Where council sought enforcement orders to enforce conditions of development approval requiring payments under infrastructure contributions policies – where subsequent changes had been made to conditions – whether policies impermissibly referenced other documents – whether policies had been correctly adopted – whether types of contributions that could be required by policies were limited – whether Council limited to charging in accordance with relevant levels at time of development approval
Sustainable Planning Act 2009 (Qld), s 580
Integrated Planning Act 1997 (Qld), ss 2.1.16, 2.1.18, 2.1.19, 2.1.20, 3.5.33, 6.1.19, 6.1.20, 6.1.31, Schedule 3
Local Government (Planning and Environment Act) 1990 (repealed), s 6.2
Facts: Council filed an Originating Application seeking declarations that the Respondent, Bremer Waters Pty Ltd, had committed development offences pursuant to s 580 of the Sustainable Planning Act 2009 (SPA) by failing to comply with conditions (specifically Condition 24) of a development approval for a retirement community issued on 13 February 2002. The relevant condition required payment of contributions for roadworks, social infrastructure, open space (parks), water supply and sewerage. The development application was made under the Integrated Planning Act 1997 (IPA).
Three preliminary issues were raised in Council's Originating Application, namely:
- Did the Council have legal power pursuant to s 6.1.31 of the Integrated Planning Act 1997 to impose contribution conditions relating to parks, roads and social infrastructure on the subject development approval?
- Did the Council have effective legal power to impose contribution conditions relating to water supply and sewerage under the subject development approval for material change of use on 13 February 2002?
- Were the contributions payable under Condition 24 to be calculated under the policies in force when the condition was imposed or later policies in force on the date payment was made?
With respect to the first issue, the relevant condition made reference to planning scheme policies which came into effect in 1999. At the time the policies took effect, the Local Government (Planning and Environment) Act 1990 (PEA) had been replaced by the IPA, which was less restrictive in terms of contributions. The parties disagreed about which Act applied for the purposes of the policies.
The Respondent argued that in imposing contribution conditions under s. 6.1.31 of the SPA, Council was restricted to what the PEA allowed, which did not go beyond water supply and sewerage headworks contributions. It argued that a subsequent amendment which had been made to s. 6.1.31 of the IPA to remove a reference to the PEA lifted that restriction, but that it came too late to save Condition 24. Council submitted that if the legislature had intended to limit the conditions power in s. 6.1.31 to water supply and sewerage headworks it would have done so and that the section was dealing with the method by which contributions could be exacted, not with the subject matter of the contributions. Council argued that the amendment that had been made was to clarify the meaning of the section.
In relation to the second issue, the Respondent contended that the policies were insufficient because they did not specify dollar amounts for contributions but instead contained reference to another Council document which set out the relevant dollar amounts. An amendment to IPA in 2003 to introduce s. 2.1.18 had provided that a planning scheme policy must not apply, adopt or incorporate another document prepared by a local government.
Two other issues were also raised by the Respondent. The development approval had been changed twice since originally granted – once in 2003 and once in 2007. Although it had not been sought by the developer, the changes had resulted in amendments to Condition 24 to bring contributions up to current levels. The Respondent argued that it was not open to Council to change Condition 24.
The Respondent also raised an issue about whether the 1999 contributions policies were properly adopted by Council pursuant to the process set out in Schedule 3 of the IPA. Council argued that there had been substantial compliance with Schedule 3 with respect to the adoption of the policies.
Decision: The Court held that:
- In relation to the changes to the development approval and Condition 24:
- The flexibility desired in cases of a request under s. 3.5.33 of the IPA may be available in the sense that the request could be changed to conform with what suited the developer and the assessment manager.
- It would not be appropriate to now sever what Council had done in respect of changes to Condition 24 from what it had done in respect of other changes to the approval.
- Expiration of the appeal period did not deprive the Court of jurisdiction to declare invalid a development condition or a development approval. However, in determining whether to exercise favourably the discretion to grant declaratory relief, the Court will consider all relevant circumstances, including what had been done under that which was sought to be declared invalid and the expiration of the appeal period, which here was allowed to lapse by Bremer Waters.
- A related topic or consideration was the reluctance the Court should have to pronounce invalid bylaws, planning schemes, planning policies and the like that are all of general application and have been acted upon for a long time. The Court was not disposed to exercise the discretion to grant declaratory relief.
- With respect to the first issue, Council's argument was accepted.
- With respect to the second issue, the condition was valid because the requirement of the policies was sufficiently met. It may be there were some times since s. 2.1.18 of IPA came into effect when there could arguably be a problem flowing from the contributions policy relied on not being self-contained, but involving reliance for one or more elements of the calculation on some other document prepared by the Council. The parties should be afforded an opportunity of making submissions about that, if an issue of practical importance arose.
- With respect to the third issue, contributions may be required at rates current at the times when payment is made under a new policy replacing whatever was in force at the time of the development approval. If the developer was of the view that it was advantageous it should pay early, before the rate went up.
- With respect to whether the 1999 contributions policies were lawfully adopted, there had been substantial compliance with Schedule 3. Any non-compliance had not adversely affected the awareness of the public of the existence or nature of the proposed policies or restricted the opportunity which Schedule 3 required to make submissions.
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