Parbs & Anor v Barossa Council & Rocland Wines P/L No ERD-00-467 [2000] SAERDC 49 (7 July 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Decision of Her Honour Judge Trenorden (ex tempore)

Hearing

07/07/2000.

Catchwords

Purported appeal by 3rd party - date of applicable Development Plan - whether application for a Category 2 or Category 3 development - no jurisdiction to hear an appeal - purported appeal dismissed for want of jurisdiction.

Materials Considered

• Development Act 1993 , referred to.
• Conservation Council of SA Inc v Development Assessment Commission & Tuna Boat Owners Association of SA 1999 EDLR 270, considered.

Representation

Appellant ANTHONY J PARBS & GRANT PENRHYN:
No Attendance

Respondent THE BAROSSA COUNCIL:
Counsel: MR J HILDITCH - Solicitors: WARD AND PARTNERS

Respondent ROCLAND WINES PTY LTD:
Counsel: MR J BOTTEN - Solicitors: JAMIE BOTTEN & ASSOCIATES

ERD-00-467

Judgment No. [2000] SAERDC 49

7 July 2000

ANTHONY JAMES PARBS & GRANT PENRHYN

v

THE BAROSSA COUNCIL

&

ROCLAND WINES PTY LTD

(ERDC No 467 of 2000)

[2000] SAERDC 49

THE COURT DELIVERED THE FOLLOWING DECISION:

1. The submission before me is that the development application was made to the Council on 11 January 2000 when the lodgment fee was paid, (the application having been lodged without fee on 10 January 2000) and that because the lodgment fee was paid on 11 January 2000, by Section 53 of the Development Act 1993 the Development Plan against which the application had to be assessed was that dated 16 December 1999. By virtue of the provisions of that Development Plan the application should have been treated as being for a Category 2 development, according to the applicant. It was treated by the Council as an application for a Category 3 development and relying upon that, an appeal has been lodged by two persons who made representations.

2. Counsel for the applicant submits that the application was properly for a Category 2 development and that therefore the appellants have no right of appeal.

3. The Council dealt with the matter as being for a Category 3 development because, there being more than one fee payable by virtue of Schedule 6 to the Development Regulations 1993, and the last fee having been paid on 14 January 2000, it took that date as the date on which the application was made. The relevant Development Plan then in operation was not the Development Plan dated 16 December 1999, but one which had came into force on 13 January 2000.

4. If the approach which was taken by the Council was correct then the application was properly dealt with as being for a Category 3 development. The question is, was it properly dealt with as a Category 3 development or was it properly a Category 2 development? This question is preliminary to determining whether the purported appellants do have a right of appeal.

5. Section 39 of the Development Act 1993, requires an application to be of a certain form and among other things to be accompanied by the appropriate fee. Regulation 15 and Schedule 6 of the Development Regulations sets out the fees payable in relation to the application. It is unfortunate that the wording of the Act and Regulations lacks consistency in some respects. Section 53(2) of the Act provides that:

"The provisions of a Development Plan that are relevant ..... are the provisions of the relevant Development Plan as in force at the time the application was made."

6. In looking at the meaning of the words "the application was made", one looks elsewhere in the Act and, for example, one could look to Section 41 and Regulation 41 which sets out the time within which an application must be determined. That time is calculated, not as one might think, from the date the application was made but from the date of receipt of the application. It is not a question I have to determine today but I can see that it is rather confusing to ascertain the relevant date given the different terminology used in the Development Act and the Development Regulations.

7. Apart from all of that, in Conservation Council of SA Inc v Development Assessment Commission & Tuna Boat Owners Association of SA, 1999 EDLR 270, the Court said in that matter, the application had been properly made when the lodgment fee, as opposed to any other fees that might be payable, had been paid. It seems to me that it must follow that in this case the application had been made on 11 January 2000 when the lodgment fee was paid. Certainly the application complied with Section 39 on 11 January and I now find that the application therefore was made on that date. It follows from that finding by virtue of Section 53(2) that the relevant Development Plan against which the application had to be assessed was that dated 16 December 1999. The provisions of that Development Plan for the relevant zone, namely the Barossa Valley Rural (Nuriootpa Plains) Zone in which the subject land is situated, provide that the application, having regard to the particulars thereof, was for a Category 2 development and should have been dealt with as such.

8. Having said all of that I can understand how confusing it must be for Councils looking at the Act and the Regulations, in the situation where there are fees other than a lodgment fee to be paid.

9. That finding then takes me to the standing of Messrs Parbs and Penrhyn, the purported appellants, to come to this Court challenging the decision of the Council with respect to the application.

Section 38(14) provides that:

"An appeal against the decision on a Category 3 development by a person who is entitled to be given notice must ..... be commenced within 15 business days .....".

11. Section 86, which is that Section of the Act which sets out the rights to appeal to this Court, provides in subsection (1)(b) that:

"a person who is entitled to be given notice of a decision in respect of a Category 3 development under section 38 may appeal to the court .....".

12. I determine that a person only has a right of appeal where, as a matter of fact, the application was for a Category 3 development. My determination follows from a consideration of the words in Section 86(1)(b) and in Section 38 of the Development Act.

13. I find that as a matter of fact the application was not for a development which was a category 3 development. It was for a Category 2 development and it follows that there is no right in the appellants to come to this Court. They have no standing to bring an appeal. The Court has no jurisdiction to hear an appeal. Their appeal is dismissed for want of jurisdiction and there will be an order accordingly.