In brief - Court will not grant extensions to statutory time limits

In the recent decision of Simmons v Marrickville Council; Kababy Pty Limited v Marrickville Council [2012] NSWLEC 133, handed down on 6 June 2012, the NSW Land & Environment Court confirmed that it had no power to extend the statutory six month period within which to commence a merit appeal against the determination of a consent authority.

Applicants have six months to appeal decisions

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.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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