Insights

In brief

The case of Trevorrow v Council of the City of the Gold Coast [2017] QSC 12 is significant as it concerns a land owner's liability to pay unpaid infrastructure charges related to a development approval even where they are not the applicant for the development approval.

The case concerned the interpretation of section 639 of the Sustainable Planning Act 2009 prior to the amendments on 4 July 2014. However, the authors note that the current section 664 of the Sustainable Planning Act 2009 is in substantially the same terms and, in our view, would attract the same result.

Trevorrow brought an application in the Supreme Court of Queensland seeking declarations that the registered proprietor of land is not liable to the Council for an infrastructure charge under an infrastructure charges notice given with a decision notice for a development approval in circumstances where the registered proprietor was not the applicant for the development approval.

The Council issued an infrastructure charges notice to the applicant upon approving its development application for a material change of use on land owned by Trevorrow. Upon non-payment of the infrastructure charge, the Council issued a rate notice to Trevorrow which included an amount in respect of the unpaid infrastructure charge.

The Court found that if an infrastructure charge were taken to be "rates" under section 639 of the Sustainable Planning Act 2009, then section 96 of the Local Government Act 2009 and section 127 of the Local Government Regulation 2012 would have applied to make the registered proprietor of land liable for the charge.

The Court further found no justification for reading in words in order to limit the operation of section 639(1) of the Sustainable Planning Act 2009 to circumstances where the owner was the applicant and ultimately dismissed the application.

Court examined the legislative framework for imposing the infrastructure charge and found that a registered proprietor of land is liable for the charge

The relevant infrastructure charges notice was one given under the repealed Integrated Planning Act 1997 for the purposes of section 833 of the Sustainable Planning Act 2009. Therefore, it was taken to be an infrastructure charges notice under the Sustainable Planning Act 2009.

Despite the amendments to the Sustainable Planning Act 2009 on 4 July 2014, section 978(1) of the amended Act provided that the unamended Sustainable Planning Act 2009 continues to apply to an infrastructure charge under the unamended Act.

Section 639(1) of the unamended Sustainable Planning Act 2009 relevantly provided that an infrastructure charge levied by a local government is, for the purposes of recovery, taken to be rates.

However, section 639(2) of the unamended Sustainable Planning Act 2009 relevantly provided that if the local government and an applicant or person who requested compliance assessment enter into a written agreement stating the charge is a debt owing to it by the applicant or person, section 639(1) does not apply.

The Court recognised that section 639(1) did not expressly address whether the person liable to pay an infrastructure charge under that section is the "owner" of the land. However, the Court identified (at [38]) that the term "taken to be rates" "invites attention as to who is liable to pay rates."

The Court referred to section 96 of the Local Government Act 2009 which provided that a regulation may provide for any matter connected with rates, including the process for recovering overdue rates and charges.
The Court then referred to section 127 of the Local Government Regulation 2012 which provided that the current owner of the land is liable to pay rates and charges for rateable land, even if the owner did not own the land during the period to which the rates or charges relate.

The Court concluded that if an infrastructure charge were taken to be "rates" under section 639, then it follows that section 96 of the Local Government Act 2009 and section 127 of the Local Government Regulation 2012 would have applied to make the registered proprietor of freehold land liable for the charge.

Court found no basis for reading words into the Act

Trevorrow submitted that a proprietor is not made responsible for the infrastructure charge by the deeming effect of section 639(1) in the circumstances where the applicant for a development permit was not also the proprietor. Trevorrow submitted that it would be unjust for the owner to be excluded from the power to make an agreement with a local government under section 639(2), but be liable for the charge under section 639(1).

The Court found that the effect of such a reading would be to add in the words "Where the applicant is the owner of the land…" to section 639(1) (at [53]).

The Court ultimately found no basis for reading in these words and further found that the following matters suggested the contrary:
  • The Sustainable Planning Act 2009 distinguished between an applicant and an owner and referred to a case where the applicant is the owner of the land using express words in section 637(1)(d).
  • Section 639 was concerned with the recovery of an infrastructure charge by the local government. Where the charge was payable by and paid by an applicant, no recovery from the owner was necessary. Such a charge for a material change of use, was to be paid "before the change happens" or, if that did not apply, on the day stated in the notice.
  • The purpose of the section was to make the infrastructure charge recoverable as if it were rates which was usually payable by the owner of land not by an applicant for a development approval.
  • The infrastructure charges notice resulted from a development approval which attached to the land and bound the owner and their successors in title.
  • No application for a development approval could be made without the owner's consent. Therefore, the owner retained control over whether an infrastructure charge could be levied.
  • The owner controlled the use of the land and an infrastructure charge for a material change of use was not payable until the change of use began.

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.​