Palmer v Gold Coast City Council - [2014] QPEC 73

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Palmer v Gold Coast City Council [2014] QPEC 73

PARTIES:

DAVID JOHN EDWIN PALMER
(Appellant)

v

GOLD COAST CITY COUNCIL
(Respondent)

FILE NO/S:

Appeal 3720 of 2013 and Appeal 4433 of 2013

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2014, submissions to 24 March 2014

JUDGE:

Andrews SC DCJ

ORDER:

Appeal 4433 of 2013 adjourned to a date to be fixed to allow the parties to formulate conditions consistent with these reasons. Appeal 3720 of 2013 adjourned to a date to be fixed allow the parties to make submissions after considering these reasons. Costs reserved.

CATCHWORDS:

PLANNING AND ENVIRONMENT – INFRASTRUCTURE CHARGES – where the developer and local authority agreed in 1992 that if the developer paid a bond in respect of infrastructure contributions those contributions when payable would be calculated at 1992 rates – where the developer paid the bond – where the contributions remained unpaid in 2008 – where council imposed conditions upon an approval in 2008 that the developer pay a portion of infrastructure contributions at 2008 rates – whether the development approved in 2008 was in contemplation of the developer and local authority in 1992 – whether the conditions were an unreasonable imposition on the development – whether the conditions should be changed

PLANNING AND ENVIRONMENT – APPEALS – Where council imposed a condition of development approval requiring payment of infrastructure charges – where the developer appealed against the condition on a ground that it was unreasonable – where the developer also requested council to change the condition on the ground that it was unreasonable – where council refused the request to change the condition – where the developer discontinued the appeal – where the developer commenced an appeal against the refusal to change the condition on a ground that the condition was unreasonable – where the developer could have had that issue determined in the earlier appeal if it had not been discontinued by the developer – whether the developer could maintain that ground of appeal after discontinuing an appeal based upon an identical ground and after having received the benefit of the development approval which was conditional upon the obligation to pay infrastructure charges

Sustainable Planning Act 2009 s 367(1), s 466, s 473, s 759

Integrated Planning Act 1997 (repealed) ss 3.5.30, 3.5.32(1)(b) and 6.1.31

Local Government (Planning & Environment) Act 1990 (repealed) s 3.3(1)

Hickey Lawyers (A Firm) & Ors v Gold Coast City Council (2005) QPEC 022

Heritage Properties Pty Ltd [2010] QPELR 510

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Re AWB Limited (No. 10) [2009] VSC 566

Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 151

Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065

COUNSEL:

Ure for the Appellant

Williamson for the Respondent

SOLICITORS:

Thomsons Lawyers for the Appellant

McCullough Robertson for the Respondent

Contents

Nature of the proceeding

Background
Appeal No. 4433 of 2013
Should non-compliance with the requirement for Mr Palmer's signature be excused?
Objection to parts of Exhibit 6
Are the changes Mr Palmer requested to the development approval permissible changes for the development approval for the purpose of s 367(1) of SPA?
Are changes to remove ERA 26 and to remove the conditions of that approval for ERA 26 a permissible change?
Agreed changes
Proper approach to assessment of the request
Does Mr Palmer’s decision to discontinue Appeal 1815 of 2009 (which appealed against conditions 4, 5 and 6 of the very same development approval the subject of the request) impact upon the determination of appeal 4433 of 2013?
Should conditions 4 and 5 with respect to sewerage and water network infrastructure be changed so the contribution is reduced to $308,160.96?
Should conditions 4 and 5 with respect to sewerage and water network infrastructure be deleted?
Should condition 6 be changed to require a contribution of $70,907.85?
Should the ERA approval be deleted?

Nature of the proceeding

These are appeals 3720 and 4433 of 2013 which are heard together. Primarily, the appellant in each appeal, Mr Palmer, appeals so as to contest his liability to the respondent in each appeal, Gold Coast City Council (Council) for infrastructure charges of no less than $1,125,037.38. Council gave Mr Palmer an enforcement notice requiring him to pay the infrastructure charges. By one appeal, 3720 of 2013, Mr Palmer argues that flaws in the enforcement notice process invalidate the notice and by the other appeal, 4433 of 2013, Mr Palmer appeals against Council’s refusal to withdraw or reduce infrastructure charges.[1]
[1]On 18 October 2013, by refusing Mr Palmer’s request of 5 September 2013 to change the existing approval by removing, inter alia the infrastructure conditions.

The issues for determination in appeal 3720 of 2013[2] are whether:
[2]Identified in paragraph 3 of the notice of appeal in appeal 3720 of 2013 by order of 4 December 2013 in appeal 3720 of 2013.

1. the Enforcement Notice[3] has not satisfactorily established that the Appellant[4] has committed any development offence;
[3]Dated 28 August 2013 issued by Gold Coast City Council.
[4]David John Edwin Palmer.

2. Further and in the alternative, the Enforcement Notice fails to describe the nature of the alleged offence with sufficient particularity;

3. Further and in the alternative, the Enforcement Notice fails to provide a reasonable time period within which to comply with the requirements of the notice; and

4. In any event, the infrastructure charges the subject of the Enforcement Notice are currently the subject of a permissible change request lodged by the Appellant with the Respondent[5] and those infrastructure charges will change as a result of that request.

[5]Gold Coast City Council.

Appeal No. 3720 of 2013 is an appeal by Mr Palmer pursuant to section 473 of the Sustainable Planning Act 2009 (SPA) against the giving of an enforcement notice by Council with respect to his non‑compliance with Conditions 4, 5 and 6 of the development approval dated 11 December 2008 which conditions relate to contributions of $1,125,037.38 towards sewerage network infrastructure, water supply network infrastructure and transport network infrastructure. The development approval attaches to land (the land) owned by Mr Palmer and described as Lot 2 on RP 184230 and situated at 342 Stapylton-Jacobs Well Road, Stapylton.

Appeal No. 4433 of 2013 is an applicant appeal by Mr Palmer pursuant to section 466 of the SPA against the refusal by Council of Mr Palmer’s request to make a permissible change to the development approval dated 11 December 2008. The changes, the subject of the appeal, were to remove or reduce the $1,125,037.38 of contributions required by Conditions 4, 5 and 6 of the development approval which conditions relate to those infrastructure contributions and to delete the section “B Environmentally Relevant Activity No. 26 ‘Metal Forming’” approval provisions.

If the outcome of the permissible change appeal 4433 of 2013 is to remove or reduce the $1,125,037.38 of contributions required from Mr Palmer it will necessarily influence the outcome of the enforcement notice appeal 3720 of 2013. Thus, it is sensible to consider appeal 4433 of 2013 first.

Background

Mr Palmer owns the land and Palmer Steel Trading (Australia) (the company) which operates a business on the land of the fabrication and distribution of wire fencing supplies.[6] Mr Palmer purchased the land in early 1990.
[6]Statement of Mr Palmer, Exhibit 3 paragraphs 1, 29.

On 13 August 1990 Mr Palmer applied to the then Albert Shire Council[7] to rezone the land from the Rural C Zone to the Light Industry Zone. The proposed use was described as “fabrication of fencing materials, e.g. gates – chainwire – barb wire”. There seems to be no issue that this was an accurate description of the use at that date.
[7]Exhibit 1, page 1.

By letter dated 31 October 1990[8] that council notified Mr Palmer that it had resolved to approve the application subject to conditions which were attached. Mr Palmer appealed to the Planning and Environment Court against some of the conditions with respect to infrastructure charges.
[8]Exhibit 1, page 3.

On 22 June 1992, a consent order was made by her Honour Judge O’Sullivan whereby the appeal was allowed in part and the local authority was required to make application to the Minister for the relevant amendment of the Scheme subject to conditions imposed by the Court.[9]
[9]Exhibit 1, page 8.

Condition 2 of the order provided relevantly:

“2. The Appellant shall pay to the Respondent water supply and sewerage headworks contributions towards the Respondent’s construction of water supply and sewerage infrastructure to service the subject land (and other land in the vicinity). Payment and calculation of such contributions shall, at the election of the Appellant, be either:-
2.1fixed at the 1990/1991 rates of $42,450.00 (water) and $24,500.00 (sewerage) per hectare, being the rates applicable at the date of the application. If the Appellant so elects, the total contributions are agreed in the sum of $271,415.30; or
2.2deferred until required by the Respondent to fund the provision and construction of reticulated water supply and sewerage infrastructure to service the subject land (and other land in the vicinity). In this event, the rates shall be calculated at the Respondent’s rates current at the date of payment.

The Appellant may elect to make payment pursuant to Condition 2.1 hereof by tendering in case the amount of the bond (namely NINETY THOUSAND FOUR HUNDRED AND SEVENTY ONE DOLLARS AND SEVENTY FIVE CENTS ($90,471.75)) referred to in 3.1.1 to Albert Shire Council within fourteen (14) days of the Council forwarding the Application to the Minister. In the event that the bond amount of NINETY THOUSAND FOUR HUNDRED AND SEVENTY ONE DOLLARS AND SEVENTY FIVE CENTS ($90,471.75) is not received within fourteen (14) days of the application being forwarded to the Minister, the Appellant shall be deemed to have elected to defer the payments pursuant to Condition 2.2 hereof.
3. The said headworks contributions are payable within fourteen (14) days of the gazettal of the proposed rezoning, or upon commencement of the use of the land made lawful by the proposed rezoning, or any new use of the land, which ever is the later date. However, provided all other conditions of the rezoning approval have been complied with to the satisfaction of the Shire Engineer, Council will accept actual payment of same as follows:-
3.1In the event that the Appellant so elects pursuant to Condition 2.1 above, within 60 days of the written demand of the Shire Engineer, which demand may be for payment of the balance of the contributions at one time or for the payment of the contributions by instalments at different times as is considered most appropriate having regard to the progress of construction of water supply and sewerage infrastructure to service the subject land (and other land in the vicinity) and the availability of other funds to meet the costs thereof; and
3.1.1as partial security for the Appellant’s contribution of $271,415.30, a cash bond in the sum of $90,471.75 shall be provided to the Respondent within 14 days of the application for rezoning being forwarded to the Minister; and”[10]

[10]Exhibit 1, page 9.

As was the practice at the time, on 7 July 1993, the parties entered into a rezoning agreement with respect to the amendment of the Planning Scheme.[11]
[11]Exhibit 1, page 20.

Between about 1993-1996 the use of the land peaked in terms of scale and intensity of operation: Up to about 4,000m² was devoted to manufacturing; up to 100 staff were employed onsite; there would have been one to three deliveries in bulk in large trucks each day. That can be compared with 2014 when 687m² under roof is now dedicated to manufacturing of fencing products. The manufacturing now is primarily done overseas. The manufacturing done on the land is more of an assembly process as wire/steel material, supplied from overseas, is knitted into chain wire fencing. That is done by one machine operator on wire weaving machines supported by two labourers and one welder. As there was a progressive movement of manufacturing overseas in 1995/1996, the peak in manufacturing on the land is likely to have been around the start of 1995.

On 22 February 1994 Mr Palmer paid Council $90,471.75 within the time required by Condition 3.1.1.[12] Mr Palmer’s conduct in making that payment was an election by him to fix the contributions towards the construction of water supply and sewerage infrastructure at the 1990/1991 rates being a total contribution of $271,415.30.
[12]Exhibit 3, Statement of Mr Palmer, paragraph 24, Exhibit 1, page 44.

On 25 March 1994 rezoning of the land from Rural C Zone to Light Industry Zone took effect by publication in the Gazette.[13] Thus there was “gazettal of the proposed rezoning” in the words of clause 3 of condition 2 of the consent order of 22 June 1992 and water and sewerage headworks contributions thus became payable by Mr Palmer at a later date.
[13]Exhibit 1, page 47.

On and from 25 March 1994, the subject land was included in the Light Industry Zone for the purposes of the 1988 Albert Shire Planning Scheme. In that zone light industry was permitted development.[14] The term “light industry” was defined as premises used or intended for use for the purpose of conducting any industry included in, but not limited to Appendix 3 in the use definitions of the Planning Scheme.[15] This included uses such as light metal working and workshop, engineering works (light). A warehouse was a separately defined use.[16] A warehouse use was also permitted development in the Light Industry Zone under the 1988 Planning Scheme.
[14]See 1988 Planning Scheme, Gazette page 1534, Column 3A.
[15]1988 Planning Scheme, Gazette page 1522, right hand column.
[16]1988 Planning Scheme, Gazette page 1525, left hand column.

In about 1994/1995, Mr Palmer became aware that the planning of the Department of Transport and Main Roads (DTMR) indicated that the land would be required for resumption for the Intra-Regional Transport Corridor (IRTC). Potential resumption made Mr Palmer unsure of the viability of future business operations on the land, so he decided to move the manufacturing component of the business overseas to China.

In February 1995, a new Planning Scheme was promulgated for the Albert Shire Council Local Government Area. Section 3.3(1) of the Local Government (Planning & Environment) Act 1990 (repealed) was in force as at the date the 1995 planning scheme took effect. That provision protected a pre-existing lawful use from the influence of a new planning instrument for so long as the premises were so used for that purpose.

Council submitted that promulgation of the new Planning Scheme had the effect of repealing the 1988 Planning Scheme and, as a consequence, the 1992 rezoning of the land and the repeal of the 1988 planning scheme therefore meant in 1995 that any arguable right to use the land which was not otherwise protected by section 3.3(1) of the now repealed Local Government (Planning & Environment) Act 1990 had to be sourced in the 1995 Planning Scheme. I accept those submissions.

For the purposes of the 1995 Planning Scheme, the land was included in the Commercial Industry Zone.[17] In the Commercial Industry Zone, a warehouse or light industry development was considered to be permitted development where it did not include the erection of any building or other structure other than by way of minor building work.[18] In circumstances where building work was required for a light industry or warehouse, such a use would trigger column 3 of the relevant table of development. Column 3 identified development for which town planning consent was required.
[17]Exhibit 1, page 98.
[18]1995 Planning Scheme, s. 7.2, column 1.

Having regard to the aerial photography existing for July 1995, to the evidence of Mr Palmer and the industry use described in the application for rezoning, the use being made of the land in and around February 1995 is likely to have been:

(a) an industry use described in the rezoning application as “Fabrication of Fencing Material. E.G. Gates – Chain Wire – Barb Wire”;[19]
(b) the series of structures with a gross floor area in the order of about 4,000m²described as a caretakers residence, an office, building A, building B and part of building C.

[19]Exhibit 1, page 2.

After February 1995 Mr Palmer made two relevant changes to the way in which the use was conducted on his land. The two changes are as follows:

(a) the balance of building C and the entirety of building D were constructed on the land. The total area of these structures equates to 10,842m²;
(b) the business changed in response to the DTMR’s interest in resuming the land[20] - the change entailed relocating or outsourcing the manufacturing component of the business overseas.[21] Any manufacturing component of the use conducted on the land soon became and is now a very small part of the business.[22]

The additional area of structures was and continues to be primarily to keep stock dry to prevent its deterioration. It is not otherwise an indication of the intensity of the use, except the use for warehousing.

[20]T1-31.

[21]T1-31.

[22]T1-32, Line 15.

During 1995 and 1996 the movement overseas of the manufacturing component of the business occurred progressively. From then until the hearing the business has manufactured mostly overseas. 99% of the business is directed to supply rural customers and large government jobs. For that part of the business, the product is manufactured overseas, arrives in containers, is unloaded and sent by semi-trailer as required. The operations on the land today are still a wire fencing supply business but the operation is predominantly a storage and distribution operation. Very little fabrication occurs on the land. There is currently a total of 687m² under roof dedicated to the manufacturing of fencing products. That manufacturing operation comprises one machine operator supervising several wire weaving machines, supported by two labourers. There is also one welder operating in a separate area responsible for special gate orders when they are required. Occasionally, machines are used on the land to cut and bend pipe for non-standard fencing. When products are manufactured overseas, they are delivered back to the land for storage. They are then sold as part of the steel supply business. The nature of the use of the land has remained relatively unchanged since the mid-1990s when the manufacturing component of the business was moved overseas. An exception to that is the degree of warehousing under cover which has increased.

On 8 March 2004 Council issued an enforcement notice to Mr Palmer alleging that Mr Palmer was carrying out assessable development at the premises in the form of a Material Change of Use involving “industry” whilst not holding a development permit for a Material Change of Use involving “industry” as defined by the Planning Scheme.

The enforcement notice provided:-

You are hereby required to, by 27 April 2004:

(a) cease use of the premises as ‘industry’ and restore the premises toth (sic) state it was in immediately prior to the unlawful use commencing and the unlawful buildings being constructed and otherwise comply with the Planning Scheme; or

(b) apply for a development permit for a material change of use involving ‘industry’ and a preliminary approval for building work and otherwise comply with your obligations under section 4.3.16 of IPA.[23]

[23]Exhibit 1.

On 2 April 2004 Mr Palmer lodged a Planning and Environment Court appeal against the issuing of the enforcement notice.

On 11 June 2004, an order was made by consent in the Planning and Environment Court requiring the appellant to, by 6 August 2004:-

(a) Cease use of the subject premises as ‘Industry’ and restore the subject premises to the state it was in immediately prior to the unlawful use commencing and the unlawful buildings being constructed and otherwise comply with the Respondent’s Planning Scheme Our Living City – Gold Coast City Planning Scheme dated 18 August 2003 (‘the Planning Scheme’); or
(b) Apply for a development permit for a material change of use involving ‘Industry’ and a preliminary approval for building work and otherwise comply with the Appellant’s obligations under section 4.3.16 of the Integrated Planning Act 1997.

On 5 August 2004, consistently with clause (b) of the order of 11 June 2004, Mr Palmer applied to Council for a development permit for a Material Change of Use.[24] The town planning report that formed part of the application noted that the application was to “formalise the use of the site in response to an order of the Planning and Environment Court following an appeal against an enforcement notice issued by the Gold Coast City Council on 8 March 2004”. No submissions were lodged with respect to the application.
[24]Exhibit 1, page 82.

Mr Palmer had not applied on 5 August 2004 for an approval for ERA 26 (Metal Forming). However in an information request of 16 September 2004, Mr Hulse from the Council stated:-

The operation of the ERA (26 Metal Forming) requires an approval prior to the activity being undertaken. An application for an operator’s licence can be made to the concurrence agency (which in this instance is Health and Regulatory Services Department of Council). Please provide a completed IDAS Form G and the appropriate fee paid to Council. This point is for your information and will be included as a condition of development should the application be approved.[25]

[25][25] Exhibit 1, page 310.

On 11 December 2008 a decision notice in response to the application made on 5 August 2004 advised that the issue of a Development Permit for Material Change of Use for Industry (Wire, Steel and Fencing Manufacture and Supply) and Caretaker’s Residence had been approved subject to conditions.[26] The 2008 approval however was limited to a manufacturing area of 4,000m2 and a maximum number of employees at any time of 45.
[26]Exhibit 1, page 355.

Condition 4 required Mr Palmer to pay contributions towards sewerage network infrastructure in accordance with Planning Scheme Policy 3B – Policy for Infrastructure Sewerage Network Developer Contributions in the sum of $346,475.12.

Condition 5 required Mr Palmer to pay contributions towards water supply network infrastructure in accordance with Planning Scheme Policy 3A – Policy for Infrastructure Water Supply Network Developer Contributions in the sum of $240,838.16.

Condition 6 required Mr Palmer to pay contributions towards transport network infrastructure in accordance with Planning Scheme 19 – Policy for Infrastructure Transport Network Developer Contributions in the sum of $370,673.85.[27] The transport condition was based on an assumed 946.2 vehicle trips per day at $391.75 per trip.
[27]The condition went on to provide that the contribution amount payable at the due date for payment would be calculated at rates current under the Policy or equivalent charging instrument in force at the date of payment.

The same decision notice continued at Part B to advise:-

“B ENVIRONMENTALLY RELEVANT ACTIVITY NO. 26 ‘METAL FORMING’
The applicant be notified as required under the provisions of the Integrated Planning Act that Council approves the issue of a Development Permit for Environmentally Relevant Activity No. 26 ‘Metal Forming’ subject to the following conditions:
…”

The approval of the issue of a development permit for ERA 26 “Metal Forming” was expressed to be subject to 8 conditions. The conditions imposed in relation to ERA 26 include conditions which control noise pollution, air pollution, water contamination, waste and light impacts.

Those 8 conditions imposed in respect of ERA 26 have had no practical significance for the company because its business has never been involved in the processes which are contemplated by ERA 26 “Metal Forming”. The business has never been involved in and Mr Palmer has no present intention for the business to be involved in those processes. Council indicated in submissions that on the basis of such a finding being made that ERA 26 does not apply to any aspect of Mr Palmer’s present use of the land. That concession is limited to “present” use and implies that it relates to present and past use but not to future use.

The conditions imposed in relation to ERA 26 are relevant for the appeal because they are the basis of one of counsel’s submissions. In effect, Council submits, albeit more comprehensively, that the removal of the conditions “will mean … the development as changed can function differently to the development as approved … (with) the potential to lead to (such) new or additional impacts”[28] that the removal would result in a substantially different development. If so, a change which removes the conditions is not a permissible change.
[28]The respondent’s written submissions with respect to the permissible change appeal at [39].

Mr Palmer requested Council to suspend his appeal period pursuant to the Integrated Planning Act 1997 (IPA) to enable submissions to be made with respect to the conditions. IPA has since been repealed.

Mr Palmer’s solicitors requested that Council:-[29]

“remove or reduce the contributions sought under Conditions 4 to 6 for the following reasons:
1.       The development application made simply sought to regularise some allegedly unlawful aspects of the existing use of the premises. The aspects of the existing use that needed regularising were additional buildings. Those buildings are used for storage of steel only. No manufacturing occurs in the buildings. Prior to the erection of the buildings, steel had been stored in the locations of the buildings since 22 June 1992, in accordance with the Order of Her Honour Judge O’Sullivan. The buildings did no more than cover the lawfully stored steel.
2.       The buildings and the storage of steel does not contribute to the need for any infrastructure. They do not create any additional demand on sewerage, water supply of transport infrastructure than the demand placed on that infrastructure from the pre-existing lawful storage of steel.
3.       A contribution of $271.415.30 was paid as the ‘fixed’ contribution for the development on the site in the Order of 22 June 1992. The Order also provided the option of payment of $90,471.75 as a cash bond, in lieu of that contribution, an option that was taken up.”

[29]Exhibit 1, page 392.

On 5 June 2009, the applicant’s request with respect to Conditions 4, 5 and 6 was refused.[30]
[30]Exhibit 1, page 398.

On 30 June 2009 Mr Palmer filed Planning and Environment Court Appeal 1815 of 2009 against inter alia the imposition of Conditions 4, 5 and 6 on the basis that they were, relevantly:-

1. not reasonably required in respect of the development; and

2. irrelevant and not a reasonable imposition on the development.[31]

[31]Exhibit 4, Statement of Mr Meertens, Annexure Document D, page 13. Exhibit 2, page 400.

On 16 November 2012[32] solicitors for Council wrote to Mr Palmer’s solicitors and advised that Council would seek to resolve the appeal by deleting Conditions 4, 5, 6 and 7. They advised they would then issue an adopted infrastructure charges notice in relation to the development approval pursuant to section 648F of the SPA.
[32]Exhibit 5, Affidavit of Mr Nelms, page 5.

On 12 March 2013, Council’s solicitors reiterated that those were Council’s intentions.[33] Mr Palmer’s lawyers advised the company’s general manager that the amount of infrastructure charges to be contained in the proposed adopted infrastructure charges notice would be the same or slightly higher than the infrastructure charges in dispute in appeal 4433 of 2013.[34]
[33]Exhibit 5, page 45. See also page 47, page 48, page 50.
[34]Exhibit 4, Statement of Mr Meertens, page 2 [9].

Section 478 of the SPA sets two criteria for grounds of an appeal against an adopted infrastructure charges notice. Subsection 4 provides:-

“An appeal under this section may only be about –

(a) whether a charge in the notice is so unreasonable that no reasonable relevant local government or State infrastructure provider could have imposed it; or

(b) an error in the calculation of the charge.”

Mr Palmer’s counsel submitted that s 478 of the SPA sets a much higher hurdle for an appeal against an adopted infrastructure charges notice than there is for an appeal against a condition. I assume that whatever Mr Palmer’s prospects were of success in the appeal 1815 of 2009, if the appeal resolved by agreement in a way that led to an adopted infrastructure charges notice in relation to the development approval, Mr Palmer’s prospects of challenging such charges would have been less promising.

Mr Palmer’s lawyers advised that the preferable course would be to withdraw Appeal 1815 of 2009 and then lodge a permissible change request to Council to seek the removal of the infrastructure charges conditions from the development approval. A further appeal could be filed in the Court in the event Council refused that request.[35] That course was followed and that further appeal was instituted. It is appeal 4433 of 2013 which is the subject of these reasons.
[35]Exhibit 4, Statement of Mr Meertens, page 3.

On 24 June 2013, Mr Palmer discontinued appeal 1815 of 2009[36] on the basis of that legal advice. Consequently the decision notice of 11 December 2008 took effect from that time and relevantly Mr Palmer was no longer appealing the imposition of Conditions 4, 5 and 6 of the development permit.
[36]Exhibit 2, page 417.

On 28 August 2013, Council issued an enforcement notice requiring Mr Palmer by 27 September 2013 to comply with Conditions 4, 5 and 6 of the development approval by paying a total of $1,125,037.38.

On 5 September 2013, Mr Palmer’s solicitors lodged a “permissible change” request to change the existing development approval.[37] The request sought a change to a number of conditions of the approval, including the removal of Conditions 4, 5 and the amendment of Condition 6, the infrastructure conditions, and also the removal of the “Environmentally Relevant Activity (ERA 26 ‘Metal Forming’)” component of the development application.
[37]Exhibit 2, page 422.

A request was also made to the Chief Executive of the Department of State Government Infrastructure and Planning to make a permissible change by removing three conditions that had been imposed by the Department of Transport and Main Roads relating to the construction of an access driveway for the land, stormwater drainage requirements for the land, and setback requirements for the land. The request for these changes was approved and the conditions were removed.

On 30 September 2013, Appeal No. 3720 of 2013 was filed by Mr Palmer against Council’s enforcement notice.

On 18 October 2013, Council refused Mr Palmer’s request of 5 September 2013 to change the existing approval’s infrastructure conditions.[38]
[38]Exhibit 2, page 466.

On 15 November 2013, Notice of Appeal 4433 of 2013 was filed against the Council’s decision to refuse the request to change the development approval.

On 4 December 2013, this Court ordered that Council give written notice to Mr Palmer of the changes in the request to which Council was agreeable.

On 6 December 2013, Council notified Mr Palmer of a number of changes to which it was agreeable.[39]
[39]Exhibit 2, page 477.

In 2014 at the time of the hearing: 20 staff were employed at the land, 17 permanents and three casuals; they comprised a machine operator on the wire weaving machines supported by two labourers and one welder, eight yard staff attending to maintenance, stock management, loading and making deliveries, collection of and unloading and return of inward bound containers and three sales staff, one administration manager, one imports/exports and accounts control officer and three general accounts clerks; very few customers visited the land to collect purchases because the nature of the business was to fulfil large bulk orders; there were exceptional occasions where customers would attend the land to collect small orders; on average, there was one delivery to the land per day; the requirements of the business made it necessary, from time to time, to employ a small number of additional staff on a permanent or casual basis, to assist with particularly large or unusual orders.

Appeal No. 4433 of 2013

The appeal raises for consideration essentially seven disputed issues. The parties described the issues differently. Borrowing from the submissions of each side the issues raised seem to be:

1. whether the request to change was accompanied by the owner’s consent for the purpose of s 371 of SPA and whether it should be excused; (I find that it was not but that the omission should be excused);

2. whether the changes requested by Mr Palmer on 5 September 2013 to the development approval of 11 December 2008 are permissible changes for the purpose of s 367(1) of SPA; (I find that they are);

3. whether Mr Palmer’s decision to discontinue Appeal No. 1815 of 2009[40] (which appealed against the imposition of the very same conditions 4, 5 and 6 of the development approval[41]) impacts upon the determination of this appeal; (I find that it does not);
[40]Exhibit 2, page 417.
[41]Exhibit 2, pages 401 – 403.

4. whether conditions 4 and 5 of the development approval which require the payment of monetary contributions for water and sewer infrastructure “are not reasonably required in respect of the development and are an unreasonable imposition on the development and as a consequence the request to change the conditions ought be approved”; (Mr Palmer succeeds);

5. whether, alternatively to the deletion of conditions 4 and 5 Mr Palmer may request and obtain an order that the contributions should be reduced in condition 4 to $181,795.63 and in condition 5 to $126,365.33; (Mr Palmer may apply for such reductions as conditions for removal of conditions 4 and 5 but the application fails);

6. whether condition 6 of the development approval which requires the payment of a monetary contribution with respect to transport infrastructure “is an unreasonable imposition on the development, and as a consequence the request to to change the condition ought be changed to reduce the contribution to $70,907.85”; (I am not satisfied that it is unreasonable); and

7. whether to delete Part B of the decision notice which is an approval for “Environmentally Relevant Activity No. 26 ‘Metal Forming’” because it has no utility. (It should be deleted).

Should non-compliance with the requirement for Mr Palmer's signature be excused?

The request of 5 September 2013 comprised two parts, namely a letter of Thomsons Lawyers dated 5 September 2013 and an appendix to the letter being Council’s form for the request. The terms of the letter suggest that the application was being made on behalf of Mr Palmer.

The form attached to the letter:

1. was completed to suggest that the person making the request was the owner of the land, namely Mr Palmer;[42]

2. was not signed by the owner of the land;

3. was the applicant’s declaration for the request and was signed by a solicitor in the employ of Thomsons lawyers,[43] rather than by Mr Palmer.

[42]Exhibit 2, page 429, see Owner’s consent section of the form.

[43]The form was signed by Mr Rix (see Exhibit 2, p.429) who is a solicitor in the employ of Thomsons Lawyers (see Exhibit 2, page 425).

The relevant part of the form which facilitated the provision of proof of owner’s consent was not completed.[44]
[44]Exhibit 2, page 429.

Council accepts that the absence of Mr Palmer’s consent, ordinarily to be established by Mr Palmer’s signature on the form, can be excused in the circumstances of this case under s 440 of SPA. Council submitted that it did not have power to excuse this non-compliance.

The permissible change request letter[45] and Council’s request form[46] made it clear that the application was being made by the solicitors as agents for Mr Palmer. Exhibit 8 is a letter of 4 December 2013 from Mr Palmer confirming that he had authorised and appointed Thomsons Lawyers to act as his agent with respect to any and all of the matters associated with the permissible change request including lodging the permissible change request with the Gold Coast City Council in his name. The Court has a very wide discretion pursuant to section 440 to excuse non‑compliance.
[45]Exhibit 2, page 422.
[46]Exhibit 2, page 426 at page 429.

It is appropriate to make an order excusing any non‑compliance with s 371.

Objection to parts of Exhibit 6

Save for paragraphs 1, 7 and 8, Council objects to the receipt of Exhibit 6 into evidence. Exhibit 6 is the further Affidavit of Mr Rayne Nelms. Mr Nelms is a solicitor in the employ of Thomsons Lawyers who are retained by Mr Palmer. There are three objections to Mr Nelms’ Affidavit:

First, the affidavit purports to give secondary evidence of the contents, and proper application of two statutory instruments, namely Council’s Planning Scheme Policies 3A and 3B. Those documents speak for themselves – Mr Nelms’ evidence as to the contents of the Policies is not probative. Furthermore, the content and application of the Policies is a matter for submissions and the Court, not evidence.
Second, the affidavit is argumentative which is a product of the fact that it is more akin to a written submission than evidence.
Third, an attempt is made in the affidavit to pass Mr Nelms off as a quasi-expert[47]. If it was intended to call Mr Nelms as an expert in infrastructure contributions (which is not accepted as being an independent area of expertise), he should have been nominated as an expert. He was not so nominated. If he had been nominated, this would have had the consequence that Mr Nelms would be bound by the rules governing expert evidence, which includes acknowledging the need to remain independent and be cognisant of an overriding duty to the Court.

[47]See paragraph 3.

The objection was taken in written submissions after submissions for Mr Palmer had been given.

Counsel for Mr Palmer replied to the objection in written submissions after the hearing was complete. He submitted the evidence was relevant. But relevance was not Council’s ground of objection. He submitted the evidence was factual. Where Mr Nelms deposed to the contents of documents it was factual. Where Mr Nelms deposed to what the documents revealed his evidence was factual but also secondary evidence of their contents and thus inadmissible. Where Mr Nelms gave evidence of historical approaches of council it was opinion evidence which I infer to have been based upon factual matters which he learned. As opinion evidence its admissibility depended upon Mr Nelms being an expert.

I generally uphold the objection on each of the bases submitted. I do not rely upon those passages of Mr Nelms’ affidavit to which objection was taken, as evidence. By upholding the third basis too, I do not mean to impugn Mr Nelms’ expertise. I make no finding about it. Rather, I accept that if Mr Nelms’ opinion evidence was to be admissible it must have been on the basis of expertise and so Mr Nelms should have been nominated as an expert and should have acknowledged his independence and duty to the court.

Specifically, I rule that the first sentence of paragraph 2 is inadmissible as secondary evidence of the contents of documents. The second and third sentences of paragraph 3 contain opinion evidence which would be inadmissible unless given by an expert. The third sentence of paragraph 3 is alternatively secondary evidence of the contents of documents. The same can be said of each sentence in paragraphs 4, 5, 10, 11, 12, 17 and the substantive parts of paragraph 13. Paragraph 9 contains expressions of opinion inadmissible unless based upon expertise. The same can be said of the first two sentences of paragraph 14 and the first two sentences of paragraph 16. The third sentence of paragraph 16 is secondary evidence of the contents of a document.

Counsel for Mr Palmer made submissions on the basis of Mr Nelm’s calculations to which successful objection has been taken. Where that is the case I refer to the calculations to understand Mr Ure’s submission but not as evidence of the correctness of the calculations asserted by Mr Nelms. Ultimately, the ruling does not disadvantage Mr Palmer because of other findings in his favour on whether conditions 4 and 5 should be deleted.

Are the changes Mr Palmer requested to the development approval permissible changes for the development approval for the purpose of s 367(1) of SPA?

The power to make a change to a development approval is constrained. In the first instance, it must be established that the change or changes proposed are permissible changes for the purpose of s 367(1) of SPA. I need concern myself only with s 367(1) (a) of the SPA. Council submitted “It is not in issue here that the proposed changes fall foul of subsection (1) (b), (c) or (d) above”. By that submission, in the context of his elaboration about the relevance of s 367(1) (a) counsel for Council implied that his client made a concession. The concession was that s 367(1) of the SPA at clauses (b), (c) and (d) of that subsection have no relevance on the facts of these appeals.

For this appeal the relevant portion of SPA s 367(1) provides:

367        What is a permissible change for a development approval
(1)         A permissible change, for a development approval, is a change to the approval that would not—
(a)         result in a substantially different development;

The issue is whether the changes sought (are changes to the development approval that) would not result in a substantially different development.

The changes sought to the development approval appear in exhibit 2 at pages 427 and 428. Council’s submissions summarised the changes. The changes include:

1. amendments to the plan of layout;

2. deletion of conditions 4 and 5 requiring the payment of monetary contributions for sewer and water infrastructure;

3. deletion, or alternatively, amendment of condition 6 requiring the payment of a monetary contribution for transport infrastructure;

4. deletion of condition 7;

5. deletion of conditions 12 and 13 requiring the construction of a driveway;

6. an amendment to condition 39 as to the timing of the implementation of a landscape plan;

7. deletion of conditions imposed by the DTMR; and

8. deletion of conditions relating to Environmentally Relevant Activity 26.

The eighth item insufficiently describes that change sought. It was not just to delete conditions relating to Environmentally Relevant Activity 26 but would delete also the approval for Environmentally Relevant Activity 26. Council made that clear elsewhere in its submission.

It is for Mr Palmer to establish that the changes proposed are permissible changes within the meaning of s 367 of SPA. Council submitted generally “That task is made difficult here because the Appellant has not, in the orthodox way, led evidence dealing specifically with the substantially different development test.” Aside from those two general matters about onus and absence of evidence Council otherwise confined its submissions on the topic of which changes are a “permissible change” including its submissions in reply to submitting that changes related to ERA 26 are not permissible. Thus, while Council did not concede that the other proposed changes are permissible changes, it made no submission as to why the changes are not permissible and no submission that they are not permissible.

The expression “substantially different development” is not defined in the Act.

The concept of a change that does not result in a “substantially different development” is also part of the test to ascertain whether a change to a Development Application is a “minor change” pursuant to s 350 of the SPA. The jurisprudence that has evolved with respect to the interpretation in that context is of direct assistance in the s 367 context.

The explanatory guide to the Sustainable Planning Bill 2009 provides with respect to the term “substantially different development”:

In general terms, it is considered that this term should be given its ordinary common sense meaning and will need to be considered on the facts of each case. It is difficult to establish black and white criteria, otherwise the test for whether an application can be changed, becomes arbitrary and inflexible. However, changes which may result in a development being substantially different include:
• changes which involve a new use (for example, an application for a material change of use for a cinema which is changed to include a residential component);
• changes which involve a significant increase in gross floor area;
• changes which involve a significant increase in the number of lots or storeys above ground level proposed.

SPA s 759 empowers the Minister to make guidelines about certain matters including:

(c)the matters to be considered in deciding whether or not a change to a development application or a development approval would result in a substantially different development.

Pursuant to that section, the Minister made Statutory Guideline 06/09.

Rackemann DCJ in Heritage Properties Pty Ltd.[48] (a minor change case concerning s 350 of the SPA) wrote:-
[48][2010] QPELR 510 at 511.

In determining whether a development constitutes a substantially different form of development, it is appropriate to have regard to the guidelines made by the Chief Executive under section 760 of the SPA (Statutory Guideline 06/09), which provides relevantly as follows:
‘Although it will depend on the individual circumstances of the development, the following list identifies changes that may result in a substantially different development and would, therefore, not be a minor change or permissible change under the SPA. This list is intended as a guide to assist assessment managers and applicants to determine whether a change will result in a substantially different development and is not intended to be exhaustive.
A change may result in a substantially different development if the proposed change:
• involves a new use with different or additional impacts;
• results in the application applying to a new parcel of land;
• dramatically changes the built form in terms of scale, bulk and appearance;
• changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment;
• removes a component that is integral to the operation of the development;
• significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
• introduces new impacts or increases the severity of known impacts;
• removes an incentive or offset component that would have balanced the negative impact of the development;
• impacts on infrastructure provision, location or demand.’
It may be noted that the list provided in the guideline is a list of those changes which "may" result in a substantially different development. It is not the case that a change of the kind there listed is necessarily to be judged to be substantially different.
It may also be noted that the list is not intended to be exhaustive. There may be other changes not listed in the guideline which, in a particular case, can be judged to be more than minor, in that it involves a substantially different development. It may also be noted that the focus of the list in the guideline is, in some respects, on changes that would involve new, additional or increased impacts, rather than on changes which tend to ameliorate impacts.

I am satisfied that changes to conditions 4, 5 and 6 relating to infrastructure contributions would not result in a substantially different development.

I am satisfied that the other changes to conditions (save for changes relating to ERA 26) would not result in a substantially different development either together or in combination with changes to conditions 4, 5 and 6.

Are changes to remove ERA 26 and to remove the conditions of that approval for ERA 26 a permissible change?

The evidence of Mr Palmer is that the development does not involve the matters in contemplation in the ERA 26. The use does not, and never has involved the processes which are contemplated by ERA 26.

If the approval for the issue of a Development Permit for Environmentally Relevant Activity No. 26 “Metal Forming” is changed by being removed it follows that activity which would be permissible only pursuant to that approval would not then be permissible.

It is submitted for Mr Palmer that the removal of the ERA approval in Part B would have absolutely no impact on the development as the approval has never been and will never be exercised.

Council submitted:

34. … to delete the ERA conditions would result in a substantially different development. This arises as a consequence of two matters.
35. First, the change would result in the deletion of a component of the approval which authorises a “material change of use”.

That “first” of two matters was not further developed to explain how the deletion conceivably results in a substantially different development. I accept that the deletion would delete a component which authorises a “material change of use”. It would not appear to involve any of the 3 matters referred to above in the explanatory guide to the Sustainable Planning Bill 2009, or any of the matters set out in the Minister’s list intended as a guide to assist assessment managers and set out in the extract above from Heritage Properties Pty Ltd.

I reject that “first” matter raised by Council.

Council’s submission on the second matter was:

36. Second, the change as proposed is a significant one which alters the manner in which approved development may function on the land in an environmental and amenity sense. So much is clear from the evidence of Mr King, an environmental expert. Mr King at paragraph 22 of his report[49] said:
“I understand that the Court has been asked to consider and determine whether the proposed changes to the development approval are ‘permissible changes’. For my part as an expert in the field of noise and air quality, a development for an industrial use which is constrained by conditions imposed in relation to noise and air quality amenity considerations is a very different development to the same uses which is not conditioned with those controls.”
37. Mr King is alluding to the simple point that conditions of approval manage and regulate the parameters of a development. The development as approved here in December 2008 has particular parameters that, inter alia, control the potential for impacts by reason of noise, dust, odour and light. To remove conditions which control these parameters would not only change the development which is approved, but would alter it in a material and significant way.
38. Put simply, the proposition advanced by the Council is that the nature and extent of approved “development” is not simply defined by what is illustrated on an approved plan. The notion of approved development requires two parts of an approval to be read together: (1) by reference to what is illustrated on approved plans; and (2) by reference to conditions which regulate how development is to be carried out in the form illustrated on approved plans. A development can be substantially different if either one of these two components are altered such that, as a matter of fact and degree, the development can be said to be substantially different.
39. In the circumstances of this case, the Appellant proposes to delete (in their entirety) conditions of the approval which regulate how development is to be carried out on the land. The removal of those conditions will mean that there is an absence of amenity controls applying to the development. This is, on any view, a very significant change leading to the conclusion that the development as changed can function differently to the development as approved. This change in function has the potential to lead to the introduction of new or additional impacts. The introduction of a new impact is recognised as being indicia of a change which may result in a substantially different development.[50]

[49]Exhibit 9.

[50]See Statutory Guideline 06/09, page 3.

If the removal of conditions has the potential to lead to the introduction of new or additional impacts it would arguably result in a substantially different development, depending on what those new or additional impacts are. The passage extracted from Mr King’s evidence is obviously correct. It is also irrelevant to the resolution of the real issue. On the facts of this appeal, the removal of conditions imposed in Part B of the approval has no potential to lead to the introduction of new or additional impacts.

An examination of the decision notice to the applicant of 11 December 2008[51] reveals that Part B deals only with the Environmentally Relevant Activity. The introductory paragraph following the heading provides:-

The applicant be notified as required under the provisions of the Integrated Planning Act that Council approves the issue of a Development Permit for Environmentally Relevant Activity No. 26 ‘Metal Forming’ subject to the following conditions:
…

[51]Exhibit 1, page 355.

Eight conditions were then set out. The 8 conditions are particular to the Environmentally Relevant Activity. They do not apply to the Material Change of Use. The Material Change of Use component of the approval, section A, has its own suite of conditions being Conditions 1 to 44 and the Department of Main Roads Concurrence Agency Conditions 1 to 4.

Deletion of the ERA component of the approval would not result in a substantially different development.

I am satisfied that the changes proposed to the development approval are permissible changes for the purpose of s 367(1) of SPA.

Agreed changes

Council submitted that a second preliminary matter arises out of a document filed by the Council identifying “Agreed Changes”.[52]
[52]Exhibit 2, pages 477-478.

The purpose of the document is to identify changes proposed to the development approval to which the Council is agreeable, assuming that two “jurisdictional” issues are resolved in Mr Palmer’s favour.[53] They have both been resolved in Mr Palmer’s favour. [54]
[53]This is confirmed in para 2 at page 477 of Exhibit 2.
[54] The absence of owner’s consent is excused and the changes requested are permissible changes

In addition to the agreed changes, Council invites the court to impose on any amended development approval the conditions recommended by Mr King.[55] Council submitted the conditions recommended by Mr King will ensure that adequate measures are in place to manage the potential impacts of the approved development; that it understood that this course is not opposed by Mr Palmer; that the court has a power to impose Mr King’s conditions under s 375(1)(a) and (2) of SPA.
[55]Exhibit 9, paras 27 - 30.

I do not propose to impose such conditions unless Mr Palmer indicates that he does not oppose their imposition. I inferred that his consent to such conditions was offered only so as to improve his prospects of establishing that the changes requested by Mr Palmer are “permissible changes”. He established that without such a condition being imposed.

Proper approach to assessment of the request

Mr Palmer on 5 September 2013 requested[56] Council to make changes to a development approval of 11 December 2008 being the development permit for material change of use for Industry (Wire Steel and Fencing Manufacture and Supply) and Caretaker’s Residence. The changes requested are each a “permissible change” to the approval for reasons above. Council refused Mr Palmer’s request on 18 October 2013. SPA s 466(1)(a)(i) was in force at the time of the refusal. It provided a right of appeal against Council’s refusal to make a permissible change to the approval. Mr Palmer relies upon that right to bring appeal 4433 of 2013. As appeal 4433 is an appeal by Mr Palmer under s 466 of SPA, it is for Mr Palmer to establish that the appeal should be upheld.[57] This is in contrast to the onus in appeal 3720 of 2013 which is upon Council to establish that Mr Palmer’s appeal should be dismissed.[58]
[56]5 September 2013 Exhibit 2, page 422.
[57]SPA s 493(4).
[58]SPA s 493(6).

It was submitted for Mr Palmer that the responsible entity must assess the request having regard to the relevant matters set out in section 374 which provides:-

374 Responsible entity to assess request
(1) To the extent relevant, the responsible entity must assess the request having regard to –
(a) the information the person making the request included with the request; and
(b) the matters the responsible entity would have regard to if the request were a development application; and
(c) if submissions were made about the original application - the submissions; and
(d) …
(e) …
(2) For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.

Council did not submit to the contrary. I proceed on the basis that upon this appeal this court proceeds by way of hearing anew[59] and must “to the extent relevant” assess the request having regard to the matters in s 374 of SPA. That means I must have regard to the planning instruments, plans, codes, laws or policies applying when the “original application” was made. The “original application” is “the application to which the development approval applies.[60] That application was made on 5 August 2004. The IPA was then in force. I may give the weight I consider appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made on 5 September 2013. None were relied upon.
[59]SPA s 495(1).
[60]SPA s 372(1)(a)(i).

The “information the person making the request included with the request” is a letter of 5 September 2013 from Mr Palmer’s solicitors with enclosures.[61] There were no submissions lodged with respect to the original application of 5 August 2004 and there are “no submissions made about the original application” which require consideration.
[61]Exhibit 2, pages 422-452.

When the decision was made on 11 December 2008 to approve with conditions 4, 5 and 6, IPA was in force. IPA s 6.1.31 provided relevantly:-

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 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) ...

Section 3.5.30 of the IPA provided:-

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.

Notably, though IPA s 6.1.31 specifically excluded the application of IPA s 3.5.32(1)(b) it left unmentioned the application of IPA s 3.5.30. It follows that when deciding an aspect of an application relating to the local planning policy, any potential which IPA s 3.5.30 has for application in the decision has not been excluded by IPA s 6.1.31.[62] Mr Palmer submitted as much and Council did not submit to the contrary.

Does Mr Palmer’s decision to discontinue Appeal 1815 of 2009[63] (which appealed against conditions 4, 5 and 6 of the very same development approval the subject of the request)[64] impact upon the determination of appeal 4433 of 2013?

[62]Hickey Lawyers (A Firm) & Ors v Gold Coast City Council [2005] QPEC 022 [47].

[63]Exhibit 2, page 417.

[64]Exhibit 2, pages 401 – 403.

The appeal which Mr Palmer discontinued was appeal 1815 of 2009. It included an appeal against the very same conditions 4, 5 and 6 which became the subject of Mr Palmer’s request for a change of conditions. Appeal 1815 of 2009 was not an appeal pursuant to s 466(1)(a) of SPA. Appeal 1815 of 2009 was not an appeal against Council’s refusal on 18 October 2013 of Mr Palmer’s request of 5 September 2013. Issues which could have been determined in the discontinued appeal 1815 of 2009 concerning conditions 4, 5 and 6 are submitted to be substantially similar to the issues in this appeal relating to those conditions. That similarity is the basis for an attack by Council on some of the issues in this appeal 4433 of 2013. Council submits that discontinuation of appeal 1815 of 2009 prevents Mr Palmer’s raising the issue of the invalidity of the conditions 4, 5 and 6.

Are the issues the same in each appeal insofar as conditions 4, 5 and 6 are concerned? The grounds of appeal in 1815 of 2009 relating to conditions 4, 5 and 6 include ground 8 that they are “not reasonably required in respect of the development; irrelevant and not a reasonable imposition on the development; and otherwise represent incorrect calculations of the charges.”[65] The issues in appeal 4433 of 2013 are, by order,[66] the issues in paragraphs 7 and 8 of the notice of appeal in 4433 of 2013. Those paragraphs[67] do not expressly repeat those issues from appeal 1815 of 2009.
[65]Exhibit 2, page 403.
[66]Exhibit 2, page 474.
[67]Exhibit 2, pages 472 and 473.

Paragraph 7 of the notice of appeal in 4433 of 2013 is sufficiently vague that I cannot determine whether it raises the same issues as were raised in 1815 of 2009. But submissions for Mr Palmer seek to have the decision reversed and conditions 4, 5 and 6 changed because the conditions are unreasonable, not because they are not “valid” conditions and not because they “were unlawful” conditions. Counsel for Mr Palmer, in reply to the submissions of Council, rephrased the issue as “asking the Court in this appeal to determine that Conditions 4, 5 and 6 conflict with section 3.5.30 of the IPA”. Even so phrased, that issue is not whether the conditions 4, 5 and 6 are not “valid” or “were unlawful” and Mr Palmer does not expressly seek a finding that the conditions were not valid or that they were unlawful.

Before considering Council’s argument further, it is sensible to note what limitations are imposed upon persons seeking to appeal pursuant to SPA s 466(1)(a). The only limitation expressed in SPA is the requirement that the appeal must be started within 20 days after being given notice of the decision. Council did not submit that SPA provided any express prohibition against an appeal pursuant to SPA s 466(1)(a) because of a similarity to issues in a discontinued appeal.

It is also sensible to determine what matters are required to be considered in an appeal about a decision relating to permissible changes to determine whether the conduct of Mr Palmer by instituting and discontinuing an appeal with somewhat similar issues is relevant to the merits of an appeal pursuant to SPA s 466(1)(a). The matters required to be considered are the matters in SPA s 374 set out above. Those matters included some which post date the discontinuance of the appeal 1815 of 2009 on 24 June 2013, being the information supplied on 5 September 2013 and, potentially, laws or policies applying when the request was made on 5 September 2013.

To support its argument Council relied on the following background:

(a) the Appellant, after receiving the decision notice containing the delegate’s decision[68], made representations to the Council about conditions 4, 5 and 6[69] – the representations contended that the contributions required by the conditions ought be deleted or reduced;
(b) the representations made on behalf of the Appellant in relation to conditions 4, 5 and 6 were rejected by the Council[70] – conditions 4, 5 and 6 were not amended;
(c) after receiving advice that the representations made to the Council had been rejected, the Appellant appealed to this Court against conditions 4, 5 and 6[71] - the grounds relied upon in support of his position were articulated in a Court document described as “Statement of Facts and Contentions”;[72]
(d) the allegations contained in the Statement of Facts and Contentions are, in substance, identical to the case which has been run by the Appellant in the present appeal – see for example paragraphs 5 to 8 and 22 to 26 of the Court document; and
(e) after receiving advice[73] from his solicitors that the Council was agreeable to the deletion of conditions 4, 5 and 6, the appeal against the conditions was discontinued.[74]

[68]Exhibit 1, pages 355 and onwards.

[69]Exhibit 1, page 392.

[70]Exhibit 1, page 398 and 399.

[71]Exhibit 2, pages 400 and 401 – 403.

[72]Exhibit 2, page 411.

[73]Exhibit 4, para 9.

[74]Exhibit 2, page 417.

Counsel submitted that against that background Mr Palmer is precluded from contending that the conditions as imposed (namely conditions 4, 5 and 6) were unlawful.

Council does not expressly submit that Mr Palmer is disentitled to appeal pursuant to s 466 SPA against the refusal to change conditions. Rather, Council argues that Mr Palmer should be disentitled from raising a particular issue. That issue is that conditions 4, 5 and 6 are not “valid” or “were unlawful”.

Firstly Council argued that: Mr Palmer had “previously” (presumably by the representations referred to in the background above and by commencing appeal 1815 of 2009) put in issue the lawfulness of conditions 4, 5 and 6; notwithstanding his strong opposition to conditions 4, 5 and 6 of the development approval, he nonetheless discontinued his challenge; by discontinuing his challenge to conditions 4, 5 and 6, Mr Palmer as a matter of law must be taken to accept that the development approval, including conditions 4, 5 and 6 are presumed to be valid; this is a presumption which follows as a consequence of three factors. Council submitted that those three factors are:

1. whether an administrative decision ought be presumed to be valid until set aside by a court will depend upon the particular case having regard always to the particular legislation under which the decision was made;[75]

2. the particular legislation here, namely SPA, strongly supports the proposition that the decision to grant a development approval, and conditions attached thereto, ought be presumed to be valid until set aside by a court. This is because the legislation confers, inter alia, the power to grant approvals which attach to land[76] and bind successors in title[77] - this has the potential to impact on land owners and third parties relying upon the validity of an approval attaching to land. The approvals can also be relied upon to avoid criminal prosecution for offences under the Act[78]; and

3. a collateral question arises where a condition is held to be invalid – can that condition be severed such as to save the approval to which it is attached. The question cannot be unilaterally determined by a local authority or member of the public. It is a matter about which judicial determination will be required.

[75]Australian Pesticides & Veterinary Medicines Authority v Administrative Appeals Tribunal and Anor (2008) 250 ALR 448 at para [47].

[76]See s 245(1)(a) of SPA.

[77]See s 245(1)(b) of SPA.

[78]For example, as a defence against an allegation that s 578(1) of SPA and s 580 of SPA.

Those three numbered matters are not persuasive. The second numbered point may be correct but it does not follow that a litigant bound by a decision is prevented from contesting the decision’s validity on appeal. Discontinuance of an appeal is usually the practical end of a litigant’s opportunity to contest the decision’s validity. But that is not because the litigant is estopped from contesting the decision’s validity. Rather it is because the litigant has no avenue other than the discontinued appeal to contest the decision. The statutory right to institute another appeal of the kind which was discontinued is generally lost by passage of time. Mr Palmer’s discontinuance of appeal 1815 of 2009 does not estop him from relying on another statutory right of appeal and raising a substantially similar issue. If Mr Palmer was maintaining 2 proceedings where one would suffice that conduct may arguably have been an abuse of process. He is not. I do not accept that Mr Palmer can be prevented from pursuing this appeal unless there is issue estoppel, Anshun[79] estoppel, or abuse of process.[80] There is no issue estoppel, there having been no decision. Mr Palmer’s discontinuance of one appeal is not an abuse of process. His discontinuance does not create a statutory bar against prosecution of this appeal on similar issues and no estoppel arises and no abuse of process is occurring by his raising similar issues.
[79]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
[80]See Re AWB Limited (No. 10) [2009] VSC 566 at [264].

Council made related submissions which concern Mr Palmer’s conduct after discontinuance. It submitted that Mr Palmer “post the discontinuance of the earlier appeal, has also conducted himself in a fashion consistent with a presumption at law that conditions 4, 5 and 6 of the development approval are valid. He has taken up the rights conferred by the development approval to authorise the use of his land. That right was not unqualified. The right is conditional upon compliance with identified conditions of approval, including conditions 4, 5 and 6… he seeks to challenge the validity of conditions in circumstances where he has taken the benefit of the development approval to which the conditions attach, but rejects the responsibilities that go hand in hand with taking up that benefit. The benefit, it is submitted, must come at a price – the price is that the Appellant on discontinuing his appeal against conditions 4, 5 and 6 abandoned his right to contend that those conditions were unlawful absent a declaration or order of the Court to the contrary. Such relief could only be obtained if a traditional ground of judicial review could be established – i.e. jurisdictional error, Wednesbury unreasonableness, relevant/irrelevant considerations.”

The Council submitted that the only way to challenge the contributions’ reasonableness was to impugn their validity and the only proper way to do that was by applying for a declaration.

With respect to the part of that submission that Mr Palmer has “taken up the rights conferred by the development approval to authorise the use of his land” it is the case that the use commenced on the land and has continued since 1990. From the time of the rezoning to about 1995/1996, the use was at its most intense employing some 100 employees. Since that time, until recently, the use employed in the order of 45 employees and it is currently in the order of 20. The use was conditioned in the 2008 development approval to have no more than 45 staff engaged on the premises at any one time.[81] The use was also conditioned upon payment of infrastructure charges which remain unpaid save for a credit for the amount paid on 22 February 1994. The use is currently carried out at a significantly lesser intensity than when the use commenced in the 1990s. But Mr Palmer did have the benefit of the approval in 2008 which regularised his material change of use and that approval was qualified by conditions for payment of infrastructure charges and after he began enjoying that benefit of the approval he abandoned his appeal against the conditions.
[81]Exhibit 1, page 356, clause 2(a).

If Mr Palmer has impliedly raised in this appeal an issue that conditions 4, 5 and 6 were unlawful and invalid because they conflict with the requirements of s 3.5.30 of the IPA he could have had a substantially similar issue determined in appeal 1815 of 2009 if he had not discontinued it. Before and after he discontinued his appeal Mr Palmer has been bound by the conditions 4, 5 and 6. I am not satisfied that being bound by the conditions estops or otherwise prevents him from arguing that they were unreasonable. To be clear, even if he implies that they were unlawful, he is not estopped from raising the issue or arguing that the conditions were unlawful and invalid because they conflict with the requirements of s 3.5.30 of the IPA. The fact that he could seek to impugn the validity of the contributions in a proceeding for a declaration does prevent Mr Palmer impugning their reasonableness in this appeal.

If council’s argument was intended to imply that Mr Palmer is estopped from raising an issue in an appeal under s466 SPA if the issue was a ground of his discontinued appeal I note that Council does not nominate any type of estoppel or make submissions about the existence of any necessary elements for any estoppel.

As the responsible entity to assess the application for a permissible change, the court cannot ignore the statutory requirement “to the extent relevant”, to have regard to the matters set out in s 374 of SPA. If those matters include whether an infrastructure charge is “an unreasonable imposition” or not “reasonably required” in the words of s 3.5.30 of IPA and if Mr Palmer is not estopped from raising the issue, the court should consider it. Mr Palmer may raise it in this appeal so long as it has not been determined against him previously, and so long as it falls within the issues limited by order. Council does not submit that it does not fall within the issues limited by order or that it is not a relevant matter for consideration when assessing a request for a permissible change to conditions imposing infrastructure charges.

Should conditions 4 and 5 with respect to sewerage and water network infrastructure be changed so the contribution is reduced to $308,160.96?

The change to conditions 4 and 5 which Mr Palmer seeks is: (a) primarily that they be deleted; and (b) alternatively that contributions 4 and 5 be reduced to a total of $308,160.96. I deal with alternative (b) first.

Council submitted in effect that the court cannot reduce the contributions because the request was for deletion of the conditions not for amendment to reduce the contributions. Because the submission appears in Council’s written reply, Mr Palmer’s written submissions do not expressly address this point. The basis of the argument is the court is constrained by statute to consider the request.

Mr Palmer’s request of 5 September 2013 to change the development approval was made using what appears to be Council’s form.[82] That form was accompanied by a letter from Mr Palmer’s solicitors.[83] By that covering letter, Mr Palmer’s solicitors reiterated an argument they had made previously to Council, that with respect to conditions 4 and 5, Mr Palmer had paid a bond of $90,471.75 and that a balance of $180,943.55 was payable to Council when the services are connected and that “conditions 4 and 5 are not relevant or reasonably required with respect to the development, having regard to the existing agreement between Council and our client for the charges, and the conditions therefore should be removed.” The enclosed form which set out the details of the request expressed the justification for the removal of conditions 4 and 5 differently from the letter. In the form,[84] under the heading “Justification for change”, a justification for the removal of conditions 4 and 5 was expressed to be:

These conditions ought to be removed because the Applicant has already paid all infrastructure charges relevant to Water & Sewerage for the Land.

It is not the case that Mr Palmer had already paid the balance of $180,943.55 which his solicitors’ letter accepted was payable when the services were connected. One construction of the justification might be that it was asserting that nothing more was ever to be payable. Another interpretation might be that the further charges were not yet “relevant” in the sense that they were not yet payable.

[82]Exhibit 2, pages 426 and following.

[83]Exhibit 2, pages 422 and following.

[84]Exhibit 3, page 427.

Council submitted:

14. … the request for the permissible change lodged with the Council only sought to delete these conditions on the premise that the Appellant had already paid all infrastructure charges relevant to Water & Sewerage reticulation for the Land. The case which has been advanced by the Appellant proceeds on a premise that he may, at his own election, change the request as lodged, which is now the subject of this appeal. The change being the addition of the alternative case.
15. It is submitted that the permissible change request regime under SPA does not contemplate that requests may be changed in the way that a development application might be. The court is invited to consider paragraphs 42 to 43 of the Respondent’s submissions in this regard.
16. The Appellant, as a consequence of his request, is limited to running a case to the effect that conditions 4 and 5 be deleted. If he does not persuade the Court the conditions should be deleted, that is the end of the appeal in relation to the changes sought to these conditions.

Council’s submission should not be misunderstood as a submission that Mr Palmer is confined to arguing that all infrastructure charges have been paid and that no further balance will become payable. I infer from the context that Council submits that because Mr Palmer requested only the removal of conditions 4 and 5 that he may not now request on appeal two different conditions, being conditions to somehow accord with terms of an Industry Water Conservation Scheme Infrastructure Agreement.

The relevant passages of Council’s submission at paragraphs 42 and 43 appear to be:

42. … The relevant provisions of SPA applying to a request for a permissible change do not, unlike those provisions applying to a development application, contemplate that the request can be changed[85] or withdrawn. It is submitted that an absence of a power to change a request for a permissible change suggests that the legislature intended requests be considered as made.

43. There is a further indicator that the legislature did not intend to provide for requests for permissible changes to be considered in part or be capable of severance to remove components not satisfying s.367(1) of SPA. The indicator is found in s.375(1) of SPA which provides for a responsible entity’s power in deciding a request. That power does not include a power to approve in part. This stands in stark contrast with s.324(1) of SPA which contemplates that an assessment manager may approve a development application in part.

[85]See ss 350 - 355 of SPA.

Reference to SPA s 375 shows that the responsible entity must decide to either approve the request, with or without conditions, or refuse the request. With respect to conditions 4 and 5, Mr Palmer’s request to Council was for all or nothing. It was to remove conditions 4 and 5. It was not a request for reductions or a request for reductions calculated by reference to an Industry Water Conservation Scheme Infrastructure Agreement.

I note that there was a submission for Mr Palmer which was made in response to a related argument by Council. For Mr Palmer I was directed to Rankeilor Developments Pty Ltd v Brisbane City Council[86] as a decision which was argued as illustrating the flexibility that the Court adopts when dealing with an appeal from Council’s refusal of an application to change a development approval. There was no indication within that case that Council argued as it does in this case, based upon SPA s 375(1) that the court is limited to either approving the request, with or without conditions, or refusing it. It is not clear from the report of the case whether the request with amended floor plans was substantially different from the request that had been made. It is possible that, in that case, the approval was an approval of “the request with … conditions” within the meaning of SPA s 375(1)(a). Thus, I am not sure that the circumstances of the case are similar. I am sure that his Honour was not called upon to consider the point made by Council in this case. I am not assisted by reference to that case.
[86][2010] QPEC 151.

Having regard to the request for change to conditions 4 and 5, I accept Council’s argument that Mr Palmer requested a deletion and is limited to running a case to the effect that conditions 4 and 5 be deleted. But that is a victory without a practical consequence. The power in SPA s 375 (1) to approve the request with conditions permits the responsible entity to impose a condition. That power is sufficient to permit an approval of the removal of conditions 4 and 5 subject to a condition that further conditions apply imposing lesser water and sewerage headworks contributions.

Council did not submit that it was unfair for Mr Palmer at this stage of the appeal to seek conditions for lesser contributions.

Mr Palmer is at liberty to apply on this appeal for an order that the contributions imposed by conditions 4 and 5 should be deleted on condition that other conditions be included requiring contributions to a total of $308,160.96 on the basis of the matters set out in Exhibit 6. The evidence is a problem for Mr Palmer on this appeal.

The matters set out in Exhibit 6 include evidence that Council and Mr Palmer are not parties to an agreement between them called an Industry Water Conservation Scheme Infrastructure Agreement (IA). Mr Palmer’s solicitor Mr Nelms believes that if Mr Palmer and Council entered into an IA the water supply and sewerage contributions which Council seeks to impose under conditions 4 and 5 would drop to $308,160.96. Council accepts that such an infrastructure agreement of the kind referred to by Mr Nelms allows for a 10 equivalent tenement per hectare reduction where there is an infrastructure agreement to achieve a particular water consumption rate, expressed in kilolitres of water.

Council submits:

“The Court does not have power to impose a condition on this approval which will oblige the Council, or the Appellant, to enter into an infrastructure agreement. As a consequence, the Court cannot proceed on the premise that the charge should be reduced, either in contemplation of a water conservation infrastructure agreement, or on the premise that the parties are obliged to enter into such an infrastructure agreement.”

I accept the submission that the court does not have the power to oblige Council or Mr Palmer to enter into an IA with each other. On the assumption that Mr Palmer would willingly enter into an IA, I accept that the court does not have power to order Council to do so.

With ingenuity one might draft a condition to reduce the contributions payable by Mr Palmer by an amount which would accord with an IA on the condition that Mr Palmer offered to Council that he would enter into an IA. But Mr Palmer has not requested such a condition, even by submissions. The merits of such a condition and whether it is reasonable have not been explored on this appeal. There is no evidence as to why two other entities have been offered an IA and why Mr Palmer has not or why there is no basis for Mr Palmer to be distinguished from the other two entities. I am not satisfied that Council’s failure to offer Mr Palmer an IA renders conditions 4 and 5 unreasonable.

I reject Mr Palmer’s alternate application made in submissions that conditions 4 and 5 be amended to a total of $308,160.96 on the basis of the calculations set out in the affidavit of Mr Nelms, Exhibit 6.

Should conditions 4 and 5 with respect to sewerage and water network infrastructure be deleted?

Mr Palmer submits “conditions 4 and 5 should be deleted leaving the balance sum pursuant to the 1992 approval of $180,943.55 for water and sewerage infrastructure being payable by Mr Palmer upon demand being made by the Council”. Mr Palmer submits alternatively for a condition for amendment of conditions 4 and 5 of the 2008 approval to the effect that $180,943.55 be the aggregate contribution towards sewerage network infrastructure and water supply network infrastructure.

The development application made on 5 August 2004 which gave rise to the 11 December 2008 decision notice, was made to “regularise” the then existing use.

Mr Palmer’s primary submission was that Conditions 4 and 5 are not reasonably required in respect of the development and are an unreasonable imposition on the development and as a consequence the request to change the conditions ought be approved. The words of the submission which I have italicised are taken by counsel for Mr Palmer directly from IPA s 3.5.30(1).

Council does not contest that any potential which IPA s 3.5.30 has for application in the decision about whether to approve the request to delete conditions 4 and 5 has not been excluded by IPA s 6.1.31.

It is submitted to be an unreasonable imposition on the following bases: [87]

103. In the instant case, the development, the subject of the 2008 development approval is the same development that was the subject of the 1992 consent order, only being carried out in a much less intense way. Moreover, the Council's service demand for industrial development on the site is almost equivalent (as discussed below) between that imposed on the 1992 rezoning approval (15.7 ET/ha) and that now sought to be imposed by the Council (16ET/ha). There is therefore no additional service demand to be paid for by the development. It is only the rates that have changed for that demand for which the applicant elected to have fixed under condition 2.1 of the rezoning approval.
104. The Court will be satisfied that, given that the condition in 1992 was capped in the fixed sum of $271,415.30, it is completely unreasonable to now seek to impose conditions requiring a further contribution of some $587,309.28 for the same use being carried out in a less intensive manner and for the same level of service demand already conditioned under the 1992 rezoning approval.

[87]Submissions of appellant 17 March 2014 [103].

I infer the argument to be: (1) that Mr Palmer’s development which existed in 2008 and was regularised by an approval in 2008 created no greater demands on the sewerage and water headworks than Mr Palmer’s 1992 development would have created; (2) that in 2008 the council was imposing conditions on approvals requiring contributions on an assumption that industrial development created 16 ET/ha of demand upon water and sewerage infrastructure; in 1992 the local authority was imposing conditions asking for contributions on an assumption that industrial development created 15.7 ET/ha demand; those demand assumptions in 1992 and in 2008 are much the same; the basis for requiring an extra $587,309.28 in contributions is that the $/unit rate (whether the units were hectares of ET) applied in 1992 rose significantly by 2008; that suggests that the local authority of the time was not under a major misapprehension about the demand the development would make on water and sewerage infrastructure but may have been under a misapprehension about future costs of providing water and sewerage infrastructure. The third essential part of the argument which is implied in the submission is that (3) Mr Palmer on 22 February 1994 pursuant to his agreement with the Albert Shire Council contained in a consent order, paid that council $90,471.75 within the time required by Condition 3.1.1 and Mr Palmer’s conduct in making that payment was an election by him to fix the contributions towards the construction of water supply and sewerage infrastructure at the 1990/1991 rates being a total contribution of $271,415.30.

It is on the bases of those 3 arguments that Mr Palmer’s counsel submits a further requirement for contributions calculated using 2008 or current $/ET rates rather than 1992 rates is not reasonably required in respect of the development and are an unreasonable imposition on the development.

As to proposition (1) Council submits: that this proposition should be rejected (a) as Mr Palmer has the onus of proof of the scope and scale of the use and Council submits there is a paucity of evidence in relation to the scale and intensity of the use as at February 1995 when the 1988 Planning Scheme was repealed; (b) Council submits that there has been a material change of use by 2008; (c) because there has been construction after February 1995 of 10,000 m²of gross floor area, and the reduction in the use of the land for the fabrication component of the business.

As to Council’s argument (b) Council submits that by making the development application for a material change of use and by consenting to the order made on 11 June 2004 Mr Palmer is taken to have accepted that the use of the land involved a material change of use over and above any existing lawful use right which he enjoyed and that as a matter of law the lawful use which was authorised in 1994 under the 1988 Albert Shire Planning Scheme is not the same use which is authorised under the 2008 approval.

Mr Palmer’s conduct in consenting to the order[88] made on 11 June 2004 was not an express admission that there had been a material change of use. It is better interpreted as an admission that an unlawful use had commenced and that unlawful buildings had been constructed. But Mr Palmer’s conduct on 5 August in making the development application for a material change of use is prima facie evidence that there had been a “material change of use” as that term was then defined. The IPA was in force at the date of the application. The meaning of a “material change of use” under the IPA, like the meaning under the SPA was: the start of a new use of the premises, or the re-establishment of an abandoned use or a material increase in the intensity or scale of use of the premises.
[88]See order set out above at [26].

I am not satisfied that there was not a material change of use between 1992 and 2004. It does not follow that there has been material increase in the intensity or scale of use of the premises between 1992 and 2004 that affects demand upon water or sewerage infrastructure or that the use in 2004 was not a use in the contemplation of Council in 1992 when the conditions were imposed requiring water and sewerage contributions.

What the material change of use was, which Mr Palmer sought to regularise, is not the subject of submissions. The construction of buildings allowing for increased warehousing could have resulted in a material increase in the intensity or scale of use of the premises for warehousing and thus been a material change of use. Accepting as I do the evidence of Mr Palmer that the intensity of use for manufacturing peaked between 1993 and 1996, and accepting his other evidence from which I infer that the manufacturing would have peaked in early 1995 and accepting that employee numbers at the peak of manufacturing were 100 but reduced thereafter to 2014’s 20 employees and that any extra building under roof was exclusively for storage so as to prevent deterioration of goods and that 99% of the goods are manufactured overseas, I am satisfied that no material change of use increased demand on water infrastructure or sewerage infrastructure.

Those findings mean that I reject council’s submission (a) that Mr Palmer fails to satisfy his onus of proof of the scope and scale of the use as at February 1995 when the 1988 Planning Scheme was repealed. The scope and scale then was at its peak in all relevant things but warehousing under roof. As to Council’s submission (c), I accept that there has been construction after February 1995 of 10,000 m²of gross floor area, and the reduction in the use of the land for the fabrication component of the business but that does not substantially impeach the submission for Mr Palmer that “the development the subject of the 2008 development approval is the same development that was the subject of the 1992 consent order, only being carried out in a much less intense way”. It was being carried out in 2008 in a less intense way than in early 1995.

The amount payable by Mr Palmer to Council as a contribution pursuant to condition 2 of the consent order of 1992 was $271,415.30. It reflected the total water supply and the total sewerage demand for the whole of the land rezoned as Light Industry. The conditions of the rezoning did not set any limit on the intensity of the use in the Light Industry zone.

It is submitted for Mr Palmer that the water supply and sewerage demand of the use on the land at the time of the decision notice on 11 December 2008 would have been less than the service demand contemplated by the conditions of the consent order of 1992 providing for contributions as the 2008 approval limits the number of employees on the land at any time to 45. I accept that the use to be made of the land at the time of the decision notice on 11 December 2008 would not have created a greater service demand on water and sewerage infrastructure than the use for which the contributions of 1992 were required.

There has been legislation in Queensland which regulated the requirements which local government could impose upon an applicant for the payment of a contribution towards the cost of water supply headworks and sewerage headworks.[89] The effect of the legislation until 14 October 2003 was generally that where local government required an applicant to pay a contribution towards the cost of headworks and where that requirement was satisfied and a further development application was made relating to the land the local government was not permitted to require another contribution towards the cost of water supply headworks or sewerage headworks unless the use then to be made of the land would create a greater demand on the works than the demand for which a contribution had already been made.
[89]Local Government Act 1936 (repealed) s 33(18E)(d), Local Government Planning and Environment Act 1990 (repealed) s 6.2(5) and the Integrated Planning Act 1997 (repealed) s 6.1.31.

That former legislation was relied upon by Mr Palmer in combination with s 3.5.30 of the IPA (repealed) and the decision in Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065. Those sections from IPA are set out above. In Evans Harch, Robin DCJ regarded s 6.1.31 of IPA as controlled by s 3.5.30 which enacted requirements of relevance and reasonableness so far as conditions of a development approval are concerned.[90] With respect to the repealed statutes which were concerned with preventing “double dipping” his Honour held that there was no legislative intention to change the law regarding “double dipping”.[91]
[90]Evans Harch at [10].
[91]Evans Harch at [21].

Council did not submit that those propositions were contested. On the contrary, Council submitted:[92]

“The relevant question is identified… by reference to the Evans Harch case. The question is whether (Mr Palmer) who bears the onus of proof, has persuaded the court that the development now proposed was in the contemplation of the then Applicant for the use (Mr Palmer) and the Council at the time the 1992 rezoning approval was granted.”

To that question I have already made a finding against the Council. Notwithstanding a material change of use, so far demand on water and sewerage headworks were concerned, the development in 2008 was a development in contemplation of the council in 1992.

[92]Reply of the respondent [40].

Council accepts that the amount which was payable for water and sewerage headworks under the 1992 rezoning was an amount which reflected the water and service demand for the development contemplated by the 1992 rezoning.

I accept that conditions 4 and 5 were imposed by Council under s 6.1.31 of IPA, that condition 4 was imposed in reliance upon Planning Scheme Policy 3B and that condition 5 was imposed in reliance upon Planning Scheme Policy 3A.

Conditions 4 and 5 are calculated by multiplying the number of determined equivalent tenements (ETs) by a dollar amount per ET.

In both cases, for condition 4 and 5, the Council have applied 43.2427 equivalent tenements[93]. The equivalent tenements of 43.2427 was calculated as follows:

(a) the density unit of 16 equivalent tenements per hectare[94] is multiplied by the gross area of the site (4.054 hectares) and a yield factor of 1.0. This, when multiplied, equates to a charge quantity of 64.864 equivalent tenements;[95]
(b) the gross charge quantity of 64.864 equivalent tenements was reduced to acknowledge a credit arising out of the 1992 rezoning. A credit of 21.6214 equivalent tenements was applied thereby reducing the number of equivalent tenements to 43.2426 equivalent tenements;[96]
(c) the credit of 21.6214 equivalent tenements is equivalent to one-third of the gross charge of 64.864 equivalent tenements. The reduction of one-third was given as a credit to reflect that:
(i) under the 1992 rezoning deed, a bond of $90,471.75 was provided to the Council to secure a contribution for water and sewerage head works in the sum of $271,415.30[97]; and
(ii) the bond equates to one-third of the overall contribution sought under the 1992 rezoning.

[93]Exhibit 1, page 358.

[94]In accordance with Table 8.1 of Policy 3A and Table 8.1 of Policy 3B.

[95]Exhibit 2, page 407, para 5(b).

[96]Exhibit 2, page 507, para 5(c).

[97]Exhibit 1, page 35.

Council submits that the approach taken by the Council with respect to conditions 4 and 5:

(a) reflects that the Appellant has provided a bond in relation to a use right which no longer subsists,[98] and that bond has not been refunded by the Council;
(b) that the Council is prepared to apply the bond in a way which is consistent with its provision in the first instance – that is, to secure the payment of a contribution;
(c) that the credit applied by the Council is not limited in dollars to an amount paid in 1992 – the credit applied respects that, in dollar terms, $90,000 paid in the mid-1990s would not be equivalent to the same sum in 2008 or 2014.

[98]The use right under the 1992 rezoning no longer subsists because it has been repealed by the 1995 Albert shire Planning scheme and overtaken by the use rights conferred by the 2008 development approval – this is the approval which has been acted upon by the Appellant and is the source of his rights to conduct the use on his land.

Council submits that the approach taken by the Council is an orthodox one. There is nothing in the calculations which would suggest that appropriate credit has not been given to the history of the subject land and the Appellant’s use as conducted, in its various iterations, on the land.

This provoked no submission from Mr Palmer. I accept that Council’s approach was orthodox. I infer that the bond was not a payment of contributions, but as its name suggests was security for payment of contributions but that when the time for payment arose the bond would be treated as a payment in reduction of the contributions. Conditions 4 and 5 achieved some fairness by treating Mr Palmer’s bond payment made in 1994 as if it was sufficient to cover one third of the contributions yet to be made. That was the same proportion of contributions the bond represented in 1992 when the consent order was made. It may be orthodox and achieve some fairness but does it sufficiently recognise that when Mr Palmer paid a bond in 1994 it was to secure a right? That right was to have contributions calculated at 1992 rates. That right was to have three thirds (not one third) of his contributions fixed at 1992 rates. Council’s orthodox offer to treat the bond as the equivalent of a bond that will satisfy one third of the contributions payable at current rates does not equate to the right Mr Palmer secured in 1994. Council’s orthodox approach seems to me (without the benefit of argument) to be fair for occasions where a developer makes a prepayment of a proportion of contributions but before the balance contribution falls due the rates for contribution calculations increase. That is different from the situation when Mr Palmer’s bond was paid. The payment was made and accepted on the agreed and ordered basis that if so paid:

calculation of such contributions shall, at the election of (Mr Palmer), be fixed at the 1990/1991 rates of $42,450.00 (water) and $24,500.00 (sewerage) per hectare, being the rates applicable at the date of the application. If the Appellant so elects, the total contributions are agreed in the sum of $271,415.30.

The benefits Mr Palmer achieved by making his payment in 1994 are not sufficiently recognised by Conditions 4 and 5. The issue is whether it follows that they are not reasonably required in respect of the development and are an unreasonable imposition and if so the request for change should be allowed.

Council set out four assumptions underpinning Mr Palmer’s case and attacked them.

The first was that the conditions of the 1992 rezoning continued to apply to Mr Palmer’s use of the land in form as approved in December 2008. It is not obvious why Mr Palmer must establish that those conditions continue to apply to his use of the land. The issue arising from IPA s 3.5.30 is whether conditions 4 and 5 are reasonably required in respect of the development and are not an unreasonable imposition on the development.

The second assumption submitted to underpin Mr Palmer’s case is that the current use of the land is substantially the same development as that approved under the 1992 rezoning. Because of extra warehousing under roof it may amount to a material change of use. But for reasons explained above I have found that the use of the land regularised in 2008 created no greater demand on water and sewerage headworks than the use contemplated in 1992. For that demand, upon the condition that a bond was paid a precise contribution had already been agreed.

The third assumptions which Council submitted underpinned Mr Palmer’s case seemed to be that the water and sewerage service demand generated by the existing development to which the present application relates is no greater than the service demand for the development contemplated by the 1992 rezoning.[99] I have made a finding that it is no greater.
[99]Respondent’s written submissions para 65(d) and 99-106.

The final underpinning submission of Mr Palmer identified by Council for rebuttal was that “the time for payment of the contributions required by the 1992 conditions has not yet arrived”[100]. This matter was not further developed by Council. The inclusion of it as a proposition to be attacked led me to expect that Council would submit it was payable. The submission did not emerge. I note that Mr Palmer accepts that the balance sum pursuant to the 1992 approval of $180,943.55 for water and sewerage infrastructure is payable by him upon demand being made by the Council.[101]
[100]Respondent’s written submissions para 65(e).
[101]The appellant’s response to the primary written submissions of the respondent para 57(i).

This is not a case of double dipping where a developer or a developer’s successor in title is made subject to a condition to pay for headworks a second time. It is a case where an agreement struck in 1992 and fulfilled by Mr Palmer entitling him to pay contributions at 1991/1992 rates has not been fully recognised by conditions 4 and 5.

The fact that Mr Palmer has not paid the balance contributions of $180,943.55 for water and sewerage infrastructure imposed is submitted by him to be because Council failed to ask for them. Council does not submit otherwise. I accept Mr Palmer’s submission that the contributions are payable by him upon demand being made by the Council. It is not unreasonable for Mr Palmer to expect Council to recognise that in 1994 he performed his part of the bargain he made in 1992 in expectation that contributions for sewerage and water would be fixed. It is an unreasonable imposition to impose conditions 4 and 5 which do not credit Mr Palmer with the benefit of that bargain.

I am satisfied that conditions 4 and 5 are an unreasonable imposition.

Should condition 6 be changed to require a contribution of $70,907.85?

Mr Palmer’s contention is that condition 6 is not reasonably required. Condition 6[102] requires that Mr Palmer pay to Council contributions toward Transport Network Infrastructure in accordance with Planning Scheme Policy in 19-Policy for Infrastructure Transport Network Developer Contributions at the rate current at the due date for payment (Policy 19). Condition 6 provided that the contribution current at the date of the approval was 946.2 Vehicle Trips per Day at $391.75 for a total of $370,673.85. Condition 6 went on to provide that the contribution amount payable at the due date for payment would be calculated at rates current under the Policy or equivalent charging instrument in force at the date of payment.
[102]Exhibit 1, page 358.

Policy 19 provides:

“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.

Policy 19 provides further:

7.0 Calculation of developer contributions
Developer contributions are based on the number of vehicle trips per day (VPD) generated by the proposed development/redevelopment. Table 7.1 shows the relationship between traffic generation and development type. In general terms one detached residential house equals 6.5 VPDs. If the development type is not listed in table 7.1 the vehicle trip(s) attributable to the development will be assessed on a case by case basis.” (emphasis added).

Table 7.1 within Policy 19 identifies the number of vehicle trips per day which will be applied to particular development types. Relevantly, table 7.1 identifies the following development types:

(a) Industry (Heavy/Manufacturing) as generating 0.05 vehicle trips per day per m² of the Total Use Area; and

(b) Warehouse as generating 0.05 vehicle trips per day per m²of the Total Use Area.[103]

[103]Exhibit 2, pages 583 and 585.

Council in arriving at condition 6 applied a Total Use Area of 18,942m². Neither party takes issue with the use of that Total Use Area (TUA) in the calculation for condition 6.

The issue seems to be confined to whether the number of Vehicle Trips per Day (VPD) to be applied to the rates current under the Policy should be 946.2 VPD as Council contended in condition 6 and contended on this appeal (or alternatively as submitted for Council 614.9 VPD) or 155 VPD as is contended for Mr Palmer.

Mr Palmer was not required to pay a contribution to Council for transport network infrastructure under the terms of the 1992 rezoning.

For Mr Palmer it is submitted that it is relevant that the use was at its most intense when the business employed about 100 employees and that employee numbers dropped to 45 and are currently in the order of 20 and that the use is conditioned in the 2008 development approval to have no more than 45 staff engaged on the premises at any one time; that the prospect of the land’s resumption means that the uses will not intensify. I accept that Mr Palmer does not regard it as sensible for him to invest further in the land or the business on the land while uncertainty remains about when the land will be resumed. Mr Palmer contends that the proper approach is to determine the number of VPDs generated by the actual development. If so, one could take into account things such as the actual average trip generation for vehicles travelling to and from the land and Mr Palmer’s choice to operate the premises with fewer employees and less manufacturing onsite than would be permitted by the conditions of the 2008 approval.

Council submits that, in terms of reasonableness and relevance of a condition, the correct approach is to look at what number of vehicle movements could be anticipated by an approved development rather than looking at what vehicle movements are generated at a particular time. Council submitted that consequences from Council’s approach are that:

1. contributions are not reduced because an owner chooses to under-utilise the land;

2. contributions will not reduce where an owner makes a business choice to wind down or reduce the scale of activity due to changing economic conditions while retaining the ability to increase activity under an approval if economic conditions improve;

3. the use on land may be subject to seasonal fluctuations not appropriately reflected in a traffic survey carried out over a three day period; and

4. a new operator, being a landowner or tenant may take up the full potential development of the land as authorised by the development approval granted in 2008 and increase the vehicle movements above those generated by Mr Palmer’s business or above those observed on the occasions of surveys in 2004 and 2014.

Section 7 of Policy 19 will typically be applied when no actual use has commenced. Typically it will be applied in circumstances where the proposed development is no more than a proposal and traffic engineers will be required to estimate demand having regard to the usual tools at their disposal such as traffic generation rates prescribed in documents produced by the DTMR and the equivalent from New South Wales.

There is nothing special or unique about Mr Palmer’s use of the land which means that it could not be adapted to a general industry use for any user. There is nothing special about the structures on the land which dictates that they can be used only in the form in which they presently are used. The development approved by the decision notice dated 11 December 2008 has the potential to generate a greater number of vehicle movements than are generated by Mr Palmer’s use of his land. The development approved for the land can be contrasted with a development such as exists on land of Visy used for a recycling plant. The use for paper recycling is site specific and cannot, without substantial changes, be adapted to another user.

I reject the submission for Mr Palmer that Policy 19 section 7.0 says that the correct approach is to look at VPD actually generated by a development. Section 7.0 permits the assessment of contributions based on the number of VPD for a proposed development or proposed redevelopment. Such contributions would remain “relevant and reasonable” within the meaning of Policy 19 despite being based on calculations done while the development was proposed. I accept Council’s submission that in terms of reasonableness and relevance, the correct approach is to look at what VPD could be anticipated by an approved development rather than to look at the actual VPD generated when a development is in use.

The approach of Council’s expert witness in traffic engineering, Mr Beard is consistent with my finding as to how Policy 19 section 7.0 should be applied. Mr Beard assessed the VPD for a typical development of this scale of the type that was proposed to be approved and as could occur on the site without any further approvals or contributions. Mr Beard was not cross-examined. His relevant opinions were that the original calculation in condition 6 based on 946.2 trips per day, being 0.05 trips per day per m² and applying a TUA of 18,942m² was reasonable and soundly based noting that, with the now proposed change of TUA the contribution would be based on 1,010.45 VPD. He regarded 1,010.45 VPD as at the upper end of the reasonable range if this was a conventional assessment of the traffic generating potential of the development on the land. Mr Beard assessed the number of VPD to be in the order of about 615 on the assumption that outdoor storage areas are not included in the calculation of the relevant use area. In his opinion that estimate would be conservative and Mr Beard regarded it as representing the bottom end of the reasonable range of daily traffic generations. He considered that any contribution based on between 614.9 and 1,010.45 VPDs would be reasonable for the subject development. I accept these parts of his evidence.

I am not satisfied that the 945 VPD used in the calculation of condition 6 was unreasonable. Mr Palmer has failed to satisfy his onus of proof that condition 6 was not reasonably required and that it should be amended to reflect a rate of 155 VPD.

Should the ERA approval be deleted?

Most of the relevant condition appears above.[104] Mr Palmer submits that the approval of the issue of a Development Permit for ERA 26 “metal forming” serves no utility. The condition was based upon a premise that the use of the land would involve “hot forming”. That includes heating metal and pressing, forging, extending, extruding or rolling it or forming metal into plate, wire or rods or fabricating metal into sheets. The use undertaken on the land does not involve and never has involved the uses that constitute hot forming. Mr Palmer applies for the condition to be changed by deleting it.
[104]At [33].

Council opposes that change. Council’s bases are set out above.[105] Council’s concern is with the deletion of the eight conditions which are particular to the Environmentally Relevant Activity. Because those conditions do not relate to the approved use, Mr Palmer’s use is not constrained by those conditions. It means the removal of those conditions will have no impact on amenity.
[105]See the section entitled “are changes to remove ERA 26 and to remove the conditions of that approval for ERA 26 a permissible change?”.

The request to delete section B relating to the ERA approval is allowed.

As appeal 4433 of 2013 is allowed in part, Council wishes to be heard on the appropriate form of changes to the conditions. For Mr Palmer it is submitted that it is appropriate that the determination of appeal 3720 of 2013 await the determination with respect to appeal 4433 of 2013. I accept that the parties should have the opportunity to consider how appeal 3720 should be determined on the basis of the mixed success which Mr Palmer has had in appeal 4433.

CITATION:	Palmer v Gold Coast City Council [2014] QPEC 73
PARTIES:	DAVID JOHN EDWIN PALMER (Appellant) v GOLD COAST CITY COUNCIL (Respondent)
FILE NO/S:	Appeal 3720 of 2013 and Appeal 4433 of 2013
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	19 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2014, submissions to 24 March 2014
JUDGE:	Andrews SC DCJ
ORDER:	Appeal 4433 of 2013 adjourned to a date to be fixed to allow the parties to formulate conditions consistent with these reasons. Appeal 3720 of 2013 adjourned to a date to be fixed allow the parties to make submissions after considering these reasons. Costs reserved.
CATCHWORDS:	PLANNING AND ENVIRONMENT – INFRASTRUCTURE CHARGES – where the developer and local authority agreed in 1992 that if the developer paid a bond in respect of infrastructure contributions those contributions when payable would be calculated at 1992 rates – where the developer paid the bond – where the contributions remained unpaid in 2008 – where council imposed conditions upon an approval in 2008 that the developer pay a portion of infrastructure contributions at 2008 rates – whether the development approved in 2008 was in contemplation of the developer and local authority in 1992 – whether the conditions were an unreasonable imposition on the development – whether the conditions should be changed PLANNING AND ENVIRONMENT – APPEALS – Where council imposed a condition of development approval requiring payment of infrastructure charges – where the developer appealed against the condition on a ground that it was unreasonable – where the developer also requested council to change the condition on the ground that it was unreasonable – where council refused the request to change the condition – where the developer discontinued the appeal – where the developer commenced an appeal against the refusal to change the condition on a ground that the condition was unreasonable – where the developer could have had that issue determined in the earlier appeal if it had not been discontinued by the developer – whether the developer could maintain that ground of appeal after discontinuing an appeal based upon an identical ground and after having received the benefit of the development approval which was conditional upon the obligation to pay infrastructure charges Sustainable Planning Act 2009 s 367(1), s 466, s 473, s 759 Integrated Planning Act 1997 (repealed) ss 3.5.30, 3.5.32(1)(b) and 6.1.31 Local Government (Planning & Environment) Act 1990 (repealed) s 3.3(1) Hickey Lawyers (A Firm) & Ors v Gold Coast City Council (2005) QPEC 022 Heritage Properties Pty Ltd [2010] QPELR 510 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re AWB Limited (No. 10) [2009] VSC 566 Rankeilor Developments Pty Ltd v Brisbane City Council [2010] QPEC 151 Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065
COUNSEL:	Ure for the Appellant Williamson for the Respondent
SOLICITORS:	Thomsons Lawyers for the Appellant McCullough Robertson for the Respondent