Hickey Lawyers (a firm) v Gold Coast City Council - [2005] QPEC 22

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hickey Lawyers (a firm) & Ors v Gold Coast City Council [2005] QPEC 022

PARTIES:

HICKEY LAWYERS (a firm), NINAFORD PTY LTD and FRAMWELGATE INVESTMENTS LTD
Appellants
v
GOLD COAST CITY COUNCIL
Respondent

FILE NO:

502 of 2004

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

8 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24 February 2005

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Appeal by developers against conditions of development approval – code-assessable application for 34 storey mixed residential and commercial building – monetary contributions required for recreation facilities network (parks) and transport network, each under a “planning scheme policy” about infrastructure - neither policy asserted to be invalid, but methodology challenged on bases district planning units, local planning units and/or “catchments” were inappropriately selected, existing infrastructure was wrongly charged for, etc – whether a condition imposed under s 6.1.31(2)(c) must also be tested under s 3.5.30 – whether condition relevant to and not an unreasonable imposition on the development

Integrated Planning Act 1997 s 3.5.30, s 6.1.20,
s 6.1.31(2)(c)

Cases cited:
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 53 ALR 632
Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065
Gilbert v Western Australia (1962) 107 CLR 494
Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29
Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167
Heavey Lex No 64 Pty Ltd v Mulgrave Shire Council [1995] QPELR 266,
Jones v Redcliffe City Council [2004] QPELR 275 at [51]
Lloyd v Robinson (1962) 107 CLR 142
Maroochy Shire Council v Wise (1998) 100 LGERA 311
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1997] QPELR 129
Proctor v Brisbane City Council (1993) 81 LGERA 398
Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472; [2004] HCA 63
Wootton v Woongarra Shire Council (1985) 56 LGRA 301

COUNSEL:

Hinson, SC and Everson for Appellants
Gore QC and Fynes-Clinton for Respondent

SOLICITORS:

Hickey Lawyers for Appellants
Corrs Chambers Westgarth for Respondent

The Appellant developers seek to establish the unlawfulness of conditions of approval of their development application which impose infrastructure charges under the Council’s Policy 16 (Policy for Infrastructure – Recreation Facilities Network Developer Contributions) and Policy 19 (Policy for Infrastructure – Transport Network Developer Contributions). The sums demanded are substantial, even when credit is allowed for notional contributions attributed to existing development on the site.

The Appellants’ planning expert, Mr Buckley describes the site and the proposed development as follows:

“The site involving the proposed development subject to appeal is situated at 24-26 Albert Avenue, 89-91 Surf Parade and 23 Victoria Avenue, Broadbeach. The site is formally described as Lots 1-28 and 29 on B83819 and Lot 127 on SP 105470. The site is central to the Broadbeach commercial area being located at the western end of the Broadbeach mall and centrally located to a range of commercial recreational and other complementary accommodation unit developments (see Figure 1).
The proposal is for a 34 storey mixed use development which includes the first four levels for commercial office and non-residential uses which support residential activities, and the balance 30 levels are proposed for apartments of various sizes and configuration.
As indicated, the proposed development would be complementary to a range of developments of a similar height and intensity, this being the heart of Broadbeach.”

Mr Venn’s report adds the details that the site area is 3,328m², it being located “immediately to the north of Broadbeach’s pre-eminent centre, the Oasis Centre, and its monorail connection to Jupiter’s Casino while to the west lies a recent but prominent tourist/residential development, the ‘Phoenician’”. He also offers a helpful summary clarifying the extent of commercial and residential development taken from the report made to the Council’s City Planning Committee of 20 July 2003:

“The proposed development comprises a total of one hundred and eighteen (118) Apartments (21 x 1 bedroom units, 58 x 2 bedroom units, 37 x 3 bedroom units and 2 x 4 bedroom units) with 6,182m² of ‘commercial’ floor space. A total of two hundred and eleven (211) on site car-parking areas located over three (3) levels. The distribution of land uses and floor areas within the proposed development are summarised below:”

It is not necessary to set out the summary material referred to.

The Notice of Appeal is grounded upon s 3.5.30 of the Integrated Planning Act 1997 (IPA). It identifies the Appellants’ application made on 14 November 2003 for a development permit for a material change of use “for and on behalf of the other Appellants” by Hickey Lawyers as a code-assessable application under the planning scheme. It records the Council’s approving the issue of a development permit on 23 July 2004, subject to conditions, of which the following (forming part of Condition 27) should, according to the Appellants, be struck out:

“Infrastructure Charges
27…
Contributions toward Recreational Facilities network Infrastructure shall be paid to Council in accordance with Planning Scheme Policy 16, prior to the endorsement of the plan of survey, the issue of a certification of classification for building works or the carrying out of final plumbing inspection whichever occurs first. The amount of the contribution shall be $620,160.00.
Contributions toward Transport Network Infrastructure shall be paid to Council in accordance with Planning Scheme Policy 19 prior to the endorsement of the plan of survey, the issue of a certification of classification for building works or the carrying out of final plumbing inspection whichever occurs first. The amount of the contribution shall be $874,546.40.”

“Planning scheme policies” and s 3.5.30 of the IPA

The Appellants’ approach is a subtle one. There was no challenge to the validity of the two Policies, nor, as I understand it, to the calculations done in implementing them (subject to some minor issues of measurement). The argument is that when one looks at the application of the Policies to the proposed development, reference to s 3.5.30 of the IPA establishes unlawfulness of the impugned condition(s). The section is:

“3.5.30 Conditions must be relevant or reasonable
(1) A condition must—
(a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b)be reasonably required in respect of the development or use of premises as a consequence of the development.
(2)Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

The words in s 3.5.30(2) italicised above appear elsewhere in the IPA, notably in s 3.5.4(3) and s 3.5.5(2)(e) and (3)(e) where they are followed by “the assessment manager”, and located in Div 2 of Pt 5 of Ch 3 of the IPA, which is introduced by s 3.5.3:

“3.5.3 References in div 2 to codes, planning instruments, laws or policies
In this division (other than section 3.5.6), a reference to a code, planning instrument, law or policy is a reference to a code, planning instrument, law or policy in effect when the application was made.”

There is no definition of “policy” in the IPA. These observations are pertinent to the Appellants’ contention that s 3.5.30(2) establishes the primacy of sub-s(1) over Policy 16 and Policy 19, or, at least, the results of their application in a particular context.

I accept the argument of the Council made at p 297ff of the transcript that the reference to “policies” in s 3.5.30 is to be understood in the same sense as applies in other IPA provisions using the italicised language. It is capable of bringing in a whole range of “policies”, including, for example, Environmental Protection Agency policies, and policies that may not even be committed to writing. The IPA recognises a “planning scheme policy”, and accords it certain potency. (While s 6.1.31(1)(b)(i) envisages infrastructure matters being dealt with by a local planning policy or a planning scheme policy, in para 1.0 Purpose in both Policy 16 and Policy 19 it is made express that the instrument is a “Planning Scheme Policy”.)

Section 2.1.16 is:

“2.1.16 Meaning of planning scheme policy
A planning scheme policy is an instrument that—
(a) supports the local dimension of a planning scheme; and
(b)supports local government actions under this Act for IDAS and for making or amending its planning scheme; and

(c) is made by a local government under this division.”

The meaning of (a) is spelt out in s 2.1.4(2). The following provisions are:
“2.1.17 Area to which planning scheme policy applies
A planning scheme policy may apply to all or only part of a planning scheme area.

2.1.17A Inconsistency between planning instruments
To the extent a planning scheme policy is inconsistent with another planning instrument, the other planning instrument prevails.

2.1.18Adopting planning scheme policies in planning schemes
(1)The only document made by a local government that the local government’s planning scheme may, under the Statutory Instruments Act 1992, section 23, apply, adopt or incorporate, is a planning scheme policy.
(2)A planning scheme policy must not apply, adopt or incorporate another document prepared by the local government.

2.1.19 Process for making or amending planning scheme policies
(1)The process stated in schedule 3 must be followed for making or amending a planning scheme policy.

(2) The process involves 3 stages—
• proposal stage
• consultation stage
• adoption stage

2.1.20 Compliance with sch 3
Despite section 2.1.19, if a planning scheme policy is made or amended in substantial compliance with the process stated in schedule 3, the planning scheme policy or amendment is valid so long as any noncompliance has not—
(a)adversely affected the awareness of the public of the existence and nature of the proposed planning scheme policy or amendment; or
(b)restricted the opportunity of the public under schedule 3 to make properly made submissions on the proposed policy or amendment.

2.1.21 Effects of planning scheme policies
(1)     A planning scheme policy made under this division for a
planning scheme area—
(a)   becomes a policy for the area; and
(b)if the policy states that it replaces an existing policy—replaces the existing policy; and
(c)   has effect on and from—
(i)the day the adoption of the policy is first notified in a newspaper circulating generally in the local government’s area; or
(ii)if a later day for the commencement of the policy is stated in the policy—the later day.

(2)If a planning scheme policy is amended under this division, the amendment has effect on and from—
(a)the day the adoption of the amendment is first notified in a newspaper circulating generally in the local government’s area; or

(b) if a later day for the commencement of the amendment is stated in the amendment—the later day.”

That a planning scheme policy is a statutory instrument is underlined by s 2.1.23(1) which gives a “local planning instrument” the force of law. Under Sch 10, “local planning instrument means a planning scheme, temporary local planning instrument or planning scheme policy”. In my opinion, in s 3.5.30(2), notwithstanding s 2.1.21(1)(a), “policies” does not, as a matter of the proper interpretation of the IPA, refer to a valid planning scheme policy. There are other instances in the Act where “policy” plainly does refer to a planning scheme policy: for example s 6.1.31(2)(c). There is no definition of “policy” in the IPA.

That sub-s(2) of s 3.5.30 does not apply does not carry the implication that sub-s (1) may be ignored. Unfortunately, from the point of view of developers and local governments proceeding with some certainty, it is extremely common for judicial minds to differ about the lawfulness of particular conditions. See, for example Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472; [2004] HCA 63 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, Lloyd v Robinson (1962) 107 CLR 142, Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 53 ALR 632 and, locally, Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29, Proctor v Brisbane City Council (1993) 81 LGERA 398, Maroochy Shire Council v Wise (1998) 100 LGERA 311 (“Wise”) and Wootton v Woongarra Shire Council (1985) 56 LGRA 301.

At p 3 of the transcript, Mr Hinson SC, for the appellants accepted that the $620,000 or so called for under the conditions set by the Council under Policy 16 is “a straight calculation from the policy” and that the appellants’ case was:

“not a direct attack upon the policy, as such. We accept that the Council’s entitled to make a policy if it sees fit. What we complain about is the application of that policy to this development in a way which produces a condition which we contend is unlawful under s 3.5.30.”

(The larger contribution called for under Policy 19 was challenged by an alternative calculation slightly under $250,000 being put forward.)

The exercise thus suggested was successfully pursued by a developer before the Court of Appeal in New South Wales in Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165, which, curiously, was not mentioned in the Appellants’ submissions; Mr Gore QC, for the Council here, made lengthy submissions about it, for the purpose of distinguishing it. The factual background was somewhat analogous to the present, in that the Baulkham Hills Shire Council was requiring monetary contributions “towards the provision of open space and recreation facilities that will be required as a consequence of the development” pursuant to a formal Contributions Plan. The relevant legislation was s 94 of the Environmental Planning and Assessment Act 1979 (NSW) which permitted a planning consent to be made subject to a condition requiring dedication of land free of cost or the payment of monetary contribution where a development would or was likely to require the provision of or increase the demand for public amenities, etc. By sub-s(2) - which has an analogy in our s.3.5.30:

“(2)A condition referred to in subsection (1) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.”

Later sub-sections provided:
“(11)A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B.

(12)A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan.”

Apropos use of formulae, Santow JA with the concurrence of Meagher JA and Young CJ in Eq said at 127:

“It is important to emphasise that in a hypothetical case, extreme unreasonableness could result from, for example, an inflated figure for land cost, or a misstated population figure. The fact that those figures are “generic” should not therefore be reason for immunising them from any consideration of their reasonableness, yet permitting the non-generic, project specific factors to be tested for reasonableness. Such proposition is inherently illogical. It pays but lip-service to the clearly mandated “reasonableness” review under s 94(12).”

At p 178:
“The respondent’s argument is based on giving s 94(11) overriding force, with the consequence that a condition permitted or mandated by a contributions plan cannot be overriddcn by a curial determination that it is unreasonable.”

At p 182:
“The respondent’s argument therefore that the predecessor provisions of s 94(7) and (8) were somehow directed, not merely at the Councils but also at the court, in order to give primacy to the contributions plan, is implausible. This is more especially when the consequence of such an interpretation would be to protect from court challenge systemic Council unreasonableness in imposed conditions, merely because those conditions were mandated or permitted by a contributions plan. One could, for example, hypothesise a contributions plan which projected, quite fallaciously, a huge increase in population from a particular development in order to maximise exactions from the developer. One could envisage conditions requiring an exorbitant contribution that was utterly unreasonable when tested against a realistic population increase from the development, as compared to a fictitious larger one. … [35] I prefer the interpretation that the court on an appeal has a broader discretion than that of Council in amending an unreasonable condition so no longer unreasonable, even if no longer permitted or mandated by the contributions plan. Consistent with the plain words of s 94(12) reference to ‘even if it was determined in accordance with the plan’ contemplates that the result of amending a condition on appeal may well produce an outcome different from the condition mandated or permitted by the plan.”

At p 183:
“It does not follow that where a contributions plan mandates an unreasonable result in terms of conditions, the effect of the court amending or disallowing a condition is to amend the contributions plan itself. That is not the result at all. What it does mean is that until the contributions plan is amended, anyone who challenges such a condition is likely to succeed. It is of course open to a Council to avoid that result by adopting a new and sensible contributions plan.”

Here, the Appellants’ attack on Condition 27 is based not on any equivalent of the New South Wales s 94(12), there is none, but on s 3.5.30. As Mr Hinson again pointed out at p 259:

“We don’t challenge the policy, we don’t, because we rather think that is an impossible task given the absence of any statements or provisions in IPA which require policies to contain mandatory content or to be made having regard to particular matters; the Council has a relatively free hand and you could only challenge the making of such a policy arguably under the Judicial Review Act and given the apparent lack of controls over what goes into a policy that would be a task that would be almost a futility.
We don’t quibble with the contents of the policy to a large extent. … Mr Buckley said a good deal of rigorous work had gone into the Parks and Recreation Policy and that if one wanted to have a infrastructure charges plan that complied with the infrastructure guidelines it looked like a pretty good stab at it, but there was another level of review that the Council had not undertaken and which we ask (the court) to undertake when that policy is relied upon to impose a condition. The question arises is the condition relevant and reasonable in 3.5.30?”

Section 6.1.20 authorised the making of the Policies. The section is:

“6.1.20 Planning scheme policies for infrastructure

(1) This section applies if—
(a)a local government has an IPA planning scheme; and
(b)the local government prepares a planning scheme policy about infrastructure.

(2)The planning scheme policy must specify, for a development application for the reconfiguration of a lot—
(a)the matters that were required to be specified in a local planning policy under section 6.2(6)(b)(i) and (ii) of the repealed Act; and

(b) the monetary contribution to be paid to the local government instead of supplying an area of land for use as a park.
(3)However, if the local government has an infrastructure charges plan, the planning scheme policy must not deal with the same matters as the infrastructure charges plan.
(3A)This section applies despite section 2.1.23.

(4) This section expires on 31 March 2006.”

As a matter of history, the respondent Council went a considerable distance towards regulating relevant matters by infrastructure charges plan (and what it has done apparently complies with relevant guidelines for such plans) but then decided to proceed by way of planning scheme policy. By sub-s (3A) the restrictions applicable to planning scheme policies by reason of s 3.1.23, in particular sub-section (4), do not matter. Also excluded, relevantly, from the point of view of development approval conditions that may be imposed, is s 3.5.32(1)(b) which provides that a condition must not:

“(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; or …”

See s 6.1.31(2)(b).

Chapter 5 Pt 1 deals with infrastructure planning and funding by way of “infrastructure charges”. I take the liberty of including in these Reasons as an appendix a useful “addendum” attached to the respondent Council’s written Outline of Argument. In the event, the Gold Coast City Council has not proceeded in that way. Nor has it pursued the possibility of an infrastructure agreement with the Appellants, the terms of which might have compromised its ability to impose a relevant condition. Section 6.1.31 of the IPA is

“6.1.31 Conditions about infrastructure for applications
(1) Subsection (2) applies if—
(a)a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and

(b) the local government has—
(i)a local planning policy about infrastructure or a planning scheme policy about infrastructure; or
(ii)a provision, that was included before the commencement of this section, in its planning scheme about monetary contributions for specified infrastructure.

(2)   For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision—
(a)    chapter 5, part 1 does not apply; and
(b)   section 3.5.32(1)(b) does not apply; and
(c)the local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) under a policy or provision mentioned in subsection (1)(b).

(3) However—
(a)if a condition imposed under subsection (2)(c) is inconsistent with an infrastructure agreement for supplying the infrastructure, to the extent of the inconsistency, the agreement prevails; or
(b)if the application is being decided under an IPA planning scheme, subsection (2) applies only until—
(i) 31 March 2006; or
(ii)if the Minister, by gazette notice, nominates a later day for a particular planning scheme—the later day.

(4)   Subsection (5) applies if a local government is deciding a development application only under a transitional planning scheme.
(5)   For deciding the application and to the extent the application is about the aspects of the application to be decided by the local government—
(a)    section 3.5.32(1)(b) does not apply; and
(b)   chapter 5, part 1, division 7 does not apply.”

Thanks to the Integrated Planning and other Legislation Amendment Act 2003 (IPOLA), from 16 October 2003 there have been important changes. Before that date, sub-s (2)(c) provided that:

“The local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) as if the repealed Act had not been repealed.”

- a reference to the Local Government (Planning and Environment) Act 1990 (P&E Act).

The P&E Act permitted conditions requiring monetary contributions in respect of water supply and sewerage works (s 6.2) and parks (s 5.6). The Council relied on a relevant explanatory note set out in the Red Statutes 2003 Vol 2 at 1770:

“Amendment of s 6.1.31 (Conditions about infrastructure for applications)
Clause 30 amends subsection (2)(c) to clarify that the ability to impose such conditions on development is not limited to the types of development, types of development application, or infrastructure networks for which conditions could be imposed under the repealed Act. This means a properly prepared local planning policy under a transitional planning scheme, or a planning scheme policy under an IPA planning scheme, could allow a local government to impose conditions on types of development (e.g. building or works), development applications (code assessable material change of uses) and infrastructure that was not chargeable (transport and drainage) under the repealed Act.”

The objectives of the legislation underlying IPOLA were stated in the explanatory notes at 1716:

“The objectives of this Bill are to amend the operation of aspects of the Integrated Planning Act 1997 (IPA), in particular –

·       existing use provisions – to simplify and clarify;
·      several provisions for planning schemes and planning           scheme policies – to improve legibility and assist with implementing IPA planning schemes;
·       procedures for designation of land for community    infrastructure;
·       infrastructure planning and funding mechanisms;
·       several provisions of the Integrated Development     Assessment System (IDAS), to address deficiencies and     improve legibility; and
·       transitional arrangements in chapter 6 of the IPA – to          improve their clarity and operation.”

The importance of infrastructure funding and planning scheme policies relating thereto is clear.

I have thought it might be instructive and helpful to set out, by way of broad historical summary, what Mr Venn says in his para 3.1 Philosophy of Infrastructure Charges (conscious that it contains some argumentative material):

“3.1.1An infrastructure charging regime for the equitable provision of services on a ‘user pays’ basis is not a new concept. That found in the Queensland planning system today is an evolution of that initiated in the 1980’s when the planning legislation of the time first permitted the levying of headworks charges for essential services. Under the Local Government (Planning and Environment) Act (LGPEA) infrastructure charging on a ‘user pays’ basis was limited to water supply and sewerage. Water supply and sewerage headworks policies (local planning policies) under that Act reflected this approach. Contributions for parks under that Act were based on a simple proportion approach – a fixed proportion of the land being developed, or monetary equivalent.

3.1.2Originally, headworks contributions for water supply and sewerage were calculated to represent service catchments and levied on a per hectare basis. Water and sewerage service areas would be derived separately with bounds governed by physical and logistical circumstances such as gravity sewerage catchments or elevation of water reservoir or capacity of existing system before that would require augmentation at various thresholds. The costs of such capacity, given that certain residential densities were permitted by the Planning Scheme, would then be divided by the area serviced.

3.1.3In the case of park contributions, levies were originally imposed on the basis either of a contribution of 10% of the land to be subdivided or, in the case of small lots, a monetary amount for each additional residential allotment. There was no transparency as to how these monetary amounts were derived except a presumption that it compared to the cost of purchasing land within a particular radius of the site and hence were loosely based on current market price.

3.1.4As an example using the subject land, it is known that the Unimproved Capital Value of the combined land parcels was $9.7M in June 2003. Were a contribution to be required equating to 10%, that contribution would be $970,000.

3.1.5Over time, infrastructure charging for water and sewerage moved from this simple per hectare basis, and generally only for urban residential purposes, to a more refined approach by which different uses such as urban and rural residential subdivision, dwelling unit construction and, more latterly commercial and industrial development, were made subject to contribution conditions and were charged at different rates based on the different calculated demand from the different uses.

3.1.6However, prior to the IPA, there was no change in the approach to park contributions because that approach was fixed by legislation, at least for subdivision approvals (section 5.6 of the LGPEA). Where a land contribution was deemed appropriate, the land had to be of “fair and average quality” – not just that portion that was unusable owing to flood, steepness, acutely angled or possessed other poor attributes. As a result, it was frequently the case that land contributed was considerably in excess of the 10%.

3.1.7The ‘Infrastructure Planning and Funding’ provisions of the IPA (part 1 of Chapter 5) are intended to apply an equitably calculated system to new development and re-development in six different categories of work for ‘trunk infrastructure’ – ‘headwork charges’ now being known under the IPA as ‘trunk infrastructure charges’. All public park and community land is considered to be ‘trunk infrastructure’. The Priority Infrastructure Plan, and Infrastructure Charges Schedule which forms part of it, are designed around the principle of identifying catchments, appropriate locations for particular elements, the cost of that provision and the distribution of those costs across the spectrum of future user profiles – in a not dissimilar way to that in which the water supply and sewerage headworks charges were derived. Whereas previous park contribution policies were seen as being somewhat arbitrary, under this regime, there is a realistic nexus between need, demand and provision, and the regime is based on closer analysis of the parks infrastructure network.

3.1.8Therefore, while Planning Policy 16 adopts a much more sophisticated approach to park contributions than did section 5.6 of the LGPEA (and associated local planning policies about monetary contributions in lieu of land), the approach taken is consistent with current thinking about the way in which park contributions should be determined. In terms of the principles and methodology applied, it reflects an interim adoption of the approach that Councils will be both authorised and required to take once they move past the current transitional phase to IPA infrastructure charging under Chapter 5, Part 1.”

At p 238 ff of the Transcript, in his closing address, Mr Gore went through a similar historical exercise, focussing on local decisions at appellate level against the changing legislative background, in particular Proctor and Wise and on the High Court decision. (More of the same, at a humbler level, may be found in Evans HarchPty Ltd v Brisbane City Council [2004] QPEC 065 at [11]ff.)

At what date is relevant “law” identified?

Dealing with the “assessment process” for development applications, Ch 3 Pt 5 Div 2 identifies matters to which regard may be had for various kinds of assessment – Code Assessment (3.5.4), Impact Assessment (3.5.5) and Assessment for s 3.1.6 Preliminary Approvals (3.5.5A). Section 3.5.3 enacts that a reference to a code, planning instrument, law or policy is a reference to something in effect “when the application was made”. Section 3.5.6 (2) enacts the “Coty” principle, permitting such weight as may be appropriate to be given to a code, planning instrument, law or policy coming into effect after the making of the application, but before the decision stage starts. In respect of a planning scheme policy about infrastructure, however, s 6.1.31(1)(a) and (b)(i), read literally, relate to the time when a local government is making a decision. Sub-section (2)(c) authorises imposition of a condition on the development approval under such a policy. In principle, then, both Policy 16 and Policy 19, although adopted subsequent to the making of the development application, may be turned to as the source of a development approval condition.

General description of the relevant planning scheme policies

I agree with Mr Gore that the decision to make a planning scheme policy, and the associated decisions about its scope, content and operation are, subject to the prescribed requirements of s 6.1.20, matters for decision by the Council. Its decision is not subject to a merits appeal or review by this court (setting aside the possibility of proceedings for some declaratory relief, not encountered here). In sum, “there is no issue in this appeal about the lawfulness of Policies 16 and 19”. That the IPA permits the charging of contributions against developers by conditions in respect of the subject matter of the Policies, recreation facilities (= parks) and transport, is indisputable. As to the former, the Policy commences:

“1.0 PURPOSE
The purpose of this policy is to present the design guidelines and developer contributions for the Gold Coast City Council Recreation Facilities Network. The contributions will only be used to help fund the provision of the infrastructure needed to serve new development and redevelopment.
…
The provisions of this policy shall apply to every development application for reconfiguring of a lot or material change of use that results in an increase in residential intensity, which is situated in a part of the City and which, in the opinion of Council, may impact the existing standards of service to the Recreation Facilities Network immediately or in the future.
The Policy is supported by the draft Recreation, Sport and Open Space Plan 2003.
2.0 PHILOSOPHY
…
Recreation facilities contribution can take the form of
·     An area of land provided for use as a park;
·     A monetary contribution;
·     Works …
·     Any combination …

…
An applicant shall pay relevant and reasonable contributions towards the capital cost of the provision of recreation facilities to meet the demand placed on the system by the development.
Contributions are based on the methodology outlined in the subsequent sections of the Policy.”

And as to the latter, Policy 19 commences:

“1.0 PURPOSE
The purpose of this Policy is to present the developer contributions scheme for the transport network servicing City of Gold Coast. The contributions will be used to help fund only the provision of the new and/or improved infrastructure needed to serve new development and redevelopment.
…
The provisions of this Policy shall apply to every development application for development which is situated in a part of the City and which, in the opinion of Council, may be connected to the transport network immediately or in the future.
The Policy is supported by the following documents:
Veitch Lister Report “Roads Infrastructure Charging for the Gold Coast – August Scheme 2003” which is available under separate cover.
2.0 PHILOSOPHY
An applicant shall pay relevant and reasonable contributions towards the cost of the provision of Transport infrastructure to meet the demand placed on the network by the development.
Contributions are based on the methodology outlined …
…
Such contributions are held by Council and used for the administration, planning and construction of works or the payment of loans to provide a reliable transport network as outlined in this Policy. The contributions relate only to the use of the Council transport infrastructure and will not be used for the development of State transport infrastructure.”

By way of informing the reader about the ways in which the Policies were constructed, it will be sufficient to set out the summaries provided by the Council in Mr Gore’s outline of argument, without necessarily endorsing them as accurate totally; they are supported by the evidence:

“11.For PSP16, the methodology adopted by the Council to achieve that outcome involves, in essence:-
(a)identifying areas within the City as catchments to be serviced by particular networks of park and recreation infrastructure items (with the whole of the City being identified for specified facilities of City-wide significance);
(b)identifying the anticipated “ultimate” population within these defined areas at a nominated date – in this case, 2012;
(c)identifying, by reference to desired standards of service, the components and estimated costs of the infrastructure network which will be required to service the ultimate population, this network including both existing infrastructure and infrastructure to be provided in the future;
(d)after discounting both those figures to a present-day value, dividing the total estimated cost by the total ultimate population to give a present-day figure for the cost per person to provide the required infrastructure to each relevant catchment;
(e)requiring developers to contribute that cost multiplied by the number of persons expected by development of their sites.

12.For PSP19, the methodology adopted by the Council to achieve that outcome involves, in essence:-
(a)identifying that the whole of the City is served by a connected network of local government roads;
(b)identifying the anticipated “ultimate” population which will use the road network;
(c)identifying, by reference to a desired standard of service (essentially, maintenance of the existing level of service despite the population growth), the components and estimated costs of the infrastructure network which will be required to service the ultimate population, this network including both existing infrastructure and infrastructure to be provided in the future.
(d)dividing the City into sectors for each of which there is a distinct level of “consumption” of the overall road network by reason of factors such as population density and distance from major activity centres;
(e)apportioning the overall use of the network among those sectors by reference to the level of vehicle trip generation (vehicle trips per day) within each sector, and apportioning the overall cost of the network on the same basis;
(f)dividing the cost apportioned to each sector by the number of vehicle “trip ends” within the sector, to produce a figure representing the proportion of the cost of the network “consumed” by each recurring vehicle trip within that sector;
(g)requiring developers to contribute that cost multiplied by the number of vehicle trips per day generated by their development.”

Mention might be made of the detailed work of Ms Harvey and Mr Wood in the formulation of Policy 16, and of their impressive evidence in defence of it to which it is unnecessary to refer in any detail. Mr Buckley’s criticism of the relevant part of Condition 27 and the associated criticisms of Policy 16 itself are dealt with elsewhere, along with Mr Venn’s response to them.

The considerations respecting the two planning policies overlap to a great extent, that is, they apply to both. One of the Appellants’ objections to the methodology underlying the Policies was that a good deal of the infrastructure already in place was not provided at the cost of the Council (or any predecessor local authority), but in other ways such as by dedication of land and/or works required of developers, and by the use of grants from State or Commonwealth governments. The Council has thus overstated the cost attributed to infrastructure (and even exacerbated matters by attempting to estimate replacement costs). So runs the argument. I think the Council’s answer, that, even if the total infrastructure charges contemplated in the Policies are actually collected, and applied towards the future works listed (or substituted works), there will still be a large shortfall, is persuasive. It was common ground that collections would be impressed with an appropriate trust: Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566. See also the IPA Infrastructure Guidelines 2/04, quoted in [51] and Mr Veitch’s explanation of the irrelevance of the way in which existing infrastructure was paid for (given in relation to Policy 19) at 127:

“Council has a network. Council owns the network. Council’s responsible for maintaining that network. The fact that the funds came from other sources … might be moneys from Main Roads Department, State Government grants, Federal grants, and even developers – a sizeable portion of the road network has been built by developers – I don’t really see that as relevant. We have a capacity in the road system that the Council owns. Where developers have made contributions in the past was in lieu of a system such as the planning policy. They were enabling themselves to make profits through development by undertaking roadworks. Well, you could argue that those works were in lieu of an equitable charging regime such as we’re proposing here. So, when the contributions come in for this scheme and they’re spent on the roads, you – to take Mr Holland’s point of view, you’d then say, “Oh, but you didn’t pay for these roads, the – the developer contribution scheme paid for the road and therefore you can’t charge any future development for use of those roads either. So, you’ll end with no roads that you can actually charge anybody for. I can only see sense in regarding the whole network as an asset irrespective of who paid for it. When this scheme came in it was the start of a new way of charging, and there is an asset there and it needs to be charged for – it’s consumed – otherwise you’ll end up with enormous distortions in the charging scheme and enormous inequities in terms of who pays for what, which is what the scheme is trying to avoid.”

There seems to be no guarantee that the planned (or any) new infrastructure will actually be built, but the Appellants did not press that point. Similar uncertainty would exist however contributions paid to a council for roadworks were calculated.

The Policies, if it is established that the Council may rely on them in imposing development conditions, offer obvious advantages, apart from the contentious one of adjusting the incidence of infrastructure costs as between developers and those who otherwise fund local government expenditures in the local government area. There is certainty for developers who simply have to consult a “scale” to determine the exactions they face. Essentially, discretion is taken out of the matter. The experts generally accepted, and it is no more than commonsense, that the time of Council staff which would otherwise have to be devoted to assessing the impact of developments on a case by case basis, necessarily making discretionary judgments or guesses in the process, will be freed-up to permit the staff to carry out other useful work. Of course, considerations of that kind could never justify the imposition of conditions in a development approval which the IPA did not authorise.

The experts’ views of Policy 19

The Appellants’ first witness was Mr Holland, whose expertise and experience in traffic engineering are well known in the Court. He presented what might be seen as a traditional analysis of traffic impacts of the proposed development, which he said were slight; he thought it would not require any roadworks – there is to be truncation of a corner, the court was told. His “adversary” on this occasion was Mr Veitch, a civil engineer with postgraduate qualifications in transport and decades of experience as a consultant in Australia and overseas. He has developed a system of computer modelling incorporated in VLC Zenith travel simulation software which is used in all mainland State capitals and numerous local authority areas. Policy 19 is his work; he provided an impressive defence of it. He supplemented his report Ex 6 from the witness box with a summary of the “user pays” approach (considered preferable to charging tolls), which his local government clients have determined to pursue:

“The philosophy of the policy and the – the basis of my belief on this issue, is that when we build a new road or expand an existing road, the day after it opens it fills up to some extent with traffic. Now, that traffic is existing traffic, not traffic that we’ve planned for five and 10 years into the future. So, some of the capacity of any system, pilot (sic) system we expand, attracts traffic that’s already out there on the system. Now, the effect of this is multi-fold, the traffic that moves to this new or expanded facility creates spare capacity in other parts of the existing system which is then available to be accommodated by traffic generated by new development. So, the whole system is very, very dynamic and these effects flow right across the system. It’s very much an open system, as soon as you’ve got entry to the system you can use any part of it, existing roads, future roads and to put a constraint on saying that new development should only be charged for use of new roads, I just believe is completely inequitable. Because of the dynamics of the system, where there is space capacity in the system is continually changing and any additional capacity in the system is going to free-up spare capacity elsewhere in the system. So, the only logical way that I can conceive of to develop an equitable system is that the new development makes a contribution for its use of the system. Whether it be existing roads or future roads.” (Transcript 112)

He went on to say that his system has been successfully operated for as long as 14 years (in the Tweed Shire specifically): “I’ve never had to go to Court to defend the system at all.” He claimed “overwhelming” general support from the “professional fraternity”. Exhibit 6 shows how Policy 19 applies:
1.4.1The subject development is in Transport Financial Catchment Number 6 (Surfers Paradise). Each additional weekday vehicle trip associated with development in this sector is required to contribute $289 per trip toward the future development of the GCCC’s transport infrastructure network (refer Table 4.1 of Planning Policy 19).
1.4.2Under Planning Policy 19 the contribution charge for apartments is based on the number of bedrooms. The range of unit sizes proposed, as listed in subsection 1.3.2 above, yields a total of 256 bedrooms. Each bedroom is deemed to undertake 2 vehicle trips per weekday – refer to Table 7.1 of Planning Policy 19 under “Apartments”. The contribution required for the residential component of the development is therefore $147,968 (i.e. 256 x 2 x $289).
1.4.3Retail and commercial premises are charged based on the Total Use Area (TUA). The total retail/commercial GFA on the four non-residential floors totals 6,182 sq m. For the purposes of this report it has been assumed that the TUA of the retail/commercial elements of the development is 95 percent of the quoted GFA. The assumed TUA of the non-residential uses is therefore 5,873 sq m.
1.4.4Under Planning Policy 19, retail/commercial development is deemed to generate 0.4 vehicle trips/weekday/sq m of TUA. The required retail/commercial contribution is therefore 5,873 x 0.4 x $289 – which equates to $678,919.
1.4.6Application of the Planning Policy 19 charging schedule therefore results in a total charge of $508,409 for the residential and non-residential uses proposed.”

Pressed by a request for particulars, the Appellants submitted a charge of $249,589.60 can be justified, and no more, under Policy 19. The particulars state:

“(d)the Policy overstates the traffic generation rate of the residential component of the proposed development which is likely to be 3 vehicle trips per day per apartment (a total of 354 rather than the 512 derived from Table 7.1 of the Policy) having regard to the proximity of the subject land to public transport services and nearby shopping, dining and recreational facilities;

(e)the Policy overstates the traffic generation rate of the non-residential component of the proposed development which is likely to serve residents and visitors of the proposed development and nearby developments rather than attracting longer distance car based patronage;
(f)the Policy does not take into account the trip redistribution effects of the proposed development;
(g)The rate of $289.00 per vehicle trip per day applied in the Policy is excessive when compared with the average cost of the new road projects for the overall city which based on the costs in Table A-1 divided by the projected growth rate is only $233.00 per vehicle trip;
(h)a proper and reasonable application of the Policy, taking the above factors into account, and assuming in the Council’s favour that the Council can seek to recover the cost of future road projects other than that described as 1009/VLC/2215, would call for a contribution of $249,589.60 calculated as follows:-
Apartments – 118 x 3 x $233.00 82,482.00
Commercial – 4693m² x 0.4 x $233.00 $437,387.60
$519,869.60

Less existing development - 2900 sq m x 0.4 x$233.00 $270,280.00
$249,589.60”

Mr Holland gave evidence in support of the Appellants’ position. He professed a high regard for Mr Veitch and his work on the Zenith model, but argued (56) that “the application of it is highly debatable in this case” and that the condition in question failed the tests for relevance and reasonableness. As to (d), there was argument as to the comparability of high-rise residential development looked at in the surveys which underlie traffic generation rates adopted. Mr Veitch asserted and I find that the surveys he used were more appropriate than those in central Brisbane which the Appellants favoured. In any event, there would be no reason to prefer the Appellants’ “guesstimates” or speculation regarding (e) to the Respondent’s. The criticism of (f) was not made out; in particular, Mr Holland’s supporting example of a hypothetical new supermarket at Wongawallan (Woolgoolga?), compared with a new retail development at Pacific Fair, discussed in para 4.21 of his Ex 5 struck me as somewhat remote in every sense. As to the suggested rate of $233 in (g), there are various calculated figures about; they change as contemplated future works and their costings are reviewed, or with the planning horizon adopted; $289 has not been shown to be wrong as a current figure suitable to be used. Mr Holland contended that Policy 19 required more by way of justifying the works listed and the costs attributable to them.

Moving beyond the supposition that Policy 19 should apply in a different way, Mr Holland in effect urged that there be applied the traditional approach of charging development with no more than the transport infrastructure costs that can be shown to be required by the increased demands on the road system from the new development. In the Council’s case that is what Policy 19 sets out to achieve. He said only one of the future road projects identified in the local government area was even possibly relevant to the Appellants’ development (49). Mr Holland identified proposed roads (eg a service road at Yatala) which he said would attract no traffic associated with the site. At this point in time, no one could have any precise idea what attractions or potential destinations the future road might service. It is no doubt broadly true as Mr Holland said at p 52 that “the vast majority of trips from any home are highly localised” (at 54 he attached significance to a 7 km distance of travel). He went on, “I’m quite happy to assert that the travel demands on roads some distance from the site associated with the development are so small as to be insignificant”. Without being in the least critical of him, I would venture to say that the range covered by the term “significant” and variants is very large. What he is concerned with is a “measurable impact” or a “quantifiable” one (50). He cited a well known arbitrary guideline of 5% applied for assessment of traffic impacts on the State controlled road system. He says (53) “there is some logic to that sort of figure”. The Appellants relied on PacificExchange Corporation Pty Ltd v Gold Coast City Council [1997] QPELR 129, in which one view of what is “significant” may be found. Senior Judge Skoien said, in a passage at 137-38 particularly relied on:

“Mr Olsen sought to justify the levy of $1500 per lot by calculations based on various assumptions. However, common to each of them was the need to construct and the cost of constructing a signalized intersection between the highway and the extended Boyd Street. However, that is not needed now and will only be done if and when Boyd Street becomes the access road for the Cobaki development. I think it is probable that the Cobaki development will take place but when that will be is unclear. When it occurs it is most likely that a full scale signalized intersection will be built at the cost of some $9,000,000 and, most probably, at Cobaki’s cost. The effect on that of these forty-two lots would be miniscule.
Mr Olsen’s interim concern is, as I have said, from the safety aspect. For the reasons I have discussed I do not consider the effect on safety at the highway/Kitchener Street intersection to be important or notable. There is however a nexus between the condition and the minor extra danger at the intersection created by these extra forty-two lots. What would be a reasonable response to it? Not, in my view the imposition of a per-lot contribution based on share of major roadworks which are not in any but a miniscule way, called for by the subdivision. So there is not sufficient relevance in the condition and it is unreasonable in the circumstances.
…
It seemed to me that much of the thrust of the argument for Main Roads was that it was only fair that a new subdivision should contribute to the cost of headworks in the area. In considering that I think that I should first take into account, as a matter of commercial reality, that any contribution by the developer will be passed on, at least in part, to the purchasers of the lots. Those purchasers will operate vehicles, and will pay taxes when they register those vehicles and buy fuel. Many will pay income tax, sales tax and the like. Those taxes will, in part, be spent on State-controlled roads both for headworks and for maintenance … if the subdivision does not necessitate State roadworks nor in any measurable way eat into the road network’s reserve capacity so as to advance other than theoretically, the need for such works, then I do not see any justifiable reason for calling for extra money sacrifice.”

Pursuing such an approach, Mr Hinson submits that what the Policies “really seek to do is shift the fiscal responsibility for providing the infrastructure in question from the ratepayers to the developer. They are like budgetary documents and reflect fiscal objectives not town planning objectives” – invoking what was said in Temwood Holdings about an “ulterior purpose” by McHugh J at 488 and by Callinan J about “the opportunistic imposition of a condition on a planning or subdivision approval” at 503, in endorsing the test of conditions promulgated in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 618-19. I have anxiously considered Mr Hinson’s charge against the Council, but cannot see that the evidence in the appeal comes anywhere near establishing it in relation to either Policy. The issue was raised during the course of evidence. Cross-examining Mr Venn in relation to Policy 16 at p 191, junior counsel, Mr Everson was direct in suggesting at line 46 that “it’s giving the ratepayers a bit of relief at the cost of the developer”. See also his question at line 20 about “shifting the revenue base away from the ratepayers”. There is no principle that I am aware of that requires the ratepayers or a council’s general revenues to bear the costs of providing and maintaining infrastructure required to service new development. The general thrust of evidence and the unfolding of statute and case law considered in the appeal is to show steadily increasing sophistication in levying charges against developers, who will doubtless “pass them on”. The trend has been that some difficulties identified over the years in this court and its predecessors have been surmounted in various ways. I think there is nothing untoward about this.

One aspect of difficulty in applying a user-pays approach to road infrastructure contributions is plain. If every miniscule or insignificant or sub-5% (or some other percentage) impact is disregarded, costs that in principle should be chargeable against developments will be foregone, but the aggregation of the impacts of developments, all of which escape a charge, will undoubtedly require expenditures from public resources to provide the necessary new infrastructure (quite apart from giving “free” access to existing infrastructure). In cross-examination at p 68, Mr Holland said:

“In the general location of the site if there was a demonstrated deficiency and that this development was going to aggravate, which it probably would, if there was a deficiency, I accept there should well be some contribution towards solving that, yes.
You don’t think that it would be sufficient to demonstrate that as a significant traffic generator it makes not insignificant use of the road network, both existing and as improved in the future?-- Well, it depends what state the road system is in at the time for a start and you would have to – and I believe that Mr Veitch’s model would be capable – I am not saying it has, but it would be capable of reasonably accurately predicting where the travel from this particular site would be distributed and the impact of that traffic. I accept that the Zenith model could do that. I don’t accept it has been done. It could be done. I think, to answer the question, in a perfect world you would go through that process. Okay, this road system – this road link is overloaded, this development is going to increase that loading by 5 percent, it should make some contribution to some identified road upgrading of that link. Philosophically you can’t argue with that, Mr Gore, can you?”

So far as the evidence in this appeal goes, the science has advanced to the stage where charging by reference to the Council’s road network considered as a whole is sufficiently refined by loading each of the potential range of trips to or from a development site using that network according to the relative probability of that trip. The Court is not ruling that application of Policy 19 will always produce a condition that satisfies s 3.5.30. The Appellants fail to show on the evidence in this appeal that it will not; in particular, they fail to show that it does not in relation to their development.

Looking at the matter broadly, one would expect the impact on road usage of 118 new households with 256 bedrooms and a doubling of the present 2,900m² of commercial space (the parties have not yet been able to agree about that area) to be considerable. In an era when “user pays” is the prevailing principle, the traditional method of assessing impact in terms of demonstrable percentages of increased load on nearby roads and intersections, with effective exemptions if a 5% (or some other) increase cannot be established, amounts to abandonment of the principle and acceptance of a cost sharing approach now seen as unfair.

While, as Mr Hinson says, we are used to a physical nexus being relied on to support the relevance of development conditions in terms of proximity of land to other land (including roads), Mr Holland conceded (I think correctly) that use of a road by a person travelling to or from a site constitutes a nexus (p 79). The Policy and the work underlying it establish sufficiently in a statistical way the requisite nexus. Unreasonableness in that or in the amounts sought to be charged is not shown.

The planning experts’ views about Policy 16 (“Park” Policy)

Policy 16 has reference to the half dozen District Planning Units (DPUs) into which the local government area is divided. The site is located in DPU 4, in the north-east corner of it. Tallebudgera Creek (speaking generally) marks the southern limit, the Nerang River (speaking more generally) the northern. The DPU is divided into Local Planning Units (LPUs) of which Broadbeach is one; in it the site is relatively central, if one’s focus is east of the Gold Coast Highway. The extent of the DPU will be appreciated when one considers the other LPUs: Miami, Burleigh Heads, Andrews Stephens, Broadbeach Waters, Reedy Creek, Mudgeeraba, Merrimac, Carrara, Gilston, Nerang and (not contiguous) Mt Nathan. Broadbeach LPU extends from the beach west to Bermuda Street, north to Wharf Road and south to Cottesloe Drive (on the coast proper, to Chairlift Avenue or thereabouts, based on my examination of the Street Directory map). To the north lie the LPU entitled Surfers Paradise and its western neighbour Bundall, which mark the southern limit of DPU 3 (Paradise Point is the northern limit).

To mount an attack on the impugned condition for monetary contributions for recreation facilities infrastructure, the Appellants perforce set out to show that Policy 16, if not imperfect in itself, worked imperfectly. The Appellants’ challenge, supported by the expert evidence and views of Mr Buckley, was to the “grain” of the fund policy (and underlying studies), to the LPU boundaries adopted, and to the exclusion of the beach from the inventory of facilities; he thought the “tourist” character of the local area should have been recognized and that existing infrastructure was wrongly costed and charged for. His report accepts at pp 4 and 6 that “some contribution” would be “warranted” or “expected”. He takes issue with the “reasonableness” of the amount. His objections are not site specific; they would apply to all sites in the immediate locality. To the extent Mr Buckley places reliance on s 3.5.32(1)(b) of IPA in para 2.3 of his report (Ex 4), it cannot be supported; there remains his reliance on s 3.5.30 and the contention that Condition 27 fails the familiar twin tests of relevance and reasonableness. He cites the remoteness of existing and planned recreational facilities in DPU 4 to be funded in part by contributions under Condition 27 (noting the paucity of planned parks, etc or planned improvements to them in the Broadbeach LPU, commenting at p 90 that “Mudgeeraba is almost like another world”); he points to the assertedly tourist/commercial character of the area, implying that those who use it to sleep there or otherwise may be unlikely to use the “remote” facilities, so that requiring contributions towards the cost of them was not “equitable”. Some of them require large areas of land that will not be available in the LPU for reasons of cost. Mr Buckley thought that by and large facilities west of the highway would not be used much by “Broadbeach” residents; the highway was a “major barrier”, together with waterways just beyond it. See transcript pp 88-90, where Mr Buckley (in a similar vein to Mr Holland’s view that most journeys are local) asserted a closer connection between the site and its environs with Surfers Paradise, rather than the “hinterland”. Statistical information was referred to which revealed Broadbeach (like Surfers Paradise) has, at least for the moment, a relatively old population, so that there would be fewer young people who would require to use recreational facilities and other facilities such as schools, which tended to be found well inland. The former, at least, were suggested to be adequate in Broadbeach.

While Mr Buckley’s points are sensible and seem sound, there are countervailing considerations. Though large, Pratten Park, immediately behind the beach, is already under pressure from overuse, on the evidence. The evidence overcomes any suggestion that local park provision is and will be sufficient. The Court was told of survey evidence establishing that people wanting to use recreational facilities, parks in particular, will and do drive to get to them – indeed, it seems that a majority of park users surveyed did drive. There would be no alternative for those pursuing sporting interests calling for physically large facilities. Considering the Gold Coast Highway as a barrier seems to me to separate facilities such as Pacific Fair Shopping Centre, the Casino and Gold Coast Convention Centre from Broadbeach inappropriately; accepting that those are of a scale outstripping local or even district facilities, one can be confident that people from the general area east of the Gold Coast Highway would use them. Whether the residential uses of the site will be predominantly or even substantially of a “tourist” character is unknown. There is nothing about the development approval to promote or require occupation by tourists. Here I find Mr Venn’s approach more convincing. As he says, tourists may well want to visit parks rather than, or as well as the beach (and the Gold Coast’s glitzier attractions). Regarding amalgamating Broadbeach and Surfers Paradise, as Mr Venn noted, the hearts of the two are separated by a band of less intensive development centring on Wharf Road. I think Mr Venn is correct in distinguishing the “commercial attractions” of the two areas and their “influences”. From the point of view of assimilating Broadbeach with Miami, to the south (again an idea suggested by the “strip” character of the development around the Gold Coast Highway), there is an obvious distinction visually between development north and south of Chairlift Avenue, which I take to mark the former Magic Mountain site.

The exclusion of the beach from recreational facilities allocated to Broadbeach is obviously a matter for debate. The basis of it is not that the beach is precarious, but that it should be treated as a resource for everyone, not even limited to the Gold Coast, but extending, indeed, to the whole world. The beach is not to everyone’s taste, even on the Gold Coast. I would think many residents (and visitors) never go there; those minded to use the beach may not limit themselves to the local one. That apart, it has not been shown that the Court ought to depart from the approach of focussing on more conventional park and recreational facilities, where people can enjoy walking on or near grass and engage in sporting activities, etc. In Jones v Redcliffe City Council [2004] QPELR 275 at [51] it was contemplated that a proposed development’s being open to Moreton Bay and the beachfront park would justify a relaxation which might possibly be needed in respect of required provision on site of landscaping and recreational space. Jones is no support for an argument that the beach, which is a couple of blocks from the site, should be counted as part of the recreational facilities available in the LPU and in the wider DPU. As it happens, the Council here has allowed a relaxation in respect of a greater shortfall (12%) in “Community open space and recreational facilities”. Mr Venn in para 2.6 of his report calculates that the relaxation has allowed the Appellants a bonus floor of residential development (in addition to the bonus plot ratio of 1.06 awarded for streetscape treatments), equivalent to four to six additional units, depending on size. The shortfall is 503m². As Mr Venn says, the matters related to on-site provision of communal open space provide no basis for argument that contributions should be reduced below the level of charges included in Planning Policy 16.

The parties’ formulation of the issues and the court’s conclusion

Mr Hinson was correct in his closing address (at 257) to say that ‘the two cases, in a sense, are ships passing in the night.” He presented a conventional “conditions” appeal, relying on s 3.5.30, focussing on that section and on Condition 27; it did not matter to his clients’ argument what the genesis of the condition had been, whether the Policies the Council applied were valid or not. The Appellants bolstered their case by pointing to respects in which the methodology underlying the Policies was allegedly flawed, or (perhaps more correctly) in which the components (inputs and categories) adopted were allegedly inappropriate.

Mr Gore identified the primary issues as:

(a) Given that Policies 16 and 19 are accepted as valid, are the Appellants’ challenges permissible?

(b) If so, does s 3.5.30(1) of IPA apply to a condition imposed under s 6.1.31(2)(c)?

(c) If so, are the contributions imposed under Policies 16 and 19 (and set out in Condition 27) in accordance with s 3.5.30?

urging that (a) and (b) must be answered in the negative, (c) in the affirmative. The Appellants so structured their appeal that the Court is in no position (as it might be in different proceedings – for example under s 4.1.36(4) of the IPA if an Infrastructure Charges Schedule were challenged) to pronounce either Policy invalid in whole or in part; they do not seek such relief. Given what they do assert, in my opinion it is open to them to be critical of the Policies in support of the contention that they lead here to insupportable outcomes. The critical issue is (b) above.

The Appellants do not sufficiently acknowledge the force of s 6.1.31(2)(c) whereby “the local government may impose a condition … requiring … a contribution towards the cost of supplying infrastructure (including parks) under a [planning scheme] policy”. On the face of things, this authorises Condition 27. The Appellants’ answer is that there is “another level of review”, in s 3.5.30. The language of 6.1.31(2)(c) is permissive, not mandatory, which lends the Appellants’ contention some support. The Council may or may not choose to impose the authorised conditions; it has a discretion. No reason was advanced for not accepting Mr Gore’s argument that there was no room for any discretion to vary the Policies in formulating conditions: if they are to be applied, they must be applied strictly. Reliance was placed on what the High Court said in Gilbert v Western Australia (1962) 107 CLR 494 at 516:

“Before coming to the question whether the Minister proceeded according to law, it is necessary to determine the nature and extent of the power given to him and what is the effect of the critical words “under the scheme”. The respondents contest entirely the view that in fixing the price the Minister is constrained by the conditions. Their argument, and it was the view taken by the learned judge who tried the case, is that the Minister has a complete discretion or power to fix the price, that in its exercise he need only have regard to the general purposes of the scheme as a political and administrative concept, and that his decision is in no way controllable or examinable by the court. Further, it was said that throughout the relevant legislation parliament has distinguished between the “scheme”, a general concept, and the “conditions”, the terms on which the Commonwealth was to provide the State with funds for carrying out the scheme and which themselves conferred no rights on individuals. We appreciate the force of this view, but it does not give sufficient meaning to the phrase “under the scheme” or recognise sufficiently that at relevant times the conditions embodied the scheme. The words “under the scheme” replace in the 1954 Act the more precise reference to the provisions in cl. 6(7) of the 1945 Agreement in the corresponding section of the 1951 Act. We think that the purpose and effect of the words is exactly what the Minister and his officers thought it was: that the Minister in fixing the statutory price must do so in accordance with the method which is prescribed by the conditions for the determination of option prices in cases in which contractual options were given pursuant to the scheme. The phrase “under the scheme” may express this in an elliptical and seemingly imprecise fashion. But that does not mean that it is to be ignored. Difficulty in ascertaining its meaning does not make it ineffective in defining the right in relation to which it is used in the statute. It is significant that the departmental officers administering the scheme had no difficulty in interpreting it as a reference to the method of calculation set out in cl. 7(7). The chairman of the Land Settlement Board, it will be remembered, described this as “the normal method”; and the Minister, following his recommendation, adopted and applied it in this case. Apportioned cost and market value at the time of the leasehold valuation were in fact compared to see which was the lower, and to establish it as the option price, just as the conditions (cl. 7(7)) require. But what was overlooked was that in this case the leasehold valuation had not been made at the time the conditions (cl. 5(2)) required. And, as there was a rise in land values between 1950 and 1957, the result was that the price was not really fixed according to cl. 7(7). It was not therefore fixed according to law – and the appellant is entitled to have a declaration that it was not.

(Mr Gore also submitted that the Policies and s 6.1.31(2)(c) “covered the field”, in the sense of leaving the Council no room to impose any different or additional conditions about the same subject, citing Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167 at [4]ff and [23] and Heavey Lex No 64 Pty Ltd v Mulgrave Shire Council (1995) QPELR 266, at 272.)

Does s 6.1.31(2)(c) stand on its own? In Evans Harch at [10] it was stated that the section was “controlled by s 3.5.30”, but that was by joint concession of the parties, and cannot in any way determine the outcome in this appeal. Following a negative pregnant approach, the specific exclusion of parts of Ch 5 and of s 3.5.32(1)(b) is an indication that the legislature intended that s 3.5.30 continue to apply. It (like s 3.5.32) is within Div 6 of Pt 5 of Ch 3 of the IPA which would naturally be read as a set of provisions about conditions of general application. On the other hand, as the more specific provision, and the one most recently visited by the legislature, s 6.1.31(2)(c) arguably has some claim to prevail. Section 3.5.30(1) puts in the current statutory form a familiar principle of planning law of long standing and wide application. It would have been a simple matter for the legislature to exclude it in s 6.1.31. My conclusion is that it has not been excluded by implication from sub-s (2)(c) or otherwise. The unfortunate result may be a tension in the IPA between the two provisions.

The Council’s written submissions included the following weighty considerations:

“26.Uniquely¹⁷ however, s. 6.1.31 gives local planning policies about infrastructure a different and higher level operation. The section does not say that contributions towards infrastructure are to be determined "having regard" to local planning policies about infrastructure, and otherwise contains nothing to suggest that these policies are merely a guide to discretion. The section quite specifically states that contributions are to be imposed "under", that is, in accordance with or pursuant to, a relevant policy.
27.This special characteristic of planning scheme policies about infrastructure, which sets them apart from all other planning scheme policies, is expressly recognised by s. 6.1.20(3A).

There is no other provision in the IPA which authorises something to be done “under a policy”, or which uses any
similar expression in relation to a policy.
28.It follows that the question whether a condition imposed under s. 6.1.31 is relevant to (and not an unreasonable imposition on) a particular development proposal is not measured against the development-specific infrastructure impacts of that particular development proposal, because that is simply not the statutory context in which this particular kind of condition is authorised to be imposed. If the area or catchment-based methodology in the adopted policy is lawful, then the imposition of conditions in accordance with the policy is also relevant, reasonable and therefore lawful.
29.The Appellants' approach of seeking to "go behind" the policy in order to determine an appropriate contribution based upon what it asserts to be the case-specific infrastructure impacts of the particular development proposal involves a legal misconception about the nature of infrastructure contribution conditions where those conditions are imposed, by express authority, under a statutory instrument of general application which has force of law independently of any particular development application or the Council’s (or Court’s) decision on such an application.
…
34.It is evident that the policies in this case have involved considerable time, effort, skill, judgment and cost in their preparation. It is unlikely that the legislature would intend that that be set at naught by ad hoc challenges by individual developers. This is a strong indicator that policies made under s. 6.1.20, unless declared invalid by appropriate review proceedings, are taken to have produced an outcome that is relevant to and not an unreasonable imposition on development to which a conditions imposed under s. 6.1.31 applies.”
As to 28, I would say that the intention is to charge by reference to the infrastructure impacts of a particular development proposed but in reliance on statistical or similar means and material rather than on detailed examination and evaluation of the specific circumstances.

There has been important change wrought by the IPOLA amendments. The scope for planning scheme policies is enlarged and (as suggested in [9]) such policies are not lightly swept away by s 3.5.30(2); they are entitled to a higher level of respect than other “policies” around the place that might be pointed to by a local government or other assessment manager claiming to be invoking some general “rule”. I would accept para 34 quoted above as covering the ordinary case, without excluding s 3.5.30. Whether or not there is an effective presumption of relevance and reasonableness having regard to the way in which planning scheme policies come about, compliance with IPA authorised guidelines, albeit strictly for a different purpose (a closely related one) is in my view an indicator that a planning scheme policy very likely satisfies s 3.5.30(1)(a); there arises a new factor which a dissatisfied developer must overcome in order to succeed in the task it faces of showing that a resulting condition is irrelevant to or an unreasonable imposition on the proposed development. It may not be an easy task to persuade the court that conditions complying with s 6.1.31(2)(c) flowing from planning scheme policies duly adopted are unreasonable or irrelevant. The possibility is nevertheless open, in my opinion. The examples of egregious conduct by local governments envisaged by Santow JA in Rose show why it should be:

Experience in many facets of the law confirms that the range of what is “reasonable” may be very wide; the other side of it is that the task of establishing unreasonableness is correspondingly difficult. Changing circumstances (including the law as embodied in “statutory instruments” and case law) may lead to a condition that would once have been unreasonable being assessed to a different effect. The broad view to be taken of relevance is s 3.5.30 is indicated by Proctor at 404 and Wise at 316. In s 6.1.31 sub-s (1) formerly did not refer to planning scheme policies (merely to the local government not having an infrastructure charges plan); sub-s (2) formerly did not authorize imposition of a condition under a planning scheme policy. Where the circumstances now contemplated by it are encountered, satisfying IPA in that regard, it would ordinarily be a curious outcome to discover s 3.5.30 rendered the condition unlawful. One would think that what IPA mandates or permits is by definition both relevant and reasonable for IPA purposes. The possibility cannot be excluded that something may be incorporated in a planning scheme policy that results in a condition being proposed that is clearly offensive to s 3.5.30(1) when examined. That examination must be conducted, not on the basis of the statute and case law as they formerly existed, but on the new basis created by IPOLA.

The IPA Infrastructure Guideline 2/04 (Infrastructure Charges Schedules) with which the Council (Mr Hinson submits irrelevantly) claims it has complied in formulating the Policies is Ex 11. The document, recognized by s 20 of the Integrated Planning Regulation 1998, is quite detailed, and extends to 39 pages. According to 1.0 Introduction, it “has been prepared in accordance with the requirements of the IPA and sets out how an Infrastructure Charges Schedule must be prepared or amended.” Apropos one of the Appellants’ criticisms of the Policies, it provides in 2.2 The Infrastructure charge:

“Charges also may be levied for access to existing trunk infrastructure networks that have been provided to serve planned development. For the purposes of calculating charges, the existing network may be valued at current replacement cost (see s.2.3 definition of establishment costs). This assumes that appropriate asset maintenance and replacement programs are in place and that the network is in ‘as new’ condition, having been kept that way by periodic contributions from existing users.”

and in 3.2 Costs to be apportioned to all users, in provisions that may serve to alleviate burdens on some developers:
“The costs of trunk infrastructure networks are to be equitably shared amongst all users. This will ensure that development collectively contributes to the need to supply trunk infrastructure, and that those developments which trigger the need for additional network capacity are not unfairly required to pay more than their reasonable share of costs.
Infrastructure charges are levied according to the estimated benefit (including opportunity to benefit both now and in the future) a user derives from a trunk infrastructure network. This beneficial relationship must be quantified and is best done by grouping users into areas of benefit, or ‘catchments’, where the costs of infrastructure supplied to service each catchment are apportioned to the users within the catchment. It follows that charges are likely to vary between catchments depending on servicing costs.
In most circumstances, the catchment for a trunk infrastructure network will comprise existing users and new users who arrive during the period the catchment is growing to its ultimate size. An exception would be where new trunk infrastructure is being provided for a previously undeveloped ‘greenfield’ area and there are no existing users.”

It might be noted that certain guidelines must be kept available for inspection and purchase under s 5.7.6(1)(n) of IPA and that all current local government planning scheme policies must be available for inspection (s 5.7.7(1)(d)). Also within s 5.7.6(1) comes:
“(e)any written directions of the Minister given to a local government to –

(iii) make, amend or repeal a planning scheme policy”.

Review of such policies at State level is plainly contemplated.

The above represents an early reference to catchments, among many such references, which bear out the Council’s contention, most strongly presented through Mr Venn, that a catchment approach, rather than the traditional site-based one is now encouraged for relevant purposes.

In the circumstances, Condition 27 has been subjected by the court to the ordinary scrutiny called for in s 3.5.30(1)(a); the Council did not invoke subsection (1)(b). There has been no need to have recourse to any special presumption about the validity or reasonableness of either Policy 16 or Policy 19. The appeal is brought under s 4.1.27(1)(b), to be determined by hearing anew under s 4.1.52(1); the Appellants have not satisfied the onus which s 4.1.50(1) places on them on showing that it should be allowed. It appears that the appropriate order would be to dismiss the appeal; however, it may be that some other order(s) are appropriate if the parties can resolve the “measurement” or similar issues. Further submissions are invited.

APPENDIX

Addendum to Respondent's Outline

Outline of Infrastructure charging under IPA, Chapter 5, Part 1

The key elements of the infrastructure charging regime, as it now exists (from 4 October 2004⁴³) are as follows:

1. Each Council is required to include in its IPA planning scheme a priority infrastructure plan-s2.1.3(1)(d)⁴⁴;

A priority infrastructure plan, defined in Schedule 10, is a part of the planning scheme which:

(a) identifies the priority infrastructure area; and
(b) includes the plans for trunk infrastructure in the identified area; and
(c)identifies, if required by a supplier of State infrastructure with a relevant jurisdiction:

(i) a statement of intent for State-controlled roads; or

(ii)the roads implementation program under the Transport Infrastructure Act 1994, section 11; and
(d)states the assumptions about the type, scale, location and timing of future development on which the plan is based; and

(e) states the desired standard of service for each development infrastructure network identified in the plan; and
(f) includes any infrastructure charges schedule.

With such a plan in place, a local government is entitled to impose charges in respect of the infrastructure referred to in the plan. These charges are not imposed as conditions of approval, but are imposed by way of a separate infrastructure charges notice (ss 5.1.8 and 5.1.18).
Councils have two alternatives for the calculation of these charges. The first alternative, intended to be used by the present Respondent, and expected to be used by the majority of larger Councils, requires the Council to include in its priority infrastructure plan an infrastructure charges schedule. This is a part of the priority infrastructure plan, and hence of the planning scheme. Under s 5.1.6(1), it must state each of the following
(a) a charge (an "infrastructure charge") for each trunk infrastructure network identified in the schedule;

⁴³ Commencement date of relevant amending provisions contained in IPOLA 2003, and commencement date of the associated Guidelines (Exhibit 11) which are given force by s 20 of the Integrated Planning Regulation 1998.
⁴⁴ Under a transitional provision in s 6.2.6, this requirement need not be complied with until the date mentioned in section 6.1.31 (3 )(b), that is, 31 March 2006, or such extended date as the Minister allows for a particular planning scheme.

(b)the estimated proportion of the establishment cost⁴⁵ of each network to be funded by the charge;

(c) when it is anticipated the infrastructure forming part of the network will be provided;

(d)the estimated establishment cost of the infrastructure; each area in which the charge applies;

(e)   each type of lot or use for which the charge applies;
(f)   how the charge must be calculated for
(i)    each area mentioned in paragraph (e); and
(ii)   each type of lot or use mentioned in paragraph (t).

An infrastructure charges schedule must otherwise be made in accordance with the prescribed Guidelines (exhibit 11) - s 5.1.5(1)(a). The process for making an infrastructure charges schedule is generally⁴⁶ the same process as is used to make a planning scheme policy –
s 5.1.5(1)(b).
Under section 5.1.7, an infrastructure charge imposed under an infrastructure charges schedule:
(a) must be for a trunk infrastructure network that:
(i)services, or is planned to service, the premises on which the charge is sought to be imposed;

(ii) is identified in the priority infrastructure plan; and
(b)must not be more than the proportion of the establishment cost of the network that reasonably can be apportioned to the premises for which the charge is stated, taking into account

(i) the usage of the network by the premises; or
(ii) the capacity of the network allocated to the premises⁴⁷.

⁴⁵ Defined in Schedule 10. See, in particular, paragraph (c) of the definition which deals with the establishment cost of existing infrastructure.
⁴⁶ When the initial schedule is made, as part of the initial priority infrastructure plan, the full process for making or amending planning scheme provisions (Schedule 1) must be followed - s 5.1.5(2). This ensures that the public "gets the whole picture" when the regime is being put into place. Subsequent amendments to, or replacements of, the infrastructure charges schedule, which is merely the charging component of the overall regime, are undertaken using the Schedule 3 process for making or amending a planning scheme policy.
⁴⁷ As the charge must be stated in the infrastructure charges schedule, these limits on the quantum of the charge control the permitted content and methodology in the schedule. These are not requirements to be assessed on a case-by-case basis, based upon the particular characteristics of an individual development, at the time a particular charge is imposed.

(c)being independent of the development application process⁴⁸ may be levied in respect of an existing lawful use, though only on the basis of the current share of usage of the network at the time the charge is levied - charges may not be levied on an existing use in anticipation of future development on the relevant site for which capacity has been allocated in the network.

The charge is imposed by notice under section 5.1.8. The charge notice is given to:
(a)the applicant, where the charge is imposed in consequence of a development approval - s 5.1.8(2)(a); and
(b) the owner of the land in any other case (existing usage) - s 5.1.8(2)(b).
Regardless of whether the notice is given to an applicant or to the owner, the charge is recoverable by the Council in the same way as a rate (s 5.1.14), so that the owner of the land is ultimately liable in all cases. However, a charge imposed in consequence of a development approval is not actually recoverable until and unless the development entitlements under that approval are exercised (s 5.1.8(4))⁴⁹.
The monies collected by charges may only be used to fund the provision of infrastructure forming part of the network for which the charge was imposed - s 5.1.10. However, the Council is not bound by the specific forward works identified in the priority infrastructure plan for the relevant network. It may expend monies collected by charges on other works for the network (that is, amended or substituted works superseding and replacing those which were stated in the priority infrastructure plan at the time the charge was imposed), so long as it maintains the standard of service which was used as the basis for calculating the charges - s 5.1.13.
There are appeal rights to the Court, under s 4.1.36, in respect of the imposition of infrastructure charges, but an appeal may only be made about:
(a) the methodology used to establish the charge in the infrastructure charges schedule; or
(b) an error in the calculation of the charge.
The appeal rights are self-evidently limited, and do not permit an appeal against a charge which has been correctly calculated under a valid infrastructure charges schedule on the basis of arguments about the particular infrastructure impact or other idiosyncratic characteristics of a particular development.
Other aspects of the regime, noted for completeness, are:
(a)the dividing line between "trunk" infrastructure and lower-level infrastructure is determined by the Council when making its priority infrastructure plan⁵⁰, with the provision of lower-level infrastructure (internal works or external works to connect a development to the trunk network) being dealt with on a development specific basis by ordinary approval conditions - s 5.1.2;

⁴⁸ In practice, charges will almost invariably be imposed in conjunction with the approval of a development application.
⁴⁹ The time for payment is, unless otherwise agreed, the time when the relevant development is completed and ready for use - s 5.1.9.
⁵⁰ Schedule 10 definition of "trunk infrastructure"

(b)   Councils (in practice, smaller Councils with relatively low levels of development), while still required to have a priority infrastructure plan, may choose not to make their own infrastructure charges schedule, and instead rely upon a schedule of fixed charges not exceeding an amount prescribed by regulation⁵¹;
(c)   the operation of the regime in any particular case may be modified by the making of an infrastructure agreement - ss 5.1.12 and 5.1.22; and
(d) Councils to have an additional power to impose conditions requiring contributions towards infrastructure, but only in circumstances where, simplifying matters slightly, a particular development:
(i)    is wholly or partly outside the identified priority infrastructure area; or

(ii)is premature, having regard to the timing for provision of infrastructure contemplated by the priority infrastructure plan; or
(iii)imposes infrastructure demands inconsistent with those contemplated by the priority infrastructure plan for development on the relevant site -
ss 5.1.24 to 5.1.28.

⁵¹Section 21 of the Integrated Planning Regulation 1998 fixes the maximum amount per “charge unit” at $1,500. Under Schedule 13 of the Regulation, a “charge unit” is, in simple terms, the demand generated by a single detached dwelling.

CITATION:	Hickey Lawyers (a firm) & Ors v Gold Coast City Council [2005] QPEC 022
PARTIES:	HICKEY LAWYERS (a firm), NINAFORD PTY LTD and FRAMWELGATE INVESTMENTS LTD Appellants v GOLD COAST CITY COUNCIL Respondent
FILE NO:	502 of 2004
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Southport
DELIVERED ON:	8 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23, 24 February 2005
JUDGE:	Robin QC DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	Appeal by developers against conditions of development approval – code-assessable application for 34 storey mixed residential and commercial building – monetary contributions required for recreation facilities network (parks) and transport network, each under a “planning scheme policy” about infrastructure - neither policy asserted to be invalid, but methodology challenged on bases district planning units, local planning units and/or “catchments” were inappropriately selected, existing infrastructure was wrongly charged for, etc – whether a condition imposed under s 6.1.31(2)(c) must also be tested under s 3.5.30 – whether condition relevant to and not an unreasonable imposition on the development Integrated Planning Act 1997 s 3.5.30, s 6.1.20, s 6.1.31(2)(c) Cases cited: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Bathurst City Council v PWC Properties Pty Limited (1998) 195 CLR 566 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 53 ALR 632 Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065 Gilbert v Western Australia (1962) 107 CLR 494 Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29 Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167 Heavey Lex No 64 Pty Ltd v Mulgrave Shire Council [1995] QPELR 266, Jones v Redcliffe City Council [2004] QPELR 275 at [51] Lloyd v Robinson (1962) 107 CLR 142 Maroochy Shire Council v Wise (1998) 100 LGERA 311 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1997] QPELR 129 Proctor v Brisbane City Council (1993) 81 LGERA 398 Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472; [2004] HCA 63 Wootton v Woongarra Shire Council (1985) 56 LGRA 301
COUNSEL:	Hinson, SC and Everson for Appellants Gore QC and Fynes-Clinton for Respondent
SOLICITORS:	Hickey Lawyers for Appellants Corrs Chambers Westgarth for Respondent