In this alert, Partner David Nicholls and Law Graduate Ruby Rayner discuss a recent judgment of the Queensland Court of Appeal which confirms that where an approval exists that has not been implemented a new application may be made for development to take advantage of the capped infrastructure charges regime.

In Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175, the Court confirmed the bounded nature of code assessment and the absence of residual discretion to refuse compliant applications in response to arguments by the Council that it had discretion to refuse a second application for reconfiguration of land (ROL) which was made to take advantage of capped infrastructure charges that were lower than those payable under a condition imposed on an earlier development approval. No basis for refusal was asserted other than the fact that an earlier ROL for the project had been approved and that approved operational work had been undertaken.

The facts

The evidence was to the effect that the charges payable pursuant to conditions of a development permit for ROL issued in 2010 had increased very significantly to an amount in excess of $2,000,000.00 by the time the developer was ready to seek plan sealing.  By then the capped infrastructure charges regime introduced by the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 had commenced. 

The developer applied for new development permit for ROL in 2014 under which the number of lots was reduced from 66 to 64, and a drainage reserve and a lot to accommodate a sewer pump station were introduced.  The capped infrastructure charges that would be payable under an infrastructure charges notice issued after approving the 2014 ROL would, according to the evidence, have been $1,500,000.00.

The evidence also established that the approved operational works that had already been constructed coincided with either the 2010 or 2014 ROL plans.

The Council argued on appeal that the primary judge ought to have exercised discretion to refuse the 2014 ROL application, essentially on the basis that the applicant was seeking to substitute the 2014 ROL for the 2010 ROL; that is to say – the effect of the new ROL application, if approved, would be to authorise the 2010 reconfiguration upon different conditions.  This submission ignored uncontested evidence about the differences between the 2010 and 2014 reconfigurations.  The Council also attempted to argue that the differences were minor, that the exercise involved seeking “re-approval” of the 2010 ROL and that when the 2014 ROL plan was presented for ultimate approval the Council would be placed in the position of having to check it for compliance against both the 2010 and the 2014 ROL approvals.  These factors were said to facilitate refusal by the Planning and Environment Court (PEC) on discretionary grounds.

Outcome

The Court rejected the Council’s arguments. Justice Fraser, with whom Justices Morrison and Flanagan agreed, reasoned that the PEC’s powers to make orders or directions under Section 496(2) of the Sustainable Planning Act 2009 (the SPA) are limited by the matters which may be taken into account by an assessment manager in assessing and deciding a development application.  The Court rejected the argument that the existence of the 2010 ROL approval and the Operational Works Approval enlivened the discretion to refuse the 2014 ROL application observing:

“Those arguments overlooked the obligation imposed by s 313(2) to assess the 2014 application “against” various planning provisions.  No doubt the assessment manager must have regard to the matters identified in s 313(3), but that must occur in the course of an assessment against the planning provisions identified in s 313(2).  Something which has no potential bearing upon the application of any relevant planning provision cannot be a relevant consideration in the decision.  If it were otherwise, a developer could seek to skew a planning decision by including in the “common material” promises to benefit a local government in ways which are wholly extraneous to the purposes of the Act.”

Because there may be more than one development approval co-existing over the same parcel of land (at least until one of them is implemented), and the 2010 ROL plan had not been implemented by registration, there was no legal restriction on approval of the 2014 ROL application. Thus the 2014 ROL application was code assessable within the confines imposed by Sections 313(2), (3) and (5) of the SPA, and there was no residual discretion to refuse it.

Key points

The points to take away from this case are:

  • If an approval containing infrastructure contribution conditions has not been implemented, another application may be made for development that, once approved, will be subject to the capped infrastructure charges regime.
  • More than one development approval may exist in respect of the same land at one time. This situation may continue until one of the approvals is implemented, or the others lapse or are cancelled.
  • Code assessment is confined to assessment against the instruments that are applicable under s 313(2) of the SPA, which will guide decision makers as to the relevance of matters that may be considered under s 313(3).