Australia: Just the facts: Preconditions for the levying of infrastructure charges

In Brief

The appeal concerned a challenge against various charges levied by the Toowoomba Regional Council for stormwater and transport infrastructure.

The principal issues in dispute were:

  1. whether the charges levied under the infrastructure charges notices were so unreasonable that no reasonable local government could have imposed the charges; and
  2. whether the decision to issue the infrastructure charges notices involved errors in relation to the working out of additional demand placed upon trunk infrastructure.

The Planning and Environment Court ultimately allowed the appeal, set aside the charges for stormwater and remitted the charges for transport to the Toowoomba Regional Council for further consideration and assessment.

While the appeal was decided under the repealed Sustainable Planning Act 2009, the relevant provisions are not materially different under the Planning Act 20161.

Stormwater Infrastructure

The Toowoomba Regional Council contended that Westbrook Creek, a natural formed waterway, constituted trunk stormwater infrastructure despite it not being identified as trunk infrastructure within its Local Government Infrastructure Plan.

The Planning and Environment Court held that position could not be maintained because:

  1. it failed to take into account the wording of the planning scheme, which made it "tolerably clear that both existing and proposed trunk infrastructure networks are those identified in the plans for trunk infrastructure"; and that on examination of the plans for trunk infrastructure it was evident that no part of Westbrook Creek in the vicinity of the development formed part of the trunk stormwater infrastructure network;
  2. it offended the fundamental principles of statutory construction which requires that planning schemes (which include Local Government Infrastructure Plans) "be read in a way which is practical, and read as whole and as intending to achieve a balance between outcomes"; and
  3. at a more practical level, the approach contended for by the Toowoomba Regional Council would extend to all other natural formed or unformed waterways within the relevant local government area irrespective of their designation within the Local Government Infrastructure Plan.

It therefore concluded that Westbrook Creek was not trunk stormwater infrastructure.

The Planning and Environment Court also considered the Appellant's alternative argument, namely that the Toowoomba Regional Council was precluded from levying charges because the development did not place any additional demand upon trunk stormwater infrastructure.

In this regard, the Planning and Environment Court relied on the joint expert report prepared by the parties' hydraulic engineers which satisfied it that the development would not place any additional demand upon trunk stormwater infrastructure (even if Westbrook Creek was trunk stormwater infrastructure). Accordingly, the Planning and Environment Court held the Toowoomba Regional Council had no lawful authorisation to levy the charges it had for stormwater infrastructure.

The Planning and Environment Court therefore concluded the charges levied for trunk stormwater infrastructure should be set aside.

Transport Infrastructure

While the Appellant agreed the development would generate additional demand on trunk transport infrastructure, it contended the charges imposed by the Toowoomba Regional Council had no rational or reasonable basis. In this regard, the Appellant argued that:

  1. the Toowoomba Regional Council had erred in classifying the development as "industry" and "essential services" which had resulted in it levying charges by reference to the gross floor area of the development; and
  2. the Toowoomba Regional Council ought to have classified the development as "specialised uses" which required it to levy charges "based on an assessment of use and demand".

Having regard to the nature of the uses contemplated by the development, as well as the expert evidence from the parties' traffic engineers, the Planning and Environment Court held it was sufficiently clear that while some aspects of the development had been properly classified as "industry" and "special services", others ought to have been classified as "specialised uses" which required a meaningful attempt to calculate or estimate the demand on trunk transport infrastructure.

Accordingly, it was satisfied the Toowoomba Regional Council had "adopted an approach that was not lawfully reasonable in the sense that it would result in outcomes that would be unlikely to bear any legitimate relationship between the "specialised uses" and the demand placed upon trunk transport infrastructure";

The Planning and Environment Court therefore concluded that, so far as the "specialised uses" were concerned, the charges levied for trunk transport infrastructure should be remitted to the Toowoomba Regional Council for further consideration and assessment.

Conclusion

The judgment of the Planning and Environment Court in this appeal provides clarity in relation to the preconditions necessary for the levying of infrastructure, namely that:

  1. there must be relevant trunk infrastructure identified within a Local Government Infrastructure Plan; and
  2. there must be additional demand placed upon that trunk infrastructure.

Absent any trunk infrastructure, there can be no reasonable basis for levying a charge. Likewise, failure to identify the additional demand placed upon trunk infrastructure by a development supports the proposition that a levied charge is unreasonable insofar that it is difficult to find any legitimate or rational correlation in relation to the likely additional demand placed upon the trunk infrastructure.

Footnote

1Cf. Sustainable Planning Act 2009, s476 and Planning Act 2016, Sch 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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