Pisani v Development Assessment Commission & Ors. No ERD-96-514 Judgment No OE398 [1996] SAERDC 398 (19 December 1996)

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

16/12/96.

Catchwords

LOCAL GOVERNMENT - TOWN PLANNING Development Act, 1993 - Section 38 - applications for 5 oyster leases - appellant made representations relating to 4 - overlooked 5th - all 5 approved by Commission - appeal against approval of 5th application - no notice of decision given by Commission to appellant relating to 5th application - no right of appeal - appeal instituted 15 days out of time - appeal struck out.

Materials Considered

• Development Act 1993 Section 38, referred to.
• The Queen v South Australian Planning Commission ex parte the Corporation of the City of Unley (1986) 44 SASR 100, considered.

Representation

Appellant Bartholomew PISANI:
Represented by: Mr Pisani

Respondent DEVELOPMENT ASSESSMENT COMMISSION:
Represented by: Mr R Hancock

Respondent I BISHOP; B TILBROOK; T BISHOP & R VINCE:
Represented by: Mr I Bishop

ERD-96-514

Judgment No. OE398

19 December 1996

E.R.D.C. No.514 of 1996

BARTHOLOMEW PISANI

v.

DEVELOPMENT ASSESSMENT COMMISSION

and

I BISHOP, B TILBROOK, T BISHOP & R VINCE

JUDGEMENT OF HH JUDGE BOWERING

By five development applications made in August, 1995, I J Bishop, B W Tilbrook, T R Bishop and R C Vince applied to the Development Assessment Commission for approval to establish five oyster leases in the waters of Gulf St Vincent on the western side of Yorke Peninsula, adjacent to the township of Stansbury. The applications were Development Nos. 010/0015/95, 010/0063/95, 010/0064/95, 010/0066/95 and 010/001/96 respectively. The Commission classified each of the proposed oyster leases as Category 3 developments within the meaning of Section 38 of the Development Act, 1993, and gave notice of them in accordance with the requirements of that Section. The required public notice was given by means of an advertisement published in "The Country Times", a newspaper which circulates within the area. Unfortunately the advertisement was printed on two pages - four of the leases were referred to on one page and the fifth, namely 010/0063/95, was on the following (opposite) page.

Mr Bartholomew Pisani is a professional net fisherman who both lives at and operates his fishing boat from the township of Stansbury. Although his fishing operations are conducted well beyond the waters adjacent to Stansbury, he told me that his "home waters" contribute substantially to his annual catch and that, accordingly, they are important to him. The leases are proposed to be established in waters which Mr Pisani regularly fishes. One of the proposed leases, namely that referred to in Development Application 010/0063/95, is proposed to be established in waters which, Mr Pisani says, are of particular importance to him. Accordingly, upon the notice of the applications being published in the Country Times, Mr Pisani decided to make representations to the Development Assessment Commission with respect to them. He did so by written representation received, by the Commission, on 15th October, 1996. Unfortunately and as a consequence of the manner in which the advertisements were published in the newspaper, Mr Pisani failed to notice that portion of the advertisement was on the next page. Consequently his representation related to only four of the Development Applications - he failed to make a representation with respect to the lease proposed in Development Application 010/0063/95. However, upon making his representations to the Commission (which he did by way of telephone hook-up), he became aware of the fifth application and made it clear, to the Commission, that the concerns which he was expressing related also to that application. By that time, the time for lodging representations had expired and, although the Commission was probably aware of Mr Pisani's concerns with respect to application 010/0063/95, it did not regard his comments with respect to that application as constituting a representation meeting the requirements of Section 38 of the Act.

In due course, the Commission made its decision. I am advised that the decision was actually made by one of the Commission's lawful delegates, namely the Agriculture Committee. The decision was that all five of the proposed oyster leases should be approved. In giving notice of its decision to Mr Pisani in accordance with the requirements of subsection 38(12) of the Development Act, the Commission gave notice of its decision with respect to only four of the leases, namely the four leases which had been the subject of his representation. It did not give Mr Pisani notice of its decision with respect to development application 010/0063/95. Although there is no evidence of precisely when Mr Pisani became aware of the Commission's decision with respect to that lease, it seems likely that Mr Pisani became aware of its approval either at the same time as or shortly after he became aware of the Commission's decisions on the other four applications.

The Commission's decision to approve the leases was made on the 30th October, 1996.

Mr Pisani tells me, and I accept, that the waters covered by lease 010/0063/95 are of particular importance to him. Thus he decided to appeal against the Commission's decision to approve the application for that lease. He did so by notice of appeal dated the 4th December, 1996, which notice was filed in the Registry of the Environment, Resources and Development Court on the 5th December, 1996.

The applicants' objected to the appeal lodged by Mr Pisani. They submitted that it is legally incompetent. The basis of this submission is twofold, namely, first, that Mr Pisani did not make a representation to the Commission with respect to development application 010/0063/95 and, secondly and assuming that Mr Pisani had a right of appeal, his notice of appeal against the Commission's decision was lodged fifteen days after the time for appeal had expired. The relevant provisions of Section 38 of the Development Act are in the following terms:-

"Public notice and consultation

38. (7) Where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent.

(12) Where representations have been made under this section, the relevant authority must -

(a) give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person's appeal rights under this Act; and

(b) in the case of a Category 3 development - give notice to the Court -

(i) of its decision on the application and of the date of the decision; and

(ii)of the names and addresses of persons who made representations to the relevant authority under this section.

(13)A notice under subsection (12) must be given within five business days from the date of the decision on the application.

(14)An appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision."

As I have said, the Development Assessment Commission classified all five applications as being for Category 3 developments. Mr Pisani made, to the Commission, a representation with respect to four of the applications but not with respect to the application now the subject of his appeal, namely application 010/0063/95. Thus he was not entitled to be given notice of the Commission's decision with respect to that application in accordance with the requirements of subsection 38(12) of the Act and, indeed, the Commission gave him no such notice. Subsection 38(14) makes it clear that his right of appeal to this Court against the Commission's decision on that application depends upon him being entitled to be given a notice pursuant to subsection 38(12). Thus the applicants submitted that Section 38 of the Act confers, upon Mr Pisani, no right of appeal against the Commission's decision to approve development application 010/0063/95.

It seems to me that the provisions of the Statute are quite clear. Unless Mr Pisani was entitled to receive notice of the Commission's decision on development application 010/0063/95 pursuant to subsection 38(12), he has no right of appeal to this Court against that decision. On the facts of this case, Mr Pisani was not entitled to receive such a notice. He made, with respect to such application, no representation to the Commission within the time specified as the time in which such representations must be made - see Regulation 35 of the Development Regulations which specifies a time of ten business days. In so saying, I have not overlooked that, when he subsequently made verbal submissions to the Commission in support of the representation which he had made, Mr Pisani expressed his concerns with respect to development application 010/0063/95 - however such submissions did not constitute a representation within the meaning of subsection 38(7) of the Act. In the circumstances, I do not think that the Commission was entitled to regard such submission as constituting such a representation nor, as I have said, did it do so.

Accordingly, Section 38 confers no right of appeal against the Commission's decision on development application 010/0063/95 upon Mr Pisani.

The second ground upon which the applicants' challenged Mr Pisani's appeal is that he has sought to institute it after the time for appeal, as set out in subsection 38(14) of the Act, has expired. That subsection requires that an appeal "be commenced within fifteen business days after the date of the decision". The Commission's decision in this matter was made on the 30th October, 1996. The fifteen business days referred to in the subsection expired on the 20th November, 1996, and Mr Pisani's appeal was not filed in the Registry of this Court until the 5th December, 1996, some fifteen days out of time. Mr Pisani's explanation for this is that, rather than commence legal proceedings by way of appeal against the applicants, he chose to discuss the matter with them with a view to persuading them to relocate the lease. The applicants agreed to relocate the lease but not to the extent sought by Mr Pisani. Thus, by the time he decided to appeal, the fifteen days had expired. The applicants oppose the granting of any extension of time to enable Mr Pisani to lodge his appeal. They stated that arrangements have been made to have work undertaken on the leases in January which arrangements would need to be postponed if leave to institute an appeal out of time is granted. They said that this would inflict substantial prejudice upon them.

They claimed, further, that, even leaving these arrangements aside, the delay necessarily arising as a consequence of an appeal would, in itself, be prejudicial.

I find it difficult to assess, with any accuracy, the extent of the prejudice which would be inflicted upon the applicants should Mr Pisani be granted leave to institute his appeal out of time. However, I accept that the granting of such leave would inflict some prejudice upon the applicants, and I have had regard to it.

Section 33 of the Environment, Resources and Development Court Act confers upon the Court wide powers to cure or excuse any irregularity or failure to comply with the requirements of either the Development Act or any other Act. I have considered whether I should use the powers so conferred to excuse Mr Pisani's failures to comply with various provisions of the Development Act. Although I have some sympathy for Mr Pisani, I do not think that this is a case in which I should do so. The requirements of Section 38 of the Act are substantive - the requirement that a person has no right of appeal against an authority's decision to approve a Category 3 development unless that person has made a representation in accordance with the requirements of the Act is fundamental. Although cases such as The Queen v South Australian Planning Commission ex parte the Corporation of the City of Unley (1986) 44 SASR 100 show that the powers conferred by Section 33 may well be wide enough to permit the institution of an appeal where no formal representation was made to the relevant planning authority, the circumstances in that case were unique and I do not think it appropriate that I apply the principles established in that case to the circumstances in this. Furthermore, whilst I think that the reasons given by Mr Pisani for failing to appeal within the prescribed time of fifteen days may, perhaps, justify an extension of two or three days, they do not, in my view, justify an extension of fifteen days. For these reasons I decline to use the powers conferred upon the Court by Section 33 of the Environment, Resources and Development Act to either excuse Mr Pisani's failure to comply with the requirements of Section 38 of the Development Act or to otherwise extend the time in which he may appeal. His appeal is thus legally incompetent.

The order of the Court is that this appeal be struck out.