Determination of preliminary issues raised by the Appellant
before hearing – whether the Co-respondent had commenced the
public notification period prematurely by providing further
information after the period for public comment had commenced
– whether circumstances justified excusal of this
Facts: On 6 August 2012 the Co-respondent
Cashmere received approval for a development permit from the
Respondent Council to extend its shopping centre. On 3 September
2012 the Appellant Warner Village appealed against the
On 13 April 2013 the Council issued an information request to
Cashmere (during the information and referral stage), seeking an
addendum to the Economic Impact Assessment. On 6 May 2013 Cashmere
responded by providing further information, but not the addendum,
as part of a full response under section 278(1)(a) of the
Sustainable Planning Act 2009 (Qld) (SPA). The
Notification Stage commenced on 7 May 2013, with public comment
open from 9 – 29 May 2013.
Although Cashmere believed that its response to Council was
adequate, it engaged a consultant on 8 May 2013 to prepare the
addendum, in the event that Council required it. After receiving
Cashmere's response dated 6 May 2013, Council confirmed with
Cashmere that it did require the addendum.
Cashmere provided the addendum to Council on 20 May 2013, and it
was published on PD Online on 21 May 2013.
Warner Village reviewed the addendum and responded to it before
the end of the public comment period.
However, Warner Village submitted that as Cashmere had intended
to provide the addendum if it was required (which it was), the
public notification period had commenced prematurely.
Decision: The Court held, in excusing certain
non-compliances under s440 of SPA, that:
Cashmere was non-compliant with the provisions of the SPA as a
result of the provision of further information after the
notification period has commenced.
However section 440 of the SPA provides the Court with the
discretion to excuse non-compliance. This discretion is wider than
that afforded by the former section 4.1.5A(1) of the Integrated
Planning Act 1997 (Qld)
While the public notification period did commence prematurely,
the circumstances are distinguishable from the Ross
Neilson case, as:
Cashmere did not obtain any relevant benefit from the
The further information was provided within the period for
Warner Village was able to review and respond to the further
It is highly unlikely that any other potential submitters were
disadvantaged by the delayed publication of the addendum.
The further information that was provided was not an essential
component of the information request.
Although Cashmere had been non-compliant, this non-compliance
was excused in the circumstances, under section 440 of the
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