Application to strike out proceedings – appeal
from Building and Development Dispute Resolution Committee
commenced out of time – Application for extension of time
– whether grounds contained in appeal are valid grounds
– s.39A Acts Interpretation Act 1954 – s.497
Sustainable Planning Act 2009
Facts: Mr Towers sought to challenge a decision
of the Building and Development Dispute Resolution Committee
regarding the siting of a structure on premises. Mr Towers had
filed an Originating Application which sought both an extension of
time in which to appeal, and Orders allowing the appeal.
The Council had filed an Application seeking Orders that Mr
Towers' proceedings be struck out. It relied on three grounds.
Firstly, that Mr Towers was out of time to institute an appeal;
secondly, that he had not identified any appropriate grounds
sufficient to warrant an extension of time within which to
institute an appeal; and thirdly, that the grounds were not valid
grounds of appeal.
The Court was required to consider whether the proceedings had
been commenced within time. That, in turn, required consideration
of s.39A of the Acts Interpretation Act regarding service
by post. On the worst possible view of matters for Mr Towers, his
proceedings had been commenced 8 business days late.
Decision: The Court held that:
The grounds included at least one relevant ground which could
be a proper ground of appeal.
Having regard to the extent of delay in instituting
proceedings; the explanation for the delay; the absence of any
prejudice to the Respondent in defending the proceedings if an
extension were granted; and the fact that the grounds of appeal
included at least one which appeared relevant and arguable, on
balance the interest of justice would be best served by granting an
extension of time.
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