Rochedale Development Partners v Brisbane City Council [2025] QPEC 16

• [4] Section 43 of the Planning and Environment Court Act 2016 (Qld) (PECA) provides that "Subject to any relevant enabling Act, an appeal to the P&E Court is by way of hearing anew".
• [5] As observed by Kefford DCJ Douglas Construction & Engineering Pty Ltd v Logan City Council [2023] QPEC 28 at [11]:

"In this case, the nature of the appeal is to be construed in the context that the right of appeal is limited. The "enabling Act", ie, the Planning Act 2016, confers judicial power to examine the infrastructure charges notice to ascertain whether the alleged error has been established. The appeal is not a hearing anew, or appeal de novo, in the sense that the Court hears the matter afresh on fresh material and may overturn the decision appealed from regardless of error. Rather, the focus of the appeal is whether the infrastructure charges notice involves a legal, factual or discretionary error."

• [6] I respectfully refer to and adopt the approach of Kefford DCJ.
• [7] It is for the appellant to establish that this appeal should be upheld: s45(1)(c) PECA.

• [8] Future trunk infrastructure is planned over the Land. Pursuant to the Local Government Infrastructure Plan (LGIP) of the Brisbane City Plan 2014, the dedication is:

(a) ROC-A2-011 - Land acquisition for a district recreation park (1.315ha); and

(b) ROC-A5-001 - Land acquisition for a district sports park (0.285ha).

• [9] The Land was purchased by Rochedale Development Partners (32 Farley Rd) Pty Ltd on 6 July 2023 for $5.65 million, pursuant to a "put and call" option agreement dated 27 September 2021. The price of the sale was agreed in or about May 2021.[1] The total area of the Land is approximately 33,738m2.
• [10] On 16 May 2022, the appellant made a development application for a preliminary approval for a material change of use, including a variation request, for Caretakers Accommodation, Multiple Dwelling, Residential Care Facility, Retirement Facility and Utility Installation, and a development permit for Reconfiguring a Lot (1 into 2 lots, and a new road) (Development Application) on the Land.[2]
• [11] The Development Application was approved by the respondent by way of negotiated decision notice dated 12 September 2023. The approval included a condition requiring the dedication of 1.6ha of the Land for park purposes. A negotiated infrastructure charge notice (Negotiated ICN), was issued on the same date which provided for a total refund of $1,522,717.93, including:

(a) $188,650.00 for the land for ROC-A5-001; and

(b) $935,438.40 for the land for ROC-A2-011.

• [12] On 14 February 2024, the appellant gave the respondent a notice requesting the respondent recalculate Land Establishment Cost under the Negotiated ICN pursuant to section 137 of the Planning Act and the recalculation process set out under the Brisbane Infrastructure Charges Resolution (No. 12) 2023 (Charges Resolution v12) (being the version in force at the relevant time) (Recalculation Application). The request was supported by a valuation report prepared by Mr Lister of Savills Valuations Pty Ltd and a report by Wolter Consulting Group determining the highest and best use of the Land. Savills assessed the market value of the land proposed for the park dedication to be $6,000,000 (excluding GST).
• [13] The respondent determined that the appellant's highest and best use advice was acceptable.
• [14] The Savills' valuation did not rely upon the sale of the Land as a comparable sale. On 4 June 2024, Savills provided an addendum to their valuation report addressing the sale of the Land. Savills advised that the valuer considered the sale to be of limited relevance at the date of valuation primarily due to the fact that the price was agreed approximately 12 months earlier than the relevant date of valuation and there had been strong market movement between those dates.
• [15] The Recalculation Application and supporting material were referred to the respondent's internal valuer for assessment. The respondent notified the appellant of an amended valuation for the Land Establishment Cost of $3.6m on 23 July 2024. The appellant provided a second addendum to the Savill's valuation report, dated 3 September 2024. The respondent's amended valuation was rejected by the appellant. The respondent was requested to refer the Recalculation Application to an independent valuer for assessment.
• [16] The respondent referred the Recalculation Application and supporting material to an independent valuer, Horrigan Kamitsis Valuers, to provide an independent valuation of the Land Establishment Cost. Mr Kamitsis was the valuer.
• [17] By report dated 25 October 2024, Horrigan Kamitsis Valuers assessed the Land Establishment Cost to be $4,015,000 (excluding GST). The report is stated to be undertaken in accordance with Section 25 of the Charges Resolution v12.[3]
• [18] On 19 November 2024, Mr Clapham (the delegate of the respondent) determined that the Horrigan Kamitsis Valuers valuation report had followed the correct methodology for determining the proposed market cost for land valuation under the Brisbane Infrastructure Charges Resolution (No. 13) 2024 (Charges Resolution v13) (being the version in force at the relevant time) and be adopted. On 26 November 2024, the respondent gave the appellant an amended infrastructure charges notice (Amended ICN) pursuant to section 27(9) of the Charges Resolution v13, which provides for a total refund amount of $4,865,437.19, including Land Establishment Cost of:

(a) $795,650.11 for ROC-A5-001; and

(b) $3,671,157.55 for ROC-A2-011.

• [19] There is no material difference or change in the recalculation process for land between Charges Resolution v12 and Charges Resolution v13.

• [20] The issues to be determined by the Court were identified in the order of Judge Williamson KC made 20 May 2025. The issues narrowed for the hearing.
• [21] The questions to be determined are:

(a) whether:

(i) the respondent's decision to give the amended infrastructure charges notice pursuant to s 137 of the Planning Act failed to comply with s 25(2)(a) of the Charges Resolution v13;

(ii) if the answer to (a)(i) is yes, then whether the non-compliance resulted in an error in relation to the establishment cost for the land infrastructure items stated in the Amended infrastructure charges notice;

(b) if the answer to (a) is yes, whether the matter should be:

(i) returned to the respondent to recalculate the establishment cost for the land infrastructure items in accordance with the method under the Brisbane Infrastructure Charges Resolution, with any appropriate directions; or

(ii) determined by the Court by way of hearing anew.

• [22] The appellant alleges that the Council made a legal error in the Amended ICN relating to an offset or refund. The appellant says the respondent, by its delegate Mr Clapham, was required to adopt the valuation or determine there is an error in Mr Kamitsis' valuation[4] and in doing this that Mr Clapham erred in finding that Mr Kamitsis' valuation complied with the requirements of s 25(2)(a) of the Charges Resolution v13.[5] Further, the appellant says the error by Mr Kamitsis was the failure to undertake the valuation "as if the required land had never been identified" and "disregarding any change in the value (e.g. through development opportunities) caused, or contributed to, by the identification of the required land in the local government infrastructure plan" as required by s 25(2)(a) of the Charges Resolution v13.

• [23] Section 137 of the Planning Act sets out the process for seeking a recalculation of the amount of the establishment cost of the trunk infrastructure stated in an infrastructure charges notice where the applicant does not agree with the amount of the establishment cost. Section 137 of the Planning Act states:

(1) This section applies if -

(a) a development approval requires the applicant to provide trunk infrastructure; and

(b) the local government has given the applicant an infrastructure charges notice that includes information about an offset or refund under this part relating to the establishment cost of the trunk infrastructure; and

(c) the applicant does not agree with the amount of the establishment cost.

(2) The applicant may, by notice given to the local government, require the local government to use the method under the relevant charges resolution to recalculate the establishment cost.

(3) a notice under subsection (2) must be given to the local government before the levied charge under the infrastructure charges notice becomes payable under section 122.

(4) by notice given to the applicant, the local government must amend the infrastructure charges notice.

(5) the amended infrastructure charges notice must adopt the method to work out the establishment cost.

• [24] Part 4 of the Charges Resolution v13 states matters relevant for the working out of an offset or refund. Section 27 of the Charges Resolution v13 provides:

(1) The establishment cost for required land may be recalculated by the local government at the request of the applicant by using the current market value of the required land determined by using the before and after method of valuation prescribed in section 25 in accordance with this section 27.

(2) The applicant is to give to the local government the following:

(a) a notice in the prescribed form requesting the recalculation of the establishment cost for the required land which is accompanied by the following documents prepared in accordance with section 25:

(i) a valuation of the required land undertaken by an independent valuation expert (applicant's valuation);

(ii) a report prepared by an appropriately qualified town planner regarding the highest and best use of the original land and the remaining land on which the applicant's valuation is based (applicant's highest and best use advice);

(b) the prescribed fee.

Local government's determination of current market value

(3) Within 20 business days after the notice and accompanying documents under subsection (2) are received by the local government:

(a) the local government is to refer the applicant's valuation to its registered valuer to:

(i) assess whether the applicant's valuation is consistent with the current market value;

(ii) assess whether the applicant's valuation is correctly determined using the before and after method of valuation prescribed in section 25;

Note - The local government may request additional information from the applicant in order to undertake the assessment.

(b) if the registered valuer's determination is that the applicant's valuation is not consistent with the current market value or is not correctly determined using the before and after method of valuation prescribed in section 25 then the registered valuer must:

(i) provide the reasons for the registered valuer's determination; and

(ii) either:

(A) provide a valuation using the before and after method of valuation stated in section 25 (amended valuation); or

(B) recommend that the valuation be referred to an independent valuer.

(a) accept the applicant's valuation; or

(b) propose an amended valuation based on subsection (3)(b)(ii)(A); or

(c) refer the valuation to an independent valuer based on subsection (3)(b)(ii)(B).

(5) If the local government accepts the applicant's valuation, it is to:

(a) give written notice to the applicant stating that it has agreed to the applicant's valuation (accepted valuation);

(b) index the establishment cost for the required land using the CPI from the date of the accepted valuation to the date stated in the amended infrastructure charges notice; and

(c) issue an amended infrastructure charges notice to the applicant stating the establishment cost for the required land.

(6) If the local government proposes an amended valuation, it is to give a written notice to the applicant stating:

(a) that it rejects the applicant's valuation and give reasons for doing so;

(b) the proposed amended valuation.

(7) Within 20 business days of receipt of the local government's written notice proposing the amended valuation under subsection (6), the applicant must give written notice to the local government that it:

(a) accepts the amended valuation; or

(b) rejects the amended valuation and its reasons for doing so.

(8) If the applicant accepts the amended valuation, the local government must:

(a) index the establishment cost for the required land using the CPI from the date of the amended valuation to the date stated in the amended infrastructure charges notice; and

(b) give an amended infrastructure charges notice to the applicant stating the establishment cost of the required land.

(9) If the applicant rejects the amended valuation, then within 20 business days after receipt of a notice under subsection (7)(b), the local government is to refer the applicant's valuation to an independent valuation expert nominated by the local government from its list of certified practising valuers as per subsection (11).

(10) The local government may not refer the applicant's valuation to an independent valuation expert if the applicant has not paid to the local government the prescribed fee under subsection (2)(b) including the costs of the independent valuation expert nominated by the local government and the town planner engaged by the local government.

(11) If the local government refers the applicant's valuation to an independent valuation expert nominated by the local government from its list of certified practising valuers, the local government is to:

(a) give written notice to the applicant that it rejects the applicant's valuation and give reasons for doing so;

(b) give written notice to the applicant stating that it has referred the applicant's valuation to an independent valuation expert;

(c) give the following to the independent valuation expert:

(i) the applicant's valuation and the applicant's highest and best use advice;

(ii) the highest and best use advice prepared by an appropriately qualified town planner engaged by the local government regarding the highest and best use of the original land and the remaining land if the local government does not accept the applicant's highest and best use advice;

(iii) the valuation of the required land, if the local government used the before and after method of valuation prescribed in section 25 for the initial calculation of the establishment cost for the required land and considers that it is relevant to the independent valuation expert's assessment.

(12) Within 20 business days after the independent valuation expert has been given the information under subsection (11)(c) (or a longer period as extended by the local government in subsection (13)(a)), the independent valuation expert is to (a local government's valuer's determination):

(a) provide the independent valuation expert's determination in relation to the matters stated in subsection (3)(a); and

(b) if the independent valuation expert's determination is that the applicant's valuation is not consistent with the current market value or is not correctly determined using the before and after method of valuation prescribed in section 25:

(i) provide the reasons for the independent valuation expert's determination; and

(ii) provide a valuation using the before and after method of valuation stated in section 25.

(13) If the local government's valuer's determination is not provided in accordance with the time prescribed in subsection (12), the local government is to do one of the following:

(a) extend the time for providing the local government's valuer's determination stated in subsection (12), in consultation with the applicant; or

(b) refer the applicant's valuation to another independent valuation expert nominated by the local government from its list of certified practising valuers and repeat the process stated in subsections (11)(b) and (c) as soon as reasonably practicable.

(14) If the local government forms a reasonable opinion that there is an error in the local government's valuer's determination, the local government is to within 15 business days after its receipt of the local government's valuer's determination under subsection (12):

(i) the error in the local government's valuer's determination; and

(ii) that the local government is to repeat the process stated in subsections (11)(b) and (c); and

(b) within 10 business days after the date of a notice under subsection (a) is given to the applicant, refer the applicant's valuation to another independent valuation expert nominated by the local government from its list of certified practising valuers and repeat the process stated in subsections (11)(b) and (c).

(15) Within 10 business days after its receipt of the relevant subsequent local government's valuer's determination, subject to subsection (14), the local government is to give written notice to the applicant stating that it adopts the applicable local government's valuer's determination (revised local government's valuation).

(16) If the local government adopts the revised local government's valuation, the local government is to:

(a) index the establishment cost for the required land using the CPI from the date of the revised local government's valuation to the date stated in the amended infrastructure charges notice; and

(b) issue an amended infrastructure charges notice to the applicant stating the establishment cost for the required land."

• [25] Section 25 of the Charges Resolution v13 prescribes the before and after method of valuation for determining the current market value of the required land and states:

"(2) The current market value of the required land is to be determined by using the before and after method of valuation by:

(a) firstly, determining the value (original land value) of the original land of which the required land forms part (original land) before the required land is transferred to the local government;

Note - Where the required land is identified in the local government infrastructure plan, the original land is to be valued:

• as if the required land had never been identified;
• identifying and considering all relevant constraints;
• disregarding any change in the value (e.g. through development opportunities) caused, or contributed to, by the identification of the required land in the local government infrastructure plan; and
• on the basis of the highest and best use of the original land.

Note - Where the required land is not identified in the local government infrastructure plan, the original land is to be valued:

• identifying and considering all relevant constraints; and
• on the basis of the highest and best use of the original land.

(b) secondly, determining the value (remaining land value) of the land that is not to be transferred to the local government (remaining land); and

• identifying and considering all relevant constraints; and
• on the basis of the highest and best use of the remaining land.

(c) thirdly, subtracting the remaining land value from the original land value.

(3) The before and after method of valuation is to be undertaken in accordance with the following requirements:

(a) the valuation is to be carried out to determine the current market value that would have applied on the day that is:

(i) where the required land is identified in the local government infrastructure plan - the day on which the development application, which is the subject of a condition requiring the required land to be provided, first became properly made..."

• [26] The expression "required land" is defined in Schedule 1 of the Charges Resolution v13, by reference to section 24(1).
• [27] I am satisfied that the notes are part of the Charges Resolution v13. Section 14(4) of the Acts Interpretation Act 1954 (Qld) states that a note is part of the Act, and I am satisfied this is applied to the Charges Resolution v13 through the Statutory Instruments Act 1992 (Qld) s 7, sch 1.[6]

Was there compliance with s 25(2)(a) of the Charges Resolution v13?

• [28] To ascertain whether there was compliance with s 25(2)(a) of the Charges Resolution v13 it is necessary to examine what Mr Kamitsis and Mr Clapham did.
  • [29] Mr Kamitsis states he prepared his valuation report in accordance with s 25 of the Charges Resolution v12, using the before and after methodology. Mr Kamitsis lists the sales he considered in undertaking his valuation.[7] He relied upon six sales including the sale of the Land and the sale of adjoining land located at 323 Rochedale Road.
• [30] Despite Mr Kamitsis saying in his report that he ignored "any trunk requirements" in analysing the sales, the appellant says that it is clear he did not do so. In support of this the appellant said that Mr Kamitsis failed to mention the fact of the trunk park dedication applicable to the Land when analysing the sale, in circumstances where the sale was undertaken with the knowledge of the trunk requirement. I was invited by the appellant to draw an inference[8] that because Mr Kamitsis explained the adjustment applied to 323 Rochedale Road and does not explain it for the subject sale, that Mr Kamitsis has not made the adjustment. For these reasons, I also have regard to Mr Kamitsis' evidence.
• [31] When analysing the six sales, Mr Kamitsis says that he ignored any trunk requirements. He specifically says in the report that:

"From sales investigated, sale rates for similarly zoned development sites range from $167/m² to $508/m² ($/m² of site area) depending on attributes such as location, land size, topography, improvements and potential development outcomes, ignoring any trunk requirements." (emphasis added).

• [32] 323 Rochedale Road is subject to a trunk park requirement. Having sighted a copy of the Infrastructure Agreement which capped the infrastructure offset at $4.1m, Mr Kamitsis analysed the sale making an adjustment in recognition of the maximum offset pursuant to the Infrastructure Agreement.[9] Mr Kamitsis acknowledged that he adjusted the 323 Rochedale Road sale taking into account that a purchaser buying the site would be aware of the infrastructure agreement and the requirement to dedicate the park and would adjust their purchase price accordingly.[10]
  • [33] When analysing the sale of the Land, Mr Kamitsis took into account that the price was agreed 12 months before the contract date[11] and was aware of the requirements of part of the Land for trunk park. However, he did not make an adjustment to take account of it because he did not consider it appropriate, consistent with his experience[12] when there is no approval and no infrastructure agreement, as was the situation at the time of the sale of the Land.[13]
• [34] By way of elucidation Mr Kamitsis said:

"My analysis of the sale was based on the total area of the subject land without any deduction for the area required for the park. That is, as if the land required for the park had never been identified or required."[14]

"I acknowledge that the sale of the subject land (sale 1) was sold via a put and call agreement, making the negotiation about 12 months prior to the relevant date. This earlier negotiation is no reason to disregard the sale, and I acknowledge some allowance ought to be made for market growth as indicated by the general tone of the evidence. Care should be taken not to compare the subject land to sales in superior areas of Rochedale closer to amenities and facilities. These sales are clearly superior. Similarly, sale 3, the adjoining sale, had a far higher development density approval at the time of sale with IA in place. Sale 4 is a sale to the adjoining owner and subsequently obtained approval for industrial purposes."[15]

• [36] That Mr Kamitsis valued the Land in the before scenario as if the required land had never been identified in the LGIP is evident because he assumed that the whole of the Land was developable.
• [37] It is apparent from [33] above that Mr Kamitsis formed the view that in the circumstances of the sale, the LGIP designation did not change the value of the Land as reflected by the price paid for the Land. Accordingly, no adjustment was required to reflect the change in value caused, or contributed to, by the identification of the required land in the LGIP. This is an appropriate judgement for a valuer to make and means that the valuation by Mr Kamitsis was undertaken consistently with the requirements of s 25(2)(a), and in particular the third dot point.
• [38] Section 25(2)(a) of the Charges Resolution v13 requires the original land to be valued before the required land is transferred to the local government, as if the trunk park on the land had never been identified and disregarding any change in the value caused by or contributed to by the identification of the land in the LGIP. That is what Mr Kamitsis has done.
• [39] In analysing the sales, Mr Kamitsis clearly states he considered each site's different attributes and ignored "any trunk requirements", as required by s 25(2)(a) of the Charges Resolution v13.[16] The valuation undertaken by Mr Kamitsis is not formulated based on just one sale. Nor did he simply rely upon the comparable sales. Rather, he applied his skill and judgment to critically analyse the sales, before using them in the process of valuing the Land. He explained his approach to the analysis of the sales, including the sale of the Land, and the professional judgement he exercised in analysing the six sales, consistent with his experience_._ Analysis of the sales and adjustments made as a result of that analysis are matters for expert opinion.[17] This is not demonstrative of an error by Mr Kamitsis.
  • [40] Turning then to Mr Clapham's actions. Mr Clapham determined that the Horrigan Kamitsis valuation had been undertaken following the correct methodology and accordingly adopted the valuation.[18] In evidence, he elucidated, saying he "determined that, amongst other things, the valuation report accorded with s25 of the BICR and that no error had been made", the "valuation was undertaken as if the whole of the subject land was developable in the before case" and "ignored the park identified or required from the subject land".[19]
  • [41] The appellant was critical of Mr Clapham because he did not specifically deal with the third dot point in s 25(2)(a) of the Charges Resolution v13 when articulating his determination. Mr Clapham was not required to give reasons for his determination. There are circumstances which require the giving of reasons under the Charges Resolution v13 (eg s 27(6)) but this is not one of them. The articulation of his determination focused on s 25(2)(a) of the Charges Resolution v13, rather than the individual elements identified in the notes to the provision. Mr Clapham said he relied upon Mr Kamitsis' report in forming his views about compliance with the provision, and in particular the third dot point in the notes.[20] Mr Kamitsis clearly says in his report that he ignored trunk requirements, so it is open for Mr Clapham to determine that the valuation methodology was followed.
  • [42] Mr Clapham adopted the Horrigan Kamitsis Valuers' valuation report, having determined that the valuation was undertaken in accordance with s 25(2)(a) of the Charges Resolution v13. In arriving at this conclusion, he relied, as he was entitled to, on the report of Mr Kamitsis. Having determined that the correct methodology had been followed, it was appropriate for Mr Clapham to then adopt the valuation, as he did. For these reasons, I am not persuaded that the appellant has established that Mr Clapham erred.
  • [43] In the circumstances, it is not necessary for me to address questions (a)(ii) and (b) in paragraph [21] above.

• [44] The appellant has failed to discharge the onus. The appeal is dismissed.

[4] Charges Resolution v13 ss 27(14) - (16).

[6] For a discussion on the meaning of 'statutory instrument', see Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21, [65]-[68].

[14] Affidavit of Chris Kamitsis affirmed 28.05.2025, CD11, [17].

[17] Brewarrana Pty Ltd v Commissioner for Highways (No 1) (1973) 32 LGRA 170, 180.

[19] Affidavit of Paul Alexander Clapham sworn 28.05.2025, CD10, [22].