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VERBIS v TOWN OF GAWLER & ANOR [2008] SAERDC 9 (15 February 2008)

Last Updated: 20 February 2008

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

VERBIS v TOWN OF GAWLER & ANOR

[2008] SAERDC 9

Judgment of Her Honour Judge Trenorden

15 February 2008

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Appellants' appeal lodged out of time - Application to extend time in which to appeal - Appeal is against Council's decision to grant provisional development plan consent to Second Respondent - Whether Court thinks appellants' have a case to answer - Whether Court has jurisdication to extend time to appeal in this instance - Application granted.
Development Act 1993; Environment, Resources and Development Court Act 1993; Limitation of Actions Act 1936, referred to.
Tanner and Morris and Ors v Corporation of The City of Unley and Eldercare Inc. [1998] EDLR 290; Mercer v Kangaroo Island Council and Carey Contracting Pty Ltd [2004] SAERDC 19; General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659; Kammerman v South Australian Planning Commission and District Council of Mount Barker (1986) 42 SASR 394; Thorpe v City of Charles Sturt [1999] SASC 10; Moyes and Anor v J & L Developments and Anor [2004] SASC 319; Upham v The Grand Hotel (S.A.) Pty Ltd and The Development Assessment Commission (1999) 74 SASR 557, considered.

VERBIS v TOWN OF GAWLER & ANOR
[2008] SAERDC 9

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 Mr and Mrs Verbis lodged a notice of appeal on 16 January 2008. The reasons for the appeal were expressed as follows:

Council neglected to notify resadents (sic) and myself of council meeting so we could be heard. Decision was made with out listning (sic) to resadents (sic).
Please refer to attached letter written to Council

2 Attached to the notice of appeal was a document signed by Mr and Mrs Verbis which set out the reasons for objection to the proposed development in DA 490/660/2007 by Eastern Building Group.
3 That appeal was treated by this Court as a purported appeal against the decision of the first respondent ("the Council") made on 10 December 2007, whereby the Council granted provisional development plan consent to an application made under the Development Act 1993, by the second respondent (Eastern Building Group), subject to 16 conditions, for development in the nature of a child care centre, on land at 40 Para Road, Evanston ("the subject land"), and thus was set down for a hearing as to whether the Court should extend the time in which to appeal.
4 Mr and Mrs Verbis who live next door to the site of the proposed development by Eastern Building Group were not represented by counsel and had little understanding of how to argue their case, but clearly conveyed through Mr Verbis, that they were not given an opportunity to be heard, nor were they heard in relation to the development application, by the Council. They wish to be heard in relation to the merits of the application.
5 I accept that the following is the chronology of relevant events:

22 October 2007 Council gave notification to adjoining land owners of the application for proposed development.

7 November 2007 Representations were received from Mr and Mrs Verbis and others. Mr Verbis indicated that he wished to be heard at the Development Assessment Panel meeting.

12 November 2007 Mr Verbis attended at a meeting of the Council but was informed by the "Manager of the Council Planning Office" that the child care centre application would not be dealt with at the meeting and that he would be notified in writing of the date for the next meeting at which he would be heard in relation to his representation.

16 November 2007 Representations were sent to the applicant, Eastern Building Group.

21 November 2007 The Council received a response to the representations lodged, from Access Planning, on behalf of the second respondent.

10 December 2007 The development application was considered at a meeting at the Development Assessment Panel and development plan consent was granted to the application.

19 December 2007 Having noticed work on the subject land, Mr Verbis attended the Council office and was told that consent had been granted at a meeting held on 10 December 2007. He was further told by "Maxine" of the Planning Office of the Council that he had 15 days to appeal after receiving notice of the decision.

19 December 2007 The manager of the Planning Office "Michael" telephoned Mr Verbis after his earlier attendance at the Council office and apologised for the Council’s failure to notify him of the Council meeting at which the development application was to be considered. He further advised Mr Verbis that he had 21 days from the date he received notification of the decision in which to appeal, and informed the latter that he, Michael, would personally prepare the letter of notification of the decision of the Council for Mr and Mrs Verbis and have it ready for collection the next day. He indicated that he would call Mr and Mrs Verbis to advise when the letter was ready for collection.

21 December 2007 The decision notification form was sent to the second respondent.

21 December 2007 As no phone call had been received from the Council office to advise that a letter of notification was ready for collection, Mrs Sharon Verbis attended at the Council office and was given a blank Notice of Appeal form that had been downloaded from the computer and printed, but no letter.

2 January 2008 By this day Mr and Mrs Verbis had heard nothing further nor had they received any correspondence from the Council office. Mr Verbis personally attended at the Council office and at his request, was given a copy of the letter on the Council’s letterhead and signed by Maxine Lovett, Planning Officer, that had been sent to Eastern Building Group dated 21 December 2007, which letter informed Eastern Building Group of the Council’s decision to grant development plan consent as indicated in the form said to have been enclosed with the letter. Mr Verbis asked Ms Lovett to date stamp that copy and she obliged by stamping it with the date 2 January 2008.

16 January 2008 Mr and Mrs Verbis lodged a notice of appeal in this Court.

17 January 2008 The Council provided to this Court, by fax, information concerning the development application including the development application form and a list of the persons who had been notified of the application. This appears to have occurred after contact by the Court.

17 January 2008 The Council provided by further fax to the Court, a list of the names and addresses of persons who had lodged a representation in respect of the development application. This appears to have occurred after a further request from the Court.

6 The chronology of events provided by Mr Verbis in evidence differs somewhat from that prepared for its internal use, by the Council. I have accepted the evidence of Mr Verbis, which was not challenged by the Council.
7 Section 86(1)(b) provides a right of appeal by a person who is entitled to be given notice of a decision in respect of a Category 3 development under s 38 of the Development Act. That right of the appeal is expressed to be subject to the limitations imposed by s 38.
8 Section 38(14) confirms that "an appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision". There is no dispute that Mr and Mrs Verbis are persons who were entitled to be given notice of any decision under subsection (12).
9 It would appear that pursuant to s 38(14) the last day to appeal was 4 January 2008. The appeal was not lodged until 16 January 2008, making it eight business days out of time.
10 The relevant authority has certain obligations under s 38 with respect to applications for Category 3 development. They include that the relevant authority must:
• Forward to the applicant for consent a copy of the representations made and allow the applicant an opportunity to respond in writing to the representations (subsection (8)).
• Allow a person who made a representation and who indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative to be heard in support of the representation (subsection (10)(b)). The Council must give any person who made a representation at least 5 business days' notice of the place and time of hearing, unless the person agrees otherwise (regulation 37).
• Give to each person who made a representation, within five business days from the date of the decision, notice of its decision on the application and of the date of the decision and of the person’s appeal rights (subsection (12)(a) and (13)).
• Within five business days from the date of the decision on the application, give notice to this Court of its decision, the date of the decision and of the names and addresses of the persons who made representations (subsection (12)(b) and (13)).

11 The Council did not fulfil its obligations under s 38 of the Development Act in the following respects:

(a) it failed to give Mr and Mrs Verbis a reasonable or any opportunity to appear before it and be heard in support of their representation;

(b) it failed to give Mr and Mrs Verbis written or any notice of its decision, the date of the decision and their appeal rights under the Act, within five business days of 10 December 2007; and

(c) it failed to give notice to this Court within five business days from the date of the decision (by 17 December 2007) notice of its decision, the date of the decision and the names and addresses of persons who made representations.

12 In addition, the Council on two occasions provided incorrect oral advice concerning the appeal rights of Mr and Mrs Verbis under the Development Act.
13 Mr and Mrs Verbis wish to be heard in relation to the proposed development. Because they were denied that opportunity by the Council, they seek to be heard through an appeal to this Court. However their appeal was not lodged within the statutory appeal period. It follows that Mr and Mrs Verbis seek whatever is necessary to enable them to be heard and in that context need an order extending the time within which to lodge their appeal. Not being familiar with the process, the appellants believed on advice from Council officers, that they had either 15 or 21 days after receiving notification of the decision. It is clear that Mr Verbis inferred from what he had been told by two Council officers that the period would start to run once he had received written notification of the decision of the Council.
14 Although the Council never gave written notification of the decision directly to Mr and Mrs Verbis as persons having made a representation, Mr Verbis had been provided at his request, with a copy of the notification of the decision to Eastern Building Group. That occurred on 2 January 2008. Mr and Mrs Verbis considered that date to be the date from which the appeal period commenced to run.
15 If the appeal period had been 15 days from 2 January 2008, the last day to appeal would have been 17 January. If, as advised by another source at Council, the time within which to appeal was 21 days from 2 January, the last day on which to appeal was 23 January 2008. By lodging their appeal on 16 January 2008, the appellants were within the shorter of the appeal periods advised by Council officers, but actually eight business days outside the period allowed by the Development Act.

Power to extend the appeal period under the Development Act

16 Section 86 of the Development Act sets out in general terms, the rights to apply to the Court. Section 86(1)(b) is as follows:

86(1) The following applications may be made to the Court-

...
(b) a person who is entitled to be given a notice of a decision in respect of a Category 3 development under s 38 may appeal to the Court against that decision (subject to the limitations imposed by that section);

...

17 The provision of s 86 that addresses the time for an appeal is subsection (4), which is set out below:

86(4) An application must be made in a manner and form determined by the Court, setting out the grounds of the application, and, unless otherwise specifically provided under another provision of this Act, must be made within two months after the applicant receives notice of the decision to which the application relates unless the Court, in its discretion, allows an extension of time.

18 Further information with respect to an appeal by a person entitled to be given notice of a decision is to be found in s 38 of the Development Act. Pursuant to s 86(1)(b), an appeal right is subject to the limitations set out in s 38. The limitations are expressed in s 38(6), which is set out below:

38(6) Except as otherwise provided by the regulations, the subject matter of-

(a) any notice required under this section; or
(b) any representations under this section; or
(c) any appeal against a decision on a Category 3 development by a person entitled to be given notice of the decision under subsection (12),
must be limited to the following:
(d) what should be the decision of the relevant authority as to development plan consent;
(e) in a case where a prescribed body is empowered to direct that the application be refused, or that conditions imposed in relation to the development - what should be the decision of the prescribed body in response to the application.

19 There is no other reference to limitations with respect to an appeal, in s 38.
20 However, s 38(14) sets a time limit for the exercise of a right of appeal by a person who is entitled to be given notice of a decision. That subsection is as follows:

38(14) An appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision.

21 At first glance, it would appear that the 15 business day time limit specified in s 38(14) is mandatory and there is no power under s 86(4) or elsewhere in the Development Act to extend the time in which a person entitled to be given notice of a decision, might appeal. This is the conclusion to which the Court came in Tanner and Morris and Ors v Corporation of the City of Unley and Eldercare Inc. [1998] EDLR 290, where it determined that the Court had no power to extend the time in which to commence an appeal by a person who had made a representation in respect of a development application. In that matter the Court went on to consider whether it had a discretion to extend the time in which to appeal pursuant to its power under s 33 of the Environment, Resources and Development Court Act 1993. In that case, the prospective appellants concerned had filed an appeal within the 15 day business period, but had failed to comply with a requirement of the Environment, Resources and Development Court Rules which required service of the notice of appeal upon the relevant authority within the same period. Ultimately, the Court exercised its discretion to excuse the failure.
22 Section 86(1) is an enabling provision of the Development Act. It is the source of the following rights to apply to the Court:
• a right of appeal in specified circumstances;
• a right of application for determination of a dispute with respect to building work;
• a right of review of certain decisions.

23 In addition, there may be other provisions of the Development Act that confer a right to apply to the Court, or prevent or restrict a right to apply to the Court: see subsection 86(2). An example of another section conferring a right to apply to the Court is s 85, whereby a person may apply to the Court seeking to have the Court make an order to remedy or restrain a breach of the Development Act.
24 A prospective appellant in the nature of a person who was entitled to be given notice of the decision in respect of a Category 3 development, must commence his or her appeal within 15 business days of the date of the decision to grant development plan consent and the appeal is limited to the merits of the decision: sections 86(1)(b), 38(6) and (14). A prospective appellant will be aware of the limited period in which to appeal, because the relevant authority will have informed him or her of their appeal rights in accordance with the Development Act: s 38(12) and Regulation 37.
25 In relation to the time period in which an appeal may be commenced, it is arguable that the Act in s 86(4) confers upon the Court a discretion to allow an extension of time. The question is whether this discretion relates to all applications described in subsection 86(1) or only to those applications in respect of which the time period for appeal is not specifically provided under another provision of the Act.
26 It is arguable that the discretion to allow an extension of time under s 86(4) applies to all kinds of applications described in s 86(1). However, it is also arguable that the discretion applies only to those applications which, by default, are subject to the two month time period under s 86(4).
27 A perusal of the Development Act reveals that every right to apply to the Court contemplated by s 86(1) that is the subject of a provision of the Act separate from but contemplated by s 86, is expressed in the relevant separate provision, to be exercisable only within a specified time period unless the Court extends the period, except in the case of an application pursuant to s 86(1)(b). Examples are as follows:

(1) An appeal against a notice under this section must be commenced within 14 days after the order is given to the appellant unless the Court allows a longer time for the commencement of the appeal (s 56(6));
(2) Any appeal under this section must be commenced within 28 days after a notice is given to the appellant under subsection (10) unless the Court allows an extension of time (s 67(11));
(3) Any appeal under this section must be commenced within 28 days after a notice is given to the applicant under subsection (3) unless the Court allows an extension of time (s 68(4));
(4) An appeal against an order under this section must be commenced within 14 days after the order is given to the appellant unless the Court allows a longer time for the commencement of the appeal (s 69(10));
(5) An appeal against a notice under this section must be commenced within 14 days after the notice is given unless the Court allows a longer time for the commencement of the appeal (s 71(12));
(6) An appeal against a notice under this section must be commenced within 14 days after the direction is given to the appellant unless the Court allows a longer time for the commencement of the appeal (s 84(9)).

28 Thus, it can be seen that s 38(14) is the only appeal provision in the Act which specifies a period of time within which to appeal but does not specify that the period may be extended by the Court. That would suggest, that in giving the Court a discretion to extend the appeal period in s 86(4), Parliament intended the discretion to be exercised only for those appeals to which the two month application period applies.
29 In the interests of consistency of approach by the Court and the absence of a clear intention to the contrary by Parliament, I will not, in this matter, depart from the views expressed in Tanner (above).

The Power to Extend the Time under the Limitation of Actions Act

30 It was argued strenuously on behalf of Eastern Building Group that the power in s 48 of the Limitation of Action Act 1936 does not apply to proceedings in this Court in the nature of an appeal from the decision of a relevant authority under the Development Act.
31 I reject that argument and respectfully agree with the decision of Her Honour Judge Cole in Mercer v Kangaroo Island Council and Carey Contracting Pty Ltd [2004] SAERDC 19, that this Court does have power to extend the time within which an appeal may be instituted under s 48(1) of the Limitation of Actions Act and further, that the Court may dispense with the requirement in s 48(4) of that Act which requires a statement seeking an extension of time to be endorsed upon the instituting process, namely the notice of appeal in this case.
32 It has been accepted that the statutory definition of the word "action" in the Limitation of Actions Act is broad, and the provisions of s 48 are apt to apply to a statutory limitation fixing the time within which proceedings may be brought, whether the limitation bars the right or whether it deprives the Court of jurisdiction: General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.
33 As the Supreme Court per Jacobs J. said in Kammerman v South Australian Planning Commission and District Council of Mount Barker (1986) 42 SASR 394 at 403, it may be that where statute law gives a right of appeal, although from the decision of a planning authority, the proceedings by which that legal right is exercised are "legal proceedings", particularly where the statutory right of appeal is to a Court (cf a tribunal). Jacobs J. did not decide the point because in that case the right of appeal was to a tribunal, which could not exercise the discretion granted by s 48.
34 I reject the argument put forward by Mr Manos on behalf of the second respondent, based as it was on the character of the proceedings in an appeal from the decision of the relevant planning authority. Mr Manos sought to distinguish between proceedings in this Court that are an appeal from the decision of a relevant authority in relation to the grant of consent under the Development Act and other kinds of proceedings. Relying on the basis of the decision in Thorpe v City of Charles Sturt [1999] SASC 10, he submitted that a decision of this Court on an appeal against a decision of a relevant authority is an administrative decision. However the judgment in Thorpe (above) was in respect of the question as to whether a decision of this Court on an appeal the effect of which was to grant, vary or refuse development plan consent, gave rise to an estoppel in the form of res judicata, and was not a decision in relation to the application of the Limitation of Actions Act. Indeed, in Moyes and Anor v J & L Developments and Anor [2004] SASC 319, the Supreme Court per Debelle J. commented that "when hearing appeals against decisions of planning authorities pursuant to s 86 of the Development Act 1993, the Environment Court exercises judicial power and so must observe the rules of procedural fairness" [paragraph 75].
35 Provided the action is in or to a Court, the discretion given in s 48 of the Limitation of Actions Act is broad. Thus, there is power in this Court to extend the time in which an appeal may be lodged against a decision of a relevant authority. The Court would have jurisdiction to entertain an appeal by Mr and Mrs Verbis, if it were not out of time.
36 The question then is whether this is a proper case in which to exercise the discretion.

The Discretion

37 Section 48(3) of the Limitation of Actions Act makes clear that in order to exercise the power in s 48(1) a Court must be satisfied of certain matters, and that in all the circumstances, it is just to grant the extension of time. Section 48(3)(b)(ii) requires that the Court be satisfied:

(ii) that the plaintiff's failure to institute the action within the period of
the limitation resulted from representations or conduct of the
defendant, or a person whom the plaintiff reasonably believed to be
acting on behalf of the defendant, and was reasonable in view of
those representations or that conduct and any other relevant
circumstances,

and that in all the circumstances of the case it is just to grant the extension of time.

38 Having regard to the wide meaning of "action" the terms "plaintiff" and "defendant" may also be read as "appellant" or "applicant" and "respondent": see General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.
39 As is evident in these reasons, the appellants’ failure to institute the appeal within the period set by the Development Act resulted from incorrect advice from the respondent Council.
40 Relevant factors for the Court in deciding whether it is just to grant an extension of time, and so to exercise its discretion in favour of an applicant who has sought an extension of time in proceedings such as these are the length of the delay, the reasons for the delay, the likely prejudice to the respondents, whether there is an arguable case and the public interest.
41 The delay, being 8 business days, in lodging an appeal was moderately long, having regard to the period allowed for an appeal in the circumstances, namely 15 business days.
42 However, the reasons for the delay give context to its length. The appellants relied upon information from the Council and acted in accordance with the advice least favourable to them. The old maxim to the effect that "ignorance of the law is no excuse" is not applicable in the circumstances where Parliament has set out as one of the objects of the Development Act, "to provide for appropriate public participation in the assessment of development proposals" and has charged a relevant authority in relation to a category 3 development with providing to a person who made a representation, notice of the decision, the date of same and the person’s appeal rights.
43 In the circumstances here - where the delay was 8 business days and the Council has denied the appellants a hearing, failed to notify them of the decision within the period allowed and indeed only notified them upon their enquiry, and in addition given incorrect information regarding appeal rights, and these are the sole reasons why the appeal was not lodged in time - the reasons for the delay outweigh the length of the delay.
44 I come to the likely prejudice to the respondents. Unsurprisingly, the Council offered no evidence of prejudice likely to be suffered by it. The second respondent, Eastern Building Group, has put before the Court affidavit evidence by a director, George Skembros (24 January 2008) of prejudice that amounts to the following:
• the costs incurred in demolishing the existing dwelling structure on the subject land: $12,000
• the cost of obtaining building rules consent: $8,000

45 In a second affidavit (29 January 2008), Mr Skembros conceded that the demolition work commenced on 19 December 2007 and therefore well before the appeal period expired. I conclude that Eastern Building Group had decided to clear the site, whether or not an appeal was to be lodged. It follows that I do not accept that Eastern Building Group has incurred expense in demolition work that it would not have otherwise undertaken.
46 The building rules consent is dated 23 January 2008. Although Mr Skembros was not cross-examined, I note that there was an earlier building rules consent issued to Eastern Building Group by the same private certifier, in respect of a child-care centre on the same land, on 9 November 2007, in respect of DA 313/0606/06. I am unable to assess whether the amount of $8,000 for building rules consent was in respect of the work done for both certifications, or otherwise. In any event, the cost of building rules consent may not be a cost thrown away.
47 I find that there may be some prejudice to Eastern Building Group should the appeal be permitted to proceed, but the extent of any prejudice has not been quantified.
48 On the question of whether there is an arguable case, I note from their representation, that the appellants are concerned that the development would result in the following impacts on the amenity of their locality:
• a dramatic increase in traffic;
• an increase in vehicle parking on the public road resulting in difficulty of entry and exit to and from their driveway;
• noise;
• removal of the street tree;
• removal of a significant tree.

49 I have also taken into account the following:
• the proposed development is for a 100 place child-care centre;
• there is a current approval (originally issued 2005) for a 75 place child-care centre on the subject land, which has not been implemented;
• the subject land is in a residential zone and Principle of Development Control 3 for the zone suggests that, among other kinds of development, child-care facilities are envisaged, subject to certain qualifications, including "only where the character and amenity of the locality is not detrimentally affected";
• the subject land is situated in the Hillier Road Policy Area where under the heading of Desired Character, appropriate uses are expressed to include "Local Services (recreation areas, schools, child-care centres, community uses)";
• there does not appear in the Development Assessment Panel Agenda Report for 10 December 2007, any assessment of whether the development will serve a local area function only.

50 It is not the role of the Court to consider in any detail, the arguments in relation to the development, on an application to extend the appeal period. Mr Manos drew to the Court's attention the fact of an existing approval for a child-care centre on the subject land and that this is a generic kind of development as envisaged in the zone, according to the relevant development plan. That does not conclude the matter. What is proposed is a child-care facility, but of a different physical form from that previously approved. The different physical form might raise new issues to be addressed in terms of impact upon the amenity of the locality. In any event, it is clear from the Development Plan that a child-care facility may or may not be appropriate depending on whether the nature and scale of the use would serve only a local area function, and would be appropriate only where the character and amenity of the locality is not detrimentally affected.
51 Mr and Mrs Verbis have raised issues of character and amenity. They have also raised an issue of consequential loss of economic value, but that is not able to be considered in a planning assessment unless the policy as expressed in the Development Plan allows this as a consideration, and as far as I can see, that is not the case here.
52 I am satisfied that on what is now before me, the appellants have an arguable case that the development should not be approved, based on the impact on character and amenity of the locality. I caution that this conclusion cannot be taken as suggesting that the development should or should not have received or receive approval. That is a matter for another day.
53 Is it in the public interest for the Court to allow the appeal period to be extended? In general, it is in the public interest that permitted acts be taken and rights exercised, within the period specified by Parliament. However, in the Limitation of Actions Act and elsewhere, Parliament has recognised that on occasions, there will be extenuating circumstances where the fairest course, having regard to the nature of the right sought to be exercised, will be to allow the appeal period to be extended. The power should be exercised sparingly and only where there is a clear case. The rights of interested parties must be considered and the Court has proceeded here to do so. In this case, it is clearly in the public interest that a person who was denied the statutory right to a hearing before the Council made its decision on the application for development plan consent, be allowed an opportunity to be heard.
54 The appellants’ failure to institute the action within time was understandable, and more importantly reasonable in view of the conduct by the respondent Council.
55 Having had regard to all factors, I have determined that it is just in all the circumstances to extend the period in which the appellants could appeal, to 16 January 2008, which is the date when their appeal was lodged.
56 The Notice of Appeal was not endorsed, as required by s 48(4) of the Limitation of Actions Act. However, s 50 of the Act enables the Court to dispense with that requirement, if the justice of the case so requires. I find that the justice of the case so requires. I would dispense with the requirement.

Jurisdictional Issue

57 It occurs to me that there is also a jurisdictional question for the Court. That question is whether the appeal is against a decision of the relevant authority. This Court has jurisdiction to hear and determine an appeal by a person entitled to be given notice under s 38, only where there has been a decision by the relevant authority.
58 Section 38(10) of the Development Act and Regulation 37 of the Development Regulations obliges a relevant authority to allow a person who made a representation and indicated therein that they wished to be heard, to be given a hearing. The Council decision potentially affects the interests of Mr and Mrs Verbis (as they have suggested in their representation, which was attached to their notice of appeal). As the application was for a Category 3 development and they are immediate neighbours of the subject land, they were entitled to notice of the application.
59 The Supreme Court in Upham v The Grand Hotel (S.A.) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557 noted the development of the common law in Australia in relation to procedural fairness. Having noted the application of the duty to act fairly depends largely on the construction of the relevant statute, the judgment noted in addition that care must be taken "in deciding that statutory provisions conferring particular rights are to be read as excluding, by implication, the application of other rights that would tend to arise from the application of common law principles" [paragraph 75]. At paragraphs 80 - 83, in relation to the Development Act and Regulations, the Full Court concluded that :

... the Act and the Regulations determine conclusively who is entitled to notice of an application, who is entitled to lodge a representation with the relevant authority, and who may be or must be heard. Clearly enough, in those respects at least the Act and the Regulations determine conclusively matters that would otherwise be determined by reference to common law principles of procedural fairness. ...
We therefore approach the Act and the Regulations on the basis that, in some respects at least, they are intended to leave no room for the operation of common law principles of procedural fairness.
The Judge [in the Court below] took the view that the provisions of s 38 relating to notice, to the entitlement to lodge a representation and to the right to be heard, were to be read as reinforcing the rules of procedural fairness. We respectfully disagree. While it can be said that the relevant provisions are directed to the same end, in our opinion they supplant the relevant common law principles and indicate an intention to determine the relevant matters conclusively. They do not leave room for the common law principles to operate on the relevant topics.

60 Upham concerned the question of whether the relevant authority was obliged to provide documentation relating to the application to a person who had made a representation (representor) and if yes, whether the failure to provide or give access to same, resulted in the representor having been denied a fair hearing by the relevant authority. In that case it had been determined that the representor had been denied a fair hearing and that the decision of the relevant authority should be set aside. The Court on appeal upheld the decision of the Judge at first instance, on the basis that the relevant authority had been wrong to refuse access to certain documentation and thus the representor had been denied an opportunity to deal with the material raised in that documentation to which it had been denied access. It would seem to follow from Upham (above), that the Act obliges a relevant authority to give a fair hearing to a person who made a representation and indicated therein that they wished to be heard, and that a denial of a fair hearing will invalidate the decision of a relevant authority.
61 In accordance with the decision in Upham (above) and the Development Act, Mr and Mrs Verbis had a right to be heard, prior to the relevant authority making its decision in relation to the application by Eastern Building Group. In proceeding as it did, without notifying those who had made a representation and indicated therein that they wished to be heard, or hearing them, the Council acted contrary to the law. Mr and Mrs Verbis were not only not given a fair hearing; they were not afforded any hearing. Where there has been such an obvious breach of its duty by the Council, the decision has not been made in accordance with the law and is liable to be set aside.
62 It is open to the Court to make a declaration of right in an appropriate case: see s 28 Environment Resources And Development Court Act 1993. The Court, as is always the case in any court, must also consider whether it has jurisdiction. If there has been no valid decision by a relevant authority, there has been no decision from which to appeal. Thus, this Court could not entertain an appeal. In addition, Mr and Mrs Verbis have been denied their right to address the Council prior to a decision being made. Parliament established that persons in their position have a right to be heard and they must be afforded that right.
63 The Development Act, in s 88 which was amended on 26 April 2007, sets out the powers of the Court on hearing proceedings under the Act. The provisions of s 88(1) are set out hereunder:

(1) The Court may, on hearing any proceedings under this Act -

(a) confirm, vary or reverse any decision, assessment, consent, approval, direction, act, order or determination to which the proceedings relate;
(b) affirm, vary or quash any order, notice or other authority that has been issued;
(c) order or direct a person or body to take such actions as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit;
(d) if appropriate to the subject matter of the proceedings, order –

(i) that a building (or any part of a building) be altered, reinstated or rectified in a manner specified by the Court;
(ii) that a party to the dispute remove or demolish a building (or any part of a building);

(da) if appropriate in the circumstances of the proceedings - make any determination or declaration, or grant any other remedy or relief as the Court thinks fit;
(e) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

64 These proceedings purport to be proceedings under s 86(1)(b) of the Development Act and thus are proceedings under the Act. It may well be appropriate in the circumstances of the proceedings to exercise the Court's powers under paragraph (da) of s 88(1).
65 However, I have given consideration to the consequences should the Court proceed along this path. If the Court were to make a declaration, set aside the decision of the Council and decline jurisdiction to hear and determine an appeal, the matter would have to be remitted to the Council to proceed to determine the application in accordance with the law. It seems that the appropriate outcome, that is whether the matter should proceed by way of an appeal, or be returned to the Council for it to properly consider the matter and hear those persons who made representations and indicated they wish to be heard, is that which is in the best interests of all parties. I am also conscious that I have not heard argument on the Court's powers to proceed along this path.

Conclusion

66 There is no specific power in the Development Act, whereby the Court is empowered to extend the appeal period specified in s 38(14), in proceedings purportedly commenced pursuant to a right given by s 86(1)(b) of that Act.
67 This Court has a discretion in proceedings purportedly pursuant to s 86(1)(b) of the Development Act to extend the time in which to lodge an appeal, under the Limitation of Actions Act. The Court is satisfied that the appellant’s failure to lodge its appeal within the legislated period resulted from the conduct of the respondent Council and was responsible in view of that conduct, and that in all the circumstances of the case it is just to extend the time to the date on which the appeal was lodged.
68 It would appear that this Court is empowered to declare that the decision of the Council in granting development plan consent was not a valid decision and order that the decision be set aside.
69 I will now hear the parties as to the appropriate orders to be made.

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2	Attached to the notice of appeal was a document signed by Mr and Mrs Verbis which set out the reasons for objection to the proposed development in DA 490/660/2007 by Eastern Building Group.
3	That appeal was treated by this Court as a purported appeal against the decision of the first respondent ("the Council") made on 10 December 2007, whereby the Council granted provisional development plan consent to an application made under the Development Act 1993, by the second respondent (Eastern Building Group), subject to 16 conditions, for development in the nature of a child care centre, on land at 40 Para Road, Evanston ("the subject land"), and thus was set down for a hearing as to whether the Court should extend the time in which to appeal.
4	Mr and Mrs Verbis who live next door to the site of the proposed development by Eastern Building Group were not represented by counsel and had little understanding of how to argue their case, but clearly conveyed through Mr Verbis, that they were not given an opportunity to be heard, nor were they heard in relation to the development application, by the Council. They wish to be heard in relation to the merits of the application.
5	I accept that the following is the chronology of relevant events:

6	The chronology of events provided by Mr Verbis in evidence differs somewhat from that prepared for its internal use, by the Council. I have accepted the evidence of Mr Verbis, which was not challenged by the Council.
7	Section 86(1)(b) provides a right of appeal by a person who is entitled to be given notice of a decision in respect of a Category 3 development under s 38 of the Development Act. That right of the appeal is expressed to be subject to the limitations imposed by s 38.
8	Section 38(14) confirms that "an appeal against a decision on a Category 3 development by a person who is entitled to be given notice of the decision under subsection (12) must be commenced within 15 business days after the date of the decision". There is no dispute that Mr and Mrs Verbis are persons who were entitled to be given notice of any decision under subsection (12).
9	It would appear that pursuant to s 38(14) the last day to appeal was 4 January 2008. The appeal was not lodged until 16 January 2008, making it eight business days out of time.
10	The relevant authority has certain obligations under s 38 with respect to applications for Category 3 development. They include that the relevant authority must:
•	Forward to the applicant for consent a copy of the representations made and allow the applicant an opportunity to respond in writing to the representations (subsection (8)).
•	Allow a person who made a representation and who indicated an interest in appearing before the authority, a reasonable opportunity to appear personally or by representative to be heard in support of the representation (subsection (10)(b)). The Council must give any person who made a representation at least 5 business days' notice of the place and time of hearing, unless the person agrees otherwise (regulation 37).
•	Give to each person who made a representation, within five business days from the date of the decision, notice of its decision on the application and of the date of the decision and of the person’s appeal rights (subsection (12)(a) and (13)).
•	Within five business days from the date of the decision on the application, give notice to this Court of its decision, the date of the decision and of the names and addresses of the persons who made representations (subsection (12)(b) and (13)).

12	In addition, the Council on two occasions provided incorrect oral advice concerning the appeal rights of Mr and Mrs Verbis under the Development Act.
13	Mr and Mrs Verbis wish to be heard in relation to the proposed development. Because they were denied that opportunity by the Council, they seek to be heard through an appeal to this Court. However their appeal was not lodged within the statutory appeal period. It follows that Mr and Mrs Verbis seek whatever is necessary to enable them to be heard and in that context need an order extending the time within which to lodge their appeal. Not being familiar with the process, the appellants believed on advice from Council officers, that they had either 15 or 21 days after receiving notification of the decision. It is clear that Mr Verbis inferred from what he had been told by two Council officers that the period would start to run once he had received written notification of the decision of the Council.
14	Although the Council never gave written notification of the decision directly to Mr and Mrs Verbis as persons having made a representation, Mr Verbis had been provided at his request, with a copy of the notification of the decision to Eastern Building Group. That occurred on 2 January 2008. Mr and Mrs Verbis considered that date to be the date from which the appeal period commenced to run.
15	If the appeal period had been 15 days from 2 January 2008, the last day to appeal would have been 17 January. If, as advised by another source at Council, the time within which to appeal was 21 days from 2 January, the last day on which to appeal was 23 January 2008. By lodging their appeal on 16 January 2008, the appellants were within the shorter of the appeal periods advised by Council officers, but actually eight business days outside the period allowed by the Development Act.

19	There is no other reference to limitations with respect to an appeal, in s 38.
20	However, s 38(14) sets a time limit for the exercise of a right of appeal by a person who is entitled to be given notice of a decision. That subsection is as follows:

21	At first glance, it would appear that the 15 business day time limit specified in s 38(14) is mandatory and there is no power under s 86(4) or elsewhere in the Development Act to extend the time in which a person entitled to be given notice of a decision, might appeal. This is the conclusion to which the Court came in Tanner and Morris and Ors v Corporation of the City of Unley and Eldercare Inc. [1998] EDLR 290, where it determined that the Court had no power to extend the time in which to commence an appeal by a person who had made a representation in respect of a development application. In that matter the Court went on to consider whether it had a discretion to extend the time in which to appeal pursuant to its power under s 33 of the Environment, Resources and Development Court Act 1993. In that case, the prospective appellants concerned had filed an appeal within the 15 day business period, but had failed to comply with a requirement of the Environment, Resources and Development Court Rules which required service of the notice of appeal upon the relevant authority within the same period. Ultimately, the Court exercised its discretion to excuse the failure.
22	Section 86(1) is an enabling provision of the Development Act. It is the source of the following rights to apply to the Court:
•	a right of appeal in specified circumstances;
•	a right of application for determination of a dispute with respect to building work;
•	a right of review of certain decisions.

23	In addition, there may be other provisions of the Development Act that confer a right to apply to the Court, or prevent or restrict a right to apply to the Court: see subsection 86(2). An example of another section conferring a right to apply to the Court is s 85, whereby a person may apply to the Court seeking to have the Court make an order to remedy or restrain a breach of the Development Act.
24	A prospective appellant in the nature of a person who was entitled to be given notice of the decision in respect of a Category 3 development, must commence his or her appeal within 15 business days of the date of the decision to grant development plan consent and the appeal is limited to the merits of the decision: sections 86(1)(b), 38(6) and (14). A prospective appellant will be aware of the limited period in which to appeal, because the relevant authority will have informed him or her of their appeal rights in accordance with the Development Act: s 38(12) and Regulation 37.
25	In relation to the time period in which an appeal may be commenced, it is arguable that the Act in s 86(4) confers upon the Court a discretion to allow an extension of time. The question is whether this discretion relates to all applications described in subsection 86(1) or only to those applications in respect of which the time period for appeal is not specifically provided under another provision of the Act.
26	It is arguable that the discretion to allow an extension of time under s 86(4) applies to all kinds of applications described in s 86(1). However, it is also arguable that the discretion applies only to those applications which, by default, are subject to the two month time period under s 86(4).
27	A perusal of the Development Act reveals that every right to apply to the Court contemplated by s 86(1) that is the subject of a provision of the Act separate from but contemplated by s 86, is expressed in the relevant separate provision, to be exercisable only within a specified time period unless the Court extends the period, except in the case of an application pursuant to s 86(1)(b). Examples are as follows:

30	It was argued strenuously on behalf of Eastern Building Group that the power in s 48 of the Limitation of Action Act 1936 does not apply to proceedings in this Court in the nature of an appeal from the decision of a relevant authority under the Development Act.
31	I reject that argument and respectfully agree with the decision of Her Honour Judge Cole in Mercer v Kangaroo Island Council and Carey Contracting Pty Ltd [2004] SAERDC 19, that this Court does have power to extend the time within which an appeal may be instituted under s 48(1) of the Limitation of Actions Act and further, that the Court may dispense with the requirement in s 48(4) of that Act which requires a statement seeking an extension of time to be endorsed upon the instituting process, namely the notice of appeal in this case.
32	It has been accepted that the statutory definition of the word "action" in the Limitation of Actions Act is broad, and the provisions of s 48 are apt to apply to a statutory limitation fixing the time within which proceedings may be brought, whether the limitation bars the right or whether it deprives the Court of jurisdiction: General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.
33	As the Supreme Court per Jacobs J. said in Kammerman v South Australian Planning Commission and District Council of Mount Barker (1986) 42 SASR 394 at 403, it may be that where statute law gives a right of appeal, although from the decision of a planning authority, the proceedings by which that legal right is exercised are "legal proceedings", particularly where the statutory right of appeal is to a Court (cf a tribunal). Jacobs J. did not decide the point because in that case the right of appeal was to a tribunal, which could not exercise the discretion granted by s 48.
34	I reject the argument put forward by Mr Manos on behalf of the second respondent, based as it was on the character of the proceedings in an appeal from the decision of the relevant planning authority. Mr Manos sought to distinguish between proceedings in this Court that are an appeal from the decision of a relevant authority in relation to the grant of consent under the Development Act and other kinds of proceedings. Relying on the basis of the decision in Thorpe v City of Charles Sturt [1999] SASC 10, he submitted that a decision of this Court on an appeal against a decision of a relevant authority is an administrative decision. However the judgment in Thorpe (above) was in respect of the question as to whether a decision of this Court on an appeal the effect of which was to grant, vary or refuse development plan consent, gave rise to an estoppel in the form of res judicata, and was not a decision in relation to the application of the Limitation of Actions Act. Indeed, in Moyes and Anor v J & L Developments and Anor [2004] SASC 319, the Supreme Court per Debelle J. commented that "when hearing appeals against decisions of planning authorities pursuant to s 86 of the Development Act 1993, the Environment Court exercises judicial power and so must observe the rules of procedural fairness" [paragraph 75].
35	Provided the action is in or to a Court, the discretion given in s 48 of the Limitation of Actions Act is broad. Thus, there is power in this Court to extend the time in which an appeal may be lodged against a decision of a relevant authority. The Court would have jurisdiction to entertain an appeal by Mr and Mrs Verbis, if it were not out of time.
36	The question then is whether this is a proper case in which to exercise the discretion.

38	Having regard to the wide meaning of "action" the terms "plaintiff" and "defendant" may also be read as "appellant" or "applicant" and "respondent": see General Motors Holden Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.
39	As is evident in these reasons, the appellants’ failure to institute the appeal within the period set by the Development Act resulted from incorrect advice from the respondent Council.
40	Relevant factors for the Court in deciding whether it is just to grant an extension of time, and so to exercise its discretion in favour of an applicant who has sought an extension of time in proceedings such as these are the length of the delay, the reasons for the delay, the likely prejudice to the respondents, whether there is an arguable case and the public interest.
41	The delay, being 8 business days, in lodging an appeal was moderately long, having regard to the period allowed for an appeal in the circumstances, namely 15 business days.
42	However, the reasons for the delay give context to its length. The appellants relied upon information from the Council and acted in accordance with the advice least favourable to them. The old maxim to the effect that "ignorance of the law is no excuse" is not applicable in the circumstances where Parliament has set out as one of the objects of the Development Act, "to provide for appropriate public participation in the assessment of development proposals" and has charged a relevant authority in relation to a category 3 development with providing to a person who made a representation, notice of the decision, the date of same and the person’s appeal rights.
43	In the circumstances here - where the delay was 8 business days and the Council has denied the appellants a hearing, failed to notify them of the decision within the period allowed and indeed only notified them upon their enquiry, and in addition given incorrect information regarding appeal rights, and these are the sole reasons why the appeal was not lodged in time - the reasons for the delay outweigh the length of the delay.
44	I come to the likely prejudice to the respondents. Unsurprisingly, the Council offered no evidence of prejudice likely to be suffered by it. The second respondent, Eastern Building Group, has put before the Court affidavit evidence by a director, George Skembros (24 January 2008) of prejudice that amounts to the following:
•	the costs incurred in demolishing the existing dwelling structure on the subject land: $12,000
•	the cost of obtaining building rules consent: $8,000

45	In a second affidavit (29 January 2008), Mr Skembros conceded that the demolition work commenced on 19 December 2007 and therefore well before the appeal period expired. I conclude that Eastern Building Group had decided to clear the site, whether or not an appeal was to be lodged. It follows that I do not accept that Eastern Building Group has incurred expense in demolition work that it would not have otherwise undertaken.
46	The building rules consent is dated 23 January 2008. Although Mr Skembros was not cross-examined, I note that there was an earlier building rules consent issued to Eastern Building Group by the same private certifier, in respect of a child-care centre on the same land, on 9 November 2007, in respect of DA 313/0606/06. I am unable to assess whether the amount of $8,000 for building rules consent was in respect of the work done for both certifications, or otherwise. In any event, the cost of building rules consent may not be a cost thrown away.
47	I find that there may be some prejudice to Eastern Building Group should the appeal be permitted to proceed, but the extent of any prejudice has not been quantified.
48	On the question of whether there is an arguable case, I note from their representation, that the appellants are concerned that the development would result in the following impacts on the amenity of their locality:
•	a dramatic increase in traffic;
•	an increase in vehicle parking on the public road resulting in difficulty of entry and exit to and from their driveway;
•	noise;
•	removal of the street tree;
•	removal of a significant tree.

49	I have also taken into account the following:
•	the proposed development is for a 100 place child-care centre;
•	there is a current approval (originally issued 2005) for a 75 place child-care centre on the subject land, which has not been implemented;
•	the subject land is in a residential zone and Principle of Development Control 3 for the zone suggests that, among other kinds of development, child-care facilities are envisaged, subject to certain qualifications, including "only where the character and amenity of the locality is not detrimentally affected";
•	the subject land is situated in the Hillier Road Policy Area where under the heading of Desired Character, appropriate uses are expressed to include "Local Services (recreation areas, schools, child-care centres, community uses)";
•	there does not appear in the Development Assessment Panel Agenda Report for 10 December 2007, any assessment of whether the development will serve a local area function only.

50	It is not the role of the Court to consider in any detail, the arguments in relation to the development, on an application to extend the appeal period. Mr Manos drew to the Court's attention the fact of an existing approval for a child-care centre on the subject land and that this is a generic kind of development as envisaged in the zone, according to the relevant development plan. That does not conclude the matter. What is proposed is a child-care facility, but of a different physical form from that previously approved. The different physical form might raise new issues to be addressed in terms of impact upon the amenity of the locality. In any event, it is clear from the Development Plan that a child-care facility may or may not be appropriate depending on whether the nature and scale of the use would serve only a local area function, and would be appropriate only where the character and amenity of the locality is not detrimentally affected.
51	Mr and Mrs Verbis have raised issues of character and amenity. They have also raised an issue of consequential loss of economic value, but that is not able to be considered in a planning assessment unless the policy as expressed in the Development Plan allows this as a consideration, and as far as I can see, that is not the case here.
52	I am satisfied that on what is now before me, the appellants have an arguable case that the development should not be approved, based on the impact on character and amenity of the locality. I caution that this conclusion cannot be taken as suggesting that the development should or should not have received or receive approval. That is a matter for another day.
53	Is it in the public interest for the Court to allow the appeal period to be extended? In general, it is in the public interest that permitted acts be taken and rights exercised, within the period specified by Parliament. However, in the Limitation of Actions Act and elsewhere, Parliament has recognised that on occasions, there will be extenuating circumstances where the fairest course, having regard to the nature of the right sought to be exercised, will be to allow the appeal period to be extended. The power should be exercised sparingly and only where there is a clear case. The rights of interested parties must be considered and the Court has proceeded here to do so. In this case, it is clearly in the public interest that a person who was denied the statutory right to a hearing before the Council made its decision on the application for development plan consent, be allowed an opportunity to be heard.
54	The appellants’ failure to institute the action within time was understandable, and more importantly reasonable in view of the conduct by the respondent Council.
55	Having had regard to all factors, I have determined that it is just in all the circumstances to extend the period in which the appellants could appeal, to 16 January 2008, which is the date when their appeal was lodged.
56	The Notice of Appeal was not endorsed, as required by s 48(4) of the Limitation of Actions Act. However, s 50 of the Act enables the Court to dispense with that requirement, if the justice of the case so requires. I find that the justice of the case so requires. I would dispense with the requirement.

57	It occurs to me that there is also a jurisdictional question for the Court. That question is whether the appeal is against a decision of the relevant authority. This Court has jurisdiction to hear and determine an appeal by a person entitled to be given notice under s 38, only where there has been a decision by the relevant authority.
58	Section 38(10) of the Development Act and Regulation 37 of the Development Regulations obliges a relevant authority to allow a person who made a representation and indicated therein that they wished to be heard, to be given a hearing. The Council decision potentially affects the interests of Mr and Mrs Verbis (as they have suggested in their representation, which was attached to their notice of appeal). As the application was for a Category 3 development and they are immediate neighbours of the subject land, they were entitled to notice of the application.
59	The Supreme Court in Upham v The Grand Hotel (S.A.) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557 noted the development of the common law in Australia in relation to procedural fairness. Having noted the application of the duty to act fairly depends largely on the construction of the relevant statute, the judgment noted in addition that care must be taken "in deciding that statutory provisions conferring particular rights are to be read as excluding, by implication, the application of other rights that would tend to arise from the application of common law principles" [paragraph 75]. At paragraphs 80 - 83, in relation to the Development Act and Regulations, the Full Court concluded that :

60	Upham concerned the question of whether the relevant authority was obliged to provide documentation relating to the application to a person who had made a representation (representor) and if yes, whether the failure to provide or give access to same, resulted in the representor having been denied a fair hearing by the relevant authority. In that case it had been determined that the representor had been denied a fair hearing and that the decision of the relevant authority should be set aside. The Court on appeal upheld the decision of the Judge at first instance, on the basis that the relevant authority had been wrong to refuse access to certain documentation and thus the representor had been denied an opportunity to deal with the material raised in that documentation to which it had been denied access. It would seem to follow from Upham (above), that the Act obliges a relevant authority to give a fair hearing to a person who made a representation and indicated therein that they wished to be heard, and that a denial of a fair hearing will invalidate the decision of a relevant authority.
61	In accordance with the decision in Upham (above) and the Development Act, Mr and Mrs Verbis had a right to be heard, prior to the relevant authority making its decision in relation to the application by Eastern Building Group. In proceeding as it did, without notifying those who had made a representation and indicated therein that they wished to be heard, or hearing them, the Council acted contrary to the law. Mr and Mrs Verbis were not only not given a fair hearing; they were not afforded any hearing. Where there has been such an obvious breach of its duty by the Council, the decision has not been made in accordance with the law and is liable to be set aside.
62	It is open to the Court to make a declaration of right in an appropriate case: see s 28 Environment Resources And Development Court Act 1993. The Court, as is always the case in any court, must also consider whether it has jurisdiction. If there has been no valid decision by a relevant authority, there has been no decision from which to appeal. Thus, this Court could not entertain an appeal. In addition, Mr and Mrs Verbis have been denied their right to address the Council prior to a decision being made. Parliament established that persons in their position have a right to be heard and they must be afforded that right.
63	The Development Act, in s 88 which was amended on 26 April 2007, sets out the powers of the Court on hearing proceedings under the Act. The provisions of s 88(1) are set out hereunder:

66	There is no specific power in the Development Act, whereby the Court is empowered to extend the appeal period specified in s 38(14), in proceedings purportedly commenced pursuant to a right given by s 86(1)(b) of that Act.
67	This Court has a discretion in proceedings purportedly pursuant to s 86(1)(b) of the Development Act to extend the time in which to lodge an appeal, under the Limitation of Actions Act. The Court is satisfied that the appellant’s failure to lodge its appeal within the legislated period resulted from the conduct of the respondent Council and was responsible in view of that conduct, and that in all the circumstances of the case it is just to extend the time to the date on which the appeal was lodged.
68	It would appear that this Court is empowered to declare that the decision of the Council in granting development plan consent was not a valid decision and order that the decision be set aside.
69	I will now hear the parties as to the appropriate orders to be made.