Douglas Construction & Engineering Pty Ltd v Logan City Council - [2023] QPEC 28

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:

Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28

PARTIES:

DOUGLAS CONSTRUCTION & ENGINEERING PTY LTD (ACN 082 412 011)
(Appellant)

v

LOGAN CITY COUNCIL
(Respondent)

FILE NO/S:

1195 of 2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2022

JUDGE:

Kefford DCJ

ORDER:

THE APPEAL IS DISMISSED

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST INFRASTRUCTURE CHARGES NOTICE – where the appellant was issued an infrastructure charges notice under s 119 of the Planning Act 2016 – where the appellant appealed against the infrastructure charges notice – whether the infrastructure charges notice involved an error relating to the working out of extra demand for section 120 of the Planning Act 2016 – whether the making of a material change of use on the subject land for a warehouse and ancillary office is “other development” – whether the warehouse and ancillary office use can lawfully start without the need for a “further development permit” – whether the extra demand equals the adopted charge such that the levied charge should be nil

LEGISLATION:

Planning Act 2016 (Qld), ss 112, 113, 114, 119, 120, 121, 122, 229, 246, 265, sch 1, sch 2

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47

Planning Regulation 2017 (Qld) ss 52, 70, 71, sch 16, sch 22, sch 23

CASES:

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, considered

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, considered

Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, considered

Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020] QPEC 61; [2021] QPELR 1085, approved

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

COUNSEL:

K Wylie for the Appellant
M Batty and J Bowness for the Respondent

SOLICITORS:

Mullins Lawyers for the Appellant
Minter Ellison Gold Coast for the Respondent

TABLE OF CONTENTS

Introduction

What is the nature of the appeal?

What are the issues that require determination?

What is the applicable legislative regime with respect to infrastructure charges?

What facts are not in dispute?

Is the making of a material change of use of the subject land for a warehouse and ancillary office “other development” on the subject land?

Can the warehouse and ancillary office use lawfully start without the need for a “further development permit”?

Should the infrastructure charges notice be set aside and replaced with, or changed to, a decision that the levied charge be nil?

Conclusion

Introduction

On 10 January 2022, a private building certifier gave the Appellant, Douglas Construction & Engineering Pty Ltd, a development permit for building work. The development permit authorised “New Construction of Warehouse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QPEC 28
Decision Date: 16 June 2023

CaseChat Overview and Summary

In the matter of Douglas Construction & Engineering Pty Ltd v Logan City Council, the appellant, Douglas Construction & Engineering Pty Ltd, appealed against an infrastructure charges notice issued under section 119 of the Planning Act 2016. The appellant challenged the notice on the basis of an alleged error in calculating the extra demand for section 120 of the Planning Act 2016, specifically concerning the demand generated by the use of the subject land as a warehouse and ancillary office, which the appellant argued should not have been included in the extra demand calculation. The appellant further argued that the warehouse and ancillary office use could be lawfully carried out without the need for a further development permit.

The central legal issue before the court was whether the infrastructure charges notice contained an error in calculating the extra demand as per section 120 of the Planning Act 2016. The appellant contended that the demand generated by the use of the subject land as a warehouse and ancillary office should not have been included in the extra demand calculation as it could be lawfully carried out without the need for a further development permit. The respondent, Logan City Council, disputed these contentions, asserting that the warehouse and ancillary office use constituted the same development for which the charge was levied and that a further development permit was necessary for the new use. The court needed to determine whether the extra demand calculation was erroneous and if the appellant was entitled to a reduction or nil charge.

The court found that the appellant's appeal was misconceived. It held that the use of the subject land as a warehouse and ancillary office was not "other development" but rather the same development for which the charge was levied. Additionally, the court ruled that a further development permit was required for the new warehouse and ancillary office use, contrary to the appellant's assertion. Consequently, the court concluded that the extra demand calculation did not involve an error, and the appellant's appeal was dismissed. The court confirmed the infrastructure charges notice, and no further orders were made.

Orders

Orders of the court

THE APPEAL IS DISMISSED

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 47 of the Planning and Environment Court Act 2016 outlines the powers of the Court in the appeal. It states:“47 Appeal Decision(1)In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against–(a) confirm it;(b) change it;(c) set it aside and– (i)make a decision replacing it; or (ii)return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.(2)The appeal decision may also include other orders, declarations or directions the P&E Court considers appropriate.(3)The appeal decision (other than one to confirm the decision appealed against or to set it aside and return the matter) is taken, for the Planning Act (other than chapter 6), to have been made by the entity that made the decision appealed against.” As I observed in Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman),[15] in exercising the powers under s 47 of the Planning and Environment Court Act 2016, the Court must be careful not to exceed the express limitation on jurisdiction found in the enabling Act. [15][2020] QPEC 61; [2021] QPELR 1085, 1104 [74].What are the issues that require determination? The Appellant appeals against the infrastructure charges notice on one ground only, namely:“13.The Charges Notice involved an error relating to the working out of extra demand for Section 120 of the Planning Act 2016 (Qld), the particulars of which are:Particulars(a)the Charges Notice was given as a result of the Development Approval being given;(b)the Development Approval was a development approval for building work;(c)the levied charge the subject of the Charges Notice was calculated by reference to the extra demand placed on trunk infrastructure that the building works on the Subject Land would generate;(d)other development on the Subject Land that may be lawfully carried out without the need for a further development permit is the use of the Subject Land as a warehouse and ancillary office;(e)when working out extra demand, the demand on trunk infrastructure generated by other development on the premises should not be included if the development may be lawfully carried out without the need for a further development permit, in accordance with 120(2)(c) of the Planning Act 2016 (Qld);(f)in calculating the extra demand, the Respondent has failed to properly apply section 120(2)(c) of the Planning Act 2016 (Qld), as it has failed to not include the demand on trunk infrastructure generated by the use of the Subject Land as a warehouse and ancillary office, being other development on the Subject Land that may be lawfully carried out without the need for a further development permit.”[16][16]Appeal Book p 4 [13]. The Council denies that the infrastructure charges notice involves an error. It disputes the particulars provided in paragraphs 13(d) and (f) of the Notice of Appeal. The Council contends that, for the purpose of s 120 of the Planning Act 2016 and ss 3.6, 6.1 and 6.2(a) of the Logan Charges Resolution (No. 9) 2021:(a)the warehouse and ancillary office are not “other development on the premises” but is the same development for which the charge was levied; (b)even if the material change of use is “other development”, the start of the new warehouse and ancillary office may not be lawfully carried out without the need for a further development permit for building work and operational work; and(c)the infrastructure charges notice does not involve an error relating to the working out of extra demand for s 120 of the Planning Act 2016.[17] [17]Appeal Book pp 9-10 [12]-[14].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28
PARTIES:	DOUGLAS CONSTRUCTION & ENGINEERING PTY LTD (ACN 082 412 011) (Appellant) v LOGAN CITY COUNCIL (Respondent)
FILE NO/S:	1195 of 2022
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	16 June 2023
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2022
JUDGE:	Kefford DCJ
ORDER:	THE APPEAL IS DISMISSED
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – APPEAL AGAINST INFRASTRUCTURE CHARGES NOTICE – where the appellant was issued an infrastructure charges notice under s 119 of the Planning Act 2016 – where the appellant appealed against the infrastructure charges notice – whether the infrastructure charges notice involved an error relating to the working out of extra demand for section 120 of the Planning Act 2016 – whether the making of a material change of use on the subject land for a warehouse and ancillary office is “other development” – whether the warehouse and ancillary office use can lawfully start without the need for a “further development permit” – whether the extra demand equals the adopted charge such that the levied charge should be nil
LEGISLATION:	Planning Act 2016 (Qld), ss 112, 113, 114, 119, 120, 121, 122, 229, 246, 265, sch 1, sch 2 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 47 Planning Regulation 2017 (Qld) ss 52, 70, 71, sch 16, sch 22, sch 23
CASES:	Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124, considered Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, considered Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, considered Southern Downs Regional Council v Homeworthy Inspection Services (as Agents for Robert and Cheryl Newman) [2020] QPEC 61; [2021] QPELR 1085, approved SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied
COUNSEL:	K Wylie for the Appellant M Batty and J Bowness for the Respondent
SOLICITORS:	Mullins Lawyers for the Appellant Minter Ellison Gold Coast for the Respondent