Hall & Anor v City of Burnside & City Apartments Pty Ltd - [2005] SASC 343

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALL & ANOR v CITY OF BURNSIDE & CITY APARTMENTS P/L
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Bleby)
9 September 2005
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - LAPSE OF CONSENT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES - PARTICULAR ACTS & ORDINANCES - SOUTH AUSTRALIA
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - EXTENSION OF TIME TO COMMENCE DEVELOPMENT
Appeal against decision of single Judge declaring development approval invalid – Cross-appeal against orders allowing appellant to apply for extension of period of operation of provisional Development Plan consent granted by Environment, Resources and Development Court and thereafter for fresh grant of development approval – Consideration of purposive approach to statutory interpretation – Consideration of relationship between s 38(16) Development Act 1993 and reg 48 Development Regulations with reference to object and purpose of each provision – Whether inconsistency between s 38(16) and reg 48 with regard to meaning of “operative date” – Whether Environment, Resources and Development Court a “relevant authority” for purposes of s 38(16) – Whether provisional Development Plan consent granted by Environment, Resources and Development Court is a development authorisation made under Division 1 of Part 4 of Development Act for purposes of s 40(2) – Whether reg 48 as authorised by s 40(2) prescribes period of operation of such consent – Whether appeal to Supreme Court from Environment, Resources and Development Court is an appeal "under" the Development Act for purposes of reg 48(4)(b) - Consideration of Council’s power to extend period of operation of consent under s 40(3) – Consideration of effect of stay of operation of a decision under s 32 Environment, Resources and Development Court Act 1993 – Appeal allowed – No order on cross-appeal – Council’s development declared valid.
Development Act 1993 (SA) s 3, s 4, s 33, s 34, s 39(7), s 38, s 40, s 48(11), s 86, s 88, s 108; Development Regulations 1993 (SA) reg 48; Environment, Resources and Development Court Act 1993 (SA) s 30, s 32; Acts Interpretation Act 1915 (SA) s 22; Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1); Limitation of Actions Act 1936 (SA) s 48(1); Supreme Court Rules r 95.11(3); Bankruptcy Act 1966 (Cth) s 52, referred to.
Burch v State of South Australia (1988) 71 SASR 12; Gerah Imports Pty Ltd v Duke Group Ltd (In Liquidation) (2004) 88 SASR 419, applied.
Clifton Securities Ltd v Huntley [1948] 2 All ER 283; Pollack v Commissioner of Taxation (1991) 32 FCR 40; Lamshed v Lamshed [1962] SASR 190, discussed.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329; Australian National University v Lewins (1996) 68 FCR 87; P Aker Flowerbulbs Pty Ltd v Coulter (2004) 140 FCR 410; City Apartments Pty Ltd v City of Burnside & Hall [2003] SAERDC 94; City of Burnside v City Apartments Pty Ltd [2004] SASC 294, considered.

HALL & ANOR v CITY OF BURNSIDE & CITY APARTMENTS P/L
[2005] SASC 343
Full Court: Doyle CJ, Perry and Bleby JJ

DOYLE CJ: I have had the advantage of reading the reasons of Bleby J.
I agree with the orders that he proposes.
I agree also with the reasons that he gives for making those orders. The true interpretation of the relevant provisions of the Development Act 1993 (SA) and of the Development Regulations 1993, and their application to the facts of the case, raises questions of considerable complexity. There are solid arguments that can be advanced on each side. Nevertheless, having given careful consideration to the reasons of the trial Judge, I am persuaded that the approach that Bleby J takes to the Act and to the Regulations is correct. There is nothing that I can usefully add to his reasons.
PERRY J. I am indebted to Bleby J, whose reasons I have had the opportunity to peruse, for his explanation of the circumstances giving rise to this appeal, and for his analysis of the relevant statutory and regulatory provisions.
I agree with his conclusion as to the outcome of the appeal. I would, however, add some comments of my own.
I agree that a grant by the Environment, Resources and Development Court (“the Environment Court”) of a provisional Development Plan consent, may properly be equated with a development authorisation under Part 4, Division 1 of the Development Act 1993, so as to attract the application of s 40(2) of the Act.
I accept also, that an appeal from the Environment Court to the Supreme Court may properly be regarded as an appeal “under” the Development Act for the purposes of reg 48.
In the result, I would respectfully agree with Bleby J’s conclusion that the words “an appeal under this Act” where they appear in reg 48(4)(b), include an appeal to the Supreme Court from a decision of the Environment Court granting for the first time provisional Development Plan consent to a development.
The matters to which I have so far referred are sufficient to dispose of the appeal in terms of the order suggested by Bleby J.
It follows that Bleby J’s observations as to the construction and operation of s 32(1) of the Environment Resources and Development Court Act, pursuant to which either the Environment Court or this Court may, in the event that an appeal has been instituted, “suspend the operation of the decision or order” the subject of the appeal “until the determination of the appeal”, are strictly obiter.
However, as I differ from him as to the construction and operation of s 32(1), I will indicate my view as to that aspect of the matter.
In my view, if the jurisdiction granted by s 32(1) was to be invoked, and in the result the operation of the decision or order the subject of an appeal was to be suspended, I do not accept that other provisions which might have operated to define the period of operation of a development authorisation consequent upon the relevant decision or order, could continue to apply.
While I agree that, in one sense, an authorisation is conceptually different from an order or decision pursuant to which it is granted, I am unable to accept that it would be right to regard an authorisation as still alive, in any relevant sense, once the order or decision pursuant to which it has been granted, is suspended.
I do not consider that the analogy with the operation of a stay of a civil judgment of a court, is apt to sustain the contrary argument. All that the decisions bearing on that area of the law illustrate, is that a stay of execution of a judgment does not prevent a party from exercising contractual or other rights which may exist, extrinsic to the judgment.
But in cases such as this, I do not accept that the authorisation can be regarded as having a separate juristic existence from the decision or order pursuant to which it may have been granted. In my view, it would be anachronistic to think that a person in whose favour an authorisation had been granted, could proceed with impunity to act on it, when the operation of the order pursuant to which it had been granted, was suspended.
It follows from the view which I have expressed that an application might have been brought pursuant to s 32 of the Environment Resources and Development Court Act, to suspend the operation of the decision or order of the Environment Court now in question pending the determination of the appeal to this Court, and that this would have had the effect of suspending the operation of the development authorisation.
Putting it another way, it is the authorisation, not the underlying decision or order, which permits the development to proceed. Unless the suspension of the decision or order had the effect of preventing implementation of the development, it would never be worth obtaining.
Furthermore, if implementation of the authorisation was suspended, as I think that it would be in the event of an order being obtained under s 32(1), I am unable to agree that the period during which the authorisation is otherwise operative, could continue to run.
However, absent a successful application to that end, reg 48 operated to extend the period of operation of the development authorisation in question, so that it was current at the time when the Council issued the final development approval on 21 March 2005.
I would allow the appeal.
I agree with the orders and declaration suggested by Bleby J in his reasons.
BLEBY J:
Introduction
No development work may be undertaken in this State unless the development is an approved development.[1] In the case of the development the subject of this appeal that meant that the developer had to obtain from a relevant authority[2], in this case the City of Burnside (“the Council”), provisional Development Plan consent, followed by provisional Building Rules consent, followed by final development approval.[3]
[1] Section 32 Development Act 1993
[2] For the definition of “relevant authority” see ibid s 4
[3] Ibid s 33
Provisional Development Plan consent and provisional Building Rules consent both fall within the definition of “development authorisation” in s 4 of the Development Act 1993. Section 40(2) of the Development Act provides that a development authorisation under Division 1 of Part 4, which these consents are, remains operative for a period prescribed by the Regulations. Regulation 48 of the Development Regulations 1993, which is the key regulation in this case, purports to prescribe that period. The question is whether the appellant’s provisional Development Plan consent lapsed before the Council purported to grant final development approval to the appellant, so that the final development approval was void and of no effect.
The facts
On 17 April 2002 City Apartments Pty Ltd (“the appellant”) lodged an application with the Council for approval to construct a dwelling at Glen Osmond on land that adjoins land owned by Mr & Mrs Hall, the first and second respondents. The development was classified as Category 3 for the purposes of s 38 of the Development Act. Mr & Mrs Hall, exercising their rights under s 38 of the Development Act, made representations to the Council objecting to the proposed development.
On 21 January 2003 the Council refused the appellant’s application for provisional Development Plan consent. The appellant appealed against that decision to the Environment Resources and Development Court (“the Environment Court”). Mr & Mrs Hall and the Council were joined as parties to that appeal. On 20 January 2004 the Environment Court allowed the appeal.[4] It reversed the decision of the Council to refuse consent and granted provisional Development Plan consent to the appellant for the development subject to a number of conditions. The orders so made came within the powers conferred on the Environment Court by s 88 of the Development Act. In other words, it was not necessary to return the application to the Council with a direction that it grant provisional Development Plan consent so that the decision to grant consent became that of the Council. Provisional Development Plan consent became effective, in this case, by the order of the Environment Court.
[4] City Apartments Pty Ltd v City of Burnside & Hall [2003] SAERDC 94
Mr & Mrs Hall and the Council both appealed to the Full Court of this Court. Both appeals were dismissed on 22 September 2004.[5]
[5] City of Burnside v City Apartments Pty Ltd [2004] SASC 294
On 20 October 2004 Mr & Mrs Hall applied for special leave to appeal to the High Court of Australia. At the time of hearing this appeal, that application had not been heard. It has since been dismissed.
Having obtained its provisional Development Plan consent, on 2 February 2005 the appellant applied to the Council for provisional Building Rules consent, and the council granted that consent on 4 March 2005. On 21 March 2005 the Council granted final development approval.
The appellant, soon after, took steps to commence construction of the dwelling on the land in the belief that it had obtained a grant of development approval. However, Mr & Mrs Hall then commenced proceedings against the appellant in this Court seeking a declaration that the development approval on which the appellant relied was invalid, an order quashing the development approval and certain incidental relief, including an injunction to restrain the appellant from proceeding with its development.
On 1 June 2005 a judge of this Court declared the development approval to be invalid, quashed the development approval, declared that the appellant was at liberty to apply to the Council for an extension of the period of operation of the provisional Development Plan consent granted by the Environment Court on 20 January 2004 and ordered that, if the period was extended, the appellant be at liberty to apply to the Council for a fresh grant of development approval. In the meantime, the appellant was restrained by an injunction from proceeding with the development.
The appellant now appeals against those orders, and Mr & Mrs Hall cross‑appeal against the orders allowing the appellant to apply for an extension of time and to apply for a fresh grant of development approval.
The relevant legislation
As previously mentioned, this was a Category 3 development. For developments in that category, s 38 of the Development Act requires the giving of public notice of the application and confers a right on any person to make representations in writing to the relevant authority in relation to the granting or refusal of consent, and enables them to appear personally or by representative before the relevant authority to be heard in support of the representation. Persons who make representations are entitled to notice of the authority’s decision, and have a right of appeal to the Environment Court against the decision of the authority.[6] This is the only case in which a member of the public other than an applicant for consent has a right to appeal against the decision of a relevant authority on a Category 3 or indeed on any development.
[6] Section 86(1)(b) Development Act
It should be noted, however, that s 38(7) enables any person who desires to do so to make representations in writing to the relevant authority “in relation to the granting or refusal of consent”. While most persons will take advantage of that provision to object to a particular development, it is, nevertheless, open to a member of the public to make representations in support of an application for provisional Development Plan consent or in support of such consent being given but subject to the imposition of certain conditions. Thus, in theory the right of appeal may be exercised by a member of the public whether the relevant authority grants or refuses provisional Development Plan consent for the development. However, it is most likely that an appeal by a member of the public will be against a decision to grant consent or against the imposition of or the failure to impose certain conditions.
Section 38(16) of the Development Act provides:
A decision of a relevant authority in respect of a Category 3 development in respect of which representations have been made under this section does not operate –
(a)until the time within which any person who made any such representation may appeal against a decision to grant the development authorisation has expired; or
(b)where an appeal is commenced –
(i) until the appeal is dismissed, struck out or withdrawn; or
(ii) until the questions raised by the appeal have been finally determined (other than any question as to costs).
The first point to note about s 38(16) is that it only applies to the operation of a decision in respect of certain Category 3 developments. The Development Act does not impose any restrictions on the operation of decisions in respect of any other consents or approvals given by a relevant authority. It must therefore be inferred that they are effective immediately they are made or given. But in the case of a Category 3 development where representations have been made by a person other than the developer, the decision will not operate until the time for appeal has expired. The operation of the decision is further extended, if an appeal is instituted, until the appeal is dismissed, struck out or withdrawn or until the questions raised by the appeal have been finally determined.
The second point to note about s 38(16) is that it refers to the operation of a decision, not the operation of a development authorisation the subject of a decision. This is to be contrasted with the terms of s 40(2) of the Development Act and reg 48 of the Development Regulations discussed below.
The third point to note about s 38(16) is that in para.(a) there is a reference to the expiry of the time in which a person may appeal against a decision “to grant the development authorisation”. That latter phrase can only refer to a decision that an authorisation be granted, rather than a decision in respect of an application for authorisation. That is because it is only a decision of the former type that can operate or take effect. If the decision of the relevant authority is to refuse the consent to the development, the status quo remains. The state of non‑approval continues. Nothing is changed. Nobody can act on a decision to refuse other than to institute an appeal against the decision. In short, s 38(16) does not need to say anything about a decision to refuse consent. I mention this now because it may have some effect on the interpretation of reg 48 of the Development Regulations.
Although it does not affect the outcome of this appeal, the fourth point to note is that where representations have been made in respect of a Category 3 development and provisional Development Plan consent has been granted subject to conditions, there may still be an appeal by the applicant for development, as well as by a person who made representations, against certain conditions attached to the consent. The decision to consent will not operate until the time for appeal by a person who made the representation has expired, but if there is only an appeal by the developer, a question may arise as to whether the decision then operates notwithstanding that appeal. I am inclined to think that it does, as para.(a) is only concerned with an appeal by a person who made a representation, and para.(b) would seem to relate only to the commencement of such an appeal. If it were otherwise, a decision to consent to a Category 3 development where there were no representations and where the applicant appealed against the conditions would operate from the date of the decision and would not be affected by the appeal, but a decision to consent to a Category 3 development the subject of representations, and where only the applicant appeals against the conditions, would not operate until after the appeal had been disposed of. That would give rise to an unintended anomaly.
The fifth point to note about the subsection, although it is probably not necessary for the purpose of this decision, is that the decision operates only when questions raised by the appeal have been finally determined. Paragraphs (a) and (b) must refer to the same appeal, and that can only be an appeal to the Environment Court. If the questions raised by the appeal are determined in favour of the applicant developer, the decision begins to operate at that point. Section 38(16) does not provide for any further delay in the operation of the decision during the time in which a further appeal may be brought from the Environment Court to the Supreme Court, during which time it will be quite uncertain as to whether there will be a further appeal. The decision begins to operate, but its operation may be suspended by order of the Environment Court or the Supreme Court pursuant to s 32 of the Environment Resources and Development Court Act 1993.

The other relevant section of the Development Act is s 40:
(1)A relevant authority must, on making a decision on an application under this Division, give notice of the decision in accordance with the regulations (and, in the case of a refusal, the notice must include the reasons for the refusal and any appeal rights that exist under this Act).
(2)A development authorisation under this Division remains operative for a period prescribed by the regulations.
(3)A relevant authority may, on its own initiative or on the application of a person who has the benefit of any relevant development authorisation, extend a period prescribed under subsection (2).
Pursuant to the power conferred by s 40(2) and s 108 of the Development Act, the Development Regulations 1993 made by the Governor include reg 48:
(1)Subject to this or any other regulation, any consent or approval under Part 4 of the Act (whether subject to conditions or not) will lapse at the expiration of –
(a)     subject to the operation of paragraph (b) – 12 months from the operative date of the consent or approval;
(b)     if –
(i)the relevant development has been lawfully commenced by substantial work on the site of the development within 12 months from the operative date of the approval – three years from the operative date of the approval, unless the development has been substantially or fully completed within those three years (in which case the approval will not lapse); or
(ii)if the relevant development involves the division of land and an application for a certificate under section 51 of the Act has been lodged with the Development Assessment Commission within 12 months from the operative date of the relevant consent – three years from the operative date of the consent.
(2)A period prescribed by subregulation (1) may be extended by a relevant authority –
(a)     when the relevant consent or approval is given; or
(b)     at such later time as may be appropriate.
(3)Where an approval is given, any consent which was necessary for that approval will not lapse unless or until the approval lapses.
(4)In this regulation –
“the operative date” of a consent or approval means –
(a)     the date on which the consent or approval is given; or
(b)     if the decision to grant the consent or approval has been the subject to an appeal under this Act, the date on which any appeal is dismissed, struck out or withdrawn, or all questions raised by any appeal have been finally determined (other than any question as to costs),
whichever is the later.
Regulation 48(4)(b) is particularly poorly drafted in that it speaks of a decision which has been “the subject to an appeal”, and of an appeal “under this Act”, when the phrase only appears in a regulation. I take the former phrase to mean a decision the subject of an appeal. No-one has suggested that the reference to “this Act” is a reference to anything other than the Development Act. In my opinion, it is appropriate to treat it as such.
However, there is one point to note about s 40(2) of the Development Act and reg 48. That is that they both refer to the operation of a development authorisation, unlike s 38(16) which refers to the operation of a decision. As will be seen, there is a subtle but relevant distinction.
The major question raised by this appeal concerns the situation where the Environment Court is the first body to grant consent to a development, and whether an appeal under the Development Act, for the purposes of reg 48(4)(b), includes an appeal to this Court. The single judge decided that it did not, and that the provisional Development Plan consent granted by the Environment Court on 20 January 2004 lapsed, in accordance with reg 48 as he interpreted it, on 20 January 2005, and that the final development approval purportedly granted on 21 March 2005 was therefore void.
The approach to interpretation
As much of the argument in this case turned on the relationship between s 38(16) and reg 48, it is important at the outset to identify the object and purpose of s 38 on the one hand and s 40 and reg 48 on the other hand. Section 22 of the Acts Interpretation Act 1915 provides:
22.Construction that would promote purpose or object of an Act to be preferred
(1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
The question has arisen as to whether that section only allows a purposive construction where the provision is reasonably open to more than one construction. On that topic Cox J said in Burch v State of South Australia:[7]
[I]t is probably correct to say that, at the time s 22 was refashioned, the prevailing view in Australian courts was that the purpose of an Act could only be taken into account where there was an ambiguity or inconsistency on the face of the legislation. See, for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth) (1981) 147 CLR 297 at 305 and Mills v Meeking (1990) 169 CLR 214 at 223, 235. Section 22 was meant to liberate the common law, not to restrict it. Secondly, the section does not state that the purpose or object of an Act may only be considered where the provision being construed is reasonably open to more than one construction. It simply says what is to be done when that is the case. It would be strange if the mischief rule could not be used where there is no apparent ambiguity but a literal interpretation would lead to inconsistency or injustice. Finally, s 22 says nothing about the way in which the purpose or object of an Act is to be discerned – in particular, whether the interpreter is confined to the Act itself. It merely provides that the interpreter is not restricted to an express statement on the matter in the Act. The section does not, certainly in terms, qualify the established practice whereby a court applying the common law mischief rule could have regard to the legislative history of an Act or other relevant material.
That dictum was affirmed by a differently constituted Full Court in Gerah Imports Pty Ltd v Duke Group Ltd (In Liquidation)[8]. Accordingly, I propose to apply a purposive construction to these provisions even when there may not be ambiguity, although ambiguities do arise in s 40(2) of the Act and in reg 48.
[7] (1998) 71 SASR 12 at 18, which remarks appear to be endorsed by Lander J at 27. Bleby J did not address the question.
[8] (2004) 88 SASR 419 at 428-429, [32]-[34]
It is reasonably clear from the observations I have made about s 38(16) that the object or purpose of that subsection is to delay the commencement of the operation of a decision of a relevant authority in respect of a Category 3 development in certain circumstances. It says nothing about the period for which a development authorisation remains operative once it has been granted.
On the other hand, the purpose of reg 48 is to be gleaned from the empowering provision in the Development Act, namely s 40(2). The purpose of the regulation is to specify for how long a development authorisation remains operative once it has been granted. The regulation does not purport to specify when the decision of a planning authority becomes operative. It follows that reg 48 must be construed to give effect to its evident purpose, and that any doubt or ambiguity in the regulation must also be resolved in a manner which gives effect to that purpose.
Despite the confusing reference to “operative date” in reg 48, that purpose can only be to specify when a consent or approval lapses. It does not purport to prescribe, nor could it lawfully do so, the time at which a decision to grant consent or approval becomes operative. That is determined by the Development Act and, in the case of certain Category 3 developments, by s 38(16). The unfortunate use of the term “the operative date” and its definition in reg 48(4) can only be for the purpose of determining when the consent or approval lapses. Reference to an example not connected with appeals will illustrate the point. Let us assume a consent by a relevant authority to a Category 3 development where there have been representations made in accordance with s 38, but no appeal. The decision operates as from the date when the time for instituting an appeal by a person who made the representation expires. That cannot be affected by the definition of “operative date” in reg 48, which would fix the operative date for the purpose of that regulation as the date on which the consent of the relevant authority is given.
Unless the manifest purpose of reg 48 is borne in mind, the use of the phrase “the operative date” in the regulation can give rise to mistakes in its interpretation. Because the sole purpose of the regulation is to prescribe when an authorisation ceases to remain operative, the regulation can only define that phrase for the purpose of the regulation itself, namely for the purpose of determining when a consent or approval will lapse. The regulation does not and cannot purport to prescribe the actual operative date of any consent or approval. That is left to the Act. There is no overlap between s 38(16) and reg 48. They are addressing different things. It would therefore be wrong to conclude, as was submitted by counsel for Mr & Mrs Hall, that para.(4)(b) of reg 48 is no more than an attempt to restate s 38(16) of the Development Act.
If reg 48 is interpreted as fixing an operative date of a decision to grant consent or approval, it would be quite inconsistent with s 38(16). Under that section the earliest operative date of a decision to grant consent for a development to which the subsection applies is when the time for appeal expires. Regulation 48(4)(a) cannot make that earlier. Regulation 48(4)(b) cannot make that later than is prescribed by s 38(16). For example, it cannot make the operative date of a decision to consent to a Category 3 development later, as on its face it purports to do, where there is an appeal by a developer not against the consent but against a condition imposed which affects the economic viability of the proposal.
The application of section 38(16) Development Act
It is convenient to deal first with an alternative argument of the appellant to the effect that s 38(16) of the Development Act applied to the decision of the Environment Court in this case, and that the decision by that Court to grant provisional Development Plan consent did not operate until after dismissal of the appeal to the Full Court of the Supreme Court on 22 September 2004.
The short answer to that submission is that the Environment Court is not a “relevant authority” referred to in subsection (16). “Relevant authority” is defined in s 4 of the Development Act as meaning “a body determined to be a relevant authority under s 34, subject to the operation of Divisions 2, 3 and 3A of Part 4, and Part 12”. Divisions 2, 3 and 3A of Part 4 and Part 12 have no relevant operation for this purpose, and the Environment Court is not a relevant authority under s 34. It follows that s 38(16) can have no application to a decision of the Environment Court.
The interpretation of section 40(2) Development Act
Before considering reg 48, it is necessary to consider whether the provisional Development Plan consent granted by the Environment Court is a development authorisation “under this Division” for the purposes of s 40(2) of the Development Act. If it is not, reg 48 will have no application.
The Division referred to in s 40(2) is Division 1 of Part 4 of the Act covering sections 32 to 45A inclusive. That Division deals with the requirement for and process of obtaining approval for most developments which take place in this State. It is the Division which governed the approval process for the development in question. Section 33 requires consent of a relevant authority, the definition of which does not include the Environment Court. The power of the Environment Court to grant consent in respect of a particular development on appeal from a relevant authority is to be found in s 88 of the Development Act, which is contained in Division 2 of Part 11 of the Act. There is no other provision of the Development Act which specifies for how long a consent given by the Environment Court remains operative.
The provisional Development Plan consent granted by the Environment Court falls within the definition of “development authorisation” in s 3 of the Act. The only question is whether it is an authorisation “under this Division” rather than an authorisation under Division 2 of Part 11 of the Act.
In making its decision the Environment Court will be governed by the matters prescribed in s 33 of the Development Act, as will the Supreme Court where there is an appeal from the Environment Court. In particular they will be governed by the requirements of a relevant Development Plan given force and effect by s 33 of the Development Act. Although the right of appeal to the Environment Court is conferred by Part 11 of the Development Act, and s 88 specifies what the Court may do on the hearing of the appeal, the Environment Court is actually making a decision to grant consent or approval under Division 1 of Part 4 of the Act. I respectfully agree with the trial Judge when he said:
Part 11 does not provide for approvals but for appeals. A consent or approval for the purpose of s 33 is a consent or approval under Part 4. The Environment Court decides whether to grant a consent and approval for the purposes of Part 4. It is, in other words, a consent or approval under Part 4.
This conclusion is consistent with the evident purpose of s 40(2). The body of planning law and principles contained in the Development Act, the Development Regulations and the several Development Plans, by its nature, looks forward to regulate future development according to the perceived community needs and contemporary understanding of what constitutes good urban and rural planning. But just as needs for different kinds of development change, different community needs emerge and human activity is subject to constantly changing economic, environmental, social and other influences, so the body of planning law and principles must adapt. It cannot remain static. It is not like “the law of Medes and Persians, which altereth not”[9]. What is desirable development in one location at one time may, for various reasons, become less desirable in that location some years later. Good planning will guide human activity into desirable channels in particular areas and will prevent undesirable development of a type which may have taken place in the past in the same area.
[9] Daniel 6:8, 12, Authorised King James Version of the Bible
An essential tool in the planning armoury is the ability to require authorised development to take place within a reasonable time of the permission being granted. Otherwise, an indefinite authorisation may see a development commenced 10 or 20 years after the authorisation, at a time when the relevant planning laws and principles have changed for that location, and what was once permitted is then undesirable. Without the lapse of an approval to develop after a finite time, good planning becomes seriously compromised by the ability to act on a stale approval.
That is no doubt the reason for provisions like s 40(2) of the Development Act and its implementation by regulation. However, any development of any significance which is exempt from that restriction runs the risk of seriously compromising good planning for the future. A plan may be rendered sterile if a longstanding approval is allowed to be implemented under an inconsistent planning regime.
One is therefore entitled to attribute the objective and intention to the Parliament that approval for all significant developments should be time limited, and that Parliament did not intend any such development to escape that net unless such intent were made manifest. That indeed is borne out by a review of Part 4 of the Development Act.
There are four Divisions of Part 4 of the Act under which development authorisation may be given. Division 1 is the one that applies to most developments, including this one. Division 2 relates to approval by the Governor of major developments or projects to which Division 2 applies, to the exclusion of Division 1. However, s 48(11) enables the Governor by notice in writing to cancel the development authorisation if it is not commenced within the time specified by the regulations or by the Governor, if a time is specified by the Governor as part of the development authorisation. It would therefore appear that authorisations under this Division were intended to have a finite period of operation. A further source of power for reg 48 is derived from s 48(11) of the Act.
On the other hand, Division 3 of Part 4 of the Development Act relates to approval by the Minister of certain public infrastructure developments. The Act does not specify any period of limitation on an authorisation granted under that part. Likewise, there appears to be no limitation on a development authorised under Div 3A of Pt 1, relating to development involving electricity infrastructure. There may be good reason for not placing any time limitation on an authorisation for various forms of public infrastructure which seem ultimately to be within the control of the executive government or of government instrumentalities or agencies. However, Parliament has expressed a reasonably clear intention that private developments the subject of approval under Division 1 or Division 2 of Part 4 should be subject to a time limitation on the operation of the authorisation, and that development authorisation under those Divisions should, in most cases, have the operative period prescribed by the regulations.
If a development authorisation to which Division 1 applies (i.e. where the application first comes before a relevant authority) is first given by a decision on appeal to the Environment Court, and that is not a development authorisation “under this Division” then certain significant planning authorisations are not covered by s 40(2), and are therefore not covered by any regulation under the Development Act. The authorisation will continue in effect indefinitely. Given the dynamic nature of planning law and principles, Parliament cannot have intended that development authorisations, merely because they are made by the Environment Court on appeal, should be exempt from any finite period of operation. There is no logical reason why they should be so exempt. The object and purpose of the whole planning scheme can only be effective if development authorisations granted by the Environment Court likewise remain operative for a finite time. This consideration of the object and purpose of s 40(2) supports the conclusion that an authorisation under Division 1 of Part 4 means an authorisation given in accordance with the requirements of that Division.
This conclusion is not qualified by the reference to a “relevant authority” in subsection (3) as being the only body which can extend the time prescribed under subsection (2). It is not surprising that the Environment Court and the Supreme Court are not granted the power to extend that time although the relevant authority is granted that power. In the first place, subject to the ability to suspend the operation of a decision or order under s 32(1) of the Environment, Resources and Development Court Act 1993, an appeal court is functus officio once it has determined the appeal and made an order authorised by the relevant appeal provisions. Quite often a decision on an extension of time will need to be made well after an appeal has been determined.

In the second place, a decision to extend time may be justified not only by the time taken in hearing appeals but by other events which occur either during the appeal process or after it has been completed. The relevant authority concerned with supervising the implementation of the authorisation would be expected to have that power.
The fact that the relevant authority may have actively opposed the development is no reason to think that power of extension cannot properly be exercised by that body. Factors relevant to an extension of time will seldom be the same as those which determine whether the authorisation should be given in the first place. An obviously perverse decision by a relevant authority can be corrected on judicial review or on appeal, as a decision under s 40(3) is itself subject to appeal.[10]
[10] Section 86(1)(a)(iii) Development Act
For these reasons I conclude that s 40(2) of the Development Act applies to the granting of provisional Development Plan consent for the first time by the Environment Court on appeal from a relevant authority where the initial decision was made under Division 1 of Part 4 of the Act.
The next question is to determine whether the regulation authorised by s 40(2) does in fact prescribe such a period of operation.
Interpretation of regulation 48
Regulation 48 purports to be an exercise of the regulation making power conferred by s 40(2) and s 48(11) of the Development Act. The interpretation of reg 48 must therefore be approached bearing in mind the intention and purpose behind these sections.
A question arose during the course of argument as to whether the phrase “the decision to grant the consent or approval” in sub-regulation (4)(b) means a decision whereby consent or approval was granted or a decision in relation to an application for consent or approval, whether it be a decision to grant or a decision to refuse. In my opinion, the second alternative is unlikely. It requires a rather strained interpretation to be placed on the words themselves, given that their natural meaning would appear to refer to a decision whereby consent or approval is granted.
So far as possible, similar expressions used in the enabling Act and in regulations made thereunder should be construed consistently. I have already pointed out that the expression “a decision to grant the development authorisation” used in s 38(16)(a) can only mean a decision that an authorisation be granted rather than a decision in respect of an application or authorisation. It follows that consistency will require the phrase “the decision to grant the consent or approval” be interpreted as meaning a decision that the consent or approval be granted. A contrasting expression is used in s 38(16) itself where reference is made to “a decision of a relevant authority in respect of a Category 3 development”. If the drafter of reg 48 intended the opening words of para.(b) of sub-regulation (4) to mean a decision in respect of the granting of consent or approval, that expression or some like expression would have been used. It follows that the decision of the Council in this case to refuse consent is not the decision referred to in the opening words of para.(b) of sub-regulation (4).
As the decision to grant consent for provisional Development Plan approval was made by the Environment Court, the question then arises as to whether the appeal to the Supreme Court was an appeal “under this Act”. In relation to the interpretation of this phrase in reg 48(4)(b) my conclusion differs from that of the trial Judge.
The provision which authorises an appeal to the Supreme Court from the Environment Court is s 30 of the Environment Resources and Development Court Act 1993. It is not the Development Act. However, just as I have considered that a decision of the Environment Court on appeal from a relevant authority is a decision “under” Division 1 of Part 4 of the Development Act for the purposes of s 40(2) of that Act, so I consider that an appeal from the Environment Court to the Supreme Court is, by parity of reasoning, an appeal “under” the Development Act. The same body of law and planning principles specified in and given effect by Division 1 of Part 4 of the Act will govern the determination of the appeal to the Supreme Court in the same way that it governs an appeal to the Environment Court from a relevant authority. The result of the appeal will be dictated by the matters prescribed in and under the Development Act. The effect of any consent or approval arising from the decision will be regulated by the Act. The enforcement of rights created by the decision will be under and in accordance with the provisions of the Act. If an appeal were not “under” the Act there would be an anomaly, in that the period of operation of a consent or approval would be extended where a relevant authority makes the decision and there is an appeal to the Environment Court but not if the Environment Court does so, and that would be contrary to the purpose of both s 40(2) of the Act and reg 48.
There are other reasons which support this conclusion. The Development Act was assented to by the Governor on 27 May 1993 and commenced operation by proclamation on 15 January 1994. The Environment Resources and Development Court Act 1993 was also assented to on 27 May 1993 and came into operation by proclamation on 6 December 1993. Both Acts were contemporaneous parts of substantial revision of the planning laws affecting this State. Section 86 of the Development Act confers the right of appeal from a relevant authority to the Environment Court. Given the contemporaneous passing of the Acts, an appeal under the Development Act would necessarily import any further appeal possible consequent upon such an appeal. To hold otherwise would frustrate the object of the regulation and of the parliamentary intention behind s 40(2).
That conclusion is reached by necessary implication from reading the two Acts together. The conclusion is reinforced, however, by virtue of s 86(6) of the Development Act. That section deals with all applications to the Environment Court, including appeals against decisions on development authorisations. Subsection (5) refers to certain particular applications and subsection (6) continues:
Any other application, other than an application of a prescribed class, must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to the application). [Emphasis added]
That subsection has application to appeals to the Environment Court relating to development authorisations under Part 1 of Division 4. It applied to the appeal to the Environment Court in this case. There is therefore an express importation to the Development Act of the provisions of the Environment Resources and Development Court Act, including the provisions of s 30 which confer the right of appeal from that Court to the Supreme Court. I see no reason to restrict the operation of the words in parenthesis in s 86(6) of the Development Act.
It follows that in my opinion the phrase “an appeal under this Act” contained in reg 48(4)(b) includes an appeal to the Supreme Court from a decision of the Environment Court granting provisional Development Plan consent to a development, consent to which had earlier been refused by a relevant authority.
This conclusion is not inconsistent with the approach taken by courts in the interpretation of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). Under the ADJR Act the jurisdiction of the Federal Court is limited to “a decision of an administrative character made … under an enactment …”.[11] For the purposes of that Act the decision is made under an enactment if it is “a decision which a statute requires or authorises” or “one for which provision is made by or under a statute”.[12] In order to attract the operation of the ADJR Act, the decision sought to be reviewed must be shown to be one “for the making of which the relevant statute expressly or impliedly provides and one to which the statute gives legal force or effect”.[13] I consider that the Development Act, by s 86(6), expressly and otherwise impliedly provides for the making of a decision on appeal by the Supreme Court, and it is the Development Act which gives legal force and effect to the decision on appeal.
[11] Section 3(1)
[12] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336, 337, Mason CJ
[13] CEA Technologies Pty Ltd v Civil Aviation Authority (1994) 51 FCR 329, Neaves J at 333, 337. See also Australian National University v Lewins (1996) 68 FCR 87, Lehane J at 101, with whom Kiefel J agreed.
As the decision of the Environment Court to grant the provisional development plan consent was the subject of an appeal to the Supreme Court and the appeal was “under the Development Act” it follows that, in accordance with reg 48, the consent lapsed at the expiration of 12 months from the date on which that appeal was dismissed, namely 22 September 2004. As the development approval was granted on 21 March 2005, within that period, it was a valid development approval.
I have not overlooked the argument that both the Environment Court and the Supreme Court have power under s 32(1) of the Environment Resources and Development Court Act to “suspend the operation of the decision or order” of the Environment Court until determination of the appeal from the Environment Court to the Supreme Court. It was argued that, if an applicant for consent wished to have the period of operation of the decision of the Environment Court extended because of an appeal to the Supreme Court, all that was necessary was for application to be made by the applicant under s 32. I am not persuaded that an application under that section would extend the period of operation of the consent or approval during a period of suspension of the decision under s 32.
I have already pointed out that s 38(16) of the Development Act specifies when a certain decision of a relevant authority operates, and that that is in contrast with s 40(2) and reg 48 which specify the period for which a development authorisation operates. Section 32(1) of the Environment Resources and Development Court Act speaks of a power to suspend the operation of a “decision or order”. The “operation” of a decision, which may be suspended under s 32(1), is to give effect to the authorised development the subject of the decision and to allow action to be taken to implement it. That is different, conceptually, from the authorisation itself remaining operative.
A suspension of the operation of a decision does not alter the character or effect of the authorisation the subject of the decision. A necessary part of that character or effect is the period for which it remains in operation. The suspension of the operation of the decision merely prevents the beneficiary of the decision from acting on it for so long as the order of suspension remains in force. If, by force of statute, the authorisation ceases to be operative, the underlying permission disappears and the stay or suspension becomes ineffective. In other words, the suspension of the decision does not alter the character of the authorisation nor that part of its character defined by its statutory duration.
Some support for this view is derived by analogy with the operation of a stay of execution of a civil judgment of a court. In Clifton Securities Ltd v Huntley[14] the lessees of a workshop which formed part of a factory had a right of way to it through the factory and received their electricity, gas and water supplies through pipes laid in the factory. The lessors, who were the owners of the factory, obtained judgment for possession of the premises on a notice to quit, the validity of which was disputed. A stay of execution was granted pending an appeal. The lessees did not give up possession. Before the Court of Appeal had given judgment affirming the judgment of the court below, and while the stay of execution was still in force, the lessors cut off the supply of electricity, gas and water, and shortly after, barricaded the right of way. The lessors brought an action for mesne profits. The lessees counterclaimed on the ground that they were entitled to undisturbed possession and while the stay was in force, and sought damages for the cutting off of the supply of electricity, gas and water. Denning J, as he then was, held that the stay of execution only prevented the lessors from putting into operation the legal processes of execution on a judgment, and did not affect the exercise of any rights and remedies they might have independent of the process of the court.
[14] [1948] 2 All ER 283
In Pollack v Commissioner of Taxation[15] there was a stay of enforcement of a judgment, but that did not, of itself, deprive the judgment debt of its character as an obligation payable immediately, and hence did not affect the right to petition for and obtain a sequestration order based on the judgment debt. Gummow J said:[16]
In my view, in the present case the existence of a stay of enforcement pursuant to r 2(8) does not, of itself, and without more, deprive the judgment debt of its character as an obligation that is payable immediately, as indicated in r 1(2).
[15] (1991) 32 FCR 40
[16] Ibid at 57
A similar approach was taken by Weinberg J in P Aker Flowerbulbs Pty Ltd v Coulter[17] in holding that a stay of execution on the judgment debt would still carry interest for the period of the stay.
[17] (2004) 140 FCR 410
The suspension of the operation of a decision under s 32(1) of the Environment Resources and Development Court Act has the same effect as a stay of a civil judgment. It is for the benefit of a party to an appeal who is an opponent of a particular development, be it a relevant authority or a person who made representations under s 38, in order to ensure that a contentious development is not irreparably begun in reliance upon a consent or approval which is the subject of the appeal. It does not alter the character of the consent or approval, one aspect of which is its duration. Parliament has determined that that aspect should only be altered by a relevant authority.[18] If it were intended that the period of operation of the consent should be extended by the period of any order for suspension under s 32(1) of the Environment Resources and Development Court Act, then one would expect that section to say so. It does not.
[18] Section 40(3) Development Act
In my opinion, the presence of s 32 of the Environment Resources and Development Court Act does not affect the proper interpretation of reg 48 of the Development Regulations. It has no effect on the period of operation of a consent or approval fixed by reg 48 or extended under s 40(3) of the Act.
The respondent’s cross-appeal
In view of the fact that I would allow the appeal and declare that the development approval was validly given, it is not necessary to deal with the respondent’s cross-appeal. However, should the decision on appeal be otherwise, I will, nevertheless, express my view on the cross-appeal.
The cross-appeal challenges that part of the trial Judge’s order that the appellant be at liberty to apply to the council for an extension of the period of the operation of the provisional Development Plan consent granted by the Environment Court on 20 January 2004, and that if the Council extends the period of operation of that consent, the appellant be at liberty to apply to the Council for a fresh grant of development approval.
The power to extend the period of operation of the consent is vested in the Council by s 40(3) of the Development Act. Regulation 48(2) purports to confer a similar power. However, the regulation cannot qualify or extend the power conferred by s 40(3) of the Act. The regulation merely states explicitly what is implied in s 40(3). However, if s 40(3) on its proper construction requires, as Mr & Mrs Hall argue, that the extension be granted, or alternatively that application for the extension be made, before the period of operation of the consent expires, then the words of reg 48 cannot provide otherwise.
Mr & Mrs Hall argue that the ordinary meaning of the word “extend” used in s 40(3) of the Act contemplates the continued existence of the thing to be extended at the time of extension. It does not ordinarily comprehend a situation where the thing to be extended has ceased to exist. I reject that argument. There is no reason why a period of time within which to perform an act cannot be extended after the period has expired. If it were otherwise, very few extensions of time in which to commence civil actions could ever be granted. Section 48(1) of the Limitation of Actions Act 1936 provides:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for –
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
A person who wishes to apply under that section will almost invariably make the application to extend the limitation period after the period has expired. I can see no relevant distinction between extending a period of time within which an action must otherwise be commenced and extending a period of time during which a consent remains operative.
It is then argued that an ability to apply after the period has lapsed will enable the revival of a stale approval without reference to potential objectors. In my opinion this is an objection without substance. An application for extension made during the relevant period, and perhaps extended again by a relevant authority, will be no different in effect from an application to extend made after the time has expired. Both applications may well afford the same concession to the applicant for development without reference to potential objectors.
The granting or withholding of the extension is discretionary. If there has been a material change in the planning legislation or in the relevant Development Plan such that consent to the development could not then be given, or if there has been some other material change of circumstance affecting the granting of consent, those may be relevant factors in the exercise of that discretion, to be weighed carefully against the diligence with which the applicant has pursued the development and against other circumstances which may have frustrated that activity.
To require the extension to be granted before the period has expired is to place on an applicant for development a requirement over which the applicant may have little or no control. An application lodged within the period may or may not be dealt with by the relevant authority within the period. That is something over which the applicant has no control. It may be that the particular council does not meet before the time expires, or the handling of the application may be delayed by the council until after expiry of the time. The ability to obtain an extension, in those circumstances, might well depend on the diligence of the planning authority in dealing with the application or simply on the timing of meetings of the relevant authority. That could well lead to an unjust result and one unlikely to be intended by Parliament.
Mr & Mrs Hall also rely on the use of the present tense in s 40(3) of the Act to argue that the only person who may apply for an extension of time is a person who, at the time of the application, then has the benefit of the development authorisation, and that where the time has expired the applicant no longer has any such benefit. I do not accept that argument. So long as the period of operation of a consent is current or there is a potential to have the period of operation extended, there is a benefit associated with the relevant development authorisation which the person authorised to carry out the development continues to enjoy.

Mr & Mrs Hall also called in aid s 39(7) of the Development Act which relates to an application to vary a development authorisation previously given. The subsection provides:
(7)An application to which subsection (6) applies –
(a) may only be made if the relevant authorisation is still operative; and
(b) will, for the purposes of this Part, but subject to any exclusion or modification prescribed by the regulations, to the extent of the proposed variation, be treated as a new application for development authorisation (but, unless otherwise approved by the relevant authority, the application for variation cannot relate to any condition imposed with respect to the original authorisation nor extend the period for which the relevant authorisation remains operative).
Far from supporting the respondents, I consider that that subsection supports the appellant. By virtue of that subsection application for variation of a development authorisation can only be made while that authorisation is operative. The contrast with s 40(3) is obvious. If Parliament intended a similar regime to apply to applications under s 40(3), it would, in all probability, have inserted in s 40(3) a provision to the effect that an application for extension could only be made if the relevant consent was still operative.
It will be apparent from some legislation, even though it does not specifically require an application for extension of time to be made before the relevant period expires, that such an application cannot be brought after the time has expired. Lamshed v Lamshed[19] is an example of such a case. That concerned the construction of O 28 r 7 of the then Supreme Court Rules. It provided that if a party who had obtained an order for leave to amend a pleading did not amend within the time limited for that purpose then the order to amend would, on the expiration of the time limited “become ipso facto void, unless the time is extended by the Court or a Judge”. It was held that where the rule provides that the original order itself becomes ipso facto void, any alleged extension would amount to the revival of a nullity. In that case, the intention of the rule as to what was to happen on the expiry of the period was reasonably clear. Leave to amend became void and of no effect upon expiry of the relevant time. A similar conclusion, namely that the consent becomes void, is not demanded by the terms of s 40(3) of the Development Act. Lamshed v Lamshed and the cases on which it relies are therefore to be distinguished.
[19] [1962] SASR 190
Where an application to extend time is required to be made within the relevant period, the legislation will usually so provide. An example is r 95.11(3) of the Supreme Court Rules which requires that where an appeal to the Full Court has not been set down within six months from its institution or from when the appellant first became entitled to set it down, “it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired”. Another example is s 52(5) of the Bankruptcy Act 1966 (Cth) concerning the lapse of a creditor’s petition for bankruptcy. Subsection (4) provides for the lapse of the petition after a certain period of time. Subsection (5) provides that the Court may “at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor’s petition” order that the period at the expiration of which the petition will lapse be extended.
These provisions make it quite clear that, save in the case of special circumstances in the case of r 95.11(3), the application must be made during the relevant period. There is no similar provision contained on s 40(3) of the Development Act. I consider that such a provision would be necessary if Parliament intended that applications for the extension of the period could not be made after the period has expired.
For these reasons, if it became an issue, I would dismiss the cross-appeal.
Conclusion
I would allow the appeal. I would set aside the order of the trial Judge made on 27 May 2005 as varied by further order made on 21 June 2005. In place of that order I would make an order declaring that the development approval issued by the Council to the appellant in respect of DA180/0455/02/C3 dated 21 March 2005 is a valid development approval. As this is an order in which other members of the Court are agreed, I would make no order on the cross-appeal.