondent Council argued that, as of 8 August 2016, Corbett had not provided any of the requested information nor made alternative arrangements. Hence, the deemed refusal clock was said to have re-started from this date. Importantly, the Respondent Council claimed that this period of 28 days (with provision for alternative arrangements to be made) was reasonable in the circumstances of the particular development application.
In support of this contention, the Respondent Council suggested that the purpose of the deemed refusal provisions under the EPA Act and the Regulation is consistent with its interpretation of these provisions. Relevantly, the Respondent Council identified this purpose as being "to ensure that applicants are provided with a right to seek the Court's determination of a development application is circumstances where the consent authority, having been provided with all the information it requires to make its determination, has failed to do so within the time limits set out in the EPA Regulations".
Furthermore, the Respondent Council submitted that any correspondence occurring after 8 August 2016 is immaterial because, by 8 August 2016, the effect of the 11 July 2016 request for further information in stopping the clock had ceased. That is to say, no future correspondence after 8 August 2016 could undo the fact that, for the purposes of the EPA Act and the Regulation, the deemed refusal clock had re-started (due to the deemed notification to the consent authority that Corbett would not provide the requested further information). If it were otherwise, it was suggested that there would be intolerable uncertainty as to the relevant time limits within which a deemed refusal appeal may be brought: Songkal Pty Ltd v Warringah Council (2000) 111 LGERA 71; [2000] NSWLEC 215 at [73]-[74]. Additionally, the Respondent Council emphasised that any subsequent, new request for further information could not have stopped the deemed refusal clock: citing cl 109(2).
It should be noted however, that the Respondent Council conceded that these proceedings would have been commenced within time if this request for further information had actually stopped the clock until 18 October 2016 (as claimed by Corbett; being the date of the provision by Corbett of the detailed response).

Corbett's claim that the proceedings are competent

In response to the Respondent Council's fundamental claim, Corbett contended that the Respondent Council's letter of 11 July 2016 stopped the deemed refusal clock until 18 October 2016 rather than 8 August 2016. If so, Corbett submitted that it must follow that these proceedings were commenced within the prescribed six month window after the deemed refusal and, consequently, that the Court has jurisdiction to hear and dispose of these proceedings.
To make this claim good, Corbett recognised that it must rebut the Respondent Council's proposition that - because Corbett did not provide the requested further information within the 28 day period specified in the Respondent Council's letter of 11 July 2016 or make alternative arrangements - the deemed refusal clock re-started from 8 August 2016.
To this end, Corbett commenced its rebuttal by submitting that, contrary to sub-clause (6)(a) of cl 54, the Respondent Council did not, in its letter, "specify a reasonable period within which the information must be provided to the consent authority". This was said to be so because the 28 day period was manifestly unreasonable having regard to the "substantial amount of additional information" requested. Indeed, Corbett claimed that the requirement to provide the specified information was so onerous that "the information sought could not possibly be provided within the 28 days as originally specified"; it was "mission impossible". With respect to the meaning of 'reasonable period', Corbett referred the Court to the decision of Maynard v Goode (1926) 37 CLR 529; [1926] HCA 4 in which it was observed, at 538, that: "[t]he question of what is 'reasonable time' is always relative; that is, it means 'a reasonable time under the circumstances'".
Furthermore, Corbett argued that the conduct of the Respondent Council after the expiry of the 28 day period (namely, not pursuing Corbett for the outstanding information), betrays an implicit recognition that the specified period was unreasonable. For instance, Corbett submitted that the letter of 11 October 2016 clearly demonstrates that, at that time, "the Respondent did not consider that the Applicant was taken to have notified the consent authority that the information would not be provided under cl 54(6)(a)".
In this context, the Court put it to Corbett that, if the above submission were to be accepted, the consequence may be that the Respondent Council did not validly exercise its discretion under cl 54(2)(b) to specify a reasonable period. This might mean that the failure of Corbett to provide the requested information within the 'unreasonable' period specified in the letter could not constitute a deemed notification of non-provision under cl 54(6)(a). Corbett did not dispute this proposition. However, it did submit that, given the discretionary nature of the power under cl 54(2)(b), this position would not render the letter ineffective as a cl 54 request for further information.
In any event, Corbett's second argument was that, consistently with cl 54(6)(b), the Respondent Council provided a further period of time (that is, beyond the specified 28 days) for Corbett to provide the requested further information. In light of the relevant chronology set out above and content of the relevant correspondence, Corbett submitted that the further period allowed by the Respondent Council initially extended to 18 October 2016 but was ultimately revised to 21 October 2016 by the Respondent Council's e-mail of 18 October 2016.
In this respect, Corbett reasoned that the Respondent Council "by its conduct of doing nothing to progress the development assessment until 11 October 2016, while in receipt of correspondence from the Applicant stating that the Applicant was preparing a considered response to the [request for further information], clearly demonstrated an exercise of its discretion under cl 54(6)(b) of the EPA Regulation to allow a further period to the 28 day period set out in the [request for further information]". Hence, the date marking the end of that further period ultimately crystallised as 21 October 2016.
Nevertheless, as Corbett provided the requested information on 18 October 2016, Corbett ultimately submitted that subclause (6) of cl 54 (albeit being applicable) is not, in the present circumstances, determinative of when the deemed refusal clock re-started. This is because the end of the 'stop the clock' period was said to be the earlier date of 18 October 2016, when Corbett actually provided the requested further information: cl 109(1)(a).
Thirdly, Corbett submitted that the Court should adopt a purposive approach (to interpreting cll 54 and 109) consistent with that taken by Pain J in Ipoh Pty Ltd v Sydney City Council (2005) 142 LGERA 373; [2005] NSWLEC 514 and Talbot J in Integral Energy v Blue Mountains City Council [1998] NSWLEC 284 (albeit those cases are not entirely apposite). In this respect, it was said that those decisions should be preferred to the approach taken in Songkal Pty Ltd v Warringah Council (which was said to be expressly abandoned in Lateral Estate Pty Ltd v Council of the City of Sydney [2017] NSWLEC 6 at [30]). Relevantly, Corbett maintained that the purpose of these clauses is to "allow consent authorities the opportunity to request further information crucial to determining a DA without affecting the time allowed statutorily to determine the DA before deemed refusal rights commence": citing New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 June 2002 at 2669-2670.
In this context, Corbett suggested that its interpretation of the relevant clauses would mean that the deemed refusal clock remained 'stopped' for the period of time in which the Respondent Council did not have the information that it required to properly assess the development application. In contrast, the Respondent Council's interpretation would mean that, inconsistently with the purpose articulated above, the Respondent Council was under increasing time pressure to determine the development application despite not having the information which it needed (by its own admission) to properly do so.

Consideration

Once issued with a valid request for further information by a consent authority under cl 54 of the Regulation, an applicant can only be taken to have notified the consent authority that the information will not be provided if that applicant has failed to provide any of the requested information by (1) the end of any (reasonable) period specified for so doing in the request or (2) the end of such further period as the consent authority may allow.
The critical issue before the Court here is whether the Respondent Council, under cl 54, did allow a further period to the 28 day period specified in the request for providing the relevant further information. If so, it logically follows that Corbett could not have been taken to have notified the Respondent Council that the information would not be provided under cl 54(6) until the expiry of that further period (rather than the expiry of the initially specified period). Of course, if Corbett provided the requested information before the expiry of any further period of time allowed by the Respondent Council, then the deemed refusal clock re-started at that point (and not the date of the end of the further period allowed): cl 109(1)(a).
Ultimately, the Court is satisfied that the Respondent Council did exercise its discretion under cl 54 to allow Corbett a further period of time (extending to 21 October 2016) to provide the further information listed in its request for further information of 11 July 2016. Consequently, the Court is not satisfied that the proceedings were commenced beyond the prescribed period for commencing an appeal. It follows that the Respondent Council's motion must be dismissed. The Court has reached this conclusion on two principal bases: the first legal, the second factual.
First, it should be noted that the Respondent Council appeared to posit that the proper interpretation of cll 54 and 109 is that once a specified (reasonable) period of time for providing further information expires, it must follow that the applicant is taken to have notified the consent authority that it will not provide the requested further information (unless the consent authority has, prior to the expiry of the specified period, provided a further period for that information to be given).
The consequence of this interpretation is that if - after the expiry of that period - the consent authority expressly provides further time, the applicant will still be taken to have notified the consent authority that it will not provide that information. This requires words to be read into clause 54(6) that do not exist. The consent authority is not restricted to allowing a further period of time only before the expiry of any period specified in the request for further information. Rather, it is open to the consent authority to, after the expiry of that period, re-assess the situation and provide the applicant with a revised further period for providing that information pursuant to cl 54(6)(b). If the consent authority decides to make such a concession, it does not mean that the request for further information morphs into becoming a new request for further information, which would not enliven cl 109 due to clause 109(2).
Yet it is also open to the consent authority to decide not to allow a further period of time to the specified period and proceed, immediately, to deal with the application accordingly. As an aside, if such a decision were to be taken, it would be sensible for the applicant to be expressly notified by the consent authority.
Hence, a proper interpretation of the relevant clauses reveals that if an applicant fails to provide the requested further information within the specified period for so doing (and the consent authority has not already granted an extension of time), the consent authority retains a discretion to grant an extension of time. Accordingly, once Corbett failed to provide the further information requested within 28 days of the request (assuming for present purposes that this period was reasonable), it fell to the Respondent Council to decide to either grant an extension of time or to proceed on the basis that the information would not be provided.
It is also of some significance to recognise that there is no obligation under cl 54 for the consent authority to require the applicant for consent to provide the requested information within a particular period of time. Rather, it is open for the consent authority to implicitly say to the applicant, by not providing a time period, 'please provide the requested information at your leisure'. If so, it may be that (unless the consent authority takes some further step) cl 54(6) has no work to do. This militates against accepting a(n) (artificially) restricted interpretation of cl 54(6) that would preclude a consent authority from allowing a further period of time after an applicant has failed to provide requested further information within a specified period.
Moreover, as alluded to by Corbett, the argument that cll 54 and 109 are designed to 'stop the clock' (leading up to a deemed refusal) to enable a consent authority to obtain the information that it needs to properly assess a development application, without reducing the period of time it is afforded to determine that application prior to a deemed refusal appeal right arising, is persuasive. In contrast, on the Respondent Council's interpretation of those clauses, a consent authority would be precluded from allowing a further period of time for the applicant to provide the required information after the expiry of the specified period in which the clock leading up to a deemed refusal remains 'stopped'.
That is to say, the consent authority would either have to assess and determine the development application without the requested information or be placed in the awkward position of watching the deemed refusal clock tick away as it awaits necessary further information.
Hence, it is difficult to see how the Respondent Council's interpretation would promote the purpose of the relevant clauses. On the other hand, an interpretation of those clauses that would allow the consent authority to (after the expiry of a specified period for providing further information) extend the period for the further information to be provided, whilst retaining its temporary immunity from the 'ticking' of the deemed refusal clock, would promote the purpose of the relevant clauses. To be sure, that is not to fall into the 'purposive interpretation trap' of straining the statutory language of the clauses to serve the (sometimes elusive) purpose of particular clauses. Rather, it simply reinforces the merits of the interpretation of the clauses that is consistent with and best reflects the statutory language.
Secondly, the Court agrees with Corbett that the Respondent Council clearly elected to allow a further (significantly lengthier) period of time for Corbett to provide the requested further information; namely, until 21 October 2016. In the Respondent Council's e-mail of 18 October 2016 and letter of 11 October 2016, it is evident that the Respondent Council (1) decided, initially, to allow a further indeterminate period for the submission of the relevant additional information and (2) decided, by 11 October 2016, to fix a specified end date to this further period (being initially 18 October 2016 and then 21 October 2016). In particular, the Respondent Council's statement "I refer to previous correspondence dated 11 July 2016 and ongoing communication requesting the submission of additional information to facilitate the assessment of the abovementioned application" is sufficient (absent any evidence to the contrary) to confirm proposition (1).
This is not a case where the relevant consent authority has simply been consistently silent after the expiry of a specified period for providing further information and where it is therefore unclear whether the consent authority decided to allow a further period of time. This is a case where the evidence strongly supports the claim that the Respondent Council afforded Corbett with a significant further period of time to provide the requested information. Although mere speculation, the Respondent Council may have decided to allow this further period because the initial specified period of time was a pre-cast, pro forma time period for providing further information, rather than a deliberate time period calibrated to the nature and extent of the required further information. There is certainly no reliable evidence to support any factual claim that the Respondent Council did not grant (or at least purport to grant) a further period of time under cl 54(6)(b).
In making its submissions, the Respondent Council did not rely on any evidence to demonstrate that it made a decision not to allow any such further period of time. Indeed, as outlined above, the Respondent Council's position appeared to be that because the Respondent Council was, under cl 54(6), precluded from allowing such a further period (once the specified period expired), it could not validly do so. Hence, the Respondent Council was cornered into the position of suggesting that its correspondence subsequent to 8 August 2016 amounted to a new request for further information, rather than an extension of the original 11 July 2016 request for information. That position is erroneous and inconsistent with the relevant evidence.
For all of the above reasons, the Court concludes that the Respondent Council, pursuant to cl 54(6)(b), ultimately allowed Corbett until 21 October 2016 to provide the further information specified in the request for further information of 11 July 2016. Accordingly, by dint of cl 109, the clock stopped between 11 July 2016, when the request was made by the Respondent Council, and 18 October 2016, when Corbett provided the requested further information.
As agreed by the Respondent Council, it follows from the above findings that: the proceedings were commenced within the relevant prescribed period; this Court has jurisdiction to hear and dispose of the proceedings; and the Respondent Council's motion must be dismissed.
Given this outcome, it is unnecessary for the Court to determine whether, in the initial request of 11 July 2016, the specified time period of 28 days was reasonable in the circumstances of the development application. Nevertheless, it is appropriate to make some general observations.
There can be no doubt that the inclusion of the word "reasonable" in clause 54(1)(b) is intended to ensure that consent authorities prescribe reasonable periods within which responses are to be prepared and provided when further information is requested. Often the provision of further information will require careful, sometimes time-consuming, preparation.
For "reasonable", logic demands that the specified period is sufficiently workable or feasible so as to provide enough time for the information to be provided after the consent applicant carries out whatever preparatory task is required to assemble the information requested. In any particular case, the determination of what is "reasonable" will primarily be a question of fact and will vary depending upon the subject proposal and, so, the varying sophistication or complexity of the analysis required to provide the further information sought.
Given this interpretation, it is self-evident that a pro forma specification of a set response period, irrespective of the nature of the relevant information requested or the proposed development, may often be inappropriate. Thus, in order to satisfy the requirement to specify a "reasonable period", consent authorities should carefully tailor their requests under clause 54 after making a preliminary assessment of what time would be necessary, and therefore reasonable, in order to enable a consent applicant to respond appropriately.

Costs

The Respondent Council submitted that, if successful on its motion, it would be fair and reasonable for Corbett to be ordered to pay its costs of the proceedings. It reasoned that it should not have been required to make an application to dismiss proceedings that should not have been commenced.
In Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46, at [114], Preston CJ of LEC made the following determination with respect to costs: …Although the motions for summary dismissal are brought in Class 1 proceedings, and usually the Court does not make an order for the payment of costs in Class 1 proceedings, the Court has a discretion to do so if it considers that the making of a costs order is fair and reasonable in the circumstances: Pt 3 r 3.7(2) of the Land and Environment Court Rules 2007. Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include where the proceedings, or a motion in the proceedings, involved a question of law or question of mixed fact or law and the determination of the question in one way was potentially determinative of the proceedings and was preliminary to or otherwise has not involved an evaluation of the merits of the application the subject of the proceedings: r 3.7(3)(a). The motion for summary dismissal clearly falls within this circumstance.
Similarly, I consider that the motion before the Court to dismiss the proceedings as incompetent falls within the above mentioned circumstance. The Respondent Council's motion on a preliminary question of the legal competency of these proceedings has delayed the resolution of these proceedings and caused Corbett to incur unnecessary costs. Considering all of the relevant circumstances, it is fair and reasonable to make an order that the Respondent Council pay Corbett's costs of the motion.

Orders

The Court orders that: 1. Wollondilly Shire Council's Notice of Motion filed 22 August 2017 is dismissed; and 2. Wollondilly Shire Council is to pay Corbett Constructions Pty Ltd's costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2017

(2005) 142 LGERA 373

(2013) 197 LGERA 238

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