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In brief

The case of Como Glasshouse Pty Ltd v Noosa Council [2017] QPEC 75 concerned an appeal to the Planning and Environment Court against an Infrastructure Charges Notice (Notice) issued by the Noosa Council (Council) following the approval of a development permit for a material change of use for Cultivation - Type 2 Intensive for Crops (Greenhouse), High Impact Rural. The Council issued the Notice in the sum of $250,096 under the now repealed Sustainable Planning Act 2009 (SPA) and the Local Government Act 2009
 
The Appellant appealed against the Notice under section 478 (Appeals about infrastructure charges notice) of the SPA on the following grounds: 
  1. Ground One - The Notice was so unreasonable that no reasonable relevant local government could have imposed it. 
  2. Ground Two - The decision involved an error relating to the working out of additional demand under section 636 (Limitation of levied charge) of the SPA.
The Appellant failed in respect of Ground One. In respect of Ground Two, the Court found that the Council had made an error in working out the additional demand as it took into account the previous use of the land. The Court therefore allowed the appeal in part. 

Ground One - The Notice was so unreasonable that no reasonable relevant local government could have imposed it

The Appellant relied upon section 478(2)(a) of the SPA and argued that the charge in the Notice was so unreasonable that no reasonable relevant local government could have imposed it. 
 
Section 478(2)(a) of the SPA reflects the common law principle established in Associated Provincial Picture Houses Limited v Wednesbury [1948] 1 KB 223, namely that a decision of a decision maker may be reviewed if the decision is so unreasonable that no reasonable authority could ever have come to that conclusion. In respect of section 478(2)(a) of the SPA, the Planning and Environment Court has held that the decision must be an "irrational one or one devoid of plausible justification" (Birkdale Flowers v Redland City Council [2016] QPELR 231 at [64]). 
 
Here, the Court observed that the Council followed the infrastructure charges regime set out in the State Planning Regulatory Provision (Adopted Charges) as required under the SPA, and levied the Notice in accordance with the Noosa Charges Resolution.
 
Relevantly, the Council used the Gross Floor Area (GFA) to determine the amount in the Notice. The Council gave no credit for the lawful existing development on the land, being a turf farm which comprised two small sheds and a dwelling house. The Court determined that the Council's method of calculation was consistent with the scheme lawfully promulgated and adopted by the Council. The Court went on to state that the scheme does not call for a "comparative demand analysis" as argued by the Appellant's experts and the scheme clearly calls for "demand placed upon trunk infrastructure by development (to be) determined broadly having regard to the increase in GFA", even though it may lead to unfair results (at [25]). The Appellant therefore failed with respect to Ground One. 

Ground Two - The decision involved an error relating to the working out of additional demand under section 636 of the SPA

The Council must take into account the following in order to work out the additional demand under section 636 of the SPA: 
"(1) a levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development.
(2) in working out additional demand, the demand on trunk infrastructure generated by the following must not be included - 
(b) a previous use that is no longer taking place on the premises if the use was lawful at the time it was carried out
The Court noted that at the time of issuing the Notice, the Council had evidence of the existing two sheds and the dwelling house, which were associated with the previous lawful use of the land as a turf farm. The Council determined the additional demand which would be generated by the development by reference to the GFA but made no allowance for the GFA of the existing two sheds and the dwelling house. As a consequence, the Court held that the Council did not comply with section 636(2)(b) of SPA as the Council included the demand on trunk infrastructure generated by the previous lawful use, being the turf farm use comprising the existing two sheds and the dwelling house. The Appellant was therefore successful with respect to Ground Two. 

Court allowed the appeal in part as the Appellant was only successful in respect of Ground Two of the appeal

The Court noted that although the Appellant was successful in respect of Ground Two of the appeal, the Court could not, on a rehearing, formulate its own methodology for assessing additional demand. 
 
Therefore, the Court allowed the appeal in part and adjourned the appeal to allow the additional demand to be calculated and agreed upon between the parties with liberty to apply where agreement could not be reached. 

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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