Noseda Petrol & Ors v Cc Mt Gambier & Brown Falcon No ERD-99-737 Judgment No OE79 [1999] SAERDC 79 (9 September 1999)

Last Updated: 4 October 1999

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

30/08/99.

Catchwords

LOCAL GOVERNMENT - TOWN PLANNING Development Act 1993 - representation made to Council pursuant to subsection 38(7) - Category 3 development - representor did not indicate an interest in being heard - interest indicated later - representor heard by a committee of Council acting under delegation - decision to approve made by Council - representor had no right to appear or be heard in any event - application to quash provisional development plan consent refused.

Representation

Appellant NOSEDA PETROLEUM PTY LTD, ALAN HARRISON TRADING AS AMPOL EASTERN, SCOTTS' AGENCIES PTY LTD & MOBIL OIL AUST LTD:
Solicitors: THOMSON PLAYFORD - Represented by: MR S HENRY ON INSTRUCTIONS

Respondent CORPORATION OF THE CITY OF MOUNT GAMBIER:
Counsel: MR T MELLOR - Solicitors: MELLOR OLSSON

Respondent BROWN FALCONER GROUP PTY LTD:
Counsel: MR B HAYES QC - Solicitors: CLELANDS

ERD-99-737

Judgment No. OE79

9 September 1999

NOSEDA PETROLEUM PTY LTD & ORS

v

CITY OF MOUNT GAMBIER

and

BROWN FALCONER GROUP PTY LTD

E.R.D.C. No.737 of 1999

[1999] SAERDC 79

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1 This is an application by Noseda Petroleum Pty Ltd to quash a provisional development plan consent granted on 24th May, 1999, by the City of Mount Gambier to Brown Falconer Group Pty Ltd (acting on behalf of Woolworths) relating to the construction of a petrol filling station on the existing Woolworths supermarket car park situated at Commercial Street East, Mount Gambier.

2 The application for provisional development plan consent is dated 28th August, 1997. The Council determined the proposed petrol filling station to be a Category 3 development within the meaning of Section 38 of the Development Act, 1993, and, after various events not here relevant, published notice of application for a Category 3 development in accordance with the requirements of Section 38. That notice was published on 16th March, 1999, and resulted in a number of written representations opposing the proposed development. One of the representations came from Noseda Petroleum Pty Ltd. As stated, the Council granted provisional development plan consent to the proposed development on 24th May, 1999, and Noseda has appealed to this Court against that decision. This judgement relates to an application by Noseda to quash the provisional development plan consent on the ground that the Council has failed to comply with some of the requirements prescribed by Section 38 of the Act.

3 Stated briefly, the basis of the application lies in the fact that the Council has delegated some of its powers under the Development Act. Section 20 of the Act confers wide powers of delegation upon, amongst other bodies, a Council. Section 20 of the Act includes the following provisions:-

"20. (1) The Minister, the Advisory Committee, the Development Assessment Commission or a council may delegate any power or function vested in or conferred on him, her or it under this Act.

(2) A delegation -

(a) may be made -

(i) to a particular person or body; or

(ii) to the person for the time being occupying a particular office or position; or

(iii) to a controlling authority established under the Local Government Act 1934;"

4 At its meeting on 17th September, 1998, the Council delegated certain of the powers and functions conferred upon it by subsection 38(10) and (11) of the Development Act to its Environmental Services Committee. Amongst the powers so delegated was to:-

"Hear personal representations or representations by representative Category 2 and Category 3 applications." [sic]

5 Several things may be said of this delegation, the first of which is that it is limited to the hearing of representations and does not, by its terms, include the making of any recommendation to Council. However, the parties agree that it is the normal practice of the Committee, having heard representations, to make a recommendation to Council with respect to the development application concerned. However, as far as this application is concerned, the Committee did not make a recommendation, for, having heard the representations at its meeting on 11th May, 1999, a motion was put the effect of which was that provisional development plan consent should be granted. However, the vote was tied and the motion was not carried. Thus the Committee made no recommendation to Council.

6 The other thing that can be said of the delegation is that it does not include the power to determine the application. The practical effect of this is that one body, namely the Environmental Services Committee, hears representations relating to a proposed development whilst another body, namely the Council, makes the decision. That is what occurred in this case. The Environmental Services Committee heard the representations relating to the proposed petrol filling station whilst the Council, at its meeting held on 20th May, 1999, made the decision that provisional development plan consent should be granted. This is the basis for the claim by Noseda that Council has failed to properly comply with the requirements of subsection 38(10) of the Development Act and that, consequently, the provisional development plan consent granted should now be quashed.

7 The relevant provisions of Section 38 are as follows:-

"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.

(8) The relevant authority to which the application is made must forward to the applicant a copy of the representations made and allow the applicant an opportunity to respond, in writing, to those representations.

(9) The response referred to in subsection (8) must be made within the prescribed number of days after the relevant material is forwarded to the applicant.

(10) In addition to the requirements of subsections (7), (8) and (9) -

(a) in the case of a Category 2 development - the relevant authority may, in its absolute discretion, allow a person who made a representation to appear personally or by representative before it to be heard in support of the representation; and

(b) in the case of a Category 3 development - the relevant authority must allow a person who made a representation and who, as part of that representation, indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative before it to be heard in support of the representation.

(11) If a person appears before the relevant authority under subsection (10), the relevant authority must also allow the applicant a reasonable opportunity, on request, to appear personally or by representative before it in order to respond to any relevant matter."

8 The basis of the application is that Noseda was not given a reasonable opportunity to appear before Council to be heard in support of its representation. Thus the first question is whether it had a right to be so heard. In my view, the provisions of subsection 38(10)(b) are quite clear: a representor is entitled to a reasonable opportunity to appear before the Council only if, having made a representation, has "as part of that representation, indicated an interest of appearing before the authority". There is no doubt that, with respect to this development, Noseda lodged a representation. It was a comprehensive representation lodged, on its behalf, by Jensen Planning and Design and signed by Mr Sandy Rix, a principal planner with Jensen. However, the representation did not indicate an interest, on behalf of Noseda, of appearing before the Council to be heard in support of the representation. Thus, on the face of the representation, Noseda had no right to appear before either the Environmental Services Committee or the Council. It had no right to be heard at all. Thus the fact that it was heard by the Environmental Services Committee - presumably as an act of grace and favour - instead of the Council does not lead to the conclusion that it has not received its full measure of rights.

9 Upon this application coming on for hearing before me, Mr Henry appeared for Noseda, Mr Mellor for the Council and Mr Hayes QC for Woolworths. Mr Henry submitted that, notwithstanding the terms of its representation, Noseda should have been heard by the Council. The basis of this submission is that, on or about 9th April, 1999 Mr Rix had a telephone conversation with the Senior Planning Officer of the Council, Mrs Julie Blackmore, in which the subject under discussion was the date of the meeting at which the Environmental Services Committee would consider the Woolworth's application. Mr Rix indicated a desire to be heard by the Committee, which desire Mrs Blackmore recorded. As a consequence, Mr Rix was permitted to address the Committee at its meeting on 11th May. Following this meeting (and, presumably, appreciating that the vote was tied) Mr Rix again telephoned Mrs Blackmore and asked for an opportunity to address the Council at the meeting at which it was due to make the decision. Mrs Blackmore advised him that, in view of the delegation, it was not the custom of Council to hear representors and that, accordingly, he would not be heard. As a consequence, on 18th May, 1999, Mr Rix wrote to Mrs Blackmore seeking confirmation "that no further opportunity will be provided for either the applicant or representors to address the Council on the application." Mrs Blackmore confirmed that no such opportunity would be granted, and the Council proceeded to decide the application at its meeting on 20th May without hearing any of the representors.

10 Mr Henry referred to subsection 33(1) of the Environment, Resources and Development Court Act, 1993, the terms of which are as follows:-

"33. (1) If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that -

(a) there has been a failure to comply with a requirement of any Act or other law that affects the matter to which the application or appeal relates; and

(b) it would not be unjust or inequitable to exercise the powers conferred by this subsection,

the relevant Court may excuse the failure by ordering that, subject to such conditions as may be stipulated by the relevant Court, the requirement be dispensed with to the necessary extent."

11 Mr Henry acknowledged that Noseda, in not indicating as part of its representation, an interest in appearing before the Council, has not brought itself within the provisions of subsection 38(10)(b) sufficiently to claim a right to be heard by the Council. He requested the Court to exercise the powers conferred upon it by Section 33 of the Environment, Resources and Development Court Act and excuse Noseda's failure to specify, in its representation, a desire to heard. However, I do not think that the failure of Noseda to specify in its representation a desire to be heard by the Council constitutes "a failure to comply with a requirement of any Act or other law" as those words are used in subsection 33(1)(a) of the Environment, Resources and Development Court Act. Subsection 38(10) of the Development Act gives, to a person lodging a representation, an option of a or a right to indicate a desire to be heard - it does not impose an obligation to indicate a desire either to be heard or not to be heard. A person who fails to indicate a desire to be heard in a representation lodged with the Council has not committed a failure to comply with the requirements of the subsection. Rather, that person has failed to do that which she or he is not required to do. I do not think that, in the circumstances of this case, there is either any failure to excuse or any consequential order which can or should be made.

12 I think it appropriate to add that, even if this is a situation in which an order could be made pursuant to the subsection, I am far from satisfied that it would be either just or equitable to exercise the powers so conferred. Stated simply, the Council has granted provisional development plan consent to Woolworths, which consent is subject to representor appeals. Those appeals should be heard upon their merits. I do not think it appropriate to now quash the consent on the basis that the Council (it is said) imperfectly discharged a function which it was under no obligation to undertake at all. Such a course would not, in my opinion be either just or equitable.

13 For these reasons, I am of the opinion that this application should be dismissed.

14 In so saying, I have not overlooked that Mr Henry's principal ground of attack was that subsections 38(10) and (11) of the Development Act indicate a clear intention that the body which hears representations relating to a development application should be the body which decides the application, and that a process, implemented by delegation, whereby the process of hearing the representations is by a committee whilst the decision is made by the Council is one which is not envisaged by Section 38. To create such a situation by delegation is not, Mr Henry submitted, in accord with the intention of the Development Act and thus constitutes an improper use of the delegation power. For the Council, Mr Mellor submitted that the powers of delegation conferred upon the Council by Section 41 of the Local Government Act and Section 20 of the Development Act are very wide, and that the powers of delegation exercised by the Council fell well within them. There is nothing, he said, in the Development Act which precludes the exercise of the delegation in this fashion. He cited several authorities in support of such a proposition. Mr Hayes supported Mr Mellor's submissions. I have considered carefully whether I should express any views upon the question thus raised. However, given that the delegation in this case was a general delegation - that is, it applies to the manner in which the Council deals with all Category 2 and 3 development applications - and that the same question may arise in other cases, I have come to the conclusion that the appropriate course is that I leave this question to be argued and decided in a case in which it is specifically applicable, should such a case arise.

15 The order of the Court is that the application is dismissed.