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(Everson DCJ -28 November 2014)
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the judgment
Environment and planning – infrastructure charges – whether approval of new development application would result in a condition which was inconsistent with a condition of an earlier development approval still in effect
Facts: This was an appeal by the developer of a residential estate in Calliope against the Gladstone Regional Council's refusal of a development application for reconfiguration of a lot.
The appellant had already obtained approvals for a material change of use, reconfiguration of a lot and operational works in respect of the residential estate. The existing reconfiguration approval included conditions requiring infrastructure contributions. The plan of subdivision for the existing reconfiguration approval showed 66 residential lots. The operational work associated with the existing approval had been completed and accepted "on maintenance".
The appellant had lodged the new reconfiguration application to take advantage of a change to the infrastructure charges regime which would result in a significant reduction in the infrastructure charges payable with respect to the subdivision. The new plan of subdivision showed 64 residential lots plus a drainage reserve and a separate lot for the proposed sewer pump.
The changes to the infrastructure charging regime meant that the Council could not impose conditions requiring infrastructure contributions on the new development application but could still collect infrastructure contributions by issuing an adopted infrastructure charges notice.
The Council refused the new development application on the basis that it was inconsistent with the existing approval. The Council relied on s. 347 of the Sustainable Planning Act 2009 to argue that because it could no longer issue conditions requiring infrastructure contributions meant that a decision to approve the new development application would be inconsistent with the existing reconfiguration approval.
Decision: The Court held, in allowing the appeal:
- No inconsistency had been demonstrated with the conditions of the existing approval.
- The appellant was not seeking to avoid the legal obligations imposed by the conditions of earlier development approvals. What was proposed was merely the substitution of one permit for another which was more advantageous as a consequence of the new infrastructure charging regime. There was no discernable legislative policy intend which prevented developers from making development applications to reduce their liability for infrastructure charges.
- There was no legislative intent that warranted the enlivening of any discretionary grounds which would otherwise justify the Council's decision to refuse the development application.