Homes R Us (Australia) Pty Ltd v Gladstone Regional Council
[2014] QPEC 66
•28 November 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Homes R Us (Australia) Pty Ltd v Gladstone Regional Council [2014] QPEC 66
PARTIES:
HOMES R US (AUSTRALIA) PTY LTD (ACN 103 492 2217)
(appellant)v
GLADSTONE REGIONAL COUNCIL
(respondent)FILE NO/S:
BD 3213/14
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
28 November 2014
DELIVERED AT:
Brisbane
HEARING DATE:
21 November 2014
JUDGE:
Everson DCJ
ORDER:
Appeal allowed
CATCHWORDS:
ENVIRONMENT & PLANNING – INFRASTRUCTURE CHARGES – whether approval of the new development application will result in a condition which is inconsistent with a condition of an earlier development approval still in effect
Sustainable Planning Act 2009, ss 347, 648F, 880
Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011
Avel Pty Lts v Jerdway Pty Ltd & Ors [1998] QPELR 62, considered
Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386, considered
Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197, considered
Peet Flagstone City Pty Ltd v Logan City Council & Ors [2014] QCA 210, considered
COUNSEL:
J G Lyons for the appellant
M Williamson with M Batty for the respondent
SOLICITORS:
HopgoodGanim for the appellant
MRH Lawyers for the respondent
Introduction
This is an appeal by the developer of a residential estate at Tarrawonga Drive, Calliope against the respondent’s refusal on 15 August 2014 of a development application for reconfiguration of a lot incorporating a new plan of subdivision.
The appellant had already obtained development approvals for a material change of use, reconfiguration of a lot and operational works in respect of the residential estate. It lodged the application the subject of this appeal for the purpose of reducing the infrastructure charges payable by it pursuant to the existing approval for reconfiguring a lot, as the applicable assessment regime had changed in the meantime. The respondent refused the development application on the basis that it was inconsistent with the existing development permit.
Background
On 28 January 2009 the respondent issued a decision notice approving a combined development application in respect of land located at Tarrawonga Drive, Calliope, more particular described as Lot 159 on CTN1545 (“the land”) for a development permit for a material change of use of premises which authorised the change of use of the land from community use to village and reconfiguring a lot (1 lot into 63 residential lots plus 1 lot within the buffer area – stage 4 & 6) (“the decision notice”).[1]
[1]Affidavit of Ross Alan Wegner, filed 22/09/14, para 5.
On 12 October 2010, the respondent issued a Modified Decision Notice which replaced the decision notice (“the modified decision notice”) approving a development permit for a material change of use described above and a development permit for reconfiguring of a lot – 1 lot into 66 lots Stage 1 and 2 (“the ROL development permit”). It approved an amended plan of subdivision.[2] The modified decision notice stated that a development permit for operational works was required for the works outlined in various conditions of approval.[3] The conditions of approval relating to the reconfiguring of a lot included conditions relating to roads and stormwater drainage, water supply, sewerage, earthworks, maintenance periods and, significantly, infrastructure contributions pursuant to various planning scheme policies of the respondent which were then in force.[4] On 21 April 2011, a development application for operational works was lodged on behalf of the appellant with the respondent.[5] The application expressly stated that it was associated with the modified decision notice.[6] On 29 May 2012 the respondent issued a decision notice approving the operational works application (“the operational works approval”).[7] The operational works approval expressly stated that the application related to the approvals the subject of the modified decision notice[8] and that conditions in the modified decision notice “also applied to it”.[9] The operational works approval authorised the construction of infrastructure consistent with the conditions set out in the modified decision notice. The operational work has now been completed and was accepted as being “on maintenance” as of 9 January 2014.[10]
[2]Ibid, para 8.
[3]Ibid, p 41.
[4]Ibid, pp 44-60.
[5]Affidavit of Helen Annette Robertson, filed 21 October 2014, para 7.
[6]Ibid, pp 91-92.
[7]Affidavit of Mr Wegner, op cit, para 9.
[8]Ibid, p 83.
[9]Ibid, p 88.
[10]Affidavit of Ms Robertson, op cit, para 10, p 189.
As a consequence of the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 (“SPHAICRA”), a new regime for levying infrastructure charges now applies (“the new regime”). It is significantly more favourable to the appellant. Whereas at 17 December 2013 infrastructure charges payable pursuant to the modified decision notice were calculated by the respondent at $2,187,362,[11] the appellant asserts that under the current infrastructure charging regime, infrastructure charges payable by it would amount to approximately $1,500,000.[12]
[11]Affidavit of Mr Wegner, op cit, p 106.
[12]Ibid, p 102.
On 4 March 2014 the appellant lodged the development application subject of this appeal (“the new development application”). It sought approval for a development permit for reconfiguring a lot (Stage 1 (32 lots, Easement and Balance Lot) and Stage 2 (32 Lots)).[13] Whereas the plan of subdivision approved pursuant to the ROL Development Permit (“the approved plan of subdivision”) showed 66 residential lots the plan of subdivision the subject of the new development application (“the new plan of subdivision”) shows 64 residential lots plus a drainage reserve and a separate lot for the proposed sewer pump station. Minor changes to the sizes and configurations of various lots are also evident in the new plan of subdivision when compared with the approved plan of subdivision.[14] An analysis of the changes reveals only minor differences between the approved plan of subdivision and the new plan of subdivision.[15]
[13]Ibid, para 17.
[14]Ibid, para 18.
[15]Affidavit of Ms Robertson, op cit, para 13.
The motivation for the new development application is evident from a perusal of the report of the consultant engaged by the appellant which was lodged in support of the application. By way of introduction, it is stated, inter alia:
“This application is being lodged upon advice from Council that re‑approval of the Reconfiguring a Lot application will enable Council to apply the current infrastructure charges regime, as capped by the state government. This application is therefore consistent with the development concept previously approved by Council and only serves the purpose of achieving a reduction in applied infrastructure charges.
This Reconfiguring a Lot application aims to have an existing development approval re-approved under the capped infrastructure charges regime.”[16]
[16]Affidavit of Mr Wegener, op cit, p 117.
In its decision notice issued on 5 August 2014, the respondent refused the new development application, stating that it was “inconsistent with the conditions for the current Development Permit” pursuant to the modified decision notice.[17]
[17]Ibid, para 32 and p 252.
Discussion
The competing arguments of the parties relate to a number of provisions of the Sustainable Planning Act 2009 (“SPA”). At the time the new development application was lodged, s 347 was, relevantly, in the following terms:
“(1) A condition must not–
(a)be inconsistent with a condition of an earlier development approval or compliance permit still in effect for the development; or
(b)for infrastructure to which chapter 8, part 1 applies, require (other than under chapter 8, 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; …”
Chapter 8 of SPA sought to comprehensively provide for infrastructure planning and funding pursuant to the new regime. It is uncontentious that infrastructure changes applicable, should the new development application be approved, would be levied by an adopted infrastructure charges notice pursuant to s 648F. Transitional provisions for the SPHAICRA in Chapter 10 Part 4 of SPA made it clear that the new regime has to apply to the exclusion of the former regime. In particular s 880 provided that a local government must not levy infrastructure charges or impose conditions under a planning scheme policy which applied under the former regime but that this did not stop a local government collecting infrastructure charges or infrastructure contributions payable under the former regime. As one distinguished commentator noted, the effect of s 880(2) is that an adopted infrastructure change “is the only form of change which may be levied for development infrastructure”.[18]
[18]S Fynes-Clinton, A Commentary on the Sustainable Planning Act 2009, LGAQ Inc. P. 338.
In its further and better particulars of the grounds of refusal filed on 1 October 2014, the respondent asserts that in circumstances where the ROL Development Permit required infrastructure contributions pursuant to the former regime and that such conditions could no longer be lawfully imposed by virtue of s 347(1)(b) of SPA a decision to approve the new development application would be inconsistent with the development permit approved pursuant to the modified decision notice.
Conversely, the appellant’s position is eloquently put in the outline of submissions prepared by Mr Lyons of counsel in the following terms.[19] As a result of the adopted infrastructure charges regime and pursuant to s 880 of SPA, the respondent cannot impose conditions requiring infrastructure charges and instead can only issue an adopted infrastructure charges notice pursuant to s 648F. As there is no lawful condition that could be imposed dealing with infrastructure contributions, no such condition could be imposed which would be inconsistent with the conditions of an earlier development approval and thereby be unlawful pursuant to s 347(1)(a) of SPA. In any event, it is submitted that whilst the parent parcel is still in existence, a development permit for reconfiguration pursuant to the new development application would merely supplant the existing ROL development permit and no inconsistency between the two approvals would arise.
[19]Exhibit 1, paras 10-12.
In support of the latter argument, the appellant relies upon Avel Pty Ltd v Jerdway Pty Ltd & Ors,[20] in which the Planning & Environment Court recognised that different planning approvals may co-exist in respect of the same land, and Liquorland (Australia) Pty Ltd v Gold Coast City Council,[21] where the Court of Appeal, in construing a legislative provision identical to s 347(1)(a) of SPA confirmed this principle in the context of an existing approval for the development of a hotel and a subsequent development approval for Indoor Recreation (Gaming Machines). It is submitted that s 347(1)(a) is concerned with inconsistencies between conditions in different development approvals for the same development and that this situation would not arise as the existing ROL development permit would be supplanted by that contemplated by the new development application.
[20][1998] QPELR 62.
[21](2002) 121 LGERA 197.
The respondent relies upon statements of principle in Genamson Holdings Pty Ltd v Caboolture Shire Council[22] and Peet Flagstone City Pty Ltd v Logan City Council & Ors[23] which speak of a developer enjoying the benefits of a development approval subject to the burdens of the conditions attaching to it and of the conditions being the “community price” which a developer must pay for a development approval. It is submitted that if this appeal is allowed the appellant would have the benefit of two development approvals in effect for the land, both of which authorise substantially the same assessable development to occur but with inconsistent concomitant burdens. It is further submitted that the loss of significant revenue to the respondent as a result of the “unashamedly” cynical attempt by the applicant to avoid paying the infrastructure contributions means that there are strong discretionary grounds for dismissing the appeal.
[22](2008) 163 LGERA 386 at 392.
[23][2014] QCA 210 at [28].
Conclusion
This appeal has been confined by the parties to be concerned solely with the new development application in the context of the conditions requiring infrastructure contributions pursuant to the existing ROL development permit. The only issue for determination, aside from alleged discretionary considerations, is whether approval of the new development application will result in a condition being imposed which is inconsistent with a condition of an earlier development approval still in effect for the development pursuant to s 347(1) of SPA. No inconsistency has been demonstrated with the conditions of the material change of use component of the approval pursuant to the modified decision notice or the conditions of the operational works approval. The only condition of an earlier development approval which could conceivably be inconsistent with a condition of a new development permit pursuant to the new development application could not lawfully be imposed as a consequence of the new regime for levying infrastructure changes which is by the giving of adopted infrastructure charges notices, not the imposition of conditions.
This is not a situation where the appellant is seeking to avoid the legal obligations imposed by the conditions of earlier development approvals necessary for the development to lawfully occur as was the case in Genamson Holdings Pty Ltd v Caboolture Shire Council[24] and Peet Flagstone City Pty Ltd v Logan City Council & Ors[25] referred to above. What is proposed is merely the substitution of a development permit for reconfiguration of a lot with another which is more advantageous to the appellant from an infrastructure charges perspective as a consequence of the new regime. The new regime seeks to introduce a maximum infrastructure change to apply throughout Queensland.[26] There is no discernible legislative policy intent which seeks to prevent developers making development applications to reduce their liability for infrastructure changes. Indeed the tenor of the new regime is quite the opposite, seeking as it does to restrict the burden on developers in this regard.[27]
[24](2008) 163 LGERA 386.
[25][2014] QCA 210.
[26]SPHAICR Amendment Bill Explanatory Notes p 2.
[27]Ibid.
I cannot discern any legislative intent that warrants the enlivening of any discretionary grounds which would otherwise justify the respondent’s decision to refuse the new development application.
I allow the appeal.
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