The issue in this case was whether the appellant Council’s application for leave to appeal against a decision of the Planning and Environment Court was out of time. The issue arose because the primary judge gave reasons allowing the appeal in November 2017 but then adjourned the proceeding, to enable conditions to be formulated, until June 2018 when the final orders were made. The Council applied for leave to appeal to the Court of Appeal in July 2018. The first respondents argued that the application for leave to appeal was out of time, because the errors against which the Council sought leave to appeal infected the primary judge’s November 2017 decision, and not the June 2018 final orders. Fraser, Philippides and McMurdo JJA granted the application for leave to appeal, each reasoning as to why the application was not brought out of time.
Fraser and Philippides and McMurdo JJA
12 March 2020
This was an appeal against the Council’s refusal of an application for a material change of use to develop a service station, drive-through restaurant and on-site effluent disposal irrigation area. In November 2017, the primary judge gave reasons indicating that she intended to allow the appeal, and adjourned the proceeding to allow time to formulate the conditions upon which the development approval would be granted. , . Final orders disposing of the proceeding were made in June 2018. , .
In July 2018 the Council applied for leave to appeal to the Court of Appeal, pursuant to s 63 Planning and Environment Court Act 2016 (“P&E Court Act”). , . The first respondents opposed the application for leave. . Relevantly, the first respondents argued that the Council’s application was brought out of time, because the errors of law against which the Council sought leave to appeal infected the primary judge’s November 2017 decision, but not her Honour’s June 2018 orders. .
Whether the application was out of time
Fraser JA acknowledged that, subject to a grant of leave to appeal, an appeal may be brought to the Court of Appeal against orders in Planning and Environment Court allowing an appeal against a development application refusal, and adjourning the matter to formulate final orders. . Despite the absence of an order allowing the appeal in November 2017, his Honour accepted that the order adjourning the appeal was a “decision” under s 63 P&E Court Act. . However, his Honour considered that the first respondents had not explained how the Council’s omission to apply for leave to appeal against the November 2017 decision affected the efficacy of its subsequent application. .
Unlike Fraser JA, Philippides JA considered that the primary judge’s November 2017 decision was not a “decision” for the purposes of ss 63 or 64 P&E Court Act. . Her Honour considered that the relevant “decision” in the circumstances were the primary judge’s final orders in June 2018. . Her Honour explained that the Council’s complaint was against the orders made in June 2018, and not the earlier adjournment of the matter. . Philippides JA considered that the fact that an appeal could have been brought against the primary judge’s November 2017 decision “was not to the point”. .
Like Fraser JA, McMurdo JA considered that the November 2017 decision was a “decision” for the purposes of s 63 P&E Court Act. . Equally, his Honour considered that the primary judge’s final orders in June 2018 were also a “decision in a proceeding” under s 63 P&E Court Act. . His Honour did not accept the first respondents’ contention that the errors of law upon which the Council’s application for leave to appeal was based contaminated only the November 2017 decision and not the orders in June 2018, because the reasons for the June orders were those given in November 2017. .
In the result, Philippides JA (Fraser and McMurdo JJA agreeing as to orders) allowed the application for leave to appeal. , , .