Australia: Understanding the new infrastructure provisions of the Sustainable Planning Act 2009

HG Infrastructure Charges Reform Series: 8 July 2014
Last Updated: 26 July 2014
Article by David Nicholls, Sarah Macoun and Thomas Buckley

In this Alert as part of HopgoodGanim's Infrastructure Charges Reform Series, Partners David Nicholls and Sarah Macoun, and Associate Thomas Buckley analyse the key amendments to the infrastructure charging and planning provisions of the Sustainable Planning Act 2009 that were introduced by the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act 2014.

Key points

  • Important changes to the requirements for infrastructure offsets and refunds, including the ability to cross-credit across infrastructure networks.
  • Recognition of existing lawful use rights when calculating demand placed on infrastructure generated by development.
  • A new application process to convert non-trunk infrastructure to trunk infrastructure – a "conversion application".
  • New requirements and obligations on developers and local governments in respect of infrastructure charges notices (ICNs) and conditions about infrastructure.
  • Extension of the infrastructure charging provisions to permissible changes, extensions of approvals and compliance assessment.
  • New appeal rights to the Planning and Environment Court (P&E Court) and a Building and Development Committee (B&D Committee).

Offsets and refunds

It is now prescribed that when an offset is available for an item of infrastructure, the value of that infrastructure must be offset against the total charge which has been levied by the local government for the development (known as "cross-crediting").1 By way of an example, under this arrangement, an offset for transport infrastructure will be applied against the total charge that has been levied for all infrastructure networks for the development, which might also include stormwater and open space infrastructure networks.

Additionally, a local government's charging resolution (which lists the charges applicable to its area) must now include the method for working out the cost of the infrastructure the subject of an offset or refund.2 Accompanying this is a new process for working out the cost required for an offset or refund. Where an applicant does not agree with the value of the establishment cost of an offset or refund, it may apply to the local government to have that value calculated by reference to the method adopted under the local government's charging resolution.3 This is intended to cover circumstances where the 'actual' value of infrastructure is greater than the 'planned' value of infrastructure.

Infrastructure credits

Credits are applied to an infrastructure charge when a development application is made to alter or intensify an existing lawful use of land. In those circumstances, the charge will usually be discounted by the amount of the charge that would have applied to the existing use, so that the infrastructure charge for the development only applies to the changed component of the use. However, the circumstances in which this happened varied considerably between local governments.

It is now prescribed that an infrastructure charge may only be for 'additional demand' placed upon trunk infrastructure that will be generated from the development. Existing lawful uses of land (and development that can be lawfully carried out without a permit) cannot be included in assessing additional demand.4

Conversion applications

A new process is prescribed that allows an applicant to apply to a local government to have non-trunk infrastructure which is required to be provided under an approval to be converted to trunk infrastructure (a conversion application).5 A local government will have 30 business days to decide a conversion application (which may be subject to an information request). The local government's decision must have regard to decisional criteria prescribed in a statutory guideline.6

Conversion applications seek to overcome circumstances where developments have been conditioned to provide infrastructure (as 'non-trunk'), where in reality the infrastructure serves a trunk function for the area (by servicing other developments in the area). The benefit to be obtained from a conversion application is the entitlement to an offset for the provision of the infrastructure.

Infrastructure charges notices

ICNs will now attach to land.7 If land is sold, the obligation to pay infrastructure charges under an ICN (for the carrying out of an approval on the land) will become the obligation of purchaser.

Additionally, an ICN must now include the reasons for the decision to give the ICN, information about the applicant's appeal rights and details of applicable offsets or refunds (including the timing for the payment of a refund).8

Infrastructure conditioning powers

Local governments will now be able to impose conditions on approvals for the provision of trunk infrastructure even though it is not identified in a local government infrastructure planning instrument.9 This new conditioning power is intended to recognise that at the time of the making of those planning instruments, not all future trunk infrastructure scenarios can be foreseen or anticipated.

A local government is also now prohibited from imposing a condition on an approval requiring the applicant to enter into infrastructure agreement about infrastructure required for the development.10 There is also now an additional obligation on a local government to include in a decision notice, the statutory basis for each condition about infrastructure that is imposed on the approval.11

Permissible changes, extensions and compliance assessment

The infrastructure charging provisions now apply to requests for a permissible change to a development approval, requests to extend development approvals and compliance assessment.12 Accordingly, when a developer applies to 'change' its approval, or makes a request to extend the relevant period of its approval, or requests compliance assessment of the development, the local government can issue a new ICN for the changed approval, the extension to the relevant period or with a compliance permit. The effect of this is that new (sometimes greater or smaller) charges will be levied on the development.

Appeals in respect of infrastructure

The recipient of an ICN is entitled to appeal the decision to give the notice to the P&E Court or a B&D Committee. The grounds upon which that appeal can be made have been expanded.

The appeal may state be that there was an error relating to the application of the 'charge', an error relating to the working out of 'additional demand' (for existing lawful uses of land) or an error relating to an 'offset or refund' (including that there was no decision made about an offset or refund).13 An applicant will also be entitled to appeal against the timing stated in an ICN for the payment of a refund. A right to appeal to the Court, but not to a B&D Committee, in respect of manifest unreasonableness of an ICN remains in the legislation.

There is also now a right of appeal against the refusal or deemed refusal of a conversion application.14 The right of appeal is available only to the applicant. There are no third party appeal rights.

Similar to the process prescribed for development approvals, the recipient of an ICN is now entitled to make submissions to the local government about the ICN during its appeal period (including the ability to suspend the appeal period).15

In the next edition of the Infrastructure Charges Reform Series, we will provide an overview of the new changes to the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009, focusing on the charging arrangements for distributor-retailers and the new 'water approval' requirements.


1Amended section 649

2New section 633

3New section 657

4New section 636

5New sections 658 – 662

6Statutory Guideline 03/14 – Local government infrastructure plans

7New section 635

8New section 637

9New section 647

10Amended section 347

11Amended section 335

12New section 626

13Amended sections 478 & 535

14New sections 478A & 535A

15New sections 641 – 644

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Nicholls
Sarah Macoun
Thomas Buckley
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.