"Broad-brush" approach to adopted charges for working out the cost of extra demand placed on trunk infrastructure networks upheld by the Planning and Environment Court of Queensland

In brief

The case of Allen-Co Holdings Pty Ltd v Gympie Regional Council [2021] QPEC 64 concerned an appeal to be the Planning and Environment Court of Queensland (Court) against an infrastructure charges notice (ICN) given by the Gympie Regional Council (Council) in respect of a development permit for reconfiguring a lot to create 61 lots on land located at Widgee, Queensland (Development Approval).

The appeal was under section 229 (Appeal to the tribunal or P&E Court) and schedule 1 (Appeals), Table 1 (Appeals to the P&E Court and, for certain matters, to a tribunal), item 4 (Infrastructure charges notices) of the Planning Act 2016 (Qld) (Planning Act) on the grounds that the ICN involved an error relating to the application of the relevant adopted charge and the working out of extra demand for the purpose of section 120 (Limitation of levied charge) of the Planning Act.

It was common ground between the parties that the Council had erroneously applied an adopted charge of $15,839 per lot rather than the adopted charge of $13,330 per lot which applied to reconfiguring a lot under the Council's charges resolution (Charges Resolution).

The Applicant submitted that the adopted charge of $13,330 per lot was only a starting point, because it was a "global charge" for all trunk infrastructure networks and therefore a discount ought to be applied because the proposed development would generate extra demand on only the trunk transport and parks infrastructure networks (see [9], [14], and [19]).

The Court held that although "[i]t is arguably, the broadest of broad brushes", "[t]he quantum of the charge is the same irrespective of the type or number of networks upon which the extra demand will be generated" (at [23]).

The Court also held that an appeal about the ICN can not be about the adopted charge (at [24]). Therefore the Applicant's submission was not within the scope of what was permitted to be appealed against under the Planning Act.

The Court allowed the appeal and replaced the ICN with an ICN that was calculated using the correct adopted charge of $13,330 per lot.

Background 

The ICN was given by the Council in respect of the Development Approval because the proposed development would generate extra demand on the trunk infrastructure transport network and parks network.

The Council conceded that there was an error in the ICN in that the Council had applied the incorrect adopted charge.

The Charges Resolution relevantly sets different adopted charges for development in different parts of the local government area. Section 3.1 and Table 2 of the Charges Resolution are relevant to reconfiguring a lot and state that the adopted infrastructure charge is $13,330 per lot.

The Court observed that the Charges Resolution adopted different charges and dealt with different forms of development in different ways. For example, a material change of use for non-residential development sets out a rate per square metre of gross floor area for each trunk infrastructure network which facilitates a network-by-network calculation of the charge, whereas other parts of the Charges Resolution do not use the same method (see [15] to [18]).

Court rejects Applicant's submission about a discount to the adopted charge

The Applicant submitted that the adopted charge for the ICN ought to be discounted because the proposed development would not generate extra demand on the trunk infrastructure stormwater, water supply, and sewerage networks, and therefore ought not be subject to the entirety of the adopted charge (see [14], [19], and [22]). The Applicant argued that adopting a "global charge" takes meaning away from section 120(1) of the Planning Act, and is inconsistent with the definitions of "trunk infrastructure" and "development infrastructure" which specify different components of trunk infrastructure (at [24]).

The Court rejected the Applicant's submission for the following reasons:

• The Charges Resolution has a clear intent to adopt different charges for different development and applies different discounts for different development (at [20]). 

• The apportionment table in section 3.2 of the Charges Resolution relied upon by the Applicant does not quantify a discount and is not contained within section 3.1, which is where the adopted charge for reconfiguring a lot is contained (see [21] and [23]).

• The Charges Resolution can be read harmoniously with section 120 of the Planning Act without adopting the "highly constrained construction" argued by the Applicant (at [22]), and, in any event, section 120 of the Planning Act does not require the Charges Resolution to apply a discount where development only generates extra demand on one trunk infrastructure network (at [25]).

• The Applicant's submission is "…something of a veiled attack on the adopted charge under the guise of a submission on the proper interpretation of the charges resolution", and an appeal cannot be about the adopted charge (at [24]).

• The adopted charge is consistent with the purpose of the Charges Resolution to fund a part of the establishment cost for trunk infrastructure and the application of a single charge does not mean the charge is for something other than the extra demand that the particular development will generate on trunk infrastructure (see [26] to [27]). 

Conclusion 

The Court held that the ICN ought to be replaced with an ICN that levies a charge using the adopted charge of $13,330 per lot consistent with the Charges Resolution.