Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design

The Council Purportedly Grants Consent for a Residential Flat Building Upon Review of an Earlier Determination

1. On 22 February 2012 the Council resolved to adopt the Community Engagement and Notification of Development and Planning Proposals Policy 2.4 ("the Notification Policy"). Section 5 c of the Notification Policy relevantly provides that: c. Reviews A Section 82A review is a request to have Council reconsider either a condition(s) of consent or reconsider the refusal of an application. Section 82A applications are notified in accordance with the Act and Regulations.
2. On 20 July 2016 Uri lodged with the Council DA 16/0618 ("the original DA") seeking consent for the erection of a residential apartment building on the land. Kangaloon is the owner of the land.
3. On 28 July 2016 the original DA was referred by the Council to RMS. The original DA was also referred by the Council to Water NSW for concurrence under cl 11 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011.
4. On 10 August 2016 the Council sent out a letter of Notification of Proposed Development in accordance with the Council's Notification Policy, with the notification period stated to be between 10 August 2016 and 9 September 2016.
5. On 29 August 2016 the Council re-issued letters of notification due to an error in the Council's DA tracking website and extended the notification period to 16 September 2018.
6. The original DA was publicly notified by the Council. There were over 20 objections to it.
7. On 4 April 2017 the Group Manager, Planning Development and Regulatory Services, as delegate of the Council, Mr Wilton, determined to refuse consent to the original DA by way of a Notice of Determination.
8. On 11 May 2017 an application pursuant to the former s 82A of the EPAA for review of the decision to refuse consent to the original DA was lodged with the Council (DA 16/0681.01) ("review application").
9. On the same day, the review application was allocated to a contract town planner, Mr Wayne McDonald, for assessment.
10. On 14 June 2017 the Council received and noted a report that the review application would be brought for determination by the full Council. The review application was not publicly notified.
11. But on 14 September 2017 Mr McDonald purported to determine the review application himself by granting the consent subject to conditions.
12. On 15 September 2017 the Notice of Determination of the grant of the consent was issued to Uri.
13. On 9 November 2017 a letter was received from Mr T Lunham, advising that there had been no notification of the Notice of Determination and requesting that the consent be cancelled. The letter was forwarded to Mr McDonald for reply. None was forthcoming.
14. On 14 December 2017 representations on behalf of Mr Lunham from the Hon Jai Rowell MP were received by the Council's General Manager with respect to the consent.
15. Accordingly, it was not until 14 December 2017 that Mr Wilton was first made aware of the purported grant of the development consent, that is, more than three months after the decision to grant the consent was made.
16. Between 22 December 2017 and 2 January 2018 the Council's offices were closed for the holiday period.
17. Between 22 December 2017 and 15 January 2018, Mr Wilton investigated the Council's records and sought legal advice as to the lawfulness of the decision. Delay in completing this process was occasioned by the holiday period.
18. Between 17 January 2018 and 6 April 2018, the following steps were taken by the Council in an attempt to resolve the matter between the parties absent litigation: 1. 17 January 2018 - a Notice of Proposed Revocation of Development Consent was sent to Uri; 2. 23 January 2018 - representations were received by the Council and a request for an extension of time was made; 3. 24 January 2018 - the Council granted the extension of time; 4. 9 February 2018 - the Council received a letter from Mr Keith Bagley, solicitor for Kangaloon, demanding that the Council withdraw the Notice of Proposed Revocation of Development Consent; 5. 14 February 2018 - Kangaloon commenced Class 4 proceedings in this Court to restrain any revocation of the consent; 6. 27 February 2018 - a letter from Shaw Reynolds Lawyers was sent to Mr Bagley inviting the respondents to surrender the development consent; 7. 21 March 2018 - consent orders to discontinue Kangaloon's summons on the basis of an undertaking by the Council that it would not revoke the consent under s 4.57 of the EPAA were made by the Court; and 8. 29 March 2018 - a letter from Shaw Reynolds Lawyers was sent to Mr Bagley seeking confirmation that Kangaloon would surrender the consent by 5 April 2018.
19. On 6 August 2018 an undertaking was given by Kangaloon not to act on the consent without giving the Council 14 days' notice in writing. The consent was not surrendered.

The Principles to be Applied in Extending Time for Commencing Judicial Review Proceedings

1. Rule 59.10 of the UCPR fixes a three month time limit for commencing proceedings for judicial review of a decision from the date of that decision. It applies to judicial review proceedings in Class 4 of this Court's jurisdiction (r 59.1(1)(b)). The rule provides as follows: 59.10 Time for Commencing Proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (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. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
2. The Court has a discretion, exercisable at any time, to extend the time for commencing proceedings (r 59.10(2)). In exercising the discretion to extend the time, the Court "should" take account of such factors as are relevant in the circumstances of the particular case, including those listed in r 59.10(3).
3. However, r 59.10 does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings (r 59.10(4)), or to any proceedings in which the setting aside of a decision is not required (r 59.10(5)).
4. For the purposes of r 59.10(4), there will only be a statutory limitation period for commencing proceedings for judicial review if, and when, public notice of the decision to grant development consent is given for the purposes of s 101 of the EPAA (now s 4.59). In this case, because no public notice was given for the purposes of s 101 of the EPAA, that provision does not operate to establish a three month limitation period for commencing proceedings for judicial review and the exception in r 59.10(4) does not apply.
5. The summons seeks a declaration that the development consent is "invalid and of no effect". The making of such a declaration has the effect of setting aside the development consent and the exception in r 59.10(5) also does not apply.
6. Accordingly, pursuant to r 59.10(2) the Council therefore sought an order to extend the time for commencing these proceedings to 6 April 2018.
7. The principles relevant to an application for leave under r 59.10(2) of the UCPR have been stated in a number of recent decisions in this Court (Temelkovski v Wright [2016] NSWLEC 112; (2016) 218 LGERA 381; Yves Deyris v Elizabeth Jones [2017] NSWLEC 165; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97; Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 104; (2016) 217 LGERA 453; Bankstown City Council v Ramahi [2015] NSWLEC 74 and Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26; (2016) 216 LGERA 252).
8. They may be summarised as follows: 1. the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour; 2. 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: 1. (i) the length of the delay; 2. (ii) the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and 3. whether the applicant has a fairly arguable case; 1. 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; 2. the question of potential prejudice to a party caused by the delay is a significant consideration; 3. 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; 4. 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]); 5. 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 6. 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]).

The Council's Interest in Challenging the Decision

1. In Ramahi Preston J stated (at [75]): 75. The Council has an interest in challenging the decisions to issue the complying development certificates. The Council is the local government authority with responsibility for upholding and enforcing the EPA Act and environmental planning instruments made under it, including ensuring that development is carried out in accordance with the EPA Act. If an environmental planning instrument provides that development is complying development only if it complies with predetermined development standards, and may only be carried out in accordance with a complying development certificate, the Council has a responsibility to ensure that any development within its local government area complies with the applicable development standards and is carried out in accordance with a valid complying development certificate.
2. I accept that the Council has both an interest and responsibility in challenging the decision to grant the consent in circumstances where: 1. the Council has a responsibility to uphold and enforce the EPAA. In particular, to ensure that the objective of the EPAA to provide an increased opportunity for community participation in environmental planning and assessment is met. In this case, the review application was not publicly notified even though there were 20 objections to the original DA refused by the Council; 2. the responsibility and interest was consistent with the Council's own policy as contained in the Notification Policy; 3. Mr Wilton deposed to the importance of the land to Bowral and the consequential importance to both the Council and the local community of making sure that decisions with respect to the land are lawfully made and take into account community views; and 4. Mr Wilton deposed to the fact that there was a requirement to refer the review application to Water NSW and the RMS, which did not occur. As stated above, the obligation to notify Water NSW fell under cl 11 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. The obligation to notify RMS was due to the fact that the proposed development connects with classified roads.

Possible Prejudice Caused by Delay

1. In Ramahi Preston J clarified the "passage of time" to which the prejudice in r 59(10)(3)(b) relates (at [86]): 86. Secondly, the prejudice with which r 59.10(3)(b) is primarily concerned is the prejudice that is caused by the Council not commencing proceedings for judicial review of the decisions to issue the complying development certificates within the three month period from the date of the decisions. This is the passage of time to which the subrule refers. The relevant comparison is between the expenses that Ms Ramahi is likely to incur if the Court were to extend the time for the Council to commence the proceedings and the expenses that she would have been likely to incur if the Council had commenced the proceedings within the three month period. For example, if Ms Ramahi carried out further building work in the period between those dates and had not been given notice of the potential invalidity of the complying development certificates and the development not being complying development, the additional expenses that might be incurred in demolishing the further building work that was done in this period might be prejudice caused by the passage of time. There is no evidence of prejudice to Uri or Kangaloon before the Court.
2. There is no evidence of prejudice to Uri or Kangaloon presently before the Court.

Length of the Delay

1. The three month period under r 59.10 of the UCPR expired on 17 December 2017, whereas the Council filed the summons on 6 April 2018, more than three months after the period prescribed by r 59(10)(1) had elapsed. It is therefore arguable that there is prejudice caused by the passage of time insofar as Kangaloon may seek to take steps to act upon the consent and its ability to pursue its valuable rights under the consent has been delayed. Again, however, there was no evidence of any such prejudice before the Court.
2. While it is to be accepted that each case must turn on its particular facts, guidance as to the exercise of discretion with respect to the length of delay can be gleaned from recent decisions of this Court. For example: 1. in Ramahi the delay was approximately nine months for the original complying development certificate and six and a half months for the amended complying development certificate, but the Court nevertheless permitted an extension of time within which to commence proceedings; 2. in Yves Deyris the Court permitted an extension of time 11 months after the consent was granted; and 3. in Moorebank Recyclers the Court permitted an extension of time of approximately six months.
3. The Council submitted that delay of over three months in this case was not undue and was adequately explained by the Council's evidence. I agree.

Reasons for the Delay

1. It could be argued that the Council was aware, given that it was the decision-maker, of the decision on the date upon which it was made, namely, 17 September 2017. That the Council did not have better systems and processes in place to manage and communicate its decision-making concerning development applications and/or the grant of development consents should not result in detriment to third parties.
2. The Court has approached the analysis of the reasons for the delay in commencing the proceedings by considering whether the actions which caused the delay were "not unreasonable" in the circumstances of the case. A state of perfection is not required.
3. Importantly, when considering delay the Court has frequently analysed the unreasonableness of the delay on the basis of intention. The Court has made a distinction between "intentional or contumelious" delay (that is, delay caused by "deliberate inaction" or an intentional decision to delay), as opposed to delay which is merely the result of a "bona fide mistake or blunder", mere "oversight" or delays caused by seeking to clarify rights and trying to solve the matter without litigation.
4. Thus in Ramahi Preston J held that (at [97]): 97. The Council's actions in trying to resolve the problems by requests and letters of demand to Ms Ramahi and the builder and the certifier, rather than immediately commencing court proceedings, was not unreasonable.
5. In this case, I accept that there was no evidence of deliberate inaction on the part of the Council prior to the expiration of the three month period because: 1. Mr Wilton deposed that the decision of Mr McDonald only came to his attention on 14 December 2017; 2. there was no reason to inquire as to whether the decision was made by Mr McDonald. Mr McDonald did not have delegation to determine the review application and Mr Wilton authorised the report to the Council for the review application to be determined by the full Council; 3. Mr McDonald did not make Mr Wilton aware of the decision to grant consent and Mr Wilton only became aware of the decision after being contacted by the local member; and 4. the complaint about the decision from Mr Lunham was directed specifically to Mr McDonald and was not brought to Mr Wilton's attention until 14 December 2017.
6. The Council submits that the explanation of the delay in commencing the proceedings is not unreasonable in all the circumstances. First, the Council's actions in investigating the making of the decision before commencing proceedings were not unreasonable and unavoidable delay in this process was caused by the holiday period (which coincided with Mr Wilton being made aware of the decision).
7. Second, the Council's actions in trying to resolve the matter without the need for litigation were not unreasonable and the delay caused by that process was not undue because: 1. on 17 January 2018 Mr Wilton notified the respondents of the reasons why the consent was invalid and gave a reasonable timeframe for the respondents to provide submissions with respect to the Council's proposed action to revoke the consent; 2. from 15 February 2018 the Council had to respond to Class 4 proceedings instituted by Kangaloon with respect to the Council's proposed action to revoke the consent; 3. the Council instructed its legal representatives on 15 February 2018 to request that the consent be surrendered and in the absence of such surrender to institute proceedings; 4. between 27 February 2018 and 6 April 2018 there was correspondence between the legal representatives of the parties attempting to resolve the matter absent litigation. The Council's legal representatives requested the respondents on three occasions to surrender the impugned consent and to provide an undertaking not to carry out any works relying on the consent in order to avoid the costs of legal proceedings; 5. during this period the Council's legal representatives also responded on a number of occasions to the respondents' legal representative's requests for further particulars of the alleged invalidity, rather than immediately commencing proceedings, with a view to avoiding litigation; and 6. on 6 April 2018, once Council's legal representatives were provided with the requested undertaking not to carry out development but not the requested surrender of the consent, the Council filed the summons.
8. I accept the Council's submissions in this regard and find that the delay was not unreasonable in all the circumstances.

Public Interest

1. It should be reiterated that that there is a strong public interest in requiring that proceedings are brought within a reasonable time so that the proper business of government and the reasonable interests of affected parties are not unjustly prejudiced.
2. But there is also a clear public interest in permitting an extension of time to commence proceedings in the circumstances of this application. First, there is a public interest in upholding and enforcing the statutory scheme under the EPAA relating to the review of determinations to refuse development consent. The challenges raised in the summons relate both to the power to make the decision under the statutory scheme and the transparency in, and procedural fairness to, the community in terms of the right to provide a submission prior to the approval of the review application.
3. Second, the Court has repeatedly held that compliance with mandatory statutory requirements for notification and advertisement of development is in the public interest.
4. Third, according to the affidavit evidence relied upon by the Council, the land was considered by it to be an important gateway site for Bowral and in this context, there is a clear public interest in ensuring that any determination to grant development consent is the subject of proper process and the consideration of all relevant matters, including any submissions by the community.
5. Fourth, the Court has found that the public interest in upholding and enforcing the statutory scheme for approvals under the EPAA outweighs the public interest in certainty and the finality of a decision to grant an approval.

Fairly Arguable Case

1. On an application for leave pursuant to r 59.10 of the UCPR it is sufficient for the Council to demonstrate that it has a fairly arguable case in the substantive proceedings.
2. The Council submitted that the strength of its case was a significant factor in granting the extension of time. It noted that each ground of relief was clearly based on statutory preconditions to the exercise of power and were not merely a matter of evidence.
3. Turning to the first ground of challenge, a purported exercise of the statutory power to grant development consent has no validity where a condition for the exercise of the power has not been fulfilled.
4. The preconditions to the exercise of the power to make a decision on review under (the then) s 82A(6) of the EPAA are clearly stated: (6) If the council reviews the determination, the review must be made by: (a) if the determination was made by a delegate of the council - the council or another delegate of the council who is not subordinate to the delegate who made the determination,
5. In this case, the determination for refusal of DA 16/068.01 was supposed to be made by the Group Manager, Planning Development and Regulatory Services. Mr McDonald, acting as a Senior Town Planner, was subordinate to the position of Group Manager. Therefore, the Council has at least a fairly arguable case that the decision of Mr McDonald to purportedly approve the review application was in breach of s 82A(6) of the EPAA.
6. As to the second ground of challenge, to be valid, an exercise of delegated power must be made within the scope of the delegation. A council delegate must act within the delegation and not in excess of it. The conditions on the exercise of a delegated power must be met or the relevant decision will be invalid.
7. In this case, the Council has at least a fairly arguable case that the decision was beyond power because the decision-maker did not have delegated power to determine the review application in circumstances where: 1. the review application had been nominated to be determined by the full Council and not under delegated authority; 2. there was no delegation to vary any Council resolution regarding the review application; and 3. there could be no delegation to determine the review application due to the number of objections received to the original DA, that is, greater than 10.
8. As to the third ground of challenge, it is well established that the failure to publicly notify an application in accordance with the statutory scheme in the EPAA is a jurisdictional error which results in the invalidity of a decision to grant consent.
9. Section 82A(4) of the EPAA provides that: (4) The council may review the determination if: (a) it has notified the request for re view in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and (b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be.
10. Clause 113A(2) of the Environmental Planning and Assessment Regulation 2000 requires that a review application must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised.
11. The original DA was notified by letter in accordance with the Council's Notification Policy to over 60 properties in the proximity of the proposed development. As stated above, over 20 objections were received.
12. The Council therefore has a fairly arguable case that the decision was beyond power because the review application was not publicly notified before the decision to grant the consent, contrary to the statutory precondition in s 82A(4) of the EPAA.
13. Further, the Council has a fairly arguable case that the failure to notify the review application in accordance with the Council's Notification Policy was a denial of procedural fairness.
14. Finally and for the sake of completeness, it is noted that Temelkovski is a case where the Court refused to grant leave to extend the time for filing the summons notwithstanding the finding of a fairly arguable case (at [24]). This was because: 1. the applicants were the next door neighbours of the development site, and therefore, were directly affected by the approved building and works the subject of the impugned development consent (at [25]); 2. the pleaded failures to determine the development application were through no fault of the respondent (at [26]); and 3. the Court noted the strong public interest in the finality of development consents (at [28]).
15. The facts giving rise to this application bear insufficient resemblance to those of Temelkovski and that case is readily distinguishable on this basis.

Time Should be Extended to Commence Proceedings

1. Accordingly, it follows that for the reasons discussed above, after balancing all of the relevant factors identified in r 59.10 and those identified in the authorities, that the Council's application should be acceded to and that the time for commencing judicial review proceedings should be extended to the date of the filing of the summons.

Costs

1. Although the Council was successful, and notwithstanding that Kangaloon only agreed that time should be extended the day before the hearing of the Council's application, the appropriate costs order should be that each party bear their own costs because: 1. it was necessary for the Council to bring the application seeking leave, irrespective of whether or not Kangaloon consented to the orders sought, because the Court was nevertheless required to consider the exercise of its discretion as to whether the proceedings should be allowed to be pursued; and 2. the only reason (and necessity) for the application was the Council's failure to bring the proceedings within time. The order sought by the Council is therefore an indulgence and it should not be compensated for its costs merely because the necessary discretionary decision to grant leave was exercised in its favour.

Orders

1. The orders of the Court are therefore: 1. pursuant to r 59.10(2) of the UCPR the time for the Council to commence judicial review proceedings with respect to the determination made on 14 September 2017 to grant development consent to DA 16/0618.01, be extended to the date of filing of this summons on 6 April 2018; 2. each party pay its own costs of, and incidental to, the Council's application to extend time to commence proceedings; and 3. the exhibits are to be returned after the publication of this judgment on Caselaw.

Amendments 20 September 2018 - Amended typographical error and citation error. 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: 20 September 2018