Waverley Road Developments Pty Ltd v Gold Coast City Council
[2011] QPEC 59
•29 April 2011
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schedule introduced after preliminary approval - whether basis of council’s decision relevant to discretion under Repealed Integrated Planning Act 1997 (Qld) s 4.1.52 (2)(a)to apply subsequent laws and policies-whether planning scheme policy made prior to 16 October 2003 remains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by a local government-whether council assessed application against ECSIS-whether such an assessment would breach Repealed Integrated Planning Act 1997 (Qld) s 2.1.18(2)-whether council had an onus of proof that compliance with the applicable code could not be achieved by imposing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 distinguished
Adam & Anor v Gold Coast City Council [2007] QPEC 25, (2007) QPELR 379 followed
COUNSEL:
Gallagher QC and Kefford of Counsel, for the Gold Coast City Council
Quirk of Counsel, for Waverley Road Developments Pty Ltd
SOLICITORS:
Minter Ellison Gold Coast, for the Gold Coast City Council
Mullins Lawyers for Waverley Road Developments Pty Ltd
TABLE OF CONTENTS
Introduction…………………………………………………………….….…………[1]
Nature of Proceedings………………………………………………….….……. ..…[3]
Utility of Waverley’s 2nd and 3rdDeclarations………………………….….………..[11]
Issues in Dispute………………………………………………………….…………[12]
Relevant Jurisdiction of the Planning and Environment Court………….………….[22]
Applicable legal principles with respect to determining the appeal…….…………..[23]
Applicable laws and policies for deciding the Appeal………………….…………..[32]
The Court’s powers in deciding an appeal……………………………….…………[42]
The issues to be determined in the appeal……………………………….…….……[49]
Planning History of Site and Surrounds………………………………….……...….[55]
Sewerage infrastructure capacity and connectivity generally…………………...….[56]
Legality of Council’s use of ECSIS………………………….……………………..[57]
Sewerage Infrastructure Capacity and Connectivity…………………….………….[65]
Waverley’s onus argument for the 2006 Preliminary Approval…………………....[80]
Was a development permit appropriate on 8 August 2006…………………………[86]
Fairness Issues……………………………………………………………………..[103]
Can Council give an infrastructure charges notice: s 5.1.8 IPA/s 633 SPA
Arguments………………………………………………………………………….[104]
Validity of Policies……………………………………………………………..…..[134]
Introduction
This appeal and two originating applications were heard together. The hearing of this matter commenced on 8 July 2009 before another judge and was adjourned to 23 September 2009 for further hearing. His Honour was unable to continue the hearing on that date. The proceedings came before me that day. I ordered[1] that the hearing continue as if it had commenced before me and that the matters admitted into evidence before his Honour be evidence in the proceedings before me. The hearing concluded on 5 March 2010 and judgment was reserved. On 5 July 2010, upon an undertaking from Waverley that it will comply with any conditions and/or requirements in relation to the contributions/charges in dispute, once they are ultimately determined, I made orders that part of the development may start before the Appeal is decided for the limited purpose of applying for and obtaining effective development approvals for certain operational works.
[1] On Waverley’s application without objection from Council pursuant to s 4.1.15 sub-s 2(b) of the Integrated Planning Act.
Appeal No. 439/06 was commenced pursuant to section 4.1.27 of the Integrated Planning Act 1997 (Qld) (“IPA”). Originating Application No. 1249/09 and Originating Application No. 1277/09 were each commenced pursuant to section 4.1.21 of IPA. Each originating application was amended in the last two days of the hearing so as to invoke some relevant provisions of the Sustainable Planning Act 2009 (Qld) (“SPA”) which had not applied when proceedings were instituted.
Nature of the proceedings
Thus, there are 3 proceedings before the Court.
Appeal No. 439/06 is an appeal by Waverley Road Developments Pty Ltd (“Waverley”) against a decision of Gold Coast City Council (“Council”) to grant a preliminary approval subject to conditions with respect to a development application seeking a development permit for reconfiguring 2 lots into 78 lots (“Application”) with respect to land located at 41 and 55 Waverley Drive, Pimpama, more particularly described as Lots 5 and 6 on RP 158378 (“Site”).
The prayer for relief in the Notice of Appeal records that the relief sought by Waverley includes:
“A development permit be issued instead of a Preliminary Approval subject to conditions that satisfy the conditions test in section 3.5.30 of the Integrated Planning Act 1997.”
Amended Originating Application No. 1249/09, filed by leave on 5 March 2010 by Waverley, seeks the following declarations:
“1.A declaration that on a proper construction of the (sic) and SPA the Respondent was, and is, not entitled to give an infrastructure charges notice to the Applicant as a result of any development approval given for the development application dated 14 June 2004, at any time, where it did, and could, not comply with s. 5.1.8(2) of the IPA nor s. 633(2) of the SPA at the time that Respondent gave its development approval dated 8 August 2006.
2.Further, and in the alternative, a declaration that on a proper construction of the IPA and SPA the Planning and Environment Court (“Court”) has no power to given an infrastructure charges notice other than under an appeal pursuant to s.4.1.36 of the IPA and s. 478 of the SPA.
3.Further, and in the alternative, a declaration that on a proper construction of the IPA and SPA the Court has no power to issue an infrastructure charges notice to the Applicant where the Respondent was not entitled to issue an infrastructure charges notice as a result of any development approval given for the development application dated 14 June 2004, at any time, where the Respondent did, and could, not comply with s.5.1.8(2) of the IPA nor s. 633(2) of the SPA at the time that Respondent gave its development approval dated 8 August 2006.
4.Further, and in the alternative, a declaration that on a proper construction of the IPA and SPA the Respondent is not permitted to give an infrastructure charges notice to the Applicant in relation to the development the subject of appeal no. 439 of 2006 (“Appeal”), if the Court determines pursuant to s.4.1.52(2)(a) of the IPA, to apply the laws and policies applying when the development application dated 14 June 2004 was made, and not to apply the Respondent’s Planning Scheme’s Priority Infrastructure Plan.
5.Further, and in the alternative, a declaration that on a proper construction of the IPA and SPA the Respondent is not entitled to give an infrastructure charges notice to the Applicant as a result of any development approval arising from the Appeal being allowed.
6.Further, and in the alternative, a declaration that on a proper construction of the IPA and SPA and/or Respondent’s Planning Scheme’s Priority Infrastructure Plan the Respondent cannot give the Applicant an infrastructure charges notice pursuant to s. 5.1.8(3) of the IPA nor s. 633 of the SPA because the Respondent’s Planning Scheme’s Priority Infrastructure Plan does not comply with s. 5.1.6 of the IPA, and/or s. 631 of the SPA and/or, the amount of any charge would be arbitrary, and it is invalid.”
Waverley’s counsel expressly submitted that Waverley seeks all six declarations and that they are not alternatives.[2]
[2] T 9-71
On 5 March 2010 Council was given leave to file an Amended Originating Application No. 1277/09 seeking:
“A declaration 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”.
All 3 proceedings are interrelated in that the substance of the dispute in each proceeding relates to:
(a)the appropriate legal mechanism for imposition of infrastructure charges on the proposed development of the Site i.e. should the development permit be subject to conditions or should an infrastructure charges notice issue; and
(b)the quantum of charges that ought be imposed with respect to the proposed development of the Site.
It was ordered that these matters be heard concurrently and that evidence in each proceeding be evidence in the other proceedings.[3]
[3]Doc. No. 38 in Appeal No. 439/06; Doc. No. 2 in Application No. 1249/09; Doc. No. 2 in 1277/09.
Utility of Waverley’s 2nd and 3rd Declarations
Apart from Waverley’s submission that the six declarations were cumulatively required Waverley’s particular declarations were not made the subject of any specific submission by either party. Neither party made a submission about the utility or otherwise of declarations 2 and 3 of the six sought by Waverley. Each of declarations 2 and 3 is about the power of the Planning and Environment Court to issue an infrastructure charges notice to Waverley. The question of whether this court could issue an infrastructure charges notice was not explored in submissions. Neither party submits that I should issue an infrastructure charges notice to Waverley. Declarations 2 and 3, if made, would be declarations on a matter not apparently in issue between the parties. Declarations 2 and 3 have no utility explained in submissions or apparent to me. Absence of utility is a basis upon which a court may decline to exercise the discretion to grant a declaration. I refuse to grant declarations 2 and 3 on this basis.
Issues in Dispute
I was provided with written submissions in advance of and at the conclusion of the hearing. Council initially submitted[4] that in essence, the matters to be determined by the Court are:
(a)whether conditions 65 and 66 as proposed by Council are lawful and appropriate conditions; and
(b)whether 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; or alternatively
(c)whether conditions 68 and 69 as proposed by Council are lawful and appropriate conditions.
[4]11.11.09 [6]
Waverley initially submitted[5] appeal issues included:
“a.whether the basic obligation of applying the laws and policies applying at the time Development Application should be applied or whether the Court should give some weight to later laws and policies;
b.related to the above, the merits of the Development Application at the time it was made and decided with respect to sewerage, and fairness between the parties, including the power of the Council to issue infrastructure charges notices independently of the Court's exercise of discretion.”
[5]11.11.09 [11]
In addition, Waverley challenges the lawfulness of Council’s proposed conditions 65 and 66 condition requiring contribution with respect to the water supply and sewerage network on the basis that Planning Scheme Policy 3A Policy for Infrastructure Water Supply Network Developer Contributions and Planning Scheme Policy 3B Policy for Infrastructure Sewerage Network Developer Contributions are no longer in force.
Council submitted at the end of the hearing that with respect to the appeal (as opposed to the declarations) the only remaining issue to be determined relates to what conditions ought be imposed.[6]
[6]5.03.10 [40]
The conditions proposed by Council in written submissions[7] are expressed as if only two are dependent upon Council’s entitlement to give Waverley an infrastructure charges notice. Council’s submissions refer to an Affidavit of M Pennicott Doc. No. 43 in 439/06 which suggests that four conditions are dependent upon Council’s entitlement to give Waverley an infrastructure charges notice.
[7]12.11.09 [7]
Waverley submitted it should pay development contributions in accordance with the policies that were in force when the Application was made[8] and that four conditions, 65, 66, 67 and 68 are appropriate to achieve that.[9]
[8]T9-70
[9]Waverley’s outline 5.3.10 [152]-[155]
Curiously, Council submitted that versions of conditions 65 and 66 which Waverley submitted[10] are appropriate were to be sought by Waverley in the event that the Court determines that it is lawful to impose conditions with respect to infrastructure.[11] Waverley’s submissions did not expressly suggest that its versions of conditions 68 and 69 were dependent on such determination by the court.
[10]Waverley’s outline 5.3.10 [152]-[155]
[11]Council’s outline 12.11.09 [8]
Queens Counsel for Council submitted orally that four conditions were still in dispute and advised that he would explain them in detail.[12]They were not explained. Counsel for Waverley submitted orally that four conditions were still in dispute but submitted the orders to be made should be left until after the reasons are published.[13] Junior Counsel for Council submitted that it would be appropriate to publish reasons with respect to findings in terms of whether an infrastructure charges notice can be given and what law should be applied and allow the parties an opportunity to prepare a package of conditions for the Court’s consideration that reflects the reasons and explained: [14]
The council contends for a certain set of conditions which charge for some, but not all, of the infrastructure and then they contend that there be a declaration that they are entitled to the other types of charges to issue an infrastructure charges notice, as they have a PIP. Alternatively, they say they should be able to use - if we're wrong on the entitlement to issue an infrastructure charges notice, we can go back to the policies for everything, for all the types of recreation, transport, sewerage, water, the like.
Mr Quirk contends that we should not be allowed to charge for anything because of the error in the Gazette notice. Alternatively, he submits that the conditions should set the types of infrastructure charges at the date that the application was made rather than at current rates.
[12]T9-7
[13]T9-71 lines 5-15
[14]T9-46
Each party’s written outline submitted that the court should order the conditions for which it contended. Neither party made submissions as to whether their own or the other party’s proposed conditions were properly calculated, or the basis upon which they were drafted, or why they were or were not appropriate. However, such submissions were not required if these matters are not disputed. I was left unsure. The conditions for which Council contends in written submissions are submitted to be taken from an affidavit amended by reference to a letter from Minter Ellison to Mullins Lawyers dated 5 October 2009. The letter’s whereabouts are so well hidden, I am unsure if it is in the material. The parties have not yet armed the court with a sufficient basis to make findings as to the terms of the disputed conditions. Despite the written submissions, it is appropriate to do as both parties seem to prefer. I postpone consideration of the terms of disputed conditions until after publishing these reasons so as to allow the parties an opportunity to prepare for the court’s consideration a package of conditions that reflects the reasons.
Council submitted the difference between the parties is predominantly one of timing, that Waverley seeks to have any infrastructure obligations determined by reference to the point in time that it lodged the Application and that Council’s approach, on the other hand, applies current infrastructure provisions.
Relevant Jurisdiction of the Planning and Environment Court
The Planning and Environment Court’s jurisdiction derives from statute.[15] Its jurisdiction in this proceeding relevantly includes:
[15]See sections 4.1.1 and 4.1.2 of IPA and section 435 and 436 of SPA.
(a)hearing and deciding appeals by applicants pursuant to section 4.1.27 of IPA; and
(b)a declaratory jurisdiction under s 4.1.21 of IPA and s 456 of SPA and pursuant to the latter it may make declarations about, inter alia:
“a matter done, to be done or that should have been done for this Act other than a matter for chapter 6, part 11.”
Applicable legal principles with respect to determining the appeal
Onus of proof
It is for Waverley to establish that the appeal should be allowed.[16] The party seeking a declaration bears the onus in respect of the declaration it seeks.
[16]Section 4.1.50 of IPA.
A hearing anew
Pursuant to section 4.1.52 (1) of IPA, Appeal No. 439/06 is by way of hearing anew.
The role of the Court in an appeal is to decide whether the application should be approved or disapproved. It is not an exercise to review the correctness of the Council’s decision. The Court may have before it evidence indicating that a local authority’s decision was improper and void, but be bound to give the same decision, because it coincidentally happened to be correct.[17] The Court is not to undertake a minute investigation of the motives of Council in arriving at their decision and the Court is not to decide whether Council’s decision was valid or invalid.[18]
[17]R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 at 40 per Thomas J
[18]R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 at 28 per McPherson J
While the authorities for those propositions related to appeals to the Local Government Court, I accept that the same approach must be taken by the Planning and Environment Court when hearing appeals “anew”.
This approach was taken by Brabazon QC DCJ in Collin Park Pty Ltd v Redland Shire Council & Ors [2004] QPELR 617 at 622 where his Honour wrote:
“[24]The duty of this Court is the traditional one. It has to consider the evidence, and reach an independent view of the merits of this application. This is a hearing afresh, so that the Court has a duty to consider the matter for itself, regardless of Council’s decision. It stands in place of the Council, exercising the powers and discretions that the Council had.
[25]It will be appreciated that the Council is the lawful planning authority for the shire. It is the duty of the Court to apply the planning provisions which this Council has adopted, in the context of Queensland’s general laws about planning and environmental matters. This Court is not a planning authority. It has no power to impose any views of its own on the Council or other parties. It acts only on the evidence. Often, it has the benefit of a greater range of evidence, including expert opinion, than that available to the Council. An appeal will usually mean that attention is focussed on a particular application, and its merits. That focus should not lead the Court to lose sight of the wider aims and strategies of Council, which are expressed in its planning documents.”
Counsel for Waverley appeared not to contest these propositions generally. He accepted that if the Court is determining an appeal it is the wrong approach to examine a council’s decision and to pick it apart.[19] He did submit, in effect, that this case created an exception to the general approach and that I should consider the validity of Council’s approach. I deal with this below.
[19] T9-49 l 57
Upon institution of an appeal, the Council is deprived of all independent power of consideration and decision-making and this is assumed by the Court. [20]
[20]Scurr v Brisbane City Council (1973) 133 CLR 242 at 256 – 257 per Stephen J
The relevant facts and circumstances this Court may consider are those obtaining at the date of the appeal hearing and not those at either the date of lodgement of the application or the date of Council’s decision.[21] This proposition applies to a hearing anew.[22]
[21]Fogg “Land Development Law in Queensland”, The Law Book Company Limited, Sydney, 1987 at 100; Adam & Anor v Gold Coast City Council [2007] QPELR 379 at 381 per Robin QC DCJ
[22]See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616.
To the extent that the “facts and circumstances” obtaining at the date of the hearing include laws and policies applying to an application, this legal proposition is modified by operation of section 4.1.52 (2) of IPA.
Applicable laws and policies for deciding the Appeal
S 4.1.52 (2) of repealed IPA relevantly stipulated that the Court:
“(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; … ”
SPA s 821 relevantly modified this as follows:
“(1)This section applies for an appeal to the court under repealed IPA.
(2)For deciding the appeal, repealed IPA, section 4.1.52(2) applies—
(a)as if the reference in repealed IPA, section 4.1.52(2)(a) to new laws and policies included any laws and policies coming into effect after the commencement; ...”
“Commencement” is defined in SPA s 765 as the day on which the provision in which the term is used commences; in this case 18 December 2009. It follows that the Court must decide the appeal based on the laws and policies applying when the Application was made. The Application was received by Council on 24 June 2004. The parties each submitted that the date of receipt of the Application by Council is the date that the Application was made. In deciding the appeal the Court may give weight to any new laws and policies since 24 June 2004 which the Court considers appropriate, including any laws and policies coming into effect after 18 December 2009.
Reprint 5C of IPA contains the version of that Act applying when the Application was made on 24 June 2004.[23]
[23]Unless stated otherwise, any references in the judgment to a provision of IPA is a reference to a provision of Reprint 5C of IPA.
Since 24 June 2004, there has been considerable change to the laws and policies including relevantly:
(a)repeal of section 3.5.13 of IPA, which immediately before the repeal of IPA stipulated:
“(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.”
(b)section 3.5.32 of IPA, which immediately before the repeal of IPA provided:
“(1)A condition must not-
...
(b) for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1)-
(i) a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
(ii) works to be carried out for the infrastructure; ...”(c)Council’s Priority Infrastructure Plan (“PIP”) and Infrastructure Charges Schedule (“ICS”) commenced.
I accept that the following are among the factors generally relevant to a consideration of the weight that ought to be given to new laws and policies:
(a)the time which has elapsed since the making of the application and the hearing of the appeal and the reasons for the delay;[24]
(b)expressed planning attitudes and aims in the current provisions and whether the current provisions represent a change from previous attitudes, aims and decisions;[25]
(c)fairness between the parties, bearing in mind the basic obligation to apply the laws and policies when the application was made.[26]
[24]Maher v Hervey Bay City Council (2008) 166 LGERA 274; [2008] QPEC 123
[25]Giarola Bertoldi Pty Ltd v Gold Coast City Council [1984] QPLR 1 at 7 G – 8 A.
[26]Iverach v Cardwell Shire Council [2007] QPELR 196 at 203 F-G
With respect to the issue of the weight that ought to be given to new laws and policies, Searles DCJ observed in Maher v Hervey Bay City Council (2008) 166 LGERA 274 at 298:
[64] As to the age of the transitional planning scheme and the age of the new scheme those factors are relevant to the issue of expectation. As to the expectations of the Appellants and the community, each must be tempered by the reality of the nature of the planning regime. Planning schemes are not static. They continue to evolve as a community develops and matures in planning terms. They are the subject of regular review. People in the position of the Appellants are deemed to be aware that, whatever may be their rights under a particular planning scheme, there is a risk they may be impinged upon by a new scheme in appropriate circumstances. As to community expectations the same principle applies. People investing in a particular area, whether for commercial or residential purposes, are imputed with the knowledge of the fact and content of any new planning scheme in prospect. They are also deemed to be aware that rights of others, like the Appellants, accrue under superseded planning schemes and continue for a period after their introduction, which may well result in planning outcomes at odds with an individual’s expectations at point of acquisition of their property.”
Waverley’s counsel submitted that though Waverley bears the onus in its appeal, if Council seeks to rely on new laws and policies to successfully defend the appeal it is Council which must show that new laws and policies should be given weight. Waverley’s counsel submitted, in effect, that the court must perform the hypothetical exercise of assessing the merits of the Application applying only the laws and policies in force when the Application was made on 24 July 2004 so that the court can determine whether Waverley’s Application should have been approved on 8 August 2006 with conditions. While accepting that the appeal is a hearing de novo, Waverley was in effect submitting that the court must consider whether Council should have responded differently. The purpose is so that the court can take what should have been the proper result into account in deciding whether it is fair between the parties to consider subsequent laws and policies and if those must be considered, the court should take what should have been the proper result into account in deciding whether to apply new laws and policies. He implied that if Council should have given a development permit with conditions which did not include certain infrastructure charges, it will make less likely that I would find it appropriate to consider or apply subsequent laws and policies if they would result in imposition of those infrastructure charges.
Notwithstanding that the proper approach to appeals does not ordinarily involve a review of the correctness of the Council’s decision, Waverley’s counsel submitted, in effect, that this case required just that. This was submitted to be relevant to the issue of whether it is fair as between the parties to apply “new laws and policies”.[27] The Council accepted that it was relevant to the issue of fairness to consider whether Council should not have resolved to issue the preliminary approval in August 2006 but should instead have resolved to issue a development permit. The Council disputed the relevance of a review of the correctness of Council’s assessment process. It was submitted for Council that the task involved in considering fairness was for the court to sit in Council’s shoes as at 7 August 2006 and determine whether a development permit should have been approved.[28]
[27]T9-50 l 2
[28]T9-38
The Council called no witnesses involved in the processing and assessment of the Application. Waverley’s counsel submitted that Council’s failure to call these persons leads to the inference that these witnesses would not have assisted Council. He made no submission to explain with which relevant issue the witnesses would not have assisted Council or how this would advance Waverley’s prospects in obtaining conditions for which Waverley contends. I assume that the issue was whether Council officers assessed the Application against ECSIS in an improper way and did not assess it against applicable codes. If a development permit should have issued in 2006 that finding would be relevant to the court’s discretion under s 4.1.52 (2) IPA. A further finding that Council made an error in approach by an improper use of ECSIS would be immaterial in that case. If a development permit should not have issued in 2006 that finding would be relevant to the court’s discretion under s 4.1.52 (2) IPA. A further finding that Council made an error in approach by an improper use of ECSIS would again be immaterial in that second case.
I do not rule out the possibility that the basis of a council’s incorrect refusal to issue a development permit would be relevant and material to the exercise of the discretion under repealed IPA s 4.1.52 (2)(a) to apply new laws and policies. For example, if a council rejected an application for a development permit knowing the permit should have been issued and rejected the application for the improper purpose of postponing until the determination of an appeal the inevitable issue by the court of a development permit so that council would have the benefit of a proposed policy imposing an infrastructure charge, such mala fides might make it even more likely that the court would decline in deciding the appeal to exercise its discretion to apply the subsequent policy. No such impropriety was raised as an issue in the proceedings before me.[29]The failure by Council to call witnesses involved in the processing and assessment of the Application does not lead me in deciding the appeal to draw any inferences which assist me to find facts relevant to the exercise of the discretion to apply “new laws and policies”. Resolving the difference in approach between Waverley and the Council as to whether it was relevant to the issue of fairness to examine the correctness of Council’s assessment process and whether Council’s resolution in 2006 resulted from an unlawful assessment of the application against ECSIS instead of against applicable codes has no effect on the outcome of the contest before me about whether to apply new laws and policies concerning infrastructure charges. Notwithstanding that observation, I make findings below about the legality of Council’s use of ECSIS.
[29]Exhibit 3 V1 Grounds of Appeal
The Court’s powers in deciding an appeal
Section 4.1.54 of IPA stipulates that:
“(1) In deciding an appeal the court may make the orders and directions it considers appropriate.
(2) Without limiting subsection (1), the court may-
(a) confirm the decision appealed against; or
(b) change the decision appealed against; or
(c) set aside the decision appealed against and make a decision replacing the decision set aside.(3) If the court acts under subsection (2) (b) or (c), the court’s decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision.”
While the Court may make the orders it considers appropriate, the authority of the Court to decide an application is no more extensive than that of the local authority.[30]
[30]Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310 per Keane JA at [34] with McMurdo P at [1] and Wilson J at [91] agreeing.
The statutory assessment regime
As a code assessable application, the Application is to be assessed by reference to section 3.5.4 of IPA and decided in accordance with sections 3.5.11 and 3.5.13 of IPA. Any conditions imposed must comply with section 3.5.32 of IPA.
At the time of the Application, those and other relevant provisions arising in submissions stipulated as follows:
“1.3.1 Definitions—the dictionary
The dictionary in schedule 10 defines particular words used in this Act.
1.4.4 New planning instruments can not affect existing development approvals
(1) This section applies if—
(a) a development approval exists for premises; and
(b) after the approval is given, a new planning instrument or an
amendment of a planning instrument commences.
(2) To the extent the approval has not lapsed, neither the planning
instrument nor the amendment can stop or further regulate the
development, or otherwise affect the approval.
2.1.18 Adopting planning scheme policies in planning schemes
(1) The only document made by a local government that the local
government’s planning scheme may, under the Statutory Instruments
Act 1992, section 23, apply, adopt or incorporate, is a planning scheme policy.
(2) A planning scheme policy must not apply, adopt or incorporate
another document prepared by the local government.
3.5.4 Code assessment(1) This section applies to any part of the application requiring code assessment.
(2) The assessment manager must assess the part of the application only against—
(a) applicable codes (other than concurrence agency codes the assessment manager does not apply); and
(b) subject to paragraph (a)—the common material.(3) ...
(4) If the application is a development application (superseded planning scheme) and the applicant has been given a notice under section 3.2.5(3)(a), the assessment manager must assess and decide the application as if—
(a) the application were an application to which the superseded planning scheme applied; and
(b) the existing planning scheme was not in force.
3.5.11 Decision generally(1) In deciding the application, the assessment manager must—
(a) approve all or part of the application and include in the approval any concurrence agency conditions; or
(b) approve all or part of the application subject to conditions decided by the assessment manager and include in the approval any concurrence agency conditions; or
(c) refuse the application.(2) However, the decision must be based on the assessments made under division 2.
(3) To remove any doubt, it is declared that—
(a) a development approval includes the conditions imposed by the assessment manager and any concurrence agency; and
(b) the assessment manager may give a preliminary approval even though the applicant sought a development permit.
3.5.13 Decision if application requires code assessment(1) This section applies to any part of the application requiring code assessment.
(2) The assessment manager’s decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code.
(3) However—
(a) if the application is for building work—the assessment manager’s decision must not conflict with the Building Act 1975; and
(b) for assessment against a code in a planning scheme—the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.(4) The assessment manager may refuse the application only if the assessment manager is satisfied—
(a) the development does not comply with the applicable code; and
(b) compliance with the code can not be achieved by imposing conditions.(5) Subsection (3)(b) applies only to the extent the decision is consistent with any State planning policies not identified in the planning scheme as being appropriately reflected in the planning scheme.
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.
3.5.32 Conditions that can not be imposed(1) A condition must not—
...
(b) require a monetary payment for the capital, operating and maintenance costs of, or works to be carried out for, community infrastructure; or
...
6.1.31 Conditions about infrastructure for applications(1) Subsection (2) applies if—
(a) a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and
(b) the local government has—(i)a local planning policy about infrastructure or a planning scheme policy about infrastructure; or
(ii) a provision, that was included before the commencement of this section, in its planning scheme about monetary contributions for specified infrastructure.
(2) For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision—
(a) chapter 5, part 1 does not apply; and
(b) section 3.5.32(1)(b) does not apply; and
(c) the local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) under a policy or provision mentioned in subsection (1)(b).(3) However-
(a) if a condition imposed under subsection (2)(c) is inconsistent with an infrastructure agreement for supplying the infrastructure, to the extent of the inconsistency, the agreement prevails; or
(b) if the application is being decided under an IPA planning scheme, subsection (2) applies only until—
(i) 31 March 2005; or
(ii) if the Minister, by gazette notice, nominates a later day for a particular planning scheme—the later day…
DICTIONARY
“development approval” means a decision notice or a negotiated decision notice that—
(a) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
(b) is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval.”
The Application was made pursuant to an IPA Planning Scheme. Council then had a number of planning scheme policies about infrastructure. Consequently, conditions in IPA s 6.1.31 (1)(a) and (b) were satisfied. It follows that there was no statutory prohibition preventing conditions which require an infrastructure contribution of the kind described in IPA s 3.5.32 (1)(b). Waverley submitted that Planning Scheme Policy 3A and 3B are no longer in force and there is no power to invoke s 6.1.31. I deal with that submission below.
Conditions power generally
The following principles with respect to the conditions power can be distilled from the cases:
(a) the power to impose conditions on the approval of an application is expressed in general terms;[31]
[31]See section 3.5.11(1)(b) of IPA and Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 [8].
(b) the power to impose conditions is subject to the statutory tests for the lawfulness of conditions;[32]
[32]See section 3.5.30 of IPA and Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 [8].
(c) whether conditions are reasonably required involves a consideration of the proposal and what changes may result from its completion;[33]
[33]Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 54 LGRA 110 at 113; Proctor v Brisbane City Council (1993) 81 LGRA 398 at 401 – 402; Bryant v Caloundra City Council [2006] QPELR 335 at 337 [14].
(d) the condition must be a reasonable response to the change in the existing state of things;[34]
[34]Wootton v Woongarra Shire Council (1985) 56 LGRA 301 at 303; Bryant v Caloundra City Council [2006] QPELR 335 at 337 [14].
(e) a condition which is not “required” in respect of a proposed development may nevertheless be relevant on the basis that it is imposed to maintain proper standards in local development or in some other legitimate sense, such as where it is reasonably imposed in the interests of rational development of the area;[35]
[35]Proctor v Brisbane City Council (1993) LGRA 81 398 at 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566 at 571.
(f) the mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition;[36]
[36]Proctor v Brisbane City Council (1993) LGRA 81 398 at 404.
(g) even if a condition is relevant, it must not be an unreasonable imposition on, the development or use of premises as a consequence of the development;[37]
[37]Section 3.5.30(1)(a) of IPA.
(h) the requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use;[38]
[38]Bryant v Caloundra City Council [2006] QPELR 335 at 337 [16]; Bargara Park Pty Ltd v Burnett Shire Council [1996] QPELR 133.
(i) there remains a relatively broad discretion in relation to the (lawful) conditions which may properly be imposed upon an approval;[39]
[39]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 at [8].
(j) in exercising the discretion:[40]
[40]Wise v Maroochy Shire Council [1999] QPELR 353 at 356; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 137 LGERA 232 at 253 and 257.
regard must be had to all relevant considerations, including relevant provisions of the planning documents[41], and improper considerations must be disregarded; and the result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land – it must be fair and reasonable in the circumstances of the particular case;[42]
(k) while economic considerations of a development are not relevant in deciding whether approval should be given, it is relevant to consider whether conditions imposed in a particular zone are so harsh that subdivisional development in that zone is frustrated;[43]
(l) mere agreement of the parties does not make a “manifestly unreasonable” condition permissible;[44]
(m) development permits cannot be “bought and sold” by developers accepting unreasonable conditions;[45]
(n) were an unlawful condition to be imposed by consent, an application could be made at any time to have it set aside,[46] nor would a Council be stopped from claiming in a subsequent case that a previous approval was invalid;[47]
(o) there are obvious difficulties with a condition which calls for works to be carried out on land which is neither part of the subject land nor owned by its proprietor.[48]
[41]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 at [9]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] CLR 490 at 499 – 500; Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 137 LGERA 232 at 263.
[42]Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 137 LGERA 232 at 279 – 281.
[43]Finlay v Brisbane City Council (1978) LGRA 352 at 354.
[44]City of Bradford Metropolitan Council v. Secretary of State for the Environment (1986) 53 P& CR 55 at 64;
[45]Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 782; R v Westminster City Council; Ex parte Monahan [1989] 3 WLR 408 at 435.
[46]Lewiac Pty Ltd & Ing Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385 at 401; Rowlands Surveys v Council of the City of Thuringowa [1993] QPLR 217.
[47]Lewiac Pty Ltd & Ing Real Estate Joondalup BV v Gold Coast City Council & Ors [2003] QPELR 385 at 401; Seymour CBD v Noosa Shire Council [2002] QPELR 226.
[48]BP Australia Ltd v Caboolture Shire Council [2004] QPELR 526 at 528.
Waverley’s counsel submitted that these matters were not put to expert witnesses for comment. He did not contest the propositions as correct statements of principle. I infer that his concern was that the experts were not asked whether the condition Waverley submits should have been imposed would have been so harsh that subdivisional development in that zone would have been frustrated. There was no evidence about the cost or harshness of conditions Waverley submits should have been imposed by Council in 2006 if a development permit issued. An approval subject to a condition that Waverley must construct all necessary sewerage infrastructure is very vague. Any evidence about harshness is likely to have been unhelpfully vague.
The issues to be determined in the appeal
In Appeal 439/06 Waverley applies to set aside the decision being appealed against, namely the granting of a preliminary approval, and seeks in its place a development permit with appropriate conditions.
Following an order of the Court on 13 March 2009 permitting Waverley to proceed on the basis of an amended application,[49] on 7 April 2009 Council decided under delegated authority[50] to support the issue by the Court of a development permit for reconfiguring a lot (subdivision to create 83 residential lots, public open space and internal road).
[49]Order of His Honour Judge Robin QC, Doc. No. 35 in Appeal No. 439/06 and exhibits 1 and 2 tendered that day.
[50]Affidavit of Ms Pennicott Doc. No. 44 in Appeal No. 439/06.
It is within the Court’s power to endorse the agreement reached between the parties, namely that a development permit issue instead of a preliminary approval. I propose to do so and allow the appeal. However, there remains a dispute about the appropriate conditions that ought to be imposed on that development permit and whether Council may levy charges for recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule (“ICS”) by giving an infrastructure charges notice (“ICN”).
The only remaining issue between the parties to be determined by the Court with respect to the appeal was initially explained to be what conditions ought to be imposed on the development permit; and yet, when submissions ended the parties were content to draft conditions for my approval based on the findings I will make on other matters.
A contentious issue is whether conditions will provide for sewerage infrastructure charges to be levied against Waverley. That arguably is affected by whether the court gives weight to laws and policies made since the Application was made. Because the decision whether to give weight to laws and policies made since the Application may be affected by what is fair between the parties Waverley submits that the issues expand to include what Council should have decided on 7 August 2006. Thus, the resolution of the conditions issue in the appeal requires me to consider the merits of the Application as at 7 August 2006, applying the laws and policies in force on 24 June 2004 and whether it should then have been approved subject to conditions. One matter relevant to whether the Application should have been approved on 7 August 2006 is whether there was sewerage infrastructure capacity and connectivity available to the Development then.
It was ordered[51] that experts consider:
[51]By his Honour Judge Wall QC 8 July 2009
(a)whether there was sewerage infrastructure capacity and connectivity available to the Development at:
(i) 24 June 2004;
(ii) 8 August 2006;
(iii) 7 April 2009;
(b)whether it would have been appropriate on 8 August 2006 to issue a development permit, and if so, on what conditions;
(c)any matter in issue in Mr Parker’s report as nominated by Council by 10 July 2009.
Planning History of Site and Surrounds
It is useful to appreciate the planning history of the Site and surrounds. I find:
| Date | Event |
| 11 December 2002 – 15 August 2003 | A number of development applications were received by Council for the East Coomera area (in particular for the area which would become Zones A and F) including applications for different sites referred to as “Apre”[52], “Cavillwood”[53], “Exchequer”[54], “Hawthorne Woods”[55] and “Quaill”[56]. |
| 14 November 2003 | Council resolved to adopt the East Coomera Sewerage Infrastructure Strategy (“ECSIS”) and invite submissions.[57] |
| 28 November 2003 – 14 April 2004 | Further development applications were received for the East Coomera area (Zone A), including applications referred to as “Quinnco”[58] and “19 Cox Road”[59]. |
| 5 December 2003 | Council wrote to a number of interested parties including Mr Dover of Burchill Partners Pty Limited (“Burchills”) inviting written submissions about the ECSIS.[60] No submission was made by Burchills or anyone on behalf of Waverley.[61] |
| 11 June 2004 | Council resolved, inter alia, to adopt the East Coomera Sewerage Infrastructure Strategy, May 2004 as the basis for assessment of development applications within the East Coomera catchment.[62] The Site is located in Zone F for the purpose of the ECSIS. |
| 24 June 2004 | Council received the Application[63] with respect to the Site from Australian Agricultural and Property Management Ltd (“AAPM”).[64]This is the date the Application was made. |
| 26 July 2004 | Council sent a letter to AAPM advising that, because no spare capacity was then available in Zone F, it would be appropriate to withdraw the Application.[65] |
| 3 August 2004 | A development application was received by Council for an application referred to as “Claremont Estate” in Zone A.[66] |
| 4 October 2004 | Integrated Planning and Other Legislation Amendment Act2003 (Qld) commenced. |
| 14 October 2004 | Council received a facsimile from AAPM declining to withdraw the Application.[67] |
| 29 October 2004 | The Hawthorne Woods pump station and rising main to Rifle Range Road was approved.[68] |
| 27 January 2005 | The gravity main from Zone F to pump station TPSA was approved.[69] |
| 28 January 2005 | The rising main from pump station TPSA to Oakey Creek South pump station was approved.[70] |
| 4 February 2005 – 11 May 2005 | Further development applications for the East Coomera area (Zone A) were received including applications referred to as “Valad”[71] and “36 Cox Road”[72]. |
| 31 May 2005 | Council sent an acknowledgment notice to AAPM.[73] The acknowledgment notice: · noted the Application would require code assessment; · listed the relevant codes, including Coomera LAP Place Code, Reconfiguring a Lot Code and Works for Infrastructure Code; · noted an information request would not be made. |
| 7 June 2005 | Council received correspondence from Burchills with respect to the “Hawthorne Woods” application seeking sealing of the Stage 1 survey plan on the basis of an indication that the external works would be completed within 12 weeks and accordingly there was a minimal chance that tankering of sewage would be required.[74] |
| 15 June 2005 | Work commenced on pump station TPSA and the rising main to Oakey Creek.[75] |
| 20 June 2005 | Burchills requested that the Council proceed with an application which may not have related to the Site[76] “as a development permit” on the basis of an alleged agreement to transfer capacity credits from Zone A to Zone F due to the location of infrastructure.[77]The signatory to the letter did not contend that it related to the Site or that he knew of an agreement. The draftsman for the letter was not persuasive that he or any other person made an agreement relating to the Site[78]. I am not satisfied that AAPM or Burchills reached agreement with Council to transfer ETs from Zone A to Zone F or requested Council to consider the Application on that basis. |
| 30 June 2005 | AAPM entitled to institute an appeal on the basis of a deemed refusal of the Application |
| 26 August 2005 | Council sent a letter to Burchills indicating that:[79] · it was unable to vary the ECSIS, May 2004 because it was a Planning Scheme Policy; · it was planning to undertake an amendment process of the ECSIS; · Burchills would be consulted during that process. |
| 26 August 2005 | Council sent a letter to AAPM, care of Burchills, stating with reference to the Site and a request to transfer sewer capacity credits that amendment of the ECSIS was required and indicating that until such amendment was adopted only preliminary approval of the Application would be considered.[80] |
| 21 September 2005 | Council sealed the Hawthorne Woods stage 1 survey plan.[81] |
| 11 October 2005 | The development application known as “Southern Pacific Developments” was received for the East Coomera Area.[82] |
| October 2005 | Council and Coomera Town Centre negotiated an ET reallocation process whereby 350 ET were reallocated from Zone E to Zones A and B.[83] |
| 21 November 2005 | Burchills confirmed that the developer of Hawthorne Woods would implement sewer pump out for the estate (i.e. tankering) until connection to the Oakey Creek trunk sewer became available.[84] |
| 13 February 2006 | Council noted[85] it had received legal advice about unallocated ETs. The effect of the note was that Council could lawfully redistribute between ECSIS zones any ETs that had not been secured by a development permit. The unallocated ETs were then 120 for Zone A and 45 for Zone F. Council resolved, inter alia, to:[86] · Adopt the East Coomera Sewerage Infrastructure Strategy Report (Jan 2006) to guide the assessment of development applications in the East Coomera catchment; · Adopt the First Round ET Allocation Proposal (Jan 2006) for the purpose of assessing and deciding development applications in allocating the number of equivalent tenements (“ET”) (or lots) that could connect to sewerage infrastructure within the East Coomera catchment until the Pimpama Waste Water Treatment Plant (“WWTP”) was operational. · Amend Planning Scheme Policy 3B – Policy for Infrastructure Sewerage Network Developer Contributions |
| 18 April 2006 | Council received a letter from engineers (“Knobel”) dated 29.3.06 stating that a client of Knobel had purchased the Site and had been advised that there was to be a reallocation of sewerage entitlements for the area which would allow sewerage to be connected to the Site in the shorter term and requesting an indication of the likely timing that sewerage would be able to be connected.[87] |
| 5 May 2006 | Council received a letter from Burchill VDM (“Burchills”) on behalf of Harridan as purchaser of the Site from AAPM seeking the balance of ETs available in Zone F be allocated to the Site.[88] |
| 9 June 2006 | Council resolved to adopt the second round allocation in Zone C. |
| July – December 2006 | Council undertook negotiations with Zone A/F constructing developers and Coomera Resort Pty Ltd seeking to resolve the Oakey Creek rising main connection through the Coomera Resort land. The inability to reach agreement with Coomera Resort Pty Ltd was preventing the construction of a rising main connecting Zones A and F to PA9.[89] |
| 1 August 2006 | Council adopted a report noting an ET allocation from Zones A and F to Exchequer.[90] |
| 7 August 2006 | Council resolved to issue a preliminary approval (s 3.1.5) for reconfiguring a lot for residential purposes.[91] The report to Council recorded: · under “Brief Summary”, “The site is considered to be suitable for residential development; however, until the infrastructure (sewer) necessary to support the proposed development is available, Council officers neither support nor recommend a Development Permit be issued for this application. However, as an alternative to refusal, it is recommended that a Preliminary Approval pursuant to section 3.1.5 of the Integrated Planning Act be issued. This type of approval will require the applicant to submit a fresh application once connection to infrastructure can be demonstrated. It is at this time that a full development assessment will be undertaken”; · under “Strategic Background”, “Specifically this development is located in Zone F of the East Coomera Sewerage Infrastructure Strategy. The Strategy, as amended by Council on 13 February 2006 (Ex Minute No. WS06.0202.007), assigns a capacity of 365 Equivalent Tenement (ET) to developments in Zone F. Of this, 320 ET has already been allocated to developments leaving only 45 ET (Ex Minute No. WS06.0202.008). The remaining 45 ET is required for an existing approval at 27 Waverly Drive (PN131587/12/DA1). ... Accordingly no capacity is available at this time under the East Coomera Sewerage Infrastructure Strategy for developments proposed by Mr Quaill and the Australian Agricultural and Property Management Limited until either the Pimpama WWTP becomes operational or more capacity becomes available”; · under “Alternative to refusal: Preliminary Approval”, “The Applicant has applied for a Development Permit for Reconfiguring a Lot. It is premature for Council to issue a Development Permit because neither the permanent sewerage infrastructure (under Council’s priority infrastructure plan) nor sufficient capacity in the temporary infrastructure (under the East Coomera Sewerage Infrastructure Strategy) are available. Until Council delivers its planned permanent infrastructure it is premature for Council to issue a Development Permit. The premature approval of a Development Permit could compromise the efficiency of the temporary infrastructure and the eventual efficiency of the Pimpama WWTP and other infrastructure budgeted and planned for under the Priority Infrastructure Plan. In summary, Council is not in a position to issue a Devleopment Permit and in fact could refuse the development application on the basis that the necessary sewerage infrastructure is not immediately available. It is acknowledged, however, that the land is suitable for residential development and Council officers support the proposal conceptually. On this basis, it is recommended that Council issue a Preliminary Approval (s3.1.5), subject to conditions. It is recommended that Council not consider any future development application for a Development Permit until the applicant can demonstrate, to the satisfaction of Gold Coast Water, a suitable and achievable point of connection to Council’s sewerage infrastructure network (either temporary or permanent). Connection to either the permanent or temporary infrastructure will only be permitted if the necessary capacity to service the proposed development is available. In this regard a suitably worded condition has been included in the recommendation for Preliminary Approval”; · under “Net residential density”, “It is premature for Council to determine, with precision, the net residential density for the development, particularly as the site consists of both Residential 1 (25 dwellings per hectare) and Residential 2 (33 dwelling per hectare) density requirements. Consequently, it is recommended that any future application/s align with the density identified in the planning scheme current at the time of lodgement, and that all proposals comprise of a mixture of dwelling types”; · under “Layout and aesthetic appearance”, “Because the exact density of the development cannot be decided upon at this stage, matters relevant to layout and aesthetic appearance cannot be approved. The assessment of these aspects of the proposed development must necessarily follow Council’s decision to approve the exact residential density. Therefore, it is recommended that a detailed assessment of the development layout and aesthetic appearance be assessed in accordance with the requirements applicable at the time of application for a Development Permit.” |
| 8 August 2006 | Council issued a decision notice granting a preliminary approval subject to conditions, instead of the development permit sought by the Application.[92] The decision notice: · states that the preliminary approval “does not approve the specific layout and building envelope plans or the architectural details submitted with the application”; · included condition 2 which stated “Net residential density on the development site is to align with the density identified in the planning scheme current at the time of lodgement and comprise of a mixture of dwelling types”; · included condition 3 which stated “This Preliminary Approval cannot be superseded by a Development Permit for Reconfiguring a Lot until such time as the applicant can demonstrate a suitable and achievable point of connection to Council’s sewerage network to the satisfaction of Gold Coast Water. Connection to any permanent or temporary sewerage infrastructure system can only be achieved if the capacity required to service the proposed development is available”; · included general advise that “This Preliminary Approval does not approve the layout plan, architectural intent, housing code, landscape intent statement, open space management plan, stormwater management plan or other specific details submitted with the current application. Any subsequent application(s) for development permit(s) should resubmit such information. Your particular attention is drawn to the need to address the following matters in any future application: o Retention of vegetation, particularly critical habitat trees; o Building details including site layout, setbacks, floor plans, elevations, landscaping etc; o Road layout/structure planning which accords with overall structure planning for the area undertaken by Council; o Provision of adequate public open space and the treatment and management of these areas; o Appropriate stormwater management and sufficient information to support the proposed approach.” |
| 7 September 2006 | Waverley filed Southport Appeal No. 439/06 against Council’s decision to give a preliminary approval and sought the issue of a development permit instead of a preliminary approval. |
| 5 October 2006 | Council sealed survey plan for Stage 2 of Hawthorne Woods. |
| 11 December 2006 | Council resolved to adopt a Priority Infrastructure Plan (“PIP”), endorse the commencement date of the PIP as 8 January 2007 and endorse transitional arrangements in relation to how the PIP would apply to development applications, including the following:[93] b Where an application is lodged prior to commencement of the PIP but decided after the commencement of the PIP an ICN will be issued. |
| 18 December 2006 | Council wrote to Burchills advising that an allocation of 54 ETs from Zone A had been made to Claremont Estate.[94] |
| 29 December 2006 | Council wrote to Burchills advising re the Application that “a review of ET allocations is to be undertaken in February, early March 2007. You will be advised at that time concerning the prospects of your Client gaining an ET allocation.”[95] |
| 8 January 2007 | The PIP came into effect.[96] |
| 17 May 2007 | Council approved the alternative M1 rising main crossing after negotiations with Coomera Resort Pty Ltd failed.[97] |
| 28 May 2007 | Council resolved to note a report on tankering.[98] |
| 8 June 2007 | Council resolved to invite submissions for a further review of the ECSIS and received two agenda items in July / August 2007 to determine when full development approvals would be issued once Pimpama WWTP becomes available.[99] |
| July 2007 | Council received submissions on the review of the ECSIS, including ET requests.[100] No submission was received by, or on behalf of, Waverley.[101] |
| 28 August 2007 | Council undertook a practical completion inspection of the rising main from TPSA to PA9.[102] |
| 17 September 2007 | Council resolved, inter alia, that:[103] · the general limitation on development in the East Coomera area due to sewerage capacity be lifted on 30 November 2007; · the development assessment tests of ‘connectivity’ and ‘availability’ which apply across the Gold Coast City continue to apply to all development applications in the Pimpama/Coomera area; · Council notes that development approvals in Zone C be released immediately where: o all other outstanding planning matters are resolved; o the development site can immediately connect to the existing infrastructure without any further construction of temporary works; and o the development site is not south of Foxwell Road; and · the Chief Executive Officer be granted delegated authority to immediately release development in Zones A/F, provided the terms and conditions negotiated with Zones A/F developers is similar to Zone C developers. |
| October 2007 to April 2009 | · Council and Waverly engaged in without prejudice communications in respect of, inter alia, sewerage infrastructure connection; · Council sought and Waverley provided a significant amount of further information for the assessment of the Application; · Council and Waverley engaged in without prejudice communications in respect of the preparation of a draft conditions package which Council officers would formally recommend Council resolve to accept.[104] |
| 5 December 2007 | Pump station draw down test of pump station TPSA was undertaken.[105] |
| 25 February 2008 | Council resolved to adopt ECSIS Revision 4 which amended clause 11 to require category 3 charges until the decommissioning of temporary works.[106] |
| 13 March 2009 | Waverley sought permission of the Court to change the application for the reconfiguration of a lot on the basis that, on a comparison of the Proposed Layout Plan C3264:00:01 dated 24 May 2004 and the Plan of Reconfiguration 2499-203 dated 26 June 2008, the change was only a minor change for the purpose of section 4.1.52(2)(b) of IPA. Waverley was permitted to proceed on the basis of an amended application.[107] |
| 7 April 2009 | Council decided under delegated authority:[108] · to support the issue by the Court of a Development Permit for Reconfiguring a Lot (subdivision to create 83 residential lots, public open space and internal road) subject to conditions; · to issue an infrastructure charges notice in respect of the recreation facilities, transport and stormwater networks; · to seek declarations to resolve the Appellant’s opposition to the giving of an infrastructure charges notice should the court decide to issue a development permit; · in the event the Court declines to grant declaratory relief, to seek the imposition by the Court of conditions (attaching to that development permit) requiring infrastructure contributions for recreation facilities and transport networks. |
| 8 April 2009 | Council notified Waverley of its decision of 7 April 2009.[109] |
[52]Ex. 9, Attachments 66 – 69.
[53]Ex. 9, Attachments 75 and 76.
[54]Ex. 9, Attachments 84 and 86.
[55]Ex. 9, Attachment 55.
[56]Ex. 9, Attachments 100 and 108.
[57]Ex. 9, Attachment 4.
[58]Ex. 9, Attachment 76.
[59]Ex. 9, Attachment 109.
[60]Ex. 9, Attachment 5.
[61]Ex. 9, Attachment 6, p. 55.
[62]Ex. 10, Attachments 1 and 2.
[63]Council was the assessment manager for the Application.
[64]Ex. 10, Attachment 3
[65]Ex. 10, Attachment 4
[66]Ex. 9, Attachments 89, 95 and 99.
[67]Ex. 10, Attachment 5
[68]Ex. 9, Attachment 31.
[69]Ex. 9, Attachment 36.
[70]Ex. 9, Attachment 37.
[71]Ex. 9, Attachments 111 and 112.
[72]Ex. 9, Attachment 109.
[73]Ex. 10, Attachment 6.
[74]Ex. 9, Attachment 42.
[75]Ex. 9, Tab 43.
[76]T 7-50
[77]Ex. 10, Attachment 7.
[78]T2-86 to T2-88
[79]Ex. 10, Attachment 8.
[80]Ex. 10, Attachment 9.
[81]Ex. 9, Attachment 59.
[82]Ex. 9, Attachments 82 and 83.
[83]Ex. 9, Attachment 9.
[84]Ex. 9, Attachment 60.
[85]Ex 10 pg 186, (Attachment 9 pg 44)
[86]Ex. 10, Attachment 10 pg 203
[87]Ex. 10, Attachment 12.
[88]Ex. 10, Attachment 13.
[89]Ex 38 Affidavit of B Hallgath Doc. No. 76 in 439/06 and Ex. 9, Attachment 48.
[90]Ex. 9, Attachment 110.
[91]Ex. 10, Attachment 14.
[92]Ex. 10, Attachment 15.
[93]Ex. 10, Attachment 16.
[94]Ex. 9, Attachment 94.
[95]Ex 10, attachment 17
[96]Ex. 10, Attachments 18 and 19.
[97]Ex. 9, Attachment 52.
[98]Ex. 9, Attachment 62.
[99]Ex. 9, Attachment 16.
[100]Ex. 9, Attachment 17.
[101]See summary of submissions, Ex. 9, Attachment 17, pp. 406 – 409.
[102]Ex. 9, Attachment 63.
[103]Ex. 10, Attachment 20.
[104]See Ex 3 V1 tab 8 Affidavit of M Pennicott, Doc. No. 28 in 439/06 and Affidavit of S Peedom, Ex 3 V 5 Tab 21 Doc. No. 77 in 439/06.
[105]Ex. 9, Attachment 44.
[106]Ex. 9, Attachment 21.
[107]Order of His Honour Judge Robin QC, Doc. No. 35 in 439/06 and exhibits 1 and 2 tendered that day.
[108]Affidavit of Michelle Pennicott Doc. No. 44 in 439/06.
[109]Affidavit of Michelle Pennicott Doc. No. 44 in 439/06.
Sewerage infrastructure capacity and connectivity generally
The Site is in the East Coomera area. Before 2003 the Pimpama /Coomera area was a “greenfield site” and largely unsewered. Sewage treatment capacity in the East Coomera area on June 2004 and 8 August 2006 was less than was required for anticipated urban development. The Pimpama Wastewater Treatment Plant (“Pimpama WWTP”) had not been constructed. When built, Pimpama WWTP was to substantially increase sewage treatment capacity in the area. When Pimpama WWTP was built, sewage from Pimpama/Coomera area was to be transferred north. To facilitate urban development in this area despite the limited sewage treatment capacity which would persist until the Pimpama WWTP was operating, Council formulated a strategy called the East Coomera Sewerage Infrastructure Strategy (ECSIS). ECSIS was prepared to permit some development in this area prior to construction of the Treatment Plant. The temporary solution contemplated sewage being transferred south to another WWTP via a series of pump stations and rising mains in six zones to a central pump station known as “PA9”. During this phase it was practical to limit the number of temporary pump stations, to avoid exceeding the limited capacity of PA9 and to avoid out of sequence development. The capacity of the sewerage network in the area which was covered by ECSIS was measured. That capacity was measured as a number of equivalent tenements (“ETs”). The total number of available ETs in the ECSIS area was apportioned across the six zones. The zones were referred to in ECSIS as A to F. It would have been unlawful to assess the Application against ECSIS in place of applicable codes. It was lawful to use ECSIS as a source of information about the existing and intended sewerage reticulation network. The six ECSIS zone boundaries were identified on a map. The Site was in ECSIS zone F but its topography caused it to drain into zone A. Whether one was an applicant or Council when considering the practicalities of sewerage infrastructure for a development it was practical to identify the land’s ECSIS zone, the ETs apportioned to the zone and the number of ETs left in the zone after accounting for the ETs in the zone which had been allocated to any developments that had received a development permit. It was also practical to recall topography in addition to zone boundaries. The original strategy indicated that applications would be processed on a first in basis. Since the original ECSIS, Council received applications exceeding the sewerage network capacity for the East Coomera area. From the May 2004 Revision of ECSIS development applications were to be processed based on the ability to connect to the preferred sewer network.
Legality of Council’s use of ECSIS
Waverley’s counsel submitted that Council’s assessment of the Application was unlawful for an inappropriate use of ECSIS, that the Application was assessed against a parallel system, namely ECSIS and that a planning scheme policy must not apply, adopt, or incorporate another document prepared by a local government.[110] Repealed IPA s 2.1.18(2) is cited as authority for that proposition of law. The limitation in s 2.1.18(2) was first introduced on 16 October 2003 by an amendment made by section 40 of the Integrated Planning and Other Legislation Amendment Act 2003 (No. 64) (QLD) (“IPOLAA 2003”). IPOLAA 2003 also amended IPA by inserting a new IPA s 6.2.2 which stipulates:
6.2.2 Particular planning scheme policies still valid
(1)This section applies to a planning scheme policy in force at the commencement of this section.
(2)To the extent the policy was valid at the commencement, the policy is still valid despite sections 2.1.16 and 2.1.23.
[110]IPA, s. 2.1.18(2).
IPA s 2.1.16 was also amended by IPOLA 2003 and states:
2.1.16 Meaning of “planning scheme policy”
A “planning scheme policy” is an instrument that—
(a) supports the local dimension of a planning scheme; and(b)supports local government actions under this Act for IDAS and for making or amending its planning scheme; and
(c) is made by a local government under this division.
When these provisions are read in concert, it is apparent that a planning scheme policy made prior to 16 October 2003 remains valid even if it applied, adopted or incorporated another document prepared by a local government.
It is Council’s primary position that the Application was not assessed against ECSIS but that ECSIS is nevertheless a document which was validly applied by Planning Scheme Policy 11 – Land Development Guidelines 1999, which were part of Version 1.0 of the Gold Coast City Council Planning Scheme when it was adopted on 6 June 2003 and commenced on 18 August 2003.
It was agreed by Dr Johnson and Mr Dover and I find that:
1.the Application is code assessable;
2.demonstration of compliance with relevant Codes and their Performance Criteria is therefore a primary element of assessment;
3.the requirements of Council’s Planning Scheme Policy 11: Land Development Guidelines[111] are applicable in determining the engineering design details with which this development should comply;
[111]The guidelines which were in place at the time of the Application were the Land Development Guidelines 1999 (Ex. 28) – see Ex. 39 and 40.
4.absent ECSIS, it is likely that Council would have been required to refuse all development applications in this region because of the unavailability of sewage transport and treatment capacity;[112]
[112]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 3.
5.the requirements of ECSIS are applicable to this Application as it provides the framework within which local sewerage servicing decisions should be made;[113]
6.because of the application of ECSIS, determination of sewerage infrastructure capacity requires consideration of:[114]
a.whether there was, or could reasonably have been, an allocation made from ECSIS in relation to the subject land; and
b.whether actual physical infrastructure was either already available (i.e. existing), or reasonably capable of being constructed beyond the boundaries of the site to meet Council’s required standards of service in relation to the provision of sewage collection, treatment and disposal;
7.compliance with both requirements is necessary to show that adequate infrastructure capacity was available at any specific time;[115]
8.connectivity concerns connectivity between the Site and Council’s municipal treatment system, which would have required Waverley Road development to initially connect to the pump station in the Hawthorn Woods development, or Rifle Range Road, immediately north of the site (PAF10), and to then use temporary pump station TPSA and the rising main from TPSA to the Oakey Creek trunk sewer.[116]
[113]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 3. See also Dover T1-60 L26-32. Mr Dover’s answer in cross-examination was premised on Council’s first having validly adopted ECSIS
[114]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 5.
[115]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 5.
[116]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 11.
Council submitted that the approach of Dr Johnson and Mr Dover outlined above with respect to determining compliance with the relevant codes is correct. I accept that it is. Council submitted that on this approach, ECSIS is a document which informs one of the existing and intended sewerage reticulation networks and that such use of the ECSIS does not amount to an assessment against the ECSIS in place of a code. I accept that such a use of ECSIS would not amount to an assessment against the ECSIS in place of a code.
Waverley’s counsel submitted that Council was going to give the application a preliminary approval instead of a development permit because of ECSIS no matter what information the applicant had provided as Council assessed the Application against ECSIS and not against the applicable codes. The submission would be more persuasive if more information had been included in the Application. He noted that the first letter from Council in response to the Application referred to ECSIS. That letter advised that because no spare capacity was then available in Zone F, it would be appropriate to withdraw the Application. I am satisfied that Council’s assessment officers were having regard to ECSIS. I am not satisfied that Council’s decision in 2006 to give a preliminary approval would have been the same if information had been supplied with the Application to allow Council to assess the Application by considering firstly, whether it complied with the relevant codes, secondly, if it did not comply with the relevant codes, whether it could be made to comply by imposing conditions and thirdly, whether the conditions were reasonable. I am not satisfied that Council made an unlawful use of ECSIS in its approach to assessing the Application.
Waverley’s counsel submitted orally that the issue of whether a development approval should have issued in 2006 did not depend on the answer to the question of whether more information should have been supplied with the Application. I reject the submission.
Sewerage Infrastructure Capacity and Connectivity
Mr Dover and Dr Johnson were the engineering experts who prepared reports in response to the order made on 8 April 2009. They also collaborated to provide a joint report. It was agreed by Dr Johnson and Mr Dover that sewerage infrastructure capacity and connectivity was not actually available at 24 June 2004.[117]I accept that evidence.
[117]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 13.
By 7 April 2009: the rising main between TPSA and PA9 had been constructed and was operational;[118] all sewerage infrastructure required to service the Development was in place and operational; Council had lifted development restrictions due to sewerage capacity in Zones A and F. It is evident from the Council report that this was a consequence of a falling risk profile, evident from the progress with the permanent sewerage infrastructure for the area, as well as the level of take up of approvals in the area.[119] It was agreed by Dr Johnson and Mr Dover that sufficient sewerage infrastructure capacity and connectivity to service the Site was available, or could reasonably have been provided, at 7 April 2009.[120]I accept their evidence of this.
[118]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 5a.
[119]Ex. 9, Attachment 18, pp. 445 and 446 and Affidavit of Barry Raymond Hallgath Ex. 38, p. 6, para. 30.
[120]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 13.
The Application, if a development permit had issued, would have required 78 ETs. With respect to ET allocations, it was agreed by Dr Johnson and Mr Dover that in the minutes from Council’s Meeting dated 13 February 2006, 120ET in Zone A and 45ET in Zone F were unallocated after the second round ET Allocation, which would have theoretically been available for allocation to Waverley and other potential developments in these two zones.[121] This would have required an approved amendment to ECSIS.[122] However, there were numerous other developments also seeking allocations in Zones A and F.[123] A number of these involved development applications made before the Application, including those referred to as “Hawthorne Woods”, “Exchequer”, “Quaill” in relation to Zone F and “Apre”, “Cavilwoods”, “Quinco”, “19 Cox Road” and “Exchequer” in relation to Zone A.[124] Some of these applications were even made before the introduction of the ECSIS.[125] Hawthorne Woods and Exchequer, which absorbed the total ET allocation available to Zone F, involved developments where the development application was made prior to the adoption of the ECSIS and the development permit was issued prior to the adoption of ECSIS in May 2004.[126] The allocations required by those developments exceeded what was available.[127]
[121]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 16.
[122]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 3a.
[123]Affidavit of Barry Raymond Hallgath Ex. 38, p. 5, para. 27.
[124]See Chronology in the Opening Submissions Doc. No. 89 in Appeal No. 439/06 and Ex. 35.
[125]For example Hawthorne Woods and Exchequer. See Dover T3-67 L28-30. See planning History of site and surrounds and Ex. 35.
[126]Report of Dr Johnson Ex. 7, p. 7, para. 29 – 31 and pp. 12 – 14. See also Ex. 9, para. 72 – 86 and para. 123 - 130.
[127]See Affidavit of Barry Raymond Hallgath Ex. 38, p. 5, para. 27.
It was Mr Dover’s opinion that there was unfair treatment of the proposed development with respect to the issue of ET allocations.[128] I do not accept this assessment by Mr Dover. When one considers the detail of each development which received an allocation, they are distinguishable on one or more grounds.[129] For example, “Hawthorne Woods”, “Apre” and “Southern Pacific” each had part of the necessary temporary infrastructure located within their land and “Cavilwood” had part of the permanent infrastructure.[130] All those developments which were permitted to proceed were immediately adjacent to the proposed network.[131]
[128]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 3b and Report of Dover Ex. 24, pp. 5 – 7, para. 4.10 - 4.24.
[129]The detail is examined in the Report of Dr Johnson Ex. 7, pp. 12 – 16, the Affidavit of Barry Raymond Hallgath Ex. 38 and Ex. 9.
[130]The detail is examined in the Report of Dr Johnson Ex. 7, pp. 12 – 16, the Affidavit of Barry Raymond Hallgath Ex. 38, Ex. 19, Ex. 19A and Ex. 9.
[131] Ex. 10 Certificate of Dale Dickson precedeing Attachment 1 pp. 29 – 63.
Save for an error with respect to Claremont, I am not satisfied that there were any troubling inconsistencies in the allocation of ETs. I accept Mr Dover’s evidence to the effect that there were inconsistent occasions where Council issued development permits where applications, like this Application, had been lacking information relevant to code assessment but where it was apparent that the application was to be appropriately conditioned at an operational works stage. It was unclear from his evidence whether there were distinguishing features about the date or the application or whether the only reasonable explanation was the one which most assists Waverley, namely that Council’s approach was inconsistent. On the hypothesis that Council’s approach to the need in common material for detail about internal sewerage infrastructure and connection to external infrastructure was sometimes inconsistent, I respectfully adopt the observations by Robin QC DCJ in Adam & Anor v Gold Coast City Council [2007] QPEC 25, (2007) QPELR 379 at [30] with respect to “troubling inconsistencies” alleged in that case about Council’s approach to sewerage in the East Coomera/Pimpama Area:
There is no system of precedent in planning matters, strictly. However, the Court is likely to be concerned, as the public no doubt would be, if it appeared that similar development applications were being treated inconsistently by the local government. No troubling inconsistency appears here. To the extent that there may have developed a different approach over time, I find there are good reasons for that.
The “good reasons” to which Robin QC DCJ referred included:
Another factor distinguishing the “development permit” cases would appear to be a more relaxed attitude by Council before it became apparent a year or more ago that development applications involving reconfiguration for intensive sub-division in the East Coomera/Pimpama area were coming in in numbers extravagantly exceeding anticipations, so that arrangements put in place, the ECSIS for example, in respect of sewerage, were suddenly shown to be inadequate to service the likely demand.
The same observations hold true for that part of the East Coomera/Pimpama area within which the Site is situated.[132]
[132]Dover T2-37 L16-34; Parker T8-4 L17-22; Ex. 9 Vol 1, Attachment 7, p.93 and Planning History of Site and Surrounds finding at 20 June 2005
I am not satisfied that any written request was made to Council to incorporate the Site into Zone A.[133]That can be contrasted with written requests made by others such as “Claremont” (otherwise known as “Pimpama Meadows”) which resulted in a revision to the ECSIS.[134]
[133]See Ex. 10 Attachment 7 p. 179 – the request was only for an allocation from Zone F. Dover T2-82 L27-36; Parker T7-6 L33-36.
[134]Compare Ex. 9 Vol 1, Attachment 6, p. 69 with Ex. 9, Vol 1, Attachment 11, p.245.
It was agreed by Dr Johnson and Mr Dover that sewerage infrastructure capacity and connectivity was not actually available at 8 August 2006.[135]Relevantly, there was insufficient unallocated capacity in Zone F (in terms of planned capacity or ET), in which the Site was located. Accordingly Waverley could not meet the test of capacity in the ECSIS[136] As well, the external rising main from pump station TPSA to pump station PA9 was not in existence and could not have been constructed by Waverley.[137]Mr Dover’s opinion was that approval could have been then conditioned to construct all necessary sewerage infrastructure. There was no evidence to suggest that if Council provided a development permit to Waverley conditioned to require Waverley to construct this external infrastructure that such a condition could have reasonably been complied with.[138] By 8 August 2006 the Council was aware that there were difficulties brewing in terms of securing necessary consent to construct the rising main and accordingly that a development permit so conditioned would have been futile.[139]
[135]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 13.
[136]Ex. 7, p. 20, para. 108.
[137]Ex. 7, p. 20, para. 108 and Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 4a.
[138]Ex. 7, p. 20, para. 108 and Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 4a.
[139]Sewerage Joint Report Doc. No. 81 in Appeal No. 439/06 (attached to Ex. 11), para. 4a and Affidavit of Barry Raymond Hallgath Ex. 38, p. 4, para. 21 and 22.
[190]IPA, s. 5.1.14(1).
[191]Hepples v Commisioner for Taxation (1992) 173 CLR 492, 510-511; Boland v Yates (1999) 74 ALJR 209, 279 [356]. See also Urban Strategies Pty Ltd v Gold Coast City Council [2009] QPELR 288, 298-299, where the Court found it unnecessary to resort to the doctrines to resolve the issues before it.
The proper approach to interpretation of an ambiguity in the PIP does not assist me in interpreting SPA s 633 (2). If the submission was intended to suggest that SPA s 633 (2) should be characterised as a revenue statute and any ambiguity in it should be resolved in Waverley’s favour, I note that no ambiguity was submitted to exist in the words of SPA s 633 (2). The arguments seemed to be based upon the arbitrariness of Council’s ability to deliver a notice after the PIP was introduced but not before.
Waverley’s submission continued:
The fact that this part must be construed in a different legislative setting is another reason in itself for not applying the provisions.
That submission was not further developed. Waverley concluded this section by submitting:
Having regard to the above, the Council cannot issue an ICN as a result of the development approval which arises from the Court’s decision.
Waverley’s counsel made a submission,[192] apparently discrete from the submissions above, on the construction of s 5.1.8 (2) repealed IPA but which appears relevant to the same issue. He submitted that “legislative provisions which, on their face, do not appear to contain a limitation may, nevertheless be subject to a limitation arising from a consideration of the Act containing them as a whole.” I accept that submission. He continued: “Where the Court makes a determination that the laws applying at the time of an application apply, the Court having made that determination, the Council to cannot then act contrary to that determination.” The practical consequence of the submission was not explained nor how it assists in resolving applications for declarations.
[192]5.3.10 [156] – [158]
Waverley’s counsel did not submit that the interpretation of s 5.1.8 (2) IPA or s 633 (2) SPA was dependent upon the court first exercising a discretion to give no weight to the infrastructure charges schedule introduced in the PIP. However, the wording of the fourth declaration sought by Waverley suggests that this may be an issue. I note that a court’s discretion[193] to give weight to any new laws and policies the court considers appropriate arises only in deciding an appeal. A court does not have that same discretion in determining the originating applications for declarations. The discretion does not affect the interpretation or the operation of s 5.1.8(2) IPA repealed or the interpretation or operation of SPA s 633 (2). If SPA s 633 (2) prescribes the time when council may deliver an ICN as a result of a development approval, a court’s decision to apply or not to apply subsequent laws and policies in deciding the appeal will not affect the operation of SPA s 633 (2). If, as a matter of fairness, it was inappropriate that Waverley should bear the expense it would incur from receipt of an ICN delivered pursuant to a law which did not exist when the Application was made, the court’s discretion to apply the original law in deciding an appeal is different from a discretion to declare inapplicable to Waverley SPA s 633 (2) because that new law appears to give Council either a power or an obligation to deliver an ICN. If an unfair result was likely from the effect of SPA s 633 (2) or any other law introduced after 24.06.04, it may be possible that to restore fairness or ameliorate unfairness a court might be permitted pursuant to s 5.1.2 IPA repealed to apply some combination of the original and subsequent laws and policies to tailor the conditions it would otherwise impose for the grant of the development permit. Tailoring conditions of a development approval is different from declaring that “on a proper construction of the IPA and SPA” repealed IPA s 5.1.8 (2) and SPA s 633 (2) operate other than in accordance with their terms.
[193]S 4.1.52 (2) of repealed IPA
A feature common to each of declarations 1, 4, 5 and 6 sought by Waverley is that it refers to Council’s entitlement or permission to give an ICN to Waverley on a proper construction of SPA or of IPA and SPA or[194] of IPA and SPA and/or Council’s Planning Scheme’s Priority Infrastructure Plan. Waverley does not seek, by contrast, a declaration that if the proper construction of SPA s 633 (2) allows Council to deliver to Waverley an ICN levying charges for the recreation facilities, transport and stormwater networks under the Infrastructure Charges Schedule, fairness requires the court in deciding the appeal to alter the conditions of approval to take account of that pending expense. Waverley did not apply, for example, for a condition that it be relieved of the legal obligation to pay Council pursuant to an ICN if it is given by Council pursuant to SPA s 633 (2), or that Council be restrained from giving an ICN. The fairness and legality of such conditions was not expressly argued.
[194]In the case of declaration 6
Waverley’s counsel made no submission about the difference between the declarations Waverley seeks, or about which of his submissions, if any, relate to any particular declaration. The first and fifth declarations sought by Waverley each appear to seek a declaration about the construction of SPA or of IPA and SPA whatever approval is given as a result of this appeal. They appear different from the fourth declaration sought in that the first and fifth are sought irrespective of whether the court determines “not to apply” the PIP. They appear different from the sixth in that the first and fifth are sought irrespective of whether the PIP does or “does not comply with s. 5.1.6 of the IPA, and/or s. 631 of the SPA and/or, the amount of any charge would be arbitrary, and it is invalid.” The first and fifth declarations are worded in a way which suggests that they depend on the success of Waverley’s arguments above about the proper interpretation of s 5.1.8 (2) repealed IPA and s 633 (2) SPA, irrespective of whether it is unfair or illegal for Council to levy a charge against Waverley based on the PIP.
Waverley’s construction arguments above seem from their content to have been aimed at obtaining the first and fifth declarations. Those arguments do not persuade me that the plain words of s 5.1.8 (2) repealed IPA and s 633 (2) SPA are ambiguous or that they should be interpreted to have an unexpressed exception. Like Chapter 5 Part 1 of IPA, Chapter 8 Part 1 of SPA does not limit the application of the part to exclude applications made prior to the adoption of a priority infrastructure plan and it is inappropriate to read such a limitation into s 5.1.8 (2) repealed IPA and s 633 (2) SPA.
I refuse Waverley’s application for the first and fifth declarations sought.
Another argument raised for Waverley is:
[128] In terms of any ICN that may be given other than as a result of the development approval, which would be artificial in any event, it is clear that the PIP does not comply with s. 5.1.6 IPA. Having regard to the purpose of the section, the nature of the provision, the very specific requirements of the section, and that any infrastructure charge would be arbitrary, this part of the PIP is invalid.[195]
Council is not proposing to give an ICN other than as a result of a development approval. Waverley’s counsel did not expand on this submission to develop the argument as to arbitrariness. It seems to relate to ground 21 and declaration 6 in Waverley’s amended originating application. It is not necessary to deal further with the submission.
[195]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390-391; See also Caltabiano v Electoral Commission of Queensland [2009] QCA 182, [4]-[5], [92]; King Gee Clothing Pty Ltd v Commonwealth (1945) 71 CLR 184, 197.
Validity of Policies
Waverley’s counsel submitted:[196]Planning Scheme Policy 3A – Policy for Infrastructure Water Supply Network Developer Contributions (“Policy 3A”) and Planning Scheme Policy 3B- Policy for Infrastructure Sewerage Network Developer Contribution (“Policy 3B”) are no longer in force; that the gazette notices exhibits 5 and 6 purport to nominate later dates for section 6.1.20(4) and 6.1.31(3) of the IPA Rep 10 to have effect; s 6.1.20(4) requires the nomination of a later date for a “planning scheme”; s 6.1.31(3) requires the nomination for a “particular planning scheme”; neither of the notices nominate planning schemes, let alone particular planning schemes; if somehow the first notice and the second notice relating to s. 6.1.31(3) is somehow construed to have general application, the second notice relating to s. 6.1.20(4) does not name the Council; there can be no general application to Gold Coast City Council or its Planning Scheme; where s. 6.1.20(4) has not been properly engaged, s. 2.1.23(4) applies to the policies as there is no longer any saving from s. 6.1.20(3A); a policy can no longer apply to infrastructure contributions; where there are no policies, there is no power to invoke s. 6.1.31, in the event that it still has operation in relation to the Council’s Planning Scheme; conditions 65 and 66 cannot lawfully be imposed.
[196]Written submissions 5.3.09 [138]-[145]
Council submitted[197] that Waverley ought not to be permitted to launch a collateral attack on the validity of Policies 3A and 3B as part of this Appeal. In Edwards & Anor and Department of Planning and Infrastructure & Ors (2006-07) 155 LGERA 1 Barker J (President), citing Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568, set out the factors that might be considered if a court were to have a discretion to entertain a collateral attack within a proceeding as follows:
[197]Written submissions 5.3.10 [111]
“1)Are the grounds of challenge likely to involve the adducing of substantial evidence?
2)If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3)In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4)Is there a statutory provision that bears in one way or another on whether a collateral challenge should be permitted?
5)Is the issue raised by the collateral challenge clearly answered by authority?
6) Are there other cases pending which raise the same issue?
7)(Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?”
Council submitted:
1. the chief executive has not received notice of the allegation through receipt of written notice of the Appellant’s Notice of Appeal pursuant to section 4.1.41 of IPA, or through receipt of written notice of the Appellant’s Originating Application pursuant to section 4.1.21(6) of IPA. As such, the Minister has been denied the opportunity to elect to be a party to the proceeding;
2. all proper parties have not been given the opportunity to be heard in that the attack, should it succeed, affects all local governments with a planning scheme policy with respect to infrastructure and those parties have not been given an opportunity to be heard; and
3. the allowing of a collateral challenge would by-pass the protective mechanisms associated with judicial review proceedings such as discretionary considerations including delay.
4. the issues about validity should have been made clear in documents served on the Minister and in pleadings and were not;
5. Council did not appreciate what the attack was due to lack of particulars;
6. technically the validity of policies has not been raised and Waverley ought to seek leave to amend but subject to Council’s objection that Waverley ought not to be permitted to launch a collateral attack on the validity of Policies, Council has sought to deal with Waverley’s submissions.
It was not clear from Waverley’s pleadings or its counsel’s submissions how Policies 3A and 3B were to be challenged as being invalid. Further obscuring the issue, two conditions which Waverley submitted are appropriate in its opening (and closing) outlines are worded as if payment to Council for contributions towards sewerage network infrastructure and water supply network infrastructure are to be in accord with Policies 3A and 3B though at rates applicable on 20 June 2004, indexed.
Waverley’s counsel did not dispute the fact that the Minister had been denied the opportunity to elect to be a party to the proceeding. He submitted:[198]
[198]T9-73 l 15-31
I turn now to the issue of the validity of the policies starting on paragraph 138 of my outline. Your Honour, these issues arise out of a dispute over which conditions to impose. The declarations that this
Court will make in relation to - and the findings this Court will make in the appeal in relation to what policies apply and the like don't bind anyone outside of the parties to this matter. There was never any need to serve anyone else or bring them into the originating application. The fact is those issues arise out of the disputed issues between the parties in terms of which conditions to apply.Your Honour, the outline was provided prior to the November
hearing and this issue is - this issue of the need to serve
someone else and make sure other interested parties are in the
matters is being raised on the last day of a 10 day hearing.
…
[199]the validity of the notice in one sense is not challenged at all. We're not saying it wasn't a notice in the Gazette. All we're saying is that it doesn't do what the Act says he was required to do and that is nominate a planning scheme or at the very least if your Honour is against me generally in relation to the construction point it doesn't
nominate the Gold Coast City Council as a council to get the benefit of that notification in the Gazette so how can it possibly rely on section 6.1.20?
…
[200]you were just referred to section 4.21 and the need for service of the Minister and the department. The policy is not - the validity of the policies is not something that arises in the application for declarations, it arises in the appeal and that's why we say it's not a collateral matter and those parties aren't interested because it's not the subject of the originating application. That part of it only relates to the conditions that are to be imposed.[199] T 9-74 ll 50-58
[200] T 9-82 l 54
Waverley’s attack on the validity of the policies appears to be something in which the Minister may well have had an interest. Thus, the Minister should have been notified and the issues made clear. The attack is something which might affect any local governments with a planning scheme policy with respect to infrastructure. Repealed IPA s 6.1.31 was not in force at the time of the submissions. The SPA equivalent at SPA s 848 was operative. The arguments which Waverley makes in relation to repealed IPA s 6.1.31 are capable of affecting the only slightly different words of SPA s 848. The Minister’s interest in an argument about the invalidity of a policy due to the Ministers choice of words in a gazette would not diminish with the operation of SPA s 848(3).
I exercise my discretion to refuse to allow Waverley to raise issue in this proceeding about the validity of the 2 policies. However, in case that exercise of discretion is wrong I propose to consider the merits of Waverley’s submissions on invalidity.
Policy 3A and Policy 3B are the policies pursuant to which council proposes to levy infrastructure charges and are referred to in conditions 65 and 66 which Council had submitted were appropriate when the hearing began.[201]
[201] Council’s submissions 11.11.09 [7]
Waverley’s counsel based his submission on Exhibit 5, Queensland Government Gazette Local Government dated 27 June 2008; Exhibit 6, Queensland Government Gazette Local Government 26 June 2009; IPA Reprint 10, ss. 6.1.20, 6.1.31, 2.1.23, 3.5.32, Chapter 5 Part 1, and Schedule 10 definitions of “trunk infrastructure” and “non-trunk infrastructure”. The references to IPA were made in Waverley’s submissions notwithstanding that SPA had commenced.
Those parts of IPA from Reprint 10A provided, so far as appears relevant:
Division 6 Local planning instruments
Generally2.1.23 Local planning instruments have force of law
(1) A local planning instrument is a statutory instrument under
the Statutory Instruments Act 1992 and has the force of law.
…
(4) A planning scheme policy may only do 1 or more of the
following—
(a)state information a local government may request for a development application;
(b)state the consultation the local government may carry out under section 3.2.7;
(c)state actions a local government may take to support the process for making or amending its planning scheme;
(d) contain standards identified in a code;
(e)include guidelines or advice about satisfying assessment criteria in the planning scheme.
(5) Subsections (2) to (4) apply despite subsection (1).
3.5.32 Conditions that can not be imposed
(1) A condition must not—
…
(b) for infrastructure to which chapter 5, part 1 applies,
require (other than under chapter 5, part 1)—
(i) a monetary payment for the establishment,
operating and maintenance costs of the
infrastructure; or
(ii) works to be carried out for the infrastructure; or
…6.1.20 Planning scheme policies for infrastructure
(1) This section applies if—
(a) a local government has an IPA planning scheme; and
(b) the local government prepares a planning scheme policy
about infrastructure.
(2) The planning scheme policy must state each of the
following—
(a) a contribution (an infrastructure contribution) for each
development infrastructure network identified in the
policy;
(b) the estimated proportion of the establishment cost of
each network to be funded by the contribution;
(c) when it is anticipated the infrastructure forming part of
the network will be provided;
(d) the estimated establishment cost of the infrastructure;
(e) each area in which the contribution applies;
(f) each type of lot or use for which the contribution
applies;
(g) how the contribution must be calculated for—
(i) each area mentioned in paragraph (e); and
(ii) each type of lot or use mentioned in paragraph (f).
(2A) An infrastructure contribution may apply to development
infrastructure—
(a) despite section 2.1.2—that is not within, or completely
within, the local government’s area; or
(b) that is not owned by the local government, if the owner
of the infrastructure agrees; or
(c) supplied by a local government on a State-controlled
road.
Editor’s note—
See the Transport Infrastructure Act 1994, sections 32 and 41.
(2B) The infrastructure contribution must be for a development
infrastructure network that services, or is planned to service,
premises and is identified in the policy.
(2C) The infrastructure contribution required under the policy may
be calculated—
(a) in the way permitted under the repealed Act; or
(b) as if it were an infrastructure charge under this Act.
(2D) If a policy prepared under this section requires an
infrastructure contribution for works for the local function of
a State-controlled road, the contribution must be—
(a) separately accounted for; and
(b) used to provide works on a State-controlled road.
(3) However, if the local government has an infrastructure
charges plan, an infrastructure charges schedule or a regulated
infrastructure charges schedule, the planning scheme policy
must not deal with the same matters as the infrastructure
charges plan, the infrastructure charges schedule or the
regulated infrastructure charges schedule.
(3A) This section applies despite section 2.1.23.
(4) This section ceases to have effect, in relation to the planning
scheme, on—
(a) 30 June 2008; or
(b) if the Minister, by gazette notice, nominates a later day
for the planning scheme—the later day.6.1.31 Conditions about infrastructure for applications
(1) Subsection (2) applies if—
(a) a local government is deciding a development
application under a transitional planning scheme or an
IPA planning scheme; and
(b) the local government has—
(i) a local planning policy about infrastructure or a
planning scheme policy about infrastructure; or
(ii) a provision, that was included before the
commencement of this section, in its planning
scheme about monetary contributions for specified
infrastructure.
(2) For deciding the aspect of the application relating to the local
planning policy, the planning scheme policy or planning
scheme provision—
(a) chapter 5, part 1 does not apply; and
(b) section 3.5.32(1)(b) does not apply; and
(c) the local government may impose a condition on the
development approval requiring land, works or a
contribution towards the cost of supplying infrastructure
(including parks) under a policy or provision mentioned
in subsection (1)(b).
(3) However—
(a) if a condition imposed under subsection (2)(c) is
inconsistent with an infrastructure agreement for
supplying the infrastructure, to the extent of the
inconsistency, the agreement prevails; or
(b) if the application is being decided under an IPA
planning scheme, subsection (2) applies only until—
(i) 30 June 2008; or
(ii) if the Minister, by gazette notice, nominates a later
day for a particular planning scheme—the later
day.Chapter 5 Miscellaneous
Part 1 Infrastructure planning and
funding
Division 1 Preliminary
5.1.1 Purpose of pt 1
The purpose of this part is to—
(a) seek to integrate land use and infrastructure plans; and
(b) establish an infrastructure planning benchmark as a
basis for an infrastructure funding framework; and
(c) establish an infrastructure funding framework that is
equitable and accountable; and
(d) integrate State infrastructure providers into the
framework.Schedule 10 Dictionary
non-trunk infrastructure means development infrastructure
that is not trunk infrastructure.
trunk infrastructure means development infrastructure
identified in a priority infrastructure plan as trunk infrastructure.
The gazette, exhibit 5, provided:
Integrated Planning Act 1997
Planning scheme policies for infrastructure
In accordance with section 6.1.20(4)(b) of the Integrated Planning Act 1997,
I hereby nominate a later date for section 6.1.20 to cease to have effect.
The nominated date is 30 June 2009.
The gazette exhibit 6, significantly, made no express reference to the Gold Coast City Council when it provided, so far as is relevant:
Integrated Planning Act 1997
Planning scheme policies for infrastructure
In accordance with section 6.1.20(4)(b) of the Integrated Planning Act 1997,
I hereby nominate a later date for section 6.1.20 to cease to have effect for Logan City Council, Brisbane City Council … Toowoomba Regional Council.
The nominated date is 30 October 2009.
…
In accordance with section 6.1.31(3)(b)(ii) of the Integrated Planning Act 1997,
I hereby nominate a later date for section 6.1.31 to cease to have effect.The nominated date is 30 June 2010.
If a local government had an IPA planning scheme, as Gold Coast City Council did s 6.1.20(4) IPA stipulates that s 6.1.20 ceases to have effect “in relation to the planning scheme” on 30 June 2008 or a later day nominated by the Minister by gazette notice. It is evident from exhibits 5 and 6 that the date was initially extended to 30.6.09 for all local governments but was then further extended to 30.10.09 for certain local governments, which did not include Gold Coast City Council.
The bases of Waverley’s submission emerged more clearly in its opening.[202] The first basis was that exhibit 5 was ineffective as it nominated a later date for IPA s 6.1.20 to operate but instead it should have nominated a later date for Council’s planning scheme to operate and so IPA s 6.1.20 ceased to have effect on 30.6.09. That submission was not further developed. It is at odds with the words of IPA s 6.1.20 (4)(b) and I reject it.
[202]T1-42
The second basis was that IPA s 6.1.20 ceased on 30.06.09 and upon s 6.1.20(3A) ceasing to have effect IPA s 2.1.23(4) operated to prevent Council’s policies from doing other than the five things stated in IPA s 2.1.23(4). The five things do not include levying infrastructure charges.
I accept that IPA s 6.1.20 ceased to apply to Council’s planning scheme on 30.6.09. Council did not submit otherwise.
Waverley’s counsel submitted[203] (omitting irrelevant words):
So, once the section ceases to apply to the Planning Scheme…the policy no longer has the protection … of section 6.1.20 sub 3A so there's a double problem there. The first is it doesn't extend the application to…the policy and it also loses its protection. So even if your Honour was to come to the conclusion that there is a part to 6.1.20 that relates to the preparation of a Planning Scheme policy the appellant's case is that there's an on-going effect from 6.1.20 sub 4 as well and once you remove the protection from section 6.1.20 sub 3A it loses the protection of 2.1.23 and the policy is no longer in effect in any event because it … deals with matters outside … the matters that it's allowed to deal with.
[203]T1-43
I infer that submission to have included an argument that for Policy 3A and Policy 3B to enjoy the benefit of IPA s 2.1.23(1), so that they have the force of law, they may not do other than the 5 things specified in IPA s 2.1.23(4) and thus, they may not provide for infrastructure charges to be levied.
The submission concluded, in effect, that IPA s 6.1.31 allows conditions requiring a contribution for infrastructure to be imposed in deciding a development application only where a policy about infrastructure exists and does not permit such a condition where the local government no longer has a policy. [204]
[204]T1-44
I note that the equivalent of IPA s 6.1.31(2) and s 6.1.31(3)(b)(ii) at the time of submissions appears to be SPA s 848 (2) and s 848(3)(b)(ii). On 11 June 2010 the Minister nominated by Queensland Government Gazette No 44 at page 457 a later date for SPA s 848(2) to have effect. The date nominated was 30 June 2011.
Council submitted that the fact that IPA s 6.1.20 ceased to apply to Council’s planning scheme on 30.6.09 does not invalidate Policy 3A Policy and Policy 3B Policy or mean that they cease to have effect; that s 6.1.20 is directed to the preparation of a planning scheme policy about infrastructure, not the continuation of a planning scheme policy and contrasted IPA s 6.1.11 which stipulates that transitional planning schemes lapse after 5 years unless the Minister nominates a later day.
The section appears to have operated prospectively to regulate what a local government with an IPA planning scheme might include in a policy it prepares[205] about infrastructure and contributions.[206] The fact that the section ceased to apply to Council’s planning scheme on 30.6.09 suggests that if Council was to prepare a planning scheme policy about infrastructure after 30.6.09 then Council would not be obliged to include the matters referred to in s 6.1.20(2). It does not suggest that a policy prepared before 30.6.09 would cease to be effective. I accept Council’s submission in this respect based on the words of the section.
[205]S 6.1.20(1)(b)
[206]S 6.1.20(2)
Council submitted further that the continuing effect of Policy 3A and Policy 3B[207] is supported by the presumption of validity under Statutory Instruments Act 1992(Qld) s 20 and the presumption of continuance.[208]Because I accept Council’s submission based on the words of s 6.1.20 it is unnecessary to analyse the presumption of continuance and the various cases alluded to by Council which were not analysed or discussed by counsel for either party. I do not accept that the presumption of validity under Statutory Instruments Act 1992 s 20 assists Council. The section provides:
[207]Section 2.1.23 of IPA stipulates that a local planning instrument is a statutory instrument. The definition of local planning instrument in Schedule 10 of IPA includes a planning scheme policy.
[208]Pearce and Argument in Delegated Legislation in Australia - 3rd Edition, Lexis Nexis Butterworths, Chatsworth, 2005 at pp. 341 – 343.
20 Presumption of validity
All conditions and preliminary steps required for the making
of a statutory instrument are presumed to have been satisfied
and performed in the absence of evidence to the contrary.
The words of the section reveal that it concerns matters required for the making of a statutory instrument. It does not concern conditions and preliminary steps required for prolonging the application of the statutory instrument. It does not assist Council.
Waverley’s further argument with respect to IPA s 6.1.31 was that: “Section 6.1.31(3) requires the nomination for a “particular planning scheme”. Neither of the notices nominate planning schemes, let alone particular planning schemes.” It seems probable that Waverley’s submissions on 5.3.10 should have been framed in terms of SPA s 848(3) instead. I note SPA s 848(3) refers to “the planning scheme” instead of referring to “the particular planning scheme”. The difference may change the force of Waverley’s argument. For reasons which follow, I do not find merit in Waverley’s argument about the nomination for a “particular planning scheme” and I find no merit if I transpose the argument to SPA s 848(3) and consider the words “the planning scheme”.
Council submitted:
It is evident from Exhibits 5 and 6 that the Minister has nominated a later day – initially 30 June 2009 and more recently 30 June 2010.[209] The gazette notice refers to section 6.1.31 of IPA and nominates a later day. To suggest that the gazette notice must make specific reference to a planning scheme by name, and cannot generally extend the day for all planning schemes, is reading a limitation into the provision which is not present on its face. Further, it is an interpretation which ought not be accepted when one considers:
the definition of “particular” in the Australian Pocket Oxford Dictionary 2nd Edition is:
“relating to one as distinguished from others, considered apart from others, individual”;
pursuant to section 32C of the Acts Interpretation Act 1954, words in the singular include the plural;
the Minister may therefore nominate a later day for particular planning schemes.
[209]See FKP Residential Developments Pty Ltd v Maroochy Shire Council & Anor [2009] QCA 403.
I regard IPA s 6.1.31(3) as having permitted the Minister to nominate a later date for a particular planning scheme or for more than one particular planning scheme by a single gazette notice. I regard it as having permitted the Minister to nominate multiple particular planning schemes by a single gazette notice including every particular planning scheme. Where it relates to s 6.1.31 the effect of the words of the gazette notice exhibit 6 is to nominate each particular planning scheme without setting each out by name. I reject the submission for Waverley. I accept that the gazette notice could extend the day for all planning schemes. I accept that it extended the day for Council’s planning scheme.
Council further submitted:
In the alternative, were the Court to consider that reference to a particular planning scheme was required, the absence of such reference is not sufficient to rebut the presumption of regularity in this case where the notice made reference to section 6.1.31 of IPA.
For the latter submission Council referred to Shire of Flinders v T W Maw & Sons (Quarries) Pty Ltd [1971] VR 484 and Selby v Pennings (1999) 102 LGERA 253. Neither party’s counsel analysed or discussed these cases. It is unnecessary for me to do so.
Accordingly I reject Waverley’s submitted bases above for the invalidity of Policy 3A and Policy 3B.
Whatever submissions Waverley intended to support the making of the first fourth, fifth and sixth declarations they appear to be covered by findings made. I refuse Waverley’s application for declarations.
Council submitted with respect to its amended originating application for a declaration that nothing in Chapter 5 Part 1 of repealed IPA or its equivalent in Chapter 8 Part 1 of SPA expressly limits the application of the Part to exclude applications made prior to the adoption of a priority infrastructure plan. I accept that. Council submitted it is inappropriate to read such a limitation into the Part. I accept that.
It is appropriate to 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.
0
5
3