Warner Village Proprietary Limited v Moreton Bay Regional Council and Ors (No 2)

[2013] QPEC 74

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Warner Village Proprietary Limited v Moreton Bay Regional Council & Ors (No 2) [2013] QPEC 74

PARTIES:

WARNER VILLAGE PROPRIETARY LIMITED

(Appellant)

AND

MORETON BAY REGIONAL COUNCIL

(Respondent)

AND

CASHMERE PROPERTY PTY LTD

(Co-Respondent)

AND

QUEENSLAND ELECTRICITY TRANSMISSION CORPORATION LIMITED ACN 078 849 233

(Co-Respondent by Election)

FILE NOS:

3348/13

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Planning and Environment Court

DELIVERED ON:

27^th September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27^th September 2013

JUDGE:

Robertson DCJ

ORDER:

1. The Court is satisfied there has been substantial compliance by the Co-Respondent with the provisions of the Sustainable Planning Act relating to the giving of public notice of the development application the subject of this Appeal.
2. The public notification was commenced before the information and referral stage ended.
3. The Court excuses that non-compliance pursuant to section 440 of the Sustainable Planning Act, and the appeal may proceed to a hearing.
4. The costs of and incidental to today are reserved.

CATCHWORDS:

PLANNING AND ENVIRONMENT – PUBLIC NOTIFICATION: whether the public notification of the proposed development was defective in that the sign was not within 1500 millimetres of the frontage boundary and not visible from the road; whether the commencement of the public notification stage commenced prematurely; whether circumstances justify excusal pursuant to s440 of the Sustainable Planning Act.

Legislation:
Integrated Planning Act 1997
Sustainable Planning Act 2009

Cases Considered:
Ross Neilson Properties Pty Ltd v Caloundra City Council and another [2007] QPELR 529

COUNSEL:

Mr S Fynes-Clinton for the Appellant
Mr J Haydon for the Co-Respondent

SOLICITORS:

Thomsons Lawyers for the Appellant
Mr R Duhig – Moreton Bay Regional Council Legal Services for the Respondent
Mullins Lawyers for the Co-Respondent

1. This is the matter of Warner Village Proprietary Limited Appellant  Moreton Bay Regional Council, Respondent and Cashmere Property Proprietary Limited, Co-respondent.  On the 19^th of September 2013, his Honour, Judge Robin QC made direction orders in relation to this appeal, culminating in the hearing being set down for five days in the January 2014 sittings of the Court.  He reserved for determination by me today, two preliminary issues raised by the appellant, Warner Village Proprietary Limited (Warner Village).

1. The first issue relates to public notification of the proposed development, the subject of the appeal; and the second relates to the commencement of the public notification stage which Warner Village asserts commenced too early.

1. The co-respondent Cashmere has a development permit from Council to extend its shopping centre, presently under construction at Cashmere, by 850 square meters.  Council’s decision was made on 6^th of August 2012, and the appeal was lodged on the 3^rd of September 2012.  Warner Village is a commercial competitor of Cashmere, and operates a large shopping centre some three kilometres away.  At the directions hearing, Warner Village raised a number of complaints about the positioning of at least one public notice on Ira Buckly Road.  It was alleged that the notice was defective, in that the sign was not within 1500 millimetres of the frontage boundary and not visible from the road.

1. Since then, Cashmere has filed a number of additional affidavits relating to this issue and it is no longer pressed as a non-compliance issue, hence the court is in a position to declare substantial compliance with the provisions of the Sustainable Planning Act 2009 (“the SPA”) relating to the giving of public notice of the development application. The other issue relating to the notification stage is still pressed and Warner Village’s position is that its appeal should be allowed on that limited ground, leaving Cashmere to properly undertake the notification stage and seek a further decision from Council. Cashmere argues that the information and referral stage had in fact ended when public notification commenced. In the alternative, if I find that there was noncompliance, it seeks excusal pursuant to section 440 of the SPA.

The relevant facts

1. On the 13^th of April 2013, during the information and referral stage, Council issued an information request to Cashmere.  Under the heading “Development Planning”, Cashmere was asked to provide “an addendum to the Economic Impact Assessment prepared by the Comiskey Group, dated April 2012.  The addendum should provide an assessment of the impact of the additional “use” areas (GFA) on the surrounding commercial catchment.  In particular, if the increase in GFA will have any detrimental impacts on the existing commercial development within the Warner locality.  It is not sufficient justification to state within the planning report that the owner has secured leases for the extension to the centre as justification for the proposed increase in GFA”.

1. Conventionally, the Council advised Cashmere it had three options, one of which was to give Council a notice stating that it did not intend to supply the information sought and asking it to proceed with assessment.  A consultant responded on behalf of Cashmere by letter dated the 6^th of May 2013. It did not provide an addendum to the April 2012 report, but did provide some further information relevant to Council’s request. It advised that the response was a full response under section 278(a) of the SPA. The reference should have been to section 278(1) (a) but nothing follows from what is clearly a typographical error. It is common ground that as a result, the Notification Stage commenced on the 7^th of May 2013 with public comment open from the 9th of May 2013 until the 29^th of May 2012.

1. What is now known is that Mr Wiebusch, who is the development manager of the group of which Cashmere is a part, authorised the letter of the 6^th of May 2013 on the basis of his opinion that the addendum report sought by Council was not necessary.  However, and as he puts it in his affidavit filed 26 September 2013, “in case Council did not accept…the response”, he contacted economist Peter Leyshon by email on the 3^rd of May 2013 to obtain a fee estimate “to provide a simple addendum letter in response to Council’s information request”.  With that email, he forwarded to Mr Leyshon the economic impact assessment report  prepared by Gavin Duane in support of Cashmere’s original development application to construct the shopping centre, and a copy of Council’s information request dated the 30^th of April 2013.

1. My Leyshon provided a fee estimate on the 8^th of May 2013 and was commissioned the same day by Mr Wiebusch to prepare the letter.  Mr Wiebusch asked that that addendum letter be provided no later than the 17^th of May 2013, a date clearly within the public comment period, a date sworn by Mr Weibusch to have been chosen arbitrarily by him in accordance with his usual practice.  He was not required for cross-examination, therefore his explanation can be accepted.  After the 6^th of May letter was sent, Cashmere’s consultant was advised by Council that, in effect, it did not accept the response on economic need and required the addendum it had sought in its information request.  Mr Leyshon provided his report on the 17^th of May,  and this was forwarded to Council on the 20^th of May 2013.

1. Mr Fynes-Clinton for Warner Village submits that the evidence as to when Council published Mr Leyshon’s report to PD Online is equivocal.  He acknowledges however that it was within the public comment period, i.e. prior to the 29^th of May 2013, as his client was able to provide a response to Council within that time.  In this regard, Mr Coldham, the town planner with Council who has responsibility for the development application, has sworn that Mr Leyshon’s report was, by reference to a slip annexed to his affidavit filed 26 September 2013 at page 13, published on PD Online on 21 May 2013.  As Mr Fynes-Clinton observes, the slip has only one date, the 7^th of June 2013 as being referable to when the entry was last updated.  Clearly that could not be the date when it was published, as Warner Village accessed it on or prior to the 29^th of May 2013.  Mr Coldham was not cross-examined and there is no reason not to accept his unchallenged evidence that the addendum was published on PD Online on the 21^st of May 2013.

1. Warner Village relies on the approach taken by Rackemann DCJ in Ross Neilson Properties Pty Ltd v Caloundra City Council and another [2007] QPELR 529. His Honour’s judgment is often referred to in relation to arguments about issues of the kind raised here by Warner Village. It is clear, that on the uncontested facts, Cashmere intended to provide the report sought in the information request, in the event, as it transpired, Council insisted. It would follow, therefore, that public notification commenced prematurely.

1. The question is then should Cashmere’s noncompliance be excused pursuant to section 440 of the SPA. Clearly the discretion to excuse noncompliance pursuant to section 440 of the SPA is wider than the same discretion contained in section 4.1.5A(1) of the Integrated Planning Act 1997 (“the IPA”). Although the decisions dealing with the ambit of the excusatory power under the IPA have less relevance now, it can be accepted that the statutory regime provided in the IDAS process is preserved, and the statements in cases (such as Ross Neilson) about the importance of the notification stage still apply.

1. In my opinion, the issues relevant to the exercise of the discretion here are as follows:

1.Cashmere clearly intended, prior to its letter dated the 6^th of May 2013, to provide the addendum report if Council insisted.

2. In that sense, its request to commence the public notification stage prematurely was deliberate, but not wilful in the pejorative sense in which Mr Fynes-Clinton uses that term in his written outline.

3. The further information was available for public comment on the 21^st of May 2013, i.e. prior to the end of the public comment period on the 29^th of May 2013.

4.The additional information sought in the information request specifically focused on Warner’s facility and Warner’s consultant was able to view it and provide a response to it prior to the end of the end of the public comment period.

5.Given the nature of the further information provided, it is highly unlikely that it would have made a difference to potential submitters other than those (such as Warner Village) who are commercial competitors of Cashmere.  There is no evidence to suggest that there are any other such commercial competitors who would have been entitled to make a submission.

6.In my opinion, Cashmere did not obtain any relevant benefit from its breach.

1. In my opinion, the facts here are significantly distinguishable from the facts in the Ross Neilson case. There, the further information provided, which went to the heart of the information request and dealt with fundamental issues of design and layout, was provided well after the end of the public notification period. It would follow that Cashmere’s noncompliance with the relevant provisions of the SPA is excused. I indicated this morning after hearing the parties that I accepted that there was non-compliance but that I would excuse it in the exercise of my discretion pursuant to section 440, and I indicated to the parties that I would publish my reasons today. I direct that a copy of these reasons be transcribed and after revision be provided free of charge to the parties. The parties are to provide me with a draft order reflecting my conclusions.