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[2025] QCA 234
respondent. Application for leave to appeal refused with costs.
The Court of Appeal refused Homeland leave to challenge conditions requiring it to provide water and sewerage infrastructure for its development. The statutory route Homeland relied on, s 128, depended on requirements in s 127 being met. In the Court’s reading, the relevant infrastructure had to be identified in the LGIP and had to have the required connection to the development site. The amended LGIP did not identify water or sewerage trunk infrastructure for the site, and the evidence did not show that the existing infrastructure relied on by Homeland was inadequate. The Court also found no legal error in the primary judge’s alternative reasoning or in the adequacy of the reasons. The result was that the application for leave to appeal was refused with costs.
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3 cited instruments linked from this judgment.
Homeland Property Developments Pty Ltd applied for a suite of development approvals for “Whitsunday Paradise”, a staged planned community on a 234.7-hectare site south of Bowen. The proposal anticipated predominantly residential development over ten stages across more than 20 years. The judgment records 1,757 lots of 600 square metres, 340 medium-density dwellings, and 47 larger lots as part of the development (para 4).
The timing and content of the Whitsunday Regional Council’s planning scheme were central to the dispute. When Homeland’s impact assessable application was properly made on 15 June 2018, version 3.5 of the scheme applied and did not contain a local government infrastructure plan (LGIP) (paras 6–7, 16). On 29 June 2018, the Council amended the scheme to include an LGIP. It identified a proposed 12-megalitre water reservoir, W8, on the eastern part of the site as trunk infrastructure, with an estimated construction period of 2022–2026 and an establishment cost of $14,684,350 (para 7).
The Council resolved on 14 October 2020 to amend the LGIP and remove W8. That amendment took effect on 30 November 2020. The resulting LGIP did not identify future trunk infrastructure for water supply and sewerage networks servicing the site (para 8). The Council had approved the applications on 28 October 2020, subject to conditions requiring Homeland to deliver water and sewerage infrastructure at its cost. Homeland made representations about those conditions and sought a negotiated decision notice and negotiated infrastructure notices. The Council issued the negotiated decision notice on 11 March 2021, but refused the negotiated infrastructure notices (para 9).
The conditions in dispute concerned water supply and sewerage works. The primary judge grouped them into six broad types: conditions requiring specified works; timing or staging of works; infrastructure size or compliance requirements; funding upgrades to existing infrastructure; further analysis or design work; and decommissioning existing infrastructure (para 31). Homeland’s central position was that the conditions should be identified as necessary infrastructure conditions under s 128 of the Planning Act 2016 (Qld), rather than as conditions concerning non-trunk infrastructure under s 145.
The Planning and Environment Court rejected Homeland’s case. The Court of Appeal considered Homeland’s application for leave to appeal on alleged errors of law. It refused leave with costs (paras 84–85).
The decisive question was whether the conditions in s 127(1) were satisfied. Section 128 allows a local government to impose certain necessary infrastructure conditions, but the subdivision containing s 128 applies only when s 127(1) is met. The Court treated the definition of “trunk infrastructure” as part of the statutory text and read s 127 as a whole (paras 49–50).
The Court’s construction required the infrastructure relied upon to be identified in an LGIP as trunk infrastructure and to have the connection to the development site specified by s 127(1)(b). It must be located on the subject premises or, if located elsewhere, be necessary to service those premises. The infrastructure also must not have been provided, or must have been provided but be inadequate. The site connection in para (b) is cumulative with the requirement in para (a), not an alternative to it (paras 56, 58–59).
That construction mattered because the parties agreed that the relevant first limb of the statutory definition was “development infrastructure identified in a LGIP as trunk infrastructure”. The amended LGIP was relevant to the primary judge’s examination of s 127, and it did not identify water supply or sewerage trunk infrastructure for the subject site (paras 54–56, 63). The Court therefore upheld the conclusion that the applicant had not established the statutory preconditions for s 128.
Homeland relied on existing infrastructure as well as the deleted W8 reservoir. For sewerage, it pointed to an existing treatment plant shown in the LGIP and argued that it was inadequate for the proposed development and needed replacement. The Council’s position, accepted as not controverted on the relevant evidence, was that the plant was an isolated system serving Whitsunday Shores, rather than the Council network, and was not shown to be inadequate for the purpose it served. For water, the Council accepted that an existing water main in a road reserve was trunk infrastructure. But the evidence did not establish that the water main itself was inadequate to fulfil its role. The appealed conditions required the development to connect to it (paras 60–61).
The Court also rejected the suggestion that the primary judge had omitted the required site connection from the statutory analysis. Although the primary judge expressed part of the test in abbreviated terms, the Court read the reasons as incorporating the site nexus stated immediately before. It concluded that there was no substance in the complaint that the primary judge failed to consider s 127(1)(b) (para 59).
The Court addressed the alternative challenge to the primary judge’s discretionary reasoning. It explained that a s 128 condition is a “development condition” imposed as part of the approval decision under ss 59 and 60, after assessment under s 45. The infrastructure power does not operate separately from that assessment and decision process (para 68). The Court upheld the primary judge’s approach to s 45(8), including the decision to give no weight to the 2018 LGIP and the amended LGIP in the circumstances. It noted that W8 had been removed from the later plan and that the amended LGIP did not identify trunk infrastructure for water supply or sewerage for the site (para 70).
The Court also accepted the primary judge’s alternative concerns about timing. Further applications were needed before assessable development could be carried out, and detailed design information was not yet available to identify whether particular works would serve trunk or non-trunk functions. A later conversion application under the Act remained possible, with a possible appeal to the Planning and Environment Court from a refusal or deemed refusal (para 71). These matters supported the primary judge’s alternative refusal to impose the conditions under s 128.
The judgment explains the statutory position through the text of the Planning Act, rather than announcing a new general infrastructure regime. Before this decision, the relevant provisions already linked s 128 to the gateway in s 127. Section 127 identifies when the subdivision concerning necessary infrastructure conditions applies; s 128 then provides for the imposition of particular conditions if that gateway is satisfied (paras 26–27).
The Court’s contribution is its explanation of how those provisions fit together in this dispute. It read the definition of “trunk infrastructure” into s 127 and treated the site nexus in s 127(1)(b) as cumulative. Infrastructure identified in an LGIP is not enough, by itself, to engage s 128. The statutory conditions also require the relevant connection to the subject premises and the stated status of the infrastructure as not provided or inadequate (paras 50, 56, 58–59).
The judgment also explains that the s 128 power sits within the development assessment and approval framework. A condition under that section is imposed as part of the decision under s 60, following assessment under s 45, and the decision must be based on the assessment as required by s 59(3) (paras 68–70). Section 45(8) does not erase the statutory importance of the instrument in force when the application was properly made. In discussing Klinkert, the Court adopted the understanding that s 45(8) is not a vehicle for displacement or modification of that instrument by the decision-maker (paras 41, 69–70).
The decision does not establish that infrastructure must always be classified as trunk or non-trunk at the application stage, nor does it determine the outcome of a later conversion application. It records that conversion procedures exist under ss 138–139 and that a future refusal or deemed refusal may be appealable (paras 28, 71). Its holding is tied to the requirements of s 127 and the evidence about the LGIP and infrastructure in this case.
The outcome was procedural: leave to appeal was refused. The Court did not issue a new development approval or substitute a different set of conditions. Nor did it finally determine every issue about the individual conditions. In particular, it did not further consider the challenge to the primary judge’s treatment of categories 3, 4 and 5 under s 66(1)(c), because that issue could not affect the outcome after the applicant failed on the s 128 gateway issue (paras 82–83).
At paragraph 56, the Court said: “Paragraph (b) clarifies the nexus between the trunk infrastructure and the subject site and is a cumulative requirement to paragraph (a).” In plain English, Homeland had to satisfy both parts of the statutory test. Showing that infrastructure was in an LGIP was not sufficient without the required connection to the development site.
At paragraph 63, the Court said: “The exercise of the power under s 128 could arise only if both s 127(1)(a) and (b) were satisfied.” This summarises the gateway. The condition-making power depends on meeting both the infrastructure-status requirement and the site-connection requirement.
At paragraph 68, the Court explained: “If the power to impose a necessary infrastructure condition arises under s 128, the development condition is imposed as part of the decision-making process of the assessment manager under s 59(3) and s 60(3)(b).” In plain English, s 128 is part of the development approval decision. It does not stand outside the assessment process or allow a condition to be imposed independently of it.
At paragraph 80, the Court recognised that the lengthy delay in delivery of the primary judge’s reasons “warrants close scrutiny”. It nevertheless concluded that the reasons were coherent and adequate. The Court also identified an awkwardness in the primary judge’s sequencing: the reasons began with the issue as framed by the parties rather than first addressing how infrastructure conditions related to the statutory assessment process (para 80).
At paragraph 84, the Court concluded: “The applicant has failed to show an error of law in respect of the primary judge’s decision that requires the intervention of this Court.” That was the basis for the order refusing leave, rather than a fresh determination of the development application.
The reasoning is particularly relevant to disputes where a developer seeks to characterise conditions requiring infrastructure as necessary infrastructure conditions under s 128, and therefore relies on the s 127 gateway. The facts that mattered here included an LGIP that changed between the making of the application and the appeal; the removal of an infrastructure item from the later LGIP; existing infrastructure identified in an LGIP; and a dispute about whether that infrastructure was inadequate or necessary to service the particular development (paras 7–9, 54–63).
The decision highlights the importance of identifying the specific infrastructure relied on, where the LGIP identifies it, whether it is existing or future infrastructure, and how it meets the subject-site nexus in s 127(1)(b). For infrastructure located away from the site, the statutory question is whether it is necessary to service the subject premises. The Court’s analysis also distinguishes the existence of infrastructure from evidence that it is inadequate: the water main’s status as trunk infrastructure did not establish that it was inadequate (paras 58–61).
The case also bears on disputes involving later planning scheme changes and the weight to be given to those changes under s 45(8). Here, the original LGIP identified W8, but the later amendment removed it. The Court upheld the primary judge’s decision not to give the original plan weight after that change, and not to give the amended plan weight as a basis for the requested s 128 conditions when it did not identify relevant trunk infrastructure for the site (para 70).
Finally, it is relevant where the ability to classify proposed works depends on detailed design information that does not yet exist. The judgment records the primary judge’s concern that works could combine trunk and non-trunk functions and that an early classification risked speculation or prejudgment. The Court treated prematurity and the possibility of a later conversion process as relevant to the alternative discretionary analysis (paras 42–43, 71–72).
This judgment does not discuss any later judicial treatment of Homeland Property Developments Pty Ltd v Whitsunday Regional Council. It was delivered on 21 November 2025, and the supplied judgment contains no later cases applying, distinguishing or reviewing its reasoning. No conclusion about subsequent treatment can be drawn from this source.
The judgment itself discusses earlier authorities. It applies Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue for the approach to statutory construction, namely construing the statutory text by reference to context and purpose (para 58). It relies on Brisbane City Council v Klinkert for the construction of s 45(8), accepting that the provision is not a vehicle for displacing or modifying the instrument in force when the application was properly made (paras 41, 70). It distinguishes Hervey Bay City Council v BGM Projects Pty Ltd, because that case concerned different provisions under the former Integrated Planning Act and did not resolve the question of weight under s 45(8) of the Planning Act (para 69).
The judgment does not determine how s 127 would apply where an LGIP identifies infrastructure that is plainly intended to serve the subject site, but the evidence about adequacy, capacity, location or timing is disputed. Its conclusion on adequacy was tied to the evidence concerning this water main and this isolated sewerage system (paras 60–63).
Nor does the judgment decide how a court should classify each component of a complex package of infrastructure works where some components may serve both trunk and non-trunk functions. The primary judge had expressed concerns about classification without detailed designs, but the Court’s decision on ground 1 meant that it did not need to determine the disputed categorisation ground under s 66(1)(c) (paras 42, 82–83).
The scope of a later conversion application is also not decided. The Court noted that an application to convert non-trunk infrastructure to trunk infrastructure may be made under the relevant statutory provisions and that a refusal or deemed refusal may be appealable. It did not decide whether any future application by Homeland would succeed, or what evidence would be required for one (paras 28, 71).
Finally, although the Court addressed the lengthy delay and concluded that the reasons were adequate, it did not set out a general test governing every case of delayed judgment. It stated that this delay warranted close scrutiny, then assessed the coherence and adequacy of the reasons in this case (para 80).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2025] QCA 234
PARTIES: HOMELAND PROPERTY DEVELOPMENTS PTY LTD (ACN 609 399 233) / (applicant) / v / WHITSUNDAY REGIONAL COUNCIL / (respondent)
FILE NO/S: Appeal No 11463 of 2024 / P & E Appeal No 830 of 2021
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Planning and Environment Court Act
ORIGINATING COURT: Planning and Environment Court at Brisbane – [2024] QPEC 30 (Williamson KC DCJ)
DELIVERED ON: 21 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 5 February 2025
JUDGES: Mullins P, Bond JA and Davis J
ORDER: Application for leave to appeal refused with costs.
CATCHWORDS: ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL – DECISIONS: CONSENTS, APPROVALS AND PERMITS – CONDITIONS – POWER TO IMPOSE – where the applicant sought a suite of development approvals from the respondent for a staged residential development – where, at the time of making the application, the respondent council’s planning scheme did not include a local government infrastructure plan (LGIP) – where the respondent later amended the planning scheme to include a LGIP – where this LGIP included a plan for trunk infrastructure and identified a water reservoir as trunk infrastructure for the subject site – where the respondent resolved to amend the LGIP to remove the water reservoir from the plan for trunk infrastructure before the applicant’s applications were approved – where the respondent approved the applicant’s development applications subject to conditions, including the delivery of water and sewerage infrastructure by the applicant at the applicant’s cost – where the applicant made representations to the respondent about the conditions imposed on the approvals and requested a negotiated decision notice and negotiated infrastructure notice – where the respondent issued a negotiated decision notice and refused the negotiated infrastructure notice – where the negotiated decision notice imposed conditions (the Appealed conditions) including, among other things, that the applicant to fully fund and deliver water supply and sewerage infrastructure – where the parties formulated the issue for determination before the primary judge as whether, in the exercise of the P&E Court’s discretion, the negotiated decision notice should be amended so that infrastructure under the negotiated decision notice is imposed as “necessary infrastructure” under s 128 of the Planning Act 2016 (Qld) (the Act) – where the primary judge determined s 127(1) of the Act was not satisfied and concluded the power under s 128 was not available as a source of power to impose the requested Appealed conditions – where the primary judge concluded that to the extent s 128 was available to impose the Appealed conditions, the discretion to exercise that power should not be exercised – where the applicant argued on appeal the primary judge erred in law in concluding that s 128 was not available and s 127 was not satisfied – whether the requirements in s 127 were satisfied – whether the primary judge erred in concluding the discretion should not be exercised to impose the Appealed conditions under s 128 if s 127 was satisfied / ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL – DECISIONS: CONSENTS, APPROVALS AND PERMITS – CONDITIONS – POWER TO IMPOSE – where the applicant sought a suite of development approvals from the respondent for a staged residential development – where, at the time of making the application, the respondent council’s planning scheme did not include a local government infrastructure plan (LGIP) – where the respondent later amended the planning scheme to include a LGIP – where this LGIP included a plan for trunk infrastructure and identified a water reservoir as trunk infrastructure for the subject site – where the respondent resolved to amend the LGIP to remove the water reservoir from the plan for future trunk infrastructure before the applicant’s applications were approved – where the respondent approved the applicant’s development applications subject to conditions, including the delivery of water and sewerage infrastructure by the applicant at the applicant’s cost – where the applicant made representations to the respondent about the conditions imposed on the approvals and requested a negotiated decision notice and negotiated infrastructure notice – where the respondent issued a negotiated decision notice and refused the negotiated infrastructure notice – where the negotiated decision notice imposed conditions (the Appealed conditions) including, among other things, that the applicant to fully fund and deliver water supply and sewerage infrastructure – where the parties formulated the issue for determination before the primary judge as whether, in the exercise of the P&E Court’s discretion, the negotiated decision notice should be amended so that infrastructure under the negotiated decision notice is imposed as “necessary infrastructure” under s 128 of the Planning Act 2016 (Qld) (the Act) – where the primary judge concluded the s 128 of the Act was not available and s 127 was not satisfied – where the applicant argued the primary judge did not give adequate reasons on the basis there were multiple paragraphs in the applicant’s written submissions which were not addressed and there was a lengthy delay between the hearing of the appeal in the P&E Court and the delivery of reasons – whether the primary judge failed to give adequate reasons for rejecting the applicant’s contentions in relation to issues in respect of s 127 and s 128 of the Act / ENVIRONMENT AND PLANNING – PLANNING – DEVELOPMENT ASSESSMENT AND CONTROL – DECISIONS: CONSENTS, APPROVALS AND PERMITS – CONDITIONS – POWER TO IMPOSE – where the applicant sought a suite of development approvals from the respondent for a staged residential development – where, at the time of making the application, the respondent council’s planning scheme did not include a local government infrastructure plan (LGIP) – where the respondent later amended the planning scheme to include a LGIP – where this LGIP included a plan for trunk infrastructure and identified a water reservoir as trunk infrastructure for the subject site – where the respondent resolved to amend the LGIP to remove the water reservoir from the plan for future trunk infrastructure before the applicant’s applications were approved – where the respondent approved the applicant’s development applications subject to conditions, including the delivery of water and sewerage infrastructure by the applicant at the applicant’s cost – where the applicant made representations to the respondent about the conditions imposed on the approvals and requested a negotiated decision notice and negotiated infrastructure notice – where the respondent issued a negotiated decision notice and refused the negotiated infrastructure notice – where the negotiated decision notice imposed conditions (the Appealed conditions) including, among other things, that the applicant to fully fund and deliver water supply and sewerage infrastructure – where the parties formulated the issue for determination before the primary judge as whether, in the exercise of the P&E Court’s discretion, the negotiated decision notice should be amended so that infrastructure under the negotiated decision notice is imposed as “necessary infrastructure” under s 128 of the Planning Act 2016 (Qld) (the Act) – where the primary judge divided the Appealed conditions into six categories and concluded that three of the categories did not engage s 66(1)(c) of the Act – where the applicant argued the conditions were part of a package of conditions which cannot be severed and all conditions engage s 66(1)(c) – whether the issue raised by this ground of appeal could affect the outcome of the application to this court / Planning Act 2016 (Qld), s 45, s 49, s 59, s 60, s 65, s 66, s 110, s 111, s 113, s 119, s 127, s 128, s 129, s 138, s 139, s 145, s 304 / Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 46, s 63 / Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, cited / Brisbane City Council v Klinkert (2019) 236 LGERA 88; [2019] QCA 40, cited / Hervey Bay City Council v BGM Projects Pty Ltd [2009] 1 Qd R 130; (2007) 154 LGERA 330; [2007] QCA 298, cited
COUNSEL: D R Gore KC, with R Yuen, for the applicant / B D Job KC, with M J Batty KC, for the respondent
SOLICITORS: Corrs Chambers Westgarth for the applicant / McCullough Robertson for the respondent
“The Appeal against the following conditions in the negotiated decision notice dated 11 March 2021, in so far as the appeal sought that the negotiated decision notice be amended to identify the following conditions as necessary infrastructure conditions under section 128 of the Planning Act 2016 rather than section 145, be dismissed:
Part A – Preliminary Approval conditions 7.2 to 7.4, 8.1 to 8.15 and 13.1;
Part B – Reconfiguration of a Lot conditions 5.3, 5.6, 5.12, 5.17, 5.22, 5.28, 5.34, 5.39 and 6.1 to 6.8; and
Advisory Notes 17.1 of Part A – Preliminary Approval, and 14.6 of Part B – Reconfiguration of a Lot.”
The conditions set out in order 2 are referred to in the proposed notice of appeal as the “Appealed conditions”. The same term will be used in these reasons for those conditions exclusive of condition 13.1. The same term was also the description given by the primary judge (at [2] of the reasons) to the 34 conditions and two advisory notes that were the subject of the appeal to the Planning and Environment Court and were set out in annexure “A” to the reasons (which did not include condition 13.1). They relate to water supply and sewerage infrastructure. Some of the conditions were imposed on the preliminary approval. Other conditions were imposed on the approval for the reconfiguration of a lot. The advisory note that is found in the conditions for both the preliminary approval and the reconfiguration of a lot recorded that development infrastructure required to be provided in implementing the development approval was non-trunk development infrastructure as described under s 145 of the Planning Act 2016 (Qld) (Act). (The version of the Act that is relevant for the application is the 26 April 2024 version.)
On the application to this Court, the applicant seeks to show that the primary judge erred in law in failing to conclude that the water supply and sewerage conditions of approval required the provision of trunk infrastructure under s 128 of the Act rather than non-trunk infrastructure under s 145 of the Act.
Relevant background
The primary judge gave an overview (at [1] of the reasons) of the circumstances that resulted in the appeal to the P&E Court. The applicant obtained from the respondent Whitsunday Regional Council a suite of development approvals, including variations to the Council’s planning scheme. The development approvals and approved planning schemes variations were set out in a negotiated decision notice dated 11 March 2021 (NDN). The development is of a 234.7 ha site south of Bowen (the site) with a staged planned community known as “Whitsunday Paradise”. Future uses are predominantly residential in nature anticipated across 10 stages over more than 20 years. There were 1,757 lots at 600m2 in size anticipated across the 10 stages and 340 dwellings in a medium density format and 47 lots greater than 600m2 anticipated in four of the 10 stages.
The following summary is taken primarily from [6]-[15] of the reasons.
Version 3.5 of the Council’s planning scheme (Whitsunday Regional Council planning scheme (planning scheme)) took effect on 3 July 2017. It did not include a local government infrastructure plan (LGIP) as defined in schedule 2 to the Act. The Council did have an Adopted Infrastructure Charges Resolution that defined trunk and non-trunk infrastructure. It also identified a priority infrastructure area (PIA). A small part of the site was included in the PIA.
On 15 June 2018, the applicant lodged an impact assessable development application with the Council for the proposed Whitsunday Paradise development, including a variation request under s 50(3) of the Act. On 29 June 2018, the planning scheme was amended to include an LGIP which is contained in part 4 of the planning scheme. Section 4.3 identifies the PIA on “Local government infrastructure plan map – PAM – 01:06 (Projection area map)”. The site is included in the PIA which s 4.3(1) states is “the area prioritised for the provision of trunk infrastructure to service the existing and assumed future urban development up to 2031”. A plan for trunk infrastructure identified that a water reservoir (W8) was planned for the eastern part of the site. Schedule 3.2 set out the water supply network schedule of works which contained a description of the trunk infrastructure for W8, its capacity was to be 12 megalitres, its estimated timing of 2022-2026 and its establishment cost of $14,684,350. The primary judge used the expression “the first planning scheme amendment” (at [100] of the reasons) to refer to the inclusion of the original LGIP in the planning scheme.
The Council resolved on 14 October 2020 to amend the LGIP to remove item W8 (which will be referred to as the amended LGIP). This amendment took effect on 30 November 2020. The amended LGIP which forms part of the planning scheme (version 3.7) does not identify future trunk infrastructure for water supply and sewerage networks servicing the site.
On 28 October 2020, the Council approved the applicant’s development applications and issued a decision notice that granted approvals subject to conditions, including conditions requiring the delivery of water and sewerage infrastructure at the applicant’s cost. The decision notice was accompanied by 15 infrastructure charges notices. On 27 November 2020 the applicant made representations to the Council about the conditions imposed on the approvals and requested a negotiated decision notice under s 75 of the Act and negotiated infrastructure notices under s 125 of the Act. The NDN then issued on 11 March 2021. The request for negotiated infrastructure notices was refused.
Proposed grounds of appeal
in concluding that, in relation to the Appealed conditions, s 128 of the Act was not available and s 127 of the Act was not satisfied;
in concluding that in relation to the discretionary issues:
an approval of the Appealed conditions would not be based on an assessment carried out under s 45 of the Act;
to impose the Appealed conditions under s 128 of the Act would be to use s 45(8) of the Act as a vehicle for displacement or modification;
the imposition of the Appealed conditions under s 128 would be premature;
there is a risk of prematurely prejudging the characterisation of infrastructure works under the Act prior to the making and assessment of a conversion application;
in failing to give adequate reasons for not accepting the applicant’s contentions before the primary judge that:
the exercise of the conditions power under s 60(3) of the Act can have regard to relevant matters that arise after a development application is made;
the Appealed conditions contained requirements relating to trunk infrastructure;
s 145 of the Act was not the appropriate, or available, source of power to impose the Appealed conditions;
in concluding that the relevant Appealed conditions assigned by the primary judge to categories (3), (4) and (5) would not engage s 66(1)(c) of the Act.
The error of law for each of grounds 1, 2 and 4 is expressed in the notice of appeal as a matter of statutory interpretation and/or as a matter of legal principle.
The applicant characterises ground 1 as an error of law in misconstruing both s 127 and s 128 of the Act. The applicant expresses ground 1 in a shorthand way as whether s 128 was a source of power for the Appealed conditions. It is better expressed as whether the requirements in s 127 (for the exercise of the power under s 128) were satisfied. Even though ground 2 concerns the reasons the primary judge gave for not exercising the discretion to impose the Appealed conditions under s 128 (on the assumption that power was available to be exercised), the applicant seeks to characterise ground 2 as an error of law on the basis the primary judge acted on a wrong principle. Ground 2 can be expressed as whether the primary judge erred in concluding that the P&E Court’s discretion should not be exercised to impose the Appealed conditions under s 128. Ground 3 is related to grounds 1 and 2 in that the applicant contends that the primary judge failed to give adequate reasons for rejecting the applicant’s contentions in relation to the issues the subject of grounds 1 and 2. Ground 4 can be expressed as whether the primary judge erred in concluding that the identified Appealed conditions did not engage s 66(1)(c) of the Act. The error of law the applicant identifies in respect of ground 4 is that the primary judge asked the wrong question.
Statutory provisions
“A categorising instrument is a regulation or local categorising instrument that does any or all of the following—
categorises development as prohibited, assessable or accepted development;
specifies the categories of assessment required for different types of assessable development;
sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against.”
“The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.”
The primary judge recorded (at [30] of the reasons) that for the purposes of s 45(7) of the Act it was uncontroversial that the applicant’s development applications were properly made on 15 June 2018; version 3.5 of the planning scheme was in force on 15 June 2018; and version 3.5 did not include an LGIP.
It is relevant to note s 45(8) of the Act which provides:
“However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—
if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document; or
another statutory instrument—
that comes into effect after the development application is properly made but before it is decided by the assessment manager; and
that the assessment manager would have been required to assess, or could have assessed, the development application against, or having regard to, if the instrument had been in effect when the application was properly made.”
Section 43 of PECA relevantly provides that the appeal to the P&E Court is “a hearing anew”. Section 46(2) of PECA provides that s 45 of the Act applies for the P&E Court’s decision on the appeal as if the P&E Court were the assessment manager for the development application and the reference in s 45(8) to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.
Section 49 of the Act defines what is a development approval, preliminary approval or development permit. The definition of “development” in schedule 2 to the Act includes reconfiguring a lot. A preliminary approval is defined in s 49(2) as that part of a decision notice for a development application that approves the development to the extent stated in the decision notice but does not authorise the carrying out of assessable development. A development permit is defined in s 49(3) as the part of the decision notice for a development application that authorises the carrying out of the assessable development to the extent stated in the decision notice. In general terms, s 49(4) provides that a preliminary approval that is still in effect applies instead of a later development permit for the development to the extent of any inconsistency unless the exceptions in s 49(4)(a) or (b) or s 66(2) apply.
In accordance with s 59(3) of the Act, the assessment manager’s decision must be based on the assessment of the development carried out by the assessment manager. The decision that can be made by an assessment manager of an impact assessable development application must, pursuant to s 60(3) of the Act, be to approve all or part of the application; or to approve all or part of the application but impose development conditions on the approval; or to refuse the application. The term “development condition” is defined in schedule 2 to the Act:
“development condition means a condition that a development approval is subject to, including a condition—
the assessment manager imposes under section 60; or
directed to be imposed under section 56 or 95(1)(d); or
taken to have been imposed under section 64.”
“A development condition must not—
…
other than under chapter 4, part 2 or 3, require a monetary payment for the establishment, operating or maintenance costs of, works to be carried out for, or land to be given for—
infrastructure; …”
“Part 2—
authorises local governments to do either or both of the following for development approvals in relation to trunk infrastructure—
adopt, by resolution, charges for development infrastructure and levy the charges;
impose particular conditions about development infrastructure; and
authorises local governments, for non-trunk infrastructure, to impose particular conditions about development infrastructure; and
provides for a regulation to govern local government adopted charges and charges by distributor-retailers under the SEQ Water Act for trunk infrastructure.”
“LGIP (local government infrastructure plan) means the part of a local government’s planning scheme that—
has been prepared under the Minister’s rules; and
does any or all of the following—
identifies a PIA;
states assumptions about population and employment growth;
states assumptions about the type, scale, location and timing of future development;
includes plans for trunk infrastructure;
states the desired standard of service for development infrastructure.”
Division 2 of part 2 of chapter 4 deals with charges for trunk infrastructure, including conferring power in s 113 for a local government to adopt charges by resolution for providing trunk infrastructure for development and in s 119 for a local government to issue an infrastructure charges notice to an applicant who has obtained a development approval where an adopted charge applies to providing trunk infrastructure for the development.
Division 3 of part 2 of chapter 4 deals with development approval conditions about trunk infrastructure. The definition of “trunk infrastructure” in schedule 2 to the Act is:
“trunk infrastructure, for a local government, means—
development infrastructure identified in a LGIP as trunk infrastructure; or
development infrastructure that, because of a conversion application, becomes trunk infrastructure; or
development infrastructure that is required to be provided under a condition under section 128(3).”
Relevantly, the definition of “development infrastructure” in schedule 2 means “land or works, or both land and works, for … water cycle management infrastructure, including infrastructure for water supply, sewerage, … but not water cycle management infrastructure that is State infrastructure”.
“127 Application and operation of subdivision
This subdivision applies if—
trunk infrastructure—
has not been provided; or
has been provided but is not adequate; and
the trunk infrastructure is or will be located on—
premises (the subject premises) that are the subject of a development application, whether or not the infrastructure is necessary to service the subject premises; or
other premises, but is necessary to service the subject premises.
Section 128 provides for the local government to be able to impose particular development conditions (each a necessary infrastructure condition) on the development approval.
Note—
For imposing or amending development conditions in relation to an approval of a change application, see sections 81A(2)(a) and 82(3)(b).
128 Necessary infrastructure conditions
If the LGIP identifies adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring either or both of the following to be provided at a stated time—
the identified infrastructure;
different trunk infrastructure delivering the same desired standard of service.
If the LGIP does not identify adequate trunk infrastructure to service the subject premises, the local government may impose a development condition requiring development infrastructure necessary to service the premises to be provided at a stated time.
However, a local government may impose a condition under subsection (2) only if the development infrastructure services development consistent with the assumptions in the LGIP about type, scale, location or timing of development.
A necessary infrastructure condition is taken to comply with section 65(1) if—
generally, the infrastructure required is the most efficient and cost-effective solution for servicing other premises in the general area of the subject premises; and
for a necessary infrastructure condition that requires the provision of the infrastructure located on the subject premises—
the provision is not an unreasonable imposition on the development; or
the provision is not an unreasonable imposition on the use of the subject premises as a consequence of the development.
To remove any doubt, it is declared that a necessary infrastructure condition may be imposed for infrastructure even if the infrastructure will service premises other than the subject premises.
129 Offset or refund requirements
This section applies if—
trunk infrastructure that is the subject of a necessary infrastructure condition services, or is planned to service, premises other than the subject premises; and
an adopted charge applies to the development.
If the cost of the infrastructure required to be provided under the condition is equal to or less than the amount worked out by applying the adopted charge to the development, the cost must be offset against that amount.
Note—
For how the cost is worked out, see sections 116 and 137.
(example omitted)
If the cost of the infrastructure required to be provided under the condition is more than the amount worked out by applying the adopted charge to the development—
no amount is payable for the development approval; and
the local government must refund to the applicant the difference between the establishment cost of the trunk infrastructure and the amount worked out by applying the adopted charge to the development.”
The definition of “necessary infrastructure condition” for the purpose of s 128 of the Act is found in s 127(2).
Subdivision 1 of division 4 of part 2 of chapter 4 of the Act allows for conversion of particular non-trunk infrastructure before construction starts. Section 138 specifies that the subdivision applies if a particular development condition under s 145 requires non-trunk infrastructure to be provided and the construction of the non-trunk infrastructure has not started. The timing of the application to convert infrastructure to trunk infrastructure is regulated by s 139.
Division 5 of part 2 of chapter 4 of the Act deals with non-trunk infrastructure. It is defined in schedule 2 to the Act as:
“non-trunk infrastructure means development infrastructure that is not trunk infrastructure.”
Division 5 contains only s 145 that deals with conditions a local government may impose about non-trunk infrastructure. Section 145 provides:
“A development condition about non-trunk infrastructure that a local government imposes—
must state—
the infrastructure to be provided; and
when the infrastructure must be provided.
may be about providing development infrastructure for 1 or more of the following—
a network, or part of a network, internal to the premises;
connecting the premises to external infrastructure networks;
protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component.
Example of a condition for subparagraph (iii)—
A condition that works near transport infrastructure must not adversely affect the infrastructure’s integrity.”
The reasons
“[17] It was submitted by Mr Gore KC that the effect of the NDN is to require Homeland to (Exhibit 32, para 16): (1) fully fund and deliver water supply infrastructure (including the construction of water reservoirs) that services the proposed development and existing development to the north (Whitsunday Shores); and (2) fully fund and deliver sewerage infrastructure that services the proposed development and existing development to the north (Whitsunday Shores). This submission can be accepted having regard to the Appealed conditions and the evidence of Mr Natoli, who has particular expertise with respect to infrastructure planning.
[18] A review of the Appealed conditions reveals they can be divided into one of six categories, namely development conditions that: (1) require specific infrastructure work to be completed; (2) require specific infrastructure work to be completed prior to a specified time or during a particular stage of development; (3) identify a requirement for infrastructure to be of a particular size or to comply with Council’s Development manual; (4) require the developer to fund the cost of upgrades to existing infrastructure by reason of the development; (5) require the preparation of further analysis, detailed design drawings or a management plan; and (6) require the decommissioning of existing infrastructure.”
The primary judge noted (at [71] of the reasons) that, at the time the appeal was heard in the P&E Court, the planning scheme in force included an LGIP. The primary judge concluded (at [73]) that the “planning scheme” for the purpose of s 111 of the Act was that in force at the time the power conferred by part 2 of chapter 4 was exercised for the five reasons taken in combination that are then set out at [74]-[78]. That conclusion appears sound as some of the provisions within part 2 of chapter 4 (such as s 119) concern the exercise of power by the local government which is not contemporaneous with the assessment of the development application under chapter 3. There is no challenge on this application to the conclusion at [73]. In considering the primary issue (as expressed by the parties), the primary judge was satisfied (at [79]) that part 2 of chapter 4 applied to the appeal to the P&E Court. (The effect of that conclusion at that stage of the reasons was that there was the potential for infrastructure conditions to be imposed under s 128 if it remained the position when the appeal was ultimately determined by the primary judge that the pre-condition in s 111 was satisfied. That conclusion, however, was provisional in view of the primary judge’s subsequent conclusion (at [102]) that no weight should be given to either the first planning scheme amendment or the amended LGIP in deciding the conditions to be imposed on the development approval.)
The primary judge noted (at [85] of the reasons) that s 127(1) identifies when s 128 is an available source of power to impose a necessary infrastructure condition on an approval. The primary judge further noted (at [86]) that subdivision 1 of division 3 of part 2 of chapter 4 applies where s 127(1)(a) and (b) are satisfied. Noting that s 127(1) had to be read with the definition of “trunk infrastructure”, the primary judge posed the issue in these terms (at [87]):
“The definition has the following consequence in my view: s 127(1) is engaged, and s 128 of the Act is available for the imposition of conditions where Homeland can identify ‘trunk infrastructure’ (as defined) that has not been provided, or inadequately provided, on the site or other premises necessary to service the site.” (emphasis added)
“I agree with the submissions made by Mr Job KC. Homeland did not identify development infrastructure that: (1) was in the LGIP in force at the time of the hearing, which follows from paragraph [70]; (2) is trunk infrastructure by reason of a conversion application – no such application has been approved for the site; and (3) is trunk infrastructure by reason of a condition of an approval imposed under s 128(3) of the Act – there is no approval including a relevant condition of this kind attaching to the site. This has the consequence that s 128 is not available to condition the development approval sought, and obtained, by Homeland.”
It is apparent from the context of the primary judge’s reference to “paragraph [70]” in [90] of the reasons that the reference to [70] was incorrect. The Council contends the correct reference was to [73] of the reasons that expressed the primary judge’s conclusion that the planning scheme for the purpose of s 111 of the Act was that in force at the time the power conferred by part 2 of chapter 4 was exercised (which was eventually the date the appeal to the P&E Court was decided). That contention is borne out by the perusal of the reasons. The above quote from [90] of the reasons should therefore be read, as if the reference to [70] was to [73].
The primary judge expanded on the reasons for rejecting the applicant’s submissions in respect of s 127(1) of the Act (at [91] of the reasons):
“For completeness, it can be observed that Homeland’s case in relation to s 127(1) was not a persuasive one. It contended, in effect, that s 127(1) of the Act was satisfied here because the Appealed conditions require development infrastructure on the site, which should be treated as trunk infrastructure – that is, the conditions require infrastructure works that go beyond servicing the development. This can be accepted as a general proposition; however, approaching s 127(1) in this way ignores that not all of the Appealed conditions call for the provision of infrastructure, particularly those conditions falling within categories 3 and 4 discussed above. Further, to approach ‘trunk infrastructure’ as including infrastructure that an applicant wishes to have treated as such departs from the definition of ‘trunk infrastructure’ in the Act. This is, in my view, impermissible because Homeland did not establish, nor do I accept, there is a proper basis to proceed in this way when considering s 127(1) of the Act. In particular, Homeland did not establish there is a statutory intention to displace the assumption that the definition applies to the entirety of the Act. This was required for it to succeed given, at the very least, ss 4 and 32AA of the Acts Interpretation Act 1954.”
On the assumption that the Appealed conditions to the extent they require development infrastructure may be imposed under s 128 of the Act, the primary judge proceeded (at [93] of the reasons) to consider whether the discretion to impose the conditions should be exercised. The primary judge concluded (at [94]) that the discretion should not be exercised under s 128 of the Act insofar as it was open in relation to some of the Appealed conditions for the four matters (set out in detail at [95]-[107]) taken in combination which can be summarised as:to grant an approval inclusive of the Appealed conditions on the footing they are imposed under s 128 of the Act is not a decision based on the assessment carried out under s 45 of the Act and would sit uncomfortably with s 59(3) of the Act (at [95]-[102]) (the first matter);the Appealed conditions could only be imposed under s 128 of the Act where weight is given to the planning scheme amendments of June 2018 and November 2020 (and particularly full force and effect to the first planning scheme amendment that provided for the water reservoir W8) under s 45(8) of the Act which would be to use that provision “as a vehicle for displacement or modification” (at [103]-[105]) (the second matter);the imposition of conditions under s 128 of the Act at the time of the hearing was premature in any event (at [106]) (the third matter); anda decision to impose an Appealed condition under s 145 of the Act does not preclude the applicant from making a conversion application/s to the Council in the future (at [107]) (the fourth matter).
The first of these matters concerns the fundamental approach under the Act to the assessment and decision process of an impact assessable development application. The primary judge noted (at [96] of the reasons) that the decision to approve the applicant’s development application and impose conditions was contemplated by s 60(3)(b) of the Act. The primary judge then noted that a relevant constraint is found in s 59(3) which requires the decision to be based on the assessment carried out by the assessment manager (and the P&E Court on appeal) and that assessment must proceed in accordance with s 45(5) to s 45(8). The primary judge referred (at [97]) to the timing of the development application in relation to version 3.5 of the planning scheme that was in effect when the application was properly made. The primary judge then noted (at [99]) the possible application of s 45(8) and concluded (at [100]):
“I was not satisfied that the first planning scheme amendment should be given weight in this appeal. As a starting point, and as correctly submitted by Council, there is no identifiable mechanism in the Act for weight to be given to a version of the LGIP that was not in force at the time the development application was properly made, or now. Even if weight could be given to the LGIP in its original form, there is a good reason to not do so in any event; it has been overtaken, in part, by events. That event is the introduction of a later version of the LGIP in November 2020. It is this later document that represents Council's planning as an infrastructure provider and planning authority. To give the original LGIP weight, indeed decisive weight as contended by Homeland, would have the effect of displacing this planning with a position Council, as infrastructure provider and planning authority, elected to change. This change, which is embodied in the current LGIP, is not appealable in this proceeding.”
“Rather, the Court was pressed to give weight to the LGIPs for the purposes of engaging ss 111, 127 and 128 of the Act. The impetus for doing so has little to do with the infrastructure required by the conditions, but rather a desire by Homeland to ensure future credits and offsets for the development infrastructure works required by the Appealed conditions are secured now. While this motivation is understandable in the light of the not so insignificant infrastructure requirements imposed by a number of the Appealed conditions, I was not prepared to give the November 2020 amendments to the planning scheme weight for this purpose.”
This approach resulted in the primary judge’s conclusion (at [102] of the reasons) that where no weight was given in the assessment to the planning scheme amendments made in June 2018 and November 2020, the Appealed conditions could not be imposed on the development approval under s 128 of the Act because to do otherwise would not be based on an assessment of the development application as required by s 59(3).
The second matter was explained (at [103] of the reasons) in terms that to give weight pursuant to s 45(8) of the Act in the way contended for by the applicant was not supported by authority. The primary judge relied (at [104]) on the interpretation of s 45(8) of the Act (that was then numbered s 45(7)) in Brisbane City Council v Klinkert (2019) 236 LGERA 88 by Gotterson JA (with whom Philippides JA agreed) at [2]-[6] in dealing with a successful appeal to the P&E Court by the developer from the Council’s refusal of a code assessable development application. Using the current numbering of the subsections in s 45 when referring to Gotterson JA’s reasons, Gotterson JA noted (at [5]) that within the framework provided by s 45(7), it was unclear how the assessment manager might give weight pursuant to s 45(8) to the amendment or replacement of provisions within the statutory instrument before the development application was decided. Gotterson JA concluded, however, at [6] that it was clear “from the emphatic terms in which [s 45(7)] is enacted, that [s 45(8)] is not a vehicle for displacement or modification by the assessment manager of the statutory instrument or other document as in effect when the application was properly made”. The primary judge considered (at [105]) that using the first planning scheme amendment to impose conditions that could not have been imposed under either s 128 or s 304 of the Act at the time the development application was properly made was not consistent with the interpretation given to s 45(8) by Gotterson JA in Klinkert because to do so would be to use the amendment “as a vehicle for displacement or modification”.
The third matter was dealt with briefly (at [106] of the reasons) and was based on matters of fact:
“Third, the imposition of conditions under s128 of the Act at this time is, in my view, premature in any event. This is because: (l) the Appealed conditions require the provision of infrastructure work that conceivably comprise a combination of works serving a trunk and non-trunk function; (2) the identification of infrastructure in this context that serves a trunk and non-trunk function requires, in my view, the preparation and review of a detailed design - this design does not yet exist; and (3) absent a detailed design (item (2)), an attempt to identify infrastructure as trunk or non-trunk at this point in time involves speculation and has the potential to prejudge or pre-determine the function that infrastructure works may perform in the future –particular care with respect to prejudgment is necessary here given the requirements in respect of future infrastructure appear fluid having regard to conditions Part A, 7.3, 8.6 and 8.10.”
The fourth matter was related to the third matter as it was based on the possibility of a future conversion application by the applicant to the Council under s 138 of the Act. The primary judge held the reservation (at [107] of the reasons) “that goes to the risk of prematurely prejudging the characterisation of infrastructure works under the Act prior to the making, and proper assessment, of a conversion application based on detailed information”.
At the conclusion of the reasons, the primary judge dealt with reservations about whether some of the Appealed conditions complied with s 145(a)(ii) of the Act. Relevant to ground 4, the primary judge stated (at [111]):
“I am also not satisfied the Appealed conditions falling into categories (3), (4) and (5) engage s 66(1)(c) of the Act. These conditions, properly construed, do not require a monetary payment, works or land for infrastructure. As a consequence, I was not satisfied they are prohibited conditions. The source of the conditions power in each case, in my view, appears to be s 60(3), constrained by s 65(1) of the Act. I will hear from the parties about this to ensure any necessary amendment is made to the conditions before an approval is granted by the Court.”
Preliminary observation on grounds of appeal
If the primary judge’s views on the first and second matters relied on in connection with the exercise of the discretion to refuse to impose conditions under s 128 of the Act (on the assumption there was power to do so) are correct, those views affect whether there was power at all under s 128 to impose necessary infrastructure conditions on the applicant’s development approvals. That question depends on the relationship between the imposition of development conditions under s 128 and the assessment by the assessment manager (and by the P&E Court on appeal) of the development applications under s 45(5) and the decision by the assessment manager under s 59(3) of the Act based on the assessment of the development applications carried out by the assessment manager, having regard to the powers of the assessment manager to make one of the decisions provided for in s 60(3).
No doubt the parties focused on the primary issue agitated before the primary judge in an endeavour to confine the dispute between them. If the primary judge’s views set out in the reasons (at [95]-[105]) are correct, the starting point for determining the dispute should have been the decision by the P&E Court as to the weight to be given under s 45(8) of the Act respectively to the first planning scheme amendment and the amended LGIP in assessing the development applications. As the conclusion by the primary judge was ultimately that no weight should be given to either the first planning scheme amendment or the amended LGIP, there was no LGIP to be considered for the purpose of s 127(1) and therefore there could be no satisfaction of the requirements under s 127(1) to enable the application of s 128. Approaching the issue in that way would have obviated any consideration of the exercise of discretion to impose conditions under s 128.
In this Court, the parties argued the grounds of appeal by starting with the issue of whether the requirements in s 127 of the Act were satisfied and then dealing with the question of the exercise of discretion under s 128 (on the assumption that there was power under s 128 to impose necessary infrastructure conditions). The primary judge’s view of the relationship of s 128 with s 45(5), s 59(3) and s 60(3) suggests that approach was not correct. It is convenient, however, to deal with the grounds of appeal in the order in which they were argued by the applicant.
Ground 1 – Were the requirements in s 127 of the Act satisfied?
Even though ground 1 is expressed in the notice of appeal in terms that the trial judge erred in law in concluding that, in relation to the Appealed conditions, s 128 of the Act was not available and s 127 was not satisfied, this ground turns in the first instance on whether the conditions in s 127 were satisfied. The applicant relies on the first limb of the definition of “trunk infrastructure” for the purpose of considering whether the primary judge erred in the construction of s 127.
It was common ground that s 127 must be read by inserting the definition of “trunk infrastructure” where that term is used in s 127. It is only necessary to use the first limb of the definition for that purpose, as that was the only limb that was relevant to the subject development applications. This results in the first limb of the definition being substituted for “trunk infrastructure” in the opening of paragraph (a). It is not necessary to insert the definition in paragraph (b) as “the trunk infrastructure” in paragraph (b) must refer back to the expanded reference to “trunk infrastructure” in paragraph (a), as a result of inserting the first limb of the definition. That means that s 127(1) would be read as:
“This subdivision applies if—
development infrastructure identified in a LGIP as trunk infrastructure—
has not been provided; or
has been provided but is not adequate; and
the trunk infrastructure is or will be located on—
premises (the subject premises) that are the subject of a development application, whether or not the infrastructure is necessary to service the subject premises; or
other premises, but is necessary to service the subject premises.”
It was common ground between the applicant and the Council that the reference to trunk infrastructure in s 127(1), as expanded by the insertion of the first limb of the definition of trunk infrastructure, refers to both existing and future trunk infrastructure. That is reinforced by the definition of “establishment cost” in schedule 2 to the Act which has a defined meaning in relation to trunk infrastructure for existing infrastructure and for future infrastructure.
The applicant submits in paragraph 15 of its written submissions that the primary judge (at [91] of the reasons) made a finding favourable to the applicant in that “he accepted that the Appealed conditions did require ‘infrastructure works that go beyond servicing the development’”. The applicant then asserts that what the primary judge went on to state (at [91]) that “approaching s 127(1) in this way ignores that not all of the Appealed conditions call for the provision of infrastructure, particularly those conditions falling within categories 3 and 4” was “confusing”. The applicant’s written submissions continue with “it must surely have been sufficient for Homeland to succeed to demonstrate that the Appealed conditions included conditions that could be justified under s 128, but not under s 145”.
There are two points to be made about this submission. First, the applicant has misinterpreted the primary judge’s statement at [91] of the reasons as to what could be accepted as a general proposition. The general proposition was that conditions which require infrastructure works that go beyond servicing the subject development are generally conditions requiring development infrastructure on the site which should be treated as trunk infrastructure. In other words, the primary judge was accepting in general terms what type of conditions are usually trunk infrastructure conditions and was not accepting the proposition that was put on behalf of the applicant that the Appealed conditions required infrastructure works that go beyond servicing the development and therefore they should be treated as trunk infrastructure. The second point about [91] is that the primary judge brought the focus back to the requirements that must be satisfied under s 127(1) before s 128 was available to impose a necessary infrastructure condition. That was emphasised by the primary judge (at [90]) in pointing out that the applicant had not identified development infrastructure that was in the amended LGIP.
Even though the primary judge used a shorthand way of explaining (at [90] of the reasons) as to why s 127(1) was not satisfied by embracing the submissions made on behalf of the Council, some further explanation was given by the primary judge when dealing with the discretionary factors relating to the application of s 128 in the following observation (at [101]):
“As to the later version of the LGIP, it was uncontroversial that it took effect on 30 November 2020 and does not identify trunk infrastructure (particularly water supply and sewerage) for the site.” (emphasis added)
This observation reflected paragraph 84 of the applicant’s written submissions before the primary judge which noted paragraph 51 of the joint report on engineering infrastructure between the respective experts nominated by the applicant and the respondent (exhibit 10) where the engineers agreed that “the current LGIP and PFTI [Plans for Trunk Infrastructure] do not include any trunk water supply and sewerage infrastructure to service the Whitsunday Paradise development area” which was a reference to the subject development.
The key point from this observation (at [101]) for the purpose of addressing ground 1 is that the primary judge interpreted “development infrastructure identified in the LGIP as trunk infrastructure” as being trunk infrastructure (whether existing or future) for the subject site. This accords with the text of s 127 when the first limb of the definition of “trunk infrastructure” is incorporated into s 127(1) and paragraph (a) is read in the context given to s 127(1) by paragraph (b). Paragraph (b) clarifies the nexus between the trunk infrastructure and the subject site and is a cumulative requirement to paragraph (a). The nexus is either the trunk infrastructure is or will be located on the subject site or, if located on other premises, is necessary to service the subject site.
Despite the agreement of the engineers that the amended LGIP did not include any water supply or sewerage trunk infrastructure to service the subject site, the applicant’s submission before the primary judge as to the satisfaction of the conditions in s 127(1) respectively for sewerage and water supply was made in these terms (in exhibit 40) if the amended LGIP applied:
“Section 127(1)(a)(ii) and (b)(i) are engaged because:
the existing infrastructure ‘identified in a LGIP as trunk infrastructure’ ‘has been provided but is not adequate’;
the infrastructure that ‘is not adequate’ ‘is necessary to service’ the subject premises;”
Section 127 of the Act must be construed by reference to its text, having regard to its context and its purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [5] and [47]. Section 127 regulates the imposition of development approval conditions about trunk infrastructure that constitute “necessary infrastructure conditions” that can constitute an exception to the prohibition found in s 66(1)(c) against development conditions that require a monetary payment for the establishment, operating or maintenance costs of, works to be carried out for, or land to be given for infrastructure. The focus of the requirement in s 127(1)(a) is that it concerns “development infrastructure identified in a LGIP as trunk infrastructure” that has either of the characteristics set out in subparagraphs (i) or (ii). It is relevant to the construction of s 127 that it is concerned with the imposition of conditions for infrastructure on the development approval for a specific site. If a necessary infrastructure condition imposed under s 128 services premises other than the subject premises, there is the possibility of an offset or refund between the cost of the infrastructure and the adopted charge that applies to the development under s 113 of the Act. The context of s 127 is that the development conditions that may be imposed under either s 128(1) or (2), if the requirements in s 127 are satisfied, are concerned in each case with trunk infrastructure “to service the subject premises”. Section 127(1)(a)(i) must refer to future trunk infrastructure identified in the LGIP that “has not been provided”. Section 127(1)(a)(ii) must refer to existing trunk infrastructure identified in the LGIP that “has been provided but is not adequate”.
The nexus to the subject site provided by s 127(1)(b) was incorporated by the primary judge, when applying the requirement in s 127(1)(a). That is why the primary judge stated (at [87] of the reasons) that s 127(1) was engaged “where Homeland can identify ‘trunk infrastructure’ (as defined) that has not been provided, or inadequately provided, on the site or other premises necessary to service the site”. Even though the primary judge immediately followed that statement by posing the question (at [88]) that used the language of “has not been provided, or adequately provided” that is taken from s 127(1)(a), the question must be understood as having incorporated the content of the immediately preceding statement (at [87]) of “has not been provided, or inadequately provided, on the site or other premises necessary to service the site”. There is therefore no substance in the applicant’s contention in this Court that the primary judge failed to consider the requirement under s 127(1)(b).
The applicant’s position in relation to sewerage infrastructure is that both versions of the LGIP identified an existing sewerage treatment plant on the applicant’s site that was in use for the Whitsunday Shores development. Even though condition 8.8 of the preliminary approval provides for the decommissioning of that sewerage plant, the applicant submits that the treatment plant is shown on the LGIP as existing trunk infrastructure which must be replaced because it is inadequate to service the applicant’s development. The applicant submits that the primary judge did not ask the correct question pursuant to s 127(1)(a)(ii) of whether the LGIP identified sewerage trunk infrastructure that had been provided but was not adequate for the subject development. In respect of water infrastructure, even though the water reservoir W8 in the first planning scheme amendment was removed by the amended LGIP, the applicant relies on the water main in the road reserve that is shown as existing trunk infrastructure in both versions of the LGIP which is on the eastern side of the road to which the subject site has frontage.
“Clause 126 states that this subdivision applies if trunk infrastructure necessary to service the premises, the subject of a development application, has not been provided or is inadequate, and the trunk infrastructure is, or will be located on –
The premises the subject of the development application, whether or not the infrastructure is necessary to service the premises; or
Other premises but is necessary to service the premises the subject of the development application.
If these conditions are met, a local government as assessment manager can impose a necessary development condition on the development approval”
The primary judge’s approach to the application of s 127(1) of the Act was to have regard to the amended LGIP in considering whether either of the conditions in s 127(1)(a) (taking into account the cumulative requirement under s 127(1)(b)) was satisfied. Reference to the amended LGIP for that purpose was consistent with construing s 127(1) with the insertion of the first limb of the definition of trunk infrastructure. It was also consistent with the primary judge’s conclusion (at [73] of the reasons) that the planning scheme for the purpose of s 111 is that in force at the time the power conferred by part 2 of chapter 4 is exercised for the primary judge to consider the amended LGIP when determining whether the conditions under s 127(1) were satisfied. The primary judge’s consideration of s 127(1) in addressing the primary issue formulated by the parties by looking for trunk infrastructure in the amended LGIP for the subject site was not in error. The exercise of the power under s 128 could arise only if both s 127(1)(a) and (b) were satisfied. It was sufficient for the primary judge to conclude that s 128 was not available, because trunk infrastructure identified in the amended LGIP “has not been provided, or inadequately provided, on the site or other premises necessary to service the site”: see [87]-[90] of the reasons.
The applicant does not succeed on ground 1.
Ground 2 – Did the primary judge err in concluding that, in any event, the P&E Court’s discretion should not be exercised to impose the Appealed conditions under s 128 of the Act?
The applicant impugns all four matters on which the primary judge relied in combination to conclude that it would have been appropriate, in any case, to refuse to exercise the discretion to impose the conditions under s 128.
It is not strictly necessary to deal with ground 2, as the applicant has failed on ground 1. As ground 2 was fully argued, it is appropriate to address some of the matters of principle that were agitated.
In essence, the applicant relies on the way in which the parties put the primary issue before the primary judge and submits that, as the relevant planning scheme for the purpose of considering the application of s 128 of the Act was that in force when the primary judge decided the appeal, the primary judge erred in law in concluding that an approval of the Appealed conditions would not be based on an assessment carried out under s 45 of the Act. It can be observed at the outset that the manner in which the parties formulated the primary issue could not preclude the primary judge from giving proper consideration to the application of the Act to the subject matter of the appeal before the P&E Court.
Section 128(1) and (2) of the Act uses the expression “development condition” that is a defined term and, relevantly, is a reference to a condition that the assessment manager imposes under s 60. Even though s 128 is in chapter 4 of the Act dealing with infrastructure, it contemplates a development condition that is imposed at the time of the decision under chapter 3 of the Act when the decision to approve all or part of the development application but to impose development conditions on the approval under s 60(3)(b) is made after the assessment manager carries out the assessment of the development application that requires impact assessment under s 45(5). If the power to impose a necessary infrastructure condition arises under s 128, the development condition is imposed as part of the decision-making process of the assessment manager under s 59(3) and s 60(3)(b). In respect of the first matter, there was no error in the primary judge’s construction of the Act in respect of the relationship of s 128 with s 45(5), s 59(3) and s 60(3)(b) reflected in [95] and [102] of the reasons.
In relation to the second matter, the question arose whether, in undertaking the assessment of the development application on the assumption that s 128 of the Act was available to impose a necessary infrastructure condition, it was open to the primary judge to give no weight to the first planning scheme amendment or the amended LGIP. The applicant does not challenge the authority of the majority view in Klinkert as to the construction of s 45(8). The applicant relies on Hervey Bay City Council v BGM Projects Pty Ltd (2007) 154 LGERA 330 to assert that s 59(3) did not require the assessment manager’s decision to be based only on the assessment under s 59(3). That was not the issue, however, in relation to the second matter. concerned similar but not identical provisions in the (Qld) (IPA). The error of law made by the P&E Court that was subject of the successful appeal in was the finding that s 3.5.6(2) of the IPA had the effect, despite s 6.1.31 of the IPA, that the relevant Council could not rely on a planning policy that came into effect after the decision stage had commenced in respect of the development application to impose an infrastructure condition that was permitted where there was such a policy. As a matter of construction of the IPA, McMurdo P (with whom Philippides J agreed at [56]-[57]) concluded at [20] that s 6.1.31 of the IPA had application even if the planning policy came into effect after the day the decision stage for the application started. does not assist the applicant, as the issue before the primary judge was the weight (if any) to be given under s 45(8) to the first planning scheme amendment and the amended LGIP.
Ground 3 – Were the primary judge’s reasons in relation to the issues the subject of grounds 1 and 2 adequate?
There are two aspects to this ground. The first aspect is the applicant’s complaint that there were multiple paragraphs of the applicant’s written submissions (AWS) in the P&E Court that were not addressed by the primary judge, namely paragraphs 51-52, 59-74, 78-82, 112-130 and 131(d). As a general comment, many of the paragraphs in the AWS relied on for ground 3 are based on the applicant’s characterisation of what the two versions of the LGIP show and the applicant’s construction of s 127 of the Act. Upon the primary judge determining the proper construction of s 127 and finding that the amended LGIP did not identify water supply and sewerage trunk infrastructure for the subject site, it was not necessary for the primary judge to deal with the applicant’s submissions that were inconsistent with those conclusions.
Paragraphs 51 and 52 of the AWS dealt with the weight that the primary judge should give to the first planning scheme amendment or the amended LGIP pursuant to s 45(8) of the Act and advanced an alternative basis for considering those planning scheme documents pursuant to s 45(5)(b) of the Act. Paragraph 52 also submitted that determinative effect or weight should be given to the first planning scheme amendment. The issues were disposed of by the primary judge’s decision not to give any weight to either the first planning scheme amendment or the amended LGIP pursuant to s 45(8). The applicant in this Court did not explain how there could have been any different result under s 45(5)(b) in view of the primary judge’s reason for not giving any weight to the original LGIP because the water reservoir was removed by the amended LGIP and the reason for not giving any weight to the amended LGIP was that it did not identify water supply or sewerage trunk infrastructure for the subject site.
Paragraphs 59-74 of the AWS also advanced reasons why the P&E Court should give weight to both versions of the LGIP and did not need to be traversed because of the way the primary judge disposed of the issue.
It was unnecessary for the primary judge to deal with paragraphs 78-81 of the AWS as that argument was based on the water reservoir W8 that was shown in the first planning scheme amendment but then removed in the amended LGIP. The essence of these submissions before the primary judge was that the water infrastructure required by the Appealed conditions was effectively the water reservoir W8 and that they do not satisfy the definition of “non-trunk infrastructure” in schedule 2 to the Act and cannot be required by conditions imposed under s 145 of the Act. It was submitted those conditions ought to be imposed under s 128(1). These arguments were disposed of indirectly by the primary judge who noted (at [100] of the reasons) that the change effected by the amended LGIP to the first planning scheme amendment was not appellable in that particular proceeding. In addition, the primary judge rejected (at [91]) the submissions of the applicant that asserted that the Appealed conditions should be imposed under s 128 when the applicant had to establish that there was a proper basis to apply s 128 by satisfaction of the requirements in s 127(1) of the Act. Paragraph 119 of the AWS is concerned with the existing sewerage treatment plant which was dealt with by the primary judge’s conclusion that it was not sewerage trunk infrastructure for the subject premises.
Ground 4 – Did the Appealed conditions include conditions that did not engage s 66(1)(c) of the Act?
The applicant submits that the division by the primary judge of the Appealed conditions into six categories and the conclusion that categories 3, 4 and 5 did not engage s 66(1)(c) of the Act was not prompted by any submission by the Council and was outside the real dispute between the parties. The applicant challenges the primary judge’s view that those conditions did not require a monetary payment, works or land for infrastructure. The applicant submits those conditions were part of a package of conditions that do require works for infrastructure and cannot appropriately be severed from the package and, when those conditions are viewed as part of the package, all the conditions engage s 66(1)(c) of the Act.
The categorisation process was undertaken by the primary judge as part of considering the primary issue (as expressed by the parties) of whether the conditions could be imposed under s 128. As the applicant has not succeeded on the application in this Court in showing that the primary judge erred in law in failing to conclude that the conditions were able to be imposed under s 128, the issue raised by ground 4 could not affect the outcome of the application in this Court and does not require any further consideration.
Order
The applicant has failed to show an error of law in respect of the primary judge’s decision that requires the intervention of this Court. Leave to appeal should therefore be refused and costs should follow the event.
The order which should be made is: Application for leave to appeal refused with costs.
BOND JA: I agree with the reasons for judgment of Mullins P and with the order proposed by her Honour.
DAVIS J: I agree with Mullins P.
Homeland Property Developments Pty Ltd
Whitsunday Regional Council [2025] QCA 234
(2009) 239 CLR 27
(2019) 236 LGERA 88
(2007) 154 LGERA 330
Application for leave to appeal refused with costs.
The parties had formulated the primary issue for determination by the primary judge (which was set out at [3] of the reasons) as whether, in the exercise of the P&E Court’s discretion, the NDN should be amended so that the infrastructure required by the Appealed conditions is imposed as “necessary infrastructure” under s 128 (rather than s 145) of the Act. The primary judge identified (at [62]) that before considering the primary issue agitated by the parties, it was first necessary to determine whether the conditions power in s 128 of the Act could be exercised by the P&E Court on the applicant’s appeal. The primary judge concluded (at [62] and [92]) that s 128 of the Act (whether directly or through s 304 of the Act) was not available as a source of power to impose the Appealed conditions and therefore answered the question posed by the parties as the primary issue in the negative. On the assumption the Appealed conditions (to the extent they require development infrastructure) may be imposed under s 128, the primary judge proceeded (at [93]) to consider whether the discretion to impose the conditions under s 128 should be exercised. The primary judge concluded (at [94]) that the discretion (insofar as it was open in relation to some of the Appealed conditions) should not be exercised as contended for by the applicant for the reasons set out at [95]-[101].
The Council’s position is that for s 127(1) to apply the LGIP must identify trunk infrastructure for the subject development and that s 128(2) must be construed in the light of the requirements in s 127(1). The Council submits that it would be illogical that s 128(2) could apply where no trunk infrastructure for the subject development is identified at all in the LGIP. In relation to the existing sewerage infrastructure shown on the LGIP, the Council relies on it being an isolated system with no connection to the Council’s sewerage network and that it serves only the Whitsunday Shores development. It is not inadequate for the purpose for which it has been provided. The Council therefore submits that s 127(1)(a)(ii) is not engaged as it cannot be said that the existing trunk infrastructure is not adequate for the purpose it is intended to serve. In relation to the water infrastructure, the Council accepts that the water main in the road reserve is existing trunk infrastructure which has been provided but there is no evidence that the water main itself is inadequate in fulfilling its role as a water main for the subject development. It was noted that the Appealed conditions require the subject development to connect to that water main. The Council’s proposition that there was no evidence the water main was inadequate to service the subject premises was not controverted by the applicant.
The primary judge’s interpretation that the requirements in s 127 concern trunk infrastructure for the subject site, so that s 127(1)(a) should be read as if the words “for the subject premises” was inserted after “provided” in each of subparagraphs (i) and (ii), is reinforced by extrinsic material in respect of clause 126 of the Planning Bill 2015 which was enacted as s 127 of the Act. The Explanatory Note states:
As the primary judge correctly explained the relationship of s 128 with s 45(5), s 59(3) and s 60(3), it was for the primary judge to exercise the discretion conferred by s 45(8) as to the weight to be given to the first planning scheme amendment that was not in force when the development applications were made or the amended LGIP. The applicant submits that it was anomalous that the primary judge considered whether the requirements in s 127 were established on the basis of the amended LGIP but then (on the assumption s 128 applied) gave no weight to either the first planning scheme amendment or the amended LGIP in considering whether to impose a necessary infrastructure condition. That anomaly would not have occurred, if the parties had started with the assessment and decision-making process under chapter 3 of the Act and the discretion of the primary judge was exercised to give no weight under s 45(8) to the first planning scheme amendment or the amended LGIP in the assessment of the development applications. See the observations made at [46]-[48] above. There was no error of law in the primary judge deciding to give no weight to either the first planning scheme amendment or the amended LGIP as that was an exercise of discretion under s 45(8) that was open to the primary judge. In any case, it made sense to give no weight to the first planning scheme amendment that provided for the water reservoir W8 on the subject premises when that was removed by the amended LGIP. The application of Klinkert (at [100] of the reasons) to the original LGIP was appropriate in view of the removal of W8 by the amended LGIP. Giving no weight to the amended LGIP (at [101]) was based on the evidence that the amended LGIP did not identify trunk infrastructure for water supply and sewerage for the subject site.
The third and fourth matters were relevant considerations for the exercise of the primary judge’s discretion under s 128 of the Act (on the assumption s 128 was applicable). When s 49(2)(c) precluded any assessable development being carried out pursuant to the conditions in the NDN until further development applications were made, it was a most relevant consideration for the primary judge to conclude (at [106] of the reasons) that the imposition of conditions under s 128 was premature. The fourth matter is another aspect of prematurity. As the primary judge observed (at [107]), the decision to impose the Appealed conditions under s 145 of the Act did not preclude the applicant from making a conversion application to the Council in the future (under s 139 of the Act) to convert non-trunk infrastructure to trunk infrastructure on detailed information and plans about the relevant infrastructure works. Any refusal (or deemed refusal) by the Council of that conversion application would be amenable to an appeal by the applicant to the P&E Court. See s 229 and item 5 of table 1 in schedule 1.
There was no error of law in the primary judge’s reliance on the third and fourth matters not to exercise the discretion to impose development conditions permitted under s 128 of the Act (on the assumption s 128 was applicable).
Strictly speaking, the first and second matters were not relevant to the exercise of discretion to impose a necessary infrastructure condition on the assumption that s 128 of the Act was applicable. The parties did not address specifically whether the third and fourth matters in combination were sufficient to support a refusal to exercise the discretion. It is necessary to consider this aspect further in view of the conclusion that the applicant does not succeed on ground 1 of the appeal.
The applicant relies on paragraphs 82, 112-130 and 131(d) of the AWS to assert that the primary judge failed to give adequate reasons for not accepting the applicant’s contention that s 145 of the Act was not the appropriate, or available, source of power to impose the Appealed conditions. The flaw that underpins this assertion is that s 128 is merely an alternative power to s 145. The difference between the provisions is that s 128 is only applicable where the pre-condition in s 111 is satisfied and the requirements in s 127(1) are satisfied. Imposition of conditions under s 145 does not require the planning scheme to include a LGIP. The Act contemplates under s 142(1) that a conversion application can be made to convert non-trunk infrastructure to trunk infrastructure.
The second aspect relates to the delay between the hearing of the appeal in the P&E Court which concluded on 19 August 2022 and the delivery of the reasons by the primary judge on 12 June 2024. The applicant submits that this Court ought to take that lengthy delay into account when reviewing the primary judge’s conclusions and when considering the adequacy of the primary judge’s reasons on the matters that are the subject of grounds 1 and 2.
Such a lengthy delay warrants close scrutiny of the reasons. This was not an appeal to the P&E Court that depended on credibility findings. There was extensive documentary evidence. There is an awkwardness in the primary judge’s reasons, because the primary judge started with the primary issue identified by the parties rather than starting with the question of how imposition of development conditions for trunk infrastructure under s 128 related to the assessment and decision-making process in respect of an impact assessable development application under chapter 3 of the Act. Despite that awkwardness, the primary judge’s reasons are coherent and adequate for disposing of the issues that required decision that are otherwise subject of grounds 1 and 2.
The applicant does not succeed on ground 3.