A period of time described as beginning from or after a stated day, act or event does not include the stated day or the day of the stated act or event.

1. Also relevant is the definition of 'working day' in s151B of the Legislation Act, which states that a working day means -

(a) for doing something at an office (however described) of a

public entity where the thing must or may be done - a day when the office is open; and

_(b) for doing anything else - a day that is not - _

(ii) a public holiday at the place where the thing must or may be done ....

The combined effect of sections 151(3) and 151B of the Legislation Act is that the public consultation period commenced on 26 May 2009 (the day after the DA was notified) and ran for 15 working days until 16 June 2009. The Queen's Birthday holiday on 8 June 2009 did not count as a working day.

The Tribunal finds that the public consultation period applying to the DA ran from 26 May 2009 to 16 June 2009 and the applicant made a representation within that period on 15 June 2009.

The DA was approved by the respondent on 22 July 2009. The letter giving notice of the decision was sent by the respondent by post on 28 July 2009.[6] The applicant made an application to the ACT Civil and Administrative Tribunal ('the Tribunal') to review the decision to approve the DA. The application was received at the Tribunal registry on 26 August 2009.

In the 'Application for Review of a Decision' form, the applicant wrote '28 July 2009' next to the question: 'Date you received decision'. However, in his statement tendered into evidence,[7] the applicant said that the 28 July 2009 date that he wrote on the on the application form was a mistake and he actually received the notice of decision on 30 July 2009. The applicant gave further evidence that he sent the application form by express post from Sydney on 21 August 2009. The Express Post receipt was admitted into evidence[8] and Annexure A of the applicant's statement is a letter from Australia Post which confirms that letter BN8306076 was scanned by Canberra GPO on 24 August 2009.

Section 409(2) of the Planning Act states that where an application for review is made by a person other than the applicant for the DA, the application for review must be made not later than 4 weeks after -

(a) for a decision to which section 176 (When development approvals take effect - single representation with ACAT review right) applies - the day the person was told about the decision.

1. Section 409(2)(a) applies to this case because there was a single representation - that made by Mr Watson, the applicant in the current proceedings.

2. Section 10(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) ('the ACAT Act') states that the application to the tribunal must be made within 28 days after the day the decision to be reviewed is made. However, s 10(3) states as follows:

(a) if notice of the decision is given to the person later than 5 days after the day the decision is made - the application may be made within 28 days after the day the notice is given.

1. The respondent submitted that s 409(2)(a) of the Planning Act is the applicable provision, based on the generalia specialibus rule, rather than the general provision in s10(3) of the ACAT. The Tribunal accepts this submission. Moreover, the proposition that s 409(2)(a) of the Planning Act is the applicable provision is further supported by s 11 of the ACAT Act which states that the right under an authorising law to make an application to the tribunal is subject to any condition stated in the authorising law.

2. Section 409(2) of the Planning Act states that the application for review must be made not later than four (4) weeks after the person was told about the decision. The period of 4 weeks is equal to 28 days. The application was date stamped by the Tribunal on 26 August 2009.

3. There are two possible interpretations of the date that the applicant was 'told about' the decision. On the first interpretation, the applicant was 'told about' the decision when he received actual notice of the decision, which according to his evidence was on 30 July 2009, the day the letter was received by him. On this interpretation, the four (4) week period begins to run on 31 July 2009 due to s 151(3) Legislation Act which requires that the 28 days be counted from the day after the day of the stated event. On this interpretation, the application was lodged within the 28 day period.

4. On the second interpretation, the date that the applicant was told about the decision is calculated by reference to the date that he ought to have been told about the decision. On this interpretation, the Tribunal would consider s 250 of the Legislation Act which makes provision for service 'in the ordinary course of post'. Section 250 states:

(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.

(2) However, subsection (1) does not affect the operation of the Evidence Act 1995 (Cth), section 160.

1. Section 160 of the Evidence Act 1995 (Cth) ('the Evidence Act') creates a rebuttable presumption that a pre-paid postal article is received 4 days after the article is posted. The provision states:

(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.

(b) all the parties to the proceeding are parties to the contract; and

(c) subsection (1) is inconsistent with a term of the contract.

(b) a public holiday or a bank holiday in the place to which the

However, s 160 of the Evidence Act is not directly applicable to the Tribunal because, except in particular examples nominated in the authorising laws, the Evidence Act does not apply to the Tribunal as the Tribunal is not an 'ACT court' as defined by the Dictionary of the Evidence Act. The nature of the rebuttable presumption and the definition of 'ACT court' were considered by the Tribunal in Dimov v ACTPLA [2006] ACTAAT 26.

The respondent submits that the 'ordinary course of post' is to be measured by the Post Guide,[9] which states on page 11 that where a pre-paid letter is posted within the same regional city or town and environs or towns in different States that share a State boundary, the delivery date is the next business day after lodgement day.

On this interpretation, although we have no evidence of the time that the respondent sent the notice of decision on 28 July 2009, the letter would have arrived on 29 July 2009. On this interpretation, the applicant would have been 'told about' the decision pursuant to s409(2) of the Planning Act on 29 July 2009. On this interpretation the four (4) week period begins to run on 30 July 2009 due to s 151(3) Legislation Act which requires that the 28 days be counted from the day after the day of the stated event.

Even on this interpretation, the application was lodged within the 28 day period. The Tribunal does not need to have recourse to s 160 of the Evidence Act, but if it did so, the longer period presumed by that provision would have allowed the applicant further time and the application would again have been made within the 28 day period.

The Tribunal finds that both the representation by the applicant regarding the DA and the application to the Tribunal were made within time and the respondent's application in relation to jurisdiction on the ground of time is dismissed.

It is to be noted that the applicant must be an eligible entity pursuant to s 408 of the Planning Act in order to be entitled to apply for review of the decision to approve the DA. The respondent has contended in its statement of facts and contentions dated 20 November 2009 that the applicant is not an eligible entity because he will not suffer material detriment as required by part (b) of column 4 of item 4 of schedule 1 of the Planning Act.

The matter is stood over for a further interlocutory hearing on 10 February 2010 so the Tribunal may hear further jurisdictional arguments by the parties as to whether or not the applicant is an eligible entity as required by the Planning Act.

TRIBUNAL MEMBER/S: PROF. P. SPENDER Presidential Member

DATE/S OF HEARING: 17, 23 December 2009 PLACE: CANBERRA

DATE/S OF DECISION: 5 February 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[9] Letter Post & Electronic Mail with Australia Post - November 2005