Lachlan Reit Limited Pty Ltd v Beaudesert Shire Council
[2008] QPEC 10
•15 February 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lachlan Reit Limited Pty Ltd & Beaudesert Shire Council & Ors [2008] QPEC 10
PARTIES:
LACHLAN REIT LIMITED
Appellant
&
BEAUDESERT SHIRE COUNCIL
Respondent
&
ALDI STORES (A LIMITED PARTNERSHIP)
Co-Respondent
&
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
Co-Respondent by Election
FILE NO/S:
Appeal No 2172 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
15 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
29 January 2008, with further material received on 12 February 2008
JUDGE:
Rackemann DCJ
ORDER:
The appeal proceed on the basis of the plan originally lodged with the development application. The appeal proceed notwithstanding the non-compliance with requirements of the IPA.
CATCHWORDS:
Non-compliance – premature public notification – failure to repeat IDAS stages following changes – failure to advise referral agency of change – s 4.1.5A – whether non-compliance – whether non-compliance with a requirement – whether non-compliance has substantially restricted opportunity to exercise rights – whether undertaking to revert to original proposal is relevant
COUNSEL:
Mr M D Hinson SC appeared for the Appellant
Mr B Job of Counsel for the Respondent
Mr P J Lyons QC with him Mr D O’Brien for the Co-Respondent
Ms E M Hussey, a Solicitor for the Co-Respondent by Election
SOLICITORS:
Connor O’Meara, solicitors for the Appellant
Corrs Chambers Westgarth, solicitors for the Respondent
Kinneally Miley, solicitors for the Co-Respondent
Crown Law for the Co-Respondent by election
Introduction
The appellant is the proprietor of the Beaudesert Fair Shopping Centre. It appeals against the Council’s decision to approve a development application, by the co-respondent, for a competing shopping centre, comprising a supermarket, specialty shops, a convenience restaurant (ie, a fast food outlet with a “Drive Thru”) and carparking. The appeal is set down for hearing next month. The issues raised by the appellant include that there was non-compliance with provisions of the IPA in the processing of the application. The matters for determination at this stage concern the extent of any non-compliance, and whether the Court’s discretion under s 4.1.5A of the IPA is enlivened and ought be exercised so as to, in effect, excuse any non-compliance.
S 4.1.5A provides:
“4.5.1A How Court may deal with matters involving substantial compliance
(1) Subsection (2) applies if in a proceeding before the Court, the Court –
(a) Finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b) Is satisfied the non-compliance or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2) The Court may deal with the matter in the way the Court considers appropriate”.
Sub-section 2 confers a broad discretion on the Court as to how it may deal with a matter. That discretion only arises in the circumstances set out in ss (1). Recent authority has focused attention on subsection (1), including on the precondition that non-compliance must be with respect to a “requirement”[1] and also on the terms of subparagraph (b)[2], which requires an identification of the rights conferred and a consideration of the extent to which the opportunity to exercise those rights has been restricted, so as to determine whether there has been a substantial restriction. In that regard it is relevant to bear in mind the totality of the rights conferred.[3] While there are calls and proposals for reform, to expand the power of the Court to excuse procedural non compliance,[4] the constraints imposed by subsection (1) must be respected while the provision remains in its current form.
[1] See Metrostar Pty Ltd v Gold Coast City Council [2007} 154 LGERA 254, Lamb v Brisbane City Council [2007] 95 LGERA 100
[2] See Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37, Ross Neilson Properties Pty Ltd v Caloundra City Council & Anor [2007] QPELR 529.
[3]MacAdam and Hawson v Caboolture Shire Council & Ors ([2007] QPELR 556 at 562F and submissions of Hinson SC T89 l 50.
[4] See “ACTION 64” in section 1.11 of “Planning for a Prosperous Queensland – a reform agenda for planning and development in the Smart State” published by the Department of Local Government, planning sport and recreation – August 2007.
The alleged non-compliance relates to:
1. The premature commencement of public notification, prior to the Council being provided with a copy of the co-respondent’s response to the DMR’s information request; and
2. The failure to repeat IDAS steps consequent upon the following;
(a) A change to the layout of the proposal, involving most relevantly, the re-orientation of the convenience restaurant; and
(b) A request, communicated on the day the application was decided, to extend trading hours and change service delivery times.
There is no suggestion that any non-compliance was motivated by a desire to suppress information or otherwise gain an improper advantage.
Premature Public Notice
The DMR was a concurrence agency for the application. It made an information request on 15 November 2006. The co-respondent was required to give a copy of its response to the Council, as assessment manager.[5] It was also required not to start public notification until that had been done.[6] A copy of the response to the DMR information request was not provided to the Council until on or about 25 January 2007, but public notice commenced on 8 January 2007 (and concluded on 1 February 2007).
[5] Section 3.3.8(2)
[6] Section 3.4.3(3)
It was (rightly) common ground that there had been non-compliance and that the non-compliance was with a requirement of the Act. In order for the discretion under s 4.1.5A(2) to be enlivened, the Court must also be satisfied of the matters in subsection (1)(b). That raises the question of whether the non-compliance has “substantially restricted” the opportunity for a person to exercise the rights conferred. That is a question of fact and degree.
The purpose of the notification stage is to give a person the opportunity to make submissions, including objections, that must be taken into account before an application is decided, together with the opportunity to thereby secure the right to appeal to the Court about the decision on the application.[7] The making of an informed submission is facilitated, in part, by the requirement for the Council to receive copies of all information request responses prior to public notification commencing. That assists because of the further requirement for the Council, as assessment manager, to keep documents, including the application and supporting material, open for inspection and purchase.[8]
[7] Section 3.4.1
[8] Section 3.2.8
The premature commencement of public notification did not extinguish all opportunity to exercise rights. It did not prevent a person from inspecting the application and other documents held by the Council at the time. It did not prevent a person from making a submission or from thereby accruing rights of appeal. It did have the effect that a person who wished to inspect the documents held by the Council during the notification period may not have had access to one document, being the response to the DMR’s information request. As Mr Hinson SC rightly acknowledged[9], whether the opportunity to exercise rights has thereby been “substantially restricted” is a question of fact and degree. Conclusions on that question may vary according to the circumstances.[10]
[9] T80.
[10] Compare Ross Neilson Properties Pty Ltd v Caloundra City Council & Anor [2007] QPELR 529 with MacAdam & Hawse v Caboolture Shire Council & Ors [2007] QPELR 556.
The focus of the argument was not so much on the effect on the parties to the appeal. The respondent and co-respondent by election do not assert that the non-compliance has had a substantially restricting effect on their opportunity to exercise rights. The appellant has the opportunity to argue the merits of the development application on the hearing of the appeal. The focus was on others who did not make a submission or did not choose to appeal.
The material which was available during the whole of the notification period was substantial and dealt with diverse issues of relevance to the application. The response to the DMR’s information request was a brief four page document in relation to traffic only and, more particularly, in relation to the likely impact of traffic on the Brisbane Street / Tubber Street intersection and at the site access. This had already been the subject of analysis in a more substantial traffic impact assessment report, which formed part of the material lodged in support of the application, which was available during the public notification period. The information request made by the DMR was also available.
Those who might have wished to exercise the right to have recourse to the documents lodged with the application before choosing whether to make a submission and who might have otherwise been interested in the matters to which the information response was directed, were not precluded from making a submission, by reason of the absence of the response to the information request. Such a person had the opportunity to make a submission, including a submission objecting to the proposal on the basis of its likely traffic impacts or the applicant’s failure to sufficiently address traffic impacts in relation to the matters raised in the information request, or on such other basis as they chose.
The submissions which were made prior to the Council’s receipt of the response to the information request were proforma style submissions in support of the application. There were only three submissions objecting to the proposal. They were from the appellant, the operator of an existing McDonalds outlet in Beaudesert and from one adjoining resident. Each of those submissions was made on 1 February 2007, being some one week after the Council received the information response. Each of those submissions made some reference to traffic, but none descended to a technical analysis or critique or raised any complaint about the material available for inspection in relation to that issue.
If any submissions were formulated after having inspected the documents held at the Council, then, theoretically, the submitters may have missed out on an opportunity to include, in their submissions, a critique of the information response. It would appear unlikely that was significant, given the information otherwise available and that the submissions did not otherwise descend to a technical analysis or critique of the likely traffic impacts, the contents of the impact assessment report lodged in support of the application, or the absence of a response to the information request. Having made a submission objecting to the proposal, those adverse submitters thereby gained the opportunity to appeal against the Council’s decision, as the appellant did, and agitate any concerns with respect to traffic.
It is theoretically possible that there were people who inspected the documents held at the Council and decided either to make a submission supporting the proposal or decided to make no submission at all, in ignorance of the information response. The effect of the absence of the information response is however, unlikely to have been significant. Such persons would have had before them the traffic impact assessment report which accompanied the application and the DMR information request, which alerted the reader to the respects in which the DMR then considered further information was required. Further, as Mr Lyons QC emphasised, the response to the information request was, in essence, a defence of the traffic impact assessment report which accompanied the application. The response contained little that was new or took the matter further.
The traffic impact assessment report which accompanied the application included an assessment of the likely impact of the proposal on the Brisbane Street/Tubber Street intersection and at the site access intersections with each of those streets. The assessment was carried out for the years 2007 and 2017. The report referred to the authors’ understanding, from discussions with Council and Main Roads officers, that the long-term intention for Brisbane Street “is a vibrant main street environment, implemented through conversion of the dual turn lanes to a central median, new signals at priority intersections, a lower speed environment, supporting retail and commercial developments, and the possibility of bypass roads”. The bypass roads were anticipated to reduce traffic on Brisbane Street.
To assess the likely impact of the proposal in the future, a nominal rate of 1 percent per annum was assumed for the purposes of calculating the growth in background traffic to 2017. That was said to be supported by “historic” data. The report acknowledged that the Council was expecting more significant growth rates in the future (and did not cavil with that prediction), but stated that “should the growth being proposed by the Council eventuate the need for the Council to construct by-pass roads would increase, to ultimately support plans for a “main street” environment along Brisbane Street.” The report concluded that the intersection and driveway access points would operate satisfactorily in 2007 and also in 2017, on the assumptions made. The site access points were said to operate satisfactorily, as “all movement” driveways, although the report also stated that the driveway crossover on Brisbane was expected to continue to operate safely and efficiently if converted to a left in / left out configuration in the future (in the event Brisbane Street was changed to include a central median).
The information request asserted that the Brisbane Street access intersection should be restricted to left in/left out movements only and sought a re-analysis of the Brisbane Street/Tubber Street intersection and the Brisbane Street access using a growth rate of 5 percent, in lieu of 1 percent.
The co-respondent did not take up the request to restrict the Brisbane Street access to left in / left out movements only. The information response reiterated the findings of the earlier report and noted that the DMR had not provided any technical information to support its assertion that the access should be restricted.
In response to the request for intersection performance to be reanalysed, the information response reasserted the position adopted in the earlier report, that use of the historic growth rate of 1 percent, when looking at the existing road network, was appropriate because bypass roads (reducing traffic along Brisbane Street) would be needed, in any event, if higher growth was achieved. The likely performance of the Brisbane Street/Tubber Street intersection in 2017, adopting a 5 percent growth rate but without the proposed shopping centre, was reanalysed, but that was only to demonstrate that that, even without the proposed development, the intersection would be beyond capacity, such that the higher growth could not reasonably be accommodated within the existing road network. This underscored what was stated in the earlier traffic assessment report, that the advent of higher growth rates would increase the need for a bypass in any event. The response to the information request otherwise declined to provide the requested reanalysis.
Moreover, the response to the request for additional information was a relatively brief document reaffirming the position that had been taken in the traffic impact assessment report, without providing much which was new or which took the matter much further. It was in a different category to the final information response in Ross Neilson Properties Pty Ltd v Caloundra City Council & Anor (supra), for example, which included a significantly different plan of layout as well as further engineering designs, including with respect to stormwater, water supply and sewerage.
I am satisfied as a matter of fact and degree that the premature commencement of public notification and the consequent absence of one of the documents required to be available for inspection during the public notification period has not, in the circumstances, substantially restricted the opportunity for a person to exercise the rights conferred.[11] I am prepared to exercise the discretion, under s 4.1.5A(2), to permit the appeal to proceed notwithstanding the non-compliance.
[11] Compare MacAdam & Hawse v Caboolture Shire Council & Ors (supra).
Changes to the Application
The applicant may, at any time before an application is decided, change the application by giving the assessment manager written notice of the change.[12] There is no limit to the nature or magnitude of the change. The IDAS process stops on the day the notice of change is received by the assessment manager and starts again either from the start of the acknowledgment period or from the start of the information request period.[13] As a consequence, stages already carried out, including the notification stage, may need to be repeated for the changed application. The notification stage does not need to be repeated if the assessment manager is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change.[14] In this case, the appellant says that the application was changed on two occasions, but on neither occasion were stages of the IDAS process, including the notification stage, repeated.
[12] Section 3.2.9
[13] Section 3.2.9(3)
[14] Section 3.2.10
The second alleged change may be disposed of relatively briefly. It concerns a request, sent by email and by facsimile transmission, on the day the application was decided, “for the final resolution of Council (and conditions)” to incorporate changes to service delivery times and hours of operation. The facsimile was sent to a Council officer at around 10.40am on 3 April 2007. It was also sent as an attachment to an email at about 10.59am. This was however, after the 10.30am commencement of the Council meeting wherein the application was considered and decided.
The minutes of the Council meeting do not make any reference to the request, nor were the requested changes reflected in the Council’s resolution.
The evidence falls short of establishing that the request was given to the Council, as assessment manager, or any duly authorised delegate thereof, prior to the application being decided. Indeed, as Mr Hinson SC conceded, it seems improbable that notice was given prior to the decision.[15] I am satisfied that no change to the application was made in accordance with s 3.2.9(1). Consequently, the IDAS process did not stop and there was no requirement to repeat any of the stages of the IDAS process. Further, the co-respondent has indicated that, had there been a change, it would now wish to return to the hours originally sought in any event.
[15] T74 ll 30-60.
A different change had been notified on 13 February 2007. That letter enclosed plans which changed the layout of the proposed development. That was a change made in accordance with s 3.2.9(1) and so the IDAS process stopped and was to start again from the start of the acknowledgment period. Consequently, there was a requirement for the IDAS process, including the notification stage, to be repeated unless the assessment manager was satisfied of the matters set out in s 3.2.10. There was also a requirement, under s 3.2.9(2), for the assessment manager to advise any referral agencies of the receipt of the notice and its effect under subsection (3). The co-respondent did not, in fact, repeat the notification stage for the changed application and the Council did not give advice to the DMR, pursuant to s 3.2.9(2). Neither the respondent nor co-respondent by election claim that the non-compliance has substantially restricted their opportunity to exercise rights.
The non-compliance with s 3.2.9(2) was non-compliance with a requirement of the Act. The co-respondent by election has however, confirmed that notice of the amended layout plan would not have altered its amended referral agency response. Mr Hinson SC properly conceded that the Court could, in those circumstances be satisfied of the matters in s 4.1.5A(1)(b)[16]. I am so satisfied and am also prepared to permit the appeal to proceed notwithstanding non-compliance with s 3.2.9(2).
[16] T75 l 40.
As to the failure to repeat the IDAS processes in respect of the changed application, attention focused on the failure to have repeated public notice. The failure of the co-respondent to repeat the notification stage for the changed application is understandable, given that it received a letter from the Council dated 5 March 2007 advising, inter alia as follows:
“please be advised that Council officers on the 28th of February, 2007, assessed the amendments to the development application and subsequently, considered these changes to be minor and unlikely to attract a submission objecting to the amendments. Pursuant to s 3.2.10(c) of IPA, please be advised that public notification of the changed application will not be required in this instance”.
It was reasonably open to the assessment manager to have reached such a conclusion. It is, indeed, a conclusion which I would have reached. It has subsequently been discovered that the issue was considered by the Senior Planning Officer of the Council, who had primary responsibility in relation to dealing with the development application. She was not, however, a duly authorised delegate of the Council for the purpose of being satisfied of the matters in s 3.2.10(c). At no time did the Council, as assessment manager, or any duly authorised delegate thereof, address the matters in s 3.2.10. Consequently, the co-respondent was not properly excused from carrying out the notification stage with respect to the changed application.
This case should serve as yet another reminder to local governments to ensure that those making decisions, in the course of dealing with development applications, are duly authorised to do so or that the matter is referred to a Council meeting for decision. It seems likely that, but for the failure of the Council’s internal processes, the co-respondent would have been relieved of repeating the notification stage by reason of s 3.2.10. A similar problem arose in Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 32 at 44.
It was (rightly) common ground that, in the circumstances, there had been non-compliance with a requirement of the Act. Mr Lyons QC characterised the non-compliance as a failure to return the application to the acknowledgment period, pursuant to s 3.2.9(3). Mr Hinson SC submitted that wrongly characterised the non-compliance. As he pointed out, s.3.2.9(3) simply states the consequence of the change being received by the assessment manager. Subsection 3 is not, in his submission, a “requirement”, and s 4.1.5A cannot prevail against it.[17] It is unnecessary for me to reach a concluded view on that debate in the context of these proceedings. It was (rightly) common ground that, in any event, there had been non-compliance with ‘requirements’ of the Act, by failing to repeat the relevant stages after the IDAS process had stopped and started again pursuant to s 3.2.9(3). That included the requirement for the changed application to be publicly notified. It is that requirement which is at the centre of the dispute as to whether the Court would be satisfied of the matters in s 4.1.5A(1)(b). Nothing ultimately turns on whether the non-compliance is characterised in accordance with Mr Lyons’ primary submission or in accordance with his alternative submission, which Mr Hinson SC accepted.[18]
[17]Gold Coast City Council v Fawkes [2007] QCA 444.
[18] T82 l 20-83 l 15, T84 ll 31-41.
It was submitted, for the appellant, that s 4.1.5A was not available to excuse the non-compliance, because the Court would not be satisfied that the failure to publicly notify the changed application did not substantially restrict the opportunity for a person to exercise the rights conferred. The co-respondent has however, subsequently abandoned the changes and given notice that it wishes to proceed with the original layout, as publicly notified.
Mr Hinson SC conceded that a change back to the original layout is possible. I am satisfied that such a change is a minor change for the purposes of s 4.1.52. Mr Hinson SC submitted however, that the change back to the original proposal is irrelevant to the question raised by s 4.1.5A(1)(b) which, in his submission, relates to whether the non-compliance had a substantially restricting effect at the time.
Acceptance of the appellant’s submission would, in the circumstances, result in one of the great triumphs of technicality and lead to delay and cost, for no apparent good purpose. For the co-respondent to now repeat the IDAS processes from the start of the acknowledgement period would seem absurd, when the proposal which it now seeks to pursue is that which has already been through those processes, including public notification. The resultant cost and delay would appear likely only to serve the commercial interests of the appellant, in delaying or thwarting its potential competitor, even though, as Mr Hinson SC effectively conceded, the appellant has not itself suffered a substantially restricting effect on its opportunity to exercise the rights conferred.[19] The result would appear to run counter to the evident purpose of provisions of this kind.
[19] T83 ll 18-36.
I accept the submission of Mr Lyons QC that the abandonment of the changed application is of relevance. Section 4.1.5A provides how the Court may deal with a matter in the proceeding before it. Subsection (1)(b) calls upon the Court to make a finding of fact as to the effect of the non-compliance or partial compliance. That finding is to be made on the facts and circumstances as they exist at the time the Court is considering the matter. The question for the Court is whether it should now be found that the non compliance “has not” had the substantially restricting effect referred to. As Mr Hinson SC conceded,[20] that may involve considering subsequent facts, if they bear upon that question. The subsequent facts include that the co-respondent has abandoned the changes. That bears on the question because it can now be seen that any restriction on the opportunity to exercise rights was in respect of a matter of passing (and no continuing) relevance and that persons have had the opportunity to exercise the right to make a submission (and accrue consequent rights) in respect of the same proposal upon which this Court is to adjudicate in the appeal. In light of these matters it is both open and appropriate to now find that the non-compliance has not “substantially” restricted the opportunity to exercise the rights conferred. I will however, also consider the question on the assumption that the subsequent abandonment of the changes is irrelevant.
[20] T89 ll25-29.
The failure to publicly notify the changed application did have a restricting effect on the opportunity for persons to exercise their rights, since there was no opportunity to make a submission in respect of the changed application nor to accrue consequent appeal rights, in the event they had not already been accrued. As Mr Hinson SC conceded however, [21] it is relevant to have regard to the fact that persons did have the opportunity to exercise the rights conferred at the time the original application was publicly notified. The issue is whether the restriction, constituted by the absence of a further opportunity to exercise those rights in the context of the changed application, amounted to a substantial restriction in the circumstances. As Mr Hinson SC also conceded, that is a question of fact, degree and judgment. It is relevant to have regard to the nature, extent and effect of the changes.[22]
[21] T85 l50 – T86 l5.
[22] In Kenlynn Hospitality Pty Ltd v Bundaberg City Council (supra) some of the changes would not have led to a conclusion that a failure to re notify had a substantially restricting effect, but other changes did. See also Wright & de Varga v Maroochy Shire Council & Anor [2007] QPEC 72.
The changed application was not significantly different. The application continued to be for the same uses on the same land with the same access points and the same components, of similar dimensions, distributed in the same areas across the site. There were very minor changes to the car parking layout and to the sizes of the specialty shops and convenience restaurant. The only respect in which it was contended that the changes were significant was in respect of the orientation of the proposed convenience restaurant which, in the changed proposal, was rotated so as to be orientated with its longest dimension running east / west instead of north / south. This was said to be potentially significant to adjoining neighbours, particularly a motel which shares a common boundary adjacent to that part of the subject site where the “convenience restaurant” is proposed to be located.
The motel is a single level building, orientated away from the common boundary, with airconditioning and other plant and equipment in the space between it and the common boundary. The proprietor of the motel did not make any submission in response to notification of the original application, notwithstanding that it involved a substantial development on an adjoining site including the location of the convenience restaurant proximate to the common boundary, and would inevitably involve an increase in traffic on the subject site and along the Tubber Street frontage of the motel site.
It is difficult to accept that the rotation of the proposed convenience restaurant produced a significantly different proposal or a proposal with significantly different implications, even from the perspective of the motel proprietor. Both the original and changed applications featured a proposed convenience restaurant in generally the same part of the subject site. Both the original and amended plans proposed a 2.1 metre high timber acoustic fence along the common boundary and an area of landscaped planting within the subject site, separating the convenience restaurant (and associated drive through) from the motel site.
Given that both the proposed convenience restaurant and the motel are single storey buildings separated by a landscaped area and a 2.1 metre high timber acoustic fence, and given the orientation of the motel building, it is difficult to see that the rotation of the convenience restaurant would make the visual presentation of the development significantly different from the perspective of the motel.
The changes included changes to the location of some areas likely to generate noise. Mr Challoner, a town planner called by the appellant, emphasised the changes meant that a longer section of the drive thru, including the service window, was to be located parallel to the common boundary. On the other hand the changes also deleted some car parking bays which were proximate to that same common boundary and, as Mr Schombergk, a town planner called by the co-respondent, pointed out, moved the service vehicle access and loading bay to the side of the proposed fast food outlet (rather than at the end of the building facing the common boundary with the motel) and enclosed it for greater protection. Those differences are, in my view, of no real significance in the context of the proposal, which maintained the same use with the same types of noises in generally the same part of the site, separated from the motel site by a similar degree of landscaping and the same acoustic fence on the common boundary.
There was some reference to a duplex which also shares a common boundary with the subject site, but the changes are even less likely to have been significant from that perspective.
In my view, the changed proposal was, in substance, the same proposal and was not significantly different from that which was current at the time persons were afforded the opportunity to exercise the rights conferred. The changes in this case were not and were not likely to be regarded as, significant, unlike in Kenlynn Hospitality Pty Ltd v Bundaberg City Council v Ors (supra). Insofar as the significance of the changes, from a town planning perspective is concerned, I prefer the evidence of Mr Schombergk.
I would have been satisfied of the matters in s 3.2.10(c) had I been called upon to determine that question. While the test under s 4.1.5A(1)(b) is differently worded (and necessarily so, given that it applies to non-compliance with any requirement, not just a failure to give public notification of a changed application) I am also satisfied that the restriction on the opportunity to exercise rights, consequent on the failure to repeat the IDAS process, including public notification for the changed application, has not substantially restricted the opportunity for a person to exercise the rights conferred, even if the abandonment of the changes is ignored. I am prepared to exercise the discretion favourably to the co-respondent.
Summary
The co-respondent commenced public notification of its application without having given the Council a copy of its response to the DMR’s information request. Consequently that document was not available during the public notification period, but it was a brief document which contained little that was new, or which took matters much further. The co-respondent also sought two changes to its application. The second was out of time and so was not a change at all. The first effected insignificant changes to the layout of the proposal. Both changes have subsequently been abandoned. I am satisfied that it is both open and appropriate for me to exercise the discretion in s 4.1.5A to permit the appeal to proceed notwithstanding non compliance.