52 The DCP was made under the former s 72 of the EP&A Act and continues by virtue of the savings and transitional provisions in Sch 6 of the EP&A Act (see Div 3, cl 194). Section 74C(1)(c) now provides that councils may make a DCP which provides for or excludes public notification of a development application for a specified development. That section is in similar terms to the former s 72.
53 The DCP requires that:
(a) under cl 3.1 all local residents who may reasonably be affected by a development proposal are to be notified of the proposal
(b) notification under cl 3.1 was to be effected by sending letters to the owners and occupiers of surrounding properties listed in the relevant table, Table 1
(c) under Table 1, for alterations or additions to a two storey dwelling house, notifications must be sent to properties on either side and in the street at the rear.
54 In Lesnewski Tobias JA held at [60] that "a breach of s 79A(2) does not necessarily lead to the conclusion that there has been a denial of procedural fairness" as a minor non-compliance may not amount to a denial of procedural fairness. His Honour considered it was inappropriate to express any findings as to whether any particular non-compliance with the relevant notifications DCP was a breach of procedural fairness in that case. Lesnewski did not consider the circumstances of this case. Nor does it stand for the proposition for which it was relied on by the Applicant that actual provision of the notification under the DCP to adjoining properties, meaning physical delivery in such a way that the notice comes to the attention of the relevant person, was required.
55 The Council's undisputed evidence is that altogether seven letters were posted by pre-paid post to the Applicant or his company Brighton International in the usual way by the Council's administrative officer Ms Hazelman. The Applicant's evidence is that he is the managing director of Brighton International. The letters addressed to the Applicant were sent to 110-112 and 112 Ida Street and 65 The Grand Parade. The letters sent to 110-112 and 112 Ida St would have been diverted to 65 The Grand Parade in accordance with the mail redirections. Letters were also sent to "The Occupier" at 108 and 110-112 Ida Street. Two letters were also sent to Brighton International Pty Ltd, one at 108 Ida Street redirected to 65 The Grand Parade and one to 65 The Grand Parade. The letter marked "return to sender" was not addressed to the Applicant but rather "The Occupier". As asserted by the Council this evidence suggests that delivery to 65 The Grand Parade by Australia Post took place for all the letters identified as sent by the Council's officers apart from the one letter returned to sender. Mr Grima's evidence confirms that this address is the last known business address for the Applicant.
56 This evidence suggests the terms of the DCP and therefore the EP&A Act have been complied with, regardless of whether s 153 of the EP&A Act applies, as several letters were sent to the Applicant by the Council based on the evidence of Ms Hazelman. The fact that a letter addressed to "The Occupier" at 110 Ida Street was returned to sender does not give rise to a failure to comply with the DCP. It is the Applicant's evidence that none of the letters referred to in Ms Hazelman's evidence were physically received by him or drawn to his attention by his staff. As his evidence does not preclude the letters having been placed in the letter box by a postman it is necessary to consider the application of s 153. azelmaH
Does s 153 of the EPA Act apply and what effect does it have?
57 The Council submitted there is an irrebuttable presumption in s 153(2) that service of a notice is effected under s 153(1)(a)(ii) by sending a notice by prepaid post at the usual or last known place of business of a person. Further the Council argued that s 153 operated to the exclusion of s 76 of the Interpretation Act. I will consider firstly whether s 153 applies and secondly its legal effect if it does.
(i) Does s 153(1) apply?
58 The Applicant submitted s 153 of the EP&A Act did not apply because it was concerned only with a "notice" where specified in the Act. The requirement to notify development applications under s 79A(2) of the EP&A Act is not a "notice" or "document" to which s 153 applies because s 79A(2) does not use those words. Rather it refers to notification or advertising in accordance with a DCP. There is no definition of notice or document in the Act. The opening words of s 153 state that if the Act requires that any notice or document be given to any person it may be given in the way specified in the section.
59 A general principle of statutory construction is that if general words are used, they will be given their plain and ordinary meaning unless the contrary is shown. (DC Pearce and R Geddes, Statutory Interpretation in Australia (6th ed, 2006) 43). Both "notice" and "document" have a wide ordinary meaning. There is no indication from a reading of the Act and s 153 that these words should be limited only to a "notice" or "document" where these words specifically appear. The Applicant did not refer in its argument to any specific example of where those words appear in the Act apart from s 153 as the sections to which s 153 is directed. The words "Where under this Act any notice or other document is required to be given to or served upon any person" in s 153 should be given a broad meaning in the context of this legislation. I consider that the requirement to notify development applications referred to in s 79A(2) is a requirement that s 153 applies to if that notification is required to be by letter (document), as the DCP requires in this case.
What is the effect of s153(2)?
60 The next issue to consider is what is the legal effect of s 153. Under s 153(2) a notice or document is deemed to be served or given at the time the notice would be delivered in the ordinary course of post. The issue arises of whether 'deemed to have been given or served' gives rise to an irrebuttable presumption of service or giving of a document. I have not been referred to any case considering the operation of s 153(2) specifically. As identified by Gleeson CJ in Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203:
It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word "deemed", as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist: see, eg Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696 per Griffith CJ.
61 In Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Griffith CJ stated that "deemed" is more commonly used for the purpose of creating a "statutory fiction" and it is very important to consider the purpose for which the statutory fiction is created (at 696). There are several cases referred to by the Council which have considered similar provisions in relation to the service of documents and/or notices to determine if these provide an irrebuttable presumption of service. Of greatest relevance is the decision of Muli Muli which considered s 710 of the LG Act which concerned service of notices under that Act. Section 710 states:
(1) A notice required by or under this Act to be served on a person may be served as provided by this section.
(2) The service may be:
(a) personal, or
(b) by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or
(c) by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or
…
(8) Proof by affidavit or orally that a notice has been posted, or its transmission by electronic mail has been initiated, in accordance with this section is conclusive evidence of service.
62 Section 710 does not contain a "deeming" provision such as s 153(2) but rather provides in s 710(8) for conclusive evidence of service by means of sworn oral or written evidence. The effect of the two sections is therefore similarly conclusive of service.
63 Tobias JA (Ipp JA and Brownie A-JA concurring) held at [35] (see par 38 of Council's submissions) that the act of posting a prepaid notice, addressed as the subsection required, completed the act of service. The primary issue in the case concerned the time of service which Tobias JA held was at the same time that service was effected by posting the letter (at [37]). There was no issue raised concerning non-receipt of the relevant rate notice, unlike the circumstances before me. The appellant council argued that s 710 when read as a whole provided not only for the permissible means or modes of service but also the time of service, thereby rebutting s 76(1)(b) of the Interpretation Act. Tobias JA essentially agreed with that submission.
64 At [30] his Honour held:
Section 710(2) sets out seven modes of service. Section 710(4)(b) and (c) add a further two modes. It is important to appreciate, and was properly acknowledged by the respondent, that with the exception of personal service, none of the other eight modes requires the person to be served actually to receive the notice before service may be taken to be effected. By "effected" I mean no more than that service is taken to have occurred in the manner prescribed. Nor, in my opinion, does it necessarily follow that because s 710(2) and (4)(b) and (c) provide for differing modes of service, it is necessary to look outside the section to ascertain when service has been effected in the sense referred to.
65 At [44] - [45] his Honour held:
However, as I have already observed, it is clear from the various modes of service referred to in s 710 (other than personal service) that service may be effected without there being any proof or requirement that the notice has actually been received by the person to be served. Thus, for instance, a young person (albeit over the age of 14) with whom a notice is left pursuant to the mode of service referred to in s 710(2)(b) may lose the notice and not tell anyone about it. Again, a building to which a notice is affixed pursuant to the mode of service referred to in s 710(2)(e) may be destroyed by fire before it comes to the attention of the addressee. Such events are inherently unlikely to occur and certainly would be very much the exception rather than the rule.
The imagination of counsel can always proffer examples (often somewhat extreme) of unfairness, but these must be balanced against two considerations. Firstly, the legislature has not made it a requirement of the service of council notices that they actually be received by the person to be served. Secondly, and certainly in the case of posting a notice, the chances of the letter containing the notice being destroyed or going astray before it reaches its destination should fairly be regarded as reasonably remote although, of course, not out of the question. In these circumstances, I do not regard the somewhat remote possibility that the post office at which the letter containing the notice is posted might be destroyed by fire or other catastrophe or, perhaps, the less remote possibility of industrial action delaying delivery as militating against what I regard as the clear intent of the legislature that the act of posting the notice in accordance with the requirements of s 710(2)(c), at least where proven, should constitute conclusive evidence that service by that mode has been "effected" at the time the letter containing the notice is posted. It follows from that conclusion that in the present case the date of posting the subject notice constituted the date of its service, namely, 31 July 2003.
66 Further cases referred to by the parties considered whether notification for service had occurred where there was not physical receipt in different statutory schemes. In Muli Muli Tobias JA referred at [31]) to Deputy Commissioner of Taxation v Taylor [1983] 2 NSWLR 139 and Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271, which cases dealt with the service of notices under the Income Tax Assessment Act 1936 (Cth). In Gruber the relevant section provided that a notice may be served by leaving it at, or sending it by post to, an address that appears from Australian Securities Commission documents to be the person's place of residence or business. Similarly in Taylor if no address for service was given or a change of address was not notified, the address for service under the regulations was as in any record held by the Commissioner. Compliance with those sections was held to be sufficient for the purposes of proving service, in that receipt was not necessary.
67 Several decisions of the Federal Court have considered the operation of the service of document provisions of the Migration Act 1958 (Cth) in migration appeals before the Refugee Review Tribunal (RRT). In SBSC Lander, Rares and Besanko JJ considered s 441A of the Migration Act, which required the service of notices inviting the applicant to appeal under s 425A of that Act by sending the document to the last residential address for service provided to the Tribunal by the recipient. It was found to be satisfied despite both letters (notices) being returned to the RRT as sender. Section 441A is a similar provision to s 153. This decision applied NADK, where it was held that as notification of the hearing was sent by prepaid post to the address for service nominated by the applicant, the RRT had complied with s 441A. Thus the primary judge had been correct in holding that the fact the applicant was unaware of the hearing was of no legal relevance, per Tamberlin, Sackville and Hely JJ at [16].