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.
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:
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.
Stafford Hopewell, Partner, Brisbane
Elton Morais, Senior Associate, Brisbane