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(Rackemann DCJ - 14 October 2014)
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the judgment
Appeal under s.159 of the Coastal Protection and Management Act 1995 – where appeal by "rehearing" – where that is to be construed as a hearing "de novo" – where appeal instituted out of time by reason of an error in the notice which informed the appellant of her appeal rights
Facts: In this appeal the Appellant challenged the decision of the Respondent to give a Coastal Protection Notice under s.59 of the Coastal Protection and Management Act 1995 (CPMA).
The right of appeal was conferred by s.159 of the CPMA. S.163(2) provided that the appeal was "by way of rehearing, unaffected by the Chief Executive's decision".
A preliminary issue had arisen as to whether the parties under the appeal were permitted to adduce fresh evidence. That issue required an analysis of the nature of the appeal.
Decision: The Court held, that:
- The word "rehearing" was one to which different meanings may be attached.
- The words "unaffected by the Chief Executive's decision" was consistent with a hearing de novo, but was not conclusive.
- Where a right of appeal is given to a Court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the Court will undertake a hearing de novo, although there is no absolute rule to that effect.
- An examination of the process provided for the initial decision and the nature of the Court to which the appeal lies, led to the conclusion that the rehearing was to proceed by way of a hearing de novo.
- As the Respondent accepted, the onus fell upon it to contend that it was appropriate that a notice be given.
