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  • Unreported Judgment

Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council

 

[2020] QPEC 67

PLANNING AND ENVIRONMENT COURT  OF QUEENSLAND

CITATION:

Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council [2020] QPEC 67

PARTIES:

WOODLANDS ENTERPRISES PTY LTD

(appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO/S:

2095/19 & 2096/19

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeals against conditions and an Infrastructure charges notice

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

17 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5, 6 and 19 November 2020

JUDGE:

Williamson QC DCJ

ORDER:

Appeal No. 2095 of 2019

  1. The appeal is adjourned to 5 February 2021.

Appeal No. 2096 of 2019

  1. The appeal is adjourned to 5 February 2021.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where respondent granted a conditional development approval for a material change of use for a poultry farm – where respondent gave an Infrastructure charges notice for the approved development – where appeal against conditions of the development approval – where appeal against decision to give the Infrastructure charges notice – whether the court has power to impose a condition on the development approval limiting the route of travel for all vehicle movements to and from the use – whether a condition limiting the route of travel for all vehicle movements to and from the use should be imposed in the exercise of the discretion – whether the respondent’s Infrastructure charges notice involved an error relating to the working out of extra demand for s 120 of the Planning Act 2016.

LEGISLATION:

Acts Interpretation Act 1954, s 14D

Planning Act 2016, ss 45, 59, 60, 65, 66, 119, 120, 229 and Schs 1 & 2 

Planning & Environment Court Act 2016, ss 46 & 47

Sustainable Planning Act 2009, ss 635 and 636

CASES:

Harris v Scenic Rim Regional Council [2014] QPELR 324

Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49

Kelly v R (2004) 218 CLR 216

Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247

Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191 

COUNSEL:

Mr N Loos for the appellant

Ms D Whitehouse for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Sunshine Coast Regional Council legal services division for the respondent

  1. [1]
    There are two appeals before the Court, which were heard together. The first appeal in time is a conditions appeal. The second appeal is against Council’s decision to give an Infrastructure charges notice (ICN) dated 10 April 2019.[1]  Common to each appeal is a decision by Council to approve the appellant’s (Woodlands) impact assessable development application for an ‘Intensive animal industry - Poultry Farm’ on land at 119 Pioneer Road, Beerburrum (the land).[2] The approved development comprises 7 large poultry sheds, with a total floor area of 25,492 m2. Woodlands intends to operate the facility as a broiler farm accommodating in excess of 430,000 birds.
  2. [2]
    To their credit, the parties resolved a substantial number of issues before, and during, the hearing of the appeal. This had the effect of limiting the disputed issues to a specific challenge to the ICN, and an interrelated conditions issue. 
  3. [3]
    Woodlands contends that no ICN should be issued for the development because a statutory precondition[3] to the exercise of the power is not satisfied, namely, the development will not generate extra demand on Council’s trunk infrastructure. Mr Loos, who appeared for Woodlands, conceded this point can only succeed if the conditions set out in Attachment A to these reasons for judgment are imposed on the approval.[4] The conditions are intended to limit[5] traffic movements associated with the development to roads that are not trunk roads controlled by Council. 
  4. [4]
    Council accepts the ICN contains an error in relation to a credit for an existing lawful use. It contends the ICN should, as a consequence, be varied, but otherwise opposes Woodlands’ challenge to the ICN. Council also opposes the conditions in Attachment A. Its opposition is advanced on two alternative bases. It submits the Court has no power to impose the conditions. Alternatively, if the conditions are within power, Council submits they should not be imposed in the exercise of the conditions power under s 60(3)(b) of the PA.
  5. [5]
    In light of the above, the following issues are to be determined:
  1. In the conditions appeal:
  1. (a)
    whether the court has power to impose the conditions set out in Attachment A (‘the jurisdiction point’); or in the alternative
  2. (b)
    whether the conditions set out in Attachment A should be imposed in the exercise of the discretion (‘the discretion point’); and
  1. Whether the ICN involved an error relating to the working out of extra demand for the purpose of s 120(1) of the PA (‘the extra demand point’).
  1. [6]
    By way of background, Woodlands is a family owned rural business with a substantial poultry operation.[6] It purchased the land in 2015 with the intention of adding to its network of broiler farms in this part of southeast Queensland.[7] 
  2. [7]
    The land:
    1. (a)
      is situated between Steve Irwin Way and the Bruce Highway at Beerburrum;
    2. (b)
      is accessed via Pioneer Road, which adjoins the southern boundary and intersects with an existing forestry track adjoining the western boundary;
    3. (c)
      is improved with an existing 3 bedroom dwelling and a number of outbuildings; and
    4. (d)
      is included in the Rural zone for the purposes of the Sunshine Coast Planning Scheme (the planning scheme).
  1. [8]
    Mr Elks is Woodlands’ managing director. He explained that the decision to purchase, and develop, the land was to enable the business to replace lost broiler production capacity. The evidence suggests capacity was not so much lost, but deliberately reduced by Woodlands. It chose to forgo capacity to achieve compliance with a guideline promulgated by the RSPCA.[8] The guideline relates to bird stocking densities and contemplates a stocking rate that is less intense than the rate historically adopted by Woodlands.[9] In simple terms, an application of the guideline resulted in Woodlands stocking less birds per square metre of shed floor area. The development approval will permit Woodlands to replace some of its broiler capacity but will not, in and of itself, restore that capacity to the level achieved prior to the decision to adopt the RSPCA guideline.
  2. [9]
    In December 2016, a development application was made to Council on behalf of Woodlands to start a new use of the land. The new use was described as ‘Intensive animal industry’. This is a defined use in the planning scheme and triggers impact assessment in the Rural zone. 
  1. [10]
    Woodlands’ development application was approved by Council, subject to conditions. The approval was communicated by way of decision notice dated 15 April 2019 (the development approval).[10] Conditions of approval require the development to be undertaken generally in accordance with approved plans.[11] An approved plan depicts 7 large rectangular sheds on the land. Three of the sheds are 153 metres long.  The remaining sheds range from 213 metres to 254 metres long. Each shed is 18.3 metres wide. The combined floor area of the sheds equates to 25,492 m2. A concurrence agency response is attached to the development approval, and dated 19 June 2018. The response deals with, inter alia, an Environmentally Relevant Activity – (Poultry Farming), along with conditions associated with impacts on State controlled roads. 
  2. [11]
    The development approval, inclusive of the concurrence agency response, does not purport to constrain, or limit, the approved material change of use to: (1) a maximum or minimum number of birds; (2) require the existing house on the land, which will remain available for use, to be used in concert with the Poultry Farm (such as caretaker’s accommodation); and (3) require the approved development to be operated as part of Woodlands’ network of existing broiler farms. The development approval authorises a standalone poultry farm. 
  3. [12]
    In June 2019, Woodlands exercised its right to appeal against three conditions[12] imposed on the development approval. The Notice of Appeal put in issue condition numbers 14, 15 and 27. The dispute regarding each of these conditions has been resolved. On day two of the hearing, Woodlands applied to add a new issue to the conditions appeal. Leave was granted to seek an order that the conditions set out in Attachment A be imposed on the development approval. If imposed, the conditions are intended to limit the route for traffic movements to and from the land. Specific routes are prescribed. A mechanism by which this will be monitored is also prescribed (i.e. GPS tracking). It can be observed that the conditions were not sought during the development assessment process. 
  4. [13]
    The purpose of the proposed conditions is to ‘lock in’ what Mr Loos described as a ‘closed circuit’. As I understand the evidence and submissions, it is said a closed circuit can be created because: (1) biosecurity rules limit access to the land, such that visits would be highly regulated and pre-planned; and (2) Woodlands can limit prescribed trips to and from the land to roads that do not place extra demand on Council’s trunk roads.  This was acknowledged to be unusual, if not unique. In this regard, Mr Loos submitted:[13]

This is a scenario unlikely to be repeated. The Appellant has had the good fortune of finding a site accessible by State controlled and local (non-trunk) roads; and also of having an operational network that can (in connection with the subject site) rely also almost entirely on those roads. The consequence is that the Appellant can operate the approved development on the subject site without generating any extra demand on the trunk infrastructure network.

  1. [14]
    Ms Whitehouse submitted the Court has no power to impose the disputed conditions. In support of this submission, reliance was placed upon the terms of the right of appeal conferred by the PA and exercised by Woodlands. Reliance was also placed upon s 47 of the Planning & Environment Court Act 2016 (PECA).
  2. [15]
    The right of appeal exercised by Woodlands’ is created by statute, in particular s 229(1) and Schedule 1, Table 1, Item 1 of the PA. The appeal right is expressed in the following terms:

 1.  Development applications

For a development application other than an excluded application, an appeal may be made against -

     

     (c)  a provision of the development approval; or…” 

(emphasis added)

  1. [16]
    A ‘provision’ of the development approval is defined in Schedule 2 of the PA as follows:

provision, of a development approval, means all words or other matters forming, or forming part of, the approval.

Examples –

a development condition…

  1. [17]
    The definition of ‘provision’ provides an aid to the construction of, inter alia, Schedule 1 of the PA. As an aid, it is to be read into the appeal right under consideration, which is then construed in its context, bearing in mind its purpose.[14]  With this approach in mind, the appeal right can be stated as follows: ‘For a development application, an appeal may be made against all words or other matters forming, or forming part of, the approval’. Section 14D of the Acts Interpretation Act 1954 makes it clear that the examples following the definition of ‘provision’, which include a development condition: (1) are not exhaustive; and (2) do not limit, but may extend, the meaning of the provision to which they apply. Accordingly, a provision of a development approval includes, but is not limited to, a development condition. 
  1. [18]
    The jurisdiction point advanced by Ms Whitehouse can be put this way: the appeal right conferred by the PA does not permit Woodlands to contend for the disputed conditions because: (1) the disputed conditions are not ‘words or other matters forming, or forming part of, the approval’; and (2) the disputed conditions do not arise as a ‘consequence’, or by reason, of a relationship with a ‘provision’ of the development approval. 
  2. [19]
    I accept that the disputed conditions are not ‘provisions’ of the development approval granted by Council. I also accept the disputed conditions cannot fairly be described as consequential to a ‘provision’ of the development approval that is the subject of the conditions appeal.  The disputed conditions, if imposed, would represent new provisions of the development approval, which were not contended for by Woodlands during the development assessment and decision-making process. It can also be observed that no application was made under s 46(3) of the PECA to change the development application to include the closed circuit sought to be locked in by the disputed conditions.
  3. [20]
    To round out her submissions, Ms Whitehouse made the point that s 47(1) of the PECA does not expand the ‘conditions’ appeal right such as to enable the new conditions to be imposed on the development approval. In this regard, it was pointed out that s 47(1) of PECA identifies what the Court must do in deciding an appeal. This provision is expressed in broad terms and requires the Court to do one of three things ‘for the decision appealed against’, namely: (1) confirm it; (2) change it; or (3) set it aside and replace it, or remit it to the assessment manager.  Ms Whitehouse submitted that the power to dispose of an appeal in one of these ways is limited by the phrase ‘for the decision appealed against’.  She submitted this phrase does not capture the disputed conditions because they are not a ‘decision’ about a ‘provision’ of the development approval which can be appealed.
  4. [21]
    As against this, Mr Loos submitted:

The condition[s] in [Attachment A] proposes nothing more dramatic than that the Appellant be “locked in” to what it was proposing to do anyway – and what the Council approved it to do. In that light, the appeal is about a provision of the development approval – which incorporated the precise subject matter that is the concern of the proposed condition.

  1. [22]
    The above submission has some superficial attraction. In general terms, it proceeds on the footing that a broad, rather than pedantic, approach should be taken to the interpretation of the appeal right conferred. The submission does not however engage with the express terms of the appeal right conferred, read together with the definition of ‘provision’. In combination, these provisions of the PA require Woodlands to identify ‘words’ or ‘other matters’ forming part of the approval that found the basis to contend for the disputed conditions. In the face of the matters discussed in paragraph [11], this was not achieved by Woodlands asserting, as a general proposition, that the conditions lock in that which is already approved. The development approval does not authorise a closed circuit. Nor does it authorise a use forming part of a broader network of facilities operated by Woodlands.
  2. [23]
    The submissions advanced by Ms Whitehouse in relation to the jurisdiction point are not without force. It is however unnecessary for me to express any final view on the point because, assuming it is resolved in Woodlands’ favour, I am not satisfied the disputed conditions should be imposed in the exercise of the broad residual discretion conferred by s 60(3)(b) of the PA.
  3. [24]
    It was common ground that the conditions power for this appeal is contained in s 60(3)(b) of the PA. The power is broadly expressed, but subject to the limitations stated in ss 65 and 66 of the PA. The former provision prescribes tests precluding conditions that are not, in essence, ‘relevant’ and ‘reasonable’. As this Court has however recognised, there is no requirement to impose every condition that passes one, or both, of these tests. Rather, the conditions power is a broad residual discretion to be exercised for a proper planning purpose.[15] A planning purpose is one that implements a planning policy whose scope is ascertained by reference to: (1) the PA; and (2) the documents to which regard must, or may, be given in the assessment. Here, that includes the planning scheme. 
  4. [25]
    Against this background, I am not satisfied the broad residual discretion should be exercised favourably to Woodlands for five reasons. 
  5. [26]
    First, the evidence does not establish there is a traffic engineering imperative, or reason, requiring the imposition of the disputed conditions.[16] This is in circumstances where the development application must be assessed against the planning scheme, which includes a Transport and parking code. I was not directed to any part of that code requiring vehicle movements from new development to minimise demand on trunk road infrastructure.  The absence of any reference to this code, or any part of the planning scheme, represents a significant gap in Woodlands’ case. This is clear once s 59(3) of the PA is considered. This provision has in mind that, inter alia, the exercise of the conditions power is based on the assessment carried out in accordance with, inter alia, s 45 of the PA. This includes an assessment against the planning scheme.
  6. [27]
    Second, the evidence does not establish the disputed conditions have a planning purpose. 
  7. [28]
    Mr Buckley[17] said the purpose of the disputed conditions was ‘very clear’: the conditions are intended to establish, and enshrine, a framework for the ‘closedcircuit’ nature of the use in a way that ‘deals with’ the issues in dispute. Put another way, Mr Buckley’s explanation makes clear that the purpose of the disputed conditions is to address an issue in the ICN appeal. That is, to avoid a circumstance that is readily foreseeable, and lawful, namely vehicles travelling to, or from, the use on a range of public roads, including Council trunk roads. I was not persuaded this purpose is derived from any planning imperative arising from an assessment under s 45(5) of the PA. 
  8. [29]
    Mr Perkins, the town planning witness called by Council, stated on a number of occasions in his oral evidence that he could not identify the planning purpose of the disputed conditions.[18] Mr Loos put to Mr Perkins that[19]one’ planning purpose is that stated in paragraph 1 of Attachment A, which is in the following terms:

The purpose of this condition is to regulate vehicle movements associated with the use of the land for a poultry farm to ensure that there is no extra demand placed on trunk infrastructure as a consequence of the approved use.

  1. [30]
    The stated purpose begs this question: what is the planning or traffic engineering rationale for placing no extra demand on trunk infrastructure? The answer is a simple one. There is no such rationale. Nor is there any provision of the planning scheme to which I was referred that would call for ‘no extra demand’ on trunk infrastructure. It was in this context that Mr Perkins said he did not accept there was a planning purpose for the proposed conditions.[20] I accept his evidence. The purpose of the disputed conditions is to avoid liability for infrastructure contributions.  
  2. [31]
    Third, the purpose of the first disputed condition in Attachment A is to limit all vehicles travelling to and from the approved development to specified routes in the road network to avoid (save for a small exception) Council’s trunk road infrastructure. Such a requirement is impractical and, without the work of some miracle, will not be achieved. This is because not all vehicle movements associated with the use will be generated within, and utilise, only the ‘closed circuit’ created by the disputed conditions.
  3. [32]
    By way of example, the approved development will be operated by a site manager. The site manager may, or may not, live in the house on the land. Given no approval was sought for the house to be used as caretaker’s accommodation, the assumption is that it can continue to be lawfully used as a dwelling house, which is separate and distinct from caretaker’s accommodation. If the manager lives off-site, he or she will need to travel to, and from, the land. That travel can occur on any public road, including Council controlled trunk roads. This will place extra demand on Council’s trunk road network over and above the demand generated by the existing lawful use of the land.
  4. [33]
    To require the manager, or any other worker that may assist that person from time to time, to travel only within the closed circuit is unrealistic.  This is but one example.

As Mr Douglas’ evidence demonstrated, it is not difficult to identify other examples.

  1. [34]
    Mr Douglas is a traffic engineer. He was called by Council. It was his view that the approved development is likely to generate additional vehicle trips in the road network that are not captured by the proposed conditions. Mr Douglas said:[21]

“I think there’s a reasonable number of additional trips that aren’t captured in 2.004. …For example, contractors.  So if there’s any building works, any maintenance works, any repair works.  The sheds would need some level of maintenance.  The staff, so there may be up to two staff live onsite, there may be one staff member that lives onsite, or …additional staff who may travel there, so there could be up to three or staff on the site, as I understand it…There’ll be compliance people.  So RSPCA inspectors.  Potentially council compliance inspectors.  I don’t know if there’s any other animal husbandry is different, but there will be that.  There will be compliance people, so RSPCA inspectors.  There will be potentially council compliance inspectors.  I don’t know if there’s any other animal husbandry Department of Primary Industries inspectorates, but there may be…There will be times when the maintenance crews, the electricians, the air handling guys, are somewhere else, not at Beerwah HQ.  And the trip they take to get to Beerwah HQ to avoid using the other trunk roads to get to this site, they would then be using other trunk roads further afield to get there, potentially. So for example, they might come down the Bruce Highway and go down Roys Road to get across to the Beerwah bypass, Peachester Road, into Beerwah HQ, if they were somewhere to the north on the Bruce Highway.  Roys Road is a council trunk road, so they might not use Old Gympie Road to get to here, but they might’ve used Roys Road to get back to HQ.  And I don’t know how you instruct that, I don’t know how you monitor that and I don’t know what happens if that does happen…it’s all a bit open-ended, I suppose.” (emphasis added)

  1. [35]
    Whilst some of the examples above may be capable of being contained within the closed circuit, I accept the point made by Mr Douglas.[22] His evidence establishes that a condition seeking to limit the routes of travel for all vehicles to and from the development is unrealistic because there is a genuine likelihood that multi-purpose vehicle trips will occur. Some of those trips may occur within the prescribed closed circuit.  Some may not. Woodlands contends that no multi-purpose trips are intended and can be controlled by the disputed conditions. I do not accept, as a matter of ordinary experience, that trips of this kind will not occur during the life of the use.  This has the consequence that I am not satisfied the disputed conditions will achieve their intended purpose.
  2. [36]
    Fourth, consistent with Mr Douglas’ evidence, the disputed conditions will be difficult to monitor and enforce. Again, this is demonstrated by way of example. The proposed conditions are intended to regulate all vehicle movements to and from the approved development. If one of the vehicles travelling to, or from, the land is an ordinary sedan or utility: (1) how does a Council officer identify that vehicle in the road network; (2) once identified, how does a Council officer confirm the vehicle has travelled only within the ‘closed circuit’ established by the disputed conditions; and (3) a Council officer has no power to intercept a vehicle observed travelling on a public road outside of the ‘closed circuit’ prescribed by the disputed conditions. This, in my view, means a breach of the disputed conditions may be observed, but any step taken by Council to enforce the conditions will have to be reactive to non-compliance.

 

  1. [37]
    As a matter of ordinary experience, and consistent with Mr Douglas’ evidence, there will always be the temptation for vehicles associated with the proposed development to travel outside of the closed circuit as part of a multi-purpose trip. The temptation is one likely to be driven by convenience and practicality. The road network is, after all, a public road network and multi-purpose trips on that network are part and parcel of everyday life. Despite the best of intentions, the temptation to stray outside of the closed circuit is a real one. As Mr Douglas’ evidence established, to monitor and enforce the closed circuit to reduce the temptation is very difficult.[23] I accept his evidence.
  2. [38]
    To overcome a suggestion that the closed circuit will be difficult to enforce, the disputed conditions require GPS tracking data to be provided to Council at stated intervals. At first blush this appears to be a fair response, but the response loses its force once it is appreciated: (1) Council will, as Mr Frey explained, need to allocate specific resources to audit and review the information to confirm its truth and accuracy (at its own cost) – this cost will be incurred by Council even assuming compliance is demonstrated with the disputed conditions for the life of the use;[24] and (2) there is no way for Council to determine whether the information provided is complete, and accurate – this difficulty exists even assuming compliance is demonstrated with the disputed conditions for the life of the use. A further difficulty is that the GPS data would be provided to Council after the vehicle trips have occurred in the road network. A response to any identified non-compliance would be reactive. The impact on the trunk road network, once discovered, could not be undone by Council enforcing the disputed conditions.
  3. [39]
    It has been recognised that it may be undesirable to grant an approval subject to a lawful condition that is difficult to enforce, or is undesirable.[25] This was a matter traversed in Westfield Management Limited v Pine Rivers Shire Council & Anor [2005] QPELR 534 and led this Court to decline to grant an approval subject to a condition requiring particular goods (groceries) sold in a showroom to be displayed within a specific part of the store. In declining to impose the condition, at paragraph [68] of the judgment, Judge Brabazon QC cited the following passage from the text The Law of Land Development in New South Wales’:[26]

The real enforcement problem lies in the case of continuing conditions – conditions which apply day by day whilst a particular building or parcel of land continues to be used for the approved purpose. The difficulty is not a legal one; it seems clear that failure to abide by the conditions is an offence of that, if persisted in, the failure will entitled the Council to obtain an injunction restraining the owner from using the building or land except in accordance with the conditions. Rather, the problem is one of policing the conditions: a problem rendered more difficult where the individual breaches, although cumulatively important, are of minor significance. The gathering of satisfactory evidence of breaches may occupy the time and energies of Council’s servants to an extent to which the Council cannot afford, especially where it is necessary to make inspections at inconvenient times or in a remote part of the Council’s area. In such a situation there is a strong temptation upon a Council to turn a blind eye to the breaches – a temptation only likely to be resisted where the persons adversely affected by the breaches are sufficiently numerous, influential or vociferous. Perhaps for these reasons the NSW Land & Valuation Court has, in recent years, displayed an increasing reluctance to impose conditions regulating the dayto-day conduct of approved developments – a development only acceptable on such terms should be refused.” 

  1. [40]
    The above passage identifies the difficulties associated with enforcing ongoing conditions, particularly those where individual breaches may be of minor significance, and there is a temptation to turn a blind eye to breaches. Those circumstances apply to the present case, even assuming the best of intentions on the part of Woodlands.
  2. [41]
    Here, the disputed conditions, if imposed, would be continuing conditions. They would need to be complied with every day the use is conducted, until the time the right conferred by the development approval is abandoned. Any individual breach of the disputed conditions that occurs over the life of the development is likely to be minor, if not trivial. The breach may not even be detected. Cumulatively, however, the breaches will be significant because they undermine the purpose of the disputed conditions. The cumulative breaches result in extra demand placed on Council’s trunk road infrastructure, contrary to Woodlands’ stated intention. In circumstances where: (1) the purpose of the conditions could be undermined by individual breaches, and the cumulative effect of those individual breaches; (2) the conditions have no identifiable traffic engineering or planning purpose; and (3) there is serious doubt as to whether the conditions can, absent the work of some miracle, limit all traffic movements to the closed circuit;  it is undesirable for the conditions to be imposed.
  3. [42]
    Fifth, the evidence establishes that enforcement of the disputed conditions would place a significant burden on Council. The burden was identified by Mr Frey. The burden is not warranted having regard to any planning or traffic engineering imperative.
  4. [43]
    Mr Frey, who is employed by Council, said that Council’s approach to enforcement is essentially complaint driven. It relies upon members of the public to draw its attention to non-compliances. Mr Frey said this is unlikely to occur in the circumstances here because the community will not readily perceive an impact that will generate a complaint. I agree. How does a member of the public identify a vehicle to which the disputed conditions apply?
  5. [44]
    As a consequence, Mr Frey said Council would have to adopt a proactive approach to compliance. This would represent a departure from Council’s usual enforcement policy and require the application of additional resources.[27] The departure from Council’s usual policy would come at a cost to the public purse. This, coupled with the matters dealt with in paragraphs [25] to [41] lead to a clear result in my view - the disputed conditions are undesirable and should not be imposed on the development approval.
  6. [45]
    Turning to the ICN, it sets out the following calculation by reference to Council’s Infrastructure Charges Resolution (No.7) of 2017 (the AICR):[28]

 Qty

Unit  of

Measure

Charge Category

Max

Adopted

Charge

Rate

Adopted

Charge

Rate

(Resolution)

Max

Adopted

Charge

Adopted

Charge

(Resolution)

Approved development (A)  

  

25492

m2

GFA

High

Impact

Rural

$20.45

$20.20

$521,311

$514,938

Credit for existing lawful uses or vacant lots (B) 

  

Nil – additional to existing rural uses  

  

Balance (A) – (B)

(C) $521,311

(D) $514,938

Adopted Charge (Resolution) (D)…

 

(E) $530,047

Current Charge Amount (lesser of (C) or (E))

 

(F) $521,311

The following charge amount is the Sunshine Coast Council’s proportion of the Current Charge Amount as detailed in the proportional split in Table 10.1 of Council’s Infrastructure Charges Resolution (No.7) of 2017.

COUNCIL PROPORTION OF CURRENT CHARGE AMOUNT (F)

$333,639

OFFSET AMOUNT (see details below)

$0

LEVIED CHARGE CURRENT AMOUNT (COUNCIL PROPORTION ONLY)

$333,639

  1. [46]
    During the course of the appeal, Council conceded the ICN contained an error in Item (B) of the notice. As can be seen above, Item (B) provides a ‘Nil’ credit for the existing lawful use of the land. This is an error in the notice. Section 8.5 of the AICR required a credit of $28,335.90 to be applied for the existing 3 bedroom dwelling house on the land.[29]
  2. [47]
    Woodlands does not take issue with the balance of the calculation set out in the ICN. Rather, it advances a challenge to the ICN based on s 120(1) of the PA. 
  3. [48]
    The starting point in this regard is s 119 of the PA. This provision provides the power to levy and recover an infrastructure charge. Subsection (1) requires, as a precondition to the exercise of the power, that a development approval have been given, and an adopted charge apply to providing trunk infrastructure for the development. Each of these preconditions are met in the circumstances here.
  4. [49]
    A further limitation on the power to levy an infrastructure charge is stated in s 120(1) of the PA in the following terms:

A levied charge maybe only for extra demand placed on trunk infrastructure that the development will generate.” 

  1. [50]
    In the recent Court of Appeal decision of Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor [2020] QCA 191, Mullins JA discussed, in detail, the proper interpretation of two provisions of the Sustainable Planning Act 2009, namely s 635(1) and s 636(1). The former is in similar, but not identical, terms to s 119(1) of the PA. The latter is in similar, but not identical, terms to s 120(1) of the PA.  The differences in drafting between the respective provisions are not material for present purposes. This appeared to be conceded by Mr Loos.[30]
  2. [51]
    At paragraph [78], Mullins JA said:

On the basis of the express terms of s 635(1) and s 636(1), there are two preconditions for the levying of an infrastructure charge by the issue of an

ICN…

  1. [52]
    The two pre-conditions for the levying of an infrastructure charge were stated by Mullins JA to be as follows:

There are therefore two aspects to demand in s 635 and s 636. There 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…

  1. [53]
    The first pre-condition to consider can be stated as: Is there demand which links the development with the relevant trunk infrastructure?
  2. [54]
    Here, this question is answered in the affirmative.
  3. [55]
    For the circumstances of this case, Table 10.2 of the AICR identifies how the adopted charge is allocated to particular trunk infrastructure networks for a material change of use for a non-residential use.  The charge is allocated to two networks, namely: (1) trunk transport network, 85%; and (2) trunk public parks and land for community facilities network, 15%.[31]
  4. [56]
    The development approval, if acted upon, will generate additional vehicle movements to and from the land. Woodlands asserts in its ‘particularised list of reasons’ this will be in the order of 1,041 additional commercial vehicle movements per annum.[32] The vehicles will utilise trunk infrastructure.[33]
  5. [57]
    The demand generated by the approved development for public parks will, in contrast to traffic, be low, but nonetheless a demand.  As Mr Perkins correctly identified, there is the foreseeable prospect that ad hoc trips may occur from the development to parts of the open space network.[34] For example, drivers who are delivering feed, or other supplies to the development, may stop at a local park along the way for lunch; or to have a drink of water; or to use the amenities provided for public use.[35] I accept that trips of this kind will be small in number, but they nonetheless are trips that place a demand on Council’s trunk public park network. 
  6. [58]
    Mr Loos submitted that one off, or ad hoc, trips were not intended to be captured by s 120(1) of the PA. I do not accept this submission. Whether an ad hoc trip is included in the examination of demand will turn on the facts and circumstances of each case. For example, to assume demand may be created by an emergency vehicle attending the land in response to a fire might fairly be put to one side in examining demand. This is because the prospect of this circumstance arising may be so low as to be highly speculative. Other ad hoc trips may, however, be readily foreseeable and should be taken into account in the examination of demand. The example given by Mr Perkins in his evidence is, in my view, a readily foreseeable ad hoc trip. It is not speculative. It should be taken into account in the examination of demand for the purpose of s 120(1) of the PA.
  7. [59]
    The second pre-condition to consider can be stated as: Is there additional demand over and above what the current uses of the subject land generate in respect of road and park trunk infrastructure?
  8. [60]
    This question is answered in the affirmative.
  9. [61]
    The current use of the land involves a dwelling house and animal husbandry (horse stud). The approved use, like the existing uses, will generate traffic movements to and from the land. This will place extra demand on the road network over and above the existing use. This network comprises public roads, which include Council’s trunk road infrastructure. 
  10. [62]
    The approved development will, for the reasons given by Mr Perkins, materially increase the level of activity on the land. He said this increased activity may lead to a consequential increase, albeit low, in demand for the open space network. The demand would be generated over and above the existing use of the land. The example of the delivery driver discussed in paragraph [57] is one example of extra demand placed upon Council’s network of parks over and above the existing use of the land.
  11. [63]
    Woodlands joined issue with the extra demand point. Its case assumed the Court would impose the disputed conditions. For the reasons given above, the conditions will not be imposed. This has the consequence submitted by Mr Loos:[36]

The Appellant accepts that if there is no condition on the approval limiting the travel routes, the Court could not exclude the prospect that there would be extra demand on the trunk road network.” 

  1. [64]
    I accept this submission.  It has two consequences. First, it has the effect that s 120(1) of the PA is engaged here in relation to the trunk traffic network. It also follows, in my view, that Woodlands cannot exclude the prospect that the approved use may place extra demand on the open space/parks trunk network for the reasons discussed in paragraphs [57] and [62]. 
  2. [65]
    If, contrary to the above, the disputed conditions were imposed on the development approval, I can indicate I was not persuaded Woodlands’ extra demand point should succeed in any event.
  3. [66]
    Woodlands invited the Court to examine existing, and future, demand for trunk infrastructure in a particular context, namely that the approved use forms part of a network of facilities. To approach the matter in this way required the network to be proved. Woodlands did so only in a high-level way through Mr Elks. That evidence did not, however, establish:
    1. (a)
      the location of each farm in the network, of which there are said to be 23; 
    2. (b)
      the vehicle numbers generated in relation to each farm; and
    3. (c)
      the extent of the existing lawful use right, as opposed to capacity, for each farm in the network.
  4. [67]
    Absent the above evidence, it is difficult to test, and accept, the closed-circuit network. This is so where the disputed conditions cannot guarantee the approved development will place no extra demand on trunk infrastructure for the reasons discussed in paragraphs [31] to [38].
  5. [68]
    Woodlands also led evidence from Mr Trevilyan, who is a traffic engineer. It was his evidence that the development would place no extra demand on Council’s trunk road network. It is unclear from the submissions made on behalf of Woodlands what, if any, reliance was ultimately placed upon this evidence. 
  6. [69]
    It is Mr Trevilyan’s opinion that the development approval, if acted upon, would deliver an improvement to Council’s trunk road network. The ‘improvement’ is difficult to articulate, but as I understand the evidence, it can be put this way:[37] whilst the number of vehicle movements associated with Woodlands’ network of facilities would be increased overall by the approved development, those vehicle movements would be ‘redistributed’ in the road network such that fewer kilometres are travelled on Council’s trunk roads. 
  7. [70]
    Mr Trevilyan, using his own words, based this expression of opinion on a ‘theoretical construct’.[38] The construct assumes traffic movements generated by the approved development will remain within the closed circuit created by the proposed conditions. The construct is also based upon undisclosed assumptions about where other facilities within Woodlands’ network are located, and the number of vehicle movements generated by those facilities.  
  8. [71]
    I do not accept Mr Trevilyan’s evidence is an appropriate basis to assess extra demand for the purposes of s 120(1) of the PA. In the first instance, it wrongly assumes that no vehicle movements will be generated outside of the closed circuit for the life of the use. Further, the opinion was not supported by any empirical analysis that was disclosed in his written evidence. The absence of that analysis meant the written opinion could not be properly tested, or examined.  
  9. [72]
    This position was not remedied during Mr Trevilyan’s oral evidence. I was left with the impression, during Mr Trevilyan’s oral evidence, that his understanding of the network of facilities operated by Woodlands was less than complete. Based on his answers to a number of questions, Mr Trevilyan appeared to have limited knowledge about:
    1. (a)
      the location of the Woodlands’ network of farms relative to trunk roads and the land;[39] and
    2. (b)
      the nature and extent of lawful use rights attaching to each facility in Woodlands’ network of farms.[40]
  10. [73]
    I cannot see how the assumptions made about the above matters would have been anything other than critical to the opinion expressed. That Mr Trevilyan’s assumptions about such matters were not articulated in his evidence, and were less than clear, is why little, if any, weight should be given to his ‘theoretical construct’.
  11. [74]
    Accordingly, I am satisfied an ICN should be given for the development approval. The ICN given should correct the error identified in paragraph [46].
  12. [75]
    Both appeals are adjourned to 5 February 2021 for the purpose of making final orders that bring both proceedings to an end. 

Footnotes

[1] Ex.7.001.

[2] Ex.7.002.

[3] Stated in s 120(1) of the Planning Act 2016 (PA).

[4] Appellant’s Outline of Submissions, paragraph 42.

[5] Save for a modest exception, namely 350 metres of Old Gympie Road, Beerwah.

[6] FG-1, para 11.

[7] FG-1, paras 12 and 48.

[8] The extent of capacity forgone to adopt the RSPCA guideline is identified in FG-1, paragraph 44.

[9] FG-1, para 44 to 46.

[10] Ex.7.002.

[11] Ex.7.002, conditions 2 and 3.

[12] Ex.1.001, p.2, paragraph 6.

[13] Appellant’s Outline of Submissions, paragraph 75.

[14] Kelly v R (2004) 218 CLR 216, 253 per McHugh J.

[15] Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49, [24]; Sincere International Group Pty Ltd v Council of the City of Gold Coast [2019] QPELR 247, [24].

[16] Trevilyan: T3-37, L37 to T3-38, Line 2.

[17] T3-6, Line 1 to 9 and confirmed at T3-18 to T3-19.

[18] T3-26.

[19] T3-26, Line 17 to 18.

[20] T3-26, Line 25 to 26.

[21] T3-48 to T3-49.

[22] For example, RSPCA inspectors or contractors travelling to and from Brisbane can access the land without travelling upon Council trunk roads. The same cannot be said for contractors, council officers and staff travelling to or from the land within the local government area.

[23] T3-48, Line 25.

[24] T4-11, Line 10 to 22.

[25] Harris v Scenic Rim Regional Council [2014] QPELR 324, [234].

[26] The Law Book Company 1967, Wilcox at 399 – 400.

[27] Ex.13.001, paragraph 8.

[28]Ex.6.001.

[29]Ex.6.001, p.22.

[30] Appellant’s Outline of Submissions, paragraph 18.

[31] Ex.6.001, p.17 read with s 1.4(a).

[32] Ex.2.002, para 1(f).

[33] On Woodlands’ case, this will occur Old Gympie Road, Beerwah for a distance of about 350 metres.

[34] T3-25, Line 5 to 16, read with Mr Buckley’s evidence at T3-14, Line 36 onwards.

[35] T3-26, Line 1 to 3.

[36] Appellant’s Outline of Submissions, paragraph [42].

[37] Ex.3.001, paragraph 16 and T3-41, Line 33 to 44.

[38] T3-30, Line 29.

[39] T3-31, Line 8 to 10 and T3-34, Line 27 to 28.

[40] T3-39.

Close

Editorial Notes

  • Published Case Name:

    Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council

  • Shortened Case Name:

    Woodlands Enterprises Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2020] QPEC 67

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    17 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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