Cox v Chief Executive, Department of Main Roads
[2009] QPEC 50
•10 June 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Cox v Chief Executive, Department of Main Roads & Anor [2009] QPEC 50
PARTIES:
PAMELA WINIFRED COX
(Applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(First Respondent)
and
SUNSHINE COAST REGIONAL COUNCIL
(Second Respondent)
FILE NO/S:
3649 of 2008
DIVISION:
Original
PROCEEDING:
Application for declaration of invalidity of a concurrence agency condition
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
10 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
07 May 2009
JUDGE:
Robin QC DCJ
ORDER:
Application dismissed
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.15, s 3.5.18, s 3.5.32, s 4.1.21, s 4.1.22, s 5.1.28, s 5.1.29
Applicant’s development application for a reconfiguration to create 400 allotments in conformity with master planning under Maroochy Plan 2000 was before Council in the decision stage – Department of Main Roads (DMR) as concurrence agency required a condition for contributions towards State-controlled roads in accordance with Council’s Priority Infrastructure Plan (PIP), if one existed at the defined time for payment (if not, in specified amounts for two dwelling classes) – whether DMR could lawfully require such contributions when no PIP existed during the referral period – whether condition unlawful because of reference in the wording of it to a draft PIP (if any) and to associated traffic modelling – whether condition unlawful for uncertainty or unreasonableness.
COUNSEL:
C Hughes SC with M Williamson for the Applicant
M Hinson SC for the First Respondent
A Skoien for the Second Respondent
SOLICITORS:
Rigby Lawyers for the Appellant
Crown Law for the First Respondent
Sunshine Coast Regional Council Legal Services for the Second Respondent
By her Originating Application, Ms Cox seeks:
“1.A declaration that the first condition in the Conditions and Statement of Reasons included in the concurrence agency response of the First Respondent dated 16 October 2008, imposed for the purpose of Section 3.3.16 of the Integrated Planning Act 1997 (“IPA”) in relation to a development application seeking, inter alia, a development permit for reconfiguring a lot to create approximately 400 allotments in respect of land described as Lot 4 on RP854650 situated at Old Emu Mountain Road, Peregian, in the State of Queensland (Assessment Manager Reference No. MCU 07/0197 and REC07/0141) is unlawful in that it is ultra vires, vague and uncertain.
2.An order that the said first condition be declared void and struck from the said concurrence agency response.”
That relief is sought under s 4.1.21 and s 4.1.22 respectively of IPA.
The impugned condition is:
“The Applicant must pay a contribution to Main Roads prior to the release of the Plan of Survey or Commencement of Use or issue of Certificate of Classification.
If the Council has a Priority Infrastructure Plan (PIP) in place, the contribution must be in accordance with this plan.
If there is no PIP in place, the contribution must be $2,157 for each detached dwelling and $1,444 for each attached dwelling. The contribution must be indexed based on the Road and Bridge Construction Index – Class 4121, published by the Australian Bureau of Statistics.”
The Development Application was made to the Maroochy Shire Council in or about November 2007 and is yet to be decided. For present purposes, it may be accepted that the applicant’s proposed development accords entirely with what is envisaged for the site by the relevant planning scheme, Maroochy Plan 2000. Mr Hinson SC, for the Chief Executive says that this is presently irrelevant. It has no bearing on the lawfulness of the condition.
Although the address of the applicant’s 33.6ha site is Old Emu Mountain Road, Peregian Beach, the Chief Executive became a concurrence agency for the Development Application because the site lies within 100m from a road under his control, namely the Sunshine Motorway. The Council as assessment manager has no option but to follow the Chief Executive’s requirements by way of refusal or part refusal of the Development Application or (as is relevant here) attaching conditions properly required by him (i.e. within his jurisdiction and powers), as s 3.3.16 and s 3.3.18 of the IPA make clear:
“3.3.16 Referral agency’s response
(1)If a concurrence agency wants the assessment manager to include concurrence agency conditions in the development approval, or to refuse the application, the concurrence agency must give its response (a referral agency’s response) to the assessment manager, and give a copy of its response to the applicant, during the referral agency’s assessment period.
(2)If an advice agency wants the assessment manager to consider its advice or recommendations when assessing the application, the advice agency must give its response (also a referral agency’s response) to the assessment manager, and give a copy of its response to the applicant, during the referral agency’s assessment period.
(3)If a concurrence agency does not give a response under subsection (1), the assessment manager may decide the application as if the agency had assessed the application and had no concurrence agency requirements.
(4)However, the referral agency’s response is taken to be a refusal of the application if—
(a)the application is a building development application; and
(b)the concurrence agency is the local government; and
(c)the matter being decided by the concurrence agency is a matter other than assessing the amenity and aesthetic impact of a building or structure; and
(d)the concurrence agency does not give a response under subsection (1).
…
3.3.18 Concurrence agency’s response powers
(1)A concurrence agency’s response may, within the limits of its jurisdiction, tell the assessment manager 1 or more of the following—
(a)the conditions that must attach to any development approval;
(b)that any approval must be for part only of the development;
(c)that any approval must be a preliminary approval only;
(d)a different period for section 3.5.21(1)(b), (2)(c) or (3)(b).
(2)Alternatively, a concurrence agency’s response must, within the limits of its jurisdiction, tell the assessment manager—
(a)it has no concurrence agency requirements; or
(b)to refuse the application.
(3)A concurrence agency’s response may also offer advice to the assessment manager about the application.
(5)To the extent a concurrence agency’s jurisdiction is about assessing the effects of development on designated land, the concurrence agency may only tell the assessment manager to refuse the application if—
(a)the concurrence agency is satisfied the development would compromise the intent of the designation; and
(b)the intent of the designation could not be achieved by imposing conditions on the development approval.
(6)To the extent a local government’s concurrence agency jurisdiction is about assessing the amenity and aesthetic impact of a building or structure, the concurrence agency may only tell the assessment manager to refuse the application if the concurrence agency considers—
(a)the building or structure, when built, will have an extremely adverse effect on the amenity or likely amenity of its neighbourhood; or
(b)the aesthetics of the building or structure, when built, will be in extreme conflict with the character of its neighbourhood.
(7)Subsection (2)(b) does not apply to the extent a concurrence agency’s jurisdiction is about the assessment of the cost impacts of supplying infrastructure to development.
(8)If a concurrence agency’s response, other than a refusal taken to have been given, under section 3.3.16(4), requires an application to be refused or requires a development approval to include conditions, the response must include reasons for the refusal or inclusion.
(9)Subsection (8) does not apply to a refusal mentioned in section 3.3.16(4).”
The applicant’s desire to establish that the impugned condition, which bodes to burden the development with a large financial obligation, cannot be imposed at this stage is understandable. For the moment, there is no PIP; no one can know whether one might be in place when the Council comes to determine the application before it, for which it is assessment manager.
Apropos the “fallback” provision, the Department was asked on what basis the amounts had been calculated and responded in a letter of 5 December 2008 that they are “based on traffic modelling of future land use and road network planning. It used information from the Traffic Forecasting Model that Council is currently using to formulate its…PIP.”
The argument of Mr Hughes SC and Mr Williamson for the applicant is that the impugned condition is invalid because (disregarding for the moment complaints of uncertainty and unreasonableness in the condition) the concurrence agency had regard to irrelevant considerations, being a draft PIP and modelling done in the course of formulating that draft. It is convenient to adopt their statement describing relevant constraints, which is uncontroversial, although Mr Hinson observed that there was a failure to deal with what “assessment” in paragraph 19 implies:
“18.In terms of IPA itself (even without reference to the common law) a concurrence agency’s power to do those things envisaged in section 3.3.18(1) of IPA is constrained in at least five respects:
(a)first, the power is to be exercised within the limits of the scope of the referral jurisdiction, which is dictated by Schedule 2 to the Integrated Planning Regulation 1998 (“IPR”): the DMR’s referral jurisdiction in this case is identified in Schedule 2, table 3, item 3 of the IPA as “the purposes of the Transport Infrastructure Act 1994”;
(b)second, a concurrence agency is specifically directed to assess an application against the matters identified in section 3.3.15 of IPA, including:
(i) the laws and policies administered by the referral agency;
(ii) any planning scheme (for the relevant planning area) which was in force at that date the application was made; and
(iii) any applicable concurrence agency code;
(c)third, the concurrence agency response must be given within the “referral agency’s assessment period” (section 3.3.16(1) of IPA);
(d)fourth, the response can only be altered before the application is decided and with the consent of the applicant (section 3.3.17(1) and (2)); and
(e)fifth, any condition sought to be imposed on an approval must satisfy the overarching requirements of section 3.5.30 of IPA.
19.A concurrence agency’s source of power to impose conditions on a development application referred to it is found in section 3.3.18. The exercise of the power must be based upon its assessment under the strict regime of section 3.3.15. It cannot assess the application or seek to impose conditions capriciously ignoring the section 3.3.15 statutory assessment regime.
20.A concurrence agency’s power may, in appropriate circumstances, include a power to direct an assessment manager to include a condition in any approach which requires the payment of a monetary contribution to mitigate impacts of a development on the safety and efficiency of the State controlled road network: sections 3.5.32(2)(a) and 5.1.28(2)(a) of IPA. Those “appropriate circumstances” exist only when such a contribution is justified by the considerations of the relevant matters delineated in section 3.3.15 and not otherwise. This power is also constrained by, inter alia, sections 3.5.30 and 5.1.29 of IPA.”
The purposes of the Transport Infrastructure Act 1994 are relevantly wide and general, as can be seen from Section 2(2):
“In particular, the objectives of this Act are–
(a)…
(b)for roads – to establish a regime under which –
(i)a system of roads of national and State significance can be effectively planned and efficiently managed; and
(ii)influence can be exercised over the total road network in a way that contributes to overall transport efficiency; and
(iii)account is taken of the need to provide adequate levels of safety, and community access to the road network; and
…”
The relevant parts of s 5.1.28 and s 5.1.29 (for which the Department is a “State infrastructure provider” and roads are “infrastructure” according to definitions in IPA Schedule 10) are:
“5.1.28 Conditions State infrastructure provider may impose
(1)A State infrastructure provider may impose a condition about either or both of the following—
(a)infrastructure;
(b)works to protect the operation of the infrastructure.
(2)The condition must be only for—
(a)protecting or maintaining the safety or efficiency of the provider’s infrastructure network; or
(b)additional infrastructure costs; or
(c)protecting or maintaining the safety and efficiency of public passenger transport.
Examples of a condition for safety or efficiency—
1 a deceleration lane and entry access to a shopping centre development2 traffic signals at an intersection 1 block from a shopping centre development
3 upgrading transverse drainage under a State-controlled road because of increased hard stand parking area from development
4 road shoulder widening added to reconstruction of a road because of increased traffic loading to stop road edge wear
5 provision of a bus stop and adjacent pull-in bay in a large residential subdivision to accommodate a public passenger transport service
6 provision of a bus turning lane at an intersection for a shopping centre development because of increased traffic loading
7 upgrade of traffic control devices at a rail level crossing because of increased vehicular crossings from nearby residential development
Example of a condition for additional infrastructure costs—
contribution for the construction of road works on a State-controlled road when land, not in the priority infrastructure area is developed as a large town-house estate—such as for the provision of footpaths, kerb and channel with ancillary drainage and a landscaped noise buffer
5.1.29 Requirements for conditions about safety or efficiency
(1)A condition imposed under section 5.1.28(2)(a) for supplying, or contributing toward the cost of, infrastructure must state—
(a)the infrastructure or works to be supplied or the contribution to be made; and
(b)when the infrastructure or works must be supplied or the contribution made.”
It is necessary to be more precise than was the submission quoted above about s 3.3.15, which provides:
“3.3.15 Referral agency assesses application
(1)Each referral agency must, within the limits of its jurisdiction, assess the application—
(a)against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency; and
(b)having regard to—
(i) any planning scheme in force, when the application was made, for the planning scheme area; and
(ii) each of the following, if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—
(A)State planning policies, or parts of State planning policies;
(B)for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision;
(C)for the planning scheme of a local government in a designated region—the region’s regional plan; and
(iii) if the land to which the application relates is designated land—its designation; and
(c)for a concurrence agency—against any applicable concurrence agency code.
(2)Despite subsection (1) a referral agency—
(a)may give the weight it considers appropriate to any laws, planning schemes, policies and codes, of the type mentioned in subsection (1), coming into effect after the application was made, but before the agency’s referral day; but
(b)must disregard any planning scheme for the planning scheme area if the referral agency’s jurisdiction is limited to considering the effect of the building assessment provisions, on building work.”
There is an important difference when one compares this with the requirement in s 3.5.4 “Code assessment” whereby:
“(2)The assessment manager must assess the part of the application only against [plans, codes, policies and material].” (Italics added)
Section 3.5.4 was the provision considered by the Chief Justice in the authority mainly relied on by the applicant, Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning & Women [2006] QPELR 714. The Minister had “called in” a code assessable development application on the basis of it involving a “State interest” (as defined in Schedule 10). It was accepted that in then refusing the application the Minister relied on matters of State interest including, at least, a threatened change to “the very character of the capital city of the State”. That such matters may have justified calling in the application was held not to justify reference to them in the Minister’s assessment. The Chief Justice identified the context as a “tightly described statutory regime” in which s 3.5.4 prescribed “in a limiting way, the only matters which may be taken into account”. There is no “only” or equivalent in s 3.3.15.
There are aspects of the IPA that support or encourage imposition of conditions like the impugned one. Section 3.5.32 “Conditions that cannot be imposed” contains a relevant exception in the second of the proscribed categories. In subsection (1):
“A condition must not–
(a) …
(b)for infrastructure to which Chapter 5 Part 1 applies, require (other than under Chapter 5 Part 1)–
(i)a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
(ii) works to be carried out for the infrastructure;…”
The Chapter 5 provisions in s 5.1.28 and s 5.1.29 are set out above. Section 3.5.32(2) is specific that:
“(2) This section does not stop a condition being imposed that requires a monetary payment, or works to be carried out–
(a) to protect or maintain–
(i)the safety or efficiency of existing or proposed State owned or Stated controlled transport infrastructure;…”
For a convenient statement of the principle that ignoring relevant material or relying on irrelevant material can amount to an error of law and jurisdictional error invalidating a determination, the applicant referred to Craig v State of South Australia (1995) 184 CLR 163 at 179, before going on to detailed reference to Emerald Development. Section 3.5.15 of IPA is asserted to have “prescribed, in a limiting way, the only matters which may be taken into account”. Plainly, a draft PIP and the modelling relied on are not referred to in the section. It was submitted that the only arrangements generated by a local government which may be taken into account are planning schemes “in force”: Although a PIP may have the effect of a planning scheme once adopted, it has no status any earlier. Even the “Coty” provision in s 3.3.15(2)(a) is of no assistance here because the “referral day”, which would appear, by reference to s 3.3.14(1), to be identified by the Development Application’s being referred to the Agency, has long passed without anything relevant “coming into effect”. It is true that, as the written submission notes, “it would have been a simple matter for the drafters of IPA to make appropriate provision…if the drafters had intended the preparatory work involved in the preparation of the PIP [or the draft PIP] to be a relevant consideration”; however, I find myself unable to go along with the basic premise that s 3.5.15 excludes from the matters to which regard may be had anything not expressly listed.
Mr Hinson referred to Hickey Lawyers v Gold Coast City Council [2005] QPELR 579 at [30] – [38] and [51] – [52] in support of a contention that traffic modelling and the likely traffic generation of the proposed development (put at 3,785 vehicles per day, which is unsurprising given the scale of the development and represents, on any view, a substantial generation of traffic likely to use the State-controlled roads) are relevant considerations which could properly be taken into account. This application is different from Hickey Lawyers, in which the court had detailed expert evidence. Here, it is a matter of taking on faith general assertions of Mr Hinson’s deponent as to what work has been done and the quality or reliability of it. I accept that those aspects are immaterial because this is not a merits appeal by way of hearing anew. The court is here concerned with a legal issue of the asserted invalidity of what the Department has done as to which a declaration of invalidity is sought. As Mr Hinson put it, “the sole questions are whether DMR had power to require the imposition of the condition, and if so whether the power was lawfully exercised.” Whether the power was exercised in the way the court might exercise it is another question entirely, perhaps one for the future.
Mr Hinson in his outline dealt with some other arguments contained in the grounds set out in the originating application which were not extensively pursued at the hearing, such as that the payment of the contribution in accordance with a PIP is unlawful in the absence of an Infrastructure Charges Notice, that failing both a PIP and such a notice issued under it, there was no power to require a contribution by way of a condition and that “the First Respondent is not empowered to require the payment of a contribution at all.” Although the applicant’s written submissions do not focus on this aspect, Mr Hughes (Transcript p. 29) raised it in submitting that the entitlement of a State infrastructure provider under s 5.1.28 to impose a condition may be exercised only under Chapter 5: “That is, you’ve given an Infrastructure Charges Notice and you pursue the collection of the revenue in that regard.” The absence of an Infrastructure Charges Notice is presumably pointed to as confirmation that Chapter 5 of IPA was not being invoked. The appellant’s argument is that Chapter 5, which may give the first respondent or his Department powers as a State infrastructure provider, has nothing to do with its powers as a concurrence agency under s 3.3.18, certainly cannot expand them.
Section 5.1.1 defines the purpose of Part 1 of Chapter 5:
“The purpose of this part is to—
(a)seek to integrate land use and infrastructure plans; and
(b)establish an infrastructure planning benchmark as a basis for an infrastructure funding framework; and
(c)establish an infrastructure funding framework that is equitable and accountable; and
(d)integrate State infrastructure providers into the framework.”
While one might argue that those purposes have nothing to do with the setting of conditions under Chapter 3, Part 1 is replete with references to conditions that might be imposed by local governments (s 5.1.2, s 5.1.24, s 5.1.25) or State infrastructure providers (s 5.1.28 – s 5.1.30). In my opinion the natural understanding is that the Chapter 5 provisions are relevant in determining what conditions are permissible under Chapter 3. I take s 3.5.32(1)(b) as a specific indication (relevantly strengthened, so far as the first respondent’s position is concerned, by subsection (2)) that the Chapter 5 provisions confirm, arguably enhance (if necessary), certainly do not reduce or confine powers to set conditions conferred in Chapter 3. If the argument be that Chapter 5 applies only where the State infrastructure provider is the assessment manager (setting development conditions in that capacity) rather than a concurrence agency (in which event the condition setting powers are more limited), I reject that notion. It makes little sense.
It was an aspect of the applicant’s case that a concurrence agency is not intended to have wider powers than a local government acting as assessment manager. Thus, at p. 18 (again at 31) s 3.5.6 is referred to as establishing that the Council may only give weight to a policy or law not in effect at the time a development application is lodged if it comes into effect before the date of the decision stage (which for present purposes has arrived). The first respondent’s condition is said to represent “an attempt for the referral agency to gain a contribution pursuant to a PIP that simply doesn’t exist…to use the power for an improper purpose”. That the Council could not impose a similar condition does not mean that a concurrence agency is similarly restricted. Where a concurrence agency occupies a superior position in the hierarchy as an arm of the State government, that may be seen as a justification, if any were necessary, for the IPA allowing it greater scope (within the limits of its remit) as to what may be referred to in a s 3.3.15 assessment and setting of conditions. Mr Hinson reminded me (Transcript p. 45) that under s 6.1.31 it is a condition of a local government imposing an infrastructure contribution that there is a policy providing for it, a requirement not replicated here. Hervey Bay City Council v BGM Projects Pty Ltd [2007] QCA 298 (which considered that section) is authority against reading into IPA restrictions upon what decision-makers may take into account which are not expressly set out or necessarily implied.
In the absence of a policy there is no way to assess a development application open to a concurrence agency, other than on a case-by-case basis, looking at traffic likely to be generated by the development and the impact of it. I agree with Mr Hinson’s arguments at 44-45, apropos such investigations:
“…when 5.1.28 and 5.1.29 talk about conditions, DMR’s only power to impose a condition is in its capacity as concurrence agency for development application. 5.1.28 and 5.1.29 don’t purport to be some independent source of power to just go around willy-nilly and hit people up for infrastructure charges.
…
if one of the responses that DMR can make under 3.3.18 is the imposition of a condition requiring a monetary contribution for… protecting or maintaining the safety or efficiency of the State controlled road network… isn’t that one of the things, I rhetorically ask, that they must do when, under 3.3.15, they’re required to assess the application …
… to make one of the decisional choices in 3.3.18?
3.3.15 is silent as to what the mode of assessment is to be but it must involve, as a bare minimum, looking at the facts and circumstances of the application having regard to and knowledge of what the end process is, a decision, … when 3.3.15 talks about assessment against the laws that are administered by the referral agency, that expression “the laws that are administered by” picks up 5.1.28, 5.1.29, 3.5.30 and 3.5.32 as explained by The Chief Justice in Emerald Developments.
We know from Mr Upton’s affidavit how that exercise was done…”
That last observation rather overstates things. There is nothing corresponding with the evidence before the court in Hickey Lawyers. Rather, Mr Upton refers to what are said to be the results of work of people who may be presumed to know what they are doing in preparation for the Council’s PIP which may eventuate in the future. A lot is being taken on faith. However, in the end, I think that Mr Hinson is right, that the present application is about whether there is something wrong with the impugned condition in a “power sense”, rather than in a “merits sense”. Conditions sought by the Department may be challenged in a merits appeal, whether they relate to monetary contributions (Nielson v Gold Coast City Council & Anor [2005] QPELR 452) or not (Keith LNoble & Sons Pty Ltd v Caboolture Shire Council & Anor [2009] QPEC 049).
The applicant fails to persuade me that there is any factor vitiating the condition by way of excess of power or jurisdiction, pursuit of some improper purpose, consideration of irrelevant factors or the like to justify granting the relief sought.
Mr Hughes (Transcript p. 26) was correct to observe that his client has no idea what the figures are underlying the Department’s calculations or those that will go into the PIP. As indicated, for the moment, that is beside the point. The onus is on his client to demonstrate that there is something wrong, rather than on the first respondent to demonstrate the contrary. The applicant’s argument that she succeeds unless the first respondent can demonstrate a head of power in s 3.3.18 (s 3.5.32 and s 5.1.28 being said to be irrelevant here) fails. I do not accept the general approach that the concurrence agency is limited in the assessment task for the purposes of setting conditions (if the development proposal is regarded as fit to go ahead) by being restricted in the same way as the Council may be in its assessment task as assessment manager. This was a proposition fairly central to Mr Hughes’ argument. As Mr Hinson pointed out (Transcript p. 37), neither s 3.3.18 (nor anything else that could be pointed to) constrains a concurrence agency’s decision in the way that s 3.5.11 constrains an assessment manager, subsection (2) expressly requiring that the decision be based on assessments made under Division 2, that is s 3.5.4 and s 3.5.5; an implicit requirement in s 3.3.18 by reference to the s 3.3.15 assessment was acknowledged. However, there is nothing controlling the concurrence agency to correspond with the controls upon an assessment manager in s 3.5.13 and s 3.5.14.
Mr Hughes urged the court not to succumb to sympathy for the first respondent or any concern that, if she succeeded, his client might be getting away with something, a theoretical concern that might be thought heightened by his emphasis on s 3.3.17 which precludes the first respondent’s “having another go”. (It was accepted that circumstances might arise offering Mr Hinson’s client a second chance, such as a change to the development proposal.) It was said that the Department was on notice from the year 2000 that Maroochy Plan envisaged development of the site exactly along the lines now proposed, so that the Department had plenty of time to take steps to lay a foundation for exacting contributions from the developer, perhaps by formulating “policies” of its own (none such being relied upon). While the Department may well have enjoyed a fairly complete knowledge of what was to go into Maroochy Plan 2000, it strikes me as rather unrealistic to expect the Department to take steps to arm itself to recover appropriate contributions from future development under the many planning schemes covering the State, or face the consequence said to ensue here, of missing out.
Mr Hinson took issue with any notion that the authorities had “gone to sleep” after adoption of Maroochy Plan 2000, suggesting that in the use of the model jointly owned by the respondent, “one would be very surprised if the land, the future land use planning data that went into the model does not reflect that this land and adjoining land is in a master planned area under Maroochy Plan” (Transcript p. 52).
As things have happened, the situation is untidy. New ways of State and local authorities charging for infrastructure required by development are becoming more familiar to us. It is common practice to defer payment, where monetary contributions are required, and, indeed, calculation of the amount of contributions (to allow for the effects of inflation and other factors that are relevant) to be deferred until the time of payment. At this stage, it is a reasonable approach, in my opinion, to assume that a PIP, if one is in place at the relevant date, would indicate appropriate contributions. There are avenues of challenge if, when the time comes, it is thought not to do so.
Against the possibility that there will be no PIP at the relevant time, default contribution arrangements are specified, which are subject to challenge as to the amount of them.
It is convenient to note the terms of the applicant’s attack on the impugned condition for uncertainty and unreasonableness:
“ THE CONDITION IS INVALID AS IT IS NOT A PROPER EXERCISE OF THE POWER UNDER SECTION 3.3.18 OF IPA: UNCERTAINTY
39.It is well established that a condition, to be lawful, must be both certain and final[17] (subject to the qualification that relatively minor aspects of a development can be postponed for final determination at a later stage[18]).
[17]See Mison v. Randwick Municipal Council (1991) 73 LGRA 349: cited in McBain v. Clifton Shire Council & Ors (1995-6) 89 LGERA 372.
[18]It is submitted that in the context of the DMR’s imposed conditions, the amount of this contribution could hardly be regarded as something minor or ancillary: the contribution appears as an important part of the DMR’s purported exercise of its power which is under scrutiny in these proceedings.
40.As is obvious, concepts of finality and certainty are related. As the authorities indicate, certainty includes both “certainty of expressions and certainty in operation”.[19] A condition can lack finality and certainty for grammatical reasons or operational reasons (ie it is either uncertain in its construction, or its operation is uncertain).
[19]Television Corp Ltd v. Commonwealth (1963) 109 CLR 59
41.It is well established that a condition which does not reveal or prescribe a certain objective standard is invalid. The condition is invalid not only because the ultimate requirement or obligation lacks precision, but because the power purported to be exercised to impose the condition has not been pursued or properly exercised.
42.The classic statement of principle in this regard is that of Dixon J in King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184 at 197 where his Honour said in the context of a price fixing order made by the Commissioner of Prices under the National Security (Prices) Regulation[20]:
[20]See also Environmental Protection Agency v Genkem Pty Ltd (1993) 79 LGERA 47 at 60 (Bignold J), which was upheld by the NSWCA in Genkem Pty Ltd v Environmental Protection Agency (1994) 35 NSWLR 33: cited in Mt Marrow v. Moreton Shire Council (1994-5) 85 LGRA 408 at 411.
“It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised.” (emphasis added)
43.It is submitted by the applicant that the impugned condition fails to provide certainty in terms of its operation. The condition provides the beneficiary of an approval with two possible scenarios:
(a)the possibility that relevant contribution is to be paid in accordance with a Council PIP which is yet to be finalised; yet to be made available to the public; impossible to scrutinise; and yet to have the force of law; or as an alternative
(b)the possibility that prior to the coming into force of the Council’s PIP (a time which is presently unknown) the relevant contribution can be calculated by reference to the number of dwellings and attached dwellings multiplied by the prescribed rate per dwelling type – but of course this calculation only applies if and when there is no PIP in force at the relevant time.
44.The terms of the impugned condition are such that the Applicant cannot calculate with certainty the nature of the obligation nor the amount (or likely future amount) of the contribution which has to be paid during the currency of an approval of the staged development proposed: not only is no PIP presently in force, but there is no real indication as to when (if ever) that document will come into existence and enjoy the force of law.
45.The impugned condition fails to prescribe a certain objective standard against which the ultimate contribution payable may be calculated. A condition of this character is invalid.
46.In truth, the purported exercise of the power under section 3.3.18 in this case involves and illegitimate attempt by the referral agency to achieve what it cannot at the present time lawfully achieve, namely securing a contribution to state infrastructure in the absence of an appropriate policy or planning scheme provision and in the absence of an appropriate PIP. This proposition clearly illustrates the improper nature of the purported exercise of the power of the referral agency in issuing its concurrence agency response under section 3.3.18 including the impugned condition.
UNREASONABLENESS
47.Further, in terms of paragraph 11 of the Originating Application (the “Wednesbury unreasonableness point”) the applicant submits that, even if she is wrong with respect to the allegations that the DMR has acted ultra vires, and even if there is some residual power on the part of the DMR to seek a general monetary contribution towards external “roadworks”, no reasonable concurrence agency could seek to collect sums of money in the absence of some properly considered and formally adopted policy dealing, in a transparent and reviewable way, with at the very least:
(a)the extent, nature and timing of the works which require funding;
(b)the cost of such works;
(c)the extent to which future developers should be required to contribute to that funding; and therefore
(d)the extent to which any particular developer should be required to contribute;
(e)a proper and reasonable amount to require from any given developer.
That formally adopted policy or document has not yet come into existence.
This is a clear use of “Wednesbury” unreasonableness.
CONCLUSION
48.The impugned condition is invalid and ought be struck from the First Respondent’s concurrence agency response dated 16 October 2008.”
The uncertainty/lack of finality issue is raised fairly often, but rarely successfully. I encountered it fairly recently in Lucy v OCC Holdings Pty Ltd [2008] QPELR 398; see [17] ff. In my opinion, there is no problem about a condition which refers to another document, even a document not yet in existence, where a fallback means of calculating the contribution is provided, as here – even one incorporating a mechanism to allow for future events, such as inflation. Making obligations dependant on a “future contract” or “future document” may well lead to unenforceability for lack of finality or definiteness, “vagueness” as in Farmer v Honan (1919) 26 CLR 183; see 192-3 and 197. The potential problem is avoided by the provision the impugned condition makes, should there be no PIP.
Wednesbury unreasonableness was identified and acted upon in Parmac Property Pty Ltd v Redland City Council [2008] QPEC 120. It cannot be identified here. For all the criticism of the lack of data available to be scrutinized, much of it emanating from me, it is hardly tenable to identify unreasonableness in the approach of Mr Upton, who stands as the decision maker. As Mr Hinson told the court (Transcript p. 48 ff):
“He says the model incorporates a connected network of local Government and State-controlled roads serving the whole Sunshine Coast Region. It is divided into traffic analysis zones, land use planning data is determined to drive travel characteristics and travel demands for each of those zones. Those zones are grouped into sectors or districts for assessment of contributions. Additional infrastructure to serve that future development is justified.
…
He is saying there was a computer model which exists. The databases relating to it are the property of the Sunshine Council. The model is jointly developed and owned by the Department and the Council. The traffic from this development was put through the model. The model does these things and it estimates the cost of additional roads to service the future population and future development…”
For present purposes, I think it is right to accept the submission (Transcript p. 52) that the applicant’s submissions “don’t deal at all with what the notion of an assessment implies … the graphic modelling is simply a tool, an assessment tool to assess the impacts”. It was the modelling that was used, in his submission, not the draft PIP. Mr Hinson submitted there was no indication that the Department had regard to the draft PIP in devising the condition. In the end, I think that is right. All the applicant has to go on is a collection of references to a PIP, two in the condition itself, the other in the letter from the first respondent’s delegate of 5 December 2008 explaining the default contribution amounts as “based on traffic modelling of future land use and road network planning … (that the second respondent) is currently using to formulate its … PIP.”
Mr Skoien, for the second respondent indicated (Transcript p. 33) that he was not making any submission about the concurrence agency’s response, which he accepted the Council was obliged to follow. He told the court that if the impugned condition is deemed to be ultra vires, “it may well be that the (development) application has other considerations that apply to it.” He confirmed that the application is in the decision stage of IDAS and that the Council has not yet decided it or formed its own view about whether or not it accorded entirely with the planning scheme or what might be relevant conditions. Those conditions may well include contributions for road infrastructure in respect of the development’s demands upon the local road network – as distinct from the State-controlled roads. It was said that the Council has a policy about transport infrastructure contributions, which will turn out to support such a condition (Transcript p. 52).
The application will be dismissed.
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