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Jeteld Pty Ltd v Toowoomba Regional Council[2024] QPEC 36

Jeteld Pty Ltd v Toowoomba Regional Council[2024] QPEC 36

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Jeteld Pty Ltd v Toowoomba Regional Council [2024] QPEC 36

PARTIES:

JETELD PTY LTD ACN 009 904 456

(Appellant)

v

TOOWOOMBA REGIONAL COUNCIL

(Respondent)

FILE NO/S:

1675/24

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending Proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

19 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2024

JUDGE:

Kefford DCJ

ORDER:

The time for starting this Appeal No. 1675 of 2024 be extended to 18 June 2024.

The matter be listed for mention on Tuesday 20 August 2024.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – APPLICATION IN PENDING PROCEEDING – where the applicant did not file its notice of appeal within time – where the applicant sought an order extending the time for starting an appeal against the infrastructure charges notice under s 32 of the Planning and Environment Court Act 2016

LEGISLATION:

Planning Act 2016 (Qld) ss 49, 60, 63, 65, 122, 128, 145, 229, sch 1

Planning and Environment Court Act 2016 (Qld) ss 11, 32, 47

CASES:

Bayview Gardens Pty Ltd v Shire of Mulgrave [1989] 1 Qd R 1, cited

Hollis v Atherton Shire Council [2003] QSC 147; (2003) 128 LGERA 348; [2003] QPELR 482, cited

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, cited

Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, approved

COUNSEL:

A Skoien for the Appellant

M Rodgers for the Respondent

SOLICITORS:

Wonderley & Hall Solicitors Toowoomba for the Appellant

Corrs Chambers Westgarth for the Respondent

TABLE OF CONTENTS

Introduction2

What is the Court’s power to extend the appeal period?3

What is the relevant context in which the appeal was filed?3

Is the subject appeal fundamentally flawed?5

What are the grounds advanced by Jeteld Pty Ltd?8

Is there an adequate explanation for the delay?8

Is there any prejudice to the Council because of the delay?9

Is there a public interest consideration that favours the extension?9

Does the appeal have merit?9

Do considerations of fairness support the grant of the extension?10

Conclusion10

Introduction

  1. [1]
    On 18 June 2024, Jeteld Pty Ltd filed the Notice of Appeal that commenced this proceeding.  The Notice of Appeal identifies the relevant right of appeal as that which arises under “sections 229 and 230 and Item 4 of Table 1 of Schedule 1 of the Planning Act 2016”, being a right of appeal against an infrastructure charges notice given by Toowoomba Regional Council (“the Council”). 
  2. [2]
    The issues at the crux of Jeteld Pty Ltd’s appeal are the proper characterisation of infrastructure works and the entitlement to a credit or offset in relation to such works in the calculation of the infrastructure charge.
  1. [3]
    Jeteld Pty Ltd accepts that its Notice of Appeal was filed about four and a half months after the expiry of the relevant appeal period.  The issue presently before the Court is whether Jeteld Pty Ltd should succeed on its application for an extension of time under s 32(2) of the Planning and Environment Court Act 2016 (Qld).  Jeteld Pty Ltd contends that there are sufficient grounds to warrant an extension.
  2. [4]
    The extension is opposed by the Council.  Its primary contention is that the subject appeal is outside the Court’s jurisdiction or is otherwise fundamentally flawed.  The Council also contends that the evidence does not support the grounds for extension advanced by Jeteld Pty Ltd.
  3. [5]
    If Jeteld Pty Ltd is unsuccessful, the Council seeks its costs of and incidental to the application for the extension.

What is the Court’s power to extend the appeal period?

  1. [6]
    It is uncontroversial that the Court has power to extend an appeal period under s 32 of the Planning and Environment Court Act 2016 if the Court is satisfied there are sufficient grounds for the extension.
  1. [7]
    The term “sufficient grounds” is not defined. 
  2. [8]
    The Court has a broad discretion in deciding whether to extend time.  That said, as was explained by His Honour Judge Williamson QC in Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805 at 810 [41], the prescription of appeal periods in the Planning Act 2016 (Qld) provides certainty for applicants, local governments, submitters and State government departments that are potential parties to proceedings in this Court.  They are not to be treated as guidelines or as aspirational.  Equally, it should not be assumed that an extension of time will necessarily be granted where a respondent to such a request would suffer no prejudice.
  3. [9]
    Jeteld Pty Ltd bears the onus of establishing that the relief it seeks should be granted.

What is the relevant context in which the appeal was filed?

  1. [10]
    In recent times, Jeteld Pty Ltd has been developing land at Kearneys Spring for residential allotments as part of a master planned community.  As part of that overall undertaking, in September 2023, Jeteld Pty Ltd made a development application under the Planning Act 2016 seeking a development permit authorising the reconfiguration of six lots into 35 lots with respect to land at 552-560 West Street and 111-131 and 37-147 Kearney Street, Kearneys Spring.  The development application was made to the Council as the assessment manager.  
  2. [11]
    On 14 December 2023, the Council resolved to approve Jeteld Pty Ltd’s development application.  The decision was communicated by way of a decision notice dated 15 December 2023 (“the decision notice”), which was received by Jeteld Pty Ltd by email on 19 December 2023.  Part of the decision notice comprises a development permit (“the development permit”): s 49 of the Planning Act 2016. 
  3. [12]
    A copy of the decision notice was exhibited to the affidavit of Lynne Maree Lamb.  The Council did not contest Ms Lamb’s evidence that Exhibit LML-07 to her affidavit was a true and correct copy of the decision notice received from the Council by email.
  4. [13]
    Under a heading “Rights of Appeal”, the decision notice states that it attaches an extract from the Planning Act 2016 that details Jeteld Pty Ltd’s appeal rights regarding the decision.  The relevant attachment is a single page that contains ss 229 to 232 of the Planning Act 2016.  The extract does not include sch 1, table 1, item 1, which contains the pertinent information identifying the relevant right of appeal about the decision notice. 
  5. [14]
    The relevant appeal period for an appeal about the decision notice has expired. 
  6. [15]
    To the extent that the decision notice authorises the reconfiguration of six lots into 35 lots, it does so subject to 97 conditions.  Several of the conditions relate to the dedication of land and the carrying out of works for infrastructure.  Under each such condition, the decision notice identifies the provision of the Planning Act 2016 pursuant to which the Council purported to impose the condition.
  7. [16]
    Jeteld Pty Ltd contends that the Council has identified the incorrect source of power for conditions 69 and 79.  The decision notice records that the Council purports to impose those conditions under s 145 of the Planning Act 2016.  That section permits a local government to impose development conditions about non-trunk infrastructure. 
  8. [17]
    According to Jeteld Pty Ltd, conditions 69 and 79 relate to trunk infrastructure (not non-trunk infrastructure).  As such, Jeteld Pty Ltd says that the Council cannot lawfully impose the conditions pursuant to s 145 of the Planning Act 2016. 
  9. [18]
    That said, it is Jeteld Pty Ltd’s position that the conditions can be lawfully imposed under s 128(1) of the Planning Act 2016.  That section permits a local government to impose development conditions about trunk infrastructure. 
  10. [19]
    On or about 11 January 2024, Jeteld Pty Ltd received an infrastructure charges notice of that date from the Council (“the infrastructure charges notice”).  The infrastructure charges notice relates to the development authorised by the development permit.
  11. [20]
    The infrastructure charges notice was accompanied by an attachment that details the appeal rights regarding the infrastructure charges notice.  The relevant attachment contains ss 229 to 232 and sch 1, table 1, item 4 of the Planning Act 2016.  The attachment provided the pertinent information identifying the relevant right of appeal. 
  12. [21]
    Section 229(3) of the Planning Act 2016 prescribes an appeal period of 20 business days after the infrastructure charges notice is given to the applicant.  It is common ground that the appeal period expired on 7 February 2024.  Jeteld Pty Ltd did not commence an appeal prior to the expiry of the appeal period. 
  13. [22]
    As I have already mentioned, on 18 June 2024, Jeteld Pty Ltd filed the Notice of Appeal in this proceeding.  This was approximately four and half months after the expiry of the appeal period.
  14. [23]
    The Notice of Appeal identifies the right of appeal sought to be exercised as that which arises under s 229 and sch 1, table 1, item 4 of the Planning Act 2016.
  15. [24]
    The crux of the issues sought to be agitated by Jeteld Pty Ltd are set out in paragraphs 17 to 20 of the grounds of appeal in the Notice of Appeal, which state:

“17. The Respondent, in granting the Development Approval and the ICN, has maintained that the Road Upgrade, the Services Relocation and the Path Construction, required by Conditions 69, 70 and 79 of the Development Approval, were not, and are not, trunk infrastructure under the PA (the “Respondent’s Contention”)

  1. As a result of the Respondent’s Contention, the ICN only applies offsets and refunds for trunk infrastructure in respect of some of the Development Infrastructure, namely:
  1. the Land Dedication required by Condition 12; and
  1. the Stormwater Infrastructure required by Condition 26.
  1. As a result of the Respondent’s Contention, the ICN failed to apply offsets and refunds for trunk infrastructure in respect of some of the Development Infrastructure, namely:
  1. the Road Upgrade required by Condition 69;
  1. the Services Relocation required by Condition 70; and
  1. the Path Construction required by Condition 79.
  1. In the circumstances set out in paragraphs 18 and 19:
  1. the ICN involved an error relating to an offset or refund; and/or
  1. in issuing the ICN, there was no decision about an offset or refund for the Road Upgrade, the Services Relocation and the Path Construction.”

Is the subject appeal fundamentally flawed?

  1. [25]
    Before turning to consider the grounds advanced by Jeteld Pty Ltd in support of its application, it is convenient to first deal with the Council’s contention that the subject appeal is outside the Court’s jurisdiction or is otherwise fundamentally flawed.  In this respect, the Council alleges that:
    1. the Notice of Appeal, as framed, does not trigger an appeal right under s 229 and sch 1, table 1, item 4 of the Planning Act 2016; or alternatively,
    2. the subject appeal lacks merit because it challenges findings of the Council that are reflected in the notes to conditions 69 and 79 of the development permit that have not been appealed under s 229 and sch 1, table 1, item 1 of the Planning Act 2016.
  2. [26]
    As I have already mentioned, Jeteld Pty Ltd seeks to exercise its right of appeal under s 229 and sch 1, table 1, item 4 of the Planning Act 2016, which states:

“4. Infrastructure charges notices

An appeal may be made against an infrastructure charges notice on 1 or more of the following grounds—

  1. the notice involved an error relating to —

…

  1. an offset or refund; or
  1. there was no decision about an offset or refund; or …”
  1. [27]
    On their face, the allegations in paragraphs 17 to 20 of the grounds of appeal in the Notice of Appeal (set out in paragraph [24] above) fall squarely within the ambit of the right of appeal conferred by s 229 and sch 1, table 1, item 4 of the Planning Act 2016.
  2. [28]
    Despite this, the Council contends that the error alleged in the Notice of Appeal is in respect of the underlying development permit and not the infrastructure charges notice.  According to the Council, the relevant provision through which an error might arise is s 129 of the Planning Act 2016.  That section requires an offset or refund to be provided where trunk infrastructure is required to be provided under a condition imposed on the development.
  3. [29]
    The Council submits that the infrastructure charges notice includes an offset for each condition that requires the provision of trunk infrastructure.  It says those are the conditions that it identifies in the decision notice to be conditions imposed pursuant to s 128 of the Planning Act 2016.  As such, the Council argues that the infrastructure charges notice gives effect to s 129(1) of the Planning Act 2016. 
  4. [30]
    The Council’s argument assumes that it has correctly identified the proper basis for the imposition of each condition.  The alleged error that Jeteld Pty Ltd seeks to agitate is with respect to the Council’s incorrect identification of conditions 69 and 79 as conditions imposed under s 145 of the Planning Act 2016 and its failure to correctly identify conditions 69, 70 and 79 as conditions imposed under s 128 of the Planning Act 2016.  This alleged error informs whether s 129 of the Planning Act 2016 applies.
  5. [31]
    The Council also argues that Jeteld Pty Ltd cannot overcome the undisturbed development permit through this appeal.  It says that the dispute sought to be agitated is whether the conditions in the development permit were correctly imposed under s 145 of the Planning Act 2016.  The Council says that, as the appeal is confined to an error relating to an offset or refund under the Planning Act 2016, that issue is not capable of remedy through an appeal commenced under s 229 and sch 1, table 1, item 4 of the Planning Act 2016.  The Council submits that the appeal is the wrong vessel by which to resolve the dispute raised in the Notice of Appeal.
  6. [32]
    The Council did not direct my attention to any legislative provision or other authority that supports its propositions.
  7. [33]
    It is unnecessary to ultimately decide the matters raised by the Council as part of this interlocutory application.  It is sufficient to observe that Jeteld Pty Ltd has an arguable case that its appeal is within the jurisdiction of the Court under s 229 and sch 1, table 1, item 4 of the Planning Act 2016. 
  8. [34]
    What then of the Council’s alternative argument that the appeal is devoid of merit absent a challenge to the development conditions in the development permit?
  9. [35]
    The Council’s argument in that regard appears to be founded on two assumptions.  First, the appropriate vehicle to challenge the Council’s finding about the characterisation of the infrastructure as non-trunk infrastructure is by way of appeal against the decision notice pursuant to s 229 and sch 1, table 1, item 1 of the Planning Act 2016.  Second, absent a challenge to the note in the decision notice about the provision under which conditions 69 and 79 are imposed, the note must be treated as correct and is incapable of later correction.
  10. [36]
    Jeteld Pty Ltd has an arguable case that the first assumption is flawed.  It says that such an appeal has no utility as Jeteld Pty Ltd accepts that the conditions are lawful and appropriate having regard to ss 60, 65 and 128 of the Planning Act 2016.
  11. [37]
    This is not the only potential difficulty with the Council’s first assumption.  
  12. [38]
    The right of appeal in s 229 and sch 1, table 1, item 1 of the Planning Act 2016 relevantly states:

“1. Development applications

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

…

  1. a provision of the development approval; or …”
  1. [39]
    The extent of that right of appeal is to be understood in its broader legislative context.  The context includes the definitions of “development approval” and “provision” in sch 2 of the Planning Act 2016 and ss 49 and 63(2)(e)(i) and (iv) of the Planning Act 2016.
  2. [40]
    When the right of appeal is construed in its broader legislative context, it is arguable that the disputed notes in the decision notice do not form part of the development approval because they do not authorise the carrying out of the assessable development for the purpose of s 49(3) of the Planning Act 2016.  If this is correct, it arguably follows that the note is not a “provision” for the purpose of the right of appeal under s 229 and sch 1, table 1, item 1 of the Planning Act 2016.  Rather, it is part of the decision notice that informs the recipient about the assessment manager’s belief about the basis for lawful imposition of the condition. 
  3. [41]
    There are also arguable difficulties with the second assumption when one considers:
    1. the breadth of the Court’s powers under s 47 of the Planning and Environment Court Act 2016, and particularly the power to include other orders, declarations or directions that the Court considers appropriate;
    2. the breadth of the Court’s declaratory jurisdiction under s 11 of the Planning and Environment Court Act 2016; and
    3. decisions such as Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, particularly at 152; Bayview Gardens Pty Ltd v Shire of Mulgrave [1989] 1 Qd R 1; and Hollis v Atherton Shire Council [2003] QSC 147; (2003) 128 LGERA 348; [2003] QPELR 482. 
  1. [42]
    It is unnecessary to determine, at this interlocutory stage, the merits of the Council’s assumptions or the countervailing arguments.  It is sufficient to observe that neither assumption is so patently correct as to allow me to conclude that the subject appeal is without merit.
  1. [43]
    The Council’s primary contentions in opposition to Jeteld Pty Ltd’s application are arguable.  To that extent, they tell against an exercise of my discretion.  However, given there are also available arguments to the contrary, I am not prepared to attribute determinative weight to the Council’s contentions.

What are the grounds advanced by Jeteld Pty Ltd?

  1. [44]
    Jeteld Pty Ltd submits that sufficient grounds to warrant an extension have been established and that the discretion should be exercised in its favour.  It relies on five matters in that regard, namely:
    1. there is an adequate explanation for the delay;
    2. there is no suggestion of any prejudice to the Council because of the delay;
    3. there is a public interest consideration that favours the grant of the extension;
    4. the appeal is meritorious; and
    5. considerations of fairness support the grant of the extension.
  2. [45]
    I now turn to consider each of those matters.

Is there an adequate explanation for the delay?

  1. [46]
    As I have already mentioned, the delay equates to about four and a half months.
  2. [47]
    Jeteld Pty Ltd’s evidence is silent on matters such as when Jeteld Pty Ltd became aware of the appeal period and its expiry and details, including timing, of steps taken once it became known that the appeal period had expired.  The Council criticises the adequacy of Jeteld Pty Ltd’s material but does not challenge its factual correctness.
  3. [48]
    This is not a case where Jeteld Pty Ltd has simply sat on its hands or otherwise failed to alert the Council that it considered that there were errors in the offsets in the infrastructure charges notice.
  4. [49]
    The evidence demonstrates that, after receiving the infrastructure charges notice, Jeteld Pty Ltd engaged its consultant engineers to make representations to the Council about the issues it seeks to agitate in this appeal.
  5. [50]
    The representations made to the Council during the appeal period were not in writing.  They do not constitute representations about the infrastructure charges notice under s 125 of the Planning Act 2016.  The representations also did not suspend the relevant appeal period with respect to the infrastructure charges notice.
  6. [51]
    Having regard to the affidavits filed by Jeteld Pty Ltd, it seems reasonable to infer that:
    1. Jeteld Pty Ltd trusted its consultant engineers to follow the appropriate processes provided for in the statutory regime to ensure that its concerns about the infrastructure charges in the infrastructure charges notice would be appropriately addressed with the Council;
    2. when it became apparent that the Council did not accept Jeteld Pty Ltd’s position, Jeteld Pty Ltd sought legal advice; and
    3. following receipt of the legal advice, Jeteld Pty Ltd appreciated the need to institute the subject appeal.
  7. [52]
    There is no doubt that Jeteld Pty Ltd was unwise to instruct its consultants to engage in negotiations with the Council without contemporaneously seeking legal advice or otherwise taking steps to ensure that the negotiations paid proper regard to the statutory process.  After all, the outcome that Jeteld Pty Ltd hoped to achieve was an outcome related to a statutory regime.  That said, it does not appear that Jeteld Pty Ltd was the only one to have engaged in such folly.
  8. [53]
    On the evidence available, it is reasonable to infer that the Council also participated in discussions about potential changes to the decision notice and infrastructure charges notice.  They did so in circumstances where the statutory regime afforded them no statutory power to undertake such changes. 
  9. [54]
    Leaving aside the lack of wisdom in the actions taken by either party (or both parties), I am satisfied that Jeteld Pty Ltd has provided an adequate explanation for the delay.

Is there any prejudice to the Council because of the delay?

  1. [55]
    The requirement to comply with the infrastructure charges notice, by paying the relevant infrastructure charge, does not arise unless and until, under the Land Title Act 1994 (Qld), the Council approves a plan for the approved reconfiguration of lots: s 122 of the Planning Act 2016.  This has not yet occurred.
  2. [56]
    There is no suggestion of any prejudice to the Council, or anyone else, because of the delay.

Is there a public interest consideration that favours the extension?

  1. [57]
    The reconfiguration of lots the subject of the development permit and the infrastructure charges notice is stage 5 of a master planned community that Jeteld Pty Ltd is developing.  Jeteld Pty Ltd says that the issue sought to be agitated in the subject appeal has relevance for subsequent stages of that master planned community.  As such, it says there is a public interest in having the issue determined at the earliest opportunity through this appeal.
  1. [58]
    This is not a matter to which I attribute meaningful weight in the exercise of my discretion.  If future stages of the master planned community are approved and are the subject of decision notices and infrastructure charges notices that Jeteld Pty Ltd says contain similar errors, there will be relevant rights of appeal.

Does the appeal have merit?

  1. [59]
    As I have already observed, I am not persuaded that the appeal is without merit as contended by the Council. 
  2. [60]
    Jeteld Pty Ltd says that its appeal has merit.  It says that the appeal raises real arguments about the proper characterisation of infrastructure works and the entitlement for a credit or offset in relation to such works.  The works in question are:
    1. the upgrade of West Street in the manner identified in condition 69 of the development permit;
    2. the relocation of utilities and Council services, as identified in condition 70 of the development permit; and
    3. the provision of a concrete path along West Street as required by condition 79 of the development permit. 
  3. [61]
    I have set out the crux of the case advanced by Jeteld Pty Ltd about these works, and the entitlement to an offset, in paragraph [24] above.  At face value, Jeteld Pty Ltd has an arguable case.

Do considerations of fairness support the grant of the extension?

  1. [62]
    Jeteld Pty Ltd makes two arguments with respect to fairness.
  2. [63]
    First, given there have been, and are, ongoing dealings between the parties about the issue on which the appeal will turn, Jeteld Pty Ltd submits that considerations of fairness militate strongly in favour of granting the extension.  It says that resolution of the issue will benefit the parties by resolving the dispute about the infrastructure charges notice the subject of this appeal.  According to Jeteld Pty Ltd, it will also inform these parties and others in a way that may assist in planning for other developments where this question arises.
  3. [64]
    Second, Jeteld Pty Ltd submits that, as a matter of fairness, the issue should be litigated because otherwise the Council will potentially secure a windfall gain to which it is not legally entitled.  On Jeteld Pty Ltd’s case, the Council would secure payment for the infrastructure under the infrastructure charges notice and simultaneously require the developer to assume the burden of constructing (at the developer’s cost) the infrastructure in question.
  4. [65]
    Although I place no meaningful weight on Jeteld Pty Ltd’s first argument, the second weighs in support of a favourable exercise of my discretion.

Conclusion

  1. [66]
    On balance, I am persuaded that there are sufficient grounds to allow an extension to the appeal period in relation to the infrastructure charges notice. 
  2. [67]
    In those circumstances, the Council’s application for costs fails.
  3. [68]
    I will list the matter for mention on Tuesday 20 August 2024 so that I may hear from the parties about appropriate orders.
Close

Editorial Notes

  • Published Case Name:

    Jeteld Pty Ltd v Toowoomba Regional Council

  • Shortened Case Name:

    Jeteld Pty Ltd v Toowoomba Regional Council

  • MNC:

    [2024] QPEC 36

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    19 Aug 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bayview Gardens Pty Ltd v Mulgrave Shire [1989] 1 Qd R 1
2 citations
Jump To
Cite 1 - [1989] 1 Qd R 1
Cite 2 - [1989] 1 Qd R 1
Hollis v Atherton Shire Council [2003] QSC 147
2 citations
Jump To
Cite 1 - [2003] QSC 147
Cite 2 - [2003] QSC 147
Hollis v Atherton Shire Council (2003) 128 LGERA 348
2 citations
Jump To
Cite 1 - (2003) 128 LGERA 348
Cite 2 - (2003) 128 LGERA 348
Lloyd v Robinson (1962) 107 CLR 142
2 citations
Jump To
Cite 1 - (1962) 107 CLR 142
Cite 2 - (1962) 107 CLR 142
Lloyd v Robinson [1962] HCA 36
2 citations
Jump To
Cite 1 - [1962] HCA 36
Cite 2 - [1962] HCA 36
Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63
1 citation
Jump To
Cite 1 - [2019] QPEC 63
Supreme Renovators Pty Ltd v Logan City Council [2020] QPELR 805
2 citations
Jump To
Cite 1 - [2020] QPELR 805
Cite 2 - [2020] QPELR 805

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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