Ross Neilson Properties Pty Ltd v Caloundra City Council
[2007] QPEC 42
•25 May 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ross Neilson Properties Pty Ltd v Caloundra City Council & Anor [2007] QPEC 042
PARTIES:
ROSS NEILSON PROPERTIES PTY LTD
Applicant
v
CALOUNDRA CITY COUNCIL
First Respondent
And
RIDGEHAVEN RETIREMENT VILLAGE PTY LTD
Second Respondent
FILE NO/S:
No 2909 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Preliminary Point
ORIGINATING COURT:
DELIVERED ON:
25 May 2007
DELIVERED AT:
Brisbane
HEARING DATE:
6 March 2007, further material received to 3 May 2007.
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr D Gore QC for the Applicant
Mr B Cronin for the First Respondent
Mr W Cochrane for the Second Respondent
SOLICITORS:
Connor O’Meara for the Applicant
DLA Phillips Fox for the First Respondent
p&e Law for the Second Respondent
INTRODUCTION
In December 2005, the second respondent (Ridgehaven), via its consultants, lodged an application for a development permit for a material change of use (and a preliminary approval for building work) to facilitate the development of a shopping centre on land located at Kalana Road, Currimundi. The site has an existing approval for a retirement village. The issues raised in these declaratory proceedings concern the manner and timing of public notification and whether any non-compliance can or should be excused under s 4.1.5A of the IPA.
The declarations sought by the applicant (RNP) are as follows:-
1. a declaration that the second respondent was not entitled to start the notification period for its development application (Caloundra City Council application no. 205/51-00038) in June 2006;
2. a declaration that the second respondent is not entitled to start the notification period for its development application until it gives to the first respondent a response to the first respondent’s information requested dated 8 February 2006 which complies with s 3.3.8(1) of the Integrated Planning Act 1997 (“IPA”);
3. a declaration that the second respondent has not complied with s 3.4.6(1) of IPA and ss 18(2) and 18(6) of the Integrated Planning Regulation of 1998;
4. a declaration that the second respondent’s development application remains in the information and referral stage;
5. a declaration that the decision stage of the second respondent’s development application has not started.
RNP has an interest in land opposite the subject site and in December 2005 made its own application for the development of a shopping centre. Ridgehaven is an adverse submitter with respect to that application. I accept, as RNP’s development manager deposed, that given the proximity and similarity of the two applications, RNP always held a genuine interest in the Ridgehaven development application and would have wanted to lodge a properly made submission to it. It failed to do so because it was unaware of the public notification carried out from 9 June 2006 to 5 July 2006.
RNP’s solicitors wrote to the Council on 2 August 2006 raising questions about whether Ridgehaven was entitled to start public notification when it did and whether the notification was properly undertaken. A more detailed letter was sent on 9 August 2006 and responded to on 22 August 2006. The present proceedings were commenced on 5 October 2006. There are no discretionary grounds upon which I would refuse to entertain granting relief to RNP.
Subsequently to the institution of the present proceedings by RNP, Ridgehaven has appealed against Council’s deemed refusal of its application.
THE SIGNS ON THE LAND
The applicant’s complaint as to the manner of public notification relates to the signs placed on the land. The development manager for Ross Neilson Properties first became aware of the Ridgehaven application prior to 30 January 2006. On 6 February 2006 he instructed a consultant town planner, Mr Ryter, to monitor the application with a particular emphasis on the commencement of the notification period, so that a properly made submission could be made in respect of the application. Mr Ryter did not alert Mr Cummins to public notification. Indeed, on 21 June 2006, he advised Mr Cummins, in a telephone discussion, that he had checked the site and had not seen any indication that public notification had commenced.
Mr Ryter, for his part, deposed that his practice was to inspect the site in the course of his regular trips to Caboolture and/or Brisbane. He is confident that on 21 June 2006, the day before he was due to depart on holiday, he carried out an inspection and noticed some earth works, but did not detect any visible public notice on the frontage to the subject land. He also deposed that it was probable that he had also inspected the site on 14 June 2006 without seeing evidence of a notice erected on the land.
Kevin Ross Schulz deposed that, on 9 June 2006, he erected public notification notices on the Kalana Road, Sunset Drive and Snowdrop Avenue road frontages of the land, which complied with the relevant regulation, including that they were so positioned as to be visible from the road. He also deposed that the notices remained in place for the notification period. Photographs of the notices and a map showing their positioning were exhibited to his affidavit.
Mr Buxton, surveying student, deposed that it was he who, on 5 July 2006, removed the public notification signs. He further deposed that, during the public notification period, he attended the site on numerous occasions and carried out field work. He observed that each of the signs were on the land and “clearly displayed”. While he conceded that there was at least a possibility that, “on the odd occasion” for a “short period of time” a sign might have been temporarily obscured in the course of works, his recollection was that at the various times he was on site the signs remained in place and “were clearly visible to anyone who would wish to inspect them”.
Katrina Patey, a Senior Planner in the employ of the Council, deposed that on 19 June 2006 she received a complaint about public notification signage (i.e. that it was located too far back from the road and people needed to walk through mud to read it). As a consequence, she conducted a site inspection on 20 June 2006 and observed that the signage was located at or near the road frontage of the site, was clearly visible and appeared to be readable. She further deposed that on either Saturday, 24 June or Saturday, 1 July she drove past the site and again noticed that the public notification signage remained in the same location as on her previous inspection and “appeared readable”.
Mr Cummins deposed that, on 28 July 2006, after the signs were removed, he inspected the Ridgehaven land and recalled there being “large piles of sand, tree logs and earth moving machinery on the site at the time of my inspection which obscured my view of the site”. That does not go so far as to say that such things would have obscured a view of signage posted during the notification period.
Mr Andrew John Campbell, a surveyor, deposed that while it is possible that a vehicle may have been parked, at some point, on the road reserve in front of the site, typically vehicles parked for hours at a time would either park in the site compound or elsewhere on the site. Further, it was “very rare” for earthmoving machinery to sit idle other than at morning tea or lunch breaks or when machinery was broken down. Mr Gore QC, for RNP, did not seek to rely upon a transitory interference from view by reason of a parked vehicle[1].
[1] T25
Mr Campbell also deposed that whilst there were large piles of sand and tree logs on the site at various times, they were not permitted to remain between the site and the carriageway, because of safety, erosion and sediment control issues. Mr Campbell deposed that he clearly recollects that the part of the land where the sign was displayed on Sunset Drive at the western end of the site did not have any earth works or surveying works and on those occasions when he was in attendance the sign was clearly visible with no obstructions.
Attention was drawn, on behalf of RNP, to the fact that the only submission received in response to public notification was from Mr Chandler, who received notice of the application as an adjoining owner, whereas public notification of the RNP application, in October 2006, attracted 14 submissions.
None of the witnesses were required for cross-examination. The onus, in proceedings of this kind, rests upon the applicant for declaratory relief. While I accept that Mr Ryter did not notice any signs[2], I am unable to determine, on the balance of probabilities, that the signs were not in place or did not comply with the statutory requirements. Indeed, the affidavit material satisfies me, on the balance of probabilities, that the signs were in place and clearly visible.
[2] and presumably was not aware of the notice published in the newspaper
WHEN WAS RIDGEHAVEN ENTITLED TO COMMENCE PUBLIC NOTIFICATION
RNP’s other contention is that the public notification period had not duly commenced at the time notification was carried out. It was contended that the application was, at that time, still in the information and referral stage, because Ridgehaven had yet to finish responding to the information request.
In response to the development application, the Council issued an acknowledgment notice, dated 10 January 2006, which, amongst other things, advised that there were applicable referral agencies and that an information request would be made. By letter dated 24 January 2006 the Council extended the information request period. An information request, dated 8 February 2006, was subsequently issued. No issue was taken with respect to those steps or the validity of the request.
Section 3.3.20(2) of the IPA provides as follows:
“If there are referral agencies for the application, the information and referral stage ends when –
(a)the assessment manager has received the notice from the applicant under s.3.3.4; and
(b)an action mentioned in sub-section (1)(a) or (b) has happened or the assessment manager’s information request period has ended; and
(c)all referral agency responses have been received by the assessment manager or, if all the responses have not been received, all referral agency assessment periods have ended”.
Relevantly for the application of s 3.3.20(2)(b), sub-section (1)(b) provides:
“If a request has been made – the applicant has finished responding to the request”.
Section 3.4.3 of the IPA makes provision about the commencement of notification. Subsection 3 provides as follows:
“If an information request has been made during the information request period, the applicant may start the notification period as soon as the applicant gives –
(a)all information request responses to all information requests made; and
(b)copies of the responses to the assessment manager”.
By virtue of s 3.2.12 an application lapses if notification is not carried out within 20 business days of the applicant becoming entitled to take that action.
Consequently, those who inspect the application during the public notification period, in order to decide whether or not to make a submission and to formulate the terms of any submission, are able to view not only the application but also the information request and responses, since those steps will have been taken by that time[3]. This represents a significant change from the position which applied under the repealed Local Government (Planning and Environment) Act. The explanatory notes to clause 3.4.3 of the Bill give the reason for that change as follows (my underlining):
“This is different from the current planning system which allows public notification to occur immediately after the application is lodged (i.e. before any request for follow up information had been made and responded to). The reason for the changed approach is to ensure the public has access to all the information supplied by the applicant about the application. It is considered this will allow people to make more informed appraisals of applications, and potentially reduce the need for submissions to be made against proposals”.
[3] See s 3.2.8 – public scrutiny of applications.
It would be contrary to both the letter and the purpose of those provisions for an applicant to provide an interim or staged response to an information request, so that part only of the response was provided prior to public notification, with the balance being delayed to a later stage. In such circumstances the applicant would not, at the time of public notification, have finished responding to the request and the public would not, at the time of public notification, have access to all of the information to be provided by the applicant in response to the information request. That is what RNP contends was done in this case.
A response to the information request was provided by Ridgehaven’s consultants under cover of a letter dated 19 May 2006[4]. Further information was however, provided at a later stage, after public notification. In particular, Ridgehaven sent further “supporting information” to the Council under cover of a letter dated 25 October 2006.
[4] The letter has a “received” date stamp of 31 May 2006
It was pointed out, on behalf of the respondents, that a response to an information request does not have to be one which provides all of the requested information. In that regard, s 3.3.8(1) provides that:
“If the applicant receives an information request from the assessment manager or a concurrence agency (the requesting authority), the applicant must respond by giving the requesting authority –
(a) all of the information requested; or
(b)part of the information requested together with a notice asking the requesting authority to proceed with the assessment of the application; or
(c)a notice –
(i)stating that the applicant does not intend to supply any of the information requested; and
(ii)asking the requesting authority to proceed with the assessment of the application”.
Ridgehaven’s response to the information request, dated 19 May 2006, provided some information together with a request that “Council now proceed with a further assessment of the application in view of the additional information provided” in the “trust that an approval will issue in due course”. It was contended that was a valid response to the information request, pursuant to s 3.3.8(1)(b), such that Ridgehaven had then finished responding to the request and was permitted to start the notification stage, even though further information was in fact provided at a later time.
It was pointed out, on behalf of the respondents, that there is nothing in the IPA which prevents further communication after the end of the information and referral stage and nothing which would require information provided at a later date to necessarily be treated as if it were part of the response to the information request. It was submitted on behalf of the Council, that, in addition to the 3 options specified in s 3.3.8(1), there is a fourth, not mentioned in the section, namely that further information can be provided to the assessment manager after the information and referral stage has finished.
Section 3.3.8(1) gives the applicant for development approval a broad discretion as to the extent of the information which will be provided in response to an information request. An applicant may choose to provide all or part or none of the information requested. This minimises the scope for the application process to become bogged down in disputes about how much information can or should reasonably be required. In this respect, the explanatory note provides, in part, as follows (my underlining):
“Clause 3.3.8 outlines the applicant’s responsibilities if an information request is given. Under most existing development assessment systems (e.g. planning, building, etc), the onus is usually on the applicant to comply fully with any information requests, regardless of the relevance or reasonableness of the request. In the case of the current planning system, an applicant’s only recourse in these situations is to not respond and wait for the opportunity to appeal to the court on the basis of a “deemed refusal”. This legislative approach to resolving problems is clumsy, time consuming and costly. The approach proposed in the Bill is to provide the applicant with options to resolve what otherwise could be an assessment deadlock. The applicant may provide all information requested, or alternatively part or none of the information requested accompanied by a notice asking the assessing authority to proceed with the assessment. Additionally, an applicant may seek assistance from the chief executive in certain situations (see clauses 3.3.10 to 3.3.13).”
While the applicant for development approval has a wide discretion in relation to the extent of its response to an information request, it does not have an open discretion as to the stage at which that response may be given. Relevantly, the applicant must finish responding in order to progress to the next stage of the IDAS process. That is so whether the response provides all or part or none of the information requested. There is no support in the legislation for the proposition that an applicant may, for example, provide an interim response at the information and referral stage, or that the response may otherwise be given in stages which span the public notification stage.
It may be accepted that an applicant who chooses to respond to an information request by providing part only of the information requested, is not thereafter debarred from any communication whatsoever with the assessment manager. An applicant is, of course, entitled to change its application at a subsequent stage (which might or might not require the application to be re-notified see ss 3.2.9, 3.2.10). It is not uncommon for an assessment manager to invite or permit an applicant to respond to issues subsequently raised in submissions received upon public notification (as also happened here) or during the assessment process (even if no information request is made). It was pointed out that s 3.5.7 provides for the extension of a decision making period “for the purpose of providing further information to the assessment manager”. Reference was also made to the provision for third party advice or comment in s 3.2.7(1), which permits the assessment manager to “ask any person for advice or comment about the application at any stage”.
That is not to say however, that the response to an information request can be an interim response or can be staged so that the full response is given, at least in part, subsequently to public notification. Even if an applicant for development approval chooses only to give part of the information requested, the response must be a final response before the public notification stage can commence. If not, it is difficult to see how the applicant has “finished responding to the request” or how all information request responses have been made.
It was not contended, on behalf of RNP, that the IPA prevented further communication between the applicant for development approval and the Council after the conclusion of the information and referral stage[5]. Similarly, it was accepted on behalf of Ridgehaven that, for the information and referral stages to end, the information response must be final[6]. It was conceded that an applicant could not give a partial response with part to follow after public notification[7]. Ridgehaven contended that it did not later supplement its information response.[8] Ultimately, the decisive issue is not so much one of the construction of the legislation as one of fact as to whether, at the time of providing information under cover of the letter of 19 May 2006, Ridgehaven had finished responding to the information request or whether, in truth, that was only an interim response or the first stage of the response which was completed at a later time.
[5] T18 l 10
[6] See paragraph 27, 29 of the written submissions.
[7] T74
[8] See paragraph 29 of the Ridgehaven written submissions.
The request, contained in the letter of 19 May 2006, for the Council to proceed “with the further assessment of the application in view of the additional information provided” and to send details of the adjoining land owners “so we may proceed with public advertising” would suggest that it was the intention of Ridgehaven to bring the information and referral stage to an end, so that the public notification stage could commence. That is relevant but not conclusive of the issue as to whether it had finished responding to the information request. It is necessary to look at the substance of what occurred.
It was pointed out that the Council treated the application as having progressed to public notification. On the other hand, insofar as the attitude of the Council’s Senior Planner is concerned, the documents reveal she understood that “the applicant felt that the application was losing momentum and responded to the RFI without the layout issues being resolved amongst all parties” and, with respect to information requested but not provided, that “the applicant intends to submit the missing items once all parties have reached general agreement on the shopping centre design and layout”[9]. The central issue however, is not the Council’s attitude or an officer’s understanding but whether Ridgehaven had, at the time, finished responding to the information request.
[9] See e-mail dated 28 June 2006. That was not relied upon (and I have not treated it) as evidence of Ridgehaven’s actual intention – see also memo of 28/6/06
The proposed shopping centre adjoins an area set aside for a future rail station, which was referred to a number of times in the material accompanying the application. Paragraph 4 of the information request was as follows:
“It is requested that the proposal plans be amended to clearly illustrate the shopping centre complex will integrate with and relate to the future CAMCOS station. The present layout prevents such integration with the car park and landscape areas acting as a barrier between the station and the shopping complex.
It is requested that the applicant liaise with Queensland Transport in order to determine the intended design/layout of the station and to discuss how to optimise future integration of the shopping complex with the station”.
Paragraph 7 of the information request sought a detailed and comprehensive site analysis plan showing specified things. Paragraph 11 sought a flooding/storm water drainage report. Paragraph 12 sought a water supply and sewerage report and paragraph 15 sought an environmental assessment report.
In its concurrence agency response, dated 7 April 2006, Queensland Transport expressed concern that the orientation of the proposed shopping complex did not sufficiently integrate with the future rail station, suggested reorienting the complex to better address the future station and offered to meet with Ridgehaven to discuss alternative access arrangements.
The information provided under cover of the letter of 19 May 2006 included amended design plans which changed the proposed layout including as to orientation and building footprint, but did not provide all of the information which had been requested. Insofar as the integration with the future station is concerned, the response provided, in part, as follows (my underlining):
“Through extensive consultation with Queensland Transport and Council, numerous design amendments were contemplated to provide integration between the future railway station and the proposed shopping complex. These design amendments included discussions and investigations into relocating the Park and Ride facility to enable better proximity to Kalana Road and to enable a more integrated development. However, Queensland Transport has recently decided that the original Park and Ride location is their desired option and therefore Brad Read Design has designed the shopping complex to facilitate the greatest number of design positives relating to pedestrian and vehicular movement, visual prominence from Kalana Road and integration with the future residential area to the west of the site. We anticipate Council will still want to discuss the integration issue of the station and the shopping complex with Queensland Transport and the applicant, and for this reason, a number of reports have not been prepared until clarification on the building footprint has been resolved”.
Under the heading “Designs and Sight (sic) Analysis” the information response stated (my underlining):
“Given the intended layout of the proposed development is constrained by Queensland Transport’s requirements, and is not the most favourable design preferred by Council in terms of integration, the design plans accompanying this attendance to the information request have not been developed to all of Council’s specifications. Once the concept of the amended design plans has been favourably considered by Council, the applicant will provide any further designs and site analysis details Council may still require”.
Insofar as storm water and water supply and sewerage supply reports are concerned, the information response stated (my underlining):
“As the final design layout plan has not been confirmed, a flood/storm water drainage report and water and sewerage supply report has not been prepared to accompany this attendance to the information request. Once Council has approved in principle the new design layout, this reporting will be undertaken”.
Insofar as an environmental assessment report is concerned, the information response stated (my underlining):
“In relation to the environmental integrity of the site, it should be noted that the site is presently being cleared and earth works are being undertaken in accordance with the approved retirement village over the site. In this regard, vegetation assessment over the site is not required, and elements such as sediment control, water quality and noise impacts have already been undertaken as part of the existing approval. However, in the event Council requires clarification relating to any particular environmental concern, the applicant will provide this information once agreement of the proposed design layout for the shopping complex has been achieved”.
The information response concluded with a summary in the following terms (my underlining):
“In accordance with the information provided within this attendance to the information request, we request Council confirm the proposed building footprint of the shopping complex, which concurs with Queensland Transport’s conditions. Once confirmation of the intended layout has been achieved, we request Council provide our office with any outstanding items”.
Those passages from the information response anticipate the provision of requested information at a later time, following confirmation of an acceptable layout. The further information was anticipated to be provided at a later time for the purposes of supporting the application.
The respondents sought to portray the response as a final response to the request, but with the anticipation that some future request might be made. It was submitted that the response did not evince an unqualified intention to provide further information in response to the request. The provision of further information depended, it was submitted, on the assessment Council subsequently undertook and whether it still required further information at that stage. There is perhaps more scope for that argument with respect to some parts of the information response than with other parts, such as the response in relation to storm water and water and sewerage supply reports which states, that “this reporting will be undertaken” once the layout issues have been resolved. It was submitted, on behalf of RNP, that Ridgehaven had effectively declined to make its choice of the 3 options provided for in s3.3.8. It was submitted that the response revealed that it was not content with the information it chose to provide under cover of the letter of 19 May and wanted the opportunity to provide further responsive information at a later date.
I note that, save with respect to the response on environmental assessment reporting, it was not asserted in the above passages that the information requested was not required or would not be given.
Following the provision of that response and the carrying out of public notification, discussions continued in relation to the layout of the proposal. Ridgehaven’s consultant town planner deposed to having:
“participated in ongoing correspondence and dialogue with the First Respondent in relation to the development application and provided further information as part of an iterative process”.
Ultimately, on 25 October 2006 Ridgehaven’s consultants forwarded to the Council further amended design plans which, it was claimed, demonstrated integration with the future station. The amended design plans again changed the layout of the proposal. The material provided at that time also included engineering designs, including with respect to stormwater, water supply and sewerage. Insofar as an environmental assessment report is concerned, Ridgehaven’s consultants reiterated their contention that no such report was required at this stage.
When Ridgehaven’s response of 19 May 2006 is read as a whole and in context, it is difficult to escape the conclusion that Ridgehaven had not yet finished responding to the information request. That response included a significantly amended layout plan, but it was not one which Ridgehaven had settled upon. The response treated the design layout as an unresolved issue in respect of which clarification or agreement was sought. The provision of other requested information was deferred to a later time, rather than refused[10]. The provision of further responsive information was contemplated.
[10] With the exception of the environmental assessment report
As a consequence of the public notification having been carried out after the first information response, but prior to the letter of 25 October 2006, the information available during the public notification period included an interim or first stage response by Ridgehaven to the Council’s information request, but not the final layout plan relied upon to demonstrate integration or the applicant’s response on some engineering matters which had been requested and which (with the exception of the environmental assessment report) Ridgehaven was, it seems, always prepared to provide at some point (and did in fact provide after public notification).
I am satisfied that, in the circumstances, Ridgehaven had not finished responding to the information request when it delivered material under cover of the letter of 19 May 2006 and did not finish responding to the request prior to its letter of 25 October 2006. I am satisfied that, at the time public notification was carried out, the information and referral stage had not ended and that the notification stage could not properly have started. Public notification was prematurely carried out.
It should be emphasised that my conclusion does not mean that a wall of silence has to descend as soon as the information and referral stage has ended or that any and every subsequent communication must necessarily be treated as part of the information response. What the IPA does require however, is that the applicant finish responding to the information request for the information and referral stage to end[11] and that all information request responses have been provided before the public notification stage may start. While the response may provide only part of the information requested, that response must be one which results in the applicant having finished responding to the request, if it is then proposed to move to the notification stage. Where it is proposed to provide information in response to the information request, the IPA does not permit the applicant for development approval to provide that information by way of a staged or interim response which defers the provision of more requested information until after the public notification stage. I am satisfied that is what happened in this case.
[11] Section 3.3.20(1)(b)
The amended proposal plan accompanying the “supporting information” of 25 October 2006 appears to exhibit significant differences to that which accompanied the information response dated 19 May 2006, and was the current proposal plan when public notification was carried out. Section 3.2.9 of the IPA, which relates to changing an application, does not apply to changes made in response to an information request. If, as the respondents contended, the “supporting information” was not in response to the information request, then a further issue might potentially have arisen as to whether the changes reflected in the supporting information were such as to have required the application to return to public notification in any event[12].
[12] See ss 3.2.9 and 3.2.10
SECTION 4.1.5A
Ridgehaven sought, in the alternative, an order under s 4.1.5A excusing non-compliance by reason of the prematurity of the public notification. The Council adopted a neutral attitude to that application. RNP opposed the use of 4.1.5A to excuse non-compliance, unless the applications were now re-notified.
Section 4.1.5A provides as follows:
“4.1.5A How a 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.”
That section was considered by the Court of Appeal in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410. It was described as one which “gives a wide power appropriately exercised as part of the process by which the court reaches the stage of making its final orders under s 4.1.54”. The proceeding at first instance in Metrostar was an appeal, to which s 4.1.54 applied. I do not take the Court of Appeal as having decided that s 4.1.5A may only operate in the context of proceedings of that kind, rather than in the context of other proceedings, such as declaratory proceedings, to which s 4.1.54 does not apply. The terms of the section and the legislative history[13] suggest it is not so confined. It was not contended, on behalf of RNP that the section is so confined or that Ridgehaven would have to apply for s 4.1.5A relief in its appeal rather than in these proceedings.
[13] S 4.1.5A replaced s 4.1.53 which, unlike s 4.1.5A, was in the part of the Act dealing with appeals and was expressly confined to appeals
The broad discretion conferred by s 4.1.5A is subject to the conditions precedent in subsection (1). The argument in this case focused on subsection (1)(b) which requires consideration as to whether non-compliance or partial compliance has substantially restricted the opportunity for a person to exercise the rights conferred by the Act. That requires an identification of the “rights conferred” and a consideration of the extent to which the opportunity to exercise those rights has been restricted. It can then be determined whether, as a matter of fact and degree, the opportunity has been “substantially restricted”[14].
[14]Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2006] QPEC 85 at [52]
Relevantly, for present purposes, the rights conferred are the rights to inspect and take into account all of the information provided in response to the information request at the time the application is publicly notified[15] and the right to make a submission. The exercise of the right to make a submission then accrues further rights in relation to appeals.
[15] S 3.2.8 requires the assessment manager to keep the application and any supporting material available for inspection and purchase. The result of ss 3.3.20 and 3.4.3 is that information provided in response to an information request will form part of the material which will be available during the notification period.
It was submitted, for Ridgehaven, that the non-compliance did not substantially restrict the opportunity of RNP or any other person to exercise rights. It was pointed out that RNP’s failure to exercise its rights is explained by its ignorance that public notification had occurred, rather than Ridgehaven’s failure to finish responding to the information request prior to public notification. It simply “missed the boat”. As for others, it was submitted that the general nature of the proposal remained unchanged and that any person who was concerned about the outstanding information could have made a submission to that effect. It was also pointed out that public notice could have been duly given out when it was, had the response of 19 May 2006 been in different terms, without giving any more information. I do not accept that those matters lead to the conclusion that, in the circumstances, s 4.1.5A is available or should be exercised in Ridgehaven’s favour.
I have already found that Ridgehaven had not finished responding to the information request on 19 May 2006. That being so, public notification ought to have occurred at a different and later time, once the final response had been made. There was a complete failure to carry out notification at the correct time. No person had the opportunity to exercise the right to make a submission at the time when public notification ought to have been carried out. It is at least possible that RNP, for example, might not have ‘missed the boat’, had it been afforded the opportunity to make a submission at a different time, in response to public notification carried out at the correct stage. Further, no person had the opportunity to inspect the final information response, which included a different plan of layout as well as further engineering designs, prior to being called upon to decide whether to make a submission. I am not satisfied that the restriction on the opportunity to exercise rights conferred was not substantial. Section 4.1.5A is not available in the circumstances.
I will give the parties the opportunity of addressing me on the terms of the orders which ought to be made having regard to these reasons.
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