The case of Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2025] QCA 234 concerned an application by a developer (Applicant) for leave to appeal to the Queensland Court of Appeal (Court of Appeal) against the orders made by the Planning and Environment Court of Queensland (P&E Court) on 31 July 2024, which gave effect to the judgment delivered on 12 June 2024 (see Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2024] QPEC 30). The P&E Court's decision was the subject of our October 2024 article. 

The proposed development forms a 234.7 hectare site situated to the south of Bowen, comprising a 10-stage master planned community to be known as "Whitsunday Paradise". The development anticipates 1,757 600 m² lots, 340 dwellings in a medium density format and 47 lots larger than 600 m^2. The proposal is estimated to take more than 20 years to complete (at [4]). 

On 28 October 2020, the Whitsunday Regional Council (Council) gave a number of approvals, subject to conditions in particular requiring the delivery of sewerage and water supply infrastructure at the Applicant's cost. On 27 November 2020, the Applicant made representations to the Council in relation to the conditions imposed (Appealed Conditions) and requested a negotiated decision notice and negotiated infrastructure charges notices be issued. The Council issued a negotiated decision notice on 11 March 2020, however the request for negotiated infrastructure charges notices was refused (at [9]). 

The P&E Court held at [62] that section 128 of the Planning Act 2016 (Qld) (Act) which relates to the imposition of a development condition requiring trunk infrastructure, whether directly or through section 304 of the Act, was not available as a source of power to impose the Appealed Conditions. The Applicant appealed, arguing that the P&E Court erred in law by failing to conclude that the Appealed Conditions required the provision of trunk infrastructure under section 128 of the Act, rather than non-trunk infrastructure under section 145 of the Act. The Court of Appeal considered the errors of law alleged in the notice of appeal to be a matter of statutory interpretation or a matter of legal principle (at [12]). 

The Court of Appeal held that the Applicant failed to show an error of law in respect of the P&E Court's decision and refused the application for leave to appeal. 

The grounds of appeal can be summarised as follows (at 13]): 

• Ground 1 – Whether the requirements in section 127 of the Act, for the exercise of power under section 128 of the Act, were satisfied. 

• Ground 2 – Whether the P&E Court erred in not exercising its discretion to impose the Appealed Conditions under section 128 of the Act. 

• Ground 3 – Whether the P&E Court failed to give adequate reasons for rejecting the Applicant's arguments in relation to the issues the subject of Grounds 1 and 2 above. 

• Ground 4 – Whether the P&E Court erred in concluding that the Appealed Conditions were not a prohibited development condition under section 66(1)(c) of the Act. 

Section 127 and section 128 of the ACT, which relate to the imposition of necessary trunk infrastructure conditions, state as follows:  

"127 Application and operation of subdivision 

(1.) This subdivision applies if— 

(a) trunk infrastructure— 

(i) has not been provided; or 

(ii) has been provided but is not adequate; and 

(b) the trunk infrastructure is or will be located on— 

(i) premises (the subject premises) that are the subject of a development application, whether or not the infrastructure is necessary to service the subject premises; or 

(ii) other premises, but is necessary to service the subject premises. 

(2.) Section 128 provides for the local government to be able to impose particular development conditions (each a necessary infrastructure condition) on the development approval. 

Note— 

For imposing or amending development conditions in relation to an approval of a change application, see sections 81A(2)(a) and 82(3)(b). 

128 Necessary infrastructure conditions 

(1.) If the LGIP identifies adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring either or both of the following to be provided at a stated time— 

(a) the identified infrastructure; 

(b) different trunk infrastructure delivering the same desired standard of service. 

(2.) If the LGIP does not identify adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring development infrastructure necessary to service the premises to be provided at a stated time. 

(3.) However, a local government may impose a condition under subsection (2) only if the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development. 

(4.) A necessary infrastructure condition is taken to comply with section 65(1) if— 

(a) generally, the infrastructure required is the most efficient and cost-effective solution for servicing other premises in the general area of the subject premises; and 

(b) for a necessary infrastructure condition that requires the provision of the infrastructure located on the subject premises— 

(i) the provision is not an unreasonable imposition on the development; or 

(ii) the provision is not an unreasonable imposition on the use of the subject premises as a consequence of the development. 

(5.) To remove any doubt, it is declared that a necessary infrastructure condition may be imposed for infrastructure even if the infrastructure will service premises other than the subject premises." 

The first consideration in respect of Ground 1 was whether the requirements in section 127 of the Act were satisfied. The Applicant relied on the first limb of the definition of "trunk infrastructure" in section 127(1)(a)(i) of the Act when alleging that the P&E Court erred in its construction of the section.  

It was common ground that section 127 of the Act must be read by inserting the relevant words of the definition of "trunk infrastructure" into the words of section 127 of the Act, which would read as follows (underline added to show insertion): 

"(1) This subdivision applies if— 

(a) development infrastructure identified in a LGIP as trunk infrastructure— 

(i) has not been provided; or 

(ii) has been provided but is not adequate…" 

The Applicant submitted that the P&E Court accepted that the Appealed Conditions required "infrastructure works that go beyond servicing the development" and held that "…approaching section 127(1) in this way ignores that not all of the Appealed [C]onditions call for the provision of infrastructure…" (at [52]). The Court of Appeal held that the Applicant misunderstood the P&E Court's findings which were that, generally, conditions requiring infrastructure that goes beyond servicing the subject development should be treated as trunk infrastructure but that the Appealed Conditions were not in this category and the Applicant had not overcome the prerequisite in section 127(1) of the Act and thus section 128 of the Act did not apply (see [52] and [53]). 

The P&E Court was not satisfied that the Applicant had identified trunk infrastructure in the Council's Local Government Infrastructure Plan (LGIP) that has not been provided or adequately provided as required under section 127(1)(a) of the Act. The Court of Appeal confirmed for this reason it was sufficient for the P&E Court to conclude that section 128 of the Act was not available for the imposition of a necessary trunk infrastructure condition. Therefore, the Applicant did not succeed on this ground of appeal (at [63]). 

The Applicant challenged the P&E Court's finding that it would not have been appropriate, in any case, to exercise its discretion and impose the conditions under section 128 of the Act (at [65]). 

The matters agitated by the Applicant in Ground 2 can be summarised as follows (at [11]): 

"a. an approval of the Appealed [C]onditions [on the footing they are imposed under s 128] would not be based on an assessment carried out under s 45 of the Act; 

b. to impose the Appealed [C]onditions under s 128 of the Act would be to use s 45(8) of the Act as a vehicle for displacement or modifications; 

c. the imposition of the Appealed [C]onditions under s 128 would be premature; 

d. there is a risk of prematurely prejudging the characterisation of infrastructure works under the Act prior to the creation and assessment of a conversion application;" 

In relation to the first matter, section 128(1) and section 128(2) of the Act reference a "development condition" which is imposed by the assessment manager under section 60 of the Act. The Court of Appeal considered the context of section 128 of the Act within chapter 4 of the Act, which deals with infrastructure, and that it contemplates a development condition imposed at the time of the decision under section 60(3)(b) of the Act after an impact assessment is carried out under section 45(5) of the Act. The Court of Appeal held that if a power to impose a necessary trunk infrastructure condition arises under section 128 of the Act, the assessment manager imposes a development condition as part of the decision-making process under section 59(3) and section 60(3)(b) of the Act. Overall, the Court of Appeal held that there was no error in the P&E Court's construction of the Act in respect of the relationship between section 128, section 45(5), section 59(3) and section 60(3)(b) (at [68]). 

In relation to the second matter, assuming section 128 of the Act was available to impose a necessary trunk infrastructure condition, the Court of Appeal considered whether it was open to the P&E Court to give no weight to an amended LGIP or amended planning scheme when undertaking an assessment of the development application (at [69]).  

Section 45(8) of the Act relevantly permits an assessment manager to give weight it considers appropriate to an amended or replaced statutory instrument or document that comes into effect after a development application is properly made but before it is decided.   

The Applicant submitted that it was irregular for the P&E Court to consider the requirement of section 127 of the Act in the context of the amended LGIP, however give no weight to the amended LGIP or amended planning scheme in the consideration of imposing necessary trunk infrastructure conditions. However, this was not deemed to be an error of law as the P&E Court's decision to place no weight on the amended LGIP or amended planning scheme was an exercise of the discretion conferred by section 45(8) of the Act (at [70]). 

In respect of the third and fourth matters, the Court of Appeal agreed that it was a most relevant consideration for the P&E Court that the Applicant's development approval was a preliminary approval which precludes development being carried out without a further approval (section 49(2)(c) of the Act) and thus the P&E Court's finding that the imposition of a condition under section 128 of the Act was therefore premature was not in error (at [71]).  

The Court of Appeal also confirmed the P&E Court's observation that the Appealed Conditions being imposed as non-trunk infrastructure conditions does not preclude the making of a conversion application to Council in the future to convert the non-trunk infrastructure to trunk infrastructure and, if such an application was made and refused, the Applicant has the benefit of a right to appeal the Council's decision (at [71)]. 

The Court of Appeal held that there was no error of law relating to the P&E Court's decision not to exercise its discretion to impose a development condition under section 128 of the Act. 

The Applicant contended that multiple paragraphs of its written submissions were not addressed by the P&E Court, many of which were based upon the Applicant's characterisation of what the two versions of the LGIP show and section 127 of the Act. The P&E Court determined the proper construction of section 127 of the Act and found that the LGIP did not identify water supply and sewerage trunk infrastructure for the site, rendering it unnecessary for the P&E Court to deal with submissions inconsistent with this conclusion (at [74]).The Court of Appeal found no error of law in respect of the approach by the P&E Court.  

The second aspect of the Applicant's complaint relates to the delay between the hearing, which concluded on 19 August 2022, and the delivery of reasons on 12 June 2024. This was closely scrutinised by the Court of Appeal, however the extensive documentary evidence and coherent reasons provided by the P&E Court were considered "…adequate for disposing of the issues that required decision that are otherwise subject of grounds 1 and 2" (at [80]). The Applicant therefore did not succeed on Ground 3.  

The P&E Court categorised the Appealed Conditions as requiring infrastructure of a particular size or design, the Applicant to fund upgrades to existing infrastructure and the Applicant to prepare analysis, design drawings and a management plan, and held that the Appealed Conditions did not engage section 66(1)(c) of the Act (at [82]).  

The Applicant submitted that this determination fell outside the scope of the dispute and challenged the decision of the P&E Court that the conditions "…did not require a monetary payment, works or land for infrastructure" (at [82]).  

"66 Prohibited development conditions 

(1.) A development condition must not— 

… 

(c) other than under section 65AA(3) or chapter 4, part 2 or 3, require a monetary payment for the establishment, operation or maintenance costs of, works to be carried out for, or land to be given for— 

(i) infrastructure; or 

(ii) for the imposition of a condition by a State infrastructure provider—infrastructure or works to protect the operation of the infrastructure…" 

Given that the Applicant did not demonstrate that the P&E Court erred in finding that the Appealed Conditions are not able to be imposed under section 128 of the Act, the Court of Appeal held that this ground did not affect the outcome of the application for leave to appeal (at [83].   

The Court of Appeal held that the Applicant failed to show an error of law in respect of the P&E Court's decision and refused to grant leave to appeal with costs following the event.