Before the Court is a notice of motion filed 27 August 2019 by Syncept Chatham Pty Ltd ('Syncept') seeking leave pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') to commence judicial review proceedings and an order that the hearing of those proceedings be expedited.
By Class 4 summons also filed 27 August 2019, Syncept seeks a declaration that Interim Heritage Order No 6 ('IHO') purportedly made on 1 March 2019 by the Council of the City of Ryde ('Council') pursuant to s 25 of the Heritage Act 1977 (NSW) ('Heritage Act') in respect of Lots 13 and 14 in DP 9166 and known as 68 - 70 Chatham Road, Denistone ('site'), is invalid. Syncept also seeks orders that the IHO be quashed, that Council be restrained from making further interim heritage orders with respect to the site or items of environmental heritage on the site, and costs.
For the reasons that follow, I find that leave should be granted pursuant to r 59.10(2) of the UCPR and that the matter should be set down for hearing on 4 October 2019.
[2]
Background
The background to these proceedings has much in common with related Class 1 merit appeal proceedings between the parties which are set down for hearing before a commissioner of this Court on 27 and 28 November 2019.
For concision, I adopt the background facts which I recently detailed in an interlocutory judgment in the Class 1 proceedings (Syncept Chatham Pty Ltd v Council of the City of Ryde [2019] NSWLEC 115 ('earlier judgment')) determining a notice of motion filed by Syncept on 15 July 2019 seeking an order pursuant to r 28.2 of the UCPR that a separate question be determined prior to the final hearing of those Class 1 proceedings ('separate question motion'). In the earlier judgment at [6]-[13], I summarised the background to the proceedings as follows:
[6] [These Class 1] proceedings concern a property comprising two lots located on the western side of Chatham Road, Denistone, between Simla Road to the south and Burmah Road to the north. The site currently contains two single-storey detached style dwelling houses located on the separate allotments. Each dwelling is of masonry construction with a hipped roof. Insofar as it is relevant, Council considers that each dwelling has heritage significance including a number of distinguishing features which define them as belonging to the early 20th century interwar period. These features can be specifically attributed to the interwar Californian bungalow architectural style. The site is directly opposite Darvall Park, which is an item of local environmental heritage significance pursuant to Sch 5 of the Ryde Local Environmental Plan 2014 ('RLEP').
[7] Although not the subject of the present appeal, on 3 December 2018, a development application was submitted to Council for the redevelopment of the lots at the site, seeking consent for the demolition of existing structures and the construction of a part single/part two storey multi dwelling housing development. That development application remains undetermined, however, subsequent to that development application being lodged, concerns were expressed by various parties regarding the heritage significance of the site. Of some relevance to the motion before me is that on 26 February 2019, Council resolved to place an IHO over the site and at the same time resolved to prepare a planning proposal to list a number of properties on Chatham Road (including the site) as heritage conservation areas. On 27 February 2019, an IHO under s 25 of the Heritage Act 1977 (NSW) ('Heritage Act') was made, however, the street address in the IHO that was gazetted did not correspond to the street address of the site. The IHO referred to the correct folio identifiers, being Lots 13 and 14 in DP 9166, but it referred to the address as 68 - 70 Denistone Road (emphasis added). That IHO was gazetted on 28 February 2019. Council maintains that it incorrectly identified the site.
[8] The IHO was revoked by Council due to what was described by Council as an "error in the description of the property address", being the inclusion of the word "Denistone" instead of "Chatham". On 1 March 2019, the revocation was published in New South Wales Government Gazette, No 21, and a further IHO was published in the gazette which identified the site correctly.
[9] On 22 March 2019, these Class 1 proceedings were commenced under s 30(1) of the Heritage Act, appealing against the making of the IHO made by Council on 1 March 2019 in respect of the site. The Class 1 proceedings sought the following orders:
1. The appeal is upheld.
2. The Interim Heritage Order made 1 March 2019 in relation to 68 70 Chatham Road, Denistone is revoked.
[10] On 23 April 2019, Syncept filed a statement of facts and contentions ('SOFAC'). There were 10 contentions raised by Syncept, nine of which raised heritage (merit) matters. Relevant to the motion, the first contention was styled "The Council had no power to make the IHO" and provided that Council lacked the power to make what was referred to as the "Second IHO", being the IHO gazetted on 1 March 2019. The first contention included the following particulars:
(a) The power to make Interim Heritage Orders is vested in the Minister (s. 24 Heritage Act).
(b) The Minister may authorise Council's to make Interim Heritage Orders (s. 25 Heritage Act).
(c) The authorisation given to the respondent which is currently in force, was given by the (then) Minister for Heritage, Robyn Parker M.P on 22 April 2013 ('the Ministerial Order').
(d) The Ministerial Order was granted subject to conditions identified in schedule 2.
(e) Schedule 2 provides:
"(2) A council must not make an IHO where:
…
(c) the council has previously placed an interim heritage order on the item.
(f) An IHO was made on 27 February 2019 and published in NSW Government Gazette No. 20 on 28 February 2019. The first IHO applied to the site and identified the land to which it applied by its legal description in words, and on a map.
(g) The first IHO was revoked on 1 March 2019.
(h) The Second IHO, the subject of the appeal was placed on the site on 1 March 2019 and published in NSW Government Gazette No. 21 on 1 March 2019.
(i) The Council could not lawfully exercise the power to make the Second IHO, being a circumstance expressly precluded by the terms of the authorisation given by the Minister.
[11] The particulars included in contention 1 raised the fact that the Ministerial Order granted authorisation to Council to make an IHO, subject to conditions identified in Sch 2. Schedule 2 contained a clause precluding a council from making an IHO if council had previously placed an IHO on the item.
[12] Council's statement of facts and contentions in reply was filed on 3 July 2019 and responded to contention 1 by stating that it was due to an "administrative error" that the first IHO did not correctly identify the site. As that IHO did not correctly identify the site, Council contends that it did not apply to the site or have effect as an IHO. Council notes that the IHO was in place for approximately 24 hours. In those circumstances, Council says that it lawfully exercised the power to make the second IHO on the basis that the first IHO did not clearly or correctly identify the site. Accordingly, Council submits that it was not precluded from making an IHO on the site.
[13] In April 2019, the appeal was set down for hearing on 27 and 28 November 2019.
In summary, during the hearing of the separate question motion which sought a separate determination of whether the IHO issued by Council on 1 March 2019 was "valid", Council, in opposing the separate question motion, raised an argument that this Court did not have power to grant the relief that was sought in the separate question motion. That is, Council said that the Court could not determine whether the IHO issued by Council on 1 March 2019 was valid in Class 1 proceedings.
I dismissed the motion based upon my finding that there would not be a material saving in terms of costs or time by ordering the determination of the separate question. Prior to the substantive hearing of the Class 1 proceedings, I expressed some doubt as to whether, in any event, the Court had jurisdiction in Class 1 proceedings heard by a commissioner to give what was in effect declaratory type of relief sought in the separate question.
As a result of the doubt as to whether the Court had such jurisdiction to grant the relief sought in the Class 1 proceedings, Syncept has sought to commence these Class 4 proceedings seeking judicial review. Syncept has filed the motion now before the Court on the basis that leave is required to commence judicial review proceedings pursuant to r 59.10(2) of the UCPR as more than three months has passed since the determination to make the IHO on 1 March 2019. Syncept also seeks an order that the hearing be expedited.
Council opposes the relief sought in the motion. At hearing on 4 September 2019, Mr C McEwen of senior counsel with Mr J Farrell of counsel appeared for Syncept and Mr Farland of counsel appeared for Council. The Court received evidence as well as detailed written and oral submissions.
[3]
Evidence
Syncept reads the affidavit of Catherine Marginson affirmed 27 August 2019. Ms Marginson sets out the background facts of the matter and addresses a number of issues responding to r 59.10(3) of the UCPR.
Council reads the affidavits of Elizabeth Mary Coad affirmed 1 August 2019 and 3 September 2019.
[4]
Applicable legal principles
Pursuant to r 59.10(1) of the UCPR, proceedings for judicial review of a decision must be commenced within three months from the date of that decision. However, under r 59.10(2) of the UCPR, the Court may, at any time, extend time for commencing proceedings fixed by subr (1) and, in exercising that discretion is to take into account such factors as are relevant in the circumstances of the particular case, including the following factors in r 59.10(3):
59.10 Time for commencing proceedings
...
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:
(a) any particular interest of the plaintiff in challenging the decision,
(b) 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,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
...
The factors to be considered in determining whether to extend time for commencing proceedings for judicial review include the four factors in r 59.10(3), as well as the length of delay, the reasons for delay and whether the applicant has a fairly arguable case: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9], Dyason v Butterworth [2015] NSWCA 52 at [65] and Bankstown City Council v Ramahi [2015] NSWLEC 74 at [74].
The principles to be applied in extending time are well understood and are conveniently summarised by Pepper J in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 ('Turgeman') at [34] as follows:
…
(a) the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour;
(b) the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include:
(i) the length of the delay;
(ii) the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and
(iii) whether the applicant has a fairly arguable case;
(c) the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise;
(d) the question of potential prejudice to a party caused by the delay is a significant consideration;
(e) the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced;
(f) in considering r 59.10 of the UCPR, it should be borne in mind that a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about (Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7] and Moorebank Recyclers at [14]);
(g) in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay (Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [56], that is, delay caused by "deliberate inaction" (IPM at [82]) or "an intentional decision to delay" (Moorebank Recyclers at [52]), and delay which is merely the result of a "bona fide mistake or blunder" (Tomko at [56]), mere "oversight" (IPM at [82]), or caused by seeking to clarify rights and trying to solve the matter without litigation (Yves Deyris at [13]); and
(h) there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case. It is not necessary nor appropriate to demonstrate in any detail the prospects of success (Tomko at [58]).
[5]
Syncept's position
In addressing the factors in r 59.10(3) of the UCPR, Syncept directs the Court to the evidence of Ms Marginson who deposes that Syncept has a particular interest in challenging the IHO because first, the validity of the IHO is a matter of significance in relation to the Class 1 proceedings which are listed for hearing on 27 and 28 November 2019; second, the IHO places a significant restriction on Syncept's ability to develop or deal with its land because s 57 of the Heritage Act provides that an IHO prevents alteration to, demolition of, or the carrying out of any development on the site the subject of an IHO; third, these Class 4 proceedings will be dispositive of the Class 1 proceedings should the IHO be found to be invalid; and the progression of Council's planning proposal is a serious ongoing burden on Syncept.
Syncept submits that as the public exhibition of the planning proposal is imminent, it suffers further disadvantage because of the continuing existence of the IHO. Syncept loses the opportunity to obtain a complying development certificate for demolition of the existing buildings on the site if it is listed as being within a draft heritage conservation area pursuant to cl 7.1 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (which will be the case if the planning proposal is completed/made).
Syncept further submits that in relation to the time at which it first became aware of the decision it seeks to challenge, although this was shortly after the IHO was issued, it commenced Class 1 proceedings under the belief that those proceedings were appropriate to deal with its concerns; it squarely raised the issue of validity of the IHO in its Statement of Facts and Contentions filed 23 April 2019; Council did not initially raise a concern in relation to the jurisdiction of the Court to grant relief to which Syncept considered it was seeking; and Council's "jurisdictional" concern was raised for the first time in Council's written submissions in relation to the separate question motion on 13 August 2019. Syncept contends that in those circumstances, the present motion (and Class 4 summons) was filed promptly on 27 August 2019.
In relation to relevant public interest, Syncept submits that there is public interest in the correction of unlawful decision-making and there is public interest in the reliable and predictable public administration of the law.
In summary, Syncept submits first, the length of the delay is not significant (at least compared to a number of other decisions of the Court); second, the reasons for delay have been explained in the evidence of Ms Marginson; third, there is a properly arguable case; and fourth, it has not "intentionally" delayed the bringing of Class 4 proceedings.
[6]
Council's position
Council makes five primary submissions that leave should not be granted to Syncept to commence Class 4 proceedings out of time.
First, Syncept chose to exercise its right of appeal against the imposition of the IHO when it filed its Class 1 summons on 22 March 2019. Syncept should be bound by that choice in circumstances where its right of appeal (in Class 1 proceedings) was available under s 30 of the Heritage Act and had to be exercised within 28 days of the making of the IHO. This was a deliberate choice and not the result of some misguided belief as to the effectiveness of the Class 1 proceedings.
Second, the present motion is an abuse of process because the Court (in the earlier judgment) rejected Syncept's application for a separate legal question as to the validity of the IHO. As such, the present motion is a second interlocutory application without fresh evidence and therefore an abuse of process because the processes of the Court are not being used for a proper purpose. In effect, Council submits that Syncept seeks the re-agitation of the arguments previously considered by the Court where there has been no relevant change in circumstances.
Third, the time for commencing judicial review proceedings lapsed three months after the gazettal of the IHO on 1 March 2019, namely on 1 June 2019, some three months ago. There is a strong public interest in requiring proceedings to be brought within a reasonable time so that the proper business of government and the reasonable interests of effected parties are not unjustly prejudiced. Council submits that this is particularly important when, unlike proceedings relating to an individual development consent, the existence of an IHO serves a significant public benefit by preserving a property (such as those the subject of these proceedings) while Council is preparing a planning proposal which will offer heritage protection.
Fourth, the claim for judicial review is without merit because it seeks to review a decision (issuing the IHO) which followed the use of an incorrect address. The use of the incorrect address did not itself prejudice Syncept in any way or involve a denial of natural justice. It was an "administrative error" and "did no mischief to the applicant".
Fifth, the dictates of justice are not met because the summons for judicial review was filed six months after the original decision, five months after the Class 1 merit review proceedings were commenced and Syncept failed to obtain leave to agitate a separate question raising the validity of the IHO. In those circumstances, permitting judicial review proceedings (out of time) would not satisfy the dictates of justice.
[7]
Consideration
Having considered the careful and detailed submissions made by each of the parties, I am of the view that it is appropriate to grant leave pursuant to r 59.10(2) of the UCPR for Syncept to commence Class 4 proceedings out of time. In the circumstances, I also find it appropriate to grant expedition by setting the matter down for final hearing on 4 October 2019 (a date that I have been informed is convenient to the parties). My reasons follow.
First, I find that Syncept has a particular interest in challenging the decision of Council to issue the IHO primarily for the reason articulated in Syncept's submissions summarised above.
Second, I do not consider the delay (of three months) to be significant in the circumstances. I accept that when Syncept became aware that the relief it now seeks would not otherwise have been considered and dealt with in the Class 1 proceedings (accepting some doubt as to the Court's ability to grant the relief now sought in those proceedings), it sought to have the validity argument dealt with separately in the Class 1 proceedings, albeit possibly being an attempt to protect its own position in relation to Council's progression of the planning proposal. However, given that there has been some doubt expressed as to this Court's ability to grant relief that is effectively declaratory relief in Class 1 proceedings, I consider that Syncept's delay in commencing judicial review proceedings is understandable and not unreasonable.
Despite the above, I am conscious that the IHO was issued by Council on 1 March 2019 as a result of Council's genuine concern in relation to the mistake in the identification of the street name of the site. This led to Council revoking an earlier interim heritage order and issuing the IHO now under challenge. Further, I find Council's conduct in progressing the planning proposal to be both legitimate and understandable.
Whether the IHO is invalid (a matter about which I express no opinion) is a matter that goes to the jurisdiction of the Court to entertain and decide the Class 1 proceedings. Therefore, in circumstances where there is an explanation for the delay and noting that Syncept commenced Class 1 proceedings within the timeframe permitted by s 30 of the Heritage Act, I do not accept Council's submission that leave should be refused due to the "choice" made by Syncept when it commenced Class 1 proceedings. In its contentions in the Class 1 proceedings, Syncept raised its concern in relation to the manner in which the IHO had been made (as its primary contention). Even if the choice to commence Class 1 proceedings (to determine the validity of the IHO) was mistaken, it was understandable.
Further, I do not consider that Syncept's conduct amounts to an abuse of process as submitted by Council simply because Syncept sought a separate legal question in the separate question motion. I consider that that motion for the separate question related to (although not strictly adopting the same words) the issue (and facts) raised in contention 1 of Syncept's contentions. That is, it raised as a separate question the circumstances surrounding the issuance of the IHO. This action should not be determinative of the present motion in circumstances where the primary reason for rejecting the separate question was that there was no material saving in terms of costs or time by ordering it, although I note that there was a concern as to the nature of the relief that was sought in the separate question (as opposed to the manner in which the primary contention in the Class 1 proceedings was articulated).
In summary, although I do not express a considered view as to the prospects of success in these proceedings, I consider that Syncept's case is fairly arguable. Further, I consider that the delay in commencing Class 4 proceedings is relatively minor and explicable in the circumstances. While I consider that there is some prejudice to Council, I do not find that it is sufficient to militate against granting leave pursuant to r 59.10(2) of the UCPR.
[8]
Expedition
As noted above, Syncept seeks expedition of the Class 4 proceedings if an order is made pursuant to r 59.10(2) of the UCPR. The principles relating to the granting of expedition are well known and are not repeated: Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd [2014] NSWLEC 31; (2014) 205 LGERA 119 at [18].
Given my findings above, I consider it appropriate that the matter proceed and be determined prior to the Class 1 hearing on 27 and 28 November 2019. As the parties indicated that the final hearing would occupy less than one day, an estimate with which I agree, and noting that there is an available date in the Court's calendar (4 October 2019) which is convenient to both parties, balancing the interests of both parties and taking into account the interests of justice, I consider it appropriate that the hearing be set down on 4 October 2019.
[9]
Orders
The orders of the Court are:
1. The time to commence these Class 4 proceedings is extended to the date of filing the summons on 27 August 2019.
2. The Class 4 proceedings are set down for final hearing on 4 October 2019.
3. The parties are directed to agree to an appropriate timetable for the preparation for the filing and service of any evidence and submissions on or before 10 September 2019.
4. The matter is listed for further directions at 9.30am on 11 September 2019 if agreement is unable to be reached.
5. Costs are reserved.
[10]
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 September 2019