Waverley Road Developments Pty Ltd v Gold Coast City Council

Case [2011] QPEC 59

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPEC 59

PARTIES:

Appeal 439 of 2006

WAVERLEY ROAD DEVELOPMENTS PTY LTD (ACN 116 117 955)

(Appellant)

v

GOLD COAST CITY COUNCIL

(Respondent)

Originating Application 1249 of 2009

WAVERLEY ROAD DEVELOPMENTS PTY LTD (ACN 116 115 955)

(Applicant)

and

GOLD COAST CITY COUNCIL

(Respondent)

Originating Application 1277 of 2009

GOLD COAST CITY COUNCIL

(Applicant)

and

WAVERLEY ROAD DEVELOPMENTS PTY LTD (ACN 116 114 955)

(Respondent)

FILE NO/S:

Southport 439 of 2006

Brisbane 1249 of 2009 and 1277 of 2009

DIVISION:

Planning & Environment

PROCEEDING:

Appeal and Originating Applications

ORIGINATING COURT:

Southport and Brisbane

DELIVERED ON:

29 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 25 September and 16, 17, 18, 19 and 20 November 2009 and 1, 2, 3 and 5 March 2010

JUDGE:

Andrews SC DCJ

ORDER:

The declarations sought by Waverley in its amended originating application are refused.

I declare that upon the court deciding to approve the development application for reconfiguring  a lot in Southport Appeal No 439 of 2006, Gold Coast City Council is entitled to levy charges for the recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule by giving an infrastructure charges notice.

I adjourn the proceedings to a date to be fixed to allow the parties to prepare minutes of order after considering my reasons.

CATCHWORDS:

Where application for development permit for reconfiguration of lot - where preliminary approval issued-where application lacked detail of internal sewerage infrastructure and connectivity - whether council obliged to grant development permit-where infrastructure charges schedule introduced after preliminary approval - whether basis of council’s decision relevant to discretion under Repealed Integrated Planning Act 1997 (Qld) s 4.1.52 (2)(a)to apply subsequent laws and policies-whether planning scheme policy made prior to 16 October 2003 remains valid if it applied, adopted or incorporated another document prepared by a local government-whether council assessed application against ECSIS-whether such an assessment would breach Repealed Integrated Planning Act 1997 (Qld) s 2.1.18(2)-whether council had an onus of proof that compliance with the applicable code could not be achieved by imposing conditions-whether Repealed Integrated Planning Act 1997 (Qld) s 3.5.13 (4) made it improper for an assessment manager to give a preliminary approval where a development permit had been sought for a code assessable application-whether council may deliver infrastructure charges notice based on the subsequent infrastructure charges schedule upon court deciding appeal - whether infrastructure policy invalid on proper interpretation of gazette notices – where Minister not notified of invalidity issue – whether to permit challenge to validity in absence of notifying Minister -

Repealed Integrated Planning Act 1997 (Qld) s 2.1.18(2), s 2.1.23(4) s 3.5.11(3), s 3.5.13(2), s 4.1.52 (2)(a), s 5.1.8 (2), s 5.1.8 (3), s 6.1.20, s 6.2.2

Sustainable Planning Act 2009 (Qld) s 631, s 663(2), s 848 (2), s 848(3)(b)(ii).

Statutory Instruments Act 1992 s 20

East Coomera Sewerage Infrastructure Strategy

Reservilt P/L v Maroochy Shire Council [2002] QCA 367

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Details
AGLC
Waverley Road Developments Pty Ltd v Gold Coast City Council [2011] QPEC 59
Case
[2011] QPEC 59
Decision Date

CaseChat Overview and Summary

Waverley Road Developments Pty Ltd sought to reconfigurate a lot in Southport. The Gold Coast City Council was the respondent. The dispute arose from the council's refusal to grant a development permit despite issuing preliminary approval. The Queensland Land Court heard the case. The primary legal issue was whether the council was obliged to grant the development permit, given the application's lack of detail about internal sewerage infrastructure and connectivity. Another issue was whether the council's decision was relevant to its discretion under the Repealed Integrated Planning Act 1997 (Qld) s 4.1.52 (2)(a) to apply subsequent laws and policies, considering an infrastructure charges schedule was introduced post-approval. The court also examined if planning scheme policies made before 16 October 2003 remained valid if they applied, adopted, or incorporated another document prepared by a local government. Additionally, the court considered whether the council had assessed the application against the Environmental and Community Sustainability Information System (ECSIS) and if such an assessment would breach Repealed Integrated Planning Act 1997 (Qld) s 2.1.18(2). The court ruled that the council was not obliged to grant the development permit due to the application's deficiencies. The council's decision was deemed relevant to its discretion under s 4.1.52 (2)(a) of the Act. The planning scheme policies were valid, as they applied, adopted, or incorporated another document prepared by a local government. The council did not breach s 2.1.18(2) of the Act by assessing the application against ECSIS. The court also held that the council had no onus of proof that compliance with the applicable code could not be achieved by imposing conditions. The Repealed Integrated Planning Act 1997 (Qld) s 3.5.13 (4) did not make it improper for an assessment manager to give a preliminary approval where a development permit had been sought for a code assessable application. The court declared that if it approved the development application for reconfiguring a lot in Southport, the council was entitled to levy charges for the recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule by giving an infrastructure charges notice. The court also ruled that the council could deliver an infrastructure charges notice based on the subsequent infrastructure charges schedule upon court deciding the appeal. The court found the infrastructure policy valid on proper interpretation of the gazette notices and held that the Minister was not notified of the invalidity issue. The court permitted the challenge to the validity in the absence of notifying the Minister.

Orders

Orders of the court

The declarations sought by Waverley in its amended originating application are refused.

I declare that upon the court deciding to approve the development application for reconfiguring a lot in Southport Appeal No 439 of 2006, Gold Coast City Council is entitled to levy charges for the recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule by giving an infrastructure charges notice.

I adjourn the proceedings to a date to be fixed to allow the parties to prepare minutes of order after considering my reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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