This recent judgment of the Queensland Court of Appeal
confirms that if an approval containing infrastructure contribution
conditions has not been implemented, another application may be
made for development that, once approved, will be subject to the
capped infrastructure charges regime.
Gladstone Regional Council v Homes R Us (Australia) Pty
Ltd  QCA 175 confirms that code assessment is a
constrained assessment limited to relevant considerations
prescribed by legislation, and that there is no residual discretion
for assessment managers to refuse compliant applications.
The case concerned arguments by a Council that it had discretion
to refuse a second application for reconfiguration (ROL) which was
made to take advantage of capped infrastructure charges that were
lower than those payable under conditions of an earlier ROL
approval for the same land. Council's sole basis for refusal
was that there was an existing ROL approval and that approved
operational work had been undertaken.
The infrastructure contribution payable pursuant to conditions
of the existing ROL permit issued in 2010 (2010 approval) had
increased to an amount in excess of $2.1 million by the time the
developer was ready to seek plan sealing. By then the capped
infrastructure charges regime introduced by amendments to the
Sustainable Planning Act 2009 (SPA) had commenced.
The developer applied for a new development permit for ROL in
2014 under which the number of lots was reduced from 66 to 64, and
a drainage reserve and a lot for a sewer pump station were
introduced (2014 application). The capped infrastructure charges
payable under the new infrastructure charges regime would have been
The Council argued on appeal that the primary judge ought to
have exercised discretion to refuse the 2014 application,
essentially on the basis that the applicant was seeking to
substitute the 2014 ROL for the 2010 ROL, and in effect, authorise
the 2010 reconfiguration upon different conditions. This submission
ignored uncontested evidence about the differences between the 2010
and 2014 reconfigurations. Council also argued that the differences
were minor and that Council would be ultimately placed in the
position of having to check the application for compliance against
both the 2010 and the 2014 ROL approvals. These factors were said
to give rise to a right to refuse the application on discretionary
The Court of Appeal found in favour of the developer. It
accepted that there may be more than one development approval
co-existing over the same parcel of land, at least until one of
them is implemented, lapses or is cancelled.
As the 2010 ROL approval had not been implemented by
registration of the plan, there was no legal restriction on
approval of the 2014 ROL application. Thus the 2014 ROL application
was code assessable within the confines by the SPA, and there was
no residual discretion to refuse it.
The Court observed that the P & E Court's powers to make
orders in an appeal are limited by the same matters that may be
taken into account by an assessment manager in assessing and
deciding a development application. Assessment managers are
confined to an assessment against the instruments that are
applicable under s 313(2) of the SPA, which guides the other
matters that may be considered under s 313(3). The matters raised
by Council were irrelevant to assessment of the ROL application
against the relevant planning instruments.
The P & E Court decision allowing the developer's appeal
was upheld and the approval of the 2014 ROL was confirmed.
Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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