The recent Supreme Court decision in Trevorrow v Council of
the City of the Gold Coast  QSC 12, serves as a
cautionary tale for landowners who consent to a development
application involving their land where the application is made by a
In this case, the Court found against a landowner and held they
were liable to pay outstanding infrastructure charges relating to a
development approval given to one of their tenants.
In 2005 the proprietor of land at Burleigh Heads on the Gold
Coast leased part of that land to Pro Skips Pty Ltd, who remained
in occupation until March 2016.
In October 2006, Pro Skips applied to the Council under the
Integrated Planning Act 1997 (Qld) (IPA) for a
'developmental permit for assessable development for a material
change of use of land'. The land owner consented, both at the
time of application and in a letter in compliance with section
3.2.1(3)(a) of the IPA.
Council approval to Pro Skips in November 2008 was accompanied
by an infrastructure charges notice that levied charges under
Council's Priority Infrastructure Plan.
On 17 December 2008, Pro Skips appealed in the Planning and
Environment Court against the Council's decision to impose the
infrastructure charge. Following the appeal, in November 2009, the
Council issued a negotiated decision notice with a second charge
notice in substitution of the first. The charge of $356,718.84 was
payable before commencing the use.
As it turned out, the use had, in fact, commenced before the
application for the material change of use was made. Neither the
first nor the second charge notice was paid by Pro Skips.
In May 2013, the Council issued a rates notice to the landowner
totalling $400,574.94. This included the unpaid infrastructure
charge in addition to the usual property general rates charge.
The owner applied for declaratory relief against the Council to
avoid liability for the payment of outstanding infrastructure
The key issue considered by the Court was whether the Council
had the power to raise an infrastructure charge against the
landowner, who had not been the applicant for the development
approval giving rise to the charge.
The landowner contended that the relevant provisions of the
Sustainable Planning Act 2009 (SPA) governing payment of
infrastructure charges should not extend to an owner who was not
the applicant for the permit in question.
After considering which provisions of the IPA and SPA should be
applied (given the extended timeline of the matter), the Court
ultimately held that, although the relevant provisions of the SPA
did not 'expressly address whether the person who is liable to
pay an infrastructure charge under the section is the
"owner" of the land,' the reference at section 664 of
the SPA to 'taken to be rates', was said by his Honour to
'invite attention to who is liable to pay rates'.
Further, the Court held that the purpose of the relevant
provisions of the SPA was to make the infrastructure charge
recoverable as if it were rates, and that rates were usually
payable by the registered proprietor of freehold land.
The Court's conclusion referred to the fact that 'when a
development approval is given, it attached to land under section
245 of the SPA and thereby "bound the owner" and
"the owner's successors in title" on transfer by a
Whether or not an infrastructure charge was levied in the first
place was considered by the Court to be within the control of the
owner, given that no application for a development permit could be
properly made without their consent.
Important considerations for landowners
Following the decision in Trevorrow, it is important
that landowners carefully consider any request made by a third
party for consent to a development application, including a
development application to regularise an existing use.
It will be important for landowners to ensure that, before the
use commences, the applicant for the development application has
paid the infrastructure charges and complied with other development
Landlords of tenants who are required to make a development
application to support their use of premises under the lease should
consider whether the lease terms adequately protect their interests
if a tenant does not or cannot pay associated infrastructure
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
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