This case will be of a particular interest to planning and development lawyers. The issue for determination was whether the effect of s 639(1) of the Sustainable Planning Act 2009 was that a non-applicant land owner could be liable for unpaid infrastructure charges. The court upheld the primary judge’s conclusion that the effect of s 639(1) was that such charges were “taken to be rates” for the purposes of recovery. Section 639(1) therefore had the result that an unpaid infrastructure charge was deemed to be a charge payable by the owner of the land from time to time.
Sofronoff P and Philippides JA and Douglas J
2 March 2018
The appellant sought to appeal from a decision of Jackson J, dismissing its application for declaratory relief. . The appeal turned on the proper construction of s 639 of the Sustainable Planning Act 2009 (“the SPA”) as it was at the relevant time (now located in s 664 SPA with minor amendments). .
The appellant was the administrator for Mr Clark who was the owner of land at Burleigh Heads. During the relevant periods, the land was leased to Pro Skips Pty Ltd (“Pro Skips”). . In 2006 Pro Skips applied to the respondent council (“Gold Coast Council”) for a development permit for a material change of use of the land – for use as a refuse transfer station. . The appellant gave their consent to this application. . On 17 November 2009, the Council approved the application by a negotiated decision notice. . An infrastructure charges notice was also issued but was never paid by Pro Skips. As the Integrated Planning Act 1997 applied at the time, the appellant was not notified of the 2009 negotiated decision. On 22 May 2013 the Gold Coast Council issued a rates notice to the appellant in the sum of $400,574.94, which included the amount for the unpaid infrastructure charges. .
Statutory context / the primary judge’s decision
The issue for determination was whether a non-applicant owner was liable to pay an infrastructure charge levied by the local government. . The key provision in this case, s 639 of the SP Act, relevantly provided:
“Infrastructure charges taken to be rates
? An infrastructure charge levied by a local government is, for the purposes of recovery, taken to be rates within the meaning of the Local Government Act.
The primary judge observed that while this provision did not expressly address whether the person liable to pay an infrastructure charge was the “owner” of the land, in deeming that an infrastructure charge be “taken to be rates”, it invited attention to who is liable to pay rates. .
The primary judge held that the purpose of s 639 was recovery of an infrastructure charge by a local government, which was achieved by deeming such charges to be rates. The text and context indicated that the provision was intended to make the proprietor liable to pay the infrastructure charge, at least after service of a rates notice which included such a charge. .
Appeal in the Court of Appeal
The appellant contended that the primary judge failed to address the significance of the fact that the infrastructure charges notice was not, and could not, be given to the “owner” of the land, but only to the “applicant”, being Pro Skips. . It contended that the statutory language in both the IPA and the SPA was reflective of the applicant being the focus of attention for recovery of infrastructure charges. . Philippides JA considered this argument to be “without substance” and noted that the distinction made between “applicant” and “owner” in the legislation was a factor indicative of a lack of contextual support for the applicant’s contended construction of s 639(1) SPA. .
At the heart of the appellant’s arguments was the contention that the primary judge had erred in holding “that an infrastructure charges notice given to a non-owner applicant was able to render the obligation thereunder that of the owner by virtue of the deeming provision”. . Philippides JA rejected those arguments. Her Honour agreed with the primary judge that the construction contended for by the appellant would require reading s 639(1) as if it contained additional words of restriction (e.g. introductory words such as “Where the applicant is the owner of the land …”). . Her Honour concluded that by “providing that, for the purpose of recovery, an unpaid infrastructure charge is taken to be rates, s 639(1) had the result that charge was deemed to be a charge payable by the owner of the land from time to time, if the rights under the development approval were exercised”. . As Her Honour explained the owner of the land remained free to decide at the development application stage whether its land would be fixed with the burdens of infrastructure charges which flowed from approval of development on particular land. . Given this aspect of control, the owner could also protect its interests by appropriate avenues of recourse to the applicant for unpaid infrastructure charges. .
Philippides JA concluded that the appeal should be dismissed with costs. . Sofronoff P and Douglas J agreed with her Honour’s reasons and proposed orders. , .