ACN 077 068 734 Pty Ltd as trustee for the E & C Unit Trust v Adelaide Cemeteries Authority - [2014] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
ACN 077 068 734 PTY LTD AS TRUSTEE FOR THE E & C UNIT TRUST v ADELAIDE CEMETERIES AUTHORITY & ANOR
[2014] SASC 40
Judgment of The Honourable Justice Blue
21 March 2014
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
CORPORATIONS - LEGAL CAPACITY AND RELATIONS WITH OUTSIDERS - POWERS - ULTRA VIRES DOCTRINE
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Action for judicial review.
The respondent Adelaide Cemeteries Authority has instituted an appeal in the Environment, Resources and Development Court against a decision by the City of Charles Sturt granting development plan consent to the applicant ACN 077 068 734 Pty Ltd to establish a cemetery. A third party has a right of appeal only if it has made a representation to the council under s 38(6) of the Development Act 1993 (SA).
ACN contends that the appeal is ultra vires because:
1.      the Authority did not have capacity under its constituent statute to make a representation to the Council or to bring the appeal in the Environment Court; or
2. the submission lodged by the Authority with the Council did not comprise a representation within the meaning of s 38 of the Development Act 1993 (SA) because it did not support or oppose the application or alternatively it did not raise a relevant planning consideration.
Held (dismissing the action):
1.      The Authority had capacity to make a representation and bring the appeal as a function incidental to its principal capacities (at [31]).
2. A representation under s 38(6) of the Development Act 1993 (SA) is not required to support or oppose the grant of development plan consent (at [54]).
3. While a representation under s 38(6) must be addressed to the application for development plan consent, it is not invalid if it does not raise a matter characterised as a relevant planning consideration. In any event, the matters raised in the Authority’s submission raised a relevant planning consideration (at [72]).
4. Non-compliance with s 38(6) would render a submission void so as to be incapable of giving rise to appeal rights (at [77]-[78]).
5. The Environment, Resources and Development Court has power under s 33(1) of the Environment, Resources and Development Court Act 1993 (SA) to dispense with compliance with s 38(6) (at [84]). In the present case, the discretion would not be exercised in favour of the Authority if dispensation were required (at [86], [88]).
6.       Application for judicial review dismissed (at [90]).
Adelaide Cemeteries Authority Act 2001 (SA) ss 5, 6, 7; Burial and Cremation Act 2013 (SA); Corporations Act 2001 (Cth) ss 124, 125; Development Act 1993 (SA) ss 33, 38, 38(6), 38(7), 38(12), 38(18), 86(1)(b), 88C; Development Regulations 2008 (SA) r 35(a); Environment Protection Act 1993 (SA) sch 2; Environment, Resources and Development Court Act 1993 (SA) s 33(1); Planning Act 1982 (SA) s 53; Planning and Development Act 1966-1967 (SA) s 26(1); Planning and Development Act 1966-1967 (as amended) (SA) ss 26(1), 36a; Public Corporations Act 1993 (SA) ss 5(1)(a), 39; Town and Country Planning Act 1961 (Vic), referred to.
Mackenzie Intermodal Pty Ltd v Lawson and Naracoorte Lucindale Council [2003] SASC 297, distinguished.
Byrne v Noarlunga District Council [1970] SASR 523; Nassaris v Tomeo and The Corporation of the City of Port Adelaide (1979) 23 SASR 35; R v South Australian Planning Commission; Ex parte the Corporation of the City of Adelaide (1986) 44 SASR 100, discussed.
Ashbury Carriage & Iron Co (Ltd) v Riche (1875) LR 7 HL 653; Attorney-General v Great Eastern Railway Co (1880) 5 AC 473; Baroness Wenlock v River Dee Co (1885) 10 AC 354; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247; Development Assessment Commission v 3GIS Pty Ltd [2007] SASC 216; (2007) 154 LGERA 72; R v Gough; Ex parte Australasian Meat Industry Employees’ Union (1965) 114 CLR 394; Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1; Kathleen Investments (Australia) Ltd v The Australian Atomic Energy Commission (1977) 139 CLR 117; Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGERA 210; Penley v Development Assessment Commission (1995) 88 LGERA 102; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Williams v Hursey (1959) 103 CLR 30, considered.

ACN 077 068 734 PTY LTD AS TRUSTEE FOR THE E & C UNIT TRUST v ADELAIDE CEMETERIES AUTHORITY & ANOR
[2014] SASC 40
Land and Valuation Division
BLUE J.

This is an action for judicial review.
The applicant ACN 077 068 734 Pty Ltd (“ACN”) applied to the City of Charles Sturt (“the Council”) for development plan consent to establish a cemetery. The first respondent Adelaide Cemeteries Authority (“the Authority”) lodged submissions with the Council in relation to ACN’s application.
The Council granted development plan consent. The Authority filed a notice of appeal in the Environment, Resources and Development Court against that decision (“the appeal”).
ACN seeks declarations that the Authority’s submissions to the Council were not valid representations and that the Authority did not validly appeal to the Environment Court. Furthermore, ACN seeks orders directed to the Authority and the Environment Court[1] prohibiting the prosecution, hearing or determination of the appeal.
[1] The Environment Court has taken no part in the action and agrees to abide the event.
The action raises two principal issues:
1. Did the Authority have the capacity and power under its constituent statute to make submissions to the Council and bring the appeal in the Environment Court?
2. Were the submissions lodged by the Authority valid representations within the meaning of section 38 of the Development Act 1993 (SA) (“the Act”)?
Background
The Authority is a statutory corporation established by section 4 of the Adelaide Cemeteries Authority Act 2001 (SA) (“the ACA Act”). The Authority’s functions and powers are defined by sections 6 and 7 respectively of the ACA Act. It is also governed by the Public Corporations Act 1993 (SA) (“the Public Corporations Act”). Its primary functions involve the administration and maintenance of its cemeteries. It presently operates four cemeteries being Cheltenham Cemetery, Enfield Memorial Park, West Terrace Cemetery and Smithfield Memorial Park.
ACN owns land fronting on to Torrens Road partially bounded by Sheffield and Audley Streets at Woodville North (“the Land”).
On 22 April 2013, ACN lodged with the Council an application for development plan consent to establish a cemetery on the Land. The application was accompanied by a letter from ACN’s planning consultant, Access Planning, dated 22 April 2013. Access Planning made a number of statements about demand for cemetery use and community benefit from the provision of burial services. Access Planning referred to statements made by the Authority in 2009 in a draft Plan for Greater Adelaide.
The Council classified the development as being ‘merit development’ under subsection 35(5) of the Act and as a Category 3 development under section 38 of the Act. The Council gave public notification of the development application on 15 May 2013.[2] Any representations under section 38 of the Act needed to be lodged by 29 May 2013 as prescribed by rule 35(a) of the Development Regulations 2008 (SA) (“the Regulations”).
[2] Development Act 1993 (SA) s 38(5).
On 28 May 2013, the Authority sent a letter to the Council (“the May Submission”). The Authority said in the letter that the statements made by Access Planning in its letter dated 22 April 2013 required updating and correcting. It referred to a 20 Year Forward Projections report prepared by the Authority in 2012 which superseded statements in the 2009 draft Plan for Greater Adelaide. It commented on several statements made by Access Planning. It did not say that the Authority supported or opposed the application for development plan consent.
On 3 July 2013, ACN’s planning consultant Access Planning responded to four submissions which were received by the Council in relation to the development application. It addressed the submission made by the Authority.
On 13 August 2013, the Authority’s planning consultant, Phillip Brunning, sent a letter to the Council saying that the Authority opposed the application for development plan consent (“the August Submission”). He contended that the proposal was substantially at variance with the Development Plan because the Land was zoned for industrial use and the proposed use would prejudice that fundamental purpose and function. He also contended that the proposed use was not economically viable and had inadequate provision for parking and traffic. The August Submission was lodged well outside the 10 business day period for the making of representations under section 38 of the Act.[3]
[3] Development Regulations 2008 (SA) r 35(a).
On 21 August 2013, the Council’s Development Assessment Panel met and granted development plan consent subject to 15 conditions.
On 10 September 2013, the Authority filed the appeal in the Environment Court.
On 19 November 2013, ACN instituted this action for judicial review.
Capacity and power of the Authority
ACN contends that the Authority had no capacity or power under the ACA Act to lodge the submissions or institute the appeal. The Authority’s functions are confined to the administration and maintenance of its cemeteries and incidental functions under section 6 of the ACA Act. Its functions do not extend to a concern about cemeteries operated or proposed to be operated by competitors.
The Authority contends that its functions and powers are unlimited in the same sense as a corporation under the Corporations Act 2001 (Cth). In the alternative, the lodging of the submissions and institution of the appeal fell within its functions and powers conferred by sections 6 and 7 of the ACA Act.
The ultra vires doctrine
Traditionally, private corporations created under statute possessed only functions and powers conferred upon them expressly or impliedly by the statute and acted ultra vires if they acted outside those functions and powers.[4] A similar principle applies to statutory corporations formed for public purposes.[5]
[4] Ashbury Railway Carriage & Iron Co Ltd v Riche (1874-75) LR 7 HL 653; Attorney-General v Great Eastern Railway Co (1880) 5 AC 473 at 481 per Lord Blackburn; Baroness Wenlock v River Dee Company (1885) 10 AC 354; Williams v Hursey (1959) 103 CLR 30.
[5] Kathleen Investments (Australia) Ltd v The Australian Atomic Energy Commission (1977) 139 CLR 117 at 128 and 130 per Barwick CJ, 138 per Gibbs J, 141-142 per Stephen J, 154-155 per Mason J and 157 per Jacobs J; Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247 at [52] per Gaudron, Gummow and Kirby JJ.
In the case of corporations formed under or governed by the Corporations Act 2001 (Cth), the doctrine of ultra vires has essentially been abolished. A company now has the legal capacity and powers of an individual.[6] A company’s constitution does not need to set out its objects or powers. If it does, an act of a company is not invalid because it is contrary to or beyond its objects or any restrictions or prohibitions on its powers contained in its constitution.[7]
[6] Corporations Act 2001 (Cth) s 124.
[7] Ibid at s 125.
The functions and powers of the Authority are conferred by sections 6 and 7 of the ACA Act:
6—Functions
(1)     The Authority's primary functions are—
(a)     the administration and maintenance of the following as public   cemeteries:
(i)    Cheltenham Cemetery;
(ii)     Enfield Memorial Park;
(iii)    West Terrace Cemetery; and
(b)     the administration and maintenance of any other cemetery established                or acquired by the Authority; and
(c)     the burial or other disposal of human remains in an Authority   cemetery; and
(d)     activities associated with the heritage or historical significance of an                  Authority cemetery; and
(e)     any other function assigned to the Authority by or under this or any                   Act, or by the Minister.
(2)     The Authority's functions may extend to the following as the Authority              thinks fit:
(a)     activities or services relating to the burial or other disposal of human                 remains;
(b)     other activities or services utilising Authority property and buildings.
7—Powers
Subject to this Act, the Authority has all the powers of a natural person together     with the powers conferred on it under this or any other Act.
The Authority is a statutory corporation and a public corporation within the meaning of the Public Corporations Act.[8] Section 39 of the Public Corporations Act provides:
39—Validity of transactions of corporation
(1)     Subject to subsection (2), a transaction to which a public corporation is a party or apparently a party (whether made or apparently made under the corporation's      common seal or by a person with authority to bind the corporation) is not invalid because of—
(a)     any deficiency of power on the part of the corporation; or
(b)     any procedural irregularity on the part of the board or any director, employee               or agent of the corporation; or
(c)     any procedural irregularity affecting the appointment of a director, employee               or agent of the corporation.
(2)     This section does not validate a transaction in favour of a party—
(a)     who enters into the transaction with actual knowledge of the deficiency or           irregularity; or
(b)     who has a connection or relationship with the corporation such that the               person ought to know of the deficiency or irregularity.
[8]    Public Corporations Act 1993 (SA) s 5(1)(a); Adelaide Cemeteries Authority Act 2001 (2001) s 5.
Limited or unlimited capacity and powers
The Authority’s primary contention is that it has the legal capacity and powers of an individual in the same manner as a corporation under the Corporations Act 2001 (Cth) by virtue of section 7 of the ACA Act and section 39 of the Public Corporations Act. I reject that contention.
The ACA Act distinguishes between functions and powers. The Authority’s functions are limited by section 6. While its powers are unlimited under section 7, its powers can only be exercised for the purpose of carrying out its functions. Its functions are confined to the administration and maintenance of Authority cemeteries, burial of human remains and functions incidental thereto. The Authority does not have the legal capacity to engage in extraneous activities such as manufacturing motor vehicles or providing travel agency services which are unrelated to its functions under section 6.
Section 39 of the Public Corporations Act does not confer legal capacity or functions upon public corporations. Its purpose and operation is much more circumscribed. It validates specific transactions after they have been made which, but for the section, would be invalid by reason of, inter alia, a deficiency of capacity or power on the part of the corporation.
The Authority makes a subsidiary contention that section 38 of the Act confers power upon statutory corporations to make representations and to appeal. I reject that contention. Section 38 is addressed to rights and obligations as between applicants for development plan consent, councils, neighbours and members of the public. It is not directed to the internal capacity and power of a natural or artificial person to perform acts contemplated by section 38.
Performance of its functions
The question of the Authority’s legal capacity and power to lodge the submissions and institute the appeal depends on whether those acts are properly regarded as being in performance of its functions under section 6 of the ACA Act.
The Authority has three levels or types of functions under the ACA Act:
1.     primary functions defined by subsection 6(1);
2.     extended functions defined by subsection 6(2); and
3.     incidental or ancillary functions by way of necessary implication.
It is well established that a statutory body has functions and powers which are incidental to or facilitate any express functions and powers conferred upon it.[9] ACN accepts the existence of incidental capacities and powers, but contends that they did not authorise the Authority to lodge submissions or institute the appeal in the circumstances of this case.
[9] Attorney-General v Great Eastern Railway Co (1880) 5 AC 473 at 478 per Lord Selborne LC and 481 per Lord Blackburn; Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1 at 29 per Lord Templeman (Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Griffiths agreeing); R v Gough; Ex parte Australasian Meat Industry Employees’ Union (1965) 114 CLR 394 at 416 per Windeyer J and 422 per Owen J (Kitto J agreeing).
The primary functions of the Authority set out in subsection 6(1) revolve around the operation of its own cemeteries. All of the primary functions listed in subsection 6(1) are explicitly linked and confined to Authority cemeteries. The extended functions under subsection 6(2)(a) are on their proper construction confined to activities or services linked to the Authority’s primary functions which in turn involve Authority cemeteries. The extended functions under subsection 6(2)(b) are linked to property, buildings, facilities, activities or services which are themselves linked to Authority cemeteries.
The Authority has incidental functions and powers in connection with its primary and extended functions under subsections 6(1) and (2). For example, it has the capacity and power to advertise or otherwise market its cemeteries and other facilities and services provided under those subsections.
In the present case, the Authority has taken an interest in ACN’s proposed cemetery which, it perceives would operate in competition with its cemeteries. The Authority made submissions concerning the grant of development plan consent and has instituted the appeal against the Council’s grant of development plan consent for ACN’s proposed cemetery. The Authority perceives that the establishment of the proposed cemetery by ACN, whether successful or unsuccessful, will or may have an adverse financial effect upon the Authority’s own cemeteries either directly, as a result of competition, or indirectly as a result of the Authority being obliged to take over ACN’s cemetery if it proves financially unviable. That is a matter of judgment for the board of the Authority.[10] In light of this, I conclude that the Authority had the legal capacity and power to lodge the submissions and institute the appeal under its incidental functions and powers.
[10] ACN challenges only the objective capacity and power of the Authority to make submissions and bring the appeal. It does not challenge the Authority’s bona fides and does not seek judicial review on the ground that the Authority acted for an improper purpose.
ACN makes a subsidiary contention that the institution of the appeal was beyond power because the Authority has a commercial competitive interest in the appeal and its predominant purpose in pursuing the appeal is to delay or prevent the development in order to obtain commercial benefit within the meaning of section 88C of the Act. I reject that contention.

Section 88C gives to the proponent of a development who is successful in proceedings in the Environment Court a right of action for loss suffered as a result of delays to the development on account of a party with a commercial competitive interest pursuing the proceedings for the purpose of delaying or preventing the development to obtain commercial benefit. Section 88C does not render an appeal by a party with a commercial competitive interest acting for the prescribed purpose beyond power or invalid. The right of action only comes into existence after the outcome of the relevant proceedings and only if that outcome is that the development may proceed. In any event, ACN has not proved that the Authority instituted the appeal for an improper purpose.
I reject ACN’s contention that, by lodging the submissions and instituting the Appeal, the Authority acted beyond its functions and powers.
A valid representation
ACN contends that the May Submission did not constitute a valid representation within the meaning of section 38 of the Act and accordingly the Authority had no right to appeal against the Council’s decision.
The Authority takes issue with ACN’s contentions. In the alternative, it contends that its failure to comply with the Act or Regulations would be excused by the Environment Court under subsection 33(1) of Environment, Resources and Development Court Act 1993 (SA) (“the Environment Court Act”). It contends that for this reason and, more generally, judicial review should be refused on discretionary grounds.
Relevant statutory provisions
Subsection 86(1)(b) of the Act confers a right of appeal against a decision in respect of a Category 3 development upon a person who was entitled to be given notice of the decision under section 38. Subsection 38(12) in turn confers on a person who has made a representation an entitlement to be given notice of the decision relating to the application. Under subsection 38(7), when notice of an application for consent in respect of a Category 3 development has been given, any person is entitled, in accordance with the Regulations, to make representations in writing to the council[11] in relation to the granting or refusal of consent. Under subsection 38(6), subject to the Regulations, the subject matter of a representation must be limited to what should be the decision of the council as to development plan consent. Under subsection 38(18), a representation that is not made in accordance with a requirement prescribed by the Regulations has no effect for the purposes of section 38 and a person making such a representation is not entitled to be given notice of the council’s decision.
[11] Subsection 38(7) refers to the relevant authority which is not always a council. For ease of expression, I refer only to a council because the relevant authority is a council in the present case and to avoid confusion with the Authority.
Subsection 86(1)(b) of the Act provides:
(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 section 38 may appeal to the Court against that decision (subject to the limitations imposed by that section);
Section 38 relevantly provides:
(1)     Subject to this section, there will be 4 categories of development for the purposes of this section—
(a)     Category 1 development; and
(ab)   Category 2A development; and
(b)     Category 2 development; and
(c)     Category 3 development.
...
(3)     Where a person applies for a consent in respect of the Development Plan for a      Category 1 development—
(a)     the relevant authority must not, on its own initiative, seek the views of the           owners or occupiers of adjacent or other land in relation to the granting or         refusal of development plan consent; and
(b)     the following provisions of this section do not apply.
(3a)   Where a person applies for a consent in respect of the Development Plan for a      Category 2A development—
(a)     the relevant authority must—
(i)    subject to any exclusion or qualification prescribed by the   regulations—give an owner or occupier of each piece of adjoining                    land; and
(ii)     give any other person of a prescribed class,
notice of the application; and
(b)     the relevant authority must—
(i)    give consideration to any representations in writing made in   accordance with the regulations by a person who is entitled to be   given a notice under paragraph (a); and
(ii)     forward to the applicant a copy of any representations that the relevant   authority must consider under subparagraph (i) and allow the   applicant an opportunity to respond, in writing, to those   representations within the period prescribed by the regulations; and
(c)     if a representation is received under paragraph (b) within the prescribed              number of days, the relevant authority may, in its absolute discretion, allow              the person who made the representation to appear personally or by                  representative before it to be heard in support of the representation.
(4)     Where a person applies for a consent in respect of the Development Plan for a      Category 2 development, notice of the application must be given, in accordance    with the regulations, to—
(a)     an owner or occupier of each piece of adjacent land; and
(b)     any other person of a prescribed class.
(5)     Where a person applies for a development assessment of a Category 3 development, notice of the application must be given, in accordance with the regulations, to—
(a)     the persons referred to in subsection (4); and
(b)     any other owner or occupier of land which, according to the determination of               the relevant authority, would be directly affected to a significant degree by              the development if it were to proceed; and
(c)     the public generally.
(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 be imposed in relation to the development—        what should be the decision of the prescribed body in response to the                    application.
(7)     Subject to subsection (17), where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make      representations in writing to the relevant authority in relation to the granting or         refusal of consent.
…
(12)   Where representations have been made under this section, the relevant authority     must—
(a)     give to each person who made a representation notice of its decision on the         application and of the date of the decision and, in the case of a Category 3              development, of the person's appeal rights under this Act; and
(b)     in the case of a Category 3 development—give notice to the Court—
(i)    of its decision on the application and of the date of the decision; and
(ii)     of the names and addresses of persons who made representations to                   the relevant authority under this section.
…
(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.
…
(17)   Where a relevant authority is acting under this section in relation to a Category 2A or Category 2 development, a representation made by a person who is not entitled     to be given notice of the relevant application under this section is not required to be taken into account under this section and will not have effect for any relevant     purpose under this section. (18) In addition, a representation that is not made in         accordance with any requirement prescribed by the regulations for the purposes of this section is not required to be taken into account under this section and will not have effect for any relevant purpose under this section (including, in the case of a      Category 3 development, in connection with the operation of subsection (12)).
Regulation 35 of the Regulations relevantly provides:
Pursuant to section 38(7) of the Act—
(a)a representation under section 38 of the Act must be lodged with the relevant authority … if public notice is given under section 38(5)(c) of the Act, within 10 business days after the day on which a copy of the notice is published in a newspaper under these regulations … (and any representation lodged after any such period cannot be taken to constitute a representation for the purposes of section 38(12) of the Act); and
(b) a representation must include the name and address of the person (or persons) who are making the representation; and
…
(d) a representation must set out, with reasonable particularity, the reasons for the representation; and
(e) a representation must indicate whether or not the person or persons who are making the representation desire, subject to section 38 of the Act, to be heard by the relevant authority.
ACN’s primary contention is that the May Submission did not comply with subsection 38(6) because it did not state that the decision of the Council should be to approve, conditionally approve or refuse the application for development plan consent and this is required as a condition of validity of a representation. ACN’s secondary contention is that valid representations under subsections 38(6) and (7) and regulation 35(d) must refer to relevant planning considerations. The May Submission failed to do this because it only addressed demand for cemetery space and this was irrelevant to the Council’s decision on the application for development plan consent.
The resolution of the principal issue going to the validity of the May Submission turns on the proper construction of subsections 38(6) and 38(7). It is important to understand the genesis of those provisions.
Genesis of subsections 38(6) and (7)
The Planning and Development Act 1966-1967 (SA) (“the 1967 Act”) originally conferred a right of appeal to the Planning Appeal Board upon “any person aggrieved” by a decision “to refuse any consent ... or to grant any consent ... subject to conditions ...”.[12] In 1970 in Byrne v Noarlunga District Council,[13] Wells J held that only the applicant for consent was a person aggrieved within the meaning of that provision and an objector was not.
[12] Planning and Development Act 1966-1967 (SA) s 26(1).
[13] [1970] SASR 523.
In 1972, the 1967 Act was amended to confer separate rights of appeal upon an applicant for consent[14] and an objector.[15] Section 36a of the 1967 Act inserted in 1972 (as amended in 1975) relevantly provided:
[14] Planning and Development Act 1966-1967 (as amended) (SA) s 26(1).
[15] Ibid at s 36a.
(1)     Where, pursuant to a planning regulation, the Authority or a council gives           notice to the public or certain members of the public of an application made             for the consent, permission or approval of the Authority or the council, any           person to whom that notice is directed may, within the period of time                specified in the notice lodge in duplicate with the Authority or the council,          as the case may require, a written objection to the application.
…
(2a)   The Authority or the council shall allow the applicant an opportunity to answer in writing any objection that has been made to his application within ten days after he     is furnished with a copy of the objection.
(3)     The Authority or the council shall consider each objection lodged with respect to    an application, and any answer that the applicant may have to the objection.
(4)     Upon deciding an application with respect to which an objection has been lodged, the Authority or the council shall –
(a)     notify the applicant, in writing, of that decision and of his right of appeal             against the decision under this Act;
and
(b)     notify the objector or objectors, in writing, of that decision and of the right          of appeal against the decision under this Act.
…
(6)     Any person who, pursuant to this section, has lodged an objection with respect to an application … may, if he is aggrieved by the decision of the Authority or the council on that application, appeal to the board within the period of fourteen days     after notification of the decision is given under subsection (4) of the this section.
In 1979 in Nassaris v Tomeo and the Corporation of the City of Port Adelaide,[16] Jacobs J held that all objectors were “persons aggrieved” within the meaning of subsection 36a(6) and there was no separate requirement for an objector to establish locus standi beyond being an objector. It was clear under the 1967 Act from 1972 onwards that a person who lodged a submission in support of or merely commenting on the application for consent had no right of appeal.
[16] (1979) 23 SASR 35.
The Planning Act 1982 (SA) (“the 1982 Act”) took a different approach. Section 53 of the 1982 Act relevantly provided:
(1)     Except as provided by the regulations, notice of an application for a planning       authorization must be given in accordance with the regulations.
(2)     Where notice of an application has been given under subsection (1), any person      who desires to do so may, in accordance with the regulations, make representations to the relevant planning authority in relation to the granting or refusal of the application.
(3)     The planning authority to which the application is made shall forward to the applicant a copy of the representations made under this section in relation to his application and shall allow him an opportunity to respond, in writing, to those      representations.
…
(5)     The planning authority shall, upon deciding an application in relation to which     representations have been made under this section, give the persons by whom those representations were made notice of the decision.
(6)     Notice under subsection (5) may be given-
(a)     personally or by post;
…
(7)     A person who is entitled to be given notice of a decision under subsection (5) and who is aggrieved by the decision of the planning authority, may, subject to subsection (10), appeal to the Tribunal against the decision.
By reason of the change of language from “objection to the application” to “make representations ... in relation to the granting or refusal of the application”, representations were permitted which opposed, supported, or merely commented upon the application.[17]
[17] Cf the construction of the amendment to the Town and Country Planning Act 1961 (Vic) which substituted the word “objections” for “submissions” considered in Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210 at 223 per Nathan J.
When first enacted in 1993, subsection 38(6) of the Act provided:
Except as otherwise provided by the regulations –
(a)     any notice required under this section; and
(b)     the extent of representations under this section; and
(c)      any appeal under this section,
will only relate to whether or not a provisional development plan consent should be granted.
In his Second Reading Speech on the Bill which became the Act, the Minister of Housing, Urban Development and Local Government Relations explained clause 38 as follows:
This clause sets out the role of third parties in relation to development control decisions. The clause does restrict the role of third parties to assessment in relation to the Development Plan, and not the more technical construction requirements relating to buildings and subdivisions.
The clause sets out 3 categories of development, being those totally exempt from public consultation, those subject to neighbour notification and comment, and those given full public notice and provided with third party appeal rights. Where it is not clear into which category a development falls, the clause provides for its classification as a Category 3 development.
The categories will initially be fixed in the Regulations. However to ensure the categorisation meets local conditions, the clause enables the regulations to be overridden by specific provisions set out in the Development Plans in respect of Categories 1 and 2. Various rights of representation and comment are provided and appeal rights will apply in relation to Category 3 developments.[18]
[18] South Australia, Parliamentary Debates, House of Assembly, 10 March 1993, 2438-9 (Gregory J.
Crafter).
Schedule 2 of the Environment Protection Act 1993 (SA) (“the 1993 Amending Provision”) substituted the original version of subsection 38(6) with the subsection in its current form.
ACN’s primary contention
ACN’s primary contention is that, on its proper construction, subsection 38(6) requires that a representation identify whether the council’s decision should be to approve, conditionally approve or refuse the application for development plan consent.
The Authority contends that the subject matter of representations is prescribed by subsection 38(7) and not subsection 37(6). Subsection 38(6) merely confines the right to make representations to the development plan consent element of development approval[19] and excludes the right to make representations in relation to other elements, including building rules consent[20] and land division conditions.[21] Alternatively, subsection 38(6) prohibits a representation from addressing any other subject matter, but does not include a positive requirement to address what the decision should be. Alternatively, there is compliance with subsection 38(6) when a representation raises a matter for consideration by the council and there is no need for the representation to address what the Council’s decision should be.
[19] Development Act 1993 (SA) s 33(1)(a).
[20] Ibid at s 33(1)(b).
[21] Ibid at ss 33(1)(c)-(d).
On its proper construction, subsection 38(7) confers a right to make representations in relation to an application for development plan consent. Subsection 38(7) does not prescribe the subject matter of representations which might be made pursuant to that conferral.
On its proper construction, subsection 38(6) confines the subject matter of a representation to the decision of the council concerning development plan consent. It does not require that the representation support or oppose the grant of development plan consent. I reach this conclusion for the following reasons.
Subsection 38(6) is expressed in negative language requiring the subject matter of, inter alia, representations to be limited to what should be the decision of the council as to development plan consent. The structure and language of subsection 38(6) suggests that it was a major purpose of the subsection to limit the regime for notices, representations and third party appeals to development plan consent and exclude the application of the regime to building rules consent, land division conditions or other aspects of the development approval process. If subsection 38(6) had been intended affirmatively to require a representation to support or oppose the application, it could have simply said so rather than adopting the convoluted language of the subsection.
Subsection 38(6) does not require that a representation be limited to what should be the decision of the council, but rather that the subject matter of the representation be so limited. The reference to the generalised concept of subject matter gives some indication that it is sufficient that the representation relates to the council’s decision rather than requiring that the representation support or oppose the grant of development plan consent.

Subsection 38(6) addresses compendiously notices and appeals as well as representations. Subsections 38(3a), (4) and (5) require only that notice be given of the application. They do not require that a notice must identify what should be the decision of the council as to development plan consent. Given that the applicant is applying for development plan consent, it would be inapt at best, and meaningless at worst, to require notice of an application to identify whether the application is supported or opposed. The application of subsection 38(6) to notices perhaps reflects Parliament’s contemplation that the Regulations would include a requirement that the notice advise of the right to make representations given by subsection 38(7) and Parliament’s desire to ensure that the notice clearly indicate that representations are to be limited to the question of development plan consent. If it had been a purpose of subsection 38(6) to require a representation to either support or oppose the application for development plan consent, it may be expected that this would have been addressed in a standalone subsection independently of the requirements as to notices. This consideration supports a conclusion that the principal purpose of subsection 38(6) is to confine the process established by section 38 to the development plan consent aspect of development approval.
There is no obvious policy reason why the legislature should require a person making a representation to adopt a position as to whether development plan consent should be granted, conditionally granted or refused. Some persons may simply seek to bring to the council’s attention facts that they consider should be taken into account in the process of making a development plan consent decision. Subsection 38(6) does more than give those wanting to advocate a position which advances their personal interest an opportunity to do so. It also serves a wider public purpose by encouraging the provision of material bearing generally on the proposed development so that the decision on the merits of the development is better informed.
A person who lodges a representation of a general nature which does not support or oppose the application may later reach a view that the wrong planning decision was made. There is no obvious reason to deny a right of appeal to a person interested enough to make a representation but who is circumspect in reaching a firm opinion as to the result of the application.
ACN accepts that a person who lodges a representation which supports an application for development plan consent is entitled to change his or her mind and appeal against the grant of development plan consent. It is an unlikely intention to attribute to the legislature that such a person is given a right of appeal and yet no right of appeal is given to a person who makes substantive submissions to the council without adopting a partisan position.
The genesis of subsection 38(6) from 1967 onwards indicates that the legislature has taken different views from time to time whether a person entitled to make a representation and given third party appeal rights must identify the result which that person advocates. The 1982 Act, which was the immediate predecessor of the Act, permitted representations which neither supported nor opposed the grant of development plan consent. If Parliament had intended to make a fundamental change in this respect, it may be expected that it would have done so more explicitly and that this would be apparent from the wording and structure of subsection 38(6). In addition, the original subsection 38(6) when the Act was first enacted, as set out at [48] above, provided that the extent of representations could only relate to whether or not a provisional development plan consent should be granted. The references to extent and relate and the structure of the subsection as a whole suggest that the original intention was not to require that a representation either support or oppose the application for development plan consent. The wording and structure of the substituted version of the subsection introduced by the 1993 Amending Provision do not suggest that there was a change of intent in this respect.
In the Second Reading Speech extracted at [49] above, the Minister said that clause 38 restricts the role of third parties in relation to the development plan and not more technical construction requirements relating to buildings and subdivisions. While this is of limited weight, it tends to suggest that a principal purpose of subsection 38(6) was to restrict the role of third parties to the development plan consent aspect and exclude them from other aspects of the development approval process.
In Mackenzie Intermodal Pty Ltd v Lawson and Naracoorte Lucindale Council,[22] Debelle J proceeded on the basis that subsection 38(6) requires a representation to set out what the decision of the council should be.[23] However, this decision is of limited relevance given that Mr Lawson did not apparently contend otherwise and Debelle J did not give any reasons for reaching a conclusion as to the proper construction of subsection 38(6).
[22] [2003] SASC 297.
[23] Ibid at [8] and [20].
I conclude that, on its proper construction, subsection 38(6) does not require a person who makes a representation within the meaning of section 38 to identify what the decision of the council should be in relation to the application for development plan consent which that person advocates to the council or the prescribed authority as the case may be.
ACN’s secondary contention
ACN’s secondary contention is that the May Submission did not comply with subsections 38(6) and (7) and regulation 35(d) because it only addressed demand for cemetery space and this was irrelevant to the Council’s decision on the application for development plan consent. ACN contends that to be valid, a representation must address relevant planning considerations.
As to the first limb of ACN’s secondary contention, it may be accepted that the assessment of a proposed development against a development plan does not generally encompass whether there is sufficient community need or demand for the proposed development.[24] Similarly, the mere fact that a proposed development might have an adverse affect upon competitors is ordinarily not a relevant planning consideration.[25]
[24] Development Assessment Commission v 3GIS Pty Ltd [2007] SASC 216; (2007) 154 LGERA 72 at [41] per Bleby J (Doyle CJ and Sulan J agreeing).
[25] Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 681 per Barwick CJ and 687 per Stephen J (Gibbs, Mason and Aickin JJ agreeing).
However, if the failure of a proposed development due to economic viability will have a resultant detrimental impact upon amenity, that will ordinarily be a valid planning consideration.[26] Similarly, if the proposed development will jeopardise existing community facilities resulting in a net community detriment taking into account the proposed development itself, that will ordinarily be a relevant planning consideration.[27]
[26] Penley v Development Assessment Commission (1995) 88 LGERA 102 at 108-109 per Prior J (Cox and Lander JJ agreeing).
[27] Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 and 687 per Stephen J (Gibbs, Mason and Aickin JJ agreeing).
The May Submission addressed the question whether there was sufficient demand for ACN’s proposed cemetery and whether it would be economically viable. If a cemetery ceases to be economically viable, there is a real risk that it will lead to an enduring negative impact upon amenity. A cemetery cannot simply be bulldozed and replaced by a different development. While ACN contends that it is legally permissible under the Burial and Cremation Act 2013 (SA) to relocate human remains already interred, this merely goes to the strength of the planning consideration and not whether it is a relevant planning consideration. Ultimately, the weight, if any, to be given to the economic viability of the proposed cemetery will be a matter for the Environment Court to determine on the merits of the appeal.
As to the second limb of ACN’s contention, there is no reason to import into subsection 38(6) a requirement that a representation must address planning considerations which are ultimately ruled by a court to be relevant. Such a construction would lead to great uncertainties as neither the representor nor the applicant could know whether the representation was valid unless and until it were authoritatively determined that it raised relevant planning considerations. Even a decision of the council that the representation did or did not raise relevant planning considerations could be subject to a different determination by a court on appeal. To import such a requirement into subsection 38(6) without further stipulation as to what amounts to ‘relevant’ planning considerations would be liable to give rise to arbitrary distinction between what is sufficiently relevant and what is not for this purpose.
Subsection 38(7) does not impose such a requirement. As observed above, on its proper construction, that subsection is addressed to conferring a right to make a representation rather than the subject matter of the representation.
Regulation 35(d) only requires the representation to set out, with reasonable particularity, the reasons for the particular propositions put forward in a representation. It does not address whether those propositions raise relevant planning considerations.
I conclude that, on the proper construction of subsections 38(6) and 38(7) and regulation 35(d), it is not a condition of validity that a representation address relevant planning considerations. In any event, the demand for cemetery space is capable of being a relevant planning consideration because it concerns the negative impact upon amenity that the proposed cemetery may have if it fails to be economically viable.
Consequence of non-compliance
ACN contends that, if a submission does not comply with subsection 38(6), it does not comprise a representation for the purpose of subsections 38(12) and (14) and subsection 86(1)(b) such that the Authority does not have a right of appeal. The Authority takes issue with these contentions.
In light of my construction of subsection 38(6), this issue does not strictly arise. However, as it was fully argued, I address this issue on the assumption that subsection 38(6) requires a representation to support or oppose the application for development plan consent.
It is a question of legislative intention whether non-compliance with subsection 38(6) invalidates any submission and renders it not a representation within the meaning of section 38. In discerning that legislative intention:
The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.[28]
[28] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91] and [93] per McHugh, Gummow, Kirby and Hayne JJ.
Subsection 38(18) explicitly provides that a representation not made in accordance with the Regulations has no effect for any relevant purpose under section 38. Thus, if a submission does not comply with regulation 35 it will not give rise to an obligation on a council under subsection 38(12) to give notice of its decision to the person making the representation and in turn that person will not have a right of appeal under subsection 86(1)(b).
Subsection 38(18) is silent as to whether a representation which does not comply with the requirements of section 38 is invalid. The Authority relies in effect upon the maxim expressio unius est exclusio alterius and contends that rendering invalid a representation which does not comply with the Regulations but saying nothing about a representation which does not comply with subsection 38(6) indicates a legislative intention that non-compliance with subsection 38(6) does not result in invalidity. I reject that submission. It is inconceivable that the legislature intended that non-compliance with a requirement imposed by the Regulations would result in invalidity but that non-compliance with a requirement imposed by section 38 itself would not result in invalidity.
In Mackenzie Intermodal Pty Ltd v Lawson and Naracoorte Lucindale Council, Debelle J held that non-compliance with subsection 38(6) did not result in invalidity.[29] However, that decision pre-dated the insertion of subsection 38(18). The result of subsection 38(18) is that a representation not made in accordance with the Regulations or with the requirements of section 38(6) has no effect for any relevant purpose under section 38.
[29] [2003] SASC 297 at [14]-[24].
Excusal of failure to comply
Subsection 33(1) of the Environment Court Act provides:
33—General powers of the Court and the Supreme Court to cure irregularities
(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.
The Authority contends that, if the May Submission failed to comply with subsection 38(6), this Court should exercise its discretion to decline to grant the remedies sought by ACN. This is because ACN could raise its contentions in relation to section 38 upon the appeal before the Environment Court and, if that occurred, the Environment Court would exercise its discretion under subsection 33(1) to excuse the Authority’s failure to comply with subsection 38(6).
ACN contends that subsection 33(1) of the Environment Court Act has no application to a representation which does not comply with subsection 38(6) of the Act and in any event discretion would not be exercised in favour of the Authority to excuse its failure. ACN agrees that, if I were to refuse relief only because I consider the discretion under section 33(1) is available and should be exercised in favour of the Authority, it would not raise the matter before the Environment Court.
In light of my conclusions above, this issue doe not arise. However, as it was fully argued, I address this issue on the assumption that the May Submission did not comply with subsection 38(6).
Power to excuse
In R v South Australian Planning Commission; Ex parte the Corporation of the City of Adelaide,[30] the Unley Council did not make a representation to the Planning Commission because the Commission failed to give notice to the Council as required by the 1982 Act. The Council had earlier informed the Commission that it opposed the proposed development. The Council appealed against the Commission’s approval of the development and the applicant contended that the appeal was incompetent because the Council had not made a representation. The Full Court held that the Court had power to dispense with the requirement that the Council make a representation and exercised its discretion to grant that dispensation.[31] The structure and wording of subsection 35(1) of the 1982 Act was largely the same as subsection 33(1) of the Environment Court Act, except that subsection 35(1) referred to an appeal or a purported appeal.
[30] (1986) 44 SASR 100.
[31] Ibid at 105-106 per Jacobs J (Legoe J agreeing) and 113 per Olsson J.
The decision of the Full Court in R v South Australian Planning Commission; Ex parte the Corporation of the City of Unley entails that subsection 33(1) of the Environment Court Act should be construed as conferring power upon the Environment Court to dispense with any requirement in subsection 38(6).
Discretion to excuse
The Authority contends that it should be excused from complying with the requirement that the May Submission identify whether the Council should grant or refuse the application and further or alternatively from the requirement that the August Submission be lodged within 10 business days of 15 May 2013.
In relation to the May Submission, the Authority could have urged the Council to refuse ACN’s application. Instead, it deliberately chose to draw the Council’s attention to the fact that statements made by ACN in support of its application relied upon an outdated document and summarised the effect of the more recent 20 Year Forward Projections report. There is no good reason to dispense with the requirement in subsection 38(6) that a representation state whether the council should grant or refuse an application.
Ultimately, the Authority changed its mind and sought to make a submission to the Council opposing the application and it did so on 13 August 2013. This was two and a half months after expiry of the time limit for the making of representations under section 38. It was only one week before the Council’s Development Assessment Panel met to consider ACN’s application. In relation to the August Submission, the Authority contends that the Court should dispense with the requirement to lodge a representation within 10 business days after 15 May 2013, effectively extending the Authority’s time limit from 14 days to 11 weeks.
This is not a case where a representation is lodged only a matter of days late, or one in which the failure to lodge a representation opposing the application was due to inadvertence. Section 38 provides for an orderly sequence of notice, representations, response by the applicant and consideration by the council. There is no warrant for dispensing with the requirements of section 38 and regulation 35 so as to permit the Authority to lodge a representation more than two months out of time in circumstances in which it earlier chose not to oppose the application.
Other discretionary considerations
The Authority contends more generally that, if ACN were otherwise entitled to relief, this Court should exercise its discretion to decline to grant the remedies sought by ACN because ACN could raise its contention relating to section 38 upon the appeal before the Environment Court. ACN challenges the appeal on two grounds, the first being the capacity of the Authority under the ACA Act, which cannot be heard by the Environment Court. Given that both grounds were fully argued on their merits before me, it would have been inappropriate for me to decline to grant the remedies sought merely because ACN can raise its section 38 contention in the Environment Court.
Conclusion
I dismiss the application for judicial review by ACN. I will hear the parties concerning consequential matters.