Court orders Noosa Council to amend Infrastructure Charges Notice

12 February 2018
Stafford Hopewell, Partner, Brisbane

In an appeal against the lawfulness of an infrastructure charges notice (ICN) issued by Noosa Council, the appellant has failed to show that the ICN was unreasonable but has been successful on the limited ground that the Council had failed to properly take into account the existing lawful use of the premises in calculating the amount of the charges.  This decision has implications for land owners, developers and local government moving forward in relation to the methodology and calculation of infrastructure charges.

Implications

  • Local governments may adopt charges for providing trunk infrastructure for development under:
      • State planning regulatory provision (SPRP); or
      • Infrastructure charges resolution (ICS).
  • In the event a local government elects to adopt charges under an ICS, those charges cannot exceed the charges prescribed in the SPRP.
  • Infrastructure charges may be levied and recovered through an ICN.
  • A levied charge may be only for additional demand placed on trunk infrastructure that will be generated by the development and the charge must not include demand on trunk infrastructure generated by an existing lawful use on the premises or a previous lawful use that is no longer taking place on the premises.
  • An applicant may appeal to the Planning and Environment Court about an ICN on the following basis:
      • the charge in the notice is so unreasonable that no reasonable local government could have imposed it;
      • the decision involved an error in working out the additional demand.
  • Demonstrating to the Court that a local government has been so unreasonable that no reasonable local government could have imposed the charge involves persuading the Court that the decision reached by the local government was an irrational one or one devoid of plausible justification.

Decision

The premises had been used as a turf farm prior to the appellant taking possession.  Historical aerial photography and evidence provided by the previous manager indicated that the turf farm comprised existing sheds and a dwelling house.

The appellant then constructed additional buildings and/or structures which included a greenhouse and packing shed.  The Council notified the appellant that such buildings and/or structures were constructed unlawfully and a development permit was required.

The appellant proceeded to obtain a development permit for a Type 2 Intensive for Crops (Greenhouse) high impact rural activity and was given an ICN by the Council.  The charges levied by the Council were in respect of transport and public park and land for community facilities.  In working out the additional demand placed on the Council’s trunk infrastructure, the Council did not have regard to the turf farm and existing dwelling.

The appellant filed an appeal in the Court about the ICN and contended that the charge in the notice was so unreasonable that no reasonable relevant local government could have imposed it and the decision involved an error in working out the additional demand placed on the Council’s trunk infrastructure.

The Court determined that the Council had:

  • not acted unreasonably as the Council had followed the infrastructure charges regime by adopting its Noosa Charges Resolution in accordance with the requirements of the Act;
  • failed to properly calculate the additional demand placed on the trunk infrastructure by not including the existing demand generated by the turf farm as part of its calculations.

Accordingly, the Court made orders including allowing the appeal in part and directed the Council to recalculate the infrastructure charges associated with the development and give the appellant an amended ICN.

 

 

Authored by:
Stafford Hopewell, Partner, Brisbane
Elton Morais, Senior Associate, Brisbane

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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