Trunk vs Non-Trunk: Guidance from the Court on infrastructure conditions

The Planning and Environment Court recently decided the case of Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2024] QPEC 30 (Homeland).

The judgment represents the latest instalment in a body of caselaw unpacking the infrastructure provisions of Planning Act 2016 (Qld) (Planning Act). This judgment of his Honour Judge Williamson KC provides some welcome guidance about the power to impose necessary trunk infrastructure conditions.

The key infrastructure concepts from the Planning Act relevant to this case are as follows:

Trunk infrastructure

Trunk infrastructure (infrastructure that is shared between multiple developments) is generally provided by local governments, as planned for in the Local government infrastructure plan (LGIP). Adopted charges are used to fund the supply of trunk infrastructure.

Trunk infrastructure is defined under the Planning Act as:

Necessary infrastructure conditions

A local government may impose conditions on a development approval requiring the supply of necessary trunk infrastructure. Necessary trunk infrastructure is the trunk infrastructure required to service the premises the subject of the development application.

The cost of the infrastructure provided via a necessary trunk infrastructure condition is offset against the adopted charge for the development i.e. the applicant provides trunk infrastructure in lieu of paying infrastructure charges.

Non-trunk conditions

Non-trunk infrastructure is infrastructure that is internal to a development, connects a development to external infrastructure networks, or is necessary to protect or maintain the safety or efficiency of the infrastructure network of which it is a component.

Developers are responsible for providing non-trunk infrastructure. Under section 145 of the Planning Act, local governments, may place conditions on a development approval pertaining to non-trunk infrastructure.

Facts

Whitsunday Regional Council approved Homeland’s suite of development approvals (and planning scheme variations) in respect of a staged master planned community known as ‘Whitsunday Paradise’, south of Bowen. The approvals anticipate 1,757 lots, to be developed over 10 stages.

The approvals were granted subject to conditions. The case was an appeal against 34 of the conditions, relating to sewerage and water supply infrastructure, and two advisory notes. The advisory notes clarified that, to the extent conditions require the delivery of infrastructure, the conditions in the approval are imposed under section 145 of the Planning Act (i.e. that all the infrastructure was non-trunk infrastructure). Homeland also filed 15 related appeals against each of the infrastructure charges notices issued in respect of the development approval.

A key issue was that, at the time Homeland’s development application was properly made, the planning scheme did not include an LGIP. There were then changes to the planning scheme and an LGIP was introduced during the life of the development application, which directly concerned the infrastructure at the centre of the appeal. In this case, the subsequent LGIP initially included a water reservoir (Item W8) as trunk infrastructure, but this was later removed.

Question for the Court to determine

Homeland’s appeal sought to determine whether the development conditions should instead be categorised as necessary trunk infrastructure conditions under section 128 of the Planning Act. In summary, the Appellant’s position was that it was providing trunk infrastructure, and argued that the local government has the power to impose a development condition categorising the infrastructure as such.

If Homeland’s arguments had succeeded, the Council may have been liable in the future to recognise offsets and refunds for Homeland’s provision of that infrastructure, as opposed to that infrastructure being entirely at Homeland’s cost.

Key takeaways

The Court found that Homeland did not identify any infrastructure that met the Planning Act definition of trunk infrastructure.

The judgment clarifies that infrastructure that is not identified in the LGIP cannot be conditioned as trunk infrastructure, except following a successful conversion application. The Court therefore reinforced that a conditions appeal is not the appropriate vehicle for seeking to replace a non-trunk condition with a necessary infrastructure condition. 

The Court also stated that a decision to delete certain infrastructure from the schedule of works in the LGIP is not appealable in the context of the infrastructure conditions appeal.

It will be interesting to watch the impact of this judgment, in light of the case law on conversion applications. In The Avenues Highfields Pty Ltd v Toowoomba Regional Council [2017] QPEC 48, the Court upheld the refusal of a conversion application, giving weight to the fact that the developer did not appeal a non-trunk infrastructure condition.