In brief

The case of Gold Coast City Council v Sunland Group Limited & Anor [2020] QCA 89 concerned an appeal to the Queensland Court of Appeal (Court of Appeal) against a decision of the Planning and Environment Court (P&E Court) in which Sunland Group Limited and another (Sunland) relevantly sought declarations about the payment of infrastructure contributions under clauses 13 to 16 of a preliminary approval granted on 3 May 2007 over land located in Mermaid Beach (Preliminary Approval). 

The P&E Court in its original judgment, Sunland Group Limited & Anor v Gold Coast City Council [2019] QPEC 14, relevantly held that the Gold Coast City Council (Council) had the power to collect infrastructure charges in accordance with clauses 13 to 16 of the Preliminary Approval, which required the payment of contributions for infrastructure to be calculated in accordance with certain planning scheme policies made by the Council under the now repealed Integrated Planning Act 1997 (IPA).

By unanimous decision, the Court of Appeal disagreed with the P&E Court, dismissed the original decision, and held that clauses 13 to 16 of the Preliminary Approval were to be construed in light of the amendments to the infrastructure charging regime modified by the Sustainable Planning (Housing Affordability and Infrastructure Charges Reform) Amendment Act 2011 (SPA Amendments Legislation), such that the Council must issue an infrastructure charges notice (ICN) under the current infrastructure charging regime in the Planning Act 2016 (Planning Act).

Background

Sunland lodged a series of development applications between 16 December 2015 and 30 September 2016, which were assessed and approved under the Preliminary Approval (Development Applications). The P&E Court held that the Council had the power to collect infrastructure contributions under clauses 13 to 16 of the Preliminary Approval, and had no power to issue an infrastructure charges notice under section 119 of the Planning Act. 

On appeal, Sunland argued that the P&E Court erred in that the relevant law for determining contributions for infrastructure is the planning scheme policies referred to in the clauses of the Preliminary Approval, while Council argued that the current legislative charging regime under the Planning Act applies.

Clauses 13 to 16 of the Preliminary Approval

Clauses 13 to 16 of the Preliminary Approval are expressed in relevantly identical terms, with clause 13 relevantly stating as follows [underlining added]:

13 Contributions toward Recreational Facilities Network Infrastructure shall apply at the time application is made for a Development Permit. The contribution to be paid to Council shall be in accordance with Planning Scheme Policy 16 – Policy for Infrastructure Recreation Facilities Network Developer Contributions.

Contributions shall be calculated at rates current at due date of payment.”

Clause 14 referred to "Planning Scheme Policy 19 – Policy for Infrastructure Transport Network Developer Contributions". Clause 15 referred to "Planning Scheme Policy 3A – Policy for Infrastructure Water Supply Network Developer Contributions". Clause 16 referred to "Planning Scheme Policy 3B – Policy for Infrastructure Sewerage Network Developer Contributions". 

Preliminary approvals approve development but do not authorise assessable development to occur

The Preliminary Approval was originally given effect under the IPA, which relevantly provides that:

  1. a preliminary approval approved development, but did not authorise assessable development to occur (see section 3.1.5(1) of the IPA); and

  2. assessable development was authorised only by a development permit (see section 3.1.5(3) of the IPA). 

Upon the repeal of the IPA and commencement of the SPA, section 808 of the now repealed SPA allowed for preliminary approvals, such as the Preliminary Approval, to continue as a preliminary approval under the SPA under similar provisions to those stated above for the IPA (see section 241 of the SPA). 

The Preliminary Approval still continues to have effect in accordance with the transitional provisions of the Planning Act, and, as with the IPA and SPA, under the Planning Act a preliminary approval approves development but does not authorise development to occur (see section 49 of the Planning Act).

Old infrastructure charging regime – Planning Scheme Policies

The relevant planning scheme policies were given effect by section 6.1.20 of the IPA, which dealt with the creation of planning scheme policies that formed part of the old infrastructure charging regime. Relevantly, section 6.1.20(4) stated that the section ceased to have effect on 30 June 2008, or a later day nominated by the Minister. Planning scheme policies, therefore, were given a limited life under the IPA. 

Planning scheme policies continued in force in accordance with the transitional provisions of the now repealed SPA. However, section 847 of the SPA, also contained a sub-section limiting the life of planning scheme policies to the 30 June 2010, which was extended to the 31 December 2011. 

The Court of Appeal also noted that the SPA made no provision for the formulation of new planning scheme policies. 

Did the Preliminary Approval create a present obligation to pay infrastructure charges on a future date or event?

Sunland argued that the terms in clauses 13 to 16 of the Preliminary Approval created a present obligation to pay infrastructure contributions in accordance with the old infrastructure charging regime on a future date or event.

The Court of Appeal disagreed and held that the phrase [underlining added] "contributions toward … Network Infrastructure shall apply at the time application is made for a Development Permit", was to be interpreted by reference to the purpose and effect of the Preliminary Approval, being a framework under which the Development Applications were assessed, but not permitted to occur. The Court of Appeal stated that the clauses did not themselves create an obligation to pay, and that the obligation to pay arises in relation to the current infrastructure charging regime which was applicable to the Development Applications. 

Current infrastructure charging regime – Adopted charges and ICNs

The SPA Amendments Legislation inserted the forerunner to the current infrastructure charging regime into the SPA, including the process of adopting infrastructure charges and levying those charges through an ICN. 

The infrastructure charging regime under the current Planning Act requires the Council to levy adopted charges through an ICN in accordance with section 119 of the Planning Act. An ICN must be given at the same time as, or as soon as practicable after, a development approval is given. 

Effect of the SPA Amendments Legislation on the Preliminary Approval

The Court of Appeal noted that the evident intention of the SPA Amendments Legislation was that it would be by the current infrastructure charging regime that the Council would recover infrastructure contributions. Section 880 of the SPA was considered critical to the transition from planning scheme policies to the new regime as it "switched off" the Council's ability to impose conditions under the old infrastructure charging regime. 

Section 880 of the SPA also provided that despite the infrastructure charging regime introduced by the SPA Amendments Legislation, a local government was not stopped from doing the following in accordance with the planning scheme policies (section 880(3)(b) of the SPA) [underlining added]:

"(i) collecting an infrastructure charge or regulated infrastructure charge lawfully levied by the local government; or

(ii) collecting an infrastructure contribution payable under a condition lawfully imposed under a planning scheme policy to which section 847 applies"

The Court of Appeal held that section 880(3)(b) of the SPA only applied to infrastructure charges under planning scheme policies which had already been levied or were already payable under a condition. 

The infrastructure contributions referred to in clauses 13 to 16 of the Preliminary Approval were not payable as the Preliminary Approval did not create an obligation to pay the infrastructure contributions. 

The Court of Appeal therefore held that section 880 of the SPA did not apply for the reason that no charges were levied or payable under the old infrastructure charging regime. 

The Development Applications were given effect after the SPA Amendments Legislation and are therefore subject to the current infrastructure charging regime. 

Conclusion

The Court of Appeal held that, in relation to the Development Applications, the Council must issue an ICN in accordance with the current infrastructure charging regime in the Planning Act as no infrastructure charges were levied or payable under clauses 13 to 16 the Preliminary Approval. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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