Exit Distraction Free Reading Mode
This case concerned a development approval subject to a condition that certain land be dedicated to Council. The applicant sought an amendment to that condition in the Planning and Environment Court, to specify that it was imposed under s 128 Planning Act 2016 (and thereby entitle it to certain refunds or offsets). However, the primary judge concluded that s 128 was not engaged because the dedicated land was not identified as necessary infrastructure during the period of the Local Government Infrastructure Plan, and nor did expert evidence establish that it was necessary during that period. The Court of Appeal dismissed the appeal.
Morrison and McMurdo JJA and Boddice J
10 December 2021
The applicant, Traspunt, owns land at Morayfield, which it proposes to subdivide into 46 lots. . In 2018 its development application was approved by the respondent council, subject to a condition which is the subject of the dispute in this case. . The condition required Traspunt to dedicate certain land “at no cost to Council” (“the dedicated land”). .
Traspunt appealed to the Planning and Environment Court, seeking to have the condition amended so as to state that it was imposed under s 128 Planning Act 2016. . Such an amendment would “entitle Traspunt to offsets or refunds under the infrastructure provisions of the Planning Act 2016. .
At first instance, the Planning and Environment Court held that the requirements for the imposition of a condition under s 128 Planning Act 2016 were not satisfied, and so refused to make the amendment sought. . Traspunt sought leave to appeal to the Court of Appeal, contending that the primary judge had erred in so concluding. .
The Court of Appeal refused Traspunt’s application for leave to appeal, with reasons given by McMurdo JA (with whom Morrison JA and Boddice J agreed). , .
Why the land dedication condition was not (and could not be) imposed pursuant to s 128 Planning Act 2016
Section 128 Planning Act 2016, headed “Necessary infrastructure conditions”, relevantly provides that:
“(1) If the LGIP identifies adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring either or both of the following to be provided at a stated time—
(a) the identified infrastructure;
(b) different trunk infrastructure delivering the same desired standard of service.
(2) If the LGIP does not identify adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring development infrastructure necessary to service the premises to be provided at a stated time.
(3) However, a local government may impose a condition under subsection (2) only if the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development.”
The dedicated land was not identified in the Council’s LGIP (Local Government Infrastructure Plan) as “adequate trunk infrastructure to service the subject premises” (per s128(1)). Accordingly, s 128(1) was “not engaged”. . Instead, “Traspunt’s case was that the facts and circumstances engaged s 128(2)”. . Traspunt alleged that the primary judge had misconstrued the provision by considering only whether the relevant infrastructure (the dedicated land) was a “present necessity, rather than what will become necessary”. .
The Court of Appeal considered that Traspunt was correct in submitting that s 128 is “concerned with infrastructure which is not only immediately required, but also will be required in the future”. . However, the proper construction of s 128(2) was that it is engaged only where the LGIP does not identify trunk infrastructure which would be necessary to service the subject premises “within the period for which the LGIP provides”. .
Here, the LGIP expired in 2031, and did not identify the dedicated land as being necessary within that period of time. . Instead, to the contrary, it depicted the dedicated land as being in a category of “corridors required beyond 2031”. . Further, on the expert evidence presented at first instance, and accepted by the primary judge, the dedicated land was not necessary to service Traspunt’s land within the period of the LGIP. . It followed that, on the evidence and proper construction of s 128(2), “that provision was not the source of the power to impose” the relevant condition. . That being the case, Traspunt was not entitled to the amendment it sought, and the primary judge had been correct to dismiss its application. .
Accordingly, the application for leave to appeal was refused. .