This recent judgment of the Queensland Court of Appeal confirms that 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.
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175 confirms that code assessment is a constrained assessment limited to relevant considerations prescribed by legislation, and that there is no residual discretion for assessment managers to refuse compliant applications.
The case concerned arguments by a Council that it had discretion to refuse a second application for reconfiguration (ROL) which was made to take advantage of capped infrastructure charges that were lower than those payable under conditions of an earlier ROL approval for the same land. Council's sole basis for refusal was that there was an existing ROL approval and that approved operational work had been undertaken.
The infrastructure contribution payable pursuant to conditions of the existing ROL permit issued in 2010 (2010 approval) had increased to an amount in excess of $2.1 million by the time the developer was ready to seek plan sealing. By then the capped infrastructure charges regime introduced by amendments to the Sustainable Planning Act 2009 (SPA) had commenced.
The developer applied for a 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 for a sewer pump station were introduced (2014 application). The capped infrastructure charges payable under the new infrastructure charges regime would have been $1.5 million.
The Council argued on appeal that the primary judge ought to have exercised discretion to refuse the 2014 application, essentially on the basis that the applicant was seeking to substitute the 2014 ROL for the 2010 ROL, and in effect, authorise the 2010 reconfiguration upon different conditions. This submission ignored uncontested evidence about the differences between the 2010 and 2014 reconfigurations. Council also argued that the differences were minor and that Council would be ultimately placed in the position of having to check the application for compliance against both the 2010 and the 2014 ROL approvals. These factors were said to give rise to a right to refuse the application on discretionary grounds.
The Court of Appeal found in favour of the developer. It accepted that there may be more than one development approval co-existing over the same parcel of land, at least until one of them is implemented, lapses or is cancelled.
As the 2010 ROL approval had not been implemented by registration of the plan, there was no legal restriction on approval of the 2014 ROL application. Thus the 2014 ROL application was code assessable within the confines by the SPA, and there was no residual discretion to refuse it.
The Court observed that the P & E Court's powers to make orders in an appeal are limited by the same matters that may be taken into account by an assessment manager in assessing and deciding a development application. Assessment managers are confined to an assessment against the instruments that are applicable under s 313(2) of the SPA, which guides the other matters that may be considered under s 313(3). The matters raised by Council were irrelevant to assessment of the ROL application against the relevant planning instruments.
The P & E Court decision allowing the developer's appeal was upheld and the approval of the 2014 ROL was confirmed.
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