This was an appeal by the Council against a decision by the Planning and Environment Court that certain Infrastructure Charges Notices (ICN) issued by the Council pursuant to s 635 Sustainable Planning Act 2009 were invalid because of the absence of reasons. In allowing the appeal, the Court reached three conclusions. First, s 27B of the Acts Interpretation Act 1954 applied to give content to the obligation to give reasons for the decision to give the ICN, and the notice in this case was deficient in failing to refer to evidence. Second, that the noncompliance in this case did not render the ICN invalid. Third, as the appeal was an appeal in the “strict sense”, s 344 Planning Act 2016, which was passed by Parliament following the primary judge’s decision with the express purpose of validating any invalid ICNs, did not have any bearing on the resolution of this appeal.
Fraser and Morrison JJA and Crow J
14 June 2019
In late 2016, the Gold Coast City Council issued five Infrastructure Charges Notices (“ICNs”) to Sunland Group Limited, purporting to levy infrastructure charges in relation to the grant of a development approval. –. The ICNs were accompanied by an Information Notice (“IN”) that stated that the Council had issued the ICNs “as a result of the additional demand placed upon trunk infrastructure that will be generated by the development”. .
Sunland Group commenced proceedings in the Planning and Environment Court, appealing the Council’s decision to issue the notices, and seeking declarations that the ICNs did not comply with certain statutory requirements, and were accordingly invalid. On 4 May 2018, the primary judge made declarations to that effect. In this appeal, the Council sought leave to appeal against those declarations (with Sunland accepting that granting leave to appeal would be appropriate). –, .
There were three issues to be determined by the Court of Appeal: (1) whether the primary judge erred in considering that the ICNs issued were defective in failing to be accompanied by an IN that provided sufficient “reasons”; (2) whether the primary judge erred in concluding that the defects resulted in the invalidity of the ICNs; and (3) whether legislation passed by Parliament following the primary judge’s decision, purporting to retrospectively validate defective ICNs, had any bearing on the resolution of this appeal.
Morrison JA provided the substantive reasons in relation to issues (1) and (2) (with which Fraser JA and Crow J agreed). Fraser JA provided the substantive reasons in relation to (3) (with which Morrison JA and Crow J agreed). , , .
Issue 1 – whether the notices were defective
Section 637 of the Sustainable Planning Act 2009 (“SPA”) required that an ICN provide certain information in relation to a levied charge, and include, or be accompanied by an “information notice [IN] about the decision”. . The Act defined an IN as meaning a notice stating, among other things, “the decision and the reasons for it” (emphasis added). . The key issue was whether the IN provided in this case provided adequate reasons, in circumstances where it was a “single sentence which went no further than reciting part of a statutory provision”.  The primary judge had found that the reasons provided were inadequate, including because they failed to disclose the “path of reasoning by which Council reached its conclusion”. .
A key question was whether s 27B of the Acts Interpretation Act 1954 (“AIA”) applied. . That section provides that where an Act requires a decision-maker to give “reasons” (including where another expression is used), those reasons must also “set out the findings on material questions of fact” and “refer to the evidence or other material on which those findings were based”. . Council contended that this section did not apply, as it was displaced by a contrary intention revealed in the SPA (as permitted by s 4 of the AIA). . However, after a detailed review of the statutory context, the Court concluded that there was no error in the conclusion that s 27B of the AIA applied. –, . Some of the reasons for that conclusion included that there was no definition of “reasons” in the SPA, thereby inviting the application of the AIA. Further, provisions entitling an applicant for a development approval to make written representations about matters stated in a decision notice would be “rendered less effective unless the reasons given in the information notice were the reasons contemplated by s 27B” of the AIA. –.
Although s 27B applied, Morrison JA considered that the primary judge had erred in concluding that a “path of reasoning” had to be disclosed by the reasons. . What was required by way of reasons fell to be considered in context (citing Cypressvale Pty Ltd v Retail Shop Leases Tribunal  2 Qd R 462). . The decision to issue the ICN was not a decision of a judicial or quasi-judicial kind, to which a more expansive duty to give reasons applied. . Instead, the reasons here could be “short and terse, as long as they were ‘proper, adequate and intelligible’”. . His Honour concluded that the reasons provided by the Council were sufficient, except for a failure to “refer to the evidence” (as required by s 27B AIA). –.
Issue 2 – whether the ICN was invalid
The next issue was whether any non-compliance resulted in the invalidity of the ICNs. The primary judge held that it did. .
Morrison JA concluded that non-compliance with the requirement to give reasons did not result in invalidity. In particular, because the SPA made “careful provision” for things that were of no effect due to non-compliance. The absence of a similar provision in respect of a non-complying IN was a “textual indication that invalidity was not intended”. . Further, in relation to the failure to “refer to the evidence”, his Honour considered that this obligation was in “different language to the others” set out in s 27B AIA. . The other requirements were to “state” or “set out” certain things. On its face, the obligation to “refer to” evidence imposed a “lesser burden than the others”. . Accordingly, the legislation did not reveal an intention to invalidate an ICN that failed to comply with this requirement, in circumstances where the other requirements had been met. .
Issue 3 – whether s 344 Planning Act 2016 had any bearing on the appeal
Although not strictly necessary to decide (given the appeal was to be allowed on the basis of the errors discussed above), the Court also considered the effect of a legislative amendment passed after the primary judge’s decision. . The amendment introduced s 344 into the Planning Act 2016, which provided that for any ICN given under the SPA on or after 4 July 2014 that did not comply with the requirement to give reasons, it was declared that the “notice is taken to be, and to always have been” valid. .
His Honour considered it particularly significant that this was a “strict appeal” in which the Court’s function was confined to deciding “whether or not there was error in the judgment under appeal upon the basis of the facts and the law at the time of that judgment”. . The nature of the appeal was provided for in the Planning and Environment Court Act 2016 (s 63), and further reflected in the Uniform Civil Procedure Rules 1999. . His Honour considered that the amending legislation “did not convey a legislative intention to displace” those provisions which limited the nature of the appeal. . Accordingly, s 344 was irrelevant to the disposition of the appeal. .
For the reasons outlined in the first two sections (concerning the sufficiency of reasons and deficiency not leading to invalidity), the appeal was allowed. .