APPEALS ABOUT INFRASTRUCTURE

October 2008

Please Select an Article to Read

• 1. Appeals against infrastructure contributions conditions
• 2. Conditions for supply of additional trunk infrastructure pursuant to Chapter 5 Part 1 IPA
• 3. Conditions for additional trunk infrastructure costs pursuant to Chapter 5 Part 1 IPA
• 4. Appeals against Infrastructure Charges Notices

 

1. Appeals against infrastructure contributions conditions

Pursuant to sections 6.1.31 (Conditions about infrastructure for applications) and 6.1.32 (Conditions about infrastructure for applications under interim development control provisions or subdivision of land by-laws) of the Integrated Planning Act 1997 ["IPA"], Local Governments may impose conditions about trunk infrastructure pursuant to:

1. a planning scheme policy, either under a transitional planning scheme or an IPA planning scheme;
2. an interim development control provision; or
3. a subdivision of land by-law continued in effect under section 8.10(7) of the repealed Local Government (Planning and Environment) Act 1990.
4. Commencement of planning scheme policy

1.1 Commencement of planning scheme policy

The key point to note is that sections 6.1.31 and 6.1.32 IPA only apply at the time when the assessment manager is deciding the development application. The Supreme Court has determined that notwithstanding section 3.5.6 IPA, if a planning scheme policy about infrastructure has come into effect after the commencement of the decision stage, it can still be lawfully considered by the assessment manager.1

That said, it is for the assessment manager to determine whether it wishes to impose a condition about infrastructure in reliance upon the power conferred by a particular infrastructure policy.2 Therefore, if the assessment manager elects not to impose a condition, or inadvertently fails to do so, then the infrastructure policy will not apply to the development proposal.3

1.2 Cancellation of planning scheme policy

Relevantly, pursuant to section 6.1.21 IPA (IPA planning schemes cancel existing planning scheme policies), the commencement of an IPA planning scheme, or the conversion of a transitional planning scheme into an IPA planning scheme, results in the cancellation of all existing planning scheme policies.

If this occurs after 30 June 2008,4 then it will not be possible for a local government authority to adopt new transitional infrastructure contributions policies. Rather, it will be necessary for the local government authority to prepare an infrastructure charges schedule and priority infrastructure plan.

Therefore, before commencing an appeal (or imposing a condition as an assessment manager) in respect of an infrastructure contributions condition, it may be beneficial to consider the legal status of the planning scheme policy pursuant to which the condition is purportedly imposed.

1.3 Reasonableness and relevance test

Conditions about infrastructure pursuant to sections 6.1.31 or 6.1.32 IPA, or conditions about non-trunk infrastructure, are subject to the twin tests of reasonableness and relevance set out in section 3.5.30 IPA (Conditions must be reasonable or relevant).5 The reasonableness/relevance tests apply despite the laws and policies6 administered by the assessment manager and or a concurrence agency.

The Court has observed that it may not be an easy task to persuade the Court that conditions complying with section 6.1.31(2)(c) IPA are unreasonable or irrelevant.7 However, the legal entitlement to challenge an infrastructure contributions condition on this basis remains open. This has been supported in the judgment of Clift & Anor v Gold Coast City Council8 in which a developer successfully appealed against the imposition of unreasonable infrastructure contribution conditions.

The Court determined that infrastructure contributions calculated on the maximum potential development yield of a site were unreasonable, and favoured contributions calculated on the basis of maximum practical development yield, determined by reference to compliance with the ordinary development standards set out in acceptable solutions.9

1.4 Restriction on infrastructure conditions

A condition cannot be lawfully imposed requiring a monetary payment for the establishment, operating and maintenance costs of infrastructure, or works to be carried out for the infrastructure, if the condition is for infrastructure pursuant to which Chapter 5 Part 1 IPA (Infrastructure planning and funding) applies.10 

Broadly speaking, this refers to infrastructure which the subject of contributions made pursuant to an infrastructure charges notice, and not a condition of a development approval.

However, there are two exceptions in which local governments may impose conditions in respect of infrastructure, even if it is infrastructure pursuant to which Chapter 5 Part 1 IPA applies, namely:

1. conditions requiring the supply of additional trunk infrastructure pursuant to section 5.1.24 IPA (Conditions local governments may impose for necessary trunk infrastructure); and
2. conditions requiring the payment of additional trunk infrastructure costs pursuant to section 5.1.25 IPA (Conditions local governments may impose for additional trunk infrastructure costs).

 

If you have any questions, please contact:

Danielle Bland
(07) 3002 6777