Australia: 54/13 Bremer Waters Pty Ltd v Ipswitch City Council [2013] QCA 392

P&E Court Updates - November/December 2013

Environment and planning – conditions requiring developer contributions – where the Respondent Council approved a development application for a material change of use of land for a retirement community – where the approval was subject to conditions, including condition 24 which required the payment of infrastructure contributions – where, at relevant times, the source of power to impose a condition regarding infrastructure was s. 6.1.31 of the Integrated Planning Act 1997 – where, in response to the applicant's request to change condition 2 of the development approval to acknowledge limited occupancy of the dwelling units, Council changed conditions 2 and 24 – where the primary judge dismissed the applicant's application for declaratory relief under the Sustainable Planning Act 2008 to the effect that the conditions were beyond power – where the applicant contended that there was no power to impose condition 24 as the relevant planning scheme policies (the 1999 policies) were not validly adopted as the Council did not substantially comply with the Sch 3 processes, as required by s. 2.1.12 of the IPA – where the applicant contended that s. 6.1.31(2)(c) of the IPA maintained the Council's legal position as if the Local Government (Planning and Environment) Act 1990 (Qld) (the P&E Act) had not been repealed – where the applicant contended that there was no power under the P&E Act to impose conditions requiring contributions to the cost of infrastructure other than water supply and sewerage infrastructure – where the applicant contended that the 1999 water supply and sewerage policy was invalid as it was not self-contained, as required by s. 6.2 of the P&E Act – where the applicant contended that condition 24 could not lawfully require the applicant to pay contributions in accordance with the 2004 policies which were not in force when condition 24 was imposed – where the applicant submitted that the Council had no power to unilaterally change condition 24 following the applicant's request to change condition 2 – whether there was an error of law sufficient to warrant the granting of leave to appeal under s. 498 of the SPA

Integrated Planning Act 1997 (Qld), ss 2,1,19, 2.1.20, 3.5.32(1)(b), 3.5.33, 6.1.1, 6.1.31, Sch 3, Sch 10
Local Government (Planning and Environment) Act 1990 (Qld), s 6.2
Sustainable Planning Act 2009 (Qld), s 498

Facts: This was an application for leave to appeal against part of an order of the Planning and Environment Court dismissing an application which would have had the effect of determining that certain requirements to make monetary contributions towards the cost of providing infrastructure, imposed on the applicant (Bremer) by the Respondent (Council), were unlawful.

On 13 February 2002, Council issued a negotiated decision notice approving a development application for a material change of use of land for a retirement community containing 161 residential units and a manager's residence.

The development approval was subject to conditions, including Condition 24 which required the payment of infrastructure contributions in accordance with "relevant Planning Scheme Policies".

Both Council and Bremer brought proceedings in the Planning and Environment Court for declaratory relief. Bremer sought declaratory relief to the effect that the condition was beyond power and an order for the refund of monies paid by it in respect of the conditions. An issue in the proceeding was the lawfulness of the "relevant Planning Scheme Policies".

There were four relevant policies in existence in February 2002 (the 1999 Policies), dealing with contributions for roadworks, social infrastructure, open space and water supply and sewerage infrastructure. The source of power to impose a condition on a development approval requiring payment of a contribution towards the cost of supplying infrastructure was found in s. 6.1.31 of the Integrated Planning Act 1997 (IPA).

In November 2007, Bremer requested that Council change Condition 2 of the development approval to limit occupancy to two persons per dwelling. The letter also sought deletion of the requirement to pay contributions with respect to a community building, as set out in Condition 24.

In 2008, Council changed Conditions 2 and 24. By the time the conditions were changed, new policies were in force (the 2004 Policies).

Bremer contended at first instance that:

  1. the 1999 Policies were not validly made;
  2. Condition 24 was not validly imposed;
  3. if Condition 24 was validly imposed, it could only lawfully authorise the imposition of contributions under policies in force when the condition was imposed; and
  4. the Council had no power to change Condition 24 in 2008.

The primary Judge found for Council in respect of contentions (1), (2) and (4) and, in respect of (3), held that Condition 24 could lawfully require contributions to be paid under policies in force at the date of payment (Ipswich City Council v Bremer Waters Pty Ltd [2013] QPEC 20).

The grounds of appeal in the Court of Appeal were:

  1. That the 1999 Policies were not validly made pursuant to ss. 2.1.19 and 2.2.20 or Schedule 3 of the IPA and as such that there was no power to impose Condition 24 (the s. 2.1.20 ground).
  2. Section 2.1.19 and Schedule 3 of the IPA set out the process for making or amending a planning scheme policy. Section 2.1.20 of the IPA provided that a planning scheme policy made or amended in substantial compliance with Schedule 3 was valid to the extent that any non-compliance had not adversely affected the public's awareness of the nature or existence of the policy or amendment and had not restricted the opportunity to make submissions about the policy or amendment.

    The primary Judge found on this issue that Council had substantially complied with the process for making planning scheme policies set out in Schedule 3 of the IPA and that s. 2.1.20 of the IPA had been satisfied.

    Bremer argued that s. 2.1.20 of the IPA could not be relied upon in relation to the issue of substantial compliance, as Council had not even purported to follow the process required by s. 2.1.19 and Schedule 3 of the IPA.

  1. There was no power to impose conditions requiring a contribution towards the cost of supplying infrastructure other than water supply and sewerage infrastructure (the s. 6.1.31(2)(c) ground).
  2. Bremer argued that the Council's power under the transitional provisions of the IPA to impose conditions requiring contributions was limited to that which was previously available under the Local Government (Planning and Environment) Act 1990 and that that power did not go beyond conditioning for water supply and sewerage headworks.

    The primary Judge had accepted Council's argument that if the legislature had intended to limit the conditions power under the IPA to water supply and sewerage headworks it would have done so expressly.

  1. The 1999 water supply and sewerage policy was invalid because it was not self-contained and directed the reader to a register of charges in order to ascertain the charges to use to calculate the contribution (the s. 6.2 ground).
  2. Bremer argued that the primary Judge had erred in finding in favour of Council. It argued that when a price was required to be fixed by statute the price must be fixed in the body of the legislation itself, not by some extraneous document and that subordinate legislation was invalid if it directed the reader to another document to ascertain the law, particularly if the extraneous material contained something essential, rather than subsidiary.

  1. Condition 24 could not lawfully require contributions to be paid in accordance with the 2004 Policies which were not in force when Condition 24 was imposed (the 2004 Policies ground).
  2. Council had no power to change Condition 24 when it changed Condition 2 on Bremer's request pursuant to s. 3.5.33 of the IPA (the s. 3.5.33 ground).

Decision: The Court held, that:

In relation to the s. 2.1.20 ground:

  1. Whether there was substantial compliance with Schedule 3 of the IPA was not dependent on the Council's intention or on whether it purported to act under a particular head of power.
  2. Even if the process followed by the Council was "confusing", it did not follow that the requirements of s. 2.1.20 were not satisfied.
  3. The primary Judge carefully considered the process followed and concluded that there had been substantial compliance.
  4. It had not been demonstrated that the primary Judge was not entitled to reach that conclusion.

In relation to the s. 6.1.31(2)(c) ground:

  1. There was power under the P&E Act to impose conditions requiring contributions towards the cost of road works, infrastructure, social infrastructure and open space infrastructure.

In relation to the s. 6.2 ground:

  1. The contribution amount was determined under a policy and not fixed by the register of charges. The policy incorporated the register only as a means of identifying a sum for insertion in the formula for calculating infrastructure charges contained in the policy.

In relation to the 2004 Policies ground:

  1. There was no reason why a condition could not be expressed so as to apply a policy in force from time to time rather than a policy in force at the time of imposition of the condition.

In relation to the s. 3.5.33 ground:

  1. If the request was a development application, Council would have been entitled to have regard to infrastructure policy, and whether any conditions should be imposed requiring a contribution towards the cost of supplying infrastructure, in assessing and deciding the application. The Council was also entitled to have regard to such matters when assessing a request for a change to conditions.
  2. Acceptance of Bremer's argument would substantially constrain local authorities in dealing with applications for changes in conditions. If the granting of a change in a condition, although reasonable in itself, would produce the result that other conditions would no longer be adequate, appropriate or desirable, the local authority would need to decide between refusing the application and granting it with the resultant creation of an unsatisfactory state of affairs in relation to other conditions.

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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