Challenging a Development When Time Limit for Appeal has Expired

A recent decision in the NSW Land and Environment Court, Wingecarribee Shire Council v Uri Turgeman t/a Uri Design (2018) provided a reminder of the factors that will be considered by the Court when challenging a development after the expiry of the appeal period.

The case concerned consent for the development of residential flats. The Council sought a declaration that the consent was invalid and a restraining order. The summons was filed more than 3 months after the decision was made.

Under Rule 59.10(1) of the Uniform Civil Procedure Rules 2005, proceedings for judicial review of a decision must be made within 3 months. However, the Rules do provide discretion for extending the period. In exercising discretion, the Court has to take into account factors that are relevant to the circumstances, including the following factors:

• any particular interest of the plaintiff in challenging the decision;
• possible prejudice to other persons caused by the passage of time if the relief were to be granted
• the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision;
• the public interest.

These factors are not exhaustive and also include the length of the delay in commencing proceedings; the reasons for the delay; and whether the applicant has a reasonably arguable case. The weight to be given to these factors will depend on the circumstances and will require the Court to carry out a balancing exercise. In this case, the extension was granted.

Contact Our Land and Environment Court Solicitors

Szabo & Associates are experienced practitioners in Land and Environment Court matters. If you require assistance with any issues raised here, please call us on 02 9281 5088 or fill in our online contact form.