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Section 97 of the Environmental Planning & Assessment Act 1979
provides that 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 six months
after:
the date on which the applicant received notice, given in
accordance with the regulations, of the determination of that
application or review, or
the date on which that application is taken to have been
determined under section 82(1) (otherwise referred to as a
"deemed refusal").
Applicants argue that Court has power to extend time
limits
The applicants, who had filed their respective appeals outside
of the six month time limitation, contended that rule 7.4 of the
Land and Environment Court Rules 2007 (LECR) empowered the
court to extend the time prescribed by section 97(1) of the
EP&A Act because rule 7.4 allows the court to fix the time for
"the doing of any thing... in connection with any
proceedings" and the filing of a planning appeal is one of the
many things in connection with proceedings that fall within rule
7.4.
Varying the time periods prescribed by statute beyond the power
of the court
In a relatively short judgment, Justice Biscoe held that the Land & Environment Court Act 1979 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.
It followed, therefore, that if rule 7.4 of the LECR did empower
the court to do this – which his Honour rejected
– it would be invalid as beyond power.
The court noted that a right of appeal is a creature of statute.
It cited with approval the authority of Re Western Australia v
Wardley Australia Ltd [1991] FCA 314, in which 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. (At [72])
As there was no power to extend the statutory time limitation,
the appeals were accordingly dismissed for want of competency.
Development applications can be re-lodged if appeals are time
barred
The message is a simple one. The court will not grant extensions
to the statutory time limits set out in section 97. The only
recourse open to land owners and developers time barred from
appealing their respective applications is to re-lodge the
development applications. That process, often enough, is a
relatively straightforward one, though not without considerable
cost implications.
However, in circumstances where amendments to local
environmental plans have ensued in the interim, land owners and
developers often find themselves in a situation where what was
formerly permissible is no longer the case, requiring the
preparation of an entirely new development proposal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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