Timor 34 Pty Ltd v Logan City Council
[2024] QPEC 27
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- Timor 34 Pty Ltd v Logan City Council[2024] QPEC 27
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Timor 34 Pty Ltd v Logan City Council[2024] QPEC 27
Timor 34 Pty Ltd v Logan City Council[2024] QPEC 27
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Timor 34 Pty Ltd v Logan City Council [2024] QPEC 27 |
PARTIES: | TIMOR 34 PTY LTD (ACN 653 374 942) (appellant) v LOGAN CITY COUNCIL (respondent) |
FILE NO/S: | 94 of 2023 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal against an infrastructure charges notice |
ORIGINATING COURT: | Planning and Environment Court, Maroochydore |
DELIVERED ON: | 30 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 and 22 May 2024 |
JUDGE: | Williamson KC DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING & ENVIRONMENT – APPEAL – where appeal against an infrastructure charges notice – whether the infrastructure charges notice contains an error relating to the application of Logan Charges Resolution (No.10) 2022 – whether the amount of the levied charge is so unreasonable that no reasonable local government could have imposed the amount. |
LEGISLATION: | Planning Act 2016, ss 75, 113, 114 119, 120, 125, 229 and Schedule 1 Planning Regulation 2017, s 52 and Schedule 16 Planning & Environment Court Act 2016, ss 45 and 47 Sustainable Planning Act 2009, s 636 |
CASES: | Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation [1948] 1 KB 223 AAD Design P/L v Brisbane City Council [2013] 1 Qd R 1 Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28 Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13 Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No.1) [2001] QPELR 414 Toowoomba Regional Council v Wagner Investments Pty Ltd (2020) 5 QR 477 Shroff v McSporran (1987) 65 LGRA 33 |
COUNSEL: | Mr C Hughes KC with Mr L Walker for the appellant Mr B Job KC with Mr K Wylie for the respondent |
SOLICITORS: | McKeown Solicitors for the appellant McInnes Wilson Lawyers for the respondent |
Introduction
- [1]This is an appeal against Infrastructure charges notice number LCC/067/2023 (the ICN), given by Council. The giving of the ICN, which is dated 1 February 2023, followed a decision to grant a conditional development approval for the making of a material change of use of land at Timor Avenue, Loganholme. The approval, which is contained in a negotiated decision notice (the NDN), authorises the start of a new use of land, namely ‘Rooming accommodation’ (6 x 12 units (72 bedrooms))’. The NDN states that the approved development was assessed against specific parts of version 8.1 of Council’s 2015 planning scheme (the planning scheme). Rooming accommodation is a defined use in the planning scheme.
- [2]The calculation for the levied charge was undertaken by reference to ‘Logan Charges Resolution (No.10) 2022’ (the charges resolution). A review of the calculation reveals there are two elements to the charge. The disputed issues are directed towards only one element, namely the adopted infrastructure charge, which is calculated as follows:
Defined Use | Charging Category | Qty | Unit | Charge per Unit ($) | Infrastructure Charge Payable |
Rooming accommodation (suite 2 or less bedrooms) | Accommodation (long-term) (suite 2 or less bedrooms) | 72 | suite | $21,912 | $1,577,664 |
- [3]The appellant accepts the power to give an ICN was engaged here: s 119(1) of the Planning Act 2016 (the Act).
- [4]The appeal right exercised by the appellant is limited in nature: s 229 and Schedule 1, Table 1, item 4. To engage s 47(1)(b) and (c) of the Planning & Environment Court Act 2016 (the Court Act), the appellant must first establish a legal, factual or discretionary error: see Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28, [11].
- [5]The appellant’s primary case challenges the ICN on the footing Council erred in applying the charges resolution. More particularly, it is contended the ICN is wrong because:
- Council erred in adopting a quantity of 72, rather than 6 suites; and
- Council erred by not applying an adopted charge of $30,677 for 6 suites.
- [6]Further, or in the alternative, the appellant challenges the amount of the adopted charge on the basis it is so unreasonable that no reasonable local government could have imposed it.
- [7]Council joins issue with each of these contentions.
- [8]It is for the appellant to establish the appeal should be upheld: s 45(1)(c) of the Court Act.
- [9]Before dealing with the issues identified in paragraphs [5] and [6], it is necessary to set out some background.
Background
- [10]By decision notice dated 19 January 2023, Council granted a development approval, subject to conditions, for land situated at 34 Timor Avenue, Loganholme (the land). The approved development is, as I have already observed, a material change of use of land for a particular purpose, namely ‘Rooming accommodation’. This is defined in the planning scheme as follows:
“…the use of premises for -
a.residential accommodation, if each resident -
i.has a right to occupy 1 or more rooms on the premises; and
ii.does not have a right to occupy the whole of the premises; and
iii.does not occupy a self-contained unit, as defined in the Residential Tenancies and Rooming Accommodation Act 2008, schedule 2, or has only limited facilities available for private use; and
iv.shares other rooms, facilities, furniture or equipment outside of the resident’s room with 1 or more other residents, whether or not the rooms, facilities, furniture or equipment are on the same or different premises; or
b.a manager’s residence, an office or providing food or other services to residents, if the use in (sic) ancillary to the use in paragraph (a).
Examples include: Boarding house, hostel monastery, off-site student accommodation
Does not include the following examples: Hospice, community residence, dwelling house, short-term accommodation, multiple dwelling.”
- [11]The ICN was given after the decision notice dated 19 January 2023. It is common ground the calculation set out in notice is drawn from Schedule 3 of the charges resolution.
- [12]The applicant for approval made representations to Council about the development approval and the ICN under ss 75(1) and 125(1) of the Act. In response, Council decided to give a negotiated decision notice, dated 19 April 2023. This is the NDN. Council did not however elect to change the ICN dated 1 February 2023. By 19 April 2023, a new Adopted charges resolution was in force, namely “Logan Charges Resolution (No.11) 2023”. This resolution took effect on 6 March 2023. It was common ground there are no differences of relevance for this appeal between version 10 and 11 of the Council resolutions.
- [13]Central to the dispute between the parties is an argument about the development approved by the NDN. This issue necessarily calls for consideration of the NDN.
- [14]Section 1 of the NDN refers to an application that was originally decided on 19 January 2023. The application is stated in the subject line of the NDN as:
“APPLICATION DESCRIPTION
- MATERIAL CHANGE OF USE CODE – ROOMING ACCOMMODATION (6 X 12 UNITS (72 BEDROOMS))”
- [15]Condition 1.1 of the NDN requires development to be undertaken generally in accordance with approved plans, save where altered by another condition or where the plans have been amended in red. The approved plans are incorporated in the development approval by express reference. This is achieved by way of a table in condition 1.1 identifying each approved plan by title, number, revision, date and author.
- [16]A review of the approved plans (Exhibit 4, pp. 63-80) reveals the development comprises two, three storey buildings, separated by a common outdoor area described as ‘BBQ & Gazebo’. The two buildings are each divided into three compartments, with each compartment identified as a ‘suite’. The suites are numbered 1 to 6 (starting at the southern end of the first building). The suites are separated by stairwells. The stairwells are roofed but do not have solid walls or flooring. The floor and external walls are lined with fibre mesh grate material. A driveway, at-grade carpark and bin storage are located to the east of the proposed buildings. The common stairwells are accessed from the carpark via a ‘common open space entry’. Communal bike storage is located to the south of suite 1. Two fixed communal clothes drying rack areas are located to the west and adjacent suites 2 and 5.
- [17]The approved plans contain a number of references to ‘suites’. As a starting point, the first approved plan contains the following note:
“Scope of work: The proposed rooming accommodation development incorporates 6 x suites which have 12 bedrooms in each, comprising 72 bedrooms in total.”
- [18]A note, similar in substance, appears in the heading to a ‘GFA Calculation’ in the approved site plan: Exhibit 4, p. 65. The note reads ‘Room Numbers (6 suites with 12 rooms each totalling 72 rooms)’.
- [19]Having regard to the above notes, read with the approved plans as a whole, it can be said that the term ‘suite’ has been adopted by the drafter to identify a collection of units spread over three floors in one compartment of the development. No two suites adjoin. They are separated in each building by stairwells.
- [20]Save for an exception I will mention shortly, the suites contain a number of elements, including shared facilities. The relevant aspects of the development in this regard are as follows:
- the suites have 11 rooms, spread over three floors, with a connected living/bedroom space and ensuite;
- each suite has 1 disability access room, with a combined accessible living/bedroom space and ensuite (provided at the ground level);
- each suite has a common room on the ground floor, described as ‘Alfresco’, which opens to an outdoor communal BBQ area;
- each suite has a shared recreation space, described as an outdoor roof terrace or balcony on level 2, which is accessed via corridors constructed of the same material as the stairwells discussed in paragraph [16];
- the suites share laundry facilities; and
- the suites share a lift and postal delivery/food delivery access point.
- [21]The exception to which I referred above appears in suite 1. The approved plans provide for one room on level 1, and an associated balcony, to be used by an on-site manager.
- [22]The appellant contends the NDN, properly construed, authorises the start of a new use of the land for the purposes of Rooming accommodation as defined in the planning scheme. It is also contended that the approval is subject to a particular limitation. Mr Hughes KC and Mr Walker submitted the development approval is limited by the definition of ‘suite’ as it appears in the charges resolution. While the charges resolution is not expressly incorporated in, or called up by, the NDN, it was contended the approval should be construed by reference to the charges resolution. This submission is founded on the proposition it is permissible, in this case, to construe the NDN by reference to extrinsic material not expressly incorporated in the approval. Reliance in this regard was placed upon an exception to well established principles of construction applying to development approvals.
- [23]There was no controversy that the right to use land, sourced from a development approval, is to be determined from the terms of the relevant approval itself, which may include material by express reference or necessary implication. The reason for this is well recognised. An approval attaches to land and binds successors in title. It must speak according to its written terms, including other incorporated material, and be construed in the context of its enduring function: see Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13, [42] per McMurdo P with whom Atkinson J agreed and Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, [20]. It does not however follow that it is impermissible, in all circumstances, to refer to extrinsic material to construe a development approval. As Brabazon QC DCJ recognised in Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No.1) [2001] QPELR 414, 416, there is some room for extrinsic material. The appellant contended this was such a case. In this regard, Mr Hughes KC and Mr Walker placed reliance upon Shroff v McSporran (1987) 65 LGRA 33. This is a decision of the Full Court of the Supreme Court of South Australia. In that appeal, it was held that it was permissible to consider extrinsic material to construe a permit for town planning consent.
- [24]Shroff was an appeal against a conviction by a Magistrate for: (1) carrying out development absent a necessary approval; and (2) failing to comply with a condition of an approval. The prosecution case was founded on the terms of a town planning consent permit, which included a condition that there be substantial compliance, in all respects, with an amended plan submitted to Council. The amended plan included figures, signs, symbols and marks representing eight car parking spaces. White J held that it was permissible to construe these aspects of the consent by reference to an adopted planning control not referred to in the permit itself. The planning control was a Development Plan. At page 38 of the reasons, White J, with whom von Doussa J agreed, said:
“The 1985 consent in the case before us is not, and does not purport to be, a self-contained document capable of interpretation by looking no further than the four concerns of the page. On the contrary, the 1985 consent makes express reference to a plan and certain proposals. It incorporates the relevant supporting plan, exhibit P 6, when it makes reference to the “amended plan” and to proposed subdivision and parking areas. When reference is made to the plan (exhibit P 6), the allocation of an area (area P 4) to consulting room use can plainly be seen. By implication, the balance of the complex was to be used for shops and offices, hence the figures, signs, and symbols, on the plan and the marks representing eight car spaces. These measurements, marks, figures, and symbols, are only intelligible by reference to the Port August Development Plan. I hold that a development plan may be used as an extrinsic aid to the interpretation of a consent unless the consent is completely unambiguous and is contained in a document which plainly shows that it contains the whole of the terms and conditions of the consent.” (emphasis added)
- [25]Here, it was necessary to go beyond the terms of the NDN to construe the development approval. Both parties invited the Court to construe the NDN by reference to the approved plans and the planning scheme. Such an approach, in my view, was entirely permissible and consistent with principle. In simple terms, the plans are expressly incorporated in the approval by condition 1.1. Reference to the planning scheme is also permissible given: (1) the planning scheme is expressly referred to by version number in the NDN; and (2) the nature of the use approved, including any definitional limitations applying to that use, are intelligible only by reference to the planning scheme definition of ‘Rooming accommodation’. The charges resolution is, however, in a different category. It is not expressly referred to in the NDN. Nor does it form part of the use definition in the planning scheme. It is an extrinsic document pressed by the appellant as relevant to the construction of the approval. It is said to be relevant because the words ‘suite’ or ‘suites’, as they appear on the approved plans, are only intelligible by reference to the charges resolution.
- [26]‘Suite’ is defined in the charges resolution as follows:
“Means a number of connected rooms one of which is a bedroom in which an individual or a group of two or more related or unrelated people reside with the common intention to live together on a long term basis and who make common provision for food or other essentials for living. A suite would typically contain up to 3 bedrooms in a hotel context.”
- [27]At the threshold, I have difficulty accepting the appellant’s submissions with respect to the application of Shroff to this case and the necessity to read the NDN by reference to the definition of ‘Suite’ in the charges resolution.
- [28]Shroff, particularly that part emphasised in paragraph [24], is about the necessity to construe an approval by reference to a formally adopted planning control. The charges resolution is of a different character to an adopted planning control. It is a resolution of Council with a limited life (much shorter than the life of a planning scheme) and for a specific purpose; its purpose is to state an adopted infrastructure charge. The purpose of the document does not extend to informing the development assessment process, let alone regulate land use. These circumstances, taken in combination, suggest a clear case of ambiguity would be required in the development approval before turning to construe it by reference to the charges resolution. I have serious misgivings as to whether ambiguity of this kind is present in the NDN for two reasons.
- [29]First, the word ‘suite/s’ as it appears on the approved plans is readily understood as a means of identifying different parts of the development. It is used to identify individual compartments within two separate buildings. It is also used to inform the numbering of the units (intended for long term accommodation) within each of those compartments (Exhibit 3, p. 7, e.g. S 2.5, S 2.6. S 2.7). The need to provide a system of identification for the different compartments in this way is understandable from a practical perspective, given: (1) the buildings are not separately identified (such as building 1 and 2); (2) the suites are spread across two buildings; and (3) the compartments within each building are separated from each other by stairwells.
- [30]Second, it was not suggested the identification of ‘suites’ has a role to play in satisfying the definition of ‘Rooming accommodation’ in the planning scheme.
- [31]The combination of paragraphs [14] to [21] and [27] to [30] have led me to conclude that the NDN can stand on its own feet without the need to refer to the charges resolution; the approval is intelligible without referring to the charges resolution. If I am wrong about this, the definition of suite in the charges resolution does not assist the appellant in any event. The suites identified on the approved plans do not satisfy the definition.
- [32]The definition is set out above. It requires, as a starting point, the identification of ‘a number of connected rooms one of which is a bedroom’. I am not satisfied the suites identified on the approved plans are fairly characterised as a number of connected rooms. Physical disconnection is evident in each suite having regard to the approved built form. In simple terms, the individual units in each suite are spread across three floors and disconnected. The extent to which disconnection is evident can be demonstrated by reference to Suite 2, unit S 2.1 (Ground floor) and unit S 2.10 (Level 2). The approved plans show that these units are both included in suite 2, but are physically disconnected, separated by an intermediate floor level (Level 1). They are not connected by the intervening floor or the common stairwell.
- [33]‘Connection’ for the purposes of the definition of suite can also be examined in terms of functional connection. A functional connection is required by the definition for the connected rooms. This is the by-product of requiring, as the definition does, occupants to: (1) have an intention to live together on a long term basis; and (2) make common provision for food or other essentials for living. Here, the approved built form does not provide the functional connection necessary to achieve what is required in terms of a common intention or purpose. The form is such that each unit (bedroom and associated ensuite) in a suite can be occupied exclusively, and without reference to the intention of any other occupant of a unit in any location of the same suite or other suite. This is functional disconnection. That the units are disconnected in this way is reinforced by the conditions of approval. A review of the conditions reveals there is no requirement (silence) for an occupant of a unit within any suite to have an intention to live together, on a long term basis and to make common provision for food or other essentials for living, with other unit occupiers in the same suite. This silence is not cured by the definition of Rooming accommodation in the planning scheme. The definition includes no such requirement.
- [34]When examining the approved development against the definition of suite in the charges resolution, I have been cognisant that the occupants of each unit will have access to shared facilities, such as the common living/kitchen area, BBQ area and clothes drying areas. These facilities are required by subparagraph (a)(iv) of the definition of ‘Rooming accommodation’ in the planning scheme. Their presence in the development does not lead me to form a different view to that expressed in paragraphs [31] to [33]. This is because there is nothing about the built form of the common facilities, or development conditions going to their use, to support a conclusion that the group of occupants in a given suite do so on the footing required by the definition, that is, by holding a common purpose to live together and an intention to make common provision for food and essentials of life.
- [35]As I have already said, a review of the approved plans reveals the built form is intended to create exclusive unit areas for occupants; those areas are fully enclosed and accessed via an entry door from a shared corridor. That the entry door would be locked to create an exclusive use area is unsurprising given subparagraphs (a)(i) and (ii) of the definition of Rooming accommodation in the planning scheme. As a matter of common sense, an exclusive unit area would permit an occupier to exclude others, including occupiers of adjoining units and units in the same suite. The ability to exclude others will mean two adjoining units, or units in the same suite, can be occupied by two different people, who do not share a common intention to live together. That these occupants do not share an intention to live together is not altered by the provision of shared facilities. The living/dining area can serve as a shared facility, but neither the form nor function of that space dictates its use requires a common intention for any one, or a combination of, unit occupiers, to live together on a long term basis. The form and nature of the use will permit occupiers to utilise the shared facilities without any reference to another occupier and without the necessary intention and common purpose required by the definition of suite.
- [36]Before turning to the levied charge, it can be observed that the appellant’s case included a contention that, to the extent the proposed development was capable of satisfying more than one categorisation, that is it could be either 6 or 72 suites, the former should be preferred. This was said to be supported by the reasoning in AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, [48] to [49]. It is unnecessary to deal with this submission. I am satisfied the proposed development comprises 72 suites, not 6.
- [37]The ICN includes a calculation of the levied charge. The calculation was carried out by reference to the charges resolution, which took effect on 15 February 2022: Exhibit 4, p. 84, para 1.2. Section 1.5 of the charges resolution states the document is to be read in conjunction with the Planning Act, Planning Regulation and the Planning Scheme. The term ‘Planning Scheme’ is defined in Schedule 1 of the charges resolution to mean ‘Logan Planning Scheme 2015’. The appeal was argued on the footing that the planning scheme, extracts of which were marked exhibit 7, satisfies the definition of Planning Scheme in the charges resolution.
- [38]Section 3.2 of the charges resolution provides that a charge may be levied when a development approval, such as the NDN, is given for a material change of use. The ‘steps’ for calculating the charge are set out in section 3.3. Step 1 is of particular relevance to this appeal and states ‘Determine the adopted charge pursuant to sections 4 and 5 of this resolution’. Section 4 has no part to play in this appeal.
- [39]Section 5 of the charges resolution adopts charges for providing trunk infrastructure for development. The relevant trunk infrastructure networks are water supply, sewage, stormwater quantity, movement and parks and land for community facilities: s 5.2, Exhibit 4, p. 86.
- [40]Section 5.3 of the charges resolution states, in part:
“The adopted charge is the lesser of the following or the maximum adopted charge:
- for material change of use–the adopted charge amount in Schedule 3, Table 2, Column 2 of this resolution for the use referred to in Schedule 3, Table 2, Column 1 of this resolution;…”
- [41]The relevant part of Schedule 3 for this appeal is as follows (Exhibit 4, p. 113):
Accommodation (long-term) | |
Column 1 – Use | Column 2 – Adopted charge |
2 Community residence 3 Retirement facility 4 Rooming accommodation | 1 $21,912.00 for each suite with 2 or less bedrooms 2 $30,677.00 for each suite with 3 or more bedrooms 3 $21,912.00 for each bedroom that is not part of a suite |
- [42]The reference in Column 1 above is a reference to the material change of use approved. Here, that is defined in the planning scheme as Rooming accommodation. There was no dispute that item 4 in Column 1 above applied to the NDN.
- [43]The dispute between the parties focuses on Column 2 above. The adopted charge is stated in Column 2. It prescribes three options. The options include two defined terms, namely ‘bedroom’ and ‘suite’. The definition for suite is set out in paragraph [26]. ‘Bedroom’ is defined for the charges resolution as follows:
“Means a habitable room that:
- Is of sufficient floor area to accommodate the placement and use of a standard single bed and contains the level of privacy normally associated with private sleeping, or can be modified with minimal effort to incorporate such privacy measures. Excludes kitchen, water closet, bathroom, laundry, garage or plant room; or
- Can be used for sleeping such as a den, study, loft, media or home entertainment room, library, family or rumpus room or other similar space.”
- [44]The calculation set out in the ICN multiplies item 1 in Column 2 above by 72 suites. The appellant contends the approved development comprises only 6 suites.
The first error: the approved development comprises 6 rather than 72 suites
- [45]This issue is resolved by reference to the approved plans and charges resolution, in particular, the definition of suite. Having regard to these documents, I am satisfied each of the bedrooms, taken in combination with the connecting ensuite, is a suite as defined. This follows, in my view, not only by reason of the size of the rooms (depicted with dimensions in Mr Irvin’s supplementary statement, p. 3) and the nature of the approved use, but also by reason of the following matters taken in combination:
- the two rooms, in combination, are a ‘number’ of rooms; and
- the two rooms are connected, both physically and functionally, as is clear from their juxtaposition and the provision of a connecting doorway; and
- one of the two rooms is a bedroom in which an individual can reside on a long term basis.
- [46]The features discussed above assume the bedroom and associated ensuite are occupied by an individual. This is sufficient to satisfy the definition of suite because it has in mind that it is met irrespective of whether the bedroom is a space in which an ‘individual’ or ‘a group of two or more related or unrelated people’ reside. In this regard, it can be observed that no party contended the word ‘or’ in the definition should be read as ‘and’. For completeness I would observe that the adoption of a common sense and practical approach to the case of an individual also leads to the inevitable conclusion that the ‘common intention’ and ‘common provision’ of which the definition speaks does not have application.
- [47]If it is assumed, contrary to the above, that ‘or’ is to be read as ‘and’, I am satisfied the bedrooms and connecting ensuite meet the definition for a group of two more people in any event. The starting point in this regard is the size of each bedroom and the associated ensuite. They are modest. The bedroom is 5.01 x 3.22 metres (approximately and excluding a hallway that is 2.5 x 1.0 metres), depicted in the approved plans with a single bed. The ensuite is 2.5 x 2.2 metres, with a single toilet and shower. It is, as a matter of ordinary experience, unlikely that two or more people could reside within a space of this size, on a long term basis, absent:
- a common intention to live together; and
- through common provision of essentials of living.
- [48]The appellant contended that the bedrooms and associated ensuites do not meet the definition of suite because neither an individual, nor group, can ‘reside’ in that space. This submission assumes an individual, or group, cannot reside in one of these spaces because it does not contain kitchen/living facilities. I do not accept the word ‘reside’, in this context, should be given such a narrow application. The word, in context, calls for the identification of a space that is capable of facilitating long term accommodation. The bedrooms and associated ensuites meet this description. This is not altered, in my view, because, in addition to these spaces, there are areas available for common use as is required by the definition of Rooming accommodation in the planning scheme.
- [49]In the circumstances, I am satisfied it was open to conclude that the development comprises 72 suites, with 2 or less bedrooms (Column 2, item 1). This is the calculation contained in the ICN. It is not infected by error.
- [50]For completeness, it can be observed the appellant’s case was advanced on the footing there are a number of indicators that establish the development comprises six suites. The indicators emphasised by Mr Hughes KC and Mr Walker were as follows, namely that:
- the NDN, and attached conditions, describe the approved development as ‘Material Change of Use – Rooming Accommodation (6 x 12 Units (72 Bedrooms))’;
- the approved plans describe the development as incorporating 6 suites, and identify their location by reference to the built form;
- Council, as assessment manager, could have, but did not, amend the approved plans (in red) to remove the identification of suites; and
- the approved plans demonstrate that each building is intended to operate as a separate suite.
- [51]The matters identified in (a) to (c) above can be accepted as correct in so far as they are statements of fact. They do not, however, take the matter far, if at all, once the matters set out at paragraphs [27] to [35] are taken into account. Those matters do not establish the development comprises 6 suites as defined in the charges resolution. To proceed otherwise would mean that the self-determined labels applied to a set of approved plans would wrongly lead a decision maker for an ICN to treat ‘apples as oranges’. This very point was identified in Walter Elliott (Supra) as one leading to error. At paragraph [47], McMurdo P said:
“…To find otherwise would mean a developer, by referring to apples as oranges [that is suites that are not suites as defined in the charges resolution]…could force a local authority to treat apples as oranges in subsequently determining infrastructure charges…”
- [52]With respect to subparagraph (d), it was submitted that the approved plans demonstrate how each identified suite is intended to operate consistently with the definition in the charges resolution. The following particular features were emphasised in this regard:
- each building contains 13 rooms, 12 of which are bedrooms with ensuites;
- each room is physically connected, in the sense they are joined together via stairs, corridors and lobbies;
- each building is designed to service a group of two or more related, or unrelated people;
- the use is, by definition, Rooming accommodation, approved to provide long term accommodation; and
- the occupants of each suite make common provision for food, by way of the shared kitchen and other essentials for living (through shared common areas in each suite and the proposed development more broadly).
- [53]I accept (a), (c) and (d) are indicators as submitted.
- [54]For reasons given above, I do not accept (b). The areas identified as suites on the approved plans do not comprise connected rooms.
- [55]For reasons given above I do not accept (e). The built form, read with conditions of the approval, do not require the occupants of any unit to make common provision for food or other essentials for living with other unit occupiers.
- [56]As a consequence, I do not accept the appellant has established the first alleged error. The first alleged error fails.
The second error: Council erred in not applying the adopted charge in Column 2, item 2 to 6 suites
- [57]The second error assumes the appellant’s case in relation to the number of suites is accepted. That is, it is contended the levied charge should have been calculated on the basis of 6 suites at the adopted charge in Column 2, item 2 above.
- [58]For reasons given above, I do not accept the second error has been established. The second error fails.
The alternative case: is the amount of the adopted charge so unreasonable no reasonable local government would have imposed it?
- [59]An appeal may be made against an infrastructure charges notice on the ground that the amount of the charge is so unreasonable that no reasonable relevant local government could have imposed the amount: Schedule 1, Table 1, item 4(d) of the Act. The appellant contends this ground is made out in relation to the levied charge.
- [60]Central to this ground of appeal is a requirement for an appellant to demonstrate the charge amount is unreasonable to the point that no other decision maker would have imposed it. Both parties submit this ground of appeal, as stated in Schedule 1 to the Act, reflects the Wednesbury test for unreasonableness: Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation 1948 1 KB 223 at 230. While this has superficial attraction, the focus must be the words of the statute (Schedule 1 to the Act, Table 1, item 4), read in context. The context comprises three parts.
- [61]First, the Act does not define the term ‘unreasonable’. It therefore takes on its ordinary meaning, informed by the words that follow it, namely ‘that no reasonable local government could have imposed the amount’.
- [62]Second, the power for local governments to levy and recover an adopted charge for trunk infrastructure is found in Chapter 4, Part 2, Division 2 of the Act, which includes ss 113, 114, 119 and 120. Section 113 envisages that local governments may resolve to adopt charges ‘for providing trunk infrastructure for development’. The charges are contained in a ‘charges resolution’, which does not of itself levy an adopted charge: s 113(2) of the Act. The contents of a charges resolution are constrained by, among other things, s 114. This provision envisages that an adopted charge will be prescribed by Regulation and not exceed the maximum adopted charge for ‘providing trunk infrastructure for development’: s 114(1). The adopted charges in the charges resolution reflect s 52 and Schedule 16 of the Planning Regulation 2017 (the Regulation) in force at the time of Council’s resolution. Section 119 of the Act provides when a charge may be levied and recovered. As I have already observed, the power to levy a charge arises when s 119(1) is satisfied. When satisfied, s 119(2) provides that a ‘local government must give a notice’, defined as an infrastructure charges notice, to the applicant for development approval. Section 120 identifies express limitations on a levied charge. Sections 120(1) and (2) are in the following terms:
“120 Limitation of levied charge
- A levied charge may be only for extra demand placed on trunk infrastructure that the development will generate.
- When working out extra demand, the demand on trunk infrastructure generated by the following must not be included –
- an existing use on the premises if the use is lawful and already taking place on the premises;
- a previous use that is no longer taking place on the premises if the use was lawful at the time the use was carried out;
- other development on the premises if the development may be lawfully carried out without the need for a further development permit.”
- [63]Section 120(1) speaks of ‘extra demand’. The appellant implicitly accepts that the proposed development generates extra demand on trunk infrastructure for the purpose of s 120(1). The implication is drawn from the appellant’s final relief which assumes the levied charge is reduced rather than there be no charge at all. Further, the appellant does not challenge that part of the ICN providing for a discount of the kind required by s 120(2)(a). The calculation for the levied charge includes a reduction to reflect an existing lawful use of the land.
- [64]Against this background, it is my view that an appropriate starting point for the issue under consideration is this question: could a relevant local government have levied the amount in the ICN?
- [65]This question is answered in the affirmative because:
- Council has adopted, by resolution, charges for providing trunk infrastructure for development (s 113(1)) – this is the charges resolution;
- the adopted charge set out in the charges resolution for development, namely making a material change of use of land for Rooming accommodation, was prescribed by Regulation and did not exceed the maximum stated in Schedule 16 of the Regulation (s 114(1));
- a development approval had been given for a material change of use of land for Rooming accommodation, and communicated by way of the NDN (s 119(1));
- the approved development places extra demand on the trunk infrastructure identified in s 1.6(a) of the charges resolution (as is implicitly accepted by the final relief sought by the appellant);
- as conceded by the appellant, an adopted charge applies to providing trunk infrastructure for the approved material change of use for Rooming accommodation;
- the decision maker correctly determined that the development comprised 72 suites as defined; and
- the decision maker correctly applied 72 suites to the only adopted charge that applied in Schedule 3, Column 2, item 1 of the charges resolution.
- [66]I am satisfied sub-paragraph (f) is established for the reasons set out in paragraphs [26] to [35] and [45] to [55].
- [67]In circumstances where the levied charge represents the correct application of the charges resolution to the approved development, I do not accept the amount charged is unreasonable, let alone so unreasonable that no local government could have imposed it. It was, in my view, open to the decision maker to levy the charged amount. The decision to do so was justifiable by reference to the charges resolution.
- [68]The appellant contends the amount levied is unreasonable having regard to two comparative exercises. First, it invites the Court to compare the adopted charge amount ($1,577,664) to one calculated on the basis of 6 suites at rate of $30,677 per suite ($184,062). Second, the appellant invites the Court to compare the adopted charge with similar charges for dwelling houses, a multiple dwelling, and dual occupancies. The comparison is said to yield a result that demonstrates the adopted charge is equivalent to 72 dwelling houses, or 72 multiple dwellings or 72 dual occupancies. This is relied upon to support the following submission: ‘there is no rational basis for the Council to have imposed the Purported Charge, having regard to the extra demand that the proposed development will generate on trunk infrastructure’: Exhibit 6, para 50.
- [69]I am satisfied the two points of comparison advanced by the appellant do not establish the adopted charge is ‘so unreasonable’ that no local government would have imposed it.
- [70]The first point of comparison is of no assistance. It wrongly assumes the development comprises 6 rather than 72 suites. By assuming 6 suites rather than 72, the appellant’s case presses for an adopted charge that could not, in fact, be imposed by the decision maker at first instance. In the words of the grant of appeal, the charge for which the appellant contends does not represent an amount that a ‘reasonable relevant local government could have imposed’ in the circumstances.
- [71]The second point of comparison is also of no assistance. The comparative exercise assumes the amount of the adopted charge per suite/dwelling house/multiple dwelling etc is a measure or reflection of assumed ‘extra demand’ and can be compared with the ‘extra demand’ assumed for different adopted charges applying to different material changes of use. This assumption cannot be accepted for a range of reasons.
- [72]In the first instance, the legislative scheme for infrastructure charging under the Act is based on a capped charges regime. Central to that regime is the absence of a nexus between actual extra demand and a levied charge. This nexus has been severed for policy reasons: cf Toowoomba Regional Council v Wagner Investments Pty Ltd (2020) 5 QR 477, [79]. This was not confronted by the appellant.
- [73]An important part of the charging regime under the Act is the prescription of a maximum adopted charge. Here, the charges resolution includes the maximum adopted charge prescribed in Schedule 16 of the Regulation. It is a broad brush figure that, at the relevant time: (1) could be adopted throughout Queensland, irrespective of an infrastructure provider’s plans for existing and future trunk networks; and (2) applied to different types of material changes of use, such as the start of a new use of land or the material increase in scale and intensity of an existing use.
- [74]Importantly, and in the context of the appellant’s invitation to engage in a comparative examination, it is not possible to ascertain, in an empirical sense, the ‘extra demand’ assumed for each adopted charge in the Regulation. The Act and Regulation do not provide a basis for doing so. Nor is it possible to ascertain from the charges resolution what, if anything, Council assumed about extra demand when adopting the broad brush figures. To conclude otherwise requires many assumptions to be made. The danger in doing so is that it may lead to a comparison of adopted charges that are not ‘like-with-like’. The extent to which the adopted charges reflect different assumptions is unknown.
- [75]If a contrary view was taken to paragraphs [72] to [74], I was not satisfied the amount of the levied charge is ‘unreasonable’ in any event by reference to the appellant’s relativity analysis. This is for three reasons taken in combination. First, the amount of the charge is calculated in accordance with the charges resolution, which is based on the maximum charge contained in Schedule 16 of the Regulation for the material change of use approved by Council. Second, s 120(1) of the Act, which is in similar terms to s 636(1) of the Sustainable Planning Act 2009, did not require the decision maker to assess actual extra demand for the approved material change of use, let alone a hypothetical comparative: Wagner Investments (Supra), [79]. Third, the charges resolution does not include a discretion, or mechanism, by which the decision maker: (1) can calculate actual extra demand for the purposes of the charges resolution; or (2) can reduce the amount of an adopted charge or apply a different adopted charge to that otherwise applicable to approved development for the purposes of reflecting (1) or a general comparative exercise as advanced by the appellant.
- [76]The decision maker here was confronted with two choices under the charges resolution: (1) give the ICN as promulgated; or (2) elect to not give an ICN. The decision to proceed in accordance with (1) was open and justifiable. It cannot fairly be characterised as being so unreasonable that no reasonable local government could have made it.
- [77]The ground of challenge based on ‘unreasonableness’ fails.
Disposition of the appeal
- [78]The appellant has not discharged the onus.
- [79]It is ordered as follows:
- The appeal is dismissed.
- The decision to give Infrastructure charges notice number LCC/067/2023 is confirmed.