Simmons v Marrickville Council; Kababy Pty Limited v Marrickville Council

STATUTORY CONTEXT 3Section 97(1) of the EPA Act provides: 97 Appeal by applicant-development applications (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after: (a) the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or (b) the date on which that application is taken to have been determined under section 82 (1). 4Section 74(1)(a) of the Land and Environment Court Act 1979 (LEC Act) provides: 74 Rules (1) The Chief Judge and any 2 other Judges may make rules for or with respect to: (a) the procedure (including the method of pleading) and the practice to be followed in the Court in any proceedings (including the procedure and practice to be followed in the offices of the Court) and any matters incidental to, or relating to, any such procedure or practice, including the manner and time of making any application or appeal which under this or any other Act or Commonwealth Act is to be made to the Court, 5Rules 7.1, 7.3 and 7.4 of the LECR provide: 7.1 Time for appeal (cf Land and Environment Court Rules 1996, Part 17, rule 1) (1) A person may commence proceedings in relation to an appeal, objection or reference to the Court: (a) except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises, or (b) in the case of an appeal against the refusal of a claim under section 36 of the Aboriginal Land Rights Act 1983, at any time within 4 months after the refusal. (2) This rule does not apply if the time within which an appeal, objection or reference may be made to the Court is expressly provided for by or under the Act or instrument that confers the right of appeal, objection or reference. 7.3 Extension and abridgment of time (cf UCPR rule 1.12) (1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 7.4 Fixing times (cf UCPR rule 1.13) If no time is fixed by these rules, or by any judgment or order of the Court, for the doing of any thing in or in connection with any proceedings, the Court may, by order, fix the time within which the thing is to be done.

CONSIDERATION 6In summary, the applicants submit that r 7.4 empowers the Court to extend the time prescribed by s 97(1) of the EPA Act because: (a)section 74(1)(a) of the LEC Act expressly allows the Court to make rules relating to the time of making any appeal under any other Act to the Court; (b)section 97(1) of the EPA Act is such a provision that allows planning appeals to be made to the Court; (c)rule 7.4 of the LECR allows the Court to fix the time for "the doing of any thing...in connection with any proceedings"; (d)the filing of a planning appeal is one of the many things in connection with proceedings that fall within r 7.4. 7I do not accept the applicants' submission. 8Hitherto it appears to have been settled that there was no power under this Court's rules to extend a limitation period for appeals to the Court, albeit there had been no express focus on whether r 7.4 might provide that power: Chen v Virgona [2008] NSWLEC 281 at [23] - [26] per Preston CJ. The conclusion in Chen was based on the then equivalent of rr 7.1(1)(a) and 7.3. The reasoning in Chen as applied to the present case is as follows. 9The EPA Act does not grant the Court power to extend the time period for an appeal prescribed under s 97(1). The LECR do contain a provision fixing the time for an appeal (r 7.1(1)(a)) and a provision allowing the Court to extend any time fixed by the rules (r 7.3). However, the rule fixing the time for an appeal does not apply if the time within which an appeal may be made to the Court is expressly provided for by or under the Act that confers the right of appeal (r 7.1(2)). In this case, the time within which an appeal to the Court may be made is expressly provided for by s 97(1) of the EPA Act, which also confers the right of appeal. Hence r 7.1 of the LECR, which fixes a time for appeal, does not apply. As the time is not fixed by the LECR, the Court's other power to extend time to appeal fixed by the rules (under r 7.3) also does not apply. Rule 50.3(1)(a) and (c) of the Uniform civil Procedure Rules 2005 (UCPR) also specifies a period within which an appeal may be lodged and allows the Court to extend that time. However, those provisions are subject to any other Act that makes provision to the contrary. Therefore, the power to extend time under r 50.3(1)(c) is not available to extend the time prescribed by s 97(1) of the EPA Act. 10I turn to the question in the present case: does r 7.4 of the LECR empower the Court to extend the time limit for appealing to this Court in s 97(1) of the EPA Act? In my opinion, it does not. 11A right of appeal is a creature of statute. In Re Western Australia v Wardley Australia Ltd [1991] FCA 314 at [72], 30 FCR 245 at 266 it was held that: A rule-making power may not be relied upon as authorising variation of limitation periods prescribed by statute, except where the power to do so has been conferred by the legislature in express terms. 12In my opinion, s 74 of the LEC Act does not expressly confer power to make rules of court varying the time periods prescribed by statute for making an appeal. Nor does it do so implicitly. Thus if r 7.4 of the LECR did empower the Court to do this (which I do not accept), it would be invalid as beyond power. However, r 7.4 is capable of being construed, and therefore must be construed, as operating to the full extent of, but so as not to exceed, the power conferred under s 74 of the LEC Act under which it was made: s 32(2)(a) Interpretation Act 1987. Section 74 does empower the making of rules to fix a time for making an appeal where that time is not prescribed by statute: r 7.1 of the LECR is an example of such a rule. 13LECR 7.4 is in identical terms to UCPR 1.13. It has never previously been suggested, so far as I am aware, that either rule empowers the Court to vary a statutory time limit for commencing an appeal to the Court. 14In my opinion, r 7.4 of the LECR does not empower the Court to vary a statutory time limit for commencing appeals. Insofar as the LECR have anything to say in relation to time for appealing and extension of such time, rr 7.1 and 7.3 cover the field. In my view, r 7.4 is concerned with fixing times within which something is to be done in or in connection with proceedings that have been validly commenced. Proceedings that have not been commenced within a time prescribed by statute have not been validly commenced. The limitation period in s 97(1) of the EPA Act presents a statutory barrier to an appeal; to this barrier, reference to the powers of the Court under the LECR provide no answer. 15For these reasons, the applicants' notices of motion must be dismissed. It follows that the appeals are incompetent and must also be dismissed.

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