No error here: Queensland Court of Appeal finds no error or mistake of law in respect of the Planning and Environment Court's decision not to amend a development condition to make it a necessary infrastructure condition

In brief

The case of Traspunt No 7 Pty Ltd v Moreton Bay Regional Council [2021] QCA 275 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) by Traspunt No 7 Pty Ltd (Applicant) against the decision of the Planning and Environment Court of Queensland (Planning and Environment Court) to dismiss an appeal in respect of a development condition requiring the dedication of land (Dedicated Land) to the Moreton Bay Regional Council (Council) at no cost to the Council in respect of a proposed 2 into 46 lot subdivision at Burbury Road, Morayfield (Premises). 

We have previously published a case note about the decision of the Planning and Environment Court, which can be found here. In short, the Planning and Environment Court did not accept the Applicant's arguments that the relevant Local Government Infrastructure Plan (LGIP) is inadequate in its identification of trunk infrastructure, and found that the Dedicated Land was not necessary to service the Premises. The Applicant's argument that the development condition ought to be amended to state that it was imposed under section 128 of the Planning Act 2016 (Qld) (Planning Act), with the consequence that the Applicant is entitled to an offset or refund under section 129 of the Planning Act, therefore failed.

On application to the Court of Appeal for leave to appeal, the Applicant argued that the Planning and Environment Court's decision was affected by an error or mistake in law.
The Court of Appeal did not agree and found that none of the proposed grounds of appeal had merit, and therefore refused the application for leave to appeal with costs.

Background 

The Court of Appeal outlined the reasoning of the Planning and Environment Court in the following terms before dealing with each ground of appeal:

1. The proper construction of section 128(2) of the Planning Act is that it is only engaged where the relevant LGIP does not identify trunk infrastructure necessary to service the subject premises within the period of the LGIP (at [23]). 

2. The Council's LGIP had a base date of 2016 and contained projections as to infrastructure demand through to mid-2031 (at [24]). The Council's LGIP also contained two relevant drawings. First, the "plan for trunk infrastructure - active transport" which shows the relevant section of road adjoining the Dedicated Land as being in the category "corridors required beyond 2031" (at [26]). Second, the "Plan for Trunk Infrastructure - Transport Network" which shows the existing trunk transport network and future trunk transport network (at [27]). The relevant section of road is not identified in either category. The necessary implication is that the relevant section of road is trunk infrastructure which will not be necessary within a period of time which expires in 2031 (at [27]).

3. There was no material point of difference between the opinions of the traffic engineers retained by the parties. In particular, the Council's traffic engineer opined that a development condition could have been imposed requiring a western extension of the existing eastern Clark Road to service the Premises, however it was unnecessary to do so because an adjacent subdivision included a requirement for road connections which would service the Premises (at [32]). The Planning and Environment Court noted that the Applicant's traffic engineer endorsed the opinions of the Council's traffic engineer (at [33]). 

4. The Planning and Environment Court accepted the evidence of the Council's traffic engineer that "…the traffic planning benefit of the proposed dedication relates to future development beyond the planning horizon applied in the Council's LGIP", and thus the Planning and Environment Court found that the Dedicated Land is not required during the life of the Council's LGIP to mid-2031 as necessary to service the Premises (at [34]). 

5. The Planning and Environment Court therefore held that based on the evidence and on the proper construction of section 128(2), that section was not the source of the power to impose the condition; because the trunk infrastructure identified as such in the LGIP was adequate to service the subject premises and the provision of the Dedicated Land was not necessary to do so (at [35]). 

Court of Appeal finds none of the Applicant's proposed grounds of appeal have merit

The Applicant's first ground of its proposed appeal was that the Planning and Environment Court incorrectly concluded it was irrelevant for the purpose of section 128(2) of the Planning Act to consider "…whether the development infrastructure, when constructed, serves a trunk infrastructure function" (at [41]). The Court of Appeal stated that this ground seemed to challenge the Planning and Environment Court's finding that for the purpose of section 128(2) of the Planning Act the development infrastructure must be necessary to service the subject premises and that the Council cannot impose a condition requiring dedication for any possible future trunk infrastructure (see [37] and [43]). The Court of Appeal accepted the reasoning of the Planning and Environment Court. In doing so, the Court of Appeal made the following two observations (at [43]): 

1. Firstly, that "trunk infrastructure" is constrained by how the term is defined in the Planning Act and, by implication, the Court of Appeal observed it does not include any possible future trunk infrastructure not identified in the subject LGIP. 

2. Secondly, there is other identified trunk infrastructure in the Council's LGIP which services the Premises which cuts across the Applicant's argument that the Dedicated Land ought to be categorised as trunk infrastructure because the Council's LGIP does not identify other adequate trunk infrastructure to service the Premises.

The Court of Appeal dealt with grounds two and three together. The Court of Appeal described ground two in terms of the Planning and Environment Court having "erred in construing s 128(2) as referring to development infrastructure 'presently required' to service the subject premises, instead of development infrastructure that is needed, either now or in the future, to do so" (at 44]). The Court of Appeal described ground three in terms of the Planning and Environment Court having "erred in the same way when addressing the criterion of necessity" (at [44]). The Court of Appeal found that was not the reasoning of the Planning and Environment Court, and therefore both grounds three and four lacked merit (at [44]).

Grounds four and five were also considered together. The fourth ground was that the Planning and Environment Court had erred as a matter of law in holding that the evidence failed to show "…the dedicated land 'was not development infrastructure that was needed, either now or in the future, to service the premises' and in finding, instead, that this section of Clark Road was no more than a potential future road" (at [45]). Ground five was that unchallenged evidence including records relating to a future extension of the relevant road and evidence of traffic engineers was overlooked. The Court of Appeal found no merit in either ground five or ground six. 

Conclusion

The Court of Appeal found no error or mistake of law that warranted a grant of leave to appeal against the judgment of the Planning and Environment Court, and the application was refused with costs.