Mahaside Pty Ltd v Sunshine Coast Regional Council
[2010] QPEC 70
•20th August 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70
PARTIES:
MAHASIDE PTY LTD ACN 010959672
(Applicant)
v
SUNSHINE COAST REGIONAL COUNCIL & ORS
(Respondents)
FILE NO/S:
No. 76 of 2010
DIVISION:
Planning and Environment Court of Queensland
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
20th August 2010
DELIVERED AT:
Maroochydore
HEARING DATE:
15th June 2010
JUDGE:
Robertson DCJ
ORDER:
Application dismissed.
CATCHWORDS:
DEVELOPMENT APPLICATION- where part of development proposed road over unallocated State land; where impact assessable; where development application stated that development did not involve taking or interfering with State resource; where Council treated the application as a “properly made application” and State entity responsible for land gave its consent as owner for lodgement of the application; where application refused and appeal lodged; whether there is in fact a taking or interference with a State resource; whether non-compliance should be excused under s 820(1) of SPA; whether Courts power to excuse non-compliance has been widened under SPA.
Legislation
Integrated Planning Act 1997 (Qld) (repealed)
Integrated Planning Regulation1998 (Qld) (repealed)
Land Act 1994 (Qld)
Land Act 1962 (Qld) (repealed)
Sustainable Planning Act 2009 (Qld)
Cases Cited
Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 (applied)
Stockland Property Management Pty Ltd v Cairns City Council & Ors [2009] QCA 311 (applied)
COUNSEL:
Mr G. Gibson QC and Mr M. Williamson for the applicant, Mahaside Pty Ltd.
Mr R. Litster S.C. and Mr B. Job for the respondent, Sunshine Coast Regional Council.
Ms J.S. Brien for the second respondent, Chief Executive under the Vegetation Management Act 1999.
SOLICITORS:
IPA Law Planning Lawyers for the applicant.
Sunshine Coast Regional Council Legal Services for the respondent, Sunshine Coast Regional Council.
GR Cooper Crown Solicitor for the second respondent, Chief Executive.
Introduction
On 11 October 2004 Mahaside Pty Ltd (Mahaside) applied to the former Maroochy Shire Council, now the Sunshine Coast Regional Council (Council) for reconfiguration of land situated at Collins Road and Waterfall Road, Yandina. The development application was impact assessable and sought approval for a 74 lot residential sub-division and park which ultimately was reduced in intensity. Council accepted the application as a properly made application and ultimately on 11 April 2007 refused it. The then Department of Natural Resources and Mines (DNRM) as a concurrency agency directed Council to refuse the application, although Council also formulated its own independent reasons for refusal. Mahaside lodged an appeal against the refusal in this Court on 10 May 2007, and the Chief Executive under the Vegetation Management Act 1995 (Chief Executive) entered an appearance on 30 May 2007. A number of the 364 submitters who had made submissions during the IDAS process, also elected to join the appeal as co-respondents.
The appeal proceeded with directions orders being made including an order made (apparently without demur from either Council or the Chief Executive) on 22 May 2009 which included the usual order that the Court was satisfied that the requirements of the Integrated Planning Act 1997 (IPA) with respect to commencement of the proceedings had been complied with. Joint expert meetings had been held.
The Present Application
The appeal stalled with the receipt by Mahaside’s lawyers of a letter from Council’s solicitor dated 17 February 2010 which is in the following terms:
“We refer to the above matter.
Mention on 26 February 2010
We note that these proceedings were adjourned to 26 February 2010 to enable your client, and its experts, to provide further information necessitated by the interim joint expert report.
Would you please indicate what orders your client proposes to seek at the mention of the appeal on 26 February 2010?
The Development Application
Having further considered your client’s development application for the purpose of these proceedings, it would appear that the development application may not, in fact, have been properly made. In particular:
1.The IDAS application forms, and in particular item 25 of Part A suggests that the development application did involve taking or interfering with a State resource;
2.In fact, the development application involves construction of a road for access purposes through land which was unallocated State land under the Land Act1994;
3.Although the development application was accompanied by the consent of the Department of Natural Resources and Mines to the lodgement of the application, the application was not supported by evidence of the kind contemplated by s 3.2.1(5) of the IPA;
4.It would seem to follow that the development application was not properly made.
Would you please indicate your client’s intentions with respect to each of these matters raised as soon as possible?”
This prompted Mahaside to file the present application on 24 March 2010 in which it sought the following orders pursuant to s 818(2) of the Sustainable Planning Act 2009 (SPA):
“1.A declaration of the applicant’s development application for reconfiguration of a lot lodged with the Maroochy Shire Council in October 2004 for land formally described as lot 367 on CG 286, lot 975 on CG 286 and lot 2 RP169511 (“the development application”) was a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act1997 (“IPA”).
2.A declaration that the first respondent’s decision notice dated 11 April 2007 (“the decision notice”) for the development application is valid.
3.In the alternative, orders under s 820 of the Sustainable Planning Act2009 (“SPA”), namely:
(a)An order with respect to the development application excusing the non-compliance, if any, with s 3.2.1 of IPA; and
(b)A declaration that the decision notice be treated as valid on and from 11 April 2007”.
The application came on for hearing before this Court on 15 June 2010. With their usual clarity and economy of words, Mr Gibson QC and Mr Williamson on behalf of the applicant summarised its contentions thus:
“In summary, Mahaside contends that:
(a)The development application does not involve the taking or interfering with a State resource (“the State resource point”);
(b)Evidence of the kind envisaged by s 3.2.1(5) of IPA was not required for the development application;
(c)The development application was a properly made application for the purpose of s 3.2.1(7) of IPA; and
(d)Alternatively, if evidence of a kind envisaged by s 3.2.1(5) of IPA was required for the development application, this is a non-compliance with IPA which can and should be excused under s 820 of SPA (“the excusal point”)”.
Both respondents contend that the proposal would involve the taking or interfering with a State resource and that the application was not properly made as the requirements of s 3.2.1(5) of the IPA had not been complied with, and that the non-compliance should not be excused pursuant to s 820(1) of the SPA.
Factual Matters
It is common ground that lot 975 on CG 286 is unallocated State Land (USL). Mahaside’s proposal is that a road be constructed over part of that lot to facilitate access to some of the northern lots in the proposed reconfiguration. Lots to the south and west will be accessed from Collins Road.
The USL has not been dedicated or set apart or reserved as a reserve under the repealed Land Act 1962. It is located at the southern end of a road reserve known as Waterfall Road. A waterfall traverses lot 975 in an east west direction about 50m south of a northern boundary of lot 367 on CG 286 (part of Mahaside’s land).
Waterfall Road currently terminates in a partially formed cul-de-sac which appears to intrude into the northern most part of the USL. There is a walking track which starts at the head of the cul-de-sac at the end of Waterfall Road which enables access to be obtained from this road to the waterfall in the public reserve.
In his affidavit in support of the originating application Mr Covey, the sole director of Mahaside, sets out the history of the various iterations of the application, the first two of which did not refer, in error, to the USL. Soon after lodgement of the third form, the Council officer assessing the development application advised Mr Covey of the error which was then corrected.
Section 3.2.1 of IPA was amended on 4 October 2004 such that, depending on the facts, an application might need to be supported by evidence of one of two facts: either owner’s consent or evidence of the kind envisaged by s 3.2.1(5)(a) to (c) of IPA.
As at 4 October 2004, s 3.2.1 of IPA relevantly provided, in part:
“3.2.1 applying for development approval…
(3)Subject to subsection (12), each application must contain, or be supported by, the written consent of the owner of the land of the making of the application if the application is for -
(a)A material change of use of premises or a reconfiguration of a lot; or …
(5)To the extent the development involves taking, or interfering with, a State resource prescribed under a regulation, the regulation may require the application to be supported by one or more of the following described under the regulation for the development -
(a)Evidence of allocation of, or an entitlement to, the resource,
(b)Evidence the Chief Executive of the department administering the resource is satisfied the development is consistent with an allocation of, or entitlement to, the resource;
(c)Evidence the Chief Executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or entitlement to, the resource.
…
(7) An application is a properly made application if -
(a)The application is made to the assessment manager; and
(b)The application is made in the approved form; and
(c)The mandatory requirements part of the approved form is correctly completed; and
(d)The application is accompanied by the fee for administering the application; and
(e)If subsection (6) applies – the application is supported by the evidence required under subsection (5); and
(f)The development would not be contrary to the regulatory provisions or the draft regulatory provisions.
(8)The assessment manager may refuse to receive an application that is not a properly made application.
(9)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10)Subsection (9) does not apply to an application -
(a) Unless the application contains -
(i)The written consent of the owner of any land to which the application applies; or
(ii) Any evidence required under subsection (5); or
(b)If the development would be contrary to the regulatory provisions or the draft regulatory provisions.
(11)For subsection (5), interfering with a State resource includes carrying out development on land other than freehold land”.
From 4 October 2004, s 3.2.1(5) of IPA required an application to be supported by particular evidence to the extent that the development proposed involved the taking or interfering with a State resource prescribed under a regulation. At the material time, s 12 of the Integrated Planning Regulation 1998 (IPR) relevantly provided:
“Item 12 State resources (Schedule 10) …
For s 3.2.1(5) of the Act, schedule 10 prescribes State resources and the evidence required to support an application that involves taking or interfering with a resource.”
At the material time item 12 of Schedule 10 of the IPR relevantly provided:
| State resource | Department administering resource | Required evidence |
| 12. Land that is unallocated State land under the Land Act 1994 (other than a canal under the Coastal Protection and Management Act 1995) | The department administering that Act | Evidence the chief executive of that department is satisfied- |
In the amended application Form 1 Part A, sent by Mr Covey to Council on 13 October which included the USL as part of the land on which the development was proposed to take place, Mahaside (as it had in previous applications) answered “no” to question 25:
“Does this application involve taking or interfering with a State resource”.
The critical issue is then whether the proposed road on part of the USL “involves taking, or interfering with, a State resource prescribed under a regulation”.
It is common ground that by virtue of item 12 in the IPR Schedule 10, the USL is a “State resource prescribed under a regulation”.
Mr Covey explains in paragraph of his affidavit filed 6 May 2010 why he answered “no” to question 25:
“At the time I completed the forms, and in particular, I answered “no” to question 25 concerning whether the proposed development amounted to taking or interfering with the State resource, it did not occur to me that the construction of a road through unallocated State land would amount to any such thing. I thought at the time that the provision by the Department of Natural Resources of correspondence consenting to the making of the development application in respect of the USL was all that was procedurally required in relation to the matter. I did not answer no to question 25 dishonestly, that is, in the sense that the answer I was providing I thought was not true. At the time, I thought the answer I gave was true. Although I now know there is some conjecture in these proceedings about whether the answer that was given is legally correct”.
Mr Covey was not cross-examined about this statement. He has had long experience as an engineer and project planner on the Sunshine Coast, but there is no doubt that the omission of the USL from the development application was a genuine error.
The letter he refers to which accompanied the application, is from the then Department of Natural Resources Mines and Energy (now Department of Environment and Resource Management (DERM)) dated 30 September 2004 under the hand of Douglas Courtney, who was then the relevant delegate of the Minister.
The letter is (relevantly) in these terms:
“I wish to advise that the Department of Natural Resources and Mines hereby consents to the lodgement by Mahaside Pty Ltd, with the assessment manager, the Maroochy Shire Council, of a development application in respect of the above mentioned proposed works (proposed road through lot 975 on CG 286) in accordance with the requirements of the Integrated Planning Act1997.
In respect of providing this owner’s consent, the department is simply consenting to the lodgement of an application to the assessment manager for approval subject to the following:
·The department’s consent as owner does not remove the obligation on the applicant to obtain all necessary approvals from other relevant regulatory authorities. Similarly, any approval granted by the assessment manager does not replace the need for the applicant to observe the purpose and conditions of any tenure granted under the Land Act1994.
·The applicant recognises and accepts that lot 975 on CG 286 is an ungazetted public purposes reserve (ungazetted reserves are dealt with by this department as unallocated State land). As lot 975 is unallocated State land it currently forms part of the registered Native Title claim by the Gubbi Gubbi people. Consequently Mahaside Pty Ltd is advised that it may be necessary to negotiate an Indigenous Land Use Agreement with the traditional owners prior to the dedication of a road within lot 975 by NR&M.
·The applicant accepts responsibility for all costs in obtaining the relevant approvals and in complying with conditions imposed upon the issue of the approval.
…
·The applicant shall prepare and lodge the application and undertake all related activities and conduct those activities (sic) entirely at its own expense and risk and agrees NR&M will not be liable for any lost costs damage expense or other liability incurred or suffered by the applicant whatsoever”.
As this letter was written and received very shortly before the critical amendment to s 3.2.1 of the IPA, it is surprising that Mr Covey was not alerted to subsection (5) by his advisors, but as he was not cross-examined about this it can be taken no further.
Mr Courtney has filed an affidavit on behalf of the second respondent to which he annexes a letter he wrote to Council on 13 December 2004 seeking Council’s view on the application to open a road through the USL.
Mr Courtney was also not cross-examined. He refers in his affidavit (paragraph 23) to a file note of a meeting with Mr Covey on 18 February 2005 which states “Met with Noel Covey re new road through USL – advised him that his chances were very slim”.
It is common ground that the road to be constructed on part of the USL will involve a reconfiguration of the lot and the construction of pavement within the road reserve at least six metres wide. It will also involve earthworks. The road will facilitate vehicular access to some of the residential lots in the northern part of the development.
The Law
All parties rely upon various principles which it is argued emerge from the judgments of the Court of Appeal in Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310, and Stockland Property Management Pty Ltd v Cairns City Council & Ors [2009] QCA 311, both delivered on 16 October 2009.
What is immediately obvious is that s 3.2.1(11) of the IPA was not in force at the time of the development applications being made in either Barro or Stockland. In Barro the application was made on 7 April 2006 [see paragraph 2] of the judgment of the primary judge His Honour Judge Searles in Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QPEC 9, and in Stockland on 30 October 2006 (per Keane JA (as His Honour then was). Section 3.2.1(11) was in force from 4 October 2004 to 30 March 2006. It follows that the subsection was not considered by the Court of Appeal in either Barro or Stockland, and Mr Litster SC on behalf of Council argues that the subsection is immediately fatal to Mahaside’s application. I do not agree with his argument that because the development of the road on the USL in this case involves “development of land other than freehold land” it is necessarily an “interference with a State resource”. The primary question I think still is whether the development “involves taking, or interfering with, a State resource”. Section 3.2.1(11) does not have the effect for which Mr Litster contends and notably, Ms Brien, counsel for the second respondent, did not support this submission.
Mr Gibson and Mr Williamson concede that in the circumstances here s 3.2.1(5) is engaged. Their argument is that the proposed road does not involve taking or interfering with a State resource.
The submissions on this point are set out in paragraphs 45 to 50 and 52 of their written submission:
“ 45. First, as paragraphs (35) to (42) of the Stockland decision demonstrate, the question of taking or interfering with a State resource is not resolved by simply looking at the development proposed and the general nature of the resource to which attention is to be directed. For example, before the Stockland decision, one may have been forgiven for thinking that the placement of a road on freehold land would constitute an interference with the bundle of rights attaching to that land. The decision in Stockland, however, emphasises the proposition that the question involves consideration of a much broader range of factors (such as the purpose for which the land was acquired or the purpose for which it may be used) in determining whether, in fact, there is a taking or interference with a State resource.
46. In this case, the road proposed on part of Lot 975 will be a public road and will not restrict the use of the land which presently facilitates public access to a waterfall. The proposed road will not restrict, hamper or clash with this public purpose. More likely, the proposed road will formalise and enhance access to the reserve (where the waterfall is located) for the public who presently take advantage of Lot 975 for such purposes.
47. Put simply, the enhancement of access to the reserve (waterfall) for the public is consistent with the implementation of the present purpose of Lot 975, being an ungazetted reserve facilitating access to a natural asset owned and controlled by the State.
48. Second, that the proposed road on part of Lot 975 is entirely consistent with the continued use of the land for a public purpose is an outcome encouraged by the Object of the Land Act 1994. The Object of this Act requires it to be administered having regard to a number of principles including:
“4 Object of this Act
In the administration of this Act, land to which this Act applies must be managed for the benefit of the people of Queensland by having regard to the following principles-…
Community Purpose
If land is needed for community purposes, the retention of the land for the community in a way that protects the community purpose” (emphasis added).
49. The proposed road will not cut across the achievement of this principle. Rather, the contrary is true. By providing a road on part of Lot 975, the State resource will be retained and public access through the land will be formalised (and arguably enhanced) for the benefit of the public. This is an indicator that the proposed road will not interfere with the State’s stewardship of the resource.
50. Third, the road will not result in taking a State resource in an absolute way or concrete way. Even with the road constructed, the State will continue to enjoy the bundle of rights attaching to the entirety of Lot 975. Those rights are presently used to facilitate a public purpose and will continue to subsist following construction of the proposed road.
…
52. Fourth, the State’s representative (DERM) has not put forward any evidence to suggest that the land is used, or intended to be used, for a purpose other than a public purpose. Furthermore, its representative has not sought to explain what the intended public purpose for the land is, nor has it sought to suggest that the use of Lot 975 for obtaining access to a waterfall (also located on the same State controlled land) is inconsistent with the notion of a public purpose. This is important because, in the absence of such evidence, a public road proposed on part of Lot 975 which seeks to extend an existing road and enhance access, is consistent with the notion of a public purpose”.
At present Waterfall Road ends at a cul-de-sac which presumably is used by members of the public either to park cars or as a set out point to enable them to walk down to the waterfall and to enjoy the views from that point. The effect of the proposed road is summarised in the written submission of Mr Gibson and Mr Williamson at paragraph 29:
“29. With respect to Waterfall Road, access was intended to be taken from this road by extending it in a southerly direction from the head of the existing cul-de-sac along the western boundary of Lot 975. The road extension would continue south up to and including the point where there is an intersection of the boundaries for Lot 367 on CG 286, Lot 2 on RP169511 and Lot 975. At the point where these boundaries intersect, the proposed road would “dog-leg” or turn ninety degrees so as to travel in an easterly direction through Lot 975, continuing along the northern boundary of Lot 367 on CG 286. The new road would terminate after it had travelled a substantial distance along the northern boundary of Lot 367 on CG 286”.
It is clear to me that the proposal, as it affects the USL, falls within the concepts of both a “taking” and “interference with a State resource” in the sense in which those words were construed by Keane JA in Stockland. I have already referred to the physical nature of the road and its construction and the change in tenure of (at least) part of the USL in the division of it into three lots. The part that would be taken as a road will have the effect (by reference to the Land Act1994) of alienating it from the stock of unallocated State land, and “hampering (and/or) hindering (with) the State’s stewardship of the resource”; by short circuiting the present rights of the State under the Land Act 1994 to deal with the land in various ways. From the perspective of DERM, as the applicant has made no application for tenure or road dedication over the USL, the evaluation of the USL and assessment of the appropriate tenure and use for the land including consultation has not taken place. It is clear from Mr Covey’s own affidavit that he and others walk on the USL and use it to access the waterfall and enjoy the views, and access the rock pools. It is hard to accept the argument now made that by creating a public road which will permit vehicular access to lots in the proposed development, somehow accords with the public purpose for which a part of the USL is now used.
It follows that I am satisfied that s 3.2.1(5) applied and therefore the development application was not a properly made application.
The Excusal Point
It is common ground that s 820(1) of SPA applies and provides to the court a wider discretion to excuse non-compliance with IPA than did its predecessor s 4.1.5A of IPA. The court’s discretion is framed in terms that it may deal with (non-compliance with s 3.2.1(5) of IPA) “in the way (it) considers appropriate”.
There is a preliminary argument made by the second respondent to the effect that as the non-compliance of s 3.2.1(5) cannot be excused by the assessment manager as it is a mandatory requirement, s 820(3) should not be construed to avoid the operation of IPA itself in the sense in which that is discussed by Keane JA at paragraph 64 of Barro. I think that submission overlooks the importance of the actual wording of s 4.1.5A which, as construed by the Court of Appeal, did not permit the Court to excuse non-compliance with s 3.1.2(5). Section 820(3) in my view expressly extends the power of this Court to all development applications, irrespective of whether they are properly made or not. Such a conclusion does not amount (as Ms Brien submits) to construing s 820(3) as “providing a statutory framework to overcome the Barro decision”. Barro was decided by reference to s 4.1.5A and of course did not consider the SPA and the approach I favour is supported by reference to the explanatory notes for the SPA (Extract ss 440, 818 and 820).
There are a number of matters that arise in the circumstances of the case that bear upon the broad discretion to deal with non-compliance in the way I consider appropriate.
Delay and Expense
Failure of Mahaside to comply with s 3.1.2(5) was not raised as an issue by Council until its letter of 17 February 2010, and in that time, as the bundle of documents reveals, there have been lengthy negotiations between Council and Mahaside and DERM as a concurrence agency which led to a reduction in intensity of the original proposal. Until that date, Council had treated the application as a properly made application. On the other hand, Mahaside incorrectly answered the question about interference with a State resource, and any interested person reading the application would have proceeded on the basis that the application did not involve the taking or interfering with a State resource. This is an important factor in relation to a development application which has attracted so much community interest in the form of 364 properly made submissions during the IDAS process. Clearly the costs associated with advancing the appeal are relevant, but Mr Covey ought to have known that a road over the USL might, at the very least, involve allocation of a part of a State resource to enable the proposal to proceed. Although there is no suggestion that anyone (from DERM’s predecessor or Council) raised the State resource issue with Mr Covey prior to this year, he should at least have been alerted to difficulties when he was told by Mr Courtney on 18 February 2005 that his chances of getting a road through the USL were “very slim”. Mr Covey dealt with other officers from the concurrence agency extensively over the time leading up to the adverse decision notice, but unfortunately had no further contact with Mr Courtney after 18 February 2005. I suspect that because of the timing of the commencement of s 3.1.2(5), some seven days prior to the application, it was simply overlooked by all parties including Mr Covey and those advising him, until Council’s letter.
There is some force in Ms Brien’s submission at paragraph 27 of her written outline that an applicant that proceeds with the making of a development application does so at its own risk where appropriate tenure arrangements have not been secured. As she notes, planning approval to carry out development is quite separate and distinct from requirements for the allocation of State land under the Land Act 1994.
The Attitude of the State
The State entity that has ownership and stewardship of the USL would not provide the required evidence pursuant to item 12 in Schedule 10 of the IPR if asked now. In paragraph 68-69 of their written submission Mr Gibson and Mr Williamson mount a strenuous attack on the relevance and/or weight of Mr Courtney’s evidence that if Mahaside now applied for evidence of resource entitlement for taking or interfering with the USL, he would not provide that evidence. In my opinion their criticism was a little unfair to Mr Courtney, and it also to some extent misses the important point; and that it is their client that has failed to seek the evidence required and has not complied with s 3.1.2(5) and has therefore not made a proper application. It is unfair because Mr Courtney’s affidavit earlier refers to a question asked of DERM by Mahaside’s lawyers in a letter to Crown Law dated 6 May 2010 to this effect:
“If your client, had it been requested by my client to provide evidence for the purposes of s 3.2.1(5) of the Integrated Planning Act1997, would have provided the same?”
Crown Law responded to the effect that at the date of making the development application on 11 October 2004, DERM would not have been prepared to provide the applicant with the necessary evidence.
It may be true that Mr Courtney did not at that time have delegated authority to decide applications in relation to such evidence. He received that authority on 22 November 2004. An attack on what Mr Courtney says would be the attitude of DERM now, in circumstances in which Mahaside’s own solicitors had asked (what Mr Gibson and Mr Williamson say is the right question), without referring to the earlier part of his affidavit is, as I say, a little unfair.
The reality is that on the present state of the evidence Mahaside is never going to be able to comply with s 3.1.2(5) given the attitude of the entity which owns and is charged with the stewardship of the USL.
The Extent of Taking and Interfering
Reference has been made to what are uncontested facts about the nature of the road itself and the effect of road dedication on the USL and the consequence of the limiting of the State’s ability to deal with the land under the Land Act1994. These are important factors in relation to the exercise of a discretion under s 820(1) of the SPA.
Conclusion
The non-compliance is not one that should in the circumstances here be excused under s 820(1). The application is dismissed. It would follow that the appeal in file No. 96/2007 should also be dismissed, but I will hear the parties before making that order.
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