Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Hearing dates: 18, 19 March 2019 Decision date: 18 April 2019 Before: Bell P at [1]; Leeming JA at [2]; Payne JA at [171] Decision: In 2018/205877 (the appeal):

Appeal dismissed with costs.

In 2019/56253 (the application for judicial review):

1. Dismiss paragraph 2 of the amended notice of motion filed on 8 March 2019 seeking an extension of time within which to seek judicial review.

2. Dismiss the summons filed by the Community Association on 20 February 2019.

3. The Community Association to pay the defendants' costs, noting that the costs of the Land and Environment Court are the costs of a submitting appearance. Catchwords: JUDICIAL REVIEW – late application to quash orders of Land and Environment Court granting development consent – substantial unexplained delay – weakness of case sought to be advanced – application to extend time refused

PRACTICE – parties – appeal against refusal of development consent – where development contemplated obtaining access across neighbouring land – whether neighbouring landowner a necessary party to appeal – whether Land and Environment Court lacked jurisdiction to impose easement in separate proceedings commenced while appeal was pending – Land and Environment Court Act 1979 (NSW), s 40, considered

PRACTICE – parties – whether lot owners of land subject to Community Land Development Act 1989 (NSW) necessary parties to application for easement over Community Association's land – whether other persons with registered easements over the land sought to be burdened by the proposed easement were necessary or proper parties – effect of non-joinder in circumstances where third parties were informed of application and requested not to be joined – UCPR r 6.23 and Land and Environment Court Act 1979 (NSW), s 40(3), considered