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
Decision: The Court held, in allowing the
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
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.
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