The case of Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council  QPEC 022 concerned various applications in a pending proceeding in respect of a series of purported infrastructure charges notices issued by the Council for development on land at Mermaid Beach.
The Court was required to determine, among other things, the following:
whether the Council had failed to provide "reasons" and therefore failed to provide an information notice under section 637(2) of the Sustainable Planning Act 2009 (SPA); and
whether there was a statutory intention that a failure to comply with section 637(2) of the SPA renders an infrastructure charges notice invalid.
The Court held that the purported infrastructure charges notices issued by the Council failed to comply with the requirements of section 637(2) of the SPA and were therefore invalid.
Did the Council fail to provide "reasons"?
Section 637 of the SPA sets out the requirements of an infrastructure charges notice. Relevantly, it requires that "the infrastructure charges notice must also include, or be accompanied by, an information notice about the decision to give the notice”.
Section 627 of the SPA defines the term "information notice" as follows [emphasis added]:
“information notice, about a decision, means a notice stating:
(a) the decisions and the reasons for it; and
(b) that its recipient may appeal against the decision; and
(c) how the recipient may appeal."
The Appellant contended that the term "reasons" is to be defined with reference to section 27B of the Acts Interpretation Act 1954 (AIA), which states as follows:
“If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also:
(a) set out the findings on material questions of fact; and
(b) refer to the evidence or other material on which those findings were based.”
The Council contended that section 27B of the AIA did not apply because a contrary intention appears in the SPA as to the requirements of an infrastructure charges notice and information notice.
In considering the parties' respective submissions, the Court observed that "the absence of detail in section 627 of the [SPA] about the intended content of the 'reasons' was a strong indication that the legislature intended that the general statutory requirement enacted in section 27B of the Acts Interpretation Act 1954 would apply" (see paragraph ).
The Court also observed that, despite the information required to be given under section 637(1) of the SPA, further information would likely be required to allow a recipient of an infrastructure charges notice to understand the basis of a local government's decision, and decide whether to make a submission about the notice or appeal the charge in the notice.
To that end, the Court concluded that it was the legislative purpose of section 637(2) of the SPA to require an information notice to set out a local government's findings on questions of material facts and the evidential basis for those findings to the extent that they may be critical to a decision whether to exercise appeal rights. The Court gave the following examples of findings on material questions of fact, which it considered are to be addressed in an information notice:
(a) a finding about whether, and on what basis, the use that is the subject of the development is for a particular use, which might be relevant to an appeal under section 478(2)(b)(i) or (ii) of the SPA;
(b) a finding about whether trunk infrastructure, that is the subject of a '"necessary infrastructure condition" services or is planned to service premises other than the subject premises and the basis of the assessment of the cost of that infrastructure, which is relevant to an appeal under section 478(2)(b)(iii) of the SPA; and
(c) a finding about whether there is an existing lawful use of the premises or a previous lawful use, which is relevant to an appeal under section 478(2)(b)(ii) of the SPA.
The Court therefore held that the term "reasons" is to be defined with reference to section 27B of the AIA.
Did the Council fail to provide an information notice?
Each of the purported infrastructure charges notices issued by the Council contained a section entitled "information notice" which included the following text:
“DECISION TO GIVE AN INFRASTRUCTURE CHARGES NOTICE
Council of the City of Gold Coast has issued this Infrastructure Charges Notice as a result of the additional demand placed upon trunk infrastructure that will be generated by the development.”
The Court held that the purported information notice did not contain the requisite findings on material fact or the evidential basis for those findings. In this regard, the Court observed as follows:
"… the recipient of an infrastructure charges notice is entitled to:
(a) make an agreement with the local government about paying the levied charge in a manner other than provided for in the notice (including by instalments);
(b) make an agreement with the local government about providing infrastructure instead of paying part or all of the levied charge;
(c) make submissions to the local government about the infrastructure charges notice, in an effort to persuade the local government to change the infrastructure charges notice; and
(d) appeal, to this court, the decision to give the notice.
As those rights are contingent on the receipt of an infrastructure charges notice, which must either include or be accompanied by an information notice that provides the reasons for the decision, the reasons must contain sufficient information for a recipient to meaningfully exercise the rights conferred." (See paragraphs  and )
The Court concluded that the Appellant had been denied the opportunity to articulate grounds of appeal on the basis that the Council had failed to take a relevant matter into consideration or had taken into consideration an irrelevant matter. Accordingly, the Court was not satisfied that the purported information notices in each of the infrastructure charges notices contained adequate reasons for the purpose of section 627 of the SPA, regardless of whether those reasons were required to address those matters referred to in section 27B of the AIA.
Does failure to give reasons render an infrastructure charges notice invalid?
The Court referred to the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355 where it held that:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute." (See paragraphs  and )
The Council contended that there was nothing in the SPA that suggested that an information notice complying with section 627 of the SPA was a precondition to exercising its power to issue an infrastructure charges notice. It also contended that even if a compliant information notice was a precondition to the exercise of the power to issue an infrastructure charges notice, there was no discernible legislative purpose to invalidate an infrastructure charges notice that does not strictly comply with section 637 of the SPA.
The Court disagreed with the Council's contentions and held that it was a purpose of the legislation that a document given in breach of section 637 of the SPA was not an infrastructure charges notice.
The Court therefore concluded that the purported infrastructure charges notices issued by the Council failed to comply with the requirements of section 637 of the SPA and on that basis were not infrastructure charges notices.
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 or financial advice. Please seek your own legal or financial 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.