Infrastructure charges in the Court of Appeal

In 2020, the Court of Appeal has twice considered challenges to infrastructure charges levied upon major developments and has twice found in favour of councils.  The Court of Appeal has upheld the right of councils to levy new infrastructure charges rather than relying on a condition of a preliminary approval in the Gold Coast City Council v Sunland Limited & Anor [2020] QCA 89 case, and (in part) infrastructure charges issued in Toowoomba Regional Council v Wagners Investments Pty Ltd [2020] QCA 191. 

Sunland decision

In the Sunland decision, the Court of Appeal considered a condition on a preliminary approval issued in 2007 (under the Integrated Planning Act 1997 (Qld) (IPA)).  A condition of the preliminary approval provided that infrastructure charges ‘shall apply’ when an application for a development permit was made, and those charges would be in accordance with the planning scheme policies in force at the time (in 2007).  Sunland argued that the Council was bound by the condition in force, and that the rates under the planning scheme policies should apply.

The Court instead found, by operation of the transition from IPA to the Sustainable Planning Act 2009 (Qld) (SPA) to the Planning Act 2016 (Qld) (PA), that the proper course for a local government involved issuing an infrastructure charges notice under the current infrastructure charging regime upon the giving of a development permit. 

Sunland has sought special leave to appeal the decision of the Court of Appeal. 

Wagners decision

The 2019 Planning and Environment Court decision in the Wagners case[1] overturning Toowoomba Regional Council’s imposition of infrastructure charges for transport and stormwater for the new Wellcamp Airport was well publicised. 

The Court of Appeal:

• overturned the Planning and Environment Court’s finding on the transport charges (i.e. upholding the imposition of the charges); and
• upheld the Planning and Environment Court’s decision relating to the stormwater charges, albeit it on slightly different grounds.

Council’s ‘broad brush’ approach to charge certain non‑residential use categories for the transport network with reference to gross floor area was upheld.  Wagners was successful in relation to the stormwater charges.

Wagners has sought special leave to appeal the decision of the Court of Appeal. 

Key takeaways for local governments

While covering different issues, with significant degrees of legal complexity, the key takeaway from both cases is that there are difficulties for a proponent in challenging the power of local governments to levy and collect infrastructure charges.

Special thanks to Patrick O’Brien, Lawyer, for his assistance in putting this article together. 

[1] Wagner Investments Pty Ltd & Anor v Toowoomba Regional Council [2019] QPEC 24.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.