Planning and Environment Court of Queensland dismisses appeal against an infrastructure charges notice finding the levied charge was correctly calculated by reference to the demand generated by all types of development facilitating the end use of the premise

In brief

The case of Douglas Construction & Engineering Pty Ptd v Logan City Council [2023] QPEC 28 concerned an appeal to the Planning and Environment Court of Queensland (Court) against an infrastructure charges notice (ICN) issued by the Logan City Council (Council) in respect of a development permit for building work on land in Loganholme (Subject Land).

The Council gave to the Appellant an ICN on 2 February 2022 pursuant to section 119(2) of the Planning Act 2016 (Qld) (Planning Act). The Appellant commenced its appeal on 23 May 2022 pursuant to section 229(1) of the Planning Act, seeking an order that the ICN be set aside and replaced with, or changed to, a decision that the levied charge be nil for the reason that that the ICN involved an error relating to the working out of extra demand for section 120 of the Planning Act.

The Appellant alleged that Council failed to properly apply section 120(2)(c) of the Planning Act in calculating the levied charge the subject of the ICN by failing to not include the demand generated by the use of the Subject Land as a warehouse and ancillary office, being "other development" on the Subject Land that may be lawfully carried out without the need for a "further development permit" (at [14]).

The Council argued that for the purpose of section 120 of the Planning Act and sections 3.6, 6.1 and 6.2(a) of the Logan Charges Resolution (No. 9) 2021 (Logan Charges Resolution) (at [16]):

"(a) the warehouse and ancillary office are not 'other development on the premises' but is the same development for which the charge was levied;
(b) even if the material change of use is 'other development', the start of the new warehouse and ancillary office may not be lawfully carried out without the need for a further development permit for building work and operational work; and
(c) the infrastructure charges notice does not involve an error relating to the working out of extra demand for s 120 of the Planning Act 2016."

Accordingly, the Court determined the following questions (at [18]):

"1. Is the making of a material change of use of the subject land for a warehouse and ancillary office 'other development' on the subject land?
2. Can the warehouse and ancillary office use lawfully start without the need for a 'further development permit'?
3. Should the ICN be set aside and replaced with, or changed to, a decision that the levied charge be nil?"

The Appellant bore the onus of establishing that the appeal should be upheld by demonstrating that each question is answered in the affirmative.

The Court held that the Appellant failed to discharge its onus and accordingly dismissed the appeal.

Court finds the making of a material change of use of the Subject Land for a warehouse and ancillary office is not "other development"

The Appellant submitted that "other development" for section 120 of the Planning Act constitutes any type of development other than that which triggered the giving of the ICN, having regard to the language used in section 119(1)(a), section 119(1)(b), section 120(1), section 120(2)(a), and section 120(2)(b), and the operation of section 122(2)(b), of the Planning Act (see [59] to [67]).

The Appellant submitted that this construction of "other development" for section 120(1)(c) of the Planning Act is sufficiently broad to encompass development in the form of making a material change of use.

The Council submitted that the material change of use of the Subject Land for warehouse and ancillary office cannot be "other development" for the purpose of section 120(2)(c) of the Planning Act for the following reasons (see [68] to [72]):

• Reference to "the development" in section 120(1) of the Planning Act is to all aspects of the development and the use sought to be facilitated by it, thus encompassing all its constituent types that will generate demand on trunk infrastructure. This construction is consistent with the legislative scheme and the meaning confirmed by the explanatory note to section 119 of the Planning Act.

• The fact that a development permit is not required to make a material change of use of the Subject Land for a warehouse and ancillary office does not mean that "development" has occurred. "Development", under schedule 2 of the Planning Act, includes "making a material change of use of premises". Since no material change of use of the Subject Land had been made at the time of the building work approval, there is no "development" or "other development" that could be considered as creating extra demand for section 120(2)(c) of the Planning Act.

The Court considered the legislative regime in respect of infrastructure charges from [23] to [34], particularly the limitations for levied charges imposed by section 120 of the Planning Act which formed the subject of the dispute.

The Court made the following observations about the legislative regime in respect of infrastructure charges (see [36] and [37]):

• The purpose of the chapter within which the relevant provisions are found is to authorise a local government to levy charges in relation to the demand placed on trunk infrastructure generated by "the development".

• A reference to "the development" encompasses all types of development that, in combination, facilitate the end use of the premises, this being what places demand on trunk infrastructure, rather than a single type of development in isolation.

The Court found that this interpretation of "the development" is assisted by a reading of chapter 4 in the context of the whole of the Planning Act, which "…reveals that a development permit for each type of development will not always be required to use premises for a purpose identified in sch 16 of the Planning Regulation 2017" (at [38]).

Accordingly, the Court concluded that "the development" encompasses all types of development regardless of whether the type of development requires a development approval, as it is the combined undertaking of all types of development that generates the demand on trunk infrastructure (at [44]).

Court finds it unnecessary to determine whether the warehouse and ancillary office use can lawfully commence without the need for a "further development permit"

Having found that the making of a material change of use of the Subject Land is not "other development", the Court deemed it unnecessary to answer the second question (at [75]). Yet, the Court made several observations regarding the Appellant's submissions regarding this issue from [76] to [81]. The Court concluded that it was not persuaded that, even if other "other development" is properly construed as including the making of a material change of use in the building the subject of the levied charge, the term "further development permit" should be attributed to the meaning contended by the Appellant (at [82]).

Notably, in this regard, the Court did not accept the Appellant's submission that the ordinary meaning of the word "further" attaches a future connotation and thus contemplates additional development permits beyond those currently in existence (see [77] to [78]).

Court finds that the calculation of the levied charge should not be replaced with, or changed to, a decision that the levied charge be nil

The Court stated that "…even if the Appellant had persuaded me of its construction of s 120 of the Planning Act 2016…it has not persuaded me that there is an error in working out extra demand for s 120 of the Planning Act 2016 such that the levied charge should be nil." (at [83]).

The Court recognised that it was not in dispute that the ability to make a material change of use for a warehouse and ancillary office is "accepted development subject to requirements" (at [87]). Rather, the dispute concerned whether a further development permit for building work and operational work is required to lawfully carry out a material change of use and, if so, whether the development permit for operational work is for a specific purpose or use such that it satisfies that requirement (at [87]).

The Court stated that it was not persuaded of the following (at [90]):

"(a) the making of a material change of use for a warehouse with the same gross floor area and the same extent of area impervious to stormwater as that which is the subject of the building work approval could occur as accepted development; and
(b) even if the Appellant is correct about the proper construction of s 120 of the Planning Act 2016, the extra demand calculated in accordance with the Logan Charges Resolution No. 9 2021 equals the adopted charge for the development the subject of the building work approval such that the levied charge should be nil."

Conclusion

The Court held that the extra demand calculated in accordance with the Logan Charges Resolution was correct, such that the levied charge should not be replaced with, or changed to, a decision that it be nil.

Having found that the Appellant did not discharge its onus, the Court dismissed the appeal.

The Appellant filed on 28 July 2023 an application for leave to appeal to the Queensland Court of Appeal against the Court's decision. The application is yet to be decided by the Queensland Court of Appeal.