High Court of Australia confirms the Queensland Court of Appeal's decision that the levying of infrastructure charges was to be under the current infrastructure charging regime

In brief

The case of Sunland Group Limited v Gold Coast City Council [2021] HCA 35 concerned an appeal by developers (Appellants) to the High Court of Australia (High Court) against the decision of the Queensland Court of Appeal (Court of Appeal) in the case of Gold Coast City Council v Sunland Group Limited & Anor [2020] QCA 89 (Court of Appeal's Decision) in respect of the interpretation of conditions relating to infrastructure contributions in a preliminary approval (Preliminary Approval) granted under the now repealed Integrated Planning Act 1997 (Qld) (IPA).

Our June 2020 article contains a note in respect of the Court of Appeal's Decision.

The Preliminary Approval was extended under the now repealed Sustainable Planning Act 2009 (Qld) (SPA) and continues to have effect under section 286 of the Planning Act 2016 (Qld) (PA).

With the introduction of the SPA and then the PA, the Parliament had moved away from the infrastructure charging framework under the IPA, which allowed a local government to require a contribution towards the cost of supplying infrastructure under a planning scheme policy about infrastructure, to the current infrastructure charging regime, which requires a local government to give an infrastructure charges notice to levy infrastructure charges.

The High Court held that conditions in a preliminary approval are a "…'framework' for the issue of future development permits", which do not create final rights that govern the development of land (at [54]). 

The High Court held that the relevant conditions of the Preliminary Approval did not create liability for the payment of infrastructure contributions, which was demonstrated by the future-tense language used in the conditions, and because the date for the payment and the amount of the infrastructure contributions was not included in the conditions (see [3], [24], and [48] to [55]). 

The High Court noted that "[w]here there is an exercise of power for the imposition of a charge, the very nature of the power usually necessitates certainty in the imposition of the charge." (at [21], see also [32]). 

Conditions of a preliminary approval ought to be construed according to the rules of construction which govern the interpretation of Acts of Parliament and subordinate instruments, and not rules which govern the interpretation of contracts (see [21] and [58] to [59]). 

The High Court held that the conditions of the Preliminary Approval were only to put the Appellants on notice that contributions towards infrastructure would be required when a later development permit was issued.

The High Court held that if the Preliminary Approval conditions were to create a liability for the payment by the Appellants of infrastructure contributions, the failure to include a date or time for the making of the contributions would have been an improper exercise of power (at [13] and [60]). 

The High Court agreed with the Court of Appeal's Decision that the Preliminary Approval conditions did not require the payment of infrastructure contributions, and any infrastructure contributions sought would be required to be by way of an infrastructure charges notice in accordance with the infrastructure charging regime under the PA.

Litigation history

The Court of Appeal's Decision overturned the decision of the Planning and Environment Court of Queensland (P&E Court) in the case of Sunland Group Limited & Anor v Gold Coast City Council [2019] QPEC 14. 

The P&E Court had held that the Gold Coast City Council (Council) had the power to collect from the Appellants infrastructure charges to be calculated in accordance with conditions 13 to 16 of the Preliminary Approval. 

The Court of Appeal's Decision overturned the decision of the P&E Court, and held that the conditions ought to be construed according to the current infrastructure charging regime under the PA, which required the Council to issue an infrastructure charges notice to levy a charge in respect of infrastructure.

Parties' positions 

The Appellants submitted that the assessment of infrastructure contributions by the Council ought to be in accordance with the conditions of the Preliminary Approval, which created a present obligation on the Appellants to pay infrastructure contributions on a future date. The Appellants' position was therefore that the contributions ought to be calculated under the old infrastructure charging regime under the IPA. 

The Council submitted that conditions of the Preliminary Approval did not create a liability on the Appellants to pay infrastructure charges, and therefore, the Council was required to issue an infrastructure charges notice under Chapter 4 of the PA. 

Conditions of the Preliminary Approval did not create a liability to pay 

The High Court agreed with the Court of Appeal's Decision that the conditions of the Preliminary Approval did not create a present obligation on the Appellants to make a payment contributing towards infrastructure. 

The language used in the conditions of the Preliminary Approval lacked sufficient certainty for the High Court to determine that infrastructure charges had been levied under the IPA and therefore ought to continue to be subject to that infrastructure charging regime.

The case of Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82; (2020) 4 QR 192; (2019) 242 LGERA 187 (Ashtrail case) provides an example of a condition of a development approval granted under the old infrastructure charges regime under the IPA, which continued to operate under the IPA despite the introduction of the SPA and the PA. 

The High Court distinguished the Ashtrail case on the basis that the relevant condition was expressed in mandatory language, and had precisely identified the time for the payment of the contribution and the means of calculating the contribution. 

The High Court held that the purpose of the conditions of the Preliminary Approval was to ensure that the issue of any development permit in the future would impose consistent infrastructure contribution liabilities. However, at the time later development permits were issued, the IPA had been repealed and the new infrastructure charges regime under the PA was in operation. 

Conclusion

The High Court held that there was no present liability in the Preliminary Approval for the payment of infrastructure contributions, and that infrastructure charges were required to be levied by way of an infrastructure charges notice in accordance with the current infrastructure charging regime under the PA.