In brief

The case of Jeteld Pty Ltd v Toowoomba Regional Council [2024] QPEC 36 concerned an application in pending proceeding to the Planning and Environment Court of Queensland (Court) brought by developer Jeteld Pty Ltd (Applicant) for an extension of time in relation to the late filing of the Applicant's Notice of Appeal against an infrastructure charges notice (ICN) given to it by the Toowoomba Regional Council (Council).

On 18 June 2024, the Applicant filed a Notice of Appeal against the ICN pursuant to section 229 and section 230 and Item 4 of Table 1 of schedule 1 of the Planning Act 2016 (Qld) (Planning Act), which was four and a half months after the appeal period had ended (at [46]). The Applicant therefore applied for an extension of time for the filing of its Notice of Appeal pursuant to section 32(2) of the Planning and Environment Court Act 2016 (Qld).

In determining whether there were sufficient grounds to grant the extension of time, the Court considered the following key issues:

1. Is there an adequate explanation for the Applicant's delay?

2. Is there any prejudice to the Council because of the delay?

3. Is there a public interest consideration that favours the extension?

4. Does the appeal have merit?

5. Do considerations of fairness support the grant of extension?

The Court found that there were sufficient grounds to allow an extension of time for the Applicant to file its Notice of Appeal.

On 14 December 2023, the Council approved a development application made by the Applicant for a development permit for reconfiguring a lot (6 lots into 35 lots), subject to various conditions relating to the dedication of land and carrying out of works for infrastructure (Development Approval) (at [15]).

Conditions 69 and 79 of the Development Approval were purportedly imposed by the Council as non-trunk infrastructure conditions under section 145 of the Planning Act. The Applicant contended that the Council identified the incorrect source of power under the Planning Act to impose those conditions and that those conditions and condition 70 related to trunk infrastructure and could only be imposed as necessary infrastructure conditions under section 128 of the Planning Act.

As a result of this, the Applicant submitted that the ICN issued by the Council in respect of the Development Approval was erroneous (at [24]).

The Applicant's evidence indicated that, after receiving the ICN, the Applicant engaged consultant engineers to consider the relevant conditions, sought legal advice when the Council did not accept the Applicant's position, and following receipt of that legal advice, instituted the subject appeal (at [51]).

The Council was critical of the Applicant's material in relation to this issue but did not challenge its correctness (at [47]). The Council had also participated in various discussions with the Applicant in circumstances where it had no statutory power to change the ICN,  which contributed to the delay (at [53]).

There was no suggestion that the Applicant "…simply sat on its hands or otherwise failed to alert the Council…" of the alleged errors in the ICN (at [48]).

The Court was satisfied that the Applicant had provided an adequate explanation for the delay (at [54]). 

In this case, the levied charge in the ICN becomes payable only after the Council approves a plan for the reconfiguration of the lots that, under the Land Title Act 1994 (Qld), is required to be given to the Council for approval (see [55] and section 122(1)(a) of the Planning Act). This had not yet occurred (at [55]).

The Court found that no prejudice had been caused to the Council or anyone else as a result of the Applicant's delay in filing its Notice of Appeal (at [56]).

The Applicant submitted that the Development Approval and the ICN related to stage 5 of a master planned community and therefore had relevance for subsequent stages of the Applicant's development. The Applicant argued that, as a result, there was "…a public interest in having the issue determined at the earliest opportunity…" (at [57]).

Although the Court acknowledged this, the Court went on to state that it would not attribute it any meaningful weight in the exercise of the Court's discretion, as relevant rights of appeal will nonetheless arise in relation to the future stages if the same contentions were to occur (at [58]).

The Council argued that the Applicant's appeal was fundamentally flawed as the Notice of Appeal did not trigger a right of appeal under section 229 and Item 4 of Table 1 in schedule 1 of the Planning Act, or that the appeal otherwise had no merit (at [25]).

The Council submitted that any appeal against the ICN is limited to an error in respect of an offset or refund under the Planning Act and that "…the appeal is the wrong vessel by which to resolve the dispute raised by the Notice of Appeal" (at [31]).

The Applicant submitted that the appeal "…raises real arguments about the proper characterisation of infrastructure works and the entitlement for a credit or offset in relation to such works" (at [60]).

The Court found it sufficient that the Applicant had "…an arguable case that its appeal is within the jurisdiction of the Court…", and after considering the Council's arguments which involved the making of various assumptions, the Court concluded that there was no assumption that was "…so patently correct so as to allow [the Court] to conclude that the subject appeal is without merit" (see [33] and [42]).

The Court was not persuaded that the appeal is without merit and concluded that the Applicant has an arguable case (see [59] to [61]).

The Applicant submitted that the resolution of the dispute regarding the ICN would benefit both parties and assist them and others in respect of future developments where similar questions may arise (at [63]).

The Applicant also argued that the issue should be litigated as the Council may otherwise "…potentially secure a windfall gain to which it is not legally entitled" by simultaneously receiving payment for the ICN and requiring the developer to pay the cost of constructing the infrastructure (at [64]).

The Court did not place meaningful weight on the Applicant's first argument as to fairness but was persuaded that the Applicant's second argument supported the granting of the extension (at [65]).

The Court found that there were sufficient grounds for granting an extension of time to the appeal period in respect of the ICN.