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In brief

The case of Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8, concerned an application heard by the Queensland Planning and Environment Court. Walter Elliott Holdings Pty Ltd, a developer that had received a development approval for a relocatable home park, sought declaratory and consequential relief from the court to the effect that infrastructure charges should have been levied at the rate for two bedroom relocatable dwellings, and the development was subject to a 20% subsidy of applicable infrastructure under the Fraser Coast Regional Council's Infrastructure Charges Incentives Administrative Policy.

The main issues in dispute were whether a study or multi-purpose room in a two bedroom relocatable home constituted a third bedroom for the purpose of infrastructure charging, and whether the 20% subsidy under the Incentives Administrative Policy should have been applied by the council to the development.

The court found that the development was only for two bedroom relocatable homes and the council should have applied the rate for a two bedroom dwelling, and that the council did not consider the policy. The adopted infrastructure charges notice given by the council was set aside. The council was ordered to issue an adopted infrastructure charge notice by applying the correct rate and decide whether the 20% subsidy under the policy applied to the development.

Court found that the developer only sought to reserve flexibility to internal design choice and it was clear that the proposed homes would be two bedroom relocatable homes

The court observed that the planning report which accompanied the development application included example designs of proposed relocatable homes, some of which contained two bedrooms and some contained an additional room which was labelled as either a "study" or "multi-purpose room". The council applied the higher infrastructure charging rate for a three or more bedroom relocatable dwelling, rather than the charging rate for a two bedroom relocatable dwelling because it considered that the study or multi-purpose room could be used as a bedroom.

The council relevantly noted that the planning report provided that "it is requested that these designs not be stamp (sic) approved as to allow for flexibility in house design for future stages" and that the example design plans were not part of the approved plans. The report also contained statements about the development containing only two bedroom relocatable homes.

Accordingly, in the court's view the developer only sought to reserve some flexibility to internal design choice for the proposed two bedroom dwellings, and the council would be in no doubt that the developer was seeking a development approval for two bedroom relocatable homes only. The court did not consider that there was any factual or legal justification for the council to unilaterally treat the additional room labelled as a "study" or "multi-purpose room" as a third bedroom.

Court found that the approved development was for two bedroom relocatable homes and the council should have used the infrastructure charging rate for a two bedroom dwelling

The development approval did not expressly specify the bedroom type or otherwise limit the number of bedrooms. On that basis, the council applied the infrastructure charge for the highest use permitted by the development approval being a three or more bedroom relocatable dwelling.

The court referred to the decision of Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2004] QPEC 74, where the court stated that "[t]he responsibility to ensure approvals of development are clear and unambiguous rests with the approving authority". The court in that decision also made reference to the decision in Matijesivic v Logan City Council (1984) 1 QR 599, where the court stated that:
 
planning decisions are apt to have considerable effects on the value of property and in my judgment it would accord with principle where planning decisions are ambiguous to construe them in the way which places the least burden on the landowner.
 
However, the court noted that such remarks were required to be "...read in the context that councils are only empowered to properly assess and approve a development within the four corners of the application. A development application marks out the boundaries of the approval sought, and a resultant approval can be no wider than the application to which it relates."

The court found that when the development approval was construed in that light, any perceived lack of clarity or certainty in the approval was absolved. As such the court concluded that:
  • the approved development was for two bedroom relocatable homes only and the development approval should be construed accordingly,
  • the council should have used the infrastructure charging rate for a two bedroom dwelling,
  • the council acted beyond power by imposing a charge for a three or more bedroom dwelling.

Court found that the council did not consider the Incentives Administrative Policy and failed to exercise its discretion under the Policy

The developer challenged the approach taken by the council in relation to the application of the Incentives Administrative Policy in the context of the proposed development.

While there was an express statement in the policy that it was entirely at the council's or the Chief Executive Officer's discretion to apply the policy, the court noted that "it is trite law that the discretion be exercised properly in good faith and for a proper, intended and authorised purpose, and not arbitrarily or capriciously".

The court considered the operation of the policy and the eligibility criteria. In the court's view, there was no evidence which indicated that the council had considered the policy, considered whether the development satisfied the criteria under the policy, or decided that the development did not satisfy the criteria. As such, the court found that the policy was not considered by the council, and that the council failed to exercise its discretion under the policy.

The court ordered the council to consider whether or not to apply the 20% subsidy to the charge under the policy and advise the developer accordingly.

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.​

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