Land and Environment Court New South Wales Medium Neutral Citation: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 Hearing dates: 4 August 2017 Date of orders: 10 August 2017 Decision date: 10 August 2017 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [63]-[64] Catchwords: PRACTICE AND PROCEDURE – judicial review proceedings challenging multiple decisions concerning planning proposal – application for extension of time to challenge particular decisions necessary under rule 59.10 of Uniform Civil Procedure Rules 2005 – whether Court should extend time – extension of time granted Legislation Cited: Civil Procedure Act 2005, s 56 Environmental Planning and Assessment Act 1979, ss 53A, 54, 55, 56, 57, 58, 59, 123, Div 4 of Pt 3 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy No 55 – Remediation of Land, cl 6 Uniform Civil Procedure Rules 2005, rr 59.1(1)(b), 59.6, 59.10, Pt 59 Cases Cited: Bankstown City Council v Ramahi [2015] NSWLEC 74 Dyason v Butterworth [2015] NSWCA 52 Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 Liverpool City Council v Moorebank Recyclers Pty Ltd; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53 O'Connor v New South Wales [2017] NSWSC 598 Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Category: Procedural and other rulings Parties: Moorebank Recyclers Pty Ltd ACN 067 281 083 (Applicant) Tanlane Pty Ltd ACN 057 579 718 (First Respondent) Greater Sydney Commission (Second Respondent) Liverpool City Council (Third Respondent) Representation: Counsel: Mr J E Lazarus (Applicant) Mr T S Hale SC with Mr D Robertson (First Respondent) Submitting appearance (Second and Third Respondents) Solicitors: Mark McDonald & Associates Lawyers Pty Ltd (Applicant) Minter Ellison (First Respondent) File Number(s): 2017/00172252 Publication restriction: N/A Judgment A recycling company seeks an extension of time to challenge decisions of Liverpool City Council concerning a planning proposal 1. Tanlane Pty Ltd ('Tanlane'), who is the First Respondent in these proceedings, is the owner of a 22 ha parcel of land situated on the banks of the Georges River at 146 Newbridge Road, Moorebank – being Lot 7 in Deposited Plan 1065574 ('the Tanlane land'). Under the Liverpool Local Environmental Plan 2008 ('the LEP'), the Tanlane land is not uniformly zoned; different parts of the land are zoned as RE1 – Public Recreation land, RE2 – Private Recreation land, R3 – Medium Density Residential land, and B6 – Enterprise Corridor land. It is currently Tanlane's intention to undertake a marina development on the southern part of the Tanlane land and a residential development (in partnership with a commercial property developer) on the northern part of the Tanlane land. 2. Moorebank Recyclers Pty Ltd ('Moorebank'), who is the Applicant in these proceedings, is the owner of a rectangular 20.5 ha block of land on the banks of the Georges River to the immediate south of the Tanlane land – being Lot 6 in Deposited Plan 1065574 ('the Moorebank land'). On 8 May 2017, Robson J determined to conditionally approve Moorebank's development application for the construction and operation of a materials recycling facility on the Moorebank land: Liverpool City Council v Moorebank Recyclers Pty Ltd; Benedict Industries Pty Ltd v Minister for Planning (No 2) [2017] NSWLEC 53. One of the two sets of proceedings that were resolved by that judgment was an objector appeal jointly brought by Tanlane and the occupier of the Tanlane Land (Benedict Industries Pty Ltd) under the former s 75L of the Environmental Planning and Assessment Act 1979 ('EPA Act'). In the introduction to that decision, his Honour observed at [4] that "[t]his is the latest case in a long running series of proceedings between Moorebank, Benedict, Tanlane and, on occasions [Liverpool City Council], regarding the development of both the [Moorebank land] and the surrounding land …". 3. On 6 January 2015, Tanlane lodged a planning proposal with Liverpool City Council ('Liverpool Council'), who is the Third Respondent in these proceedings. Since that date, this planning proposal has been amended, including on a date shortly before Liverpool Council lodged its finalised planning proposal for a Gateway Determination on 30 January 2017; Exhibit A, Tab 8, p 1. This planning proposal (as amended) seeks to amend the Liverpool Local Environmental Plan 2008 ('the LEP') so as to: (1) enable residential development consisting of 17 terrace dwellings and 108 apartments as an additional use in the footprint of two building on part of the Tanlane land and (2) rezone 0.41 ha of the Tanlane land from being RE2 – Private Recreation land to become R3 – Medium Density Residential land (which would correct a boundary misalignment between the southern and northern parts of the Tanlane land): Exhibit A, Tab 4, pp 2-3. 4. On 31 August 2016 (some months before the proposed amendment of the planning proposal in December 2016), Liverpool Council resolved to support the planning proposal "in principle" (as modified to restrict the type of residential dwelling permitted with consent) and delegate to its Acting CEO the function of forwarding the updated proposal to the Department of Planning and Environment ('the Department') for a Gateway Determination: Exhibit A, Tab 6. On 30 January 2017, the adopted amended planning proposal was received by the Department: Exhibit A, Tab 8, p 1. 5. On 9 March 2017, a delegate of the Greater Sydney Commission (the latter is the Second Respondent in these proceedings) determined, pursuant to s 56(2) of the EPA Act, to conditionally allow the planning proposal to proceed ('the Gateway Determination'): Exhibit A, Tab 9, p 2. 6. By way of summons filed on 8 June 2017, Moorebank commenced judicial review proceedings, under s 123 of the EPA Act, against Tanlane challenging: (1) Liverpool Council's resolutions of 31 August 2016 and its subsequent actions to forward to the Department the planning proposal (as subsequently amended) for a Gateway Determination; and (2) the Greater Sydney Commission's Gateway Determination. It should be noted that Liverpool Council and the Greater Sydney Commission have both filed submitting appearances in these proceedings (save as to costs). 7. In the summons, Moorebank also sought an extension of time, pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 ('the UCPR'), to the extent necessary to allow it to challenge the decisions identified in (1) above. This is because rule 59.10 requires a party to apply to the Court for an extension of time to commence proceedings for judicial review of a decision if those proceedings are not commenced within three months of the date of the decision. On 14 July 2017, the List Judge ordered, by consent, that Moorebank's application for an extension of time be listed for hearing on 4 August 2017. I should note that, given that the Court has heard this extension of time application prior to the substantive hearing, the resolution of this issue is of some urgency because the substantive hearing of these proceedings is listed for 6-7 September 2017. 8. For reasons that I will explain, I have decided to grant Moorebank the extension of time that it seeks. 9. In order to properly contextualise my reasons for so deciding, it is necessary to first set out the statutory framework relevant to the decisions challenged in these proceedings, the rule concerning the time for commencing judicial review proceedings, the relevant legal principles concerning applications for an extension of time, and the competing submissions of Moorebank and Tanlane. The relevant statutory framework 1. Part 3 of the EPA Act regulates the making and operation of environmental planning instruments. Division 4 of Part 3 contains nine sections (ss 53 – 60) that concern local environmental plans. Section 53A provides the Greater Sydney Commission with the power to make local environmental plans in each local government area in the Greater Sydney Region (which includes the City of Liverpool). However, before a local environmental plan can be made under Division 4, the relevant planning authority (here, Liverpool Council: s 54) must prepare a planning proposal (a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument) that accords with the requirements listed in s 55(2). Once prepared, the relevant planning authority may forward the planning proposal to the Greater Sydney Commission for a Gateway Determination: ss 56(1) and 53A(2). 2. The Greater Sydney Commission, after reviewing the planning proposal, is required to determine, inter alia, whether the matter should proceed (with or without variation): s 56(2)(a). In the event that the planning proposal successfully proceeds through the 'gateway' and the relevant planning authority has discharged its obligation to consult the community (s 57), the relevant planning authority may decide to vary the planning proposal or request that the matter not proceed: s 58. Ultimately, the Greater Sydney Commission may, following completion of community consultation, decide to make or not to make the proposed local environmental plan: s 59. The rule concerning the time for commencing proceedings 1. Part 59 of the UCPR applies to proceedings for or in the nature of judicial review in this Court's Class 4 jurisdiction: r 59.1(1)(b). Hence, r 59.10 is the relevant rule which governs the time for commencing judicial review proceedings in this Court. In full, rule 59.10 provides: 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. The principles concerning an application for an extension of time 1. In essence, Moorebank and Tanlane agreed on the relevant legal principles which should guide the Court in determining whether or not to grant an extension of time in judicial review proceedings. The principles which were identified by both parties were as follows: 1. In addition to considering the four factors set out in rule 59.10(3), the Court ought to also consider: the length of the delay, the reasons for the delay, and whether the applicant has a fairly arguable case: Bankstown City Council v Ramahi [2015] NSWLEC 74 at [74]; Dyason v Butterworth [2015] NSWCA 52 at [65]; and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]; 2. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the Court to carry out a balancing exercise: Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7] and O'Connor v New South Wales [2017] NSWSC 598 at [66]; 3. The question of potential prejudice to a party caused by the delay is a significant consideration in all matters: O'Connor v New South Wales at [66]; and 4. The rule of law is strengthened by provisions such as r 59.10 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: Regional Express Holdings Ltd v Dubbo City Council (No 2) at [7]. 1. In addition to these principles, Tanlane said that it is established that the applicant for the extension of time bears the onus and Moorebank emphasised that, in considering rule 59.10, it should be borne in mind that "a claimant cannot fairly be criticised for failing to take action before he 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) at [7]. Moorebank's case that an extension of time should be granted 1. Moorebank submitted that the Court should grant it the requisite extension of time to challenge the relevant decisions of Liverpool Council for the following primary reasons. 2. First, Moorebank argued that it has, as the adjoining commercial landowner to the land the subject of the planning proposal, a particular interest in challenging the decisions. If the planning proposal is ultimately implemented, and Tanlane is able to use the Tanlane land as it intends, it was Moorebank's contention that there would likely be increased traffic flow and, consequently, potentially significant disruption to the efficient entry and exit of its trucks onto and from the Moorebank land. 3. Secondly, Moorebank contended that no person, including Tanlane, would be prejudiced by the grant of the extension of time sought. Moorebank said that it is of some significance that Tanlane has failed to provide evidence of any such prejudice. 4. Thirdly, Moorebank conceded that it was aware of Liverpool Council's resolutions by 10 October 2016 at the latest and the consequent steps of the council leading up to the Gateway Determination by April 2017. In support of this, Moorebank relied on the affidavit of its director Mr Brent Lawson dated and filed 12 July 2017. 5. Fourthly, Moorebank argued that the present proceedings have significant public interest because the ultimate consequence of the planning proposal might be that the following impacts occur: increased traffic issues in the vicinity of the relevant land; impacts arising from the potential conflict of the incompatible use of the Moorebank land and the Tanlane land; and impacts occasioned upon occupants of and visitors to the Tanlane land by latent contamination and landfill gas. 6. Fifthly, Moorebank submitted that the relevant period of delay (approximately six months at worst) is not significant. This was said to be because the challenge to the axiomatically linked operative Gateway Determination was commenced within time. In support of this contention, Moorebank also submitted that it must be understood that the resolutions and subsequent action taken by Liverpool Council concerning the planning proposal comprised a number of actions over a period of time, as part of an iterative statutory process, rather than a stand-alone decision. 7. Sixthly, Moorebank contended that Mr Lawson's explanation for Moorebank's delay in commencing proceedings with respect to the decisions of Liverpool Council was compelling for two reasons. First, Mr Lawson's (who is not a lawyer) misapprehension that Moorebank could only challenge the Gateway Determination and not the anterior decisions was said to be understandable. Upon receiving legal advice concerning the Gateway Determination on 7 June 2017, Moorebank commenced proceedings the following day. Second, Moorebank said that it was entirely justified to await the outcome of the Gateway process before deciding to challenge the anterior decisions of Liverpool Council. If the Gateway Determination had been to the effect that the planning proposal could not proceed, Moorebank would have wasted time and costs if it had commenced proceedings challenging the anterior decisions. Indeed, Moorebank amplified this point on the basis that the actual decisions taken by Liverpool Council prior to the Gateway Determination were inchoate and unclear. For example, attention was drawn to the fact that Liverpool Council had resolved to support the planning proposal "in principle". 8. Seventhly, Moorebank submitted that it was uncontested by Tanlane that it has a fairly arguable case in relation to the relevant decisions of Liverpool Council. Moorebank's case is that Liverpool Council's decisions to prepare and forward the planning proposal were unlawful in that Liverpool Council failed to comply with the requirements set out in clause 6 of the State Environmental Planning Policy No 55 – Remediation of Land, which concerns the consideration of land contamination in the preparation of an environmental planning instrument. 9. Finally, Moorebank argued that because its challenge to the Gateway Determination will rely upon the alleged errors of Liverpool Council in executing the required anterior steps, there would be no time or cost saving if the application for the extension of time was refused. Therefore, having regard to s 56 of the Civil Procedure Act 2005, Moorebank said that a decision to refuse the application could not be justified on the basis that it is consistent with the overriding purpose of facilitating the just, quick and cheap resolution of these proceedings. 10. For all of these reasons, Moorebank concluded that "[t]here is no sensible basis for the Court to decline to exercise its discretion to extend time". Tanlane's case that an extension of time should not be granted 1. Tanlane advanced four primary arguments as to why, in applying the accepted principles set out above, the Court should dismiss (with costs) Moorebank's application for an extension of time. 2. First, Tanlane submitted that Moorebank has failed to provide any adequate explanation for its six month delay in commencing proceedings in respect of Liverpool Council's decisions. The explanation of Mr Lawson that he (and therefore Moorebank) was unaware of his ability to challenge the relevant decisions was said to be "wholly unsatisfactory, and indeed irrelevant": unsatisfactory because Moorebank failed to obtain legal advice (despite being an experienced litigant) and irrelevant because the failure to seek legal advice is not an adequate explanation for failing to commence proceedings: Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 at [17]. In its written and oral submissions (and cross-examination of Mr Lawson), Tanlane amplified these points by drawing the Court's attention to the active involvement of Mr Lawson in Moorebank's various relevant proceedings. Thus, Tanlane concluded that Moorebank "has failed to discharge its onus to provide an adequate explanation for the delay of over 6 months". 3. Secondly, Tanlane argued that it would suffer obvious prejudice if the extension of time was to be granted by way of the possible consequent significant delay to the consideration of the planning proposal (if such a challenge was successful). Tanlane suggested that starting the planning proposal afresh could set Tanlane back another two years or longer in seeking to realise its plans for residential development on the Tanlane land. 4. Thirdly, Tanlane submitted that Moorebank's challenge to the relevant decisions of Liverpool Council does not give rise to any issues of public interest. As was said to be recognised by Moorebank, Tanlane stressed that the resolutions have no operative effect and have been superseded by the Gateway Determination. Indeed, the Gateway Determination is only one step in the overall mandated rezoning planning process, which includes mandatory community consultation and may very well not result in the ultimate implementation of the planning proposal. In this context, Tanlane concluded that "[t]he public interest is not and cannot be affected in any way unless and until [Liverpool Council] resolves to submit a final proposal to the [Greater Sydney Commission], pursuant to s 59 of the [EPA Act], which might never occur". 5. Finally, for the same reasons set out immediately above, Tanlane concluded that "Moorebank's interests … could not be affected in any way unless and until any amended [LEP] is made. As noted above, this has not occurred and may never occur." The response to summons issue 1. Moorebank asserted that Tanlane's response to summons, filed on 14 July 2017, does not – contrary to the requirement in rule 59.6 of the UCPR – adequately provide the basis upon which Tanlane contests the relief sought in the summons. Hence, Moorebank sought an order requiring Tanlane to properly plead its defence to the claims brought by Moorebank. 2. In oral submissions, Tanlane denied that its response to summons is deficient or does not comply with rule 59.6. However, Tanlane submitted that it was not in a position to address this issue at the hearing of the extension of time application and was not required to because Moorebank has not made a formal application for such an order. Costs 1. As noted above, Tanlane submitted that Moorebank's application should be dismissed with costs. However, neither party made any submissions as to costs and Tanlane indicated that it might be appropriate for costs to be reserved. Consideration 1. In deciding whether to grant the extension of time sought by Moorebank, the Court must have regard to the factors that are relevant in the circumstances of this particular case: r 59.10(3). These relevant factors, which are set out in rule 59.10(3) and in the above mentioned legal principles, will be considered seriatim. Moorebank has a particular interest in challenging the decisions – r 59.10(3)(a) 1. Tanlane's contention that Moorebank's interests "… could not be affected in any way unless and until any amended [LEP] is made" is specious. It is true that the relevant anterior decisions of Liverpool Council concerning the planning proposal could not have any immediate operative effect on the regulation of development within the vicinity of the Moorebank land. However, this does not mean that Moorebank's interests "could not be affected in any way" by the anterior decisions preceding the making of an amended local environmental plan which regulates the relevant area of land. The Court has concluded that the nexus between the successive decisions is indisputable and materially relevant. 2. Moorebank, as a significant commercial owner of land that immediately adjoins the land the subject of the planning proposal, has a particular interest in the anterior decisions (mandated by the EPA Act) of Liverpool Council concerning the proposed adjustment of planning controls affecting the Tanlane land. For example, Moorebank may be particularly concerned to ensure that Liverpool Council carries out its statutory responsibilities relating to relevant planning proposals lawfully because it wishes to ensure that subsequent decision-makers in the statutory rezoning process are properly equipped to make sound consequential decisions. The Court is cognisant of the public duty inherent in the EPA Act, founded on the public interest, which is to be presumed even if it has not been expressed, in proper compliance with statutory processes so as to ensure orderly development and use of the environment. So Moorebank is entitled to endeavour to zealously ensure that Liverpool Council operates within the parameters of the law in making any decision (preliminary or operative) regarding the regulation of development on land in the vicinity of its own land. The reason why Moorebank may have these concerns is because such decisions have the potential to significantly affect the use of its land. 3. Furthermore, as Moorebank submitted, Moorebank does have a particular interest in the relevant decisions because they are necessary anterior steps in an iterative, staggered decision-making process that may culminate in a rezoning decision. Such a rezoning decision could well have significant ramifications for Moorebank's enjoyment of its land. 4. It is instructive to consider an example of when a person may not have a particular interest in challenging the relevant decisions considered here. A town planner in Ballina may seek to challenge the planning proposal decisions of Liverpool Council on the sole basis that he or she is concerned that all rezoning decisions under the EPA Act are made according to law. Whilst such a person may bring proceedings, they are unlikely to have any particular interest in challenging the decisions within the meaning of rule 59.10. In that situation, it might be said that the town planner's interests "could not be affected in any way". Those circumstances are not the circumstances before the Court. 5. Finally, it is difficult to see, on Tanlane's logic, who could fall within the category of persons with a particular interest in challenging the relevant decisions. If it is Tanlane's case that no person can have a particular interest in anterior decisions taken by the relevant planning authority with respect to planning proposals, that proposition cannot withstand scrutiny. Some prejudice may be caused by the passage of time if the relief were to be granted – r 59.10(3)(b) 1. The relief sought by Moorebank in relation to the relevant decisions of Liverpool Council comprises declarations that the resolutions and subsequent action were invalid and of no effect: summons, paragraphs 3-4. Therefore, the question is whether prejudice may be caused to any person by the passage of time if the time for commencing the proceedings were to be extended and Moorebank was to be successful in obtaining the declarations that it seeks. 2. Contrary to the assertion of Moorebank that no person would be prejudiced by the passage of time, I agree with Tanlane that some prejudice may be caused to Tanlane. On the evidence, it is clear that the impetus for the planning proposal is Tanlane's intention to undertake a residential development on the northern part of the Tanlane land. If the Court was to make the declarations sought, the planning proposal would have to return to square one in the statutory process. 3. However, if Liverpool Council's decisions (which Moorebank now seeks an extension of time for) had been challenged within the three month window provided for in the UCPR, rather than on 8 June 2017, and Moorebank had ultimately been successful, that statutory process – returning to square one – could possibly have recommenced significantly sooner. The potential differential, that is, the passage of time beyond three months of the challenged decisions being made (see Bankstown City Council v Ramahi at [86]) may cause some prejudice to Tanlane in securing the planning reform that it seeks in order to undertake the planned residential development. 4. Whilst Moorebank was correct to assert that Tanlane did not provide any evidence of any particular prejudice (despite having this opportunity), it is more likely than not that Tanlane may be caused some prejudice to its commercial interests by the passage of time beyond the three month window of the making of the relevant challenged decisions. Despite this, it could not be said that Tanlane may be caused significant prejudice (or will be caused prejudice) on the evidence before the Court. The duty of the Court as prescribed by r 59.10(3) is to take into account the prospect of potential prejudice, but not thereafter to be bound to exercise its discretion so as to always avoid such prejudice. In the circumstances of this case, the possible prejudice to Tanlane may be expected, in the nature of inconvenience, but is not such that it warrants the rejection of Moorebank's application. The time when Moorebank became aware of the decisions – r 59.10(3)(c) 1. At the latest, Moorebank became aware of Liverpool Council's August 2016 resolutions by 10 October 2016 and Liverpool Council's further consequential action by April 2017. Therefore, on any view of this factor (including whether Moorebank was, or should have been, aware of these decisions at some earlier point), it is a fact that Moorebank did not commence proceedings until (at the least) a period of some months after it became aware of these decisions. Whether Moorebank properly understood the ramifications of Liverpool Council's resolutions and subsequent actions sufficiently for it to determine a course of action in response, is another matter. The public interest – r 59.10(3)(d) 1. As above, Tanlane's contention that the "public interest is not and cannot be affected in any way unless and until [Liverpool Council] resolves to submit a final proposal to the [Greater Sydney Commission], pursuant to s 59 of the [EPA Act], which might never occur" is specious. The public interest can be affected by requisite decisions of Liverpool Council that are anterior to the Gateway Determination of a planning proposal. To provide just one example, if such an anterior decision is made unlawfully, this may infect the veracity and nature of the process of community consultation that will inform the ultimate decision as to whether to submit a final planning proposal to be made pursuant to s 59. 2. As Tanlane recognised, s 57 requires Liverpool Council to consult with the community before considering the making of a proposed local environmental plan. This community consultation does not occur in a vacuum but is in response to the planning proposal, which is to be made publicly available during the period of community consultation: s 57(2). If the planning proposal put before the community is the product of a decision made contrary to law and this has affected the planning proposal, this defect might significantly detrimentally affect the process of community consultation and, ultimately, the public (if the planning proposal is ultimately successfully implemented). 3. Importantly, the anterior decisions of Liverpool Council are part of an iterative, staggered, statutory decision-making process that might result in the reform of the planning controls which regulate the development upon, and use of, land in a district (in which the community has a vested interest in the orderly development and use of the environment). Such decisions do not only affect private rights and interests; they are decisions that affect a community. Even if this statutory process does not result in the implementation of the planning proposal, decisions made throughout such a process may have consequences for the future regulation of development in the relevant community. Additionally, as implicitly acknowledged under the EPA Act, the public has an interest in the veracity and transparency of the decision-making process governing the making of local environmental plans. 4. Moreover, Moorebank is correct to argue that there is a relevant public interest in the relevant anterior decisions of Liverpool Council because these decisions might lead to an ultimate decision to implement the particular planning proposal. If so, the rezoning would likely have consequences for the use of the affected land and, therefore, potential (long-term) environmental, social and economic impacts. The delay 1. As outlined above, Moorebank justified its delay in challenging the relevant decisions of Liverpool Council on the grounds that this period of delay was not significant in the circumstances of this case and that it was both understandable and appropriate that Moorebank did delay. 2. To the extent that Moorebank submitted that the delay was justifiable because the director of Moorebank did not appreciate that Moorebank might be entitled to legally challenge the relevant decisions, this argument should be rejected in the circumstances of this case. Moorebank is an experienced litigant that has regularly had recourse to legal advice so as to protect its interests relating to the Moorebank land. As Tanlane submitted, Moorebank's failure to seek legal advice is not a compelling explanation for its delay. That is, whilst it may sufficiently explain why Moorebank delayed, it does not justify why Moorebank delayed. In the words of McHugh J, "lack of legal knowledge is a misfortune, not a privilege": Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30. This remains true even if the relevant decisions of Liverpool Council were, as argued by Moorebank, inchoate and unclear. In fact, if true, there was all the more reason for Moorebank to promptly seek legal advice. 3. That being said, Moorebank's submission that it was appropriate for Moorebank to delay commencing proceedings in these particular circumstances (although not said to be intentional) has considerable force. In circumstances where a Gateway Determination was required to be made with respect to the planning proposal, it is understandable why Moorebank may have awaited the outcome of that determination before challenging the preceding anterior steps in the decision-making process. In fact, considerable costs may have been expended and time may have been lost by all parties to these proceedings (and the Court) if the decisions of Liverpool Council had been challenged only for the Gateway Determination (which has a close nexus to these preliminary decisions) to determine that the matter should not proceed. On the other hand, it could be argued that the commencement of proceedings in accordance with r 59.10(1) may have allowed the Greater Sydney Commission to stall its Gateway Determination until the legality of the anterior decisions was resolved. 4. In a staggered decision-making process which involves sequential decisions of escalating importance, is a person expected to commence proceedings challenging an anterior decision within three months or is he or she entitled to await a subsequent linked decision of greater significance? The preferable answer to that question is that the person is expected to commence proceedings within three months. An "intentional or contumelious" delay, say as a strategy to undermine a competitor, will often be looked upon dimly by a court considering an application for an extension of time: Tomko v Palasty (No. 2) at [56]. However, when the decision or decisions in question are preliminary precursors to a more substantial decision, it may be understandable that a person delays until the decision(s) in question have reached a sufficient degree of maturity, which conceivably may be difficult to firmly ascertain in the circumstances of an anterior decision leading to a subsequent decision (such as is the case for the Gateway Determination). Whether the decision(s) under examination have reached such maturity will be a question to be determined in each case. 5. In these particular circumstances, having regard to the structure and provisions of Div 4 of Pt 3 of the EPA Act, Moorebank's explanation for why it did not commence proceedings within three months is credible. This is especially so because the relevant period of time (even adopting the longest alleged period of delay) is not a considerable delay in the context of the relevant decision-making process: see, eg, Bankstown City Council v Ramahi at [102] and cf, eg, O'Connor v New South Wales at [77] and [99]. Conversely, if it was apparent that Moorebank had made the strategic, intentional decision to delay its challenge to the anterior decisions of Liverpool Council until it had been decided under s 59 of the EPA Act to make the local environmental plan the subject of the planning proposal, given a calculated acceptance of a considerable passage of time, the Court's consideration of this application may have been significantly different. Moorebank has a fairly arguable case 1. As was accepted by Tanlane, Moorebank has a fairly arguable case as to why the relevant decisions of Liverpool Council were invalid and of no effect. It is not necessary or appropriate for Moorebank to do more than demonstrate a fairly arguable case: Tomko v Palasty (No. 2) at [58]. The facilitation of the just, quick and cheap resolution of these proceedings 1. In the event that the Court was to decline to grant the extension of time sought, Moorebank submitted that it will still advance the argument that the Gateway Determination is invalid because the anterior decisions of Liverpool Council were invalid. For example, Ground 3 of the summons states that "[t]he gateway determination is invalid because of the Council's breaches of SEPP 65". On this basis, Moorebank said that a decision of the Court to not grant the application for an extension of time would not narrow the contested issues in a way that would facilitate the just, quick and cheap resolution of these proceedings. 2. I accept this submission. Moreover, I make the following related point. It is not unlikely that, if the Court was to refuse to grant the extension of time, a considerable amount of time at the hearing would become consumed by a dispute between the parties as to (1) whether Moorebank can challenge the Gateway Determination on the basis that the anterior decisions of Liverpool Council were allegedly invalid and (2) if not, whether Moorebank has trespassed into that territory. It is not unlikely that the Court would be frequently called upon to make rulings in the course of the hearing to resolve technical objections as to whether evidence is admissible or submissions should be entertained, inevitably as a consequence of the overlap, indeed arguably inextricable nexus, between Liverpool Council's anterior decisions and the subsequent Gateway Determination. 3. Accordingly, I have decided that, in the present circumstances, it would be unwise to put Moorebank in the position of being able to directly challenge the Gateway Determination but precluded from being able to directly challenge the anterior decisions of Liverpool Council: Regional Express Holdings Ltd v Dubbo City Council (No 2) at [15]. The rule of law 1. As Biscoe J observed in Regional Express Holdings Ltd v Dubbo City Council (No 2) at [7], the rule of law is strengthened by rule 59.10 of the UCPR because it operates to require people to bring judicial review proceedings within a reasonable period of time. To this end, rule 59.10 stipulates that judicial review proceedings "must" be commenced within 3 months of the date of the decision. However, the rule of law is also strengthened by the allowance made by rule 59.10 for the reality that, having regard to all the relevant circumstances of a particular case, there will be compelling cases in which it is appropriate to extend the time for commencing such proceedings. 2. Clearly the promulgation of r 59.10 was intended to achieve two compatible objectives. First, with the starting point being evident in the use of the word "must", a clear underlying preference is being indicated that proceedings should be commenced within the stated three month period, in the interests of facilitating just, quick and cheap resolutions. Secondly, by specifically providing for the Court to grant an extension of time beyond the three month period, a safeguard is provided to protect against people being unduly denied access to justice, which is of paramount importance to the rule of law. If the circumstances warrant it, the objective of achieving justice is allowed to override the three month limitation. Frequently, justice will be thereby served with the concurrent provision for a quick and cheap resolution. 3. Whilst some of Tanlane's submissions in opposition to the granting of the application were valid, these reasons are significantly outweighed by the countervailing reasons outlined above that justify the granting of Moorebank's application for an extension of time. Costs 1. As Moorebank has been successful in its application, I am minded to make an order that the costs of the application (with respect to Moorebank and Tanlane) be costs in the cause. However, given Tanlane's indication that costs should be reserved, I will grant leave for either party to seek an alternative costs order, with respect to the application to extend time, at the final hearing of these proceedings. The response to summons issue 1. I agree with Tanlane that it is premature to make any conclusion or order on the issue of the adequacy of its response to summons. If Moorebank wishes to press for an order to cure any alleged inadequacy or non-compliance with the UCPR, it may make such an application. 2. However, given that I will grant the extension of time sought by Moorebank, I note that it will now be necessary for Tanlane to revise the first paragraph of its response to summons. This appears to be accepted by Tanlane (Exhibit A, Tab 15). Orders 1. The Court orders that, pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005, the time for Moorebank Recyclers Pty Ltd to commence judicial review proceedings with respect to the relevant resolutions of 31 August 2016 by Liverpool City Council – concerning the planning proposal prepared on behalf of Tanlane Pty Ltd – and the subsequent actions of Liverpool City Council, culminating in the forwarding of the planning proposal to the Department of Planning and Environment for a Gateway Determination, be extended to 8 June 2017. 2. In light of the above order, the Court directs Tanlane Pty Ltd to revise paragraph 1 of its response to summons within seven days of these orders. ********** Amendments 17 August 2017 - typographical error in p 61 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: 17 August 2017