18 September 2020
A recent decision of the Queensland Court of Appeal has provided welcome clarity for local governments regarding the approach to be applied in levying infrastructure charges.
In Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor  QCA 191 (Wagner), the Queensland Court of Appeal (CoA) considered the important issues of when infrastructure charges notices (ICN) may be issued by a local authority, and how infrastructure charges levied under an ICN are to be calculated.
A number of principles arising from the CoA’s decision have broad application to the levying of infrastructure charges generally, and will be welcomed by local governments, as they effectively reaffirm commonly applied infrastructure charging practices that had been brought into question by an earlier, related court decision.
The Wagner case involved an appeal by Toowoomba Regional Council (Council) against an earlier decision of the Planning and Environment Court (P&E Court) to allow a number of appeals against decisions of the Council to issue ICNs for development approvals relating to the Brisbane West Wellcamp Airport and Business Park, under the provisions of the former Sustainable Planning Act 2009 (SPA). The total amount of the charges was approximately $2.9 million.
Although the developer was not entirely successful in the P&E Court, it succeeded in its challenge against Council’s infrastructure charges for stormwater and (partly) traffic, and charges imposed for development that was reconfiguring a lot (ROL).
A key issue in the appeals concerned the proper construction of section 636(1) of SPA, which provided:
“A levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development.”
Section 120(1) of the current Planning Act 2016 (Qld) uses substantially the same terms.
Historically, local governments had generally approached this provision on the basis that development could be assumed to inherently generate demand for infrastructure. In calculating the extent of that demand, local governments relied upon ’broad brush’ demand generation rates in their charges resolutions. For example, charges resolutions typically adopt charges for commercial developments based on a $/m2 gross floor area (GFA) rate, as a rough approximation of estimated demand – regardless of the level of demand that a particular development actually generates.
Similarly, local governments had also typically adopted charges for development that was a ROL, generally based on the permitted use of the land following reconfiguration.
In the Wagner case, the developer essentially contended for a more bespoke assessment, requiring at least some extent of case-by-case analysis.
In summary, the key principles from the P&E Court’s decision were as follows:
On appeal to the CoA, the Council was partly successful in challenging the P&E Court’s decision.
Again, some of the principles that can be drawn from the CoA’s decision are only relevant in particular contexts. However, the CoA’s decision has the following key implications of relevance to the general principles discussed above:
A further general principal arising from the CoA’s decision concerns the application of section 478 of SPA, and the right to appeal against an ICN. According to the CoA, the terms of section 478 confine narrowly the grounds of appeal about the decision to give an ICN, such that an appeal cannot be made in respect of the amount of an adopted charge itself, in a general sense. Rather, an appeal against an ICN may only be commenced on the basis of Wednesbury unreasonableness, or where there has be an error in the calculation of the levied charge.
Although the Council was not entirely successful in the CoA, the CoA’s decision will nonetheless come as welcome relief for local governments across Queensland.
Following the P&E Court’s decision, there had been significant uncertainty as to whether, and to what extent, local governments needed to undertake case-by-case micro-analysis of infrastructure demand. Necessarily, any need for such assessment would place additional resourcing demands on local government. In contrast, the CoA’s decision has, largely, confirmed that the traditional, ‘broad brush. approach is appropriate.
However, the CoA’s decision in relation to stormwater charges shows that some care is still required. While it is appropriate for local governments to apply the broad brush rates in a charges resolution if development will generate demand on a trunk infrastructure network, that first precondition must be met. If a trunk infrastructure network is not impacted at all, then charges should not be levied.
 Wagner Investments Pty Ltd & Anor v Toowoomba Regional Council  QPEC 24.
 Ibid. Cf Johnson v Cassowary Coast Regional Council (2008) QPEC 102 at , a judgment concerned with the construction of provisions in the Integrated Planning Act 1997 (Qld) in the same terms as those contained in SPA.
 Toowoomba Regional Council v Wagner Investments Pty Ltd & Anor  QCA 191.
This publication is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this publication. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.