49/13 Warner Village Proprietry Limited v Moreton Bay Regional Council & Ors (No 2) [2013] QPEC 74

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 non-compliance

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 Council's decision.

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:

1. 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.
2. 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)
3. While the public notification period did commence prematurely, the circumstances are distinguishable from the Ross Neilson case, as:
4. 1. Cashmere did not obtain any relevant benefit from the breach.
   2. The further information was provided within the period for public comment.
   3. Warner Village was able to review and respond to the further information.
   4. It is highly unlikely that any other potential submitters were disadvantaged by the delayed publication of the addendum.
   5. The further information that was provided was not an essential component of the information request.

4. Although Cashmere had been non-compliant, this non-compliance was excused in the circumstances, under section 440 of the SPA.

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