Mackenzie Intermodal Pty Ltd v Peter Lawson & Naracoorte Lucindale Council No. Scciv-03-378

MACKENZIE INTERMODAL PTY LTD v PETER LAWSON & NARACOORTE LUCINDALE COUNCIL
[2003] SASC 297
Land and Valuation Division

DEBELLE J A judge of the Environment, Resources and Development Court dismissed an application by the appellant, Mackenzie Intermodal Pty Ltd (“Mackenzie”) in which the appellant sought an order striking out the respondent Lawson’s appeal to that court. Mackenzie appeals from that decision to this Court. An appeal lies to a single judge of this Court from an interlocutory decision of a judge of the Environment, Resources and Development Court: s 30 of the Environment, Resources and Development Court Act 1993.
A Development Application
Mackenzie operates a container storage and handling depot at Hynam in the South-East of South Australia. Hynam is within the area of the Naracoorte Lucindale Council (“the Council”). Hynam holds planning approvals for its depot. On 25 October 2002 Mackenzie applied to the Council for provisional development plan consent to extend the hours of operation of its depot, to increase the number of containers which can be stored at the depot, and to increase the number of refrigerated containers which can be connected to power on the site of the depot. The application was, in fact, for a variation of an existing development consent granted in 2001. Mr Lawson had lodged representations opposing earlier applications for development consent made by Mackenzie.
Lawson Lodges an Objection
The Council classified the development as a Category 3 development. By reason of s 38(5) of the Development Act 1993, the Council was required to give notice of the development application to the owners or occupiers of land directly affected by the development and to the public generally. The application was advertised in the Naracoorte Herald, a newspaper which circulates in the area. Notice of the development was given to the respondent Mr Lawson by written notice dated 4 November 2002. Mr Lawson lodged a document with the Council. It was in these terms:
“I OBJECT
TO THIS APPLICATION
7.11.02
P. Lawson”
“P. Lawson” was Mr Lawson’s signature. Notwithstanding the absence of any reference in the document to the subject matter of the application, the Council knew by reason of previous dealings with Mr Lawson that it was related to the development application by Mackenzie. The Council treated it as a representation objecting to that development application. The Council granted provisional development plan consent to the variation sought by Mackenzie.
An Appeal to the Environment Court
On 27 November 2002 the Council gave written notice to Mr Lawson that it had granted Mackenzie’s application. The notice informed Mr Lawson that he had a right of appeal to the Environment, Resources and Development Court (“the Environment Court”). On 16 December 2002, Mr Lawson lodged his appeal in the Environment Court. The notice of appeal stated the grounds of appeal in these terms:
“THE SAME AS NUMEROUS OTHER APPLICATIONS MADE BY APPLICANT – FRAUDULENT.
FULL RESPONSE WILL REQUIRE COURT ACTION & COMPENSATION.
APPLICANT LIED IN EVIDENCE ’96 COURT PROCEEDINGS.
I HAVEN’T HAD OPPORTUNITY TO APPEAL THE DEVELOPMENT ONLY THE HOURS OF OPERATION.”
On the hearing of the appeal, Mackenzie made an oral application to strike out the appeal as incompetent on the ground that the document lodged by Mr Lawson with the Council on 7 November 2002 did not constitute a representation within the meaning of s 38 of the Development Act. The Environment Court dismissed the application. From that decision, Mackenzie has appealed to this Court.
The Entitlement to Lodge a Representation
The entitlement to lodge a representation in respect of an application for provisional development plan consent is provided by s 38(7) of the Development Act which provides:
“       (7)    Where notice of an application for consent in respect of a Category 2 or Category 3 development has been given under this section, any person who desires to do so may, in accordance with the regulations, make representations in writing to the relevant authority in relation to the granting or refusal of consent.”
In s 38, the expression “the relevant authority” means the relevant planning authority which, in this case, is the Council. Once a representation has been lodged, the representor is entitled to notice of the Council’s decision. That is the effect of s 38(12) which provides:
“       (12) Where representations have been made under this section, the relevant authority must–
(a)    give to each person who made a representation notice of its decision on the application and of the date of the decision and, in the case of a Category 3 development, of the person’s appeal rights under this Act; and
(b)    in the case of a Category 3 development–give notice to the Court–
(i)of its decision on the application and of the date of the decision; and
(ii)of the names and addresses of persons who made representations to the relevant authority under this section.”
A person who is entitled to be given notice of a decision in respect of a Category 3 development has a right of appeal to the Environment Court against that decision: s 86(1)(b) of the Development Act. The Council gave Mr Lawson notice of its decision. Thereafter, Mr Lawson instituted this appeal in the Environment Court.
It will have been noticed that the right of appeal is founded on an entitlement to notice of the Council’s decision. That entitlement is, in turn, founded on the fact that a representation has been made under s 38: see s 38(12) of the Development Act.
Mr Levinson, who appeared for Mackenzie, contended that the representation lodged by Mr Lawson failed to comply with the statutory requirements which regulate the content of a representation. Mr Lawson’s representation was, he said, invalid so that Mr Lawson had no entitlement to appeal. I turn to examine the requirements.
The Content of a Representation
The content of a representation is regulated by s 38(6) of the Development Act and by regulation 35 of the Development Regulations 1993. The material provisions of s 38(6) provide:
“       Except as otherwise provided by the regulations, the subject matter of– …
(b)     any representations under this section; …
must be limited to the following:
(d)    what should be the decision of the relevant authority as to provisional development plan consent.”
The regulations require additional material in the representation. The relevant provision is regulation 35 which provides:
“       35. Pursuant to section 38(7) of the Act– …
(b)    a representation must include the name and address of the person (or persons) who are making the representation; and …
(d)    a representation must set out, with reasonable particularity, the reasons for the representation; and
(e) a representation must indicate whether or not the person or persons who are making the representation desire, subject to section 38 of the Act, to be heard by the relevant authority.”
Thus, on a strict construction of those provisions, Mr Lawson’s document failed to comply with regulation 35 in that
(1)     it failed to include Mr Lawson’s address;
(2)     it failed to set out the reasons for the representation; and
(3)it failed to state whether Mr Lawson wished to be heard by the Council.
It also failed to comply with s 38(6) in that it did not set out what the decision of the Council should be in respect of Mackenzie’s development application.
It is relevant to note also that s 38(8) requires a planning authority to whom the application has been made to send to the applicant a copy of the representations made to it and must give the applicant an opportunity to respond in writing to those representations.
The Purpose of a Representation
Shortly stated, the purpose of a representation is to give notice to the relevant planning authority and to the applicant for development consent of the decision which the representor believes should be made by the planning authority and the grounds for that view. In that way, the representation enables a better examination of the relevant planning issues. For that reason, the document should set out in reasonable detail the grounds on which the representation is made. Mr Lawson’s document plainly failed to provide this information.
When considering whether Mr Lawson’s document was a valid representation, it is necessary to remember that a planning authority is not deciding a dispute between the applicant for development consent and those who lodge representations opposing it. (There is, of course, nothing to prevent persons from making representations supporting a development application.) Instead, the planning authority is making a decision in the public interest. In the process of making that decision, it is often obliged to consider the effect of a proposed development upon owners and occupiers of adjoining land or on land in the vicinity of the proposed development. However, in the ultimate result, the planning authority makes its decision in the public interest having regard to the provisions of the Development Act and regulations made thereunder and the relevant Development Plan and other relevant planning principles. See also the observations of the Full Court in Upham v The Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557 at [67].
Is the Representation Valid?
Section 38(6) of the Act and regulation 35 are expressed in mandatory terms. They state that a representation “must” contain the prescribed information. It is for that reason that Mr Levinson contends that they impose mandatory requirements so that Mr Lawson’s failure to comply with them renders his representation invalid.
The distinction between mandatory and directory provisions has proved elusive and has outlived its usefulness: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] and [93]. A better test for determining the issue of invalidity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky at [93]; see also Barwick v Law Society of New South Wales (2000) 169 ALR 236. The purpose of the legislation is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the statutory requirements: Project Blue Sky at [91]. Some guidance can be gained by distinguishing between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (which are regarded as going to jurisdiction and thus mandatory so that a failure to comply results in invalidity) on the one hand and, on the other, acts done in breach of a procedural condition for the exercise of a statutory power or authority (which are directory and a failure to comply with them does not result in invalidity): Project Blue Sky at [92].
I turn to examine the purpose of the legislation. I have already referred to the task of a planning authority. The purpose of s 38 is to enable the relevant planning authority to ascertain the views of those likely to be affected by the proposed development and so make an informed decision in the public interest. However, those making representations will not always be sophisticated persons with experience of commercial or legal affairs. It is highly likely that some representations, like that of Mr Lawson, will be expressed in blunt and laconic terms.
Another relevant factor is that it is highly likely that most of those who make representations will not have either the Development Act or the Development Regulations before them. They will, therefore, be entirely unaware of the terms of s 38(6) and regulation 35. Experience in this Court indicates that, as a general rule, notices of development applications addressed to those whom a planning authority believes to be affected by the proposed development and notices to the public pursuant to s 38 do not draw attention to either s 38(6) or regulation 35. In this case, the Council’s notice to Mr Lawson did not refer to those two statutory provisions. The only reference to them was a paragraph in the notice reading:
“Each person making a submission should indicate whether that person wishes to appear personally or be represented by another party before the Council in support of that submission.”
It is relevant also to note that some of the requirements in s 38(6) and regulation 35 have little purpose other than to assist a planning authority in its handling of the development application. I refer to the requirement for the person making the representation to state his name and address and the requirement to state whether he wishes to be heard in support of the written representation. Those provisions essentially serve an administrative purpose. In my view, Parliament did not intend that a failure to comply with these two requirements should result in the representation being invalid. The facts of this case serve to reinforce that conclusion. Mr Lawson was well known to both Mackenzie and to the Council. He had made representations in relation to previous development applications by Mackenzie. Both Mackenzie and the Council knew his address. The failure to state whether he wished to be heard in support of the written representation has a consequence that he could not expect to be heard in support of it.
Another relevant factor is that it is not possible to distinguish between the requirements of s 38(6) and regulation 35, that is to say, it is not possible to state that a failure to comply with some of those requirements leads to invalidity but a failure to comply with others does not.
Another way of examining this issue is to ask whether Parliament intended that, if a person making a representation complied with all of the requirements in s 38(6) and regulation 35 but failed only to state whether he wished to be heard, the representation would be invalid. Plainly, that could not have been Parliament’s intention. The same answer would be given where the representation contained all the required information but failed only to state the address of the person making the representation. Further, it cannot be imagined that Parliament intended that an inadvertent failure to comply with one or two requirements should invalidate the representation.
There is nothing in the Development Act or in the Development Regulations which invalidates a representation which fails to set out everything that is required by s 38(6) or regulation 35. For the reasons above, it is not possible to discern a legislative purpose that a failure to comply with s 38(6) and regulation 35 should invalidate the representation.
The correctness of this conclusion might be tested by considering the consequences of a decision that failure to comply with the requirements of s 38(6) and regulation 35 renders a representation invalid. If that were so, any single departure from those requirements would invalidate the representation, no matter how unimportant or irrelevant was the failure to comply. It hardly needs to be stated that Parliament would not have intended that such departures would invalidate the representation. Section 38(7) is intended to provide a means by which those affected by particular forms of development might be heard when a development application is being considered. That intention would be defeated if representations were invalidated by inadvertent or other failure to comply with the requirements of s 38(6) and regulation 35, particularly where the person making the representation was entirely unaware of those obligations.
It is arguable that Mr Lawson’s representation complied with the essential aspects of s 38(6). Section 38(6) and regulation 35 require that the representor should state what the decision of the planning authority should be. Had Mr Lawson said in his representation, “the application should be refused”, he would have complied with that requirement. However, his short, sharp statement, “I object”, contains the clear implication that he believes that the Council should refuse the Mackenzie application. In other words, there is more than one way of stating what one believes should be the outcome of the application. Mr Lawson had made his views clear to the Council. However, it is unnecessary to decide this matter.
Thus, while it is plainly desirable that a representation should comply with the requirements of s 38(6) and regulation 35, the failure to do so does not invalidate the representation. The likely consequence is that little heed will be given to the representation.
I have considered the consequences of reaching this conclusion. While it may be inconvenient and unhelpful to both councils and the proponents of development applications that a complete representation is not lodged, it will not be unduly so. As I have said, an inadequate representation may well receive short shrift from the relevant planning authority. The effective sanction to ensure compliance is that a complete and reasoned representation is more likely to carry weight with the planning authority.
There is another factor which points to the conclusion that an incomplete representation is not an invalid representation. There is no requirement that the grounds of appeal should accord with or be limited by the terms of a representation. An appellant may include in the notice of appeal grounds not stated in the representation. The notice of appeal may be advanced on quite different grounds from the representation. Thus, if an appeal is instituted, the absence of a proper representation does not cause any hardship to the proponent of the development or to the planning authority. When instituting an appeal, the person making the representation will succeed only if there are proper and reasoned grounds of appeal.
When these statutory requirements are examined and the purpose of s 38 understood, it is apparent that Parliament did not intend that failure to comply should result in the representation being invalid.
The Environment Court has expressed a contrary view in Mancorp Holdings Pty Ltd v City of Adelaide & Ors (unreported, 5 December 1997, Judgment No. OE 451). However, that was decided before the High Court published its decision in Project Blue Sky. With respect, I think that that decision of the Environment Court was wrong.
For all of these reasons, I think that the document lodged by Mr Lawson was a valid, albeit inadequate, representation. He was, therefore, entitled to notice of the decision of the Council and entitled to institute an appeal in the Environment Court.
Conclusion
For all of these reasons, I would dismiss the appeal.

[2003] SASC 297

28 August 2003