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Sunland Group Ltd v Gold Coast City Council[2018] QPEC 22

Sunland Group Ltd v Gold Coast City Council[2018] QPEC 22

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council [2018] QPEC 22

PARTIES:

SUNLAND GROUP LIMITED
(appellant and applicant)

AND

SUNLAND DEVELOPMENTS NO 22 PTY LTD
(applicant)

v

GOLD COAST CITY COUNCIL
(respondent)

FILE NO/S:

321 of 2016, 323 of 2016, 4 of 2017, 1497 of 2017 and 2213 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeals and Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

4 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2018 and further evidence received 1 May 2018

JUDGE:

Kefford DCJ

ORDER:

With respect to Sunland’s application, I declare that:

(a) the document issued by Council entitled “Infrastructure Charges Notice” relating to application number ROL201500453:

(i) did not comply with s 637(2) of the Sustainable Planning Act 2009; and

(ii) is not an infrastructure charges notice under the Sustainable Planning Act 2009;

(b) the document issued by Council entitled “Infrastructure Charges Notice” relating to application number MCU201501860:

(i) did not comply with s 637(2) of the Sustainable Planning Act 2009; and

(ii) is not an infrastructure charges notice under the Sustainable Planning Act 2009;

(c) the document issued by Council entitled “Infrastructure Charges Notice” relating to application number ROL201500458:

(i) did not comply with s 637(2) of the Sustainable Planning Act 2009; and

(ii) is not an infrastructure charges notice under the Sustainable Planning Act 2009;

(d) the document issued by Council entitled “Infrastructure Charges Notice” relating to application number ROL201600005:

(i) did not comply with s 637(2) of the Sustainable Planning Act 2009; and

(ii) is not an infrastructure charges notice under the Sustainable Planning Act 2009; and

(e) the document issued by Council entitled “Infrastructure Charges Notice” relating to application number ROL201600384:

(i) did not comply with s 637(2) of the Sustainable Planning Act 2009; and

(ii) is not an infrastructure charges notice under the Sustainable Planning Act 2009.

I will hear from the parties in relation to consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – DETERMINATION OF AN ISSUE AT A PRELIMINARY STAGE OF PROCEEDING – where council gave a document that purported to be an infrastructure charges notice – where the document included a section entitled information notice – where the text in the information notice contained no findings of fact and did not refer to material on which the findings were based – whether the information notice contained reasons for the purpose of s 637 of the Sustainable Planning Act 2009 – whether the failure to give reasons resulted in invalidity of the infrastructure charges notice – whether the court has power to make a declaration about the validity of an infrastructure charges notice – whether discretionary considerations warrant refusal of the application for declarations

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14, s 27B

Integrated Planning Act 1997 (Qld), s 4.1.5A

Planning and Environment Court Rules 2010 (Qld), r 19

Sustainable Planning Act 2009 (Qld), s 436, s 456, s 478, s 637

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

CASES:

ADCO Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18; (2014) 254 CLR 1, applied

Barro Group Pty Limited v Redland Shire Council [2009] QCA 310; [2010] 2 Qd R 206, followed

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, cited

Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327; (2015) NSWLR 292, applied

Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18; [2017] QPELR 443, approved

Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, applied

Eschenko v Cummins [2000] QPELR 386, cited

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, distinguished

Gurappaji v Tonkin [2015] VSC 177; (2015) 45 VR 324, approved

Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121, applied

Massie v Brisbane City Council [2007] QCA 159, cited

Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322, applied

Minister for Immigration and Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437, considered

Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332, cited

Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57, applied

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied

Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, applied

Re McBain; ex parte Australian Catholic Bishops [2002] HCA 16; (2002) 209 CLR 372, cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, cited

Shergold v Turner [2002] HCA 19; (2002) 209 CLR 126, applied

Turner v Maroochy Shire Council (1978) 36 LGERA 372, approved

Westfield Management Ltd v Brisbane City Council & Anor [2003] QPLER 520, cited

COUNSEL:

S Doyle QC with S J Webster for the appellant and applicant

M M Stewart QC with M F Johnston for the respondent

SOLICITORS:

Holding Redlich for the appellant and applicant

Hopgood Ganim for the respondent

TABLE OF CONTENTS

Background.......................................................................................................................................................4

Applications to be determined.......................................................................................................................5

Alleged invalidity of the infrastructure charges notices..............................................................................7

Factual background..................................................................................................................................7

Issues for determination..........................................................................................................................9

Does the court have jurisdiction to make the declarations sought?..................................................9

Has Council failed to provide “reasons” as required by statute?........................................................13

Relevant statutory provisions.................................................................................................................13

Does s 27B of the Acts Interpretation Act 1954 apply?........................................................................16

Do the reasons comply with s 637 of the Sustainable Planning Act 2009?........................................19

Does a failure to give reasons result in invalidity?................................................................................26

Do discretionary considerations warrant refusal of the application for declarations?....................35

Conclusion regarding alleged invalidity of the infrastructure charges notice..................................36

Consequential orders and Council’s applications.......................................................................................37

Background

  1. [1]
    Between 20 July 2016 and 8 December 2016, Gold Coast City Council (“Council”) issued five documents, each entitled “Infrastructure charges notice”, to Sunland Group Limited.  Each was issued contemporaneously with the giving of a development approval for development on land located at 259 Rio Vista Boulevard, Mermaid Beach (“the subject land”).  The subject land is owned by Sunland Developments No 22 Pty Ltd.  Each of the documents entitled “Infrastructure charges notice” sought to levy charges on Sunland Group Limited for trunk infrastructure. 
  1. [2]
    Sunland Group Limited filed an appeal against the decision to issue each of the documents entitled “Infrastructure charges notice”.[1]  In addition, Sunland Group Limited and Sunland Developments No 22 Pty Ltd filed an Originating Application seeking various declarations relating to the documents.  On 24 August 2017, this court ordered that the appeals and originating application be heard and determined together.[2]

Applications to be determined

  1. [3]
    On 27 October 2017, in the declaratory proceedings, Council made an application in pending proceeding seeking:[3]
  1. (a)
    summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999, with respect to that part of the Originating Application that seeks declarations as to an alleged estoppel and an alleged infrastructure agreement; or, in the alternative
  1. (b)
    pursuant to r 171 of the Uniform Civil Procedure Rules 1999, an order striking out those paragraphs in the Originating Application containing allegations with respect to an alleged estoppel and an alleged infrastructure agreement.
  1. [4]
    On 27 October 2017, Council also made an application in pending proceeding in each of the appeals seeking:[4]
  1. (a)
    pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld), summary judgment insofar as each appeal is made on the ground, in s 478(2)(a) of the Sustainable Planning Act 2009, that the charge in the notice is so unreasonable that no reasonable local government could have imposed it; or, in the alternative
  1. (b)
    pursuant to r 171 of the Uniform Civil Procedure Rules 1999, an order striking out the paragraph in each appeal that alleges the charge was so unreasonable that no reasonable local government could have imposed it.
  1. [5]
    Council’s applications in pending proceeding are referred to collectively herein as “Council’s applications”.
  1. [6]
    On 31 October 2017, Sunland Group Limited and Sunland Developments No 22 Pty Ltd (collectively referred to herein as “Sunland”) applied, under rule 19 of the Planning and Environment Court Rules 2010 (Qld), for determination of the declarations sought in paragraphs 1 to 5 of its Originating Application No. 1497 of 2017 at a preliminary stage of the proceeding (“Sunland’s application”).[5]  The declarations relate to whether each of the documents entitled “Infrastructure charges notice” complied with s 637(2) of the Sustainable Planning Act 2009 (Qld) and are valid infrastructure charges notices under the Sustainable Planning Act 2009.
  1. [7]
    Sunland seeks determination of whether the notices were invalid at this preliminary stage of the proceeding on the basis that:[6]
  1. (a)
    the determination involves short questions of law that can be determined without further expense; and
  1. (b)
    if the relief sought by Sunland is granted, each of the appeals will be discontinued as they will be otiose.
  1. [8]
    Separate written submissions were filed by each party with respect to:
  1. (a)
    Sunland’s application about the validity of the infrastructure charges notice; and
  1. (b)
    Council’s applications for summary judgment or strike out.
  1. [9]
    Both Sunland’s application and Council’s applications were the subject of the hearing on 28 March 2018.[7] 
  1. [10]
    At the hearing, Council did not dispute the appropriateness of a preliminary determination about the validity of the notices.[8]  The oral addresses focussed on the substantive question, namely whether the primary declaratory relief sought by Sunland in paragraphs 1 to 5 of the prayer for relief of the Amended Originating Application should be granted.
  1. [11]
    After the proceeding concerning Sunland’s application was complete, Counsel proceeded, in turn, to then address Council’s applications.

Alleged invalidity of the infrastructure charges notices

Factual background

  1. [12]
    Between 16 December 2015 and 30 September 2016, Sunland Group Limited made four development applications relating to the subject land, being:
  1. (a)
    an application on 16 December 2015 seeking a development permit for reconfiguration of a lot (“ROL1”);
  1. (b)
    an application on 18 December 2015 seeking development permits for reconfiguration of a lot (“ROL2”) and material change of use (“MCU1”);
  1. (c)
    an application on 12 January 2016 seeking a development permit for reconfiguration of a lot (“ROL3”); and
  1. (d)
    an application on 30 September 2016 seeking a development permit for reconfiguration of a lot (“ROL4”).[9]
  1. [13]
    Between 17 July 2016 and 7 December 2016, Council resolved to grant development permits to Sunland Group Limited in respect of each of the development applications.[10]
  1. [14]
    On 19 July 2016, Council issued:
  1. (a)
    a decision notice granting the development permit for ROL1; and
  1. (b)
    a document dated 4 July 2016 and titled “Infrastructure charges notice” in relation to ROL1.[11]
  1. [15]
    On 20 July 2016, Council issued:
  1. (a)
    a decision notice granting the development permit for MCU1 and ROL2;
  1. (b)
    a decision notice granting the development permit for ROL3;
  1. (c)
    a document dated 4 July 2016 and titled “Infrastructure charges notice” in relation to MCU1;
  1. (d)
    a document dated 4 July 2016 and titled “Infrastructure charges notice” in relation to ROL2; and
  1. (e)
    a document dated 4 July 2016 and titled “Infrastructure charges notice” in relation to ROL3.[12]
  1. [16]
    On 8 December 2016, Council issued:
  1. (a)
    a decision notice granting the development permit for ROL4; and
  1. (b)
    a document dated 4 July 2016 and titled “Infrastructure charges notice” in relation to ROL4.[13]
  1. [17]
    Each of the documents titled “Infrastructure charges notice” included a section entitled “Information Notice”, which included the following text:[14]

“DECISION TO GIVE AN INFRASTRUCTURE CHARGES NOTICE

Council of the City of Gold Coast has issued this Infrastructure Charges Notice as a result of the additional demand placed upon trunk infrastructure that will be generated by the development.”

Issues for determination

  1. [18]
    There are four issues that must be resolved in order to determine whether the declaratory relief sought in paragraphs 1 to 5 of the Amended Originating Application[15] should be granted.  They are:
  1. (a)
    whether the court has jurisdiction to make the declarations sought;
  1. (b)
    whether Council failed to provide “reasons” and, as such, failed to provide an “information notice” in accordance with s 637(2) of the Sustainable Planning Act 2009;
  1. (c)
    whether there is a statutory intention that a failure to comply with s 637(2) of the Sustainable Planning Act 2009 renders an infrastructure charges notice invalid; and
  1. (d)
    whether the court should, in exercise of its discretion, refuse to make the declarations.

Does the court have jurisdiction to make the declarations sought?

  1. [19]
    In its Points of Defence,[16] Council alleges that s 478 of the Sustainable Planning Act 2009 does not give a right of appeal for an alleged defective or inadequate infrastructure charges notice and, as such, Sunland is not entitled to challenge the validity of the infrastructure charges notices under the guise of a declaratory proceeding.
  1. [20]
    Section 478 of the Sustainable Planning Act 2009 states:

“(1) The recipient of an infrastructure charges notice may appeal to the court about the decision to give the notice.

  1. (2)
    However, the appeal may be made only on 1 or more of the following grounds–
  1. (a)
    the charge in the notice is so unreasonable that no reasonable relevant local government could have imposed it;
  1. (b)
    the decision involved an error relating to–
  1. (i)
    the application of the relevant adopted charge; or
  1. (ii)
    the working out, for section 636, of additional demand; or
  1. (iii)
    an offset or refund;
  1. (c)
    there was no decision about an offset or refund;

Examples of possible errors in applying an adopted charge–

  • the incorrect application of gross floor area for a non-residential development
  • applying an incorrect ‘use category’ under an SPRP (adopted charges) to the development
  1. (d)
    if the infrastructure charges notice states a refund will be given–the timing for giving the refund.
  1. (3)
    To remove any doubt, it is declared that the appeal must not be about-
  1. (a)
    the adopted charge itself; or
  1. (b)
    for a decision about an offset or refund–
  1. (i)
    the establishment cost of infrastructure identified in an LGIP; or
  1. (ii)
    the cost of infrastructure decided using the method included in the local government’s charges resolution.
  1. (4)
    The appeal must be started within 20 business days after the day the recipient is given the relevant infrastructure charges notice.”
  1. [21]
    Council made no submissions, written or oral, with respect to this issue. Counsel for Sunland proceeded, during the hearing, on the basis that it was accepted that the court has jurisdiction to determine this question.[17]  However, given Council did not confirm that to be the case or abandon the issue, it seems appropriate that I deal with it.
  1. [22]
    The application for declarations is brought under s 456 of the Sustainable Planning Act 2009, which relevantly provides:

“(1) Any person may bring a proceeding in the court for a declaration about any of the following–

  1. (a)
    a matter done, to be done or that should have been done for this Act other than a matter for chapter 6, part 11;
  1. (b)
    the construction of this Act …

…

  1. (6)
    The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1).
  1. (7)
    The court may also make an order about a declaration made by the court.

…”

  1. [23]
    The court’s declaratory jurisdiction under s 456 of the Sustainable Planning Act 2009 is analogous to judicial review proceedings under the Judicial Review Act 1991 (Qld).  Proceedings for declaratory relief under s 456 of the Sustainable Planning Act 2009 “afford a means of reviewing the lawfulness of local government decision-making”.[18]
  1. [24]
    The jurisdiction of this court under s 456 of the Sustainable Planning Act 2009 is expressed in wide terms.  The provision should not be construed as excluding the court’s supervisory jurisdiction unless there is a clear and unmistakeable intention to do so.[19]
  1. [25]
    The intention to confer jurisdiction of wide ambit is reinforced by s 757 of the Sustainable Planning Act 2009, which limits the application of the Judicial Review Act 1991.
  1. [26]
    The inclusion of a limited appeal right, under s 478 of the Sustainable Planning Act 2009, does not evince a clear and unmistakable intention to oust the jurisdiction of the court to make a declaration about the validity of an infrastructure charges notice.  This is because:
  1. (a)
    s 478 of the Sustainable Planning Act 2009:
  1. (i)
    provides a right of appeal to the “recipient of an infrastructure charges notice”[20];
  1. (ii)
    confers a right to appeal “about the decision to give the notice”[21]: it is concerned with the grounds on which the decision may be challenged;
  1. (iii)
    does not address a party’s right to challenge the validity of the notice itself;
  1. (b)
    s 478 of the Sustainable Planning Act 2009 should be read as conferring appeal rights on the recipient of a document that meets the statutory requirements of an infrastructure charges notice, that is the recipient of a valid infrastructure charges notice;[22]
  1. (c)
    while the Sustainable Planning Act 2009 contains language typical of a privative clause,[23] such language is not used in s 478 of the Sustainable Planning Act 2009 or elsewhere in relation to the effect of a document purporting to be an infrastructure charges notice; and
  1. (d)
    there is no inherent inconsistency between the co-existence of a limited appeal right and a broader right to seek declaratory relief that is akin to judicial review.[24]
  1. [27]
    The decision of the Court of Appeal in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13 does not require a different conclusion. 
  1. [28]
    In that case, the Court held (by majority) that:
  1. (a)
    an application for declarations about a local government’s decision to give infrastructure charges should not have been granted;
  1. (b)
    the application involved an “inappropriate attempt to circumvent the limited nature of the statutory appeal process” and therefore, in the circumstances of that case, “an improper use of the declaratory power under s 456”;[25] or
  1. (c)
    the fact that s 478 of the Sustainable Planning Act 2009 provided “a limited avenue of appeal from the Council’s decision to issue an infrastructure charges notice was a powerfully persuasive reason why the discretion [under s 456] should have been exercised against granting the declarations”.[26] 
  1. [29]
    However, the declarations sought in that case were not directed at the validity of the infrastructure notice per se. They concerned a challenge to Fraser Coast Regional Council’s factual finding about whether the development application, and resultant approval, involved two bedroom (as opposed to three bedroom) relocatable homes.
  1. [30]
    The Court of Appeal did not decide that s 478 of the Sustainable Planning Act 2009 precluded a party from making a proper application under s 456 of the Sustainable Planning Act 2009.  The possibility of that occurring is revealed by the Court’s description of the nature of an application under s 456 at 32 [40], where McMurdo P said:

“The power given to the primary judge under s 456 was not analogous to an appeal against the Council’s fact finding under s 636(1) as to the additional demand placed upon trunk infrastructure that would be generated by the respondent’s development. The proceedings for declaratory relief under statutory provisions like s 456 are analogous to judicial review proceedings. They are concerned with whether the impugned decision was validly made; they are not a merits appeal from fact finding. The Planning and Environment Court acting under s 456 is not a planning authority; it is not empowered to simply set aside a decision of the Council and replace it with its own. The question for the court was whether the Council had acted beyond power.”

  1. [31]
    Here, the declarations sought are about a matter done by Council for the Sustainable Planning Act 2009, namely the giving of a document under s 635(2) of the Sustainable Planning Act 2009.  Resolution of the application requires the court to resolve the proper construction of the Sustainable Planning Act 2009, in order to decide whether Council has validly given the infrastructure charges notices in accordance with the requirements of the Sustainable Planning Act 2009.
  1. [32]
    I am satisfied that I have jurisdiction to make the declarations sought.

Has Council failed to provide “reasons” as required by statute?

Relevant statutory provisions

  1. [33]
    Section 635 of the Sustainable Planning Act 2009 provides a local government with the power to levy and recover an infrastructure charge.  It states:

“635 When charge may be levied and recovered

  1. (1)
    This section applies if–
  1. (a)
    a development approval has been given; and
  1. (b)
    an adopted charge applies for providing the trunk infrastructure for the development; and
  1. (c)
    section 205 does not apply to the development.
  1. (2)
    The local government must give the applicant an infrastructure charges notice.

Note–

Under section 364, a local government may give a new infrastructure charges notice for a negotiated decision notice.

  1. (3)
    The local government must give the notice–
  1. (a)
    generally–
  1. (i)
    if it is the assessment manager–at the same time as, or as soon as practicable after, the development approval is given; or
  1. (ii)
    if it is a concurrence agency–within 10 business days after it receives a copy of the development approval; or
  1. (b)
    if the development approval is a deemed approval for which a decision notice has not been given–within 20 business days after the local government receives a copy of the deemed approval notice; or
  1. (c)
    if paragraphs (a) and (b) do not apply–within 20 business days after the local government receives a copy of the development approval.
  1. (4)
    Subsection (3) is subject to any provision under which an infrastructure charges notice may be amended or replaced.

Note–

See sections 626(3), 643(1), 657(3) and 662(4)(b).

  1. (5)
    The infrastructure charges notice lapses if the development approval stops having effect.
  1. (6)
    If the infrastructure charges notice levies on the applicant an amount for a charge worked out by applying the adopted charge (a levied charge), the following apply for the levied charge–
  1. (a)
    its amount is subject to sections 636 and 649;
  1. (b)
    it is payable by the applicant;
  1. (c)
    it attaches to the land;
  1. (d)
    it only becomes payable as provided for under subdivision 4;
  1. (e)
    it is subject to any agreement under section 639(1).”

(emphasis added)

  1. [34]
    Section 636 of the Sustainable Planning Act 2009 places a limitation on the charge that can be levied.  It states:

“636 Limitation of levied charge

  1. (1)
    A levied charge may only be for additional demand placed upon trunk infrastructure that will be generated by the development.
  1. (2)
    In working out additional demand, the demand on trunk infrastructure generated by the following must not be included–
  1. (a)
    an existing use on the premises if the use if lawful and already taking place on the premises;
  1. (b)
    a previous use that is no longer taking place on the premises if the use was lawful at the time it was carried out;
  1. (c)
    other development on the premises if the development may be lawfully carried out without the need for a further development permit.
  1. (3)
    However, the demand generated by a use or development mentioned in subsection (2) may be included if an infrastructure requirement that applies or applied to the use or development has not been complied with.

(3A) Also, the demand generated by development mentioned in subsection (2)(c) may be included if–

  1. (a)
    an infrastructure requirement applies to the land on which the development will be carried out; and
  1. (b)
    the infrastructure requirement was imposed on the basis of development of a lower scale or intensity being carried out on the land.
  1. (4)
    In this section–

charges notice means–

  1. (a)
    an infrastructure charges notice; or
  1. (b)
    a notice mentioned in section 977(1).

infrastructure requirement means a charges notice, or a condition of a development approval, that requires infrastructure or a payment in relation to demand on trunk infrastructure.”

(emphasis added)

  1. [35]
    Section 637 of the Sustainable Planning Act 2009 stipulates the requirement of an infrastructure charges notice.  It states:

“637 Requirements for infrastructure charges notice

  1. (1)
    An infrastructure charges notice must state all of the following for the levied charge–
  1. (a)
    its current amount;
  1. (b)
    how it has been worked out;
  1. (c)
    the land;
  1. (d)
    when it will be payable under section 638 (without considering any possible operation of section 639);
  1. (e)
    if an automatic increase provision applies–
  1. (i)
    that it is subject to automatic increases; and
  1. (ii)
    how the increases are worked out under the provision;
  1. (f)
    whether an offset or refund under this part applies and, if so, information about the offset or refund, including when the refund will be given.

(1A) However, the infrastructure charges notice need not include the information mentioned in subsection (1)(f) if the person who is to receive the notice has–

  1. (a)
    advised, in writing, the local government giving the notice that the information need not be included in the notice; or
  1. (b)
    indicated, in an approved form, that the information need not be included in the notice.
  1. (2)
    The infrastructure charges notice must also include, or be accompanied by, an information notice about the decision to give the notice.”

(emphasis added)

  1. [36]
    Section 627 of the Sustainable Planning Act 2009 contains relevant definitions.  It defines the term “information notice” as follows:

“information notice, about a decision, means a notice stating-

  1. (a)
     the decisions and the reasons for it; and
  1. (b)
     that its recipient may appeal against the decision; and
  1. (c)
     how the recipient may appeal.

Note-

For appeals relating to this chapter, see sections 478, 478A, 535 and 535A.”

Does s 27B of the Acts Interpretation Act 1954 apply?

  1. [37]
    Sunland submits that the use of the term “reasons” in the definition of “information notice” invokes s 27B of the Acts Interpretations Act 1954 (Qld), which states:

“If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also—

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.”
  1. [38]
    Council, on the other hand, submits that, in accordance with s 4 of the Acts Interpretation Act 1954, the application of s 27B is displaced by a contrary intention appearing in the Sustainable Planning Act 2009 as to the requirements of an infrastructure charges notice and an information notice. 
  1. [39]
    In ADCO Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18; (2014) 254 CLR 1, Gageler J outlined the test for a contrary intention at 22 [52]:

“A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as “necessary implication”, has not been confined to those extreme circumstances in which alteration of an existing right or liability “cannot be avoided without doing violence to the language of the enactment”. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears “clearly” or “plainly” from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.”

(footnotes omitted)

  1. [40]
    In Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57, McHugh J:
  1. (a)
    observed at 73-4 [56]:

“An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.”; and

  1. (b)
    cited, at 74 [58], the following passage from Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, 658:

“The Interpretation Act is a drafting convenience.  It is not to be expected that it would be used so as to change the character of the legislation.”

  1. [41]
    Council submits that s 637 and s 627 of the Sustainable Planning Act 2009 descend into specific detail about the requirements of an infrastructure charges notice and, as such, “there is a contrary legislative intention exposed by necessary implication”.[27]  It also submits that it can be reasonably inferred that the information listed in s 637 of the Sustainable Planning Act 2009 is specifically referenced as that is the information that is required in order to permit a recipient of such a notice to decide whether or not to appeal.[28]  Council further submits that it is difficult to see what legislative purpose would be served by local governments being required to provide specific findings on material questions of fact and also to refer to evidence on which those findings were based in issuing an infrastructure charges notice.[29]
  1. [42]
    I accept that s 637(1) provides a detailed list of information required to be included in an infrastructure charges notice.  The provision of that information is necessary to permit a recipient of such a notice to make an informed decision whether or not to appeal on one of the grounds contained in s 478(2)(b) to (d) of the Sustainable Planning Act 2009. 
  1. [43]
    However, it is clear from s 637 of the Sustainable Planning Act 2009 that the “reasons” required in the information notice are to go beyond a mere explanation of how the charge has been worked out, given that information is already required to be provided by s 637(1) of the Sustainable Planning Act 2009.[30]
  1. [44]
    The absence of detail in s 627 of the Sustainable Planning Act 2009 about the intended content of the “reasons” is a strong indication that the legislature intended that the general statutory requirement enacted in s 27B of the Acts Interpretation Act 1954 would apply.  The purpose of such a provision is to “permit economy of language”.[31] 
  1. [45]
    Further, consideration of the limitations in s 636 of the Sustainable Planning Act 2009, together with the grounds of appeal in s 478, indicate that further information will likely be required to allow a recipient to understand the basis of a local government’s decision and decide whether to make submissions about the original notice under s 641 of the Sustainable Planning Act 2009 or appeal the charge in the notice.  Examples of findings on material questions of fact that may be critical to a decision whether to exercise appeal rights include:
  1. (a)
    a finding about whether, and on what basis, the use that is the subject of the development is for a two bedroom or three bedroom dwelling, which might be relevant to an appeal under s 478(2)(b)(i) or (ii) of the Sustainable Planning Act 2009;[32]
  1. (b)
    a finding about whether trunk infrastructure, that is the subject of a “necessary infrastructure condition”, services or is planned to service premises other than the subject premises[33] and the basis of the assessment of the cost of that infrastructure[34], which is relevant to an appeal under s 478(2)(b)(iii); and
  1. (c)
    a finding about whether there is an existing lawful use of the premises or a previous lawful use, which is relevant to an appeal under s 478(2)(b)(ii) of the Sustainable Planning Act 2009.
  1. [46]
    These examples highlight the legislative purpose served by requiring a local government to set out its findings on material questions of fact and the evidential basis for those findings. 
  1. [47]
    Further, to read the reference to “reasons” in s 627 of the Sustainable Planning Act 2009 as requiring a local government to provide the findings on material questions of fact and to refer to the evidence or other material on which those findings are based does not change the character of the legislation. 
  1. [48]
    Accordingly, I am of the view that the term “reasons” in the definition of “information notice” invokes s 27B of the Acts Interpretations Act 1954 (Qld).

Do the reasons comply with s 637 of the Sustainable Planning Act 2009?

  1. [49]
    Each of the notices included a section entitled “Information Notice”, which included the following text:[35]

“DECISION TO GIVE AN INFRASTRUCTURE CHARGES NOTICE

Council of the City of Gold Coast has issued this Infrastructure Charges Notice as a result of the additional demand placed upon trunk infrastructure that will be generated by the development.”

  1. [50]
    The statement contains no findings of fact and refers to no material on which the findings were based. It does not constitute “reasons” as required by s 27B of the Acts Interpretation Act 1954.
  1. [51]
    It was submitted by Sunland that, even if s 27B of the Acts Interpretation Act 1954 did not apply, the statement relied on by Council could not properly be regarded as adequate “reasons” for the decision.
  1. [52]
    In Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462, McPherson and Davies JJA:
  1. (a)
    observed at 482 that:

“the requirement that reasons be ‘adequate’ has been recognised in a number of decisions both here and in England.”;

  1. (b)
    cited, with approval, the observation of Lord Scarman in Great Portland Estates plc v Westminster City Council [1985] AC 661 at 673 that:

“[w]hen a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate and intelligible.”

  1. (c)
    noted at 483 that the practice of some agencies to “merely parrot the language of the statute” results in a decision that is “no clearer than the statute itself”; and
  1. (d)
    observed at 483 that:

“[t]he extent of the duty to give reasons is affected by the function that is served by the giving of reasons”.

  1. [53]
    The function that is served by the giving of reasons is informed by consideration of provisions of the Sustainable Planning Act 2009 that deal with the rights and liabilities of parties affected by an infrastructure charges notice.
  1. [54]
    An infrastructure charges notice must be given to the applicant,[36] being the applicant for the relevant development approval to which the infrastructure charges notice relates.[37]  The recipient of an infrastructure charges notice is then entitled to:
  1. (a)
    make an agreement with the local government about paying the levied charge in a manner other than provided for in the notice, including by instalments;[38]
  1. (b)
    make an agreement with the local government about providing infrastructure instead of paying part or all of the levied charge;[39]
  1. (c)
    make submissions to the local government about the infrastructure charges notice, in an effort to persuade the local government to change the infrastructure charges notice;[40] and
  1. (d)
    appeal, to this court, the decision to give the notice.[41]
  1. [55]
    Those rights are contingent on the receipt of an infrastructure charges notice, which must either include or be accompanied by an information notice that provides the reasons for the decision. The reasons must contain sufficient information for a recipient to meaningfully exercise the rights conferred.
  1. [56]
    Further, an infrastructure charges notice levies a charge. The levied charge:
  1. (a)
    is payable by the applicant;[42]
  1. (b)
    is generally not payable until a time close to when the development the subject of the charge occurs,[43] which could be years after the infrastructure charges notice is given[44];
  1. (c)
    attaches to the land to which it relates;[45] and
  1. (d)
    is, for the purpose of its recovery, taken to be rates of the local government that levied it[46] and, as such, if overdue will be a charge on the land.[47]
  1. [57]
    It is conceivable that a new owner of the land may seek to undertake development in accordance with a development approval and, as such, face the obligation to pay a levied charge. It is also possible that, in the time between the giving of an infrastructure charges notice and the time when payment of a levied charge is triggered, the land in question may have been the subject of other lawful uses. (There is no limit to the number of development approvals that may attach to the land at any given time, nor to the number of related levied charges that may attach to the land.) As such, an information notice containing the findings on material questions of fact, such as those that inform the “additional demand on trunk infrastructure”, may assume particular importance to a new owner.  For example, the material facts in an earlier infrastructure charges notice may reveal a basis for an agreement under s 677(1)(b) of the Sustainable Planning Act 2009.[48]
  1. [58]
    Council submits that the statement in its information notice, set out in paragraph [49] above, expressly and clearly states the reason for the decision, namely the additional demand placed upon trunk infrastructure generated by the development.  It submits:[49]

“17. Importantly, the ICNs also outline how the levied charges had been worked out pursuant to s 637(1)(b) of SPA (see page 3 of 6 of the attached example ICN). Sunland’s Points of Claim at Annexure 1 outlines the calculation of the charges in each of the disputed ICNs, such that Sunland is aware of how the charges were calculated.

  1. Sunland does not allege that it cannot understand how the charges have been determined and calculated, or that the ICNs were deficient for the purposes of s 637(1)(b) of SPA. Nor does Sunland allege that it cannot understand the reasons for the decisions; being, the additional demand placed upon trunk infrastructure generated by the development.
  1. Sunland could not sensibly allege a lack of understanding of the reasons given that Sunland has alleged multiple grounds of challenge, and it has pleaded in detail that development the subject of ROL3 does not generate demand on trunk infrastructure additional to the demand generated by the development for MCU1 ….”
  1. [59]
    I do not accept the matters referred to by Council demonstrate that the reasons are adequate as:
  1. (a)
    Council was obliged, under s 637(1)(b) of the Sustainable Planning Act 2009, to state how the levied charge was worked out.  That obligation is distinct from its obligation to provide an information notice that contains the decision and the reasons for it;
  1. (b)
    whether the infrastructure charges notices contain reasons meeting the statutory description should be judged objectively, not based on the applicants’ subjective understanding.[50]  As is noted in paragraphs [56] and [57] above, the infrastructure charge levied by the infrastructure charges notice attaches to the land and, as such, potentially affects the rights and obligations of persons other than the applicant;[51] and
  1. (c)
    the commencement of an appeal does not demonstrate that the statutory purpose of the provision of reasons has been fulfilled.[52]
  1. [60]
    In this case, the relevant statement provided by Council does not discharge its obligation to provide reasons. The relevant statement is little more than a bare recital of a limitation on levied charges that exists under s 636(1) of the Sustainable Planning Act 2009, namely:

“(1) A levied charge may be only for additional demand placed on trunk infrastructure that will be generated by the development.”

  1. [61]
    It goes without saying that Council issued the notice because it was of the view that there would be additional demand placed upon trunk infrastructure generated by the development. An infrastructure charges notice could not be issued otherwise.
  1. [62]
    The statement does not, however, disclose a path of reasoning by which Council reached its conclusion.[53]  It does not, for example, reveal Council’s findings about:
  1. (a)
    whether there is an existing lawful use on the land;
  1. (b)
    whether there was a previous lawful use that is no longer taking place on the land; and
  1. (c)
    whether there is other development that may be lawfully carried out without the need for a further development permit and, if so, the demand generated by such development.
  1. [63]
    The path of reasoning may reveal an error relating to the working out of additional demand for s 636 of the Sustainable Planning Act 2009.  Section 478(2)(b)(ii) of the Sustainable Planning Act 2009 provides a specific appeal right with respect to such an error. 
  1. [64]
    This is particularly relevant in relation to the notice issued with respect to ROL3. That information notice does not include any explanation why Council rejected a contention,[54] made by Sunland in its planning assessment report,[55] that no additional demand is generated by ROL3.
  1. [65]
    In Minister for Immigration and Border Protection v Singh & Anor [2014] FCAFC 1; (2014) 231 FCR 437, the Full Court of the Federal Court observed at 445-6 [44]-[45]:

“[44] In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

“It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].

[45] In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359–360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.”

(emphasis added)

  1. [66]
    Here, Sunland has been denied the opportunity to articulate grounds of appeal on the basis that Council has failed to take a relevant matter into consideration or has taken into consideration an irrelevant matter.[56]  It has been deprived of Council’s reasons for:
  1. (a)
    (apparently) deciding that an adopted charge applied under s 635 of the Sustainable Planning Act 2009, including details of the charges resolution that Council applied[57];
  1. (b)
    deducting an “applied credit”, including reasons as to why the credit was applied in each case and how it was calculated; and
  1. (c)
    deciding that there was additional demand placed on trunk infrastructure by each development for which a development permit was sought.
  1. [67]
    The reasons relied on by Council also do not address the representations made by Sunland to the effect that, because the related development applications for development approval were made under a preliminary approval given on 3 May 2007 for development of a mutli-stage residential precinct called “Lakefield at Mermaid”[58], infrastructure contributions were to be imposed under the preliminary approval and by reference to planning scheme policies.[59]
  1. [68]
    Accordingly, I am not satisfied that the information notices in each of the documents titled “Infrastructure Charges Notice” contain reasons that are adequate for the purpose of s 627 of the Sustainable Planning Act 2009, regardless of whether those reasons are required to address those matters referred to in s 27B of the Acts Interpretation Act 1954. 

Does a failure to give reasons result in invalidity?

  1. [69]
    In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ observed:
  1. (a)
    at 388-9 [91]:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

(footnotes omitted, emphasis added)

  1. (b)
    at 390 [93]:

“… A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.”

(footnotes omitted, emphasis added)

  1. [70]
    Council submits that there is nothing in the Sustainable Planning Act 2009 that says or suggests an information notice complying with s 627 of the Sustainable Planning Act 2009 is a precondition to exercising the power to issue an infrastructure charges notice.  It submits that the source of power is in s 635 of the Sustainable Planning Act 2009, which in Council’s view obliges a local government to give an infrastructure charges notice where s 635(1) of the Sustainable Planning Act 2009 has been satisfied.  Council further submits that the legislature has not linked the exercise of the obligation to issue an infrastructure charges notice with a mandatory precondition of a complying infrastructure charges notice.[60]
  1. [71]
    I disagree. It is apparent from the framework of the Sustainable Planning Act 2009 that it is necessary to have regard to the whole of subdivision 3 of chapter 8, part 2, division 1 of the Sustainable Planning Act 2009 when seeking to levy an infrastructure charge.  The “linking” is apparent from the collection of s 635 and s 637 of the Sustainable Planning Act 2009 in “Subdivision 3 Levying charges”.  Section 635 of the Sustainable Planning Act 2009 stipulates with when a charge may be levied and recovered, whereas s 637 of the Sustainable Planning Act 2009 sets out the requirements for an infrastructure charges notice. 
  1. [72]
    I accept the submission made on behalf of Sunland that:[61]

“it is plain that complying with the specified requirements is a precondition of the exercise of the power, for if (for example) a local government gave a document which was entitled “infrastructure charges notice”, but which fulfilled none of the requirements in s 637[62] it could not sensibly be said that the local government had complied with the obligation in s 635: it would have given a document, but it would not have given an infrastructure charges notice.”

  1. [73]
    Council also submits that, even if a compliant information notice is a precondition to the exercise of the power, there is no discernible legislative purpose to invalidate an infrastructure charges notice that does not strictly comply with s 637 of the Sustainable Planning Act 2009.  Council gives six reasons in support of its submissions. 
  1. [74]
    First, s 478 of the Sustainable Planning Act 2009 does not give a right of appeal for a defective, inadequate or non-complying information notice.  Council submits that if the legislature objectively intended a non-complying information notice (of the kind that Sunland alleges) to result in invalidity of an infrastructure charges notice, it would have made provision for an appeal, particularly in circumstances where a range of other matters are expressly identified and stated in s 478 of the Sustainable Planning Act 2009.[63]
  1. [75]
    This submission ignores the distinction between the decision to give the infrastructure charges notice, which is the subject of appeal rights in s 478 of the Sustainable Planning Act 2009, and the validity of the infrastructure charges notice itself.  The existence of limited grounds to challenge the decision does not indicate a legislative intention that a notice that does not comply with the statutory requirements is not invalid. 
  1. [76]
    Further, the absence of a ground of appeal relating to the validity of the infrastructure charges notice does not demonstrate an intention that its validity cannot be challenged. As I have already found in paragraph [26](b) and [26](d) above:
  1. (a)
    s 478 of the Sustainable Planning Act 2009 should be read as conferring appeal rights on the recipient of a document that meets the statutory requirements of an infrastructure charges notice, i.e. the recipient of a valid infrastructure charges notice.[64]  As such, it is unsurprising that s 478 of the Sustainable Planning Act 2009 does not provide, as a ground of appeal, failure to comply with the requirements of s 637; and
  1. (b)
    there is no inherent inconsistency between the co-existence of a limited appeal right and a broader right to seek declaratory relief that is akin to judicial review.[65] 
  1. [77]
    Council’s second reason is that the legislature in the Sustainable Planning Act 2009 has expressly stated where it intends a document or instrument to be of “no effect” because of identified noncompliance or for other reasons.[66]  Council cites the following examples:
  1. (a)
    s 78A(2) of the Sustainable Planning Act 2009, which provides that a local planning instrument that does not comply with s 78A(1) “has no effect”;
  1. (b)
    s 554A(4) of the Sustainable Planning Act 2009, which deals with noncompliance with respect to a document purporting to start a proceeding of the building and development committee.  It provides that if the chief executive decides noncompliance would cause substantial injustice, then there is to be written notice stating that the document “is of no effect because of the noncompliance”;
  1. (c)
    s 881(3) of the Sustainable Planning Act 2009, which provides that a resolution of a local government in relation to infrastructure charges:

“is taken to be of no effect to the extent a charge adopted under the resolution for particular development or a part of the local government’s area is more than the maximum adopted charge for the development or part”

  1. (d)
    s 979(2) of the Sustainable Planning Act 2009, which provides that:

“an existing resolution or an existing charge is of no effect to the extent it is inconsistent with the SPRP (adopted charges)”.

  1. [78]
    Council submits that the absence of a similar express provision with respect to an infrastructure charges notice is a powerful indication that the legislature did not objectively intend for a non-complying information notice to be invalid.[67]  In this respect, it submits that the reasoning of McMurdo P (with Fraser JA and Mullins J agreeing) in Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1 at 10 [37] with respect to the Integrated Planning Act 1997 is equally apt in the present case.  McMurdo P observed:

“It is significant that there is no express provision in IPA to the effect that any non-compliance with IPA provisions (whether generally or as specified) results in the invalidity of a subsequent decision. It is true that many provisions of IPA, including many relating to IDAS, use the word “must”. But as Project Blue Sky recognises, that does not mean non-compliance with those provisions would necessarily result in a subsequent decision approving a development application being liable to be declared void and of no legal effect...”

(emphasis added)

  1. [79]
    I do not accept that the provisions referred to by Council demonstrate a general legislative intention in the Sustainable Planning Act 2009 to expressly state where it intends a document or instrument to be of no effect.  Consideration of the context of the statement that the document is “of no effect” in each of s 78A(2), s 881(3) and s 979(2) reveals that the purpose of the statement is to confine the extent to which the non-compliance results in invalidity, i.e. the provision seeks to sever the offending part of the document thereby saving the balance of the document from invalidity.[68]  As for s 554A(4) of the Sustainable Planning Act 2009, that provision is not one that states a document is to be of no effect.  It is a provision that directs a registrar to take a particular action in identified circumstances.
  1. [80]
    Council’s third reason is that because s 440 of the Sustainable Planning Act 2009 affords the court a power to excuse non-compliance, the legislature could not have objectively intended a non-complying information notice to necessarily result in an infrastructure charges notice being of “no effect” and invalid.  In support of its submissions, Council relies on Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1, particularly the observation of McMurdo P at 10 [38] with respect to the predecessor excusal power in s 4.1.5A of the Integrated Planning Act 1997.[69]
  1. [81]
    Section 440 of the Sustainable Planning Act 2009 relevantly provides:

“440 How court may deal with matters involving noncompliance

  1. (1)
    Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
  1. (2)
    The court may deal with the matter in the way the court considers appropriate.
  1. (3)
    To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
  1. [82]
    The existence of an express power in s 440 of the Sustainable Planning Act 2009 to deal with non-compliance does not demonstrate that failure to comply with requirements of the legislation does not result in invalidity.  Rather, it confers on the court the power to deal with non-compliances regardless of whether they result in invalidity or in a mere irregularity.  As was observed by Keane JA in Barro Group Pty Limited v Redland Shire Council [2009] QCA 310; [2010] 2 Qd R 206 at 225 [54] with respect to the predecessor power in s 4.1.5A of the Integrated Planning Act 1997:

“… the very circumstance that s 4.1.5A is made available to the P&E Court on an appeal from a decision of the local authority to cure non-compliance with the requirements of the IPA is itself an indication that non-compliance with the requirements of the IPA may well be fatal to a development application.”

  1. [83]
    As is aptly submitted by Sunland:[70]

“In this sense the position is comparable to that prevailing under the general law, where declaratory relief and relief in the nature of certiorari to quash an invalid decision is discretionary and so non-compliance can be overlooked or excused in an appropriate case.[71] The existence of the discretion does not mean that one ceases to speak of a decision or act being invalid.”

  1. [84]
    Council’s submission also proceeds on the basis that the power in s 440 is an “excusal” power.  As is submitted by Sunland, the power is not expressed to be one limited to excusing a default; rather, it is a power to “deal with the matter in the way the court considers appropriate”.  This may include making a declaration of invalidity or, in appropriate circumstances, excusing the default or refusing to grant a declaration of invalidity.
  1. [85]
    The fourth reason relied on by Council is that the requirements for an infrastructure charges notice are outlined in s 637(1) of the Sustainable Planning Act 2009, whereas an “information notice” is a separate document that an infrastructure charges notice must include or be accompanied by under s 637(2).  Council submits the legislature has treated an “information notice” as “something different to the infrastructure charges notice itself”.  It submits that, in that context, the legislature did not say that a non-complying “information notice” results in invalidity of the infrastructure charges notice itself or that a complying information notice is a precondition to the obligation to issue an infrastructure charges notice under s 637(2) of the Sustainable Planning Act 2009.[72] 
  1. [86]
    Whether the failure to provide a compliant information notice results in invalidity of the infrastructure charges notice will depend on whether it was a purpose of the legislation that an act done in breach of s 637(2) should be invalid. 
  1. [87]
    In my view, the language of s 637 of the Sustainable Planning Act 2009, together with other contextual matters in the legislation that indicate its scope and object, admit of a legislative intention that an infrastructure charges notice that does not comply with s 637(2) of the Sustainable Planning Act 2009 is invalid.  In particular, I note:
  1. (a)
    the heading to s 637 of the Sustainable Planning Act 2009 uses the word “requirements”.  Pursuant to s 14(2) of the Acts Interpretation Act 1954, the heading to a section is part of the Act.  The term “requirements” indicates that the section contains essential pre-conditions to the giving of an infrastructure charges notice, i.e. the notice to be given must include the matters listed;[73]
  1. (b)
    the precise and prescriptive language within s 637, including the use of the word “must”, supports the intent that the identified matters are to be included for an infrastructure charges notice to be valid.  Section 637 of the Sustainable Planning Act 2009 has a “rule-like quality which [could] be easily identified and applied”;[74]
  1. (c)
    the intention that the “requirements” be met is reinforced by the inclusion of s 637(1A), which prescribes limited circumstances where an infrastructure charges notice “need not” state one of the identified matters.  The inclusion of an exception reinforces the ordinary meaning and prescriptive effect of s 637(1) and (2); and
  1. (d)
    the fact that the information notice is to be provided contemporaneously with the infrastructure charges notice indicates its pivotal nature.  As I have already noted in paragraphs [45] to [46] and [53] to [57] above, the provision of reasons is important to the exercise of the right to make submissions to Council or to appeal in the 20 business days provided in the legislation.[75]  The fact that a non-compliance with the requirement to provide an information notice impinges on the ability of an applicant to make representations or an informed decision with respect to an appeal is indicative of the requirement that the provision is intended to be interpreted as producing an invalid result if not complied with.[76]
  1. [88]
    The fifth reason relied on by Council to submit an act done in breach of s 637(2) of the Sustainable Planning Act 2009 is not invalid relates to alleged public inconvenience.  Council refers to the observation of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 392 [97] that:

“Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.”

  1. [89]
    Council submits that if Sunland’s contentions were correct, then any trivial non-compliance with the requirements of an information notice would result in invalidity of an infrastructure charges notice. It submits that the public inconvenience would be that a local government’s positive statutory obligation to give an infrastructure charges notice under s 635(2) of the Sustainable Planning Act 2009 could be stymied by technicalities as to form and not substance, which would thereby hinder a local government’s power to impose infrastructure charges when additional demand generated by a development is otherwise placed upon trunk infrastructure.[77]
  1. [90]
    The submission ignores the availability of s 440 of the Sustainable Planning Act 2009, which one might expect to be used to excuse a non-compliance if it, in truth, was “trivial”.
  1. [91]
    Further, as was submitted by Sunland,[78] it is well established that the reasons of an administrative decision maker are not to be construed “with an eye keenly attuned to the perception of error”.[79]
  1. [92]
    The final reason advanced by Council in support of its position is that if the legislature was concerned to enshrine a right to a statement of reasons in relation to an infrastructure charges notice, it would have made provision for that in s 757(2) of the Sustainable Planning Act 2009, wherein it made provision for a person to apply for a statement of reasons under part 4 of the Judicial Review Act 1991.[80] 
  1. [93]
    In my view, there was no need for the legislature to make provision for a right to a statement of reasons in s 757 of the Sustainable Planning Act 2009.  The legislature already made the necessary provision in s 637(2) of the Sustainable Planning Act 2009 by requiring an infrastructure charges notice include, or be accompanied by, an information notice.
  1. [94]
    Taking account of the matters referred to above, it is my opinion that it was a purpose of the legislation that a document given in breach of s 637 of the Sustainable Planning Act 2009 should be invalid. 
  1. [95]
    In my view, the documents titled “Infrastructure charges notice” given by Council failed to comply with s 637 of the Sustainable Planning Act 2009 and are therefore invalid.

Do discretionary considerations warrant refusal of the application for declarations?

  1. [96]
    Council submits that there are two discretionary reasons why I should, in any event, decline to make the declarations sought by Sunland, namely:[81]
  1. (a)
    Sunland has not suffered any prejudice by reason of any non-compliance with the requirements for an information notice.  In this respect, Council points to the fact that Sunland has commenced appeals and declaratory proceedings challenging the infrastructure charges notices on numerous detailed grounds.  It submits that Sunland could not sensibly contend that it does not understand the reasons for the infrastructure charges notices; and
  1. (b)
    Sunland is seeking to circumvent the limited nature of the statutory appeals process with respect to infrastructure charges notices under s 478 of the Sustainable Planning Act 2009.  Council submits that the point is not that the court lacks jurisdiction to make declarations about the validity of an infrastructure charges notice; rather, as McMurdo P relevantly noted in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13 at 34 [48]:

“… the fact that the legislature provided a limited avenue of appeal from the Council’s decision to issue an infrastructure charges notice was a powerfully persuasive reason why the discretion should have been exercised against granting the declarations in this case.”

Council submits that for the same reasons, as a matter of discretion, the court should decline to make the declarations sought about noncompliance and validity of the infrastructure charges notices, and allow the appeals to run their normal course.

  1. [97]
    I do not accept that Sunland has not suffered any prejudice by the failure to give reasons. The mere commencement of an appeal does not demonstrate that a party has not suffered prejudice.[82]  As I have identified in paragraphs [62] to [67] above, Sunland has been denied the opportunity to articulate grounds of appeal on the basis that Council has failed to take a relevant matter into consideration or has taken into consideration an irrelevant matter.
  1. [98]
    I am also not persuaded that Sunland is seeking to circumvent the limited nature of the statutory appeals process with respect to infrastructure charges notices under s 478 of the Sustainable Planning Act 2009.  As I have already observed in paragraphs [27] to [31], this case is materially different to Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13.  Sunland is not seeking to challenge a finding of fact by Council.

Conclusion regarding alleged invalidity of the infrastructure charges notice

  1. [99]
    For the reasons set out above, I consider it appropriate to declare that:
  1. (a)
    the document issued by Council entitled “Infrastructure Charges Notice” and relating to application number ROL201500453:
  1. (i)
    did not comply with s 637(2) of the Sustainable Planning Act 2009; and
  1. (ii)
    is not an infrastructure charges notice under the Sustainable Planning Act 2009;
  1. (b)
    the document issued by Council entitled “Infrastructure Charges Notice” and relating to application number MCU201501860:
  1. (i)
    did not comply with s 637(2) of the Sustainable Planning Act 2009; and
  1. (ii)
    is not an infrastructure charges notice under the Sustainable Planning Act 2009;
  1. (c)
    the document issued by Council entitled “Infrastructure Charges Notice” and relating to application number ROL201500458:
  1. (i)
    did not comply with s 637(2) of the Sustainable Planning Act 2009; and
  1. (ii)
    is not an infrastructure charges notice under the Sustainable Planning Act 2009;
  1. (d)
    the document issued by Council entitled “Infrastructure Charges Notice” and relating to application number ROL201600005:
  1. (i)
    did not comply with s 637(2) of the Sustainable Planning Act 2009; and
  1. (ii)
    is not an infrastructure charges notice under the Sustainable Planning Act 2009;
  1. (e)
    the document issued by Council entitled “Infrastructure Charges Notice” and relating to application number ROL201600384:
  1. (i)
    did not comply with s 637(2) of the Sustainable Planning Act 2009; and
  1. (ii)
    is not an infrastructure charges notice under the Sustainable Planning Act 2009.
  1. [100]
    I will hear from the parties about any consequential orders that should be made.

Consequential orders and Council’s applications

  1. [101]
    Council’s applications for summary judgment, or in the alternative strike out, relate to:
  1. (a)
    appeals that Sunland has indicated an intention to discontinue in the event that this court makes the declarations in paragraphs 1 to 5 of the prayer for relief in Sunland’s Amended Originating Application; and
  1. (b)
    relief expressed in the Amended Originating Application to be in the alternative to the relief sought in paragraphs 1 to 5 of the prayer for relief in Sunland’s Amended Originating Application.
  1. [102]
    In paragraph [99] above, I have indicated that I intend to make the declarations sought in paragraphs 1 to 5 of the prayer for relief in Sunland’s Amended Originating Application.
  1. [103]
    In light of those matters, and my findings above, I consider it appropriate to deliver my reasons with respect to Sunland’s application, and to hear from the parties about consequential orders to give effect to the declarations I intend to make, prior to determining Council’s applications.

Footnotes

[1]Appeals No 321of 2016, 323 of 2016, 4 of 2017 and 2213 of 2017.

[2]Court Doc 8 in Appeal No 321of 2016, Court Doc 7 in Appeal No 323 of 2016, Court Doc 7 in Appeal No 4 of 2017, Court Doc 4 in Appeal No 2213 of 2017 and Court Doc 7 in Application No 1497 of 2017.

[3]Court Doc 8 in Application No 1497 of 2017.

[4]Court Doc 9 in Appeal No 321of 2016, Court Doc 8 in Appeal No 323 of 2016, Court Doc 8 in Appeal No 4 of 2017 and Court Doc 5 in Appeal No 2213 of 2017.

[5]Court Doc 9 in Application No 1497 of 2017.

[6]Written Submissions for the Applicants – Invalidity of Infrastructure Charges Notices – Court Doc 16 in Application No 1497 of 2017 p 2 [5].

[7]As ordered by the court on 1 November 2017 – See Court Doc 10 in Appeal No 321of 2016, Court Doc 9 in Appeal No 323 of 2016, Court Doc 9 in Appeal No 4 of 2017, Court Doc 6 in Appeal No 2213 of 2017 and Court Doc 10 in Application No 1497 of 2017.

[8]T1-5/L12-19.

[9]Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [10], [11], [14], [24]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [4]; Reply – Court Doc 14 in Application 1497 of 2017 [3].

[10]Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [17], [18]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1].

[11]  Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [19]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [9].

[12]  Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [20]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [9].

[13]  Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [28]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [9].

[14]  Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [22(e)], [29(e)]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [13].

[15]  Court Doc 26 in Application 1497 of 2017.

[16]  Points of Defence – Court Doc 13 in Application 1497 of 2017, [18(a)].

[17]  T1-5/L45 – T1-6/L3.

[18]Massie v Brisbane City Council [2007] QCA 159, [40] (footnotes omitted).  See also Westfield Management Ltd v Brisbane City Council & Anor [2003] QPLER 520, 531 [55]-[57] and Eschenko v Cummins [2000] QPELR 386, 389 [20].  These cases relate to s 4.1.21 of the Integrated Planning Act 1997, for which s 456 is the equivalent in the Sustainable Planning Act 2009.

[19]Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121, 134; Shergold v Turner [2002] HCA 19; (2002) 209 CLR 126, 136 [34].

[20]  emphasis added

[21]  emphasis added

[22]  cf Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 635; Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 562.

[23]  See s 436(2) of the Sustainable Planning Act 2009.

[24]Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327; (2015) NSWLR 292, 300 [32].

[25]Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] QCA 19; [2017] 1 Qd R 13, 33-4 [46].

[26]  At 34 [48].

[27]  Respondent’s Submissions on the Applicants’ Preliminary Issue on Alleged Invalidity of ICNs – Court Doc No 22 in Application 1497 of 2017 [12].

[28]  T1-32/L34-41.

[29]  Respondent’s Submissions on the Applicants’ Preliminary Issue on Alleged Invalidity of ICNs – Court Doc No 22 in Application 1497 of 2017 [13].

[30]  Consideration of s 661(3) and s 478A of the Sustainable Planning Act 2009 do not indicate a contrary intention either.  Under s 661(3) of the Sustainable Planning Act 2009, an information notice must be given if a local government decides not to convert non-trunk infrastructure.  Such a decision may be subject to appeal under s 478A of the Sustainable Planning Act 2009.  However, no information notice is required under s 661(3) of the Sustainable Planning Act 2009 if a local government decides to convert non-trunk infrastructure.  This reinforces that the purpose of an information notice is to ensure an affected party is fully informed of the basis of the decision so that it might make an informed decision about whether to appeal the decision.

[31]Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57, 65 [25].

[32]  As discussed in Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19; [2017] 1 Qd R 13, 21-2 [4] and [6], 29 [29] and 32 [39].

[33]  See s 649(1)(a) of the Sustainable Planning Act 2009.

[34]  See s 649(2) and (3) of the Sustainable Planning Act 2009.

[35]  Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [22(e)], [29(e)]; Points of Defence – Court Doc 13 in Application 1497 of 2017 [1], [13].

[36]  Section 635(2) of the Sustainable Planning Act 2009. 

[37]  Section 628(1)(a) of the Sustainable Planning Act 2009.

[38]  Section 639(1)(a) of the Sustainable Planning Act 2009.

[39]  Section 639(1)(b) of the Sustainable Planning Act 2009.

[40]  See s 641, s 642 and s 643 of the Sustainable Planning Act 2009.

[41]  Section 478 of the Sustainable Planning Act 2009.

[42]  Section 635(6)(b) of the Sustainable Planning Act 2009.

[43]  Section 638 of the Sustainable Planning Act 2009.

[44]  An infrastructure charges notice must be given contemporaneously with the development approval under s 635(3) of the Sustainable Planning Act 2009.  However, a development approval will not lapse until sometime later – see section 341 of the Sustainable Planning Act 2009. 

[45]  Section 635(6)(c) of the Sustainable Planning Act 2009.

[46]  Section 664 of the Sustainable Planning Act 1997.

[47]  See s 95 of the Local Government Act 2009.

[48]  The potential relevance arises, if, for example:

  1. (a)
    at the time the first development approval and first infrastructure charges notice is given there are no existing lawful use rights;
  2. (b)
    during the currency of the first development approval and first infrastructure charges notice, the land is subject to a second development approval and second infrastructure charges notice;
  3. (c)
    the owner acts on the second development approval and pays the charge levied under the second infrastructure charges notice; and
  4. (d)
    the owner later seeks to act on the first development approval, but wishes the demand on trunk infrastructure generated by the existing lawful use (being a use authorised under the second development approval and second infrastructure charges notice) to be accounted for to ensure the limitation in s 636 of the Sustainable Planning Act 2009 is given effect. 

[49]  Respondent’s Submissions on the Applicants’ Preliminary Issue on Alleged Invalidity of ICNs – Court Doc No 22 in Application 1497 of 2017 [17], [18] and [19].

[50]Gurappaji v Tonkin [2015] VSC 177; (2015) 45 VR 324, 337 [50].

[51]  It may also assist a subsequent owner to appreciate whether there is an inconsistency between an infrastructure charges notice and an infrastructure agreement, which is a matter of potential relevance to subsequent owners.  See s 674 and s 676 of the Sustainable Planning Act 2009.

[52]  Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18; [2017] QPELR 443, 452 [41]; Turner v Maroochy Shire Council (1978) 36 LGERA 372, 374-5.

[53]  Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322, [45] and [46].

[54]  A copy is attached to Respondent’s Submissions on the Applicants’ Preliminary Issue on Alleged Invalidity of ICNs – Court Doc No 22 in Application 1497 of 2017.  Comparison of the application number and code at page 3 of the Infrastructure Charges Notice with the description of ROL3 at Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 [14] demonstrates that the copy attached to the submissions relates to ROL3. 

[55]  Affidavit of Amelia Kate Prokuda – Court Doc 17 and 18 in Application 1497 of 2017 [2(d)] and Exhibit AKP-3 p 216.

[56]Minister for Immigration and Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332, 350 [27].

[57]  Although each resolution made by Council between 1 July 2016 and 31 December 2016 contains a clause identifying the date from which it is effective, this does not identify that Council applied a particular charge under a particular resolution.

[58]  Affidavit of Amelia Kate Prokuda – Court Doc 17 in Application 1497 of 2017 [2(a)].

[59]  Written Submissions for the Applicants – Invalidity of Infrastructure Charges Notices – Court Doc No 16 in Application 1497 of 2017 [42(d)].

[60]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 6 [22].

[61]  Reply Submissions for the Applicants – Invalidity of Infrastructure Charges Notices – Court Doc 25 p 6 [19].

[62]  For example which merely stated “You must pay the Council $50,000”.

[63]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 7 [23(a)].

[64]  cf Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 635; Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 562.

[65]  Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327; (2015) NSWLR 292, 300 [32].

[66]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 pp 7-8 [23(b)].

[67]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 8 [23(b)].

[68]  Section 78A(2) of the Sustainable Planning Act 2009 saves the operation of a local planning instrument by providing that it is of no effect only “to the extent [it] does not comply with subsection (1)”, in circumstances where s 78A(1) provides that a local planning instrument “must not” include provisions about building work.  Section 881(3) of the Sustainable Planning Act 2009 ensures the continued operation of a local government resolution by providing that it is to be taken to be of no effect only “to the extent a charge adopted under the resolution … is more than the maximum adopted charge” in circumstances where, pursuant to s 630 and s 631(1)(b) of the Sustainable Planning Act 2009 a local government may only make an adopted charge in a resolution if it is no more than the maximum adopted charge.  Section 979(3) of the Sustainable Planning Act 2009 ensures the continued operation of a charges resolution by providing that it is to be taken to be of no effect only “to the extent it is inconsistent with the SPRP (adopted charges)” in circumstances where, pursuant to s 630 and s 631(1)(a) of the Sustainable Planning Act 2009 a local government may only make an adopted charge in a resolution if it is permitted under the SPRP (adopted charges).

[69]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 8 [23(c)].

[70]  Reply Submissions for the Applicants – Invalidity of Infrastructure Charges Notice pp 9-10 [29].

[71]  Re McBain; ex parte Australian Catholic Bishops [2002] HCA 16; (2002) 209 CLR 372, 464-5 [260], 466-7 [266] and 472 [281] (Hayne J, with whom Gaudron and Gummow JJ agree at 410 [80]); SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, 355 [211].

[72]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 8 [23(d)].

[73] cf. the prescriptive language used in the heading to s 637 of the Sustainable Planning Act 2009 with the neutral language used in other sections such as s 335 of the Sustainable Planning Act 2009, which relates to a decision notice with respect to a development application and is titled “Content of decision notice”

[74]cf. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [95].

[75]  See s 478 and s 641 of the Sustainable Planning Act 2009.

[76]Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 249, 251-2 and 255; Sandvik Australia Pty Ltd v Commonwealth (1989) ALR 213, 227.

[77]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 9 [23(e)].

[78]  Reply submissions for the Applicants – Invalidity of Infrastructure Charges Notice – Court Doc 25 p 12 [34].

[79]Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272, citing Collector of Custons v Pozzolanic (1993) 43 FCR 280, 287.

[80]  Sunland did not have a right to seek reasons under s 757(2) of the Sustainable Planning Act 2009 and its application to the Judicial Review Act 1991 (Qld). Schedule 2 of the Judicial Review Act 1991, when read with s 31 of the Judicial Review Act 1991, excludes decisions of a local government relating to the exercise of a power to impose charges.

[81]  Respondent’s Submissions on the Applicant’s Preliminary Issue on Alleged Invalidity of ICNs – Court Doc 22 p 10 [25]-[27].

[82]Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18; [2017] QPELR 443, 452 [41]; Turner v Maroochy Shire Council (1978) 36 LGRA 372, 374-5.

Close

Editorial Notes

  • Published Case Name:

    Sunland Group Ltd v Gold Coast City Council

  • Shortened Case Name:

    Sunland Group Ltd v Gold Coast City Council

  • MNC:

    [2018] QPEC 22

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    04 May 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QPEC 2204 May 2018Sunland Group's application for declaratory relief that notices issued by the Gold Coast City Council did not comply with s 637(2) of the Sustainable Planning Act 2009 and were not infrastructure charges notice under the Sustainable Planning Act 2009 granted: Kefford DCJ.
Appeal Determined (QCA)[2019] QCA 118 (2019) 1 QR 30414 Jun 2019Leave to appeal granted; appeal allowed; orders made by Planning and Environment Court on 4 May 2018 set aside and in lieu thereof the respondents’ application for declarations dismissed: Fraser and Morrison JJA and Crow J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
ADCO Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18
2 citations
Jump To
Cite 1 - [2014] HCA 18
Cite 2 - [2014] HCA 18
ADCO Constructions Pty Ltd v Goudappel & Anor (2014) 254 CLR 1
2 citations
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Cite 1 - (2014) 254 CLR 1
Cite 2 - (2014) 254 CLR 1
Australian Catholic Bishops [2002] HCA 16
2 citations
Jump To
Cite 1 - [2002] HCA 16
Cite 2 - [2002] HCA 16
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
1 citation
Jump To
Cite 1 - (1949) 78 CLR 353
Barro Group Pty Ltd v Redland Shire Council[2010] 2 Qd R 206; [2009] QCA 310
4 citations
Jump To
Cite 1 - [2009] QCA 310
Cite 2 - [2009] QCA 310
Cite 3 - [2010] 2 Qd R 206
Cite 4 - [2010] 2 Qd R 206
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
2 citations
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Cite 1 - (1969) 117 CLR 651
Cite 2 - (1969) 117 CLR 651
Bradley v McDermott [2017] QCA 19
1 citation
Jump To
Cite 1 - [2017] QCA 19
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
1 citation
Jump To
Cite 1 - (1993) 43 FCR 280
Community Housing Ltd v Clarence Valley Council [2015] NSWCA 327
3 citations
Jump To
Cite 1 - [2015] NSWCA 327
Cite 2 - [2015] NSWCA 327
Cite 3 - [2015] NSWCA 327
Community Housing Ltd v Clarence Valley Council (2015) NSWLR 292
3 citations
Jump To
Cite 1 - (2015) NSWLR 292
Cite 2 - (2015) NSWLR 292
Cite 3 - (2015) NSWLR 292
Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPEC 18
3 citations
Jump To
Cite 1 - [2017] QPEC 18
Cite 2 - [2017] QPEC 18
Cite 3 - [2017] QPEC 18
Council of the City of Gold Coast v Sedgman Consulting Pty Ltd [2017] QPELR 443
3 citations
Jump To
Cite 1 - [2017] QPELR 443
Cite 2 - [2017] QPELR 443
Cite 3 - [2017] QPELR 443
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462
1 citation
Jump To
Cite 1 - [1996] 2 Qd R 462
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602
3 citations
Jump To
Cite 1 - (1997) 191 CLR 602
Cite 2 - (1997) 191 CLR 602
Cite 3 - (1997) 191 CLR 602
Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11
3 citations
Jump To
Cite 1 - [1997] HCA 11
Cite 2 - [1997] HCA 11
Cite 3 - [1997] HCA 11
Dunsmuir v New Brunswick [2008] 1 SCR 190
1 citation
Jump To
Cite 1 - [2008] 1 SCR 190
Eschenko v Cummins (2000) QPELR 386
2 citations
Jump To
Cite 1 - (2000) QPELR 386
Cite 2 - (2000) QPELR 386
Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
2 citations
Jump To
Cite 1 - (2002) 209 CLR 372
Cite 2 - (2002) 209 CLR 372
Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd[2017] 1 Qd R 13; [2016] QCA 19
12 citations
Jump To
Cite 1 - [2016] QCA 19
Cite 2 - [2016] QCA 19
Cite 3 - [2016] QCA 19
Cite 4 - [2016] QCA 19
Cite 5 - [2016] QCA 19
Cite 6 - [2017] 1 Qd R 13
Cite 7 - [2017] 1 Qd R 13
Cite 8 - [2017] 1 Qd R 13
Cite 9 - [2017] 1 Qd R 13
Cite 10 - [2017] 1 Qd R 13
Cite 11 - [2017] 1 Qd R 13
Cite 12 - [2017] 1 Qd R 13
Giris Pty Ltd v FCT [1969] HCA 5
1 citation
Jump To
Cite 1 - [1969] HCA 5
Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365
1 citation
Jump To
Cite 1 - (1969) 119 CLR 365
Gurappaji v Tonkin [2015] VSC 177
2 citations
Jump To
Cite 1 - [2015] VSC 177
Cite 2 - [2015] VSC 177
Gurappaji v Tonkin (2015) 45 VR 324
2 citations
Jump To
Cite 1 - (2015) 45 VR 324
Cite 2 - (2015) 45 VR 324
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121
2 citations
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Cite 1 - (1932) 47 CLR 121
Cite 2 - (1932) 47 CLR 121
Magrath v Goldsbrough, Mort & Co Ltd [1932] HCA 10
2 citations
Jump To
Cite 1 - [1932] HCA 10
Cite 2 - [1932] HCA 10
Massie v Brisbane City Council [2007] QCA 159
2 citations
Jump To
Cite 1 - [2007] QCA 159
Cite 2 - [2007] QCA 159
Menon v Council of the Law Society of New South Wales [2016] NSWSC 1322
2 citations
Jump To
Cite 1 - [2016] NSWSC 1322
Cite 2 - [2016] NSWSC 1322
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
2 citations
Jump To
Cite 1 - (2014) 231 FCR 437
Cite 2 - (2014) 231 FCR 437
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
2 citations
Jump To
Cite 1 - [2014] FCAFC 1
Cite 2 - [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
2 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
3 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Cite 3 - (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
1 citation
Jump To
Cite 1 - (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
1 citation
Jump To
Cite 1 - (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
1 citation
Jump To
Cite 1 - [1996] HCA 6
Pfeiffer v Stevens (2001) 209 CLR 57
3 citations
Jump To
Cite 1 - (2001) 209 CLR 57
Cite 2 - (2001) 209 CLR 57
Cite 3 - (2001) 209 CLR 57
Pfeiffer v Stevens [2001] HCA 71
3 citations
Jump To
Cite 1 - [2001] HCA 71
Cite 2 - [2001] HCA 71
Cite 3 - [2001] HCA 71
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
4 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Cite 3 - [1998] HCA 28
Cite 4 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
4 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
Cite 4 - (1998) 194 C.L.R 355
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
3 citations
Jump To
Cite 1 - (1994) 11 WAR 549
Cite 2 - (1994) 11 WAR 549
Cite 3 - (1994) 11 WAR 549
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
2 citations
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Cite 1 - [2005] HCA 24
Cite 2 - [2005] HCA 24
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
2 citations
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Cite 1 - (2005) 228 CLR 294
Cite 2 - (2005) 228 CLR 294
Sandvik Australia Pty Ltd v Commonwealth (1989) ALR 213
1 citation
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Cite 1 - (1989) ALR 213
Scurr v Brisbane City Council [1973] HCA 39
1 citation
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Cite 1 - [1973] HCA 39
Scurr v Brisbane City Council (1973) 133 CLR 249
1 citation
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Cite 1 - (1973) 133 CLR 249
Shergold v Tanner (2002) 209 CLR 126
2 citations
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Cite 1 - (2002) 209 CLR 126
Cite 2 - (2002) 209 CLR 126
Shergold v Tanner [2002] HCA 19
2 citations
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Cite 1 - [2002] HCA 19
Cite 2 - [2002] HCA 19
Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351
2 citations
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Cite 1 - [2012] QCA 351
Cite 2 - [2012] QCA 351
Stevenson Group Investments Pty Ltd v Nunn [2013] QPELR 1
2 citations
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Cite 1 - [2013] QPELR 1
Cite 2 - [2013] QPELR 1
Turner v Maroochy Shire Council (1978) 36 LGERA 372
2 citations
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Cite 1 - (1978) 36 LGERA 372
Cite 2 - (1978) 36 LGERA 372
Turner v Maroochy Shire Council (1978) 36 LGRA 372
1 citation
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Cite 1 - (1978) 36 LGRA 372
Westfield Management Ltd v Brisbane City Council & Anor [2003] QPLER 520
2 citations
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Cite 1 - [2003] QPLER 520
Cite 2 - [2003] QPLER 520
Westminster City Council v Great Portland Estates P.L.C. [1985] AC 661
1 citation
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Cite 1 - [1985] AC 661

Cases Citing

Case NameFull CitationFrequency
Gold Coast City Council v Sunland Group Limited [2020] QCA 89 1 citation
Gold Coast City Council v Sunland Group Ltd(2019) 1 QR 304; [2019] QCA 1182 citations
Sunland Group Limited v Gold Coast City Council (No. 2) [2018] QPEC 283 citations
1

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