Local Government - Town planning - Consent and approval of councils (development and like applications) - Objections - Power to allow representations after the expiry of the statutory period - How that power may be exercised. Land Use Planning and Approvals Act 1993 (Tas), s57. Land Use Planning and Approvals Regulations 1993 (Tas), reg11.

Hann

Counsel for 1st respondent: D R Armstrong

Solicitors for 1st respondent: Ogilvie McKenna

Counsel for 2nd and 3rd respondents: K A M Pitt QC

Solicitors for 2nd and 3rd respondents: Abetz Curtis and

Docking

ZEEMAN J This is an appeal against a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") made on 4 October 1994 that it had no jurisdiction to entertain two appeals to it instituted by the appellant and others. In each case the appellant and other persons claimed to have standing to bring the appeal by virtue of the Land Use Planning and Approvals Act 1993 ("the Act"), s61(5)(a). The Tribunal concluded that none of the persons who purported to appeal to it had made representations within the time limited by the Act, s57(5) and that therefore they could not avail themselves of s61(5)(a).

2. The notice of appeal, as amended, contains three grounds. The first of those grounds was not argued. The remaining grounds are as follows:

"2 The learned Tribunal erred in law in holding that it did

not have the power to excuse the failure to comply with

Section 57(5) of the Land Use Planning and Approvals Act 1993

by virtue of its powers under Section 22(2) of the Resource

Management and Planning Appeal Tribunal Act 1993.

3 The learned Tribunal erred in law in holding that '...

before it could be said that Council had allowed a further

period for representations it would be necessary for the

evidence to show that Council had adverted to the fact that

the representations were out of time and to have made a

decision to receive them notwithstanding that they were out

of time.'"

3. On a date which does not appear from the evidence, the second respondent made application to the first respondent, it being the relevant planning authority by virtue of the Act, s3(1), for a permit for the construction of house on land situate at Nos 1 and 2 Glebe Street, Pontville. The application was an application for a discretionary permit. It follows that it was governed by the Act, s57 which, so far as is relevant, provides as follows:

"57 (1) This section applies to an application for a permit

in respect of a use or development of a kind specified in a

planning scheme or interim order as being a use or

development which a planning authority has a discretion to

refuse or permit.

(2) The planning authority may, on receipt of an application

for a permit to which this section applies, refuse to grant

the permit and, if it does so

(a) it does not have to comply with subsection (3); and

....

(3) Unless the planning authority requires the applicant to

give notice, the authority must give notice, as prescribed,

of an application for a permit.

(4) A notice referred to in subsection (3) is, in addition to

any other matters required to be contained in it, to name a

place where a copy of the application, and of all plans and

other documents submitted with the application, will be open

to inspection by the public at all reasonable hours during

the period for which representations may be made.

(5) Any person may make representations relating to the

application during the period of 14 days commencing on the

date on which notice of the application is given under

subsection (3) or such further period not exceeding 14 days

as the planning authority may allow.

...."

4. Regulations have been made for the purposes of s57(3) in the form of the Land Use Planning and Approvals Regulations 1993, reg11. That regulation provides as follows:

"11 Notice by a planning authority under section 57 (3) of

the Act of an application for a permit is to

(a) be advertised in a daily newspaper circulating generally

in the area; and

(b) be displayed at the planning authority's office; and

(c) be served on the owners and occupiers of any properties

adjoining the land the subject of the application; and

(d) describe the content of the development proposal and the

location of the affected area; and

(e) contain a statement advising of the right of any person

to make representations in accordance with section 57 (5) of

the Act; and

(f) be displayed in a size not less than A4 on the land the

subject of the application as near as possible to each public

boundary."

5. The first respondent neither proceeded under s57(2) nor required the second respondent to give notice of his application, as permitted by s57(3). It follows that the first respondent was required to give notice of the application in accordance with s57(3). The appellant was the owner of land adjoining the land the subject of the application so that reg11(c) required that he be served with notice thereof. He was so served on 9 February 1994 when notice was sent to him by post. By virtue of the Act, s84(a)(ii) the notice was effectively served on the appellant upon it being placed in the post. The requirements of reg11(a) and (b) were satisfied on the same day.

6. Regulation 11(e) requires that a notice contain a statement advising of the right to make representations in accordance with s57(5). In apparent purported compliance with that requirement, the notice sent to the appellant stated that he was entitled to make representations during a "period of fourteen (14) days from the 9th of February 1994". That form of words may be contrasted with that which appears in s57(5). The appellant made representations to the first respondent concerning the application on 23 February 1994. On or about 31 March 1994 the first respondent granted a permit to the second respondent. The evidence before the Tribunal does not disclose whether the representations made by the appellant were taken into account before the permit was granted. On 12 April 1994 the appellant, together with other persons, lodged a notice of appeal with the Tribunal in relation to the first respondent's decision to grant a permit to the second respondent.

7. At a time subsequent to the making of the second respondent's application for a permit, the third respondent applied to the first respondent for a permit to which s57 applied. The third respondent sought a permit for the subdivision of the same land as that which was the subject of the second respondent's application. Again the first respondent proceeded to give notice as required by s57(3). In particular, it gave notice to the appellant as adjoining landowner by posting a form of notice to him on 8 June 1994. By this notice the appellant was informed that he was entitled to make representations during a "period of fourteen (14) days from 8th June 1994". On 22 June 1994 the appellant made representations to the first respondent concerning the application. There was no evidence before the Tribunal as to whether the first respondent had regard to those representations before granting the permit on or about 18 July 1994. On 27 July 1994 the appellant and other persons lodged a notice of appeal with the Tribunal in relation to the first respondent's decision to grant a permit to the third respondent.

8. The appellant argues that the powers conferred upon the Tribunal by the Resource Management and Planning Appeal Tribunal Act 1993, s22(2) are wide enough to enable the Tribunal to excuse the failure of the person who has made representations to make it within the prescribed period and thereby confer upon such person a right of appeal which prima facie is not conferred by the Act. That submission was put to the Tribunal but rejected by it. Section 22(2) provides as follows:

"22 ...

(2) Where a person appeals, or purports to appeal, to the

Appeal Tribunal and it appears to the Appeal Tribunal that

(a) a failure to comply with a requirement of this Act or of

another Act or law affects the appeal or purported appeal;

and

(b) it would not be unjust or inequitable to exercise the

powers conferred by this subsection -

the Appeal Tribunal may excuse the failure by ordering that,

subject to such conditions as may be determined by the Appeal

Tribunal, the requirement be dispensed with to the necessary

extent."

9. Counsel for the appellant referred me to a number of decisions concerning the construction of a somewhat similar provision, in the form of the Planning Act 1982 (SA), s35(1), which, he submitted, are authority for the proposition that in the exercise of the powers conferred by s22(2) it was open to the Tribunal to excuse the failure of the appellant to make representations during the period of fourteen days commencing on the date on which notice of the application was given to him and thereby effectively conferring a right of appeal upon him.

10. The South Australian provision provided as follows:

"35 (1) Where a person appeals, or purports to appeal, under

this or any other Act to the Tribunal or appeals, or purports

to appeal, against a determination or decision of the

Tribunal to the Land and Valuation Court, and it appears to

the Tribunal or the Court that

(a) the appeal, or purported appeal, or the decision, or

purported decision, against which the appeal, or purported

appeal, has been brought is affected by a failure to comply

with a requirement of this Act, or of any other Act or law;

and

(b) to exercise the powers conferred by this subsection would

not be unjust or inequitable,

the Tribunal or the Court may excuse the failure by ordering

that, subject to such conditions as may be stipulated by the

Tribunal or the Court, the requirement concerned be dispensed

with to the necessary extent."

11. I accept the submission that in substance this provision is indistinguishable from s22(2). The principal case relied upon by the appellant concerning the construction of s35(1) is R v South Australian Planning Commission; ex parte City of Unley (1986) 44 SASR 100. It appears from the report of the case that the relevant planning legislation provided that normally the relevant local authority, in that case the City of Unley, was the authority upon which the power to grant or refuse planning permits was conferred but that in cases where the local authority had an interest in the subject matter of the application it was required to transmit it to the Planning Commission, at least if it was minded to refuse it. In such a case that body was required to exercise the jurisdiction normally exercisable by the local authority. The particular application was made to the local authority in the normal way but because that authority owned abutting land, which conferred upon it the right to make representations concerning the application, it was required to, and did, transmit the application to the Commission. When it transmitted the application, the local authority also forwarded to the Commission a report recommending the refusal of the application. Nevertheless, the Commission was required to give notice of the application to the local authority pursuant to a provision similar to reg11 and, upon being given such notice, the local authority was entitled to make representations concerning the application. Neither the report nor the recommendation contained in it constituted the making of a representation in the terms of the relevant Act because the period of time within which representations might be made had not yet commenced when the report was forwarded. The Commission granted a permit. The local authority instituted an appeal to the Planning Appeal Tribunal, relying on a provision similar to the Act, s61(5)(a). The tribunal declined to entertain the appeal on the basis that it lacked jurisdiction, the local authority not having made a representation the making of which conferred a right of appeal.

12. The South Australian Full Court held that, although the local authority had not made a representation within the statutory period and therefore did not have a right of appeal, s35(1) permitted the tribunal to remedy that situation. Accordingly it upheld the appeal and made the orders which it concluded the Tribunal should have made, namely that the failure of the Commission to give notice to the local authority be excused, that the report forwarded by the local authority should stand as and be deemed a representation duly made to the Commission and that the local authority's appeal to the Tribunal be deemed duly instituted in accordance with the relevant statutory provision.

13. In dealing with s35(1) and its application to the case before the court, Jacobs J said at 105-106:

"... I see no reason why that section should not be given a

wide, ample and benevolent construction, according to its

tenor. It replaces a section, in quite different terms,

under which the remedial powers of the Tribunal and the court

were very restricted. It is designed, and intended, inter

alia, to dispense with strict and literal compliance with the

procedural requirements of the Act and regulations, when it

would not be unjust or inequitable to do so, in order to

promote the resolution of planning issues, which is the

ultimate aim and purpose of the legislation. Examine what

has occurred. The Council has in fact made a submission on

the planning merits, but that submission does not, as a

matter of law, have the status of a representation, or

constitute the Council as a representor with a right of

appeal, because the submission was not made in response to a

notice under s 53 and the relevant regulations. It was not

so made because the Commission failed to comply with relevant

requirements of the Act or regulations, or even perhaps

because the Council failed to repeat its submission, as a

representation, in response to the public advertisements it

is to be observed, in parenthesis, that a representor has a

right of appeal whether or not a right is claimed to be heard

by the planning authority in the first instance. Section

35(1) expressly embraces a 'purported appeal', so it is no

answer that because there is no appellant, there is no

appeal; and the 'purported appeal' is clearly 'affected' by

the failure to comply with the Act and regulations because it

is incompetent unless the failure can be excused. If the

failure is excused, there is in my opinion no obstacle to

treating the submission that has in fact been made as the

representation that would have been made had the parties

obeyed the proper procedures. The language of the section is

wide enough to permit the Tribunal 'to treat as done that

which ought to have been done' if it would not be unjust or

inequitable to do so. The Commission cannot claim that its

planning decision ought to be immune from challenge before

the Tribunal, if that immunity is held to arise from its own

default, and in fairness to the Commission, its counsel made

no such claim. The Commission was for the most part content

to abide the decision of the court, leaving it to the trust

to resist the appeal to this Court, and defend the procedure

followed by the Commission. Nor can it be unjust or

inequitable to the trust to treat the planning decision in

its favour as immune from challenge on the merits, when the

planning decision itself was reached without proper regard to

the planning process, and would not have been so immune had

due process been followed."

14. As I read the judgments of the other members of the court, Legoe and Olsson JJ, they essentially express agreement with the views expressed by Jacobs J. Although neither of their Honours specifically dealt with the precise basis upon which s35(1) could be called in aid, each agreed that it authorised the making of the orders made by the court. Critical to the reasoning of Jacobs J is the identified failure to comply with a requirement of the relevant Act, namely the failure of the Commission to comply with the positive requirement imposed upon it to give notice of the application to the local authority as the owner of adjoining land. His Honour considered that that failure might be, and ought to be, excused and excused on terms which had the effect of regularising the appeal to the Tribunal. The alternative was to grant certiorari to quash the Commission's determination upon the basis that it had been made before it had given notice to the local authority.

15. It follows that that case was concerned with a true failure to comply with a requirement of the relevant Act, in that the Commission had failed to do something which by law it was bound to do, rather than a failure to do, within the prescribed time, something which was permitted by the Act to be done. The present case falls into the latter category so that the decision in R v South Australian Planning Commission; ex parte City of Unley (supra) does not directly deal with the question which I am required to determine.

16. The other cases relied upon by the appellant for the purpose of ground two are Kammerman v South Australian Planning Commission (1986) 42 SASR 395, Tobin Pty Ltd v South Australian Planning Commission (1989) 68 LGRA 372 and Clothier v South Australian Planning Commission (1989) 68 LGRA 365. In the first of those cases, the South Australian Act, s35(1) was construed as conferring upon the Planning Appeal Tribunal the power to dispense with the requirement that notice of appeal from a decision had to be given within twenty-one days of the decision. That conclusion was reached by reference to a legislative history indicative of an intention on the part of the legislature to confer such a power by force of s35(1). That reasoning is not relevant to s22(2) because of an absence of a similar legislative history. In particular the law has never made specific provision whereby the Tribunal, or its predecessor the Planning Appeal Board, might extend the time within which an appeal to it may be instituted. In Kammerman the court relied on such an earlier provision as being indicative of an intention on the part of the legislature that the powers conferred by s35(1) include a power to extend the time for appealing. The reasoning in that case might well be relevant to the question of whether the failure of a notice of appeal to the Tribunal to conform to some legal requirement may be excused under s22(2) because previously such a failure was capable of being excused by the Planning Appeal Tribunal pursuant to the Local Government Regulations 1978, reg9A(2). Prior to the enactment of s22(2), reg9A was the only instance of a provision whereby a party to a planning appeal might be relieved from the consequences of strict compliance with the law.

17. Tobin Pty Ltd v South Australian Planning Commission (supra) was another case where the South Australian Planning Commission failed to comply with a statutory provision requiring it to give notice. Not surprisingly Matheson J followed R v South Australian Planning Commission; ex parte City of Unley (supra) and held that the Tribunal had erred in holding that it did not have the power to excuse that failure. The facts of Clothier v South Australian Planning Commission (supra) were on all fours with the present case. It concerned an appeal to the Planning Appeal Tribunal by an appellant who had made representations after the expiration of the time limited for that purpose. The effect was that that appellant was not a person upon whom the relevant Act conferred a right of appeal. The Planning Appeal Tribunal was asked to exercise its powers under the South Australian Act, s35(1) by excusing the appellant from the consequences of having made his representations late. It seems that it accepted that s35(1) conferred upon it the power to comply with that request but that it declined to exercise such power as a matter of discretion. In dealing with the appeal, Jacobs J gave close consideration to the exercise by the Tribunal of its discretion and concluded that it had not miscarried. He assumed that s35(1) was wide enough to permit the Tribunal to excuse an appellant from the failure to make representations within time, but otherwise gave no consideration to that question. It was unnecessary to decide that question because a conclusion that, assuming that the Tribunal had jurisdiction, its discretion did not miscarry was sufficient to dispose of the appeal. I do not consider that case to be authority for the proposition that s22(2) would have authorised the Tribunal to make the orders which, by ground two, the appellant asserts it had jurisdiction to make.

18. I conclude that none of the cases cited by the appellant are authority for the proposition that s22(2) authorised the Tribunal to relieve the appellant from the consequences of not having made representations within the period specified by the Act, s57(5), if in fact he failed to do so. Section 22(2) is not concerned with each and every failure. It is only concerned with failures to comply with "a requirement of this Act or another Act or law". The word "fail" is notoriously difficult to construe. As was pointed out by Kirby P in CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 at 608-609 that word lends itself to a variety of constructions. The same may be said of the words "comply" and "requirement".

19. Section 22(2)(a) ought to be construed as at least extending to the following circumstances:

(a) where the Act or some other law imposes a positive

obligation upon some person to do something, that person does

not discharge that obligation and the failure of that person

to discharge that obligation affects the appeal or purported

appeal; and

(b) where the Act or some other law imposes a positive

requirement directly concerning the appeal or purported

appeal, such as a requirement as to the manner or time within

which an appeal is to be instituted, and that requirement is

not observed.

20. The present case does not fall into either category. The appellant's difficulty is that, if it is the case that he did not make representations within the time limited by the Act, s57(5), he had no standing to bring the appeals because he is not a person upon whom the Act confers a right of appeal. It was not a requirement of the Act that he make representations within the period specified by s57(5). He was permitted to do so. I do not consider that s22(2) is capable of being utilised so as to confer a right of appeal upon a person who otherwise does not have, and never has had, such a right in circumstances where that situation is not the result of any person having failed to discharge an obligation imposed by law. That view is consistent with that taken in Dawson (Bradford) Ltd v Dove (1971) 1 QB 330 at 335 and accords with the views expressed by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 258-259 and the authorities there referred to.

21. It was entirely a matter for the appellant whether he made representations or not. If he made them as permitted by s57(5), then the Act conferred upon him a right of appeal. If he did not, then he had no right of appeal. In such event he did not fail to comply with any requirement of the Act, but rather failed to do that which, had he done it, conferred upon him a right of appeal in the event that the first respondent were to grant a permit. It follows that I am not persuaded that ground two is made out.

22. Ground three takes issue with a specific passage appearing in the written reasons given by the Tribunal for its decision. In the submission of counsel for the appellant, by that passage the Tribunal is to be taken as having held that as a matter of law the power to extend time conferred by s57(5) is only capable of being exercised by a planning authority in circumstances where it has received a representation outside the period of fourteen days commencing on the date on which notice of the application was given and by then making a conscious decision to receive that representation notwithstanding its receipt after the expiry of the prescribed period of time.

23. It ought to be mentioned that immediately following the passage from the Tribunal's reasons which appears in ground three the Tribunal observed that "(i)ndeed it might be argued that a further period not exceeding fourteen days would need to be allowed before the initial period of fourteen days had expired". That observation is entirely inconsistent with that which preceded it. As it only refers to an argument which the Tribunal thought might be open it may be thought to have no significance. In any event, if the preceding passage is to be taken as expressing the opinion that a planning authority may only allow further time by a conscious decision to exercise the power to do so conferred by s57(5), the Tribunal ought to be taken as having conceded the availability of an argument that the power may only be exercised by allowing a further period before the expiration of the prescribed period in the knowledge that it was extending the prescribed period. Whether a planning authority may only allow further time by a conscious decision to do so, as distinct from allowing a period greater than fourteen days without adverting to the fact that that is what it is doing, is central to the question which is raised by ground three.

24. Counsel for the second and third respondents submitted that the passage from the Tribunal's reasons the subject of ground three ought to be read in the context of the way in which the case was conducted before the Tribunal and that, so read, it is to be taken, not as an expression of the Tribunal's view as to the only circumstances in which a planning authority may exercise its power under s57(5) to allow further time, but as a response to the only submission made to it as to a basis upon which the Tribunal should conclude that the first respondent had exercised that power. I do not accept this submission. A reading of the transcript of the proceedings before the Tribunal indicates that little attention was given to this matter. The evidence and most of the argument were directed to the matters the subject of ground two. It is reasonable to say that the question of whether the first respondent had allowed the appellant further time in accordance with s57(5) was never really argued before the Tribunal. The relevant observations made by the Tribunal were not a response to a particular submission or a particular way in which the appeals to it were argued. I accept that the views expressed by the Tribunal which are the subject of ground three are to be construed in the way contended for by counsel for the appellant.

25. The absence of sufficient relevant argument before the Tribunal is not fatal to the appellant relying on ground three. The Tribunal was bound to exercise the jurisdiction conferred upon it. The second and third respondents contended that it did not have jurisdiction. The Tribunal upheld that submission. If it did so on the basis of a misapprehension of the law and if, on a correct understanding of the law, it should or might have come to a different conclusion its determination cannot stand. If it should have come to the conclusion that it had jurisdiction then it ought to be required to hear and determine the appeals on their merits. If it might have come to that conclusion, then it ought to further consider the matter of jurisdiction in accordance with the law and, if it determines that it has jurisdiction, proceed to hear and determine the appeals. Alternatively, it may be that in such event the Resource Management and Planning Appeal Tribunal Act, s25(6)(b) would enable me to actually determine the question of jurisdiction.

26. On the basis of uncontradicted evidence the Tribunal found as a fact that the forms of notice served on the appellant in compliance with reg11 stated that he was entitled to make representations in the first case "during a period of fourteen (14) days from the 9th of February 1994" and in the second case "during a period of fourteen (14) days from the 8th June 1994". There was no evidence before the Tribunal as to the circumstances in which the first respondent came to give notice in this form. In particular there was no evidence that by giving notice in this form it intended to allow any time for the making of representations beyond that prescribed by s57(5). There was no evidence whether the first respondent had had regard to the appellant's representations or whether it had otherwise done anything by way of allowing a further period for the making of representations after receiving a representation from the appellant. If the Tribunal was correct as a matter of law as to what is required of a planning authority before it can be said that it has allowed further time pursuant to s57(5) then, on the facts, it could not but have concluded that the first respondent had not allowed further time.

27. The question is whether by giving notice to the appellant in the form in which it was given the first respondent may be taken as having allowed further time, and in particular such further time that the representations which were made by the appellant were within the further time allowed. If that was open to the Tribunal then it erred in failing to give consideration to that question and in excluding that question from consideration.

28. The Act, s57(5) specifically provides that a representation is to be made during the period of fourteen days commencing on the date of which notice of the application is given. The Tribunal clearly was correct in holding that neither of the representations made by the appellant was made within this period because in each case the appellant made his representation on the day after the expiration of the relevant period. The statement made in each of the notices to the effect that the appellant might make a representation during a period of fourteen days "from" the date on which notice of the application was given is not necessarily to the same effect as a statement that a representation might be made during a period of fourteen days "commencing on" that date. The weight of authority appears to support the proposition that the word "from" is akin to "after" and that when used in reference to the computation of time, prima facie it excludes the day from which it is to be computed (see The South Staffordshire Tramways Co Ltd v The Sickness and Accident Assurance Association Ltd (1891) 1 QB 402) although in particular circumstances it may be construed as being inclusive of that day (Wilkinson v Gaston [1846] EngR 737; (1846) 9 QB 137 at 146). It follows that it was open to the Tribunal to construe the notices given to the appellant as conveying to him that the period within which he might make representations was longer by one day than the period of fourteen days commencing on the day on which notice of the application had been given. In each case the appellant made his representation within such extended period. Had the Tribunal so construed the notices and if, by the giving of notices in such form, the first respondent is to be taken as having allowed an extra day for the making of representations the Tribunal had jurisdiction to entertain the appeals and should have exercised that jurisdiction.

29. The question remains whether by giving notice in the form which it gave to the appellant the first respondent can or ought to be taken as having allowed a further period of one day as authorised by s57(5). Counsel for the second and third respondents submitted that before it can be said that a person has allowed something, there must be some direct or indirect sanction thereof and that a person cannot be said to have allowed something of which he is unaware. Counsel relied upon the discussion of the meaning of the word "allow" by Richards J in DeKuyper v Crafter (1942) SASR 238 at 243- 244 and the authorities there referred to. I accept that submission but its acceptance does not necessarily lead to the conclusion that the first respondent did not, by reason of the form of the notices which it gave to the appellant, allow further periods. In one sense the submission begs the question. It provides no assistance in determining what it was of which the first respondent was required to be aware when it gave the notices before it could be said that thereby it allowed additional time.

30. Each of the notices given to the appellant by the first respondent was given in conformity with the requirements of s57(3) and reg11(e). Regulation 11(e) required that by each notice the appellant was advised of his right to make representations in accordance with s57(5). The nature and extent of that right may vary depending on whether or not the relevant planning authority has exercised its undoubted right to allow a period in excess of the prescribed period of fourteen days within which such representations are to be made. By giving a notice which informs the recipient that he has such a right, the last day for the exercise of which is the last day of the period of fifteen days commencing on the date on which notice of the application was given, a planning authority is to be taken as having allowed one day longer than the prescribed period. Each of the notices given to the appellant is capable of being so construed.

31. I do not accept the submission made by the second and third respondents that before it can be said that the first respondent allowed a further period under s57(5) it must be shown that the first respondent consciously determined to allow a further period by way of an exercise of its statutory power, knowing that that was what it was doing. By giving the notices to the appellant, the first respondent is to be taken as having been quite aware of what it was doing, ie fixing a period within which representations might be made. In that sense it allowed a particular period for that purpose, being a period which may well have expired on a date later than the prescribed period. If the period allowed expired on a date later than the prescribed period the first respondent is to be taken as having exercised the power conferred by s57(5) accordingly. Whether in allowing that period it was conscious of exercising the power conferred by s57(3) is of no relevance. The giving of the notice and the prescription by it of a period within which representations might be made both are to be taken as being the conscious acts of the first respondent. Beyond that nothing further was required before it can be said that a relevant notice constitutes the allowance of a further period.

32. It follows that the Tribunal misdirected itself as to a matter of law as asserted by ground three. By reason of that error of law, it failed to have regard to evidence by reason of which it might well have concluded that it had jurisdiction to entertain the appeals. It follows that the Tribunal erred in law in determining that it lacked jurisdiction to determine the appeals upon the basis asserted by ground three. Its decision to this effect must be set aside.

33. Although not argued, it is appropriate to mention one other aspect of the case. If I am wrong as to ground three the inevitable result may well be that the forms of notice given to the appellant did not conform to the requirements of reg11(e) in that, although they advised the appellant of the right to make representations, they so advised him in terms other than those which accorded with s57(5). If the notices did not conform to reg11(e), in each case there was a failure of the first respondent to give notice as required by s57(3) resulting in the period mentioned in s57(5) not yet having commenced. Although that would lead to the conclusion that the appellant did not have standing to appeal, an application of the reasoning of Jacobs J in R v State Planning Commission; ex parte City of Unley (supra) to s22(2)(a) would require the conclusion that the Tribunal had the power to make orders of the type made in that case. Such orders would have had the effect of regularising the position of the appellant. On the facts of this case it is difficult to see that, assuming jurisdiction, the proper exercise of the discretion could lead to any result other than that the appellant should have such relief in the event that it were to be sought.

34. The appeal is allowed and the decision of the Resource Management and Planning Appeal Tribunal that it has no jurisdiction to determine appeals 57b/94 and 136/94 is set aside. I will hear counsel further as to what consequential orders, as required by the Resource Management and Planning Appeal Tribunal Act, s25(6)(b), ought to be made.