Timor 34 Pty Ltd v Logan City Council - [2024] QPEC 27

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Timor 34 Pty Ltd v Logan City Council [2024] QPEC 27

PARTIES:

TIMOR 34 PTY LTD (ACN 653 374 942)

(appellant)

v

LOGAN CITY COUNCIL

(respondent)

FILE NO/S:

94 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal against an infrastructure charges notice

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

30 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

16 and 22 May 2024

JUDGE:

Williamson KC DCJ

ORDER:

1. THE APPEAL IS DISMISSED.

2. THE DECISION TO GIVE INFRASTRUCTURE CHARGES NOTICE NUMBER LCC/067/2023 IS CONFIRMED.

CATCHWORDS:

PLANNING & ENVIRONMENT – APPEAL – where appeal against an infrastructure charges notice – whether the infrastructure charges notice contains an error relating to the application of Logan Charges Resolution (No.10) 2022 – whether the amount of the levied charge is so unreasonable that no reasonable local government could have imposed the amount.

LEGISLATION:

Planning Act 2016, ss 75, 113, 114 119, 120, 125, 229 and Schedule 1
Planning Regulation 2017, s 52 and Schedule 16
Planning & Environment Court Act 2016, ss 45 and 47

Sustainable Planning Act 2009, s 636

CASES:

Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation 1948 1 KB 223
AAD Design P/L v Brisbane City Council [2013] 1 Qd R 1
Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318
Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28
Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13
Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No.1) [2001] QPELR 414
Toowoomba Regional Council v Wagner Investments Pty Ltd (2020) 5 QR 477

Shroff v McSporran (1987) 65 LGRA 33

COUNSEL:

Mr C Hughes KC with Mr L Walker for the appellant

Mr B Job KC with Mr K Wylie for the respondent

SOLICITORS:

McKeown Solicitors for the appellant

McInnes Wilson Lawyers for the respondent

Introduction

This is an appeal against Infrastructure charges notice number LCC/067/2023 (the ICN), given by Council. The giving of the ICN, which is dated 1 February 2023, followed a decision to grant a conditional development approval for the making of a material change of use of land at Timor Avenue, Loganholme. The approval, which is contained in a negotiated decision notice (the NDN), authorises the start of a new use of land, namely ‘Rooming accommodation’ (6 x 12 units (72 bedrooms))’. The NDN states that the approved development was assessed against specific parts of version 8.1 of Council’s 2015 planning scheme (the planning scheme). Rooming accommodation is a defined use in the planning scheme.

The calculation for the levied charge was undertaken by reference to ‘Logan Charges Resolution (No.10) 2022’ (the charges resolution). A review of the calculation reveals there are two elements to the charge. The disputed issues are directed towards only one element, namely the adopted infrastructure charge, which is calculated…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Timor 34 Pty Ltd v Logan City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] QPEC 27
Decision Date: 30 May 2024

CaseChat Overview and Summary

The case before the court involved an appeal by Timor 34 Pty Ltd against an infrastructure charges notice issued by Logan City Council. The appellant contested the notice, claiming that there was an error in the application of Logan Charges Resolution (No.10) 2022, which was used to determine the charges levied. The appellant argued that the amount of the charge was unreasonable to the point where no reasonable local government could have imposed it. The court was tasked with determining whether the council had correctly applied the relevant legislation and whether the charge was unreasonable.

The central legal issue was whether the charges notice contained an error in the application of the Logan Charges Resolution (No.10) 2022. The appellant contended that the council had incorrectly applied the resolution, resulting in an unreasonable charge. The court had to examine the resolution, the process of applying it, and whether the council's actions were within the bounds of reasonableness. Additionally, the court needed to consider whether the charge was so excessive that it would be unreasonable for any local government to impose such a charge.

In delivering its decision, the court found that the council had correctly applied the Logan Charges Resolution (No.10) 2022. The court thoroughly reviewed the application of the resolution and concluded that there was no error in the council's process. Furthermore, the court determined that the amount of the charge was not unreasonable and was within the scope of what a reasonable local government could impose. The court dismissed the appeal and confirmed the council's decision to issue the infrastructure charges notice.

The final orders of the court were that the appeal was dismissed and that the decision to issue the infrastructure charges notice number LCC/067/2023 was confirmed. The council's actions were upheld, and the appellant's challenge to the charges was rejected.

Orders

Orders of the court

1. THE APPEAL IS DISMISSED.

2. THE DECISION TO GIVE INFRASTRUCTURE CHARGES NOTICE NUMBER LCC/067/2023 IS CONFIRMED.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Timor 34 Pty Ltd v Logan City Council [2024] QPEC 27
PARTIES:	TIMOR 34 PTY LTD (ACN 653 374 942) (appellant) v LOGAN CITY COUNCIL (respondent)
FILE NO/S:	94 of 2023
DIVISION:	Planning and Environment
PROCEEDING:	Appeal against an infrastructure charges notice
ORIGINATING COURT:	Planning and Environment Court, Maroochydore
DELIVERED ON:	30 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	16 and 22 May 2024
JUDGE:	Williamson KC DCJ
ORDER:	1. THE APPEAL IS DISMISSED. 2. THE DECISION TO GIVE INFRASTRUCTURE CHARGES NOTICE NUMBER LCC/067/2023 IS CONFIRMED.
CATCHWORDS:	PLANNING & ENVIRONMENT – APPEAL – where appeal against an infrastructure charges notice – whether the infrastructure charges notice contains an error relating to the application of Logan Charges Resolution (No.10) 2022 – whether the amount of the levied charge is so unreasonable that no reasonable local government could have imposed the amount.
LEGISLATION:	Planning Act 2016, ss 75, 113, 114 119, 120, 125, 229 and Schedule 1 Planning Regulation 2017, s 52 and Schedule 16 Planning & Environment Court Act 2016, ss 45 and 47 Sustainable Planning Act 2009, s 636
CASES:	Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation 1948 1 KB 223 AAD Design P/L v Brisbane City Council [2013] 1 Qd R 1 Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28 Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13 Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No.1) [2001] QPELR 414 Toowoomba Regional Council v Wagner Investments Pty Ltd (2020) 5 QR 477 Shroff v McSporran (1987) 65 LGRA 33
COUNSEL:	Mr C Hughes KC with Mr L Walker for the appellant Mr B Job KC with Mr K Wylie for the respondent
SOLICITORS:	McKeown Solicitors for the appellant McInnes Wilson Lawyers for the respondent