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Traspunt No 7 Pty Ltd v Moreton Bay Regional Council QCA 275
SUPREME COURT OF QUEENSLAND
Traspunt No 7 Pty Ltd v Moreton Bay Regional Council  QCA 275
TRASPUNT NO 7 PTY LTD
Appeal No 11774 of 2020
Court of Appeal
Application for Leave Planning and Environment Court Act
Planning and Environment Court at Brisbane –  QPELR 832 (Kefford DCJ)
10 December 2021
12 August 2021
Morrison and McMurdo JJA and Boddice J
The application for leave to appeal is refused with costs.
PLANNING AND ENVIRONMENT – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the Council imposed a condition requiring the dedication of an area of land – whether the condition was a necessary trunk infrastructure condition imposed under s 128 of the Planning Act 2016 (Qld)
D P O'Brien QC, with B G Rix, for the applicant
Macpherson Kelley Lawyers for the applicant
- MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
- McMURDO JA: The applicant, which I will call Traspunt, owns land at Burbury Road, Morayfield. It is vacant land of an area of about two hectares, which Traspunt proposes to subdivide into 46 lots.
- Traspunt applied to the respondent Council for approval of that development. In July 2018, by a Negotiated Decision Notice, the application was approved and a development permit was issued, subject to conditions. It is one of those conditions, Condition 6, which is the subject of the dispute in this case.
- Condition 6 required Traspunt to transfer to the Council part of the land, identified on the approved layout plan as “Road Resumption” as a “Road Reserve”. The condition stated that this portion of land was to be “dedicated at no cost to Council”, and that the condition was imposed under s 665 of the Sustainable Planning Act 2009 (Qld) (the SPA). I will call this land the dedicated land.
- Traspunt appealed to the Planning and Environment Court. In its notice of appeal, it sought the deletion of the condition. It was common ground that although the development application was assessed and decided under the SPA, the appeal was to be heard and determined under the Planning Act 2016 (Qld).
- However at the time of the hearing, Traspunt no longer sought the deletion of the condition. Instead, it sought to have the condition amended, to state that it was a condition imposed under s 128 of the Planning Act. The benefit of that amendment, if made, would be to entitle Traspunt to offsets or refunds under the infrastructure provisions of the Planning Act. Absent that amendment, Traspunt would not be entitled to any offset or refund for the value of the dedicated land and, as the condition provided, it would be transferred at no cost to the Council.
- Section 128 of the Planning Act permits a local government (and thereby, the Planning and Environment Court on an appeal) to impose what the heading to the section describes as “Necessary infrastructure conditions”. The Planning and Environment Court was required to proceed “by way of hearing anew”, and the question for it was whether the facts and circumstances engaged s 128(2) of the Planning Act so as to authorise, by that provision, the imposition of this condition. As was (and remains) common ground, if the condition was not authorised by s 128(2), it was authorised by s 145 of the Planning Act which, in substance, is the statutory successor to s 665 of the SPA. After a four day hearing, the Planning and Environment Court dismissed Traspunt’s appeal. The judge held that the requirements for the imposition of a condition for the dedication of this land, as prescribed by s 128(2), were not satisfied.
- Traspunt applies for leave to appeal against that decision. A party to a proceeding in the Planning and Environment Court may appeal a decision in the proceeding, but only on the ground of error or mistake in law or jurisdictional error, and only with the leave of this Court. There is no suggested jurisdictional error. For the reasons that follow, the outcome in the Planning and Environment Court was not affected by any error or mistake in law. Traspunt’s case in that Court was dismissed because it failed to prove the facts and circumstances which would engage s 128.
Relevant provisions of the Planning Act
- Section 66(1)(c) of the Planning Act provides, among other things, that a development condition must not require land to be given for infrastructure other than under chapter 4, part 2 or 3 of the Act. Chapter 4 part 2 provides for conditions to be imposed by local governments, and it includes s 128 and s 145. Section 128 is within division 3 subdivision 1 of chapter 4, part 2, which is entitled “Conditions for necessary trunk infrastructure”.
- Section 128 relevantly provides:
“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.
- (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 LGIP is defined as the “local government infrastructure plan”, a part of the local government’s planning scheme that can include “plans for trunk infrastructure” upon stated assumptions about population and employment growth and the type, scale, location and timing of future development. Schedule 2 provides:
“LGIP (local government infrastructure plan) means the part of a local government’s planning scheme that—
- (a)has been prepared under the Minister’s rules; and
- (b)does any or all of the following—
- (i)identifies a PIA;
- (ii)states assumptions about population and employment growth;
- (iii)states assumptions about the type, scale, location and timing of future development;
- (iv)includes plans for trunk infrastructure;
- (v)states the desired standard of service for development infrastructure.”
The “Minister’s rules” are the rules made by the responsible Minister under s 17 of the Act, by which the Minister must make an instrument that contains certain guidelines and rules, which then take effect when a regulation is made which prescribes those guidelines and rules.
- The dedicated land is not identified in the Council’s LGIP as “adequate trunk infrastructure to service the subject premises.” Consequently, s 128(1) was not engaged. Traspunt’s case was that the facts and circumstances engaged s 128(2), and the suggested errors of law were in the construction of that provision.
- Schedule 2 defines the term “trunk infrastructure” to mean:
“(a) development infrastructure identified in a LGIP as trunk infrastructure; or
- (b)development infrastructure that, because of a conversion application, becomes trunk infrastructure; or
- (c)development infrastructure that is required to be provided under a condition under section 128(3).”
Schedule 2 defines “non-trunk infrastructure” to mean “development infrastructure that is not trunk infrastructure.”
- The term “development infrastructure” is defined to include land for transport infrastructure, including roads.
- Section 145 authorises a local government to impose development conditions about non-trunk infrastructure. If s 128(2) is not engaged here, the infrastructure constituted by the dedicated land is not otherwise within the defined meaning of trunk infrastructure, and it is thereby non-trunk infrastructure.
- At present, there are roads which are identified by the LGIP and which would adequately service Traspunt’s land, as it is proposed to be developed. Traspunt’s case was that these roads would not be adequate for what will be required in the future to service those lots. Traspunt argues that the primary judge misconstrued s 128(2) by considering only a present necessity, rather than what will become necessary.
- Traspunt is correct in submitting that s 128 is concerned with infrastructure which is not only required immediately, but also will be required in the future.
The Minister’s Guidelines
- The Minister’s Guidelines and Rules, which have been made under s 17, have effect under the Planning Regulation 2017 (Qld) (the Minister’s Guidelines).
- Provisions within chapter 5, part 4 of the Minister’s Guidelines prescribe rules for the preparation of an LGIP, which relevantly include the following.
- An LGIP must state the planning assumptions about population and employment growth, and the type, scale, location and timing of development. It must include a summary of the existing and future infrastructure demand projections for each “service catchment” for a trunk infrastructure network, and the key assumptions used to prepare the demand projections. It must include “development projections”, containing certain data and prepared from a “base date” and for “a projection period of at least 15 years, up to 30 years.” The “base date”, for an LGIP “means the date from which the local government has estimated future infrastructure demand and costs for the local government area.” An LGIP must contain “infrastructure demand projections” for trunk infrastructure, to be prepared using the planning assumptions and the development projections.
- An LGIP must identify the Priority Infrastructure Area (PIA), for urban development, in accordance with the definition of a PIA in schedule 2 of the Planning Act. In determining the PIA, the local government must consider the planning assumptions, the development projections and the infrastructure demand projections, and “the PIA must accommodate at least 10 years, but no more than 15 years, of growth for urban development.”
- Returning to s 128, with the benefit of that understanding of the requirements for an LGIP, it is apparent that the criteria of adequacy and necessity, operating within subsections (1) and (2), have a particular temporal aspect. Those criteria are to be applied to the facts and circumstances, which are assumed or projected to exist within a defined period of time, the length of which is fixed by the LGIP, in accordance with the Minister’s Guidelines. More specifically, for an area such as the present one, that is a period of at least 10 years, but no more than 15 years.
- By s 128(3), a condition may be imposed under s 128(2) only if the infrastructure would service development consistent with the assumptions in the LGIP about type, scale, location or timing of the development. This confirms the proper construction of s 128(2), which is that it is engaged only where the LGIP does not identify, as such, trunk infrastructure which will be necessary to service the subject premises within the period for which the LGIP provides.
The LGIP in this case
- Clause 4.2 of this LGIP states, as required, its planning assumptions about population and employment growth and the type, scale, location and timing of development including the demand for each trunk infrastructure network. It provides that the planning assumptions have been provided for a base date of 2016, and for the relevant projections of infrastructure demand through to “mid 2031”. In compliance with the Minister’s Guidelines, those projections have been made for a maximum period of 15 years from a base date in 2016.
- The PIA in this case identifies the area prioritised for the provision of trunk infrastructure “to service the existing and assumed future urban development up to 2027.”
- The LGIP includes a drawing, described as a “plan for trunk infrastructure – active transport”. It shows certain roads described as the “Existing Trunk Active Transport Network”, as well as certain other future or existing roads described as “Future Trunk Active Transport Network”. In the latter category, it distinguishes between a “Future Trunk Active Transport Facility” and “Primary and Secondary Active Transport corridors required beyond 2031”. The section of road which is relevant to this case, which is adjoined by the dedicated land, is depicted as one of the latter category, “corridors required beyond 2031.”
- The LGIP contains a further drawing, described as a “Plan for Trunk Infrastructure – Transport Network”. It depicts both the existing Trunk Transport Network and the Future Trunk Transport Network. The section of road which is relevant to this case is not shown within either category. The necessary implication is that it is trunk infrastructure which will not be necessary within a period of time which expires in 2031.
The evidence and the judge’s factual findings
- Traspunt’s land adjoins Burbury Road to the south and Clark Road to the north. Clark road runs in largely an east-west direction, and crosses Oakey Flat Road which, under the LGIP, is classed an existing trunk road. That part of Clark Road which is to the west of Oakey Flat Road is unconstructed, and it is that part which Traspunt’s land adjoins. It is shown on the “Plan for trunk infrastructure – active transport”, in the LGIP, as one of the “corridors required beyond 2031”.
- The dedicated land is at the northern end of Traspunt’s land, and it is its northern boundary which adjoins Clark Road. The approved layout plan shows roads within the proposed subdivision which would be reached, via an easement to the west of Traspunt’s site, from Burbury Place.
- To the west of the development site is other land for which Traspunt obtained a subdivision approval from the Council, in September 2017. A condition of that approval was the dedication of a similar portion of that site, on its northern boundary and abutting the same section of Clark Road. In that approval, the condition for the dedication of the land was expressed to be a “necessary trunk infrastructure condition” under the predecessor (in the SPA) of s 128. Traspunt’s argument emphasises what is said to be an inconsistency between that condition and the Council’s denial that the condition in issue in this case was authorised by s 128. It is evident that this other condition, like the present one, was intended to provide Council with a wider corridor in that section of Clark Road in the event that a road is constructed there.
- Two traffic engineers gave evidence about the adequacy of the existing and planned trunk infrastructure to service the proposed development. One was Mr Holland, who was retained by Traspunt, and the other was Mr Douglas who was retained by the Council. There was no material point of difference between their opinions.
- Mr Douglas said that the access to the proposed development would be gained through Burbury Road to the south, or a road called Lakeview Road to the north, each of which connects to Oakey Flat Road. The primary judge summarised his evidence as follows:
“ Mr Douglas opines that the localised western extension of Clark Road could have been conditioned to service the proposed development and adjacent land parcels. However, he considers it was unnecessary to do so because the adjacent recent subdivision immediately to the west has extended Lakeview Road to facilitate a northern connection to Oakey Flat Road and a southern connection to Oakey Flat Road via Burbury Road. He also says adequate pathway links have been provided along Lakeview Road to Oakey Flat Road. In his view, the traffic planning benefit of the proposed dedication relates to future development beyond the planning horizon applied in the Council’s LGIP. It preserves the possibility of a sub-arterial road being constructed in the future, beyond the life of the LGIP.
 Mr Douglas also notes that the material that accompanied the development application contains no suggestion that the LGIP does not provide adequate trunk infrastructure to service the locality of which the subject premises is a part, nor is there any indication that the trunk infrastructure provided or planned is not adequate to facilitate the subject development. As such, Mr Douglas infers that Traspunt was, and remains, of the view that the LGIP provides adequate trunk infrastructure to service the locality and the proposed development.”
- The judge noted that Mr Douglas was not required for cross-examination, and that his opinions were not only unchallenged, but they were endorsed by Mr Holland. The judge summarised Mr Holland’s evidence as follows:
“ Mr Holland gave evidence that the proposed development will be connected to road infrastructure networks external to the proposed development by way of local access streets contained within the proposed development, a local collector road contained within the neighbouring development to the west, and, subsequently, a second local collector road, being Burbury Place, to the south of the proposed development. Mr Holland agrees with Mr Douglas that the LGIP identifies adequate trunk infrastructure to service the subject premises without provision of the proposed road widening. He also opines that, without connection to the north via Lakeview Drive, the development could still rely on access via the existing Burbury Road. In Mr Holland’s opinion, there is nothing about the traffic arrangements for the proposed development that requires the land to be provided. He says that the upgrade of Clark Road is not necessary to service the proposed development. Like Mr Douglas, Mr Holland was not required for cross-examination. His opinions were unchallenged.”
- Most importantly, the judge accepted the evidence of Mr Douglas that “the traffic planning benefit of the proposed dedication relates to future development beyond the planning horizon applied in the Council’s LGIP” and that “[it] preserves the possibility of a sub-arterial road being constructed in the future, beyond the life of the LGIP”. The “planning horizon”, or alternatively “the life of the LGIP”, was a reference to the period for which trunk infrastructure was planned by the LGIP. On the evidence which the judge accepted, the dedicated land would not be required, as development infrastructure necessary to service Traspunt’s land, within that period.
- Consequently, on that evidence and on the proper construction of s 128(2), that provision was not the source of the power to impose this condition. In the terms of s 128(2), 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.
The reasoning of the primary judge
- In essence, that was the reasoning of the primary judge. Her Honour did not consider the criteria of adequacy and necessity, within s 128(2), only as a reference to the present circumstances. Her Honour reasoned as follows:
“ … Traspunt submits that “adequate trunk infrastructure” means development infrastructure that is required, either now or in the future, to service the premises and other premises. It says the opinions of Mr Douglas and Mr Holland that the LGIP identifies adequate trunk infrastructure involve them impermissibly swearing the issue. Traspunt also submits that, when one considers its construction of “adequate trunk infrastructure”, this reveals that each of Mr Douglas and Mr Holland are actually of the view that the LGIP is inadequate in its identification of development infrastructure in the nature of trunk infrastructure. This was not put to either Mr Douglas or Mr Holland. Even having regard to the evidence of those experts noted by Traspunt, I do not infer that to be their view. In any event, I do not accept the construction for which Traspunt contends. It involves unnecessarily reading words into the provision.
 … [The evidence of the traffic engineers] did not elevate the unconstructed part of Clark Road any higher than a road that corresponds to an indicative location of a potential future trunk road identified in the Council’s longer-term planning. The infrastructure identified in the longer-term planning is not foreshadowed as part of the infrastructure required under the LGIP for the period up to 2031. It is not infrastructure that is presently necessary. I am not persuaded that the potential for its use in the longer-term, and the potential for the subject premises to utilise the road as part of a broader network, were it delivered at some stage in the future, demonstrates that the LGIP does not identify adequate trunk infrastructure to service the subject premises, or that the proposed road resumption is necessary to service the land.”
- Her Honour rejected a submission that the Council’s requirement for the dedicated land was indicative of an intent that Clark Road be ultimately an arterial or sub-arterial road, so that this condition was imposed for the purpose of the future provision of trunk infrastructure. Her Honour held, correctly, that whether or not that was the case, it did not enliven the power in s 128(2). She said that s 128(2):
“… does not permit the Council to impose a condition to secure the dedication of any possible future trunk infrastructure it may desire to serve its broader network. The development infrastructure must be necessary to service the subject premises. The evidence relied on by Traspunt does not establish this.”
(Emphasis in original)
- Her Honour discussed another submission by Traspunt, which sought support from Council documents in relation to other developments in the same locality. This was a factual issue, and as the judge observed, the argument went no higher than a contention that the Council intended Clark Road ultimately to be an arterial or sub-arterial road.
- Her Honour rejected a submission by Traspunt that the planning scheme, apart from the LGIP, identified Clark Road as a future trunk road. Her Honour said that the planning scheme did no more than indicate that Clark Road was “a possible future trunk road”, which did not demonstrate the matters necessary to engage s 128(2).
- Her Honour rejected another submission by Traspunt, which was to the effect that there was some tension between the Council’s case about s 128(2), and its explanation for how the condition could be lawfully imposed under s 145. Her Honour said, correctly, that it was unnecessary for her to determine whether s 145 authorised this condition, because that was the subject of a concession by Traspunt.
The grounds of the proposed appeal
- The first ground of Traspunt’s proposed appeal is that the judge erred in law in holding that it is irrelevant to the existence of the power under s 128(2) to consider “whether development infrastructure, when constructed, serves a trunk infrastructure function”.
- As this ground was developed in Traspunt’s argument, it was said that “the development infrastructure identified in an LGIP is development infrastructure that is trunk infrastructure as that term is normally understood.” That submission was said to be supported by the Minister’s Guidelines, including a rule that an LGIP must not include a definition for trunk infrastructure, and the Explanatory Notes which introduced these provisions which said that:
“[i]nfrastructure includes both ‘trunk infrastructure’ (that is, higher-level infrastructure that is shared between multiple developments) and ‘non-trunk infrastructure’ (that is, infrastructure that is generally not shared with other developments and is generally internal to a development site).”
- This ground of appeal seems to challenge the judge’s reasoning which I have discussed at . As I have said, the judge was correct in that reasoning. However some further things should be noted about this ground. The first is that the term “trunk infrastructure” is a defined term in the Act, and the effect of the Minister’s rule is that a Council must employ that meaning in its LGIP. There are only the three ways in which development infrastructure might become trunk infrastructure as defined. The second is that this argument, which is to the effect that the dedicated land should be characterised as trunk infrastructure, does not assist Traspunt to establish, in the terms of s 128(2), that the LGIP does not identify (other) adequate trunk infrastructure to service the subject premises. On the uncontested evidence, the LGIP does identify trunk infrastructure which is adequate for that purpose.
- Traspunt’s proposed grounds two and three may be considered together. Ground two is that the judge 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. Ground three is that the judge erred in the same way when addressing the criterion of necessity. That was not the judge’s reasoning, as I have explained.
- The fourth and fifth grounds may be considered together. By the fourth ground, it would be contended that the judge erred as a matter of law in holding that the evidence before the Court did not establish that 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”. The fifth ground of appeal is that the judge overlooked the unchallenged evidence of the Council’s records, in relation to a future extension of Clark Road, as well as some evidence of the traffic engineers in that respect. There was no error as suggested by grounds four and five. The judge correctly assessed the evidence which was relevant to the criteria of adequacy and necessity within the relevant future period, as that period was defined by the LGIP.
- In summary, none of the proposed grounds of appeal have merit.
- For these reasons, I would order that the application for leave to appeal be refused with costs.
- BODDICE J: I agree with McMurdo JA.
Section 129 of the Planning Act.
Planning and Environment Court Act 2016 (Qld) s 46(2).
Planning and Environment Court Act 2016 (Qld) s 43 and see the judgment of that Court in Jakel Pty Ltd v Brisbane City Council  QPEC 21;  QPELR 763.
Traspunt No 7 Pty Ltd v Moreton Bay Regional Council  QPEC 50;  QPELR 832 (Judgment).
Planning and Environment Court Act 2016 (Qld) s 63(1).
Planning and Environment Court Act 2016 (Qld) s 63(2).
The term “necessary infrastructure condition” in s 128 is defined by s 127(2) as a development condition imposed under s 128.
In Schedule 2 to the Act.
Schedule 2 definition of “LGIP (local government infrastructure plan)” (c)(iv).
In schedule 2.
Minister’s Guidelines cl 17.1.
Minister’s Guidelines cl 17.3.
Minister’s Guidelines cls 18.1 and 18.2.
Minister’s Guidelines schedule 8.
Minister’s Guidelines cl 19.1.
Minister’s Guidelines cl 20.1; schedule 8.
Minister’s Guidelines cl 20.3(a).
Minister’s Guidelines cl 20.3(d).
Minister’s Guidelines cl 20.3(d).
LGIP cl 4.3.1.
SPA s 647.
Minister’s Guidelines cl 14.2.
Explanatory Notes to the Sustainable Planning (Infrastructure Charges) and other Legislation Act 2014 (Qld), p 4.
See above at .
- Published Case Name:
Traspunt No 7 Pty Ltd v Moreton Bay Regional Council
- Shortened Case Name:
Traspunt No 7 Pty Ltd v Moreton Bay Regional Council
 QCA 275
Morrison JA, McMurdo JA, Boddice J
10 Dec 2021
- Selected for Reporting: