This case involved an appeal against an infrastructure charges notice issued by Logan City Council, where the appellant argued that the infrastructure charges notice (ICN) should be set aside and replaced with, or changed to a levied charge of ‘nil’. It involves an ultimate finding by the Court that Council could levy a charge at building approval stage, for development that was otherwise “accepted subject to requirements” under Council’s scheme.
The subject site was vacant. The Appellant was given a development permit for building work by a private certifier to facilitate the construction of a warehouse and associated office. Council then issued an ICN. The Appellant appealed against the ICN, alleging it contained an error as there was no “extra demand” placed on the premises as contemplated by section 120 of the Planning Act 2016. Section 120 provides that, when working out extra demand, that demand must not include demand generated by “other development on the premises if the development may be lawfully carried out without the need for a further development permit.”
The argument from the Appellant was that, in assessing demand associated with the building works, Council had failed to discount the demand associated with the use of the land for a warehouse and ancillary office, which it argued could be carried out without the need for a further development permit (i.e. it was “accepted subject to requirements” under the planning scheme). That is, the adopted charge for a material change of use for warehouse would be calculated in an identical manner for building work so that they would entirely negate one another.
In dismissing the Appellant’s appeal, the Court observed that:
- the capped charges listed in the Planning Regulation related to various types of “uses”, not the official types of development that might be required for such a use to lawfully proceed;
- the planning act authorises local governments to levy charges in relation to demand placed on trunk infrastructure generated by “the development”;
- the references to “the development” encapsulated all types of development, that in combination, facilitate the end use of the premises. It is the end use of the premises that places demand on trunk infrastructure, not one type of development in isolation; and
- the need to obtain a development approval for one or more of the relevant types of development merely provides the opportunity to levy a charge and trigger payment of the levied charge.
The Court accepted Council position that:
- the warehouse and ancillary office were not “other development on the premises” but the same development for which the charge was levied;
- even if the material change of use was “other development”, the start of the new warehouse and ancillary office could not be lawfully carried out without the need for a further development permit for building work and operational work; and
- At the time of the building work approval, the subject land was vacant. No material change of use had been made. There was no other “development” or “other development” on the premises that could be considered as creating extra demand for section 120 of the Planning Act.
The Court held there was no error in the ICN, and the appeal was dismissed.