Northern Beaches Council v Tolucy Pty Ltd  NSWLEC 151
Northern Beaches Council (“the Council”) commenced proceedings pursuant to section 56A of the Land and Environment Court Act 1979 (“the Court Act”) appealing against the decision of a Commissioner of the Court approving a development application made by Tolucy Pty Ltd (“Tolucy”) for the construction of a residential aged care facility and serviced self-care dwellings at Terrey Hills (“the 56A proceedings”).
The 56A proceedings were commenced 33 days after the date of the Commissioner’s decision. Tolucy contended that the appeal was required to be commenced within 28 days in accordance with rule 50.3 of the Uniform Civil Procedure Rules (“UCPR”) and was therefore 5 days out of time. The Council contended that the appeal was required to be commenced within 60 days in accordance with rule 7.1 of the Land and Environment Court Rules 2007 (“the Court Rules”), but sought an extension of time to appeal in the event that the appeal was filed out of time.
Which rule applies?
Justice Duggan held that the determination of the parties’ competing submissions as to which rule applies to appeals pursuant to section 56A of the Court Act turned on the proper construction of rule 7.1 of the Court Rules and its legislative history. Rule 7.1 of the Court Rules relevantly provides as follows:
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.
If the reference to “appeal” in rule 7.1 of the Court Rules included a reference to appeals pursuant to section 56A of the Court Act, then the time for the appeal was 60 days in accordance with that rule. If the reference to “appeal” in rule 7.1 of the Court Rules did not include 56A appeals, the relevant time for the appeal was 28 days in accordance with rule 50.3 of the UCPR.
The Council submitted that by using the word “appeal” in rule 7.1 of the Court Rules there was a clear intention to include all proceedings that are capable of being described as an appeal, including proceedings brought pursuant to section 56A of the Court Act.
Tolucy submitted that the word “appeal” should be read as part of the composite expression of “appeal, objection or reference” and not as an isolated word. Tolucy further noted that the composite expression is used throughout the Court Act to identify the jurisdiction conferred upon the Court as originating proceedings and submitted that it must therefore only refer to originating proceedings.
Conclusion and orders
Justice Duggan agreed with Tolucy’s submissions and found that rule 7.1 of the Court Rules did not apply to proceedings commenced pursuant to section 56A of the Court Act for the following reasons:
1. The composite expression “appeal, objection or reference” is used throughout the Court Act to refer to originating processes, and it would be inconsistent to read the expression differently in the Court Rules than the manner it is used in the Court Act.
2. Rule 7.1 of the Court Rules expressly refers to former rule 17.1 of the Court Rules which only applied to originating proceedings and not 56A appeals, which were previously addressed in a separate but now repealed rule. No express intention to extend the application of rule 7.1 of the Court Rules to 56A appeals was evidenced in the remaking of the Court Rules in 2015.
3. Rule 50.2 of the UCPR expressly refers to decisions of Commissioners being of a “court below” and appeals pursuant to section 56A of the Court Act being to a “higher court”, thereby expressing a clear intention that 56A appeals would be managed pursuant to the UCPR.
Justice Duggan therefore held that the time for commencing an appeal pursuant to section 56A of the Court Act was 28 days in accordance with the requirements of rule 50.3 of the UCPR.
Notwithstanding this, Justice Duggan ultimately exercised her discretion to extend the time for the appeal by 5 days, particularly having regard to the fact that the Council’s solicitors had relied upon the only previous judgment of the Court which had considered and applied the time limit in rule 7.1 of the Court Rules in the context of proceedings brought pursuant to section 56A of the Court Act, along with advice on the Court’s website.
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