Unreasonable? No, not this infrastructure charges notice

In brief

The case of MC Property Investments Pty Ltd v Unity Water [2017] QPEC 74 concerned an appeal to the Planning and Environment Court by MC Property Investments Pty Ltd against Unitywater's decision regarding an infrastructure charges notice given to the Appellant for the connection of a development containing 20 units.

The Appellant alleged that the infrastructure charges notice was unreasonable and also that, if the Appellant's construction of the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 (SEQ Water Act) is accepted, Unitywater should not have issued the infrastructure charges notice.

The Court held that the decision by Unitywater to levy the infrastructure charges notice was not unreasonable and did not accept the Appellant's construction of section 99BRCJ (Limitation of levied charge) of the SEQ Water Act. The Court therefore dismissed the appeal.

Background

Unitywater issued the Appellant with an infrastructure charges notice in relation to a 20 unit multiple dwelling building on land in Marcoola.

The parties agreed that the development involves an increased demand of 19 units on the existing sewer and water infrastructure. However, the Appellant alleged that because all of the relevant development permits had been approved before Unitywater gave its water approval, the development was not creating any additional demand.

The Council had agreed to the Appellant's request that a superseded planning scheme be applied to the development application, resulting in the development application for a material change of use being self-assessable.

Legislative framework

The Court noted that the appeal is akin to a form of judicial review of Unitywater's review decision regarding the issuing of the infrastructure charges notice. The Appellant is therefore required to demonstrate one or more of the matters in section 99BRBO(3) (Appeals about applications for connections—particular charges) of the SEQ Water Act, which are as follows:

• that the amount charged by Unitywater was so unreasonable that no reasonable distributor-retailer could have imposed the amount;
• the decision involved an error relating to the application of the relevant charge; or
• there was an error in the working out of the additional demand.

Court determined that the amount of the charge was not unreasonable in the circumstances

The Court had regard to the case law regarding the test for unreasonableness. The Court considered the case of Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and concluded that the test is whether the decision reached by Unitywater to issue the relevant infrastructure charges notice was an irrational one, or one devoid of plausible justification.

The Court then considered Unitywater's arguments as to why its decision was not one that was irrational or devoid of plausible justification, being the following:

• Unitywater's internal review decision was of high quality and appropriately justified;
• there was additional demand warranting the imposition of additional charges to accommodate the increased demand; and
• the amount of the charge and the calculation of the charge was correct.

Court determined that the construction of section 99BRCJ of the SEQ Water Act as contended for by the Appellant would offend principles of statutory interpretation

Section 99BRCJ(2)(b)(iii) of the SEQ Water Act relevantly states as follows [our emphasis]:

"(2)  In working out additional demand —

(a)  ...

(b)  the demand on trunk infrastructure generated by the following must not be

included —

(i)  ...

(ii)  ...

(iii)  other development on the premises if the development may be lawfully carried out without the need for a further development permit under the Planning Act."

The Appellant alleged that, because the development was self-assessable and no further development permits were required in relation to the self-assessable material change of use application, no additional demand was generated by the development for the purposes of section 99BRCJ(2)(b)(iii) of the SEQ Water Act. The Appellant therefore argued that Unitywater should have excluded the additional 19 units in its calculation of the additional demand.

Unitywater alleged that further development permits were required for the development, such as development permits for operational work and building work, despite the development being self-assessable under the relevant planning scheme and not requiring any further development permits. The Court agreed.

The Court also held that additional demand was generated by the development by reference to the state of the premises as it existed before the issue of the development permit.

The Court held that the interpretation alleged by the Appellant would read words into the relevant section that are not there. It was not acceptable to confine the words "without the need for a further development permit under (the SPA)" as a reference only to the provision of the self-assessable development permit for a material change of use and exclude other types of development permits required for the development.

The Court held that the appeal was without merit and was dismissed.