Empak Homes v District Council of Grant & Riquier No ERD-99-1166 [2000] SAERDC 19 (25 February 2000)

Last Updated: 3 April 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Reasons For Decision of Her Honour Judge Trenorden

Hearing

18/02/2000.

Catchwords

Representation not in accordance with Development Act and Regulations - whether provisions of Section 33(1) of Environment, Resources and Development Court Act can be applied - "proceedings" - "failure to comply with requirement of an Act" - whether unjust or inequitable to excuse - effect of delay - relevance of allegation of procedural errors by relevant authority - appeal struck out.

Materials Considered

• Development Act 1993 ;
• Environment, Resources and Development Court Act 1993 , referred to.
• Frommelt v Development Assessment Commission and City of Mitcham (1994) EDLR 424;
• Keane v The City of Salisbury (1995) EDLR 308;
• Pisani v Development Assessment Commission and Others Judgment No OE398 (deliv 19 December 1996);
• Sampson v Development Assessment Commission and Anor Judgment No [1999] SAERDC 46 (deliv 26 May 1999);
• Mancorp Holdings v Corp of the City of Adelaide & Ors (1998) EDLR 25;
• R v SA Planning Commission; ex parte The Corp of the City of Unley (1986) 44 SASR 100 at 105;
• Kammerman v SA Planning Commission & Anor (1986) 42 SASR 394, considered.

Representation

Appellant EMPAK HOMES:
Counsel: MR M DOHERTY - Solicitors: LYNCH & MEYER

First Respondent DISTRICT COUNCIL OF GRANT:
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Second Respondent GLHFM & BM RIQUIER:
Counsel: MR S HENRY - Solicitors: STUART HENRY

ERD-99-1166

Judgment No. [2000] SAERDC 19

25 February 2000

EMPAK HOMES

v

DISTRICT COUNCIL OF GRANT

and

GLHFM & BM RIQUIER

(ERDC No. 1166 of 1999)

[2000] SAERDC 19

THE COURT DELIVERED THE FOLLOWING REASONS FOR DECISION:

1. Empak Homes Pty Ltd purported to lodge an appeal against the decision of the District Council of Grant ("the Council") to grant provisional development plan consent to the application by GLHFM and BM Riquier to divide land, being Development Application No. 732/DO10/98. The decision of the District Council of Grant was made on 8 September 1999.

2. Following argument, this Court determined, by its decision on 14 February 2000, that the document lodged by Norman S Mitchell and Empak Homes dated 19 August 1998, which purported to be a representation pursuant to Section 38 of the Development Act 1993, was not a representation within the meaning of the Act and Regulations, as it failed to comply with the statutory requirements of the Development Act 1993, and that Empak Homes had no right of appeal to this Court.

3. This judgment is in relation to the application by counsel for Empak Homes for the Court to exercise its powers under Section 33(1) of the Environment, Resources and Development Court Act 1993 to excuse the failure by Empak Homes to comply with the Act and Regulations in making its representation and to allow the appeal to proceed.

4. The provisions of Section 33(1) 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."

"Proceedings before the Court"

5. There was argument as to whether a purported appeal constituted "proceedings before the Court" in the context of Section 33. The term is wide enough to include appeals and purported appeals. That was the view of the Court, albeit obiter, in Frommelt v Development Assessment Commission and City of Mitcham (1994) EDLR 424. It is also consistent with the views of the Full Court of the Supreme Court, and its discussion of the word "matter" as used in the Environment, Resources and Development Court, see Keane v The City of Salisbury (1995) EDLR 308.

6. The institution of legal proceedings may or may not invoke the jurisdiction of the Court. Whether the proceedings invoke the jurisdiction of the Court is a matter for determination by the Court itself. Proceedings may be dismissed or struck out because, inter alia, the Court has no jurisdiction to hear them. Thus, "proceedings" is a term that embraces any proceedings instituted in this Court, as the term is used in Section 33 of the Environment, Resources and Development Court Act.

Prior Relevant Decisions

7. There have been several judgments of this Court in which consideration has been given to the exercise of the Court's powers under Section 33(1) to excuse the failure by a person to lodge a representation in respect of a Category 3 development within the meaning of the Act and Regulations. They were referred to by counsel, in argument.

8. In Frommelt (above), where Mrs Frommelt had not lodged anything purporting to be a representation, at page 429, the Court said:

"If the Court were to treat the lack of a representation by Mrs Frommelt as a failure that could be excused under the provisions of Section 33(1), thus enabling the appeal to proceed, then it could be open to any person who is entitled to make a representation to a relevant authority, but who failed to do so within the specified time, to come to the Court and have his or her failure excused with a view to enabling an appeal instituted by him or her becoming a lawfully instituted appeal. That cannot have been the intention of Parliament, and is clearly contrary to the specific and particular provisions of the Development Act and Regulations with respect to representations and rights of persons who have made representations. Accordingly, Section 33(1) cannot assist to give the Court jurisdiction to hear Mrs Frommelt's purported appeal."

9. In Pisani v Development Assessment Commission and Others, Judgment No. OE398 (delivered 19 December 1996), where, as in Frommelt, there had been no representation made, Judge Bowering expressed the following views:

"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 do not think that this is a case in which I should (use the powers so conferred to excuse Mr Pisani's failure to comply with various provisions of the Development Act). 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."

10. In Sampson v Development Assessment Commission and Anor, Judgment No. [1999] SAERDC 46 (delivered 26 May 1999), where it was determined that Mr Sampson's purported representation was not in accordance with the Act and Regulations, with respect to both content and time, the Court said:

"... Section 86 (of the Development Act) establishes the right of appeal of persons who are entitled to receive notification under Section 38, but of course Mr Sampson was not a person entitled to receive notification because his representation was out of time. There is no right of appeal for him ... In my view that is the end of the matter. I have no discretion to exercise under Section 33 of the Environment, Resources and Development Court Act 1993 because, there being no right of appeal, there is nothing before me. I have expressed that view in other matters."

11. In Mancorp Holdings v Corporation of the City of Adelaide and Others (1998) EDLR 25, his Honour Judge Bowering assumed there was a power in Section 33(1) of the Environment, Resources and Development Court Act to "excuse the failure of Mancorp to comply with the relevant requirements of Section 38 of the Development Act and Regulation 35 of the Development Regulations when submitting its representation in this matter to the Council on 22 September 1997". He ordered that the requirements be dispensed with and that the appeal instituted by Mancorp be deemed to be duly instituted; the Court having determined that it would not be unjust or inequitable to so order. There was no argument as to the extent of the Court's power under Section 33(1) of the Environment, Resources and Development Court Act, in the context of a document that did not meet the mandatory statutory requirements for a representation. His Honour accepted jurisdiction and then considered whether it would be either unjust or inequitable to exercise the powers conferred by the subsection.

12. The Supreme Court has given its imprimatur to a power in the nature of Section 33(1) of the Environment, Resources and Development Court Act being given "a wide, ample and benevolent construction, according to its tenor": R v SA Planning Commission; ex parte The Corporation of the City of Unley (1986) 44 SASR 100 at 105 and Kammerman v SA Planning Commission and Anor (1986) 42 SASR 394. In those cases there had been a failure by the relevant authority. In both cases that failure had led to a failure by the purported appellant to take a step in accordance with the statutory requirements, which would have conferred a right to be given notice and thus a right to appeal.

The Nature of the "Failure to comply with a requirement of any Act or other law that affects the matter to which the ... appeal relates"

13. The Development Act grants a limited right of appeal in respect of a decision to grant provisional development plan consent, to persons other than the applicant for consent. The rights to apply to the Court are set out in Section 86 of the Development Act. Section 86(1)(b) circumscribes the right of a person who is not an applicant for provisional development plan consent, to appeal against the decision of a relevant authority. The development the subject of the application must be a Category 3 development under Section 38 of the Development Act, and the person must be entitled to be given a notice of the decision. The right is expressed to be subject to the limitations imposed by Section 38 of the Act. Under Section 38(12) of the Act, the only persons who are entitled to be given notice of the authority's decision are those who made a representation. A notice must be given within a specified time. An appeal must be instituted within a specified time.

14. Any representation that is made under Section 38 in respect of an application for development consent must comply with subsection 38(6)(d) and, by subsection 38(7), with Regulation 35. I have already held that the purported representation by Empak Homes did not comply. Thus Empak Homes was not entitled to be given notice of the decision, even though the Council gave notice to the company.

15. It is sought to excuse the failure by Empak Homes to comply with the Act and Regulations. In effect, the failure which I am being asked to excuse then, is the failure by Empak Homes to bring itself within the category of persons who have a right of appeal to this Court.

16. By Section 33(1), this Court has a wide discretion: R v SA Planning Commission; ex parte Unley (above); provided it is not unjust or inequitable to exercise that discretion.

17. It is unlikely that the differences between Section 33(1) of the Environment, Resources and Development Court Act and Section 35(1) of the now repealed Planning Act, as it was at the time, are sufficient to render the judgment of the Supreme Court in the Unley case no longer relevant. However, the conclusion to which I have come renders further consideration of the Court's powers in this regard, irrelevant.

Whether Unjust or Inequitable

18. It is my conclusion that it would be unjust for the Court to exercise the powers it would appear to have, in Section 33(1). The purported representation, as I said in my reasons delivered ex tempore on 14 February 2000, was not "in such terms and of such specificity that the applicant (for consent) can respond to it and the Council is able to have regard to it when making its decision". It did not indicate any objection to the proposed development. It contained nothing to which the applicant could respond. The purported representation must be adjudged on its face. Given that the applicants had not been appraised of any objections on the part of Empak Homes, prior to the matter coming to this Court, it would be unjust, in the circumstances, for the applicants to hear now, in this Court, for the first time, the nature of the concerns Empak Homes might now have.

Relevance of delay in raising issue

19. Finally, it matters not that the relevant authority, namely the District Council of Grant, treated the purported representation as a representation notwithstanding its deficiencies, nor does it matter that this argument was only raised by the second respondent some 4 months after the institution of the proceedings by Empak Homes. It is open to the Court at any time to consider and determine whether it has jurisdiction to hear the proceedings which have been instituted.

20. Empak Homes alleged in argument that the Council made errors or omissions in dealing with the application, subsequent to its submission of the purported representation. Counsel submitted that this Court should allow the appeal to proceed, either on the basis of a finding, following evidence, that there were procedural errors, or that the allegation of same would make it unjust not to allow the appeal to proceed. I  reject this submission. The Court must have jurisdiction before it can deal with such allegations. If they are advanced on the basis that it would be unjust or inequitable not to excuse the failure by Empak Homes, so as to allow these allegations to be explored, that is not an argument that can succeed, given the terms of Section 33(1) of the Act. To allow it to succeed, would be to sanction a distorted reading of the powers of the Court, which are to excuse the failure where it appears to the Court that it would not be unjust or inequitable to do so. These allegations are not relevant to the exercise of my discretion.

Decision

21. It would be unjust for me to exercise any power in Section 33(1) of the Environment, Resources and Development Court Act for the Court to excuse the failure by Empak Homes to comply with the statutory requirements applicable to a representation, to order that the statutory requirements for a valid representation, be dispensed with, and so I decline to make an order. In light of these conclusions, it follows from my earlier decision that Empak Homes has no right of appeal and that the appeal by Empak Homes is not a valid appeal, the appeal is struck out. I so order.