OPD Developers Pty Ltd v Logan City Council
[2025] QPEC 8
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- OPD Developers Pty Ltd v Logan City Council[2025] QPEC 8
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OPD Developers Pty Ltd v Logan City Council[2025] QPEC 8
OPD Developers Pty Ltd v Logan City Council[2025] QPEC 8
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | OPD Developers Pty Ltd & Anor v Logan City Council [2025] QPEC 8 |
PARTIES: | OPD DEVELOPERS PTY LTD ACN 077 119 110 (First Applicant) AND MEADOWBROOK HEALTH PTY LTD ACN 634 599 189 AS TRUSTEE FOR THE MEADOWBROOK HEALTH UNIT TRUST UNDER INSTRUMENT 721186902 (Second Applicant) v LOGAN CITY COUNCIL (Respondent) |
FILE NO/S: | 639 of 2025 |
DIVISION: | Planning and Environment |
PROCEEDING: | Originating application |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 30 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 April 2025 |
JUDGE: | Everson DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPLICATION – VALIDITY OF INFRACTURE CHARGES NOTICE – whether the charge is only for extra demand placed on trunk infrastructure that the development will generate |
CASES: | Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28 |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) |
COUNSEL: | B D Job KC and S J Hedge for the first and second applicants C L Hughes KC and B G Rix for the respondent |
SOLICITORS: | Connor O'Meara for the first and second applicants RedeMont for the respondent |
- [1]This is an originating application concerning the lawfulness of an infrastructure charges notice. A declaration is sought pursuant to s 11 of the Planning and Environment Court Act 2016 (“PECA”) that an infrastructure charges notice, reference number LCC/377/2023 dated 17 July 2023, purportedly issued by the respondent (“the ICN”) is invalid and of no effect. Further, a consequential order is sought pursuant to s 11(4) of the PECA that the ICN be set aside.
- [2]The background to this matter begins with the Minister for State Development, Infrastructure, Local Government and Planning making a designation under ch 2 pt 5 of the Planning Act 2016 (“PA”) identifying land at 6–8 and 10–12 Nestor Drive, Meadowbrook (“the premises”) for the development of infrastructure, namely “hospitals and healthcare services” (“the hospital”). The Ministerial Infrastructure Designation (“the MID”) was notified on 1 July 2022 and took effect on that date. As a consequence, pursuant to s 44 of the PA the hospital became “accepted development”,[1] which is “development for which a development approval is not required”.[2] It is uncontentious that the effect of the MID was to make a material change of use of the premises as that term is defined in sch 2 of the PA, being “the start of a new use of the premises”.
- [3]Subsequently, in order to build the hospital, a private certifier issued a building works approval dated 20 June 2023 (“the building approval”). This in turn led to the ICN, which was expressed to be in respect of the “Building Works Approval”.
- [4]The first applicant is the owner of the premises and a related entity of the second applicant.
- [5]Pursuant to the PA, development is defined broadly in sch 2 as follows:
development means—
- carrying out—
- building work; or
- plumbing or drainage work; or
- operational work; or
- reconfiguring a lot; or
- making a material change of use of premises.
- [6]Section 280 then restricts the meaning of the term for an infrastructure charge and infrastructure charges notice. In s 280 the term “the development” is stated to be a reference to “the development that is the subject of the development approval to which the charged matter relates”.[3]
- [7]Section 49 of the PA defines a “development approval” as a preliminary approval, or a development permit or a combination of both. It is uncontentious that the MID is not a development approval as defined in the PA. It is equally uncontentious that the ICN was issued in accordance with the respondent’s Logan Charges Resolution (No. 11) 2023 and no issue is taken in respect of the calculation of the charge in the sum of $704,029.49.
- [8]What is contentious is whether the respondent had the power to levy the infrastructure charges the subject of the ICN. The resolution of this question requires a careful consideration of ch 4, pt 2, div 3, sub-div 3 of the PA. Section 119 requires that a development approval be given before the levying of a charge and the giving of an infrastructure charges notice. Thereafter, s 120 places limitations on the levying of a charge. It states:
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.
- However—
- the demand generated by a use or development stated in subsection (2) may be included if an infrastructure requirement that applies, or applied to the use or development, has not been complied with; and
- the demand generated by development stated in subsection (2)(c) may be included if—
- an infrastructure requirement applies to the premises on which the development will be carried out; and
- the infrastructure requirement was imposed on the basis of development of a lower scale or intensity being carried out on the premises.
- In this section—
charges notice means—
- an infrastructure charges notice; or
- a notice stated in section 125(3).
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.
- [9]In circumstances where the applicants argue that the demand placed on the trunk infrastructure as a consequence of the MID is the same as that as a consequence of the building approval and the respondent makes no meaningful submission to the contrary,[4] it is the construction of sub-ss (1) and (2) which is pivotal to the resolution of this proceeding. Because pursuant to s 119 a development approval is a pre-condition to the levying of an infrastructure charges notice, the reference to “the development” in sub-s (1) must be a reference to the building approval, having regard to s 280. Then applying s 120(1), in the context of the facts before me, there is no extra demand placed on trunk infrastructure that the building approval will generate over and above the MID. In both cases the hospital is what will generate the demand on trunk infrastructure. As noted above, the use of the premises for a hospital became accepted development as a consequence of the MID.
- [10]It is necessary to then consider s 120(2)(c). In this regard, the term “other development” must be development different to the building work the subject of the building approval. On the facts before me, it must be the material change of use effected as a consequence of the MID which made the hospital accepted development. Subsection (2) requires that when working out the extra demand on trunk infrastructure, the demand generated by the use of the premises as a hospital must not be included “if the development may be lawfully carried out without the need for a further development permit”. In my view, “the development” referred to in this passage is a reference to the “other development” earlier referred to, which on the facts before me is the material change of use for the hospital. On one view, this use may be lawfully carried out without the need for a further development permit. On another view, this use required the building of a hospital and therefore the building approval in order for it to be carried out.
- [11]In attempting to resolve this conundrum, assistance can be found in the Acts Interpretation Act 1954, which relevantly states in s 14A(1):
In the interpretation of a provision of an Act, the interpretation that will best serve the purpose of the Act is to be preferred to any other interpretation.
Further, s 14B permits extrinsic material, including an explanatory note relating to the Bill, to be considered in assisting in the interpretation of a provision. In this regard, the explanatory note to what became s 120 of the PA, which was cl 119 in the Planning Bill 2015 (Qld), relevantly stated:
Clause 119 ensures that a levied charge is only levied for additional demand placed on trunk infrastructure by a development.
The clause prevents the existing lawful use of a site or the existing rights to develop a site from being considered additional demand, unless an infrastructure requirement that applies or applied to the use or development has not been complied with.
- [12]Having regard to the explanatory note, it is clear to me that because the use of the premises for a hospital became accepted development as a consequence of the MID, s 120(2)(c) does not permit the infrastructure charges the subject of the ICN to be levied on the granting of the subsequent building approval. This interpretation is consistent with s 120(1). It is also consistent with s 120(2) read as a whole, which requires existing use rights (regardless of whether they are active) to be credited in working out any extra demand occasioned by the development to which the infrastructure charges notice attaches.
- [13]I am unpersuaded that there are discretionary reasons which should deny the applicants the relief they seek. Accordingly, I declare that the infrastructure charges notice, reference number LLC/377/2023 dated 17 July 2023, purportedly issued by the respondent is invalid and of no effect. I order that the infrastructure charges notice be set aside.
Footnotes
[1]Section 44(6)(b)(ii).
[2]Ibid s 44(4).
[3]To the extent that the term was construed in Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28 without regard to the definition in s 280 of the PA, it does not represent good law.
[4]Given the MID Plan of Designation included a "built form envelope comprising buildings and structures not exceeding 4 storeys, ground floor car parking and vehicular circulation”, this is hardly surprising. See the Certificate of the CEO of the respondent filed 15 April 2025, Document 1, at page 14.