In 2020, the Court of Appeal has twice considered challenges to infrastructure charges levied upon major developments and has twice found in favour of councils. The Court of Appeal has upheld the right of councils to levy new infrastructure charges rather than relying on a condition of a preliminary approval in the Gold Coast City Council v Sunland Limited & Anor  QCA 89 case, and (in part) infrastructure charges issued in Toowoomba Regional Council v Wagners Investments Pty Ltd  QCA 191.
In the Sunland decision, the Court of Appeal considered a condition on a preliminary approval issued in 2007 (under the Integrated Planning Act 1997 (Qld) (IPA)). A condition of the preliminary approval provided that infrastructure charges 'shall apply' when an application for a development permit was made, and those charges would be in accordance with the planning scheme policies in force at the time (in 2007). Sunland argued that the Council was bound by the condition in force, and that the rates under the planning scheme policies should apply.
The Court instead found, by operation of the transition from IPA to the Sustainable Planning Act 2009 (Qld) (SPA) to the Planning Act 2016 (Qld) (PA), that the proper course for a local government involved issuing an infrastructure charges notice under the current infrastructure charging regime upon the giving of a development permit.
Sunland has sought special leave to appeal the decision of the Court of Appeal.
The 2019 Planning and Environment Court decision in the Wagners case1 overturning Toowoomba Regional Council's imposition of infrastructure charges for transport and stormwater for the new Wellcamp Airport was well publicised.
The Court of Appeal:
- overturned the Planning and Environment Court's finding on the transport charges (i.e. upholding the imposition of the charges); and
- upheld the Planning and Environment Court's decision relating to the stormwater charges, albeit it on slightly different grounds.
Council's 'broad brush' approach to charge certain non-residential use categories for the transport network with reference to gross floor area was upheld. Wagners was successful in relation to the stormwater charges.
Wagners has sought special leave to appeal the decision of the Court of Appeal.
Key takeaways for local governments
While covering different issues, with significant degrees of legal complexity, the key takeaway from both cases is that there are difficulties for a proponent in challenging the power of local governments to levy and collect infrastructure charges.
1Wagner Investments Pty Ltd & Anor v Toowoomba Regional Council  QPEC 24.
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