Insights

In brief

The case of Homes R Us (Australia) Pty Ltd v Gladstone Regional Council [2014] QPEC 66 concerned an appeal in the Planning and Environment Court against a decision of Gladstone Regional Council to refuse a development application for a reconfiguration of a lot lodged by Homes R Us (Australia) Pty Ltd.

The council refused the application on the basis that it was inconsistent with conditions of an existing development approval for a reconfiguration of a lot. The appeal was confined to solely concerning the development application in the context of the conditions requiring infrastructure contributions under the existing development approval for a reconfiguration of a lot.

The court found no basis to refuse the development application in that regard and therefore allowed the appeal.

Homes sought to have the reconfiguration of a lot approved under the existing development approval reapproved under the new infrastructure charging regime

Homes was given a development approval for a material change of use from community use to village and reconfiguration of a lot (1 lot into 66 lots stage 1 and 2) for a residential estate at Tarrawonga Drive, Calliope. The development approval for the reconfiguration of a lot relevantly included conditions of approval relating to infrastructure contributions under various planning scheme policies of the council which were in force at the time.

By operation of the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011, a new regime for levying infrastructure charges applied, which was significantly more favourable to Homes.

To enable the council to apply the new infrastructure charging regime, Homes lodged a new development application for a development permit for the reconfiguration of a lot (stage 1 (32 lots, easement and balance lot) and stage 2 (32 lots)), which sought to have the reconfiguration of a lot approved under the existing development approval reapproved under the new regime.

The council refused the new development application on the basis that it was inconsistent with the conditions of the existing development approval.

The court observed that there were differences between the plan of subdivision approved under the existing development approval and the plan of subdivision the subject of the new development application but considered them to be minor.

Court had to determine whether approval of the new development application would result in a condition being imposed which was inconsistent with a condition of the existing development approval in the context of the conditions requiring infrastructure contributions under the existing development approval

The appeal was confined to solely concerning the new development application in the context of the conditions requiring infrastructure contributions under the existing development approval for a reconfiguration of a lot. The issue primarily related to whether an approval of the new development application would result in a condition being imposed which was inconsistent with a condition of the existing development approval.

The council contended that a decision to approve the new development application would be inconsistent with the existing development approval for a reconfiguration of a lot, in that the existing development approval required infrastructure contributions under the previous infrastructure charging regime and conditions requiring such infrastructure contributions could no longer be lawfully imposed.

Conversely, Homes contended that since conditions requiring such infrastructure contributions could not lawfully be imposed, no such conditions could be imposed which would be inconsistent with the conditions of the existing development approval.

Homes also contended that the new development application would simply replace the existing development approval for the reconfiguration of a lot and there would be no inconsistency between the two approvals, while the council argued the following, by reference to the principles outlined in Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386 at 392 and Peet Flagstone City Pty Ltd v Logan City Council & Ors [2014] QCA 210 at [28]:
 
(a) if the new development application was approved, it would have the benefit of two development approvals in effect for the subject land and both of them would authorise substantially the same development but with "inconsistent concomitant burdens"; and
 
(b) there were strong discretionary grounds for dismissing the appeal given the loss of significant revenue to the council resulting from Homes' "unashamedly cynical attempt" to avoid paying infrastructure contributions.

Court found that approval of the new development application would not result in a condition being imposed which was inconsistent with a condition of the existing development approval and discretionary grounds were not enlivened from the legislative policy intent under the new infrastructure charging regime to justify the council's decision to refuse the new development application

The court found that an approval of the new development application would not result in a condition being imposed which was inconsistent with a condition of the existing development approval as infrastructure contributions could not be imposed by conditions but rather by giving adopted infrastructure charges notices.

The court observed that the present situation was not same as that in Genamson Holdings Pty Ltd v Caboolture Shire Council and Peet Flagstone City Pty Ltd v Logan City Council & Ors. In those cases, there was an attempt made to avoid the legal obligations imposed by conditions of earlier development approvals necessary for the development to lawfully be carried out. In this regard, Homes only sought to substitute the existing development approval for a reconfiguration of a lot with the new development application under the new infrastructure charging regime which was more beneficial to Homes from an infrastructure charges perspective.

The court noted that there was no discernible legislative policy intent under the new infrastructure charging regime which sought to prevent developers making a development application to reduce their infrastructure charges liability. Accordingly, the court did not consider any discretionary grounds were enlivened which would justify the council's decision to refuse the new development application.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​