Australia: Interpretation of development approvals and calculation of infrastructure charges

Last Updated: 15 July 2016
Article by David Nicholls

Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8 (Walter Elliott Holdings No 1) and Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2016] QCA 19 (Walter Elliott Holdings No 2) concerned an application for declaratory relief involving the calculation of infrastructure charges in respect of a relocatable home park. The adopted infrastructure charge was greater for a three bedroom home than for a two bedroom home and at issue was whether the approval permitted only two bedroom homes, or whether it could be construed as permitting three bedroom homes.

In Walter Elliott Holdings No 1, the Planning and Environment Court held that, properly construed, the development approval was for two bedroom dwellings. The judgment in Walter Elliott Holdings No 1 was reversed by the Queensland Court of Appeal in Walter Elliott Holdings No 2.

FACTUAL MATRIX

The development approval retrospectively permitted 115 relocatable homes which already existed, of which 114 were two bedroom and one of which was expressly approved as three bedroom. The approval also authorised the development of a further 86 relocatable homes of a similar type and style within the same home park, which was described as an "over 50's lifestyle resort".

The conditions imposed by the Council incorporated a general plan of layout but not the indicative dwelling plans included with the application, and did not contain a condition limiting the dwellings to two bedrooms. The applicant had stated in the planning report supporting the application that the dwellings would contain only two bedrooms and requested the application of infrastructure charges on that basis. However, conditions imposed by the Department of Transport and Main Roads (DTMR) limited the scale and intensity of development by reference to the statements in the Planning report to two bedroom homes.

PLANNING AND ENVIRONMENT COURT'S JUDGMENT

The Planning and Environment Court construed the approval by reference to the clear statements in the town planning report and floor plans that all dwellings would be resided in by one or two persons and would consist of two bedrooms, so that the charge was declared to be determinable on the basis of two bedroom homes rather than three bedroom homes.

COURT OF APPEAL'S JUDGMENT

The reasons of the majority of the Court of Appeal justices are essentially based upon a line of cases which hold that approvals cannot be interpreted by reference to the content of development applications. In the dissenting judgement, Morrison JA pointed out that conditions imposed by the DTMR expressly or impliedly called up the relevant part of the planning report that described the dwellings as having two bedrooms. The PEC's reasoning which led to the finding that the development approval was for two bedroom dwellings and not three bedroom dwellings was therefore correct in Morrison JA's opinion. Inexplicably, the concurrence agency's condition was not addressed in the majority's reasons.

An interesting aspect of the case was the QCA's consideration of the provisions of the Anti-Discrimination Act 1991 (Qld) (AntiDiscrimination Act) which prohibits discrimination based upon age. It appears from the reasons of McMurdo P that the Court itself raised this issue with the parties shortly prior to the hearing in the Court of Appeal. It does not feature in the PEC's reasons. Why this occurred is not explained in the QCA's reasons.

After considering the relevant provisions of the Anti-Discrimination Act in the context of whether the "over 50's lifestyle resort" needed an exemption from the legislation, and noting that it was not possible to reach a concluded view about that, McMurdo P went on to say:

"It is enough to observe the development appeared to offend s 7(f) and arguably s 76 or s 77...and that it cannot be assumed that, were the respondent to apply for an exemption under s 113, it would be granted. The fact that the respondent's development may be contrary to the AntiDiscrimination Act is another reason why a court would be loathe to grant the respondent the declaratory relief sought." [emphasis added]

It is unclear why a tentative conclusion based upon incomplete analysis should influence the exercise of the Court's discretion one way or another.

The analysis of this issue by Morrison JA concludes that neither the development as completed or proposed, nor the development approval, were capable of offending against the anti-discrimination legislation. The leasehold interest granted under the Homes (Residential Parks) Act 2003 (Qld) is not by definition an interest in land within the meaning of that Act and, in any event, there is no potential discrimination under the Anti-Discrimination Act 1991 until the point is reached where a relocatable home is actually offered for sale, absent an exemption if one is required.

As Morrison JA points out in the dissenting judgment the development application was code assessable and the Council's assessment of it was bounded by the provisions of the relevant codes, consistently with very recent authority from the QCA itself: Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175. If the Anti-Discrimination Act was irrelevant to the consideration of the development application, how could it have been a relevant consideration influencing the exercise of the Courts discretion?

The approach of the courts has always been that prospective illegality will only be relevant where it will necessarily and unequivocally occur. In that event a development application must be refused by the assessment manager, or on appeal, by the Court - Delonga Constructions Pty Ltd v Landsborough Shire Council (1984) QPLR 262; Food Plus Pty Ltd v Brisbane City Council (1984) QPLR 156. It is evident from the reasons of both the majority and the minority in Walter Elliott Holdings No 2 that the development application was a long way short of passing that threshold. If possible illegality under the anti-discrimination legislation could not have justified refusal of the development application, it should not be a factor influencing the Court's discretion to grant or refuse declaratory relief.

Walter Elliott Holdings has applied to the High Court of Australia for special leave to appeal against the Court of Appeal's decision.

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