PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: MC Property Investments v Unity Water [2017] QPEC 74 PARTIES: MC PROPERTY INVESTMENTS PTY LTD (ACN ) (Appellant) FILE NO/S: 169/16 DIVISION: PROCEEDING: ORIGINATING COURT: v UNITY WATER (Respondent) Planning and Environment Appeal DELIVERED ON: 6 December 2017 DELIVERED AT: HEARING DATE: 19 October 2017 JUDGE: ORDER: CATCHWORDS: Planning and Environment Court at Maroochydore Planning and Environment Court at Maroochydore Robertson DCJ Appeal dismissed. PLANNING AND ENVIRONMENT LAW appeal against infrastructure charges Notice issued by the Respondent, where ultimately the only ground pursued was that because a previous owner had paid infrastructure charges for one lot as a matter of construction of relevant provisions of the applicable legislation, the appellant was required to pay any additional charges for a development containing 20 lots, where appeal rights limited, whether Wednesbury unreasonableness has been proved. Legislation Planning Act 2016 Queensland Heritage Act 1992 s 162(1) South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 ss 99BRAW(1)(c)(iii) and (2)(d), 99BRAY, 99BRBO, 99BRBQ & 99BRCJ Sustainable Planning Act 2009 s 495(1)

2 2 COUNSEL: SOLICITORS: Cases Birkdale Flowers v Redlands City Council (2016) QPELR 231 Bon Accord v Brisbane City Council (2010) QPELR 23 Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165; (2014) QPELR 761 Thompson v Goold & Company [1910] AC 409 M Batty counsel for the respondent A Davis of QuDA Lawyers for the appellant Thynne MaCartney Lawyers for the respondent [1] The appellant has developed a four storey multiple dwelling building, containing 20 units with five units per level on its property at 50 Seaside Boulevard Marcoola, described formally as Lot 137 on SP ( the land ). The land formed part of a much larger parcel of land developed over many decades east of the David Low Highway, Marcoola and part of what is now known as the town of Seaside ( the base parcel ). [2] The development history of this land is said to be relevant to the present appeal and will be discussed briefly later. Not surprisingly, and prior to construction of the building on the land, the appellant sought a water approval from the respondent for a new connection which was approved with conditions by the respondent on 31 October 2016, 1 which contained water approval conditions. 2 The conditions included Condition CAA1: Payment of Levy Charges is required in accordance with Unity Water s Infrastructure Charges for water supply and sewerage. Unity 1 Exhibit 1 p Exhibit 1 p 232.

3 3 Water may give the applicant an Infrastructure Charges Notice within 10 days after the giving of this Decision Notice. [3] In accordance with that condition Unity Water issued an Infrastructure Charges Notice to the appellant on 4 November The Water and Sewerage Infrastructure Charges were particularised in relation to the 20 dwellings and a credit was given in respect of one Dwelling Unit, leaving a charge of $217, [4] Mr Batty, in his written outline, 4 makes the point that the appellant did not appeal the decision notice. It is of no moment to the issues raised here, but my understanding of Chapter 4C, Part 4, Div 1 of the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 ( the Act ) is that, as the Infrastructure Charges Notice is an original decision, 5 an appeal must be, in the first instance, by way of an application for internal review 6 which is what the appellant did, 7 through the agency of its town planner, Mr Holiday, on 11 November [5] The application contains a number of grounds, only one of which is alive on this appeal and that is: Infrastructure Charges are not payable because the Water and Sewerage Infrastructure was provided by the Developer of the Seaside Master Plan Community as a Condition of Rezoning Approval. [6] That application was refused on 5 December On 23 December 2016 the appellant filed a Notice of Appeal in this court against the internal review decision, pursuant to s 99BRBO of the Act, which (relevantly) is in these terms: 99BRBO Appeals about applications for connections particular charges (1) This section applies to an applicant for a connection if (a) the applicant applied for internal review of a charge decision or a decision to give an infrastructure charges notice; and 3 Exhibit 1 p Para Section 99BRAW(1)(c)(iii) and (2)(d). 6 Section 99BRAY. 7 Exhibit 1 p Exhibit 1 pp

4 4 (b) the review decision is not the decision sought by the applicant. (2) The applicant may appeal against the review decision to the Planning and Environment Court. (3) An appeal under this section may be made only on 1 or more of the following grounds (a) the amount of the charge is so unreasonable that no reasonable distributor-retailer could have imposed the amount; (b) the decision involved an error relating to the application of the relevant charge; (c) if the decision is the giving of an infrastructure charges notice (i) the decision involved an error relating to (A) the working out, for section 99BRCJ, of additional demand; or The legislative framework [7] The legislative framework covering appeals of this nature under the Act is indistinguishable from the framework considered by the Court of Appeal in Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville ( CSMDT ). 9 Under s 99BRBO of the Act, the appeal is against the review decision. The appellant must demonstrate that: (a) the charge imposed is so unreasonable that no reasonable distributor retailer could have imposed it; or (b) the decision involved an error relating to an application of the relevant charge; or (c) the decision involved an error in terms of working out additional demand. [8] It is important to note that each of these grounds focuses on the decision-making process of Unity Water. The appeal is akin to an evaluation of the review decision. 9 [2014] QCA 165; (2014) QPELR 761.

5 5 [9] In the CSMDT case, the respondent s right of appeal against a decision of the Heritage Council to enter the respondent s building (St Patrick s Convent in Townsville) into the Heritage Register was limited under the Queensland Heritage Act 1992 to one ground, namely, that the place did not satisfy the cultural heritage criteria referred to in s 162(1) of that Act. As in the case with the Act 10 (except it refers to the Planning Act 2016 which commenced 3 July 2017), there was a provision in the Heritage Act that applied the relevant appeal provisions of the now repealed SPA, with any necessary changes, including s 495(1) of the SPA that an appeal is by way of hearing anew. Douglas J (with whom Gotterson JA agreed, McMurdo P dissenting), after referring to well-known principles of statutory construction 11 wrote at [35]: When one approaches the issue here, the proper resolution of the potential conflict between the two statutes looking at the provisions as a whole and seeking to give them harmonious goals leads to the conclusion that a ground of appeal asserting the place the subject of the appeal did not satisfy the cultural heritage criteria referred to in s 162(1) of the Queensland Heritage Act must be made out in order for it to be open to the Planning and Environment Court to exercise any powers under s 496(1) or 496(2) of the Sustainable Planning Act. [10] I do not understand the appellant to contend that Unity Water is not correct as a matter of law when it submits, through Mr Batty: (a) the appeal right in this case is not simply at large where the court stands in the shoes of the decision maker at first instance; (b) the court may only consider matters more broadly (on a hearing de novo basis pursuant to s 495(1)(a) of SPA) if (and only if) it is first made out that the review decision was unreasonable or involved an error on application or calculation of a charge. Unless that is established there is no need for the court to go any further; the appellant s appeal should fail. 10 Section 99BRBQ. 11 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] [70]; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205.

6 6 [11] The focus of the appeal (described by Mr Batty as The Threshold Issue ) is on the decision-making process of Unity Water. The appeal is akin to a form of judicial review of the review decision. The appellant has the onus of demonstrating any one or more of the matters set out above in s 99BRBO(3)(a), (b), or (c)(i)(a). A brief history of the development [12] By leave and without objection, an affidavit of Mr Quirk, the solicitor for Unity Water, was filed at the hearing. It is not now in dispute that for the land, for water and sewerage infrastructure charges required to be paid arising from the giving of the sub-division permit allowing the creation of (the land), charges paid, prior to the registration of the Plan of Survey which created the land in its present form, were for one equivalent tenement. That concession, made by Mr Davis on behalf of the appellant on 17 October 2017, is clearly supported by the documentation in Exhibit 1 relevant to the development of the base parcel since It is also common ground, and in any event obvious, that the development involves increased demand of 19 dwelling units on water and sewerage infrastructure which perhaps explained why Mr Batty (a barrister not known for rhetorical flourishes) commenced his written outline thus: This is an appeal by a developer whereby some legal miracle, despite developing a parcel of land at Marcoola for the purposes of 20 multiple dwelling units, it seeks to pay no infrastructure charges to Unity Water for the water and sewerage infrastructure that services that development. [13] As he writes: The appeal attempts to litigate an issue of importance to local governments and distributor retailers; if the appellant is successful, there is the potential for the ability of local governments and distributor retailers to levy infrastructure charges to be curtailed. That outcome would disadvantage the community as it is the public purse that would have to meet any shortfall. [14] Although not really fundamental to the issues litigated on the appeal given the concessions referred to above, it is convenient to have some understanding of the development history of the land.

7 7 [15] The land in its present form was part of a subdivision permit issued by the Maroochy Shire Council on 6 November It is clear on the evidence before the court and, as is apparently conceded by the appellant, that a previous owner paid headworks charges in respect of the rezoning approval and subsequent subdivisional permit at the time when the land (and many other parcels) was created, but that in respect of the land, infrastructure charges were paid for it to be used for the purposes of a single lot. [16] The Maroochy Plan commenced on 1 June The land was included in Planning Area No 10, Precinct 9, Seaside. Pursuant to the applicable level in the assessment table, for land in that Area and Precinct, development was self-assessable, where in accordance with the Rezoning Approval, Plan of Development and Architectural Code for Seaside approved by Council prior to 1 June [17] On 10 September 2014, the appellant asked the Sunshine Coast Regional Council to apply a superseded planning scheme to the carrying out of a material change of use for 20 multiple unit dwellings on the land. The Council agreed to the request on 24 October On 14 May 2015, the Council approved an application for operational works over the land. On 7 December 2015, a development permit for building work to construct the multiple unit dwellings on the land was granted. On 31 October 2016, Unity Water gave the appellant a Decision Notice approving the appellant s application for new connection for water and sewer in respect of the land and a development for 20 multiple unit dwellings. As well as Condition CAA1 quoted above the notice contained Condition CAG2 which provided the maximum approved demand for the development namely 20 units. 12 Discussion [18] Ultimately the appellant s argument comes down to what it submits is a proper construction of s 99BRCJ of the Act. It is common ground that the charge under the Infrastructure Charges Notice of $217, is a levied charge : 99BRCJ Limitation of levied charge (1) A levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the connection the subject of the water approval. 12 Exhibit 1, p 233.

8 8 (2) In working out additional demand (a) any existing demand for a water service or wastewater service must not be included if it is the subject of an existing water approval for the premises; and (b) the demand on trunk infrastructure generated by the following must not be included (i) an existing use on the premises if the use is lawful and already taking place on the premises; (ii) a previous use that is no longer taking place on the premises if the use was lawful at the time it was carried out; (iii) other development on the premises if the development may be lawfully carried out without the need for a further development permit under the Planning Act. (3) However, the demand generated by a water approval, use or development mentioned in subsection (2) may be included if an infrastructure requirement that applies or applied to the water approval, use or development has not been complied with. (3A) Also, the demand generated by development mentioned in subsection (2)(b)(iii) may be included if (a) an infrastructure requirement applies to the land on which the development will be carried out; and (b) the infrastructure requirement was imposed on the basis of development of a lower scale or intensity being carried out on the land. (4) In this section charges notice means (a) an infrastructure charges notice under this Act or the Planning Act; or (b) a notice mentioned in the Planning Act, section 977(1). infrastructure requirement means a charges notice, a water approval condition or a condition of a development approval

9 9 under the Planning Act that requires infrastructure or a payment in relation to demand on trunk infrastructure. [19] The appellant s argument appears to be that because the development of the land as a multiple dwelling development use was self-assessable as a result of the Council decision on 24 October 2014 to agree to apply the superseded Planning scheme to the development; and that (by the time Unity Water gave a water approval on 8 November 2016) all relevant development permits had been given, its multiple unit development constructed on the land does not create an additional demand, 13 and therefore the internal review decision maker fell foul of s 99BRBO(3)(a), (b) and (c)(i)(a). It submits that the proper charge should have been nil. [20] There is no issue that s 99BRBO(3)(a) involves an issue which requires the court to consider unreasonableness in the sense articulated by Rackemann DCJ in Bon Accord v Brisbane City Council: 14 The applicant relies on what is commonly referred to as Wednesbury unreasonableness. The test has been described as stringent and extremely confined. It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred. What must be established is that no decision maker, acting reasonably, could have made that decision. In applying that standard, a court must proceed with caution, lest it exceed its supervisory role, by reviewing the decision on the merits. Whilst this court is often charged with the responsibility of reviewing a planning authority s decision on the merits in the context of an appeal, that is not its role in proceedings of this kind. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation (supra) itself, it was said that to prove a case of that kind would require something overwhelming. [21] In a more recent decision of the High Court, 15 the Court makes it clear that the concept of unreasonableness is not rigidly defined. [22] The decision in Li was considered by the Planning and Environment Court in Birkdale Flowers v Redland City Council (2016) QPELR 231. In that decision his Honour Judge Jones again emphasised that the appropriate test for this Wednesbury type 13 Section 99BRCJ(1) of the Act. 14 (2010) QPELR 23 at [112]. 15 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

10 10 argument is whether the decision reached at first instance was an irrational one or one devoid of plausible justification. 16 [23] In this case there are a number of items that indicate that the position of Unity Water in this matter is not one that is irrational or devoid of plausible justification. These matters include: (a) the appellant has only ever paid infrastructure charges for one dwelling on the land. This is in the sense that a previous owner made that payment. It is not irrational for Unity Water to now seek to have the appellant pay infrastructure charges for an additional 19 multiple unit dwellings that the appellant is developing on the land; (b) the internal review decision notice produced by Unity Water is of high quality, considers relevant matters, does not consider irrelevant matters and is appropriately justified on its terms; (c) Unity Water has the authority to levy the infrastructure charges notice; (d) the demand of the proposed development is in addition to the demand that existing development imposes on Unity Water s network; (e) calculation of the amount of infrastructure charges imposed is correct; (f) the breakdown of the infrastructure charges for each network is correct and not challenged by the appellant; and (h) the mathematics of the calculation is correct. It would follow that the appeal must fail at the first hurdle. [24] Because this was the focus during the oral hearing it is necessary to consider the construction point raised by the appellant in relation to s 99BRCJ. Section 99BRCJ(1) makes it clear a levy charge is to be for additional demand placed upon trunk infrastructure that will be generated by the connection, the subject of the water approval. (my emphasis) 16 Relying on Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 at [36]- [37].

11 11 [25] The focus of Mr Davis argument ultimately was on (2)(b)(iii). His argument is that because at the time Unity Water issued its infrastructure charges notice, no further development permit was required for his client s development of a 20 unit multi dwelling building, demand generated, must not be included in the levied charge. Bearing in mind the principle of statutory construction that legislation must be construed as a whole and on the prima facie basis that its provisions are intended to give effect to harmonious goals, 17 to adopt such an interpretation would be apt to read words into the provision that are not there. 18 Firstly, the levied charge may only be for additional demand that will be generated by the connection the subject of the water approval. Clearly the reference to premises has to mean the land as it existed prior to the development permit being issued to the applicant. Even if that was not correct, as a matter of proper construction other development in ss (2)(b)(iii) clearly refers to the applicant s development permits set out at [17] above which were further development permits required under the SPA in order for the development to be carried out. [26] The position of the appellant appears to be that the calculation of demand in this case offends that sub-section, because the subject development did not require a material change of use approval, because it was self-assessable pursuant to Maroochy Plan I agree with Unity Water that the difficulty in the argument is that that is not the end of the matter because of the approvals for operational building works referred to in Exhibit 1 19 and referred to above. Clearly the development of the land for 20 units required further development permits to be obtained. That one of those permits was not a material change of use approval is beside the point. To confine without the need for a further development permit under (the SPA), to only the development permit for a material change of use to construct 20 units would be to offend the principles of statutory construction referred to above. In any event, clearly on the basis of the facts here, both the exceptions contained in s 99BRCJ(3)(A)(a) and (b) are met. The appeal is without merit and is dismissed. [27] I will hear the parties in relation to costs. 17 Ibid Project Blue Sky Inc para [70]. 18 Thompson v Goold & Company [1910] AC 409 at Exhibit 1, Tab 16, 19, and 22.