Mercer v Kangaroo Island Council & Carey Contracting P/L No ERD-03-434 [2004] SAERDC 19 (3 March 2004)

Last Updated: 7 March 2004

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of Her Honour Judge Cole

Hearing

05/02/2004.

Catchwords and Materials Considered

LOCAL GOVERNMENT --- TOWN PLANNING

Application for extension of time within which to appeal decision of Council which gave provisional development plan consent to respondent to establish a landscape and building supply depot - officer of Council misinformed the representor re appeal rights - Court's power to extend the time within which an appeal may be instituted - application dismissed.

• Development Act 1993 ;
• Environment Resources and Development Court Act 1993 ;
• Limitation of Actions Act 1936 , referred to.
• Olds v District Council of Lower Eyre Peninsula and P Owen [2002] SAERDC 121, applied.

Representation

Appellant: ALLAN MERCER
Advocates: MS H MERCER

First Respondent: KANGAROO ISLAND COUNCIL
Counsel: MR G LEYDON - Solicitors: NORMAN WATERHOUSE

Second Respondent: CAREY CONTRACTING PTY LTD
Counsel: MR G MANOS - Solicitors: MANOS & ASSOCIATES

ERD-03-434

Judgment No. [2004] SAERDC 19

3 March 2004

ALLAN MERCER

v

KANGAROO ISLAND COUNCIL

AND

CAREY CONTRACTING PTY LTD

(ERDC 434 of 2003)

[2004] SAERDC 19

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This is an application by Mr Mercer ("the representor") for an extension of time within which to appeal from the decision of the Kangaroo Island Council ("the Council") to grant provisional development plan consent to a development application by Carey Contracting Pty Ltd ("Carey Contracting").

The development application

2. The development application in question was dated 28 January 2003. Carey Contracting sought consent to establish a landscape and building supply depot (service trade premises) on the land at Lot 7, Hogg Bay Road in the Hundred of Dudley. The Council processed the application as a Category 3 application for a kind of development which is neither complying nor non-complying. Consultation was undertaken with various agencies. Mr Mercer made a representation in relation to the application.

3. On 7 May 2003, the application was considered at a meeting of the Council's Development Assessment Panel. The representor was present at the meeting. Provisional development plan consent was granted to the application subject to 20 conditions.

Events subsequent to the meeting

4. Mrs Mercer, the representor's wife, gave evidence to the effect that she and her husband were present at the meeting on 7 May 2003. They became aware of the decision that had been made by the Development Assessment Panel on the night of the meeting or the next day, in a telephone conversation with Mr Mitchell, a Council planning officer. However, in that telephone conversation, Mr Mitchell told Mrs Mercer that there was no appeal from the provisional development plan consent, but that there would be an opportunity to appeal from the grant of the development authorisation at a later time. Surprisingly, Mr Mitchell was misinformed about the development control system under the Development Act 1993, and created confusion in the mind of the representor.

5. The representor proceeded to wait, in the expectation that at some future time, he would be "given his appeal rights". Both he and Mrs Mercer continued to communicate with Mr Mitchell regarding the application. In August, the document entitled "Notification of Provisional Development Plan Consent" was provided to them by Mr Mitchell.

6. On 4 November 2003, the Council sent to Mr Mercer a letter advising him, among other things, in these terms:-

"I advise that it has come to my attention that Council's Planning Officer has released the approval to the applicant which may in fact be contrary to the actual intent of several of the conditions of consent.

I also note that Council has not advised you within five days of the date of the decision of the application which is a requirement under Regulation 38(13) of the Development Regulations 1993 which would allow you the opportunity to an appeal to the ERD Court against Council's decision.

Given the foregoing, I advise that should you wish to seek leave to appeal out of time with the Court Council will not oppose your option."

7. This letter, and other documents tendered at the hearing expose a series of fundamental misunderstandings by the officers of the Council concerning the development control system.

8. The letter of 4 November 2003 should have put the representor upon notice that he was under some time pressure to investigate his rights. In fact, it was not until 10 November 2003 that he took any steps and then, instead of contacting the Court, he wrote again to the Council on 11 November 2003. On 25 November 2003, he sought and received from the Court registry a blank Notice of Appeal. He then lodged a Notice of Appeal which was dated 28 November 2003, but which was received by the Court registry on 1 December 2003.

Power to extend time

9. It is well-established that the Court does not have power to extend the time within which a third party may appeal under s.33 of the Environment Resources and Development Court Act 1993. That section deals only with the powers of the Court when proceedings are on foot, and this matter concerns a purported or prospective appeal.

10. The Court does, however, have power to extend the time within which an appeal may be instituted under s.48(1) of the Limitation of Actions Act 1936, which provides:-

"Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -

(a) instituting an action; or

(b) doing any act, or taking any step in an action; or

(c) doing any act or taking any step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require."

11. Pursuant to s.21(1)(c) of the Environment Resources and Development Court Act 1993, the Court may dispense with the requirement in s.48(4) of the Limitation of Actions Act 1936 that a statement seeking an extension of time must be endorsed upon the instituting process - in this case, the Notice of Appeal.

12. In deciding whether to extend the time for an appeal, the Court must have regard to the length of the delay, the reasons for the delay, the question of whether there is an arguable case and the prejudice which would be suffered by the applicant for consent. (see Olds v District Council of Lower Eyre Peninsula and P Owen [2002] SAERDC 121).

13. I am satisfied that there is an arguable case. The application is for service trade premises in a General Farming Zone, and, on the face of the documents before me, it is clear that there is an argument with respect to whether the proposed land use is appropriate in the zone, as well as arguments with respect to the potential impact of the proposed land use on the representor.

14. Mr Carey gave evidence in respect of the prejudice that Carey Contracting would suffer in the event that the time within which an appeal may be instituted is extended. I am satisfied that equipment and materials have been purchased in reliance upon the approval, and that any further delay may well jeopardise a business relationship that Mr Carey is pursuing in relation to the land use Carey Contracting wishes to establish.

15. Mrs Mercer gave evidence that she had been involved in other proceedings before this Court recently. It is puzzling, then, that she and Mr Mercer should have looked only to the Council for information regarding the lodgement of an appeal. The Development Act 1993 provides only a brief time within which a representor may appeal; fifteen days from the date of the decision. Had the decision in this matter been made on 4 November 2003 (the date of the letter advising the representor to investigate his rights) the representor would have had until the end of business on 19 November 2003 to lodge an appeal. In the event, he took until 1 December 2003. The explanation for this seems to be that he continued to look to the Council to advise him. By then, however, he had been told to look elsewhere, and, in all of the circumstances, including his past experience with the Court, it was not reasonable to rely entirely upon the Council.

Conclusion

16. It is most unfortunate that Mr and Mrs Mercer were misled by Mr Mitchell. Hopefully, the Council is taking steps to ensure that this situation is not repeated. In all of the circumstances, however, this is not an appropriate case for the exercise of the power in s.48(1) of the Limitation of Actions Act 1936. I decline to extend the time for the institution of an appeal. The application is dismissed.