In brief

The case of Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 118 concerned an appeal to the Court of Appeal against the decision of the Planning and Environment Court which held that the five infrastructure charges notices (ICNs) given by the Gold Coast City Council (Council) to Sunland Group Limited and Sunland Developments No. 22 Pty Ltd (Sunland Group) under the now repealed Sustainable Planning Act 2009 (SPA) were invalid. 

The Court of Appeal considered the interpretation of section 637 of the SPA which sets out the requirements for an ICN under the SPA and overturned the Planning and Environment Court's decision; instead holding that the ICNs were valid and partially satisfied section 637(2) of the SPA as read in conjunction with section 27B of the Acts Interpretation Act 1954 (AIA).

This decision was based on the Court of Appeal's opinion that under the wide discretion to excuse non-compliance found in section 440 of the SPA, the Court ought to have decided that the minor non-compliance with respect to the failure to refer to the evidence on which the findings of fact were based, did not result in the invalidity of the ICNs.

The definition of ‘reasons’ in the Acts Interpretation Act 1954 was held to apply to an ICN under the SPA

The Planning and Environment Court, in its original decision (Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council [2018] QPEC 22), held that section 27B of the AIA applied to the construction of section 637 of the SPA. Section 637 of the SPA sets out the requirements that each ICN must contain under the SPA and relevantly includes as follows:

"637 Requirements for infrastructure charges notice

(1)

(2) The infrastructure charges notice must also include, or be accompanied by, an information notice about the decision to give the notice."

An 'information notice' is defined in section 627 of the SPA as follows and, importantly, requires that an information notice include the reasons for the decision [emphasis added]:

"information notice, about a decision, means a notice stating -

(a) the decision and the reasons for it; and

(b) that its recipient may appeal against the decision; and

(c) how the recipient may appeal."

Section 27B of the AIA defines the term “reasons” and relevantly requires that the giving of reasons includes setting out the “findings on material questions of facts” and referring to the “evidence or other material on which those findings of fact were based”. The Court of Appeal found that section 27B was not displaced by the SPA, and therefore an ICN would need to include the requirement for findings and evidence as set out within the AIA.

Therefore, when read in conjunction with section 637 of the SPA, the ICNs were required to state the following:

  1. the decision to issue the ICNs;

  2. the reasons for the decision to issue the ICNs;

  3. the findings on material questions of facts; 

  4. the evidence or other material on which those findings of fact were based.

Court of Appeal holds that the ICNs contained most of the relevant requirements under section 637 of the SPA and section 27B of the AIA

The Court of Appeal accepted that the ICNs satisfied the requirements in section 637(1) of the SPA. However, it went on to consider whether the ICNs satisfied the requirements of section 637(2) of the SPA, including the requirement for "reasons" as defined by section 27B of the AIA.

After considering the case of Sabag v Health Care Complaints Commission [2001] NSWCA 411, the Court of Appeal held, contrary to the Planning and Environment Court, that the sufficiency of the reasons was not akin to those that are expected of a judge, tribunal or arbitrator. As such, the Court of Appeal concluded that a statement of reasons for an ICN could be "short and terse, as long as they were "proper, adequate and intelligible"" (at [108]). Therefore the following statement within the ICNs was considered to be sufficient in substance to satisfy the requirement for the "reasons" of the decision to give the ICNs as understood in the context of the SPA and the AIA:

"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 of Appeal turned its attention to the requirement to set out the findings on material questions of fact required by section 27B of the AIA and held, contrary to the Planning and Environment Court, that the ICNs contained the following information which was enough to satisfy this requirement, being (at [111]):

"(a) (implicitly) a development approval has been given;

(b) (implicitly) an adopted charge applies for providing trunk infrastructure to the development;

(c) (implicitly) the application was not one where a public sector entity was proposing or starting development;

(d) there will be additional demand on trunk infrastructure; and

(e) that additional demand will be caused by this development."

Relevant to the Court of Appeal's decision was the consideration that "if a development creates an additional demand for on trunk infrastructure, that is both the fact which warrants an ICN and the reason for giving it" (at [112]).

However, the Court of Appeal held that the ICNs failed to adequately refer to the evidence or other material on which those findings of fact were based. 

Court of Appeal held that the SPA did not intend that non-compliance automatically results in the ICNs being invalidated and that in this instance the ICNs were valid despite the minor non-compliance

Whether the ICNs were invalidated for non-compliance with the requirements of section 637 of the SPA is to be delivered by reference to the legislative intention of the SPA, because there is no express provision within the SPA stating the effect of non-compliance. The Court of Appeal therefore considered the SPA and noted, among other things, that where the SPA intended a document to be of no effect or of limited effect, the SPA expressly stated as such. The Court of Appeal therefore held that the absence of a statement that an ICN is of no effect and is a "textual indication" that validity was not intended (see [151]). Furthermore, section 440 of the SPA gives the court a wide discretion to deal with non-compliance in various ways, indicating that should non-compliance arise, it is a matter for the Planning and Environment Court. 

The Court of Appeal considered what types of non-compliance would lead to invalidity and held that in this case, where the failure was to "refer to" the relevant evidence, rather than a failure to "state" or "set out" relevant information, that the SPA does not intend that the ICNs should be invalid. As such, unlike the Planning and Environment Court, the Court of Appeal concluded that the minor non-compliance ought to be excused and that the ICNs were valid.

Effect of legislative changes enacting the retrospective section 344 of the Planning Act 2016

The Court of Appeal also noted the existence of section 344 of the Planning Act 2016 (Planning Act), which saves an infrastructure charges notice given under the SPA between 4 July 2014 and the commencement of the Planning Act where it does not contain an information notice. In this instance, section 344 of the Planning Act did not apply because of the nature of the legal proceedings before the Court of Appeal. 

Conclusion

The appeal was upheld and the orders of the Planning and Environment Court were set aside, with the result that the ICNs were considered valid for the purpose of the SPA despite the minor non compliance with the requirement in section 27B of the AIA to refer to the evidence or other material on which the findings of the material questions of fact were based. 

Effect on an infrastructure charges notice given under the Planning Act 

It is relevant to note that the decision in this case relates to the requirement for reasons within an infrastructure charges notice under the SPA, and there is no requirement for an information notice which includes reasons within the equivalent section of the current Planning Act.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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