Figtree Reserve Pty Limited v Goulburn Mulwaree Shire Council
[2013] NSWLEC 65
•15 May 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Figtree Reserve Pty Limited v Goulburn Mulwaree Shire Council [2013] NSWLEC 65 Hearing dates: 1 May 2013 Decision date: 15 May 2013 Jurisdiction: Class 1 Before: Pain J Decision: 1. The Class 1 application dated 10 October 2012 is set aside.
2. The Applicant must pay the Council's costs of the Notice of Motion dated 3 December 2012.
Catchwords: PROCEDURE - compliance with statutory time limit for commencement of Class 1 merit appeal proceedings Legislation Cited: Corporations Act 2001 (Cth)
Environmental Planning and Assessment Act 1979 s 81, s 97, s 153, Sch 6 cl 136
Environmental Planning and Assessment Regulation 2000 cl 100, cl 102
Interpretation Act 1987 s 76
Land and Environment Court Rules 2007r 3.7, r 7.1, r 7.2
Privacy Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 r 1.13Cases Cited: Chen v Virgona [2008] NSWLEC 281
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Simmons v Marrickville Council [2012] NSWLEC 133; (2012) 190 LGERA 93Category: Principal judgment Parties: Figtree Reserve Pty Limited (Applicant)
Goulburn Mulwaree Shire Council (Respondent)Representation: Mr P Miller (as agent) (Applicant)
Mr A Bradbury (solicitor) (Respondent)
Bradley Allen Love Lawyers (Respondent)
File Number(s): 11069 of 2011
Judgment
Goulburn Mulwaree Shire Council (the Council) has filed a Notice of Motion dated 3 December 2012 seeking an order that this Class 1 appeal be set aside as it was filed outside the 12 month time limit specified in s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act). At issue is whether the Council's notice of determination of refusal of the Applicant's development application (DA) for a basalt quarry on Lot 1 DL 1094055 in Towrang was valid and when the 12 month appeal period expired. Mr Peter Miller appeared as agent for the Applicant. The Council was represented by Mr Bradbury, solicitor.
Legislation
The relevant sections of the EPA Act provide:
81 Post-determination notification
(1) The consent authority must, in accordance with the regulations, notify its determination of a development application to:
(a) the applicant, ...
97 Appeal by applicant-development applications
(1) An applicant who is dissatisfied with the determination of a consent authority with respect to the Applicant's development application (including a determination on a review under section 82A) may appeal to the Court within 6 months after:
(a) the date on which the Applicant received notice, given in accordance with the regulations, of the determination of that application or review, or
(b) the date on which that application is taken to have been determined under section 82 (1).
(2) An applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2), may appeal to the Court within 6 months after:
(a) the consent authority or person notifies the Applicant of its decision, or
(b) the date on which the Applicant's request is taken to have been determined under section 80A (3).
(3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a "deferred commencement" consent under section 80 (3) can operate, may appeal to the Court within 6 months after the consent authority notifies the Applicant of its decision. ...
It should be noted that a twelve month period rather than six month period applies in this case because of transitional provisions operating; EPA Act Sch 6, cl 136.
153 Notices
(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:
(a) in the case of an individual:
(i) by delivering it to him or her, or
(ii) by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or
(b) in the case of a person not being an individual:
(i) by leaving it at that person's place of business, or, if that person is a corporation, at the registered office of that corporation, with a person apparently not less than 16 years of age and apparently in the service of the person to whom the notice or other document is required to be given or on whom the notice or other document is required to be served, or
(ii) by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person's last known place of business, or
(c) by sending it by facsimile or electronic transmission (including for example the Internet) to the person in accordance with arrangements indicated by the person as appropriate for transmitting documents to the person.
(2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.
The relevant clauses of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) provide:
100 Notice of determination
(cf clause 68A of EP&A Regulation 1994)
(1) For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information:
(a) whether the application has been granted or refused,
(b) if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted,
(c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions,
(c1) whether the Applicant has the right to request a review of the determination under section 82A of the Act,
(c2) in the case of a consent for a staged development application-whether a subsequent development application is required for any part of the site concerned,
(d) the date on which the determination was made,
(e) the date from which any development consent that is granted operates,
(f) the date on which any development consent that is granted lapses,
(g) if the development involves a building but does not require a construction certificate for the development to be carried out, the class of the building under the Building Code of Australia,
(h) whether the Planning Assessment Commission has conducted a public hearing in respect of the application,
(i) which approval bodies have given general terms of approval in relation to the development, as referred to in section 93 of the Act,
(j) whether the Act gives a right of appeal or a right to make an application for a review against the determination to the Applicant,
(k) whether the Act gives a right of appeal against the determination to an objector.
(2) The notice of determination must clearly identify the relevant development application by reference to its registered number.
...
102 How soon must a notice of determination be sent?
(1) A notice under section 81 (1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the Applicant's development application.
(2) For the purposes of section 81 (1) (c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority's determination of the application.
(3) Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.
Rule 7.1 of the Land and Environment Court Rules 2007 (the Court Rules) provides:
7.1 Time for appeal
(cf Land and Environment Court Rules 1996, Part 17, rule 1)
(1) A person may commence proceedings in relation to an appeal, objection or reference to the Court:
(a) except as provided by paragraph (b), at any time within 60 days after the right of appeal, objection or reference first arises ...
(2) This rule does not apply if the time within which an appeal, objection or reference may be made to the Court is expressly provided for by or under the Act or instrument that confers the right of appeal, objection or reference.
Rule 1.13 of the Uniform Civil Procedure Rules 2005 (UCPR) provides:
1.13 Fixing times
(cf SCR Part 2, rule 4; DCR Part 3, rule 3; LCR Part 4, rule 3)
If no time is fixed by these rules, or by any judgment or order of the court, for the doing of any thing in or in connection with any proceedings, the court may, by order, fix the time within which the thing is to be done.
Section 76 of the Interpretation Act 1987 provides:
76 Service by post
(1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and
(b) in Australia or in an external Territory-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted, and
(c) in another place-is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post.
(2) In this section:
working day means a day that is not:
(a) a Saturday or Sunday, or
(b) a public holiday or a bank holiday in the place to which the letter was addressed.
Council's evidence
The following affidavits were relied on by the Council.
An affidavit of Rachel Kimberley Pascall solicitor filed 25 March 2013, attaches copies of correspondence from Laterals Planning, consultants; an email from Mr Peter Miller dated 21 September 2011 to Mr Allen of Laterals Planning stating that the Council had refused the DA the previous night; an email from Mr Keith Allen of Laterals Planning to Mr Peter Miller dated 30 September 2011 attaching a copy of the determination letter from the Council and stating that the original should come out in the mail; the notice of determination of refusal dated 26 September 2011 sent to Millerview Constructions Pty Ltd (Millerview) care of Laterals Planning PO Box 1326 Goulburn NSW 2580 sent with a letter dated 26 September 2011 from the Council similarly addressed (with cc to Mr Cunningham and Mr Park of Ramsay Clout, liquidator, and Mr Kimball of Sajen Legal, the liquidator's solicitor); a letter dated 3 October 2012 from Mr James Miller to the Council requesting a review of the DA following receipt of the determination by the Council received by her office on 5 October 2011; an email from the Millers to Mr Allen dated 13 October 2012 stating that the original notice of the Council's decision was received on 6 October 2011, a Saturday
An affidavit of Christopher Stewart, Council officer, filed 3 December 2012, attaches the DA in which the Applicant's first name is Figtree Reserve Pty Ltd care of Laterals Planning PO Box 1326 Goulburn. At section 14 the owners of the land must sign the application. These are stated to be Millerview Constructions Pty Ltd ATF Figtree Reserve Pty Ltd ATF, and separately Figtree Reserve Superannuation Fund with the same address for both and the same signature of Mr Peter Miller. Mr Peter Miller signed on behalf of the Applicant Figtree Reserve Pty Ltd. The notice of determination on the Council file is also attached.
An affidavit of Rodney McClenahan, postal officer at Goulburn Post Office, filed 13 March 2013 states that post is generally delivered the next working day after posting if addressed correctly and with correct postage.
It is agreed that Millerview was identified as the registered proprietor of Lot 1 at the time that the DA was refused. The Council also tendered as exhibits ASIC records of Millerview, Figtree Reserve Pty Ltd and the Class 1 application and annexure J. The Class 1 application states that:
Decision appealed against: Determination by the Goulburn Mullwaree Shire Council in relation to Development Application No DA/0266/0809 by notice of determination dated 26 September 2011 (received 6 October 2011)
Applicant's evidence
An affidavit of Mr James Miller dated 16 April 2013 was read in part. He is the sole director of Figtree Reserve Pty Limited which acts as trustee for various family trusts. When the DA was lodged for a basalt quarry, that company was the trustee for Figtree Reserve Superannuation Fund. Millerview was appointed trustee of the Figtree Superannuation Fund on 10 May 1999. Then Figtree Reserve Pty Ltd was appointed trustee on 14 June 2007. On 2 April 2010 Argyle Gravel and Concrete Pty Ltd was appointed acting trustee of Figtree Reserve Superannuation Fund. On the original DA form Millerview appears, but owner's consent was provided by Mr Peter Miller as director of the then trustee of the Figtree Reserve Superannuation Fund. This was communicated by Mr James Miller through Laterals Planning to the Council in 2009. The Applicant was Figtree Reserve Pty Ltd and Mr Peter Miller was then the authorised officer. The liquidator of Millerview contested the fund's ownership rights to Lot 1 during 2011, as detailed in correspondence in annexure U.
Mr James Miller states that he has never received a notice of determination of the DA and for legal reasons would never have been able to deal with any correspondence addressed to Millerview. In October 2011 when the Council should have sent out the notices to the respective parties he did not receive a notice addressed to Figtree Reserve Pty Ltd, the Applicant. Until October 2012 when asked to execute the application to the Land and Environment Court he had not seen or read the notice sent to Millerview. For legal reasons he could not deal with such a letter to assist in a decision to take up a right of appeal.
Mr James Miller submitted that under the EPA Act the Applicant could reasonably expect the Council would dispatch a duly addressed notice to the Applicant and do so by the fourteenth business day after the date of determination as required by cl 102 of the EPA Regulation. The date of determination being 26 September 2011, it was reasonable to expect the lodging of the appeal could occur within 12 months of that date in 2011 and he calculated fourteen days from the date of determination plus four days for posting, namely from 24 October 2011. If the Court accepts that sorting of mail in the ACT or Victoria constitutes interstate postal service, the period should be ten days. The appeal was filed on 10 October 2012 within time. The notice sent by the Council was not addressed to Figtree Reserve Pty Ltd. If Mr James Miller had dealt with the notice addressed to Millerview it may have constituted a breach of the Corporations Act 2001 (Cth). The Council has been told on many occasions of his dissociation with Millerview. The notice attached to Mr Stewart's affidavit was not dispatched to Figtree Reserve Pty Ltd. Furthermore the notice does not appear to be the same as that sent to Mr Allen at Laterals Planning. The Applicant should not be disadvantaged by the Council's failure to deal with the DA in accordance with the regulations. The Applicant has been poorly treated because of circumstances beyond its control. The Court should extend to the Applicant the same opportunity it would have had if the Council had sent a properly prepared notice of determination to the Applicant. The Applicant should be entitled to file an appeal on any day up to and including 24 October 2012.
An affidavit of Mr Peter Miller dated 11 April 2013 was read in part. Mr Peter Miller was the director for Figtree Reserve Pt Ltd from 14 June 2007 to April 2010. That company was the corporate trustee for the Figtree Reserve Superannuation Fund. Mr Peter Miller executed the DA for a quarry on behalf of the Applicant, Figtree Reserve Pty Ltd. As acting trustee of the Figtree Reserve Superannuation Fund he also signed the DA for the lawful owner of the subject property under the section designated "owner's consent". Despite the certificate of title to Lot 1 DP 1094055 remaining vested or recorded in the name of the former trustee Millerview, the only entity with proper legal authority to deal with the affairs and assets of the Figtree Reserve Superannuation Fund and the DA was Figtree Reserve Pty Ltd.
Mr Stewart of the Council contacted the Applicant on 11 July 2011 seeking clarification about the ownership of the properties. He was provided with details of the relevant deeds of trust and a detailed email to Mr Allen and Mr Stewart explaining the relationship between the Applicant and the superannuation fund and the legal position of the liquidator of the former trustee. Mr Peter Miller made clear that Millerview had no authority over the properties and that the liquidator had no legal authority to deal with the properties. That same email made clear that other than vesting of the property in the former trustee, the Applicant had no legal or financial relationship with Millerview. Pursuant to the Corporations Act Mr James Miller had no authority to deal with any matters addressed to the liquidator or Millerview as detailed in the correspondence in annexure S. The liquidator's advices of 25 August 2011 and 7 September 2011 contradicted its earlier advices and advice from a number of reputable sources such as the trustee, the fund administrators and the fund's lawyers, as detailed in correspondence in annexures U, XX.
The Council continued to ignore the superannuation fund's solicitor's letters clarifying the fund's tenure and legal ownership of Lot 1 and communicated exclusively with Millerview. The Council continued to refuse to communicate about the properties with the authorised trustee for the Figtree Reserve Superannuation Fund. The Council claims that its continued refusal to communicate with the acting trustee is in response to its legal obligations arising from the provisions of the Privacy Act 1988 (Cth).
Mr Allen's evidence provides a copy of an email purportedly sent to Mr Peter Miller's email address in October 2011. At that time, Mr Allen and Mr Stewart had been informed that Mr Peter Miller was not in control of Millerview, Figtree Reserve Pty Ltd or the Figtree Reserve Superannuation Fund and had no authority to receive documentation regarding the determination of the development.
Mr Peter Miller has no record of receiving Mr Allen's email communication about the notice of determination and cannot confirm it was received nor can he confirm that he received the original notice addressed to Millerview as the content of Mr Allen's email indicated would be sent. Speaking to Mr Allen in February 2013 it appears that the original notice addressed to Millerview is still held on file at his office in Goulburn. The email sent to Mr Peter Miller's email appears to have been sent on 30 September 2011 and yet the original notice addressed to Millerview appears to have a notation inscribed on it indicating that it had been forwarded on 28 September 2011. He asked who the notice was forwarded to on 28 September 2011. The next communication from Mr Allen was 30 November 2011 when he was on a business trip (annexure S). Even if Mr Peter Miller had received the notice addressed to Millerview by the last date permissible, as prescribed in the regulations, he would not have directed it to the director of the Applicant Figtree Reserve Pty Ltd as the legal and administrative separation of that entity was his strict practice.
An affidavit of Mr James Miller dated 22 April 2013 was read in part confirming that from 12 February 2009 to 24 April 2013 Figtree Reserve Pty Ltd has been working to secure development consent for a quarry on Lot 1 DP 1094055.
The annexures allowed to be read S, U, XX attached to Mr James Miller's affidavit dated 16 April 2013 were referred to in Mr Peter Miller's affidavit.
Chronology
The chronology filed by the Council is useful and incorporated in part here in relation to uncontested events:
(a) 27 February 2009 - Letter from Laterals Planning to Council attaching development application and supporting documentation for proposed quarry at Lot 1 DP 1094055 ... Towrang.
(b) 6 March 2009 - Development application for "Quarry and associated development" number DA/0266/0809 received by Council. Applicant described as "Figtree Reserve Pty Ltd C/- Laterals Planning PO Box 1326 Goulburn" and application signed by Peter Miller on behalf of the Applicant, Figtree Reserve Pty Ltd and the owners, Millerview Constructions Pty Ltd and Figtree Reserve Superannuation Fund
(c) 20 September 2011 - Council resolves to refuse consent to the DA
(d) 26 September 2011 - Council sends notice of its determination of the DA by prepaid post to "Millerview Constructions Pty Ltd C/- Laterals Planning PO Box 1326 Goulburn"
(e) 30 September 2011 - Keith Allen of Laterals Planning emails the notice of determination to Peter Miller
(f) 3 October 2012 - James Miller writes to Council stating that the Applicant was dissatisfied with the determination "received by our office on 5 October 2011" and seeking s 82A review
(g) 10 October 2012 - Class 1 Application filed with Land and Environment Court. Under heading "Details of Application" the Applicant refers to the "notice of determination dated 26 September 2011 (received on 6 October 2011)"
(h) 11 October 2012 - Council refuses application for s 82A review
Council's submissions
The Applicant's DA was signed by Mr Peter Miller on behalf of the Applicant Figtree Reserve Pty Ltd and the owner Millerview. Millerview was the registered proprietor of Lot 1 at the relevant time. Under the transitional provisions in the EPA Act the Applicant had 12 months to commence an appeal as the DA was lodged with the Council before 28 February 2011. The DA was refused on 20 September 2011, a notice of determination was sent on 26 September 2011 by prepaid post to Millerview Constructions Pty Ltd c/- Laterals Planning PO Box 1326 Goulburn NSW. Posting to Laterals Planning as the nominated address of the Applicant effected posting of the notice. Under s 153(2) of the EPA Act the notice is deemed to be given or served at the time the notice would be delivered in the ordinary course of post. In the ordinary course of post means received on 27 September 2011 per Mr McClenahan's affidavit. The notice was clearly received by Laterals Planning by 28 September 2011 or alternatively 30 September 2011 in view of Mr Allen's emails in evidence. The Class 1 appeal should have commenced by 6 October 2012 at the latest. The notice of determination complies with cl 100 of the EPA Regulation. Clause 100 does not require the name of the Applicant to be stated in the notice of determination. This was consistent with the principle that a development consent is not personal to an applicant but attaches to the land per Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 324.
The Council accepts that the reference to Millerview in the notice is a mistake as it accepts that Millerview was not the Applicant for the DA.
Mr Allen of Laterals Planning emailed a copy of the notice to Mr Peter Miller on 30 September 2011, see Ms Pascal's affidavit at p 66. The Applicant acknowledges receipt. The Class 1 appeal was filed on 10 October 2012 more than 12 months after receipt of the notice of determination. Chen v Virgona [2008] NSWLEC 281, Simmons v Marrickville Council [2012] NSWLEC 133; (2012) 190 LGERA 93 confirm that the Court has no discretion to extend the time for an appeal.
In the alternative, the reference to Millerview does not invalidate the notice. Not all errors in a formal notice result in the notice being found to be invalid per Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
Applicant's submissions
Clause 102 of the EPA Regulation requires a council to send a notice of determination to an applicant within fourteen days after the date of determination. The Council has admitted that a notice was not sent to the Applicant. The Council admitted that it did not comply with the requirements of cl 102 of the EPA Regulation. This was not an innocent mistake by the Council but another action by the Council to thwart the Applicant's attempts to secure development consent for the quarry. On 10 October 2012 an appeal was filed, the Applicant believing this complied with the Regulation.
In view of the injustices suffered by the Applicant, if the Applicant is not extended the same consideration given to every other applicant where a valid DA was lodged then the Applicant will become a victim of the Council's malpractice. As a result of the misleading, vexatious and untrue communications of the liquidator and its lawyers, the Applicant has been denied a valid notice of determination to which it was entitled pursuant to the requirements of cl 102. It should have the same consideration as any applicant entitled to a valid notice of determination, and the Applicant's right to lodge an appeal should be extended to the maximum period to which it would have been entitled if the Council had complied with the requirements of the Act. This is a period of 14 business days from the date of determination plus four days for postage meaning an appeal could have been lodged any day up to and including 24 October 2012.
The Council knew when it issued the notice that it was an offence under the Corporations Act for Mr James Miller to act on a notice addressed to Millerview as he was not an authorised officer of that company.
This appeal is the last opportunity for the Applicant to have a fair and independent assessment of the proposal.
The notice of determination was not received by Peter or James Miller until October 2012.
The Council's Notice of Motion should be granted
Figtree Reserve Pty Ltd has commenced these proceedings in reliance on the notice of determination of the Council's refusal of the DA, as identified in the Class 1 application. The Council does not dispute that the Applicant can commence the appeal. Section 81(1) of the EPA Act specifies that an applicant must receive notification of the determination of a DA. The relevant period for the Applicant's appeal under s 97(1) is 12 months after the date on which the Applicant received notice of the determination issued in accordance with the EPA Regulation. That period is provided for under transitional provisions to the EPA Act made when the time limit in s 97(1) was changed to six months. The Court does not have power to extend the statutory time limit for the commencement of an appeal under s 97(1) of the EPA Act. This is confirmed in the authorities referred to by the Council of Chen and Simmons. In Chen the Court considered an application for the extension of time for commencement of an appeal under s 97(1) relying on r 7.1 of the Court Rules which allows the Court to extend time for an appeal to be commenced if none is specified elsewhere, or UCPR r 1.13, which provides similarly. The Court held that rule did not apply where an Act specifies the time for appeal, as provided in r 7.2 of the Court Rules. Reliance was placed on Simmons which also held similarly in relation to a s 97(1) appeal.
The issues I can consider in this appeal are relatively narrow and the powers I can exercise are necessarily constrained by the terms of the EPA Act. The issues I must consider given the parties' arguments are, firstly, whether the notice of determination issued by the Council was valid. The Applicant submitted it was invalid and asks to be treated on a hypothetical basis as if a valid notice were issued allowing the maximum period to commence an appeal it considers should apply. Secondly, if the notice is valid, when did the 12 month appeal period expire. This depends on when the notice was delivered in accordance with s 153(2) of the EPA Act.
Section 81(1) provides for post-determination notification of an applicant of the determination of a DA. Clause 100 of the EPA Regulation specifies what must be in a notice. The Council issued a notice of determination dated 26 September 2011 which complies with cl 100(1)(a), (c), (c1), (j), (2) of the EPA Regulation being the applicable parts of that Regulation to the notice of determination of refusal of development consent. As the Council submitted, cl 100 does not require the name of the Applicant to be stated in the notice. The DA refers to Figtree Reserve Pty Ltd as the Applicant with the contact address as Laterals Planning at an identified post office box. The reference to Millerview as the recipient of the notice, care of Laterals Planning, is the only irregularity identified in the notice of determination. The Council admitted the reference to Millerview is mistaken.
The Applicant submitted that the notice is invalid because the name of the Applicant, Figtree Reserve Pty Ltd, was not in the notice, rather the name Millerview Constructions Pty Ltd appears. The Applicant's director Mr James Miller and the previous director Mr Peter Miller, his father, stated that they were unable to take any action in relation to matters concerning Millerview because of the appointment of a liquidator to that company. As can be seen from the summary of the Applicant's evidence (and in a large amount of affidavit material I excluded on the grounds of relevance during the hearing) there was an ongoing dispute about ownership and control of Lot 1 following the appointment of a liquidator to Millerview. Some of the contest between Figtree Reserve Pty Ltd acting as trustee for the superannuation fund and the liquidator for Millerview concerning ownership of Lot 1 and letters to the Council on this topic are in the annexures relied on in the Miller affidavits. Ownership of Lot 1 was an issue that was apparently considered by the Council during the course of assessment of the DA. It was also submitted that Mr James Miller was unable to deal with any matter related to Millerview as that may have given rise to a breach of the Corporations Act. None of this material can assist the Court in addressing the key issue of the validity of the notice under the EPA Act. Nor can Mr Miller's submissions about the Council's motives in incorrectly identifying Millerview in the notice. I consider that the notice does comply with cl 100 and does not contain a legally relevant error.
This finding is supported by the reasoning of the Court of Appeal in Coffs Harbour, there in relation to the description of the proponent in a concept approval. In a unanimous decision, the Court of Appeal held that a concept approval given by the Minister under former section s 75O of the EPA Act did not need to identify the proponent, noting [at 87 - 88]:
In circumstances where the legislature has expressly specified in the statutory provision conveying the power to give an approval the preconditions that must be satisfied in order for the Minister to exercise the power, there is no warrant for the Court to construe the provision as also requiring, by implication, an additional precondition that the Minister identify a legal entity as a "proponent"...
...
Hence, the misdescription in the Approval of the proponent as "Sydney NSE Property Consultants Pty Ltd works no invalidity"
If I had found the inclusion of Millerview as the addressee gave rise to legal error in the notice, I agree with the Council's submissions that this would not give rise to invalidity, applying the principles in Project Blue Sky. As the Council submitted, the error is not of such importance to justify finding that the notice has not been validly given. Whether an error in a formal notice results in invalidity depends on the objective intention of the legislation under which the decision to issue the notice is made; Project Blue Sky at [91]. The statutory regime for the giving of a notice of determination under the EPA Regulation, which includes cl 100, that a development consent if granted runs with the land rather than a person, and that the incorrect reference to Millerview does not impact on the ability of the Applicant to commence proceedings as it remains the applicant on the DA regardless of what is in the notice of determination issued by the Council, are all factors suggesting the notice would not be invalid.
Mr Peter Miller argued the notice was invalid and that Figtree Reserve Pty Ltd should be treated as if a valid notice had been issued in accordance with cl 102 of the EPA Regulation allowing a maximum period of 14 days and an additional 4 days for posting as being the relevant appeal period. The Court cannot take such a hypothetical approach given the strict provisions in the EPA Act for the giving of notice with the important statutory consequence of a right of appeal arising from the date of notification made in accordance with the EPA Act. If no valid notice was issued by the Council an interesting question would arise concerning when the statutory appeal period ended. The Council submitted it must be from the date of expiry of the deemed refusal period, which had long passed before this appeal was commenced. I do not need to determine this issue given my finding that the notice is valid.
As the notice is valid, the next issue to arise is when it is deemed to be given or served as a result of being sent by prepaid post. As referred to in s 153(1)(b)(ii) of the EPA Act where a person not an individual being Figtree Reserve Pty Ltd has specified the address of Laterals Planning in the DA as the relevant contact address, s 153(2) specifies that a notice shall be deemed to have been given at the time when the document would be delivered in the ordinary course of post. There is no dispute that a notice of determination was posted by the Council. This was done within the 14 day period specified for the giving of a notice under s 81(1) of the EPA Act in cl 102(1) of the EPA Regulation. There is a presumption of delivery of the notice under s 153(2) in these circumstances. The period encompassed by delivery in the ordinary course of post must be considered.
I should note for completeness that Mr Peter Miller submitted there appeared to be more than one notice issued by the Council but this is not established. The Council issued one notice with copies of that notice sent to several recipients, as indicated in the letter of the Council dated 26 September 2011. The version of the notice on the Council's file is not on Council letterhead. The notice sent to Laterals Planning was on Council letterhead. The evidence confirms that one notice was issued by the Council.
The Council submitted that delivery was the next day after posting in reliance on Mr McClenahan's affidavit. Alternatively s 76(1)(b) of the Interpretation Act refers to posting being effected on the fourth working day after the letter was posted. The use of the words in s 153(2) "delivered in the ordinary course of post" could be interpreted as expressing an intention to oust the operation of s 76(1) of the Interpretation Act which does not refer to that precise expression in the chapeau of the section. The Interpretation Act refers to an Act which requires any document to be served by post and provides for how service is to be effected in subsection (a) and a presumption of delivery in Australia the following day. Under s 5(2) of the Interpretation Act that Act applies unless a contrary intention appears in the EPA Act. I do not need to resolve the issue of whether s 153(2) or the period in the Interpretation Act applies. On the Council's case whether "in the ordinary course of post" means the day after delivery, or four days under the Interpretation Act, is not material as on either date the appeal is out of time.
The Class 1 application states that the notice of determination was received on 6 October 2011. Other email evidence relied on by the Council states that the Applicant received the notice on 6 October 2011. In affidavit evidence Mr Peter Miller states that he did not receive the email attaching the notice of determination from Mr Allen at Laterals Planning. His evidence from the bar table was that the notice was not received by him until mid October 2012. Mr James Miller states similarly in his affidavit. These statements are difficult to reconcile with the written statements in the Class 1 application and emails or letters from the Millers in evidence stating that the notice was received on 6 October 2012. Ultimately the actual date of receipt by them is not material given the deeming provision in s 153(2). The relevant act of posting by the Council is to Laterals Planning. This occurred on 26 September 2011. If the date of delivery is in the ordinary course of post the relevant date is 27 September 2011 allowing one day, or under the Interpretation Act four days, the 12 months commenced from these dates, namely from 27 or 30 September 2011. At the latest, if service in accordance with s 153(2) was effected on 30 September 2011, this appeal should have been commenced by 2 October 2012. The 12 month appeal period expired before 10 October 2012 when the Class 1 application was filed.
As emphasised at the start of my consideration I do not have discretion to vary the 12 month period. I acknowledge that in the Applicant's view this may well prevent it pursuing the DA with possible zoning changes to an area including Lot 1 but that is not a matter I can take into account in my decision.
The Council is successful in its Notice of Motion and an order to set aside the Class 1 application ought be made.
Costs
The Council seeks its costs of the Notice of Motion in the event it is successful. The usual rule in Class 1 proceedings is that each party pays its own costs unless it is fair and reasonable to do otherwise. The Council relied on r 3.7(3)(a) of the Court Rules to submit it is fair and reasonable that it be awarded its costs as this motion concerned a question of law which determined the outcome of the proceedings. The Council's application for costs is fair and reasonable in the circumstances of this matter which are within the description in r 3.7(3)(a). I consider the Applicant should pay the Council's costs of the Notice of Motion.
Orders
The Court makes the following orders:
1. The Class 1 application dated 10 October 2012 is set aside.
2. The Applicant must pay the Council's costs of the Notice of Motion dated 3 December 2012.
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Decision last updated: 15 May 2013
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