Queensland Planning and Environment Court determines whether development conditions restricting vehicle movements ought to be imposed and whether there was an error in the calculation of extra demand

In brief

The case of Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 67 concerned two appeals to the Queensland Planning and Environment Court which were heard together, one being an appeal against development conditions imposed on a development approval for an 'Intensive animal industry - Poultry Farm' (Development Approval) on land at 119 Pioneer Road, Beerburrum (Land), and the other being an appeal against the Council's related decision to give an infrastructure charges notice dated 10 April 2019 (ICN) in respect of the Development Approval.

Court granted leave to allow the Appellant to add a new issue in dispute to the conditions appeal

The development conditions the subject of the conditions appeal had been resolved before the hearing. On the second day of the hearing, however, the Appellant successfully added with the Court's leave a new issue in dispute in the appeal being that the following development conditions ought to be imposed on the Development Approval (Disputed Conditions):

"1.        The purpose of this condition is to regulate vehicle movements associated with the use of the land for a poultry farm to ensure that there is no extra demand placed on trunk infrastructure as a consequence of the approved use.
2.         The permitted roads for vehicles associated with the use accessing and departing the site are:
            [list of roads and approved vehicle movements associated with the use]
…
4.         All vehicles … are to be fitted with GPS monitoring. …"

Court was not satisfied that the Disputed Conditions ought to be imposed

The Court held that the Disputed Conditions ought not be imposed on the Development Approval for the following reasons:

(a)  Absence of an assessment of a relevant code – The Court found that there was a significant gap in the Appellant's case in that there was no reference to a relevant assessment benchmark in the planning scheme, which includes a transport and parking code. The Court was not directed to any part of that code which required vehicle movements to minimise demand on trunk road infrastructure.

(b)  Absence of evidence establishing a planning purpose for the imposition of the Disputed Conditions – The Court accepted the evidence of the Council's town planning expert that there was no planning purpose for the imposition of the Disputed Conditions, and that the only purpose of the Disputed Conditions was to avoid liability for infrastructure contributions.

(c)  Impractical and unrealistic conditions – The Court accepted the evidence of the Council's traffic expert that "a condition seeking to limit the routes of travel for all vehicles to and from the development is unrealistic because there is a genuine likelihood that multi-purpose vehicle trips will occur" (at paragraph [35]). The Court did not accept the Appellant's contention that no multi-purpose trips were intended and that multi-purpose trips could be controlled by the Disputed Conditions.

(d)  Difficulty in monitoring and enforcing the Disputed Conditions – The Court noted that it would be difficult to monitor vehicles using the Council's road network and whether there was compliance with the Disputed Conditions. The Court found that the cumulative effect of potential individual breaches would be significant, and it would result in extra demand being placed on Council's trunk road network.

(e)  Significant burden on Council to enforce the Disputed Conditions – The Court noted that the Council's usual practice for enforcement is complaint driven, and that it would be unlikely that the community would be able to identify non-compliances. As a result, the Council would be required to employ a proactive approach, which would require the Council to expend additional resources for the sole purpose of enforcement of the Disputed Conditions.

Court found that an ICN ought to be given for the Development Approval

The Court noted that the starting point in respect of the appeal against the ICN is to consider whether the precondition to giving an ICN in section 119 of the Planning Act 2016 (Planning Act) is satisfied, being "a development approval has been given and an adopted charge applies to providing trunk infrastructure for the development". The Court was satisfied that the precondition was met in this case.

The Court then went on to consider section 120(1) of the Planning Act, which states a limitation for a levied charge being that "a levied charge may be only for extra demand placed on trunk infrastructure that the development will generate". The Court had regard to the Court of Appeal decision of Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191, [78] (Wagner Decision), noting that the Wagner Decision related to sections 635(1) and 636(1) of the Sustainable Planning Act 2009, which are materially the same as sections 119(1) and 120(1) of the Planning Act respectively, and therefore the Wagner Decision was relevant to this case.

The Court found that an ICN ought to be given for the Development Approval as there was no error in calculating the extra demand under section 120(1) of the Planning Act, after considering the two pre-conditions for levying an infrastructure charge articulated in the Wagner Decision as follows:

(a)  "Is there demand which links the development with the relevant trunk infrastructure?" – The Court found that the development would generate extra demand on the Council's trunk road network and trunk public parks as identified in the Council's Adopted Infrastructure Charges Resolution for the following reasons:

(i)  That the development would generate additional vehicle movement to and from the Land which would generate extra demand on the Council's trunk road network.

(ii)  The Court accepted the evidence of the Council's town planning expert that ad hoc trips would occur from the development to parts of the public parks network as drivers who are delivering supplies to the development may stop at a local park for the purpose of having lunch, a drink of water or to use the amenities such that they would generate extra demand on the Council's trunk public parks network.

(b)  "Is there additional [extra] demand over and above what the current uses of the subject land generate in respect of road and park trunk infrastructure?" – The Court found that there would be extra demand over and above the demand generated by the current uses of the Land for the following reasons:

(i)  With respect to the road network, in circumstances where the Court had determined not to impose the Disputed Conditions, the Court accepted the Appellant's submission that "if there is no condition on the approval limiting the travel routes, the Court could not exclude the prospect that there would be extra demand on the trunk road network".

(ii)  With respect to the trunk public parks network, the Court accepted the evidence of the Council's town planning expert in relation to the ad hoc trips generated by the drivers as stated above.

Conclusion

The Court held that the Disputed Conditions ought not be imposed on the Development Approval, and that an ICN ought to be given for the Development Approval.