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This case concerned the validity of infrastructure charges notices (“ICNs”) issued by the Toowoomba Regional Council to Wagner Investments, the developer of the Brisbane West Wellcamp Airport and Business Park. The Planning & Environment Court had set aside a number of the ICNs, including because there was no rational link between the increase on trunk infrastructure and the calculation of some of the charges. The Court of Appeal allowed aspects of the Council’s appeal, including because it was sufficient that it could show that the development would generate additional demand on infrastructure; it was not necessary that any particular charge be calculated by reference to that additional demand.
Fraser, Morrison and Mullins JJA
7 September 2020
Wagner Investments is the developer of an airport and business park in Toowoomba. . The Toowoomba Regional Council issued Wagner with infrastructure charges notices (“ICNs”) under the Sustainable Planning Act 2009 (“SPA”) following development approvals given for the development. .
At first instance in the Planning and Environment Court, Wagner challenged the validity of some of the ICNs. It had success in relation to ICNs issued for stormwater, traffic, and for reconfiguration of a lot. . The Council obtained leave to appeal against those orders in the Court of Appeal, contending that the primary judge had erred in setting aside the aforementioned ICNs. . The reasons of the Court were given by Mullins JA, with whom Fraser and Morrison JJA agreed. –.
The key statutory provisions relating to the appeal are s 478 and s 636 of the SPA (these provisions have now been superseded by analogous provisions in the Planning Act 2016). .
Section 478 limits the grounds upon which a recipient of an ICN may appeal to a court about the decision to give an ICN. As relevant to this case, it allows an appeal where: the charge is so unreasonable that no reasonable local government could have imposed it (i.e. it is Wednesbury unreasonable); where the decision involves an error relating to the application of the relevant charge; or where the decision involves an error relating to the working out of additional demand. (Per s 478(2)(a), (b)(i) and (c)(ii) respectively.)
Section 636 provides that a “levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development”. .
The primary judge set aside ICNs for stormwater charges on the basis that the trunk infrastructure identified by Council for the calculation of these charges – Westbrook Creek – was not identified in the Local Government Infrastructure Plan, or other relevant plans, as trunk infrastructure. . Accordingly, the conclusion was that it was “not stormwater trunk infrastructure for the purposes of either the scheme or the SPA”. .
Council contended that the primary judge had misconstrued the scheme in failing to recognise Westbrook Creek as trunk infrastructure. . However, Mullins JA noted that there was no challenge to the primary judge’s finding that “none of the stormwater infrastructure” in Westbrook Creek (or in the Enterprise Area of the development) was “located downstream of the subject developments”. . In other words, the uncontested evidence was that there was no additional demand on stormwater trunk infrastructure as a result of the developments. . That meant that the statutory pre-condition under s 636 SPA for issuing an ICN had not been satisfied. . Accordingly, there was no error in the primary judge’s decision to set aside the stormwater ICNs. .
The primary judge had set aside traffic ICNs on the basis that they were unreasonable in the Wednesbury sense, contrary to s 478(2)(a) of the SPA. . In particular his Honour noted that the method used by Council to calculate the charges was based on Gross Floor Area (“GFA”), but that there was “little or no correlation between GFA and the local traffic that would be generated by the development”. . His Honour considered that this would fall outside the bounds of s 636 SPA, because there was unlikely to be any legitimate relationship between the developments and the additional demand they placed upon trunk infrastructure. .
Mullins JA considered that the primary judge had erred in setting aside these ICNs. . Her Honour said that s 636 “does not require the calculation of the levied charge to be by reference to actual additional demand generated by the development, provided there is some additional demand”. . Effectively, once there is additional demand – permitting infrastructure charges under s 636 – the Council had considerable latitude to choose the method of calculation by way of Charges Resolutions. –. That was confirmed by the legislature’s intention expressed in s 478 to “confine narrowly the grounds of appeal about the decision to give an ICN”. . Her Honour said that s 478(3) “made it clear that any appeal could not be about the adopted charge itself”. . Her Honour also found that the primary judge had erred in finding that the charges should have been calculated under Charges Resolutions for a different category of development. . Accordingly, the Council’s appeal on this issue was successful and the traffic ICNs were restored. .
Reconfiguration of lot charges
The primary judge set aside the reconfiguration of lot charge (issued in relation to subdivision of an existing lot) on the basis that “there was no rational link between the reconfiguration of land to create the subject lot and the estimated additional demand” that would be placed on the transport trunk infrastructure. , .
Mullins JA noted that the development involved a reconfiguration accompanied by an application for a material change of use. . In her Honour’s view, it was “not to the point” that the mere reconfiguration did not result in an increase in demand on trunk infrastructure. . Instead, “[w]hat was relevant was that the reconfiguration … is one of the trigger points for the issuing of an ICN in relation to that development”. . As with the stormwater charges, this appeal was precluded by s 478(3) of SPA, because an appeal could not be about the adopted charge itself. . Accordingly, the primary judge’s orders setting aside these ICNs were overturned. .