In brief

The case of Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191 concerned an appeal by the Toowoomba Regional Council (Council) to the Queensland Court of Appeal against the orders of the Planning and Environment Court in relation to various infrastructure charges notices issued by the Council under the now repealed Sustainable Planning Act 2009 (SPA).

The Court of Appeal considered, amongst other matters, the following determinations of the Planning and Environment Court:

  1. Additional demand for a reconfiguring a lot – That the infrastructure charges levied for a reconfiguring a lot be set aside for the reason that there was no rational link between the reconfiguration of land and the additional demand that would be placed on the transport trunk infrastructure network.

  2. Infrastructure charges for transport trunk infrastructure – That the infrastructure charges levied for transport trunk infrastructure be set aside for the reason that there was no legitimate relationship between the gross floor area (GFA) methodology adopted by the Council and any additional demand placed on the transport trunk infrastructure network.

  3. Infrastructure charges for stormwater trunk infrastructure – That the infrastructure charges for stormwater infrastructure be set aside for the reason that there was no stormwater trunk infrastructure identified for the proposed development, and that there was no additional demand placed upon the stormwater trunk infrastructure network.

Construction of infrastructure charging provisions

The Court of Appeal construed section 635 (When charge may be levied and recovered) and section 636 (Limitation of levied charge) of the SPA, which are materially the same as section 119 (When charge may be levied and recovered) and section 120 (Limitation of levied charge) of the Planning Act 2016 (Planning Act) respectively.

The Court of Appeal relevantly stated as follows:

  1. Preconditions to giving an infrastructure charges notice – In order to give an infrastructure charges notice under section 635 of the SPA (which is equivalent to section 119 of the Planning Act) "[t]here must be demand which links the development with the relevant trunk infrastructure, but there must be additional demand over and above what the current uses of the subject land generate in respect of that trunk infrastructure" (at [78]).

  2. Calculation of additional demand – The calculation under section 636 of the SPA (which is equivalent to section 120 of the Planning Act) of the additional demand on the trunk infrastructure generated by a development, does not require a calculation of the actual additional demand generated by the development. Rather, "the appropriate infrastructure charge for additional demand generated by the development is reflected in the "broad brush" application of the adopted charge" (at [79]).

Additional demand for a reconfiguring a lot

The Court of Appeal considered whether the proposed reconfiguration of a lot would generate additional demand and that an infrastructure charges notice could be issued in respect of a reconfiguring a lot.

The Court of Appeal stated that the relevant development for calculating additional demand was "the proposed use of the land as a result of the reconfiguration and the accompanying application for a material change of use. … What was relevant was that the reconfiguration of a lot is one of the trigger points for the issuing an ICN in relation to that development" (at [115]).

The Court of Appeal further stated that the charges could not exceed the maximum adopted charge for the development in accordance with the Council's Charges Resolution, and that it would be a matter of timing as to which infrastructure charges notice was paid first.

The Court of Appeal held that the Council could give the infrastructure charges notices for the proposed reconfiguration of a lot, and that the Planning and Environment Court's decision setting aside the infrastructure charges notices for the reconfiguring a lot was in error. 

Infrastructure charges for transport trunk infrastructure

The Court of Appeal considered whether the Planning and Environment Court's decision was in error in respect of the infrastructure charges for trunk transport infrastructure "by concluding it was unreasonable to adopt gross floor area (GFA) to calculate infrastructure charges for the uses" (at [6]).

The Court of Appeal stated that the "assessment of use and demand" required by the Charges Resolution was to calculate demand generated by the development by selecting the appropriate development category from Table 3 of the Charges Resolution that relates to the proposed development. This was considered to be consistent with the methodology stated in the State Planning Regulatory Provision (adopted charges).

The Court of Appeal held that it was correct to calculate the demand generated by the proposed development on the transport infrastructure network based on the GFA methodology stated in the Charges Resolution, and that the Planning and Environment Court's decision to set aside the infrastructure charges notices was in error.

Infrastructure charges for stormwater trunk infrastructure

The Court of Appeal considered whether the Planning and Environment Court's decision was in error in respect of determining that Westbrook Creek was not trunk infrastructure, and that there was no additional demand placed on the stormwater trunk infrastructure.

The Court of Appeal stated that "… Westbrook Creek falls within the identified trunk infrastructure for the purpose of stormwater management quantity" (at [101]).

The Court of Appeal further stated that the evidence before the Planning and Environment Court established that there was no additional demand on the stormwater trunk infrastructure network which would be generated by the proposed development, and that therefore the statutory pre-condition under section 636(1) of the SPA for the purpose of issuing an infrastructure charges notice was not satisfied.

The Court of Appeal held that there was no error in the Planning and Environment Court's decision to set aside the infrastructure charges notices in respect of infrastructure charges for stormwater trunk infrastructure.

Conclusion

In conclusion, the Court of Appeal determined that:

  1. Additional demand for a reconfiguring a lot – An infrastructure charges notice for a reconfiguring a lot could be given.

  2. Infrastructure charges for transport trunk infrastructure – An infrastructure charge could be worked out by reference to the GFA and did not require an individual assessment of demand on the transport trunk infrastructure network.

  3. Infrastructure charges for stormwater trunk infrastructure – An infrastructure charges notice could not be given because on the basis of the evidence before the Planning and Environment Court there was no additional demand on the stormwater trunk infrastructure network.

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 2020.

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