Land and Environment Court of New South Wales CITATION : Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2010] NSWLEC 259 APPLICANT: Hoxton Park Residents Action Group Inc FIRST RESPONDENT: Liverpool City Council PARTIES : SECOND RESPONDENT: Australian Federation of Islamic Councils Inc THIRD RESPONDENT: Malek Fahd Islamic School Limited FILE NUMBER(S) : 40178 of 2010 CORAM: Biscoe J KEY ISSUES: JUDICIAL REVIEW :- abandonment of constitutional reply to time bar defence under s 101 Environmental Planning and Assessment Act 1979 - proceedings dismissed. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 101 Land and Environment Court Act 1979, s 25B CASES CITED: Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 DATES OF HEARING: 14 December 2010 EX TEMPORE JUDGMENT DATE : 14 December 2010 APPLICANT: Ms A Penklis SOLICITORS: Penklis Lawyers LEGAL REPRESENTATIVES: RESPONDENTS: Mr A Galasso SC with Mr G Newport SOLICITORS: Goldrick Farrell Mullan JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 14 December 2010 40178 of 2010 HOXTON PARK RESIDENTS ACTION GROUP INC v LIVERPOOL CITY COUNCIL & ORS EX TEMPORE JUDGMENT INTRODUCTION 1 HIS HONOUR: On 26 November 2010 I upheld one ground of challenge to the validity of a development consent for the erection of a school and road at Hoxton Park, observed that the claim was prima facie time barred under s 101 of the Environmental Planning and Assessment Act 1979, rejected the applicant's reply that the s 101 notice was defective and adjourned the proceedings for the purpose of hearing the second and third respondents' application for an order for conditional validity under s 25B of the Land and Environment Court Act 1979: Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242. 2 That course would have left until last the applicant's constitutional reply to the s 101 time bar defence. I had been under the impression that that course corresponded with the parties' wishes, however the second and third respondents subsequently submitted that the preferable course was to hear the applicant's constitutional reply to the s 101 time bar defence first. I would have agreed with this course except that this morning the applicant unexpectedly informed the Court that it no longer presses its constitutional reply. 3 Accordingly, as the s 101 time bar defence has succeeded, the application must be dismissed. 4 The second and third respondents seek their costs of the proceedings. That is formally opposed by the applicant who, however, makes no supporting submissions. Costs usually follow the event in Class 4 proceedings such as these. In the absence of submissions by the applicant, I see no reason why the usual costs order should not be made in this case. 5 The orders of the Court are as follows: 1. The application is dismissed. 2. The applicant is to pay the second and third respondents' costs. 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.