Cr Consultants v City of West Torrens No ERD-03-370 [2003] SAERDC 109 (30 October 2003)

Last Updated: 9 November 2003

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Trenorden (ex tempore)

Hearing

30/10/2003.

Catchwords and Materials Considered

LOCAL GOVERNMENT

Application for extension of time in which to lodge appeal against decision of Council - relevant factors - length of delay - prejudice to other parties - time in which to appeal extended.

• Development Act 1993 , referred to.

Representation

Applicant: CR CONSULTANTS
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent: CITY OF WEST TORRENS
Counsel: MR P LEADBETER - Solicitors: NORMAN WATERHOUSE

ERD-03-370

Judgment No. [2003] SAERDC 109

30 October 2003

CR CONSULTANTS

v

CITY OF WEST TORRENS

(ERD NO. 370 of 2003)

[2003] SAERDC 109

THE COURT DELIVERED THE FOLLOWING EX TEMPORE JUDGMENT:

1. I am going to extend the time within which to lodge the appeal. The decision has not been a straightforward decision. Ordinarily the fact that the Development Plan has changed would amount to a significantly weighty factor against extending the time. However, in this case there are other factors to be weighed and taken into account.

2. In particular dealing with the criteria; the length of the delay is not long, it is in the order of six weeks to two months; not long compared with some of the applications that have been in this Court. That is not a long period of delay.

3. The reason for the delay: I note that Mr Finn received the planning decision notification on or about 26 June 2003. On or about that date he instructed the business, CR Consultants, which had been dealing with the application on his behalf, to lodge an appeal against the respondent Council's decision. He then proceeded overseas. It would appear that no action was taken by CR Consultants or anyone either on their behalf or on Mr Finn's behalf to appeal the decision.

4. Mr Finn returned to Adelaide about the end of July but unfortunately he was ill and he was confined to his bed or his home for a period of three weeks thereafter. During that period of illness he spoke with Mr Rittos from CR Consultants and learnt that no appeal had been lodged. At that stage it appears he did nothing in terms of the appeal because he decided to pursue an alternative approach to developing the subject land. Eventually when he found that that alternative approach did not look as if it was going to be successful, on 16 October he lodged or purported to lodge an appeal in this Court.

5. I accept that Mr Finn clearly instructed CR Consultants to lodge an appeal well within time for lodgement of an appeal on or about 26 June 2003. If that had happened, the appeal would have been on foot when he returned from overseas.

6. I have considered the rights and interests of the parties, including prejudice to any party. Mr Leadbeter has put forward that allowing an extension of time to appeal would not be in the public interest, and would be prejudicial to the public within the City of West Torrens because there has been a change to the Development Plan. As a result of the planning amendment proclaimed or gazetted on 15 May 2003, the provisions of the Plan have changed from those against which the appeal would be assessed.

7. In this regard I note that the zoning of the land remains residential. It is not as if the zoning were changed to something completely different, and I have taken that into account. I have also taken into account that as a result of the Development Plan changes, any new application lodged for the subject land would be treated as a Category 2 development whereas the subject of the purported appeal was a Category 1 development.

8. I have not looked at the nature of the issues that would be before the Court should the purported appeal become an appeal; that would require me going into the merits and I do not consider that is for me to deal with at this stage.

9. I have taken into account that it is open to Mr Finn to start again under the current provisions of the Development Plan. I have considered the effort that that would involve on the part of the authorities and on the part of Mr Finn.

10. I have weighed up all the criteria which I should take into account in deciding whether to extend the time for the appeal and, as I have said, I have decided that the time should be extended. I now make an order extending the time within which an appeal against the decision of the respondent on Development Application No. 211/1015/2002 should be lodged, to the date 16 October 2003.