The case of Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2024] QPEC 30 concerned an appeal by Homeland Property Developments Pty Ltd (Applicant) to the Planning and Environment Court of Queensland (Court) against 34 conditions (Appealed Conditions) and two advisory notes imposed by the Whitsunday Regional Council (Council) on a suite of development approvals facilitating the development of land south of Bowen, the Whitsundays (Subject Site), with a staged master planned community intended for residential, retail, and commercial uses (Whitsunday Paradise).

The Court had to determine whether the Negotiated Decision Notice (NDN) containing the Appealed Conditions, which pertain to sewerage and water supply infrastructure (at [2]) and were imposed under section 145 of the Planning Act 2016 (Qld) (Planning Act), should be amended so that each Appealed Condition be imposed as a "necessary infrastructure condition" under section 128 of the Planning Act (see [3] and [60]).

The Court found, adverse to the Applicant, that section 128 of the Planning Act could not be exercised to impose the Appealed Conditions and later dismissed the appeal against the Appealed Conditions in so far as it sought to have the Appealed Conditions identified as necessary trunk infrastructure conditions (see [62], [92], and [114] to [115] and the Judgment of the Court dated 31 July 2024).

On 15 June 2018, the Applicant submitted a properly made impact assessable development application seeking a suite of development approvals and variations to version 3.5 of the Whitsunday Regional Council Planning Scheme 2017 (Planning Scheme V3.5) for development of the Whitsunday Paradise (Development Application) (at [6]). Planning Scheme V3.5 did not include a "LGIP (local government infrastructure plan)" (LGIP) as defined in schedule 2 of the Planning Act. However, the Council did have an adopted infrastructure charges resolution (at [7]).

On 29 June 2018, the Council's planning scheme was amended to include a LGIP, being part 4 and schedule 3 of version 3.6 of the Whitsunday Regional Council Planning Scheme 2017 (Planning Scheme V3.6) (at [8]). The LGIP included the Subject Site in the Priority Infrastructure Area "…which is prioritised for the provision of trunk infrastructure to service existing and assumed future development growth up to 2031" (at [8]). Amendments to the LGIP to remove an item of trunk infrastructure took effect on 30 November 2020, and the amended LGIP did not identify future trunk infrastructure for water supply and sewerage works servicing the Subject Site (see [9] and [10]).

On 28 October 2020, the Council approved the Development Application subject to conditions requiring the delivery of water and sewerage infrastructure at the Applicant's expense (Development Approval), and issued a decision notice accompanied by 15 infrastructure charges notices (see [11] and [13]). On 11 March 2021, the Council granted the Applicant the NDN but refused the Applicant's request for negotiated infrastructure charges notices (at [14]).

Advisory Notes 17.1 of Part A (Preliminary Approval) and 14.6 of Part B (Reconfiguring a Lot) of the NDN (Advisory Notes) state the following (see [16] and Annexure A) [our emphasis]:

"Development infrastructure required to be provided in implementing this development approval is non-trunk development infrastructure as described under section 145 of the Planning Act 2016."

The Court accepted that the effect of the NDN "…is to require [the Applicant] to…(1) fully fund and deliver water supply infrastructure…that services the proposed development and existing development to the north…; and (2) fully fund and deliver sewerage infrastructure that services the proposed development and existing development to the north…" (at [17]).

The Applicant's reliance on section 128 of the Planning Act was intended, according to the Court, to secure it future credits and offsets for the development infrastructure required to be delivered under the Appealed Conditions (at [101]).

Under section 45(5)(a) and section 45(7) of the Planning Act, the Court was required to assess the Development Application against the assessment benchmarks in the Council's planning scheme in effect when the Development Application was properly made, being Planning Scheme V3.5, which did not include a LGIP (see [26] to [30]). Section 45(8) permits the Court to give appropriate weight to an amended statutory instrument, including a planning scheme (at [31]).

Section 60(3)(b) of the Planning Act permits the Court to approve an application subject to "development conditions" (see [35] to [38]). However, section 66(1)(c)(i) of the Planning Act prohibits the imposition of a "development condition" that "…requires a monetary payment for the establishment, operating or maintenance costs of, works to be carried out for, or land to be given for…infrastructure" (at [42]).

An exception to this prohibition applies where a condition is imposed under chapter 4, part 2 of the Planning Act (at [48]). Pursuant to section 111, chapter 4, part 2 "…applies to a local government only if the local government's planning scheme includes a LGIP" (at [49]) [our emphasis].

Section 145, in chapter 4, part 2 of the Planning Act, was relied upon by the Council to impose the Appealed Conditions, and to include the Advisory Notes (at [51]). It permits a "development condition" to be imposed about "non-trunk infrastructure" provided that it states the infrastructure to be provided and when the infrastructure must be provided (at [52]).

Section 128, in chapter 4, part 2 of the Planning Act, relied upon by the Applicant, provides the power to impose a "necessary infrastructure condition" where section 127(1) is satisfied (see [53] to [54]). Section 127(1) states the following (at [54]):

"(1)    This subdivision applies if—

(a)    trunk infrastructure—

(i)    has not been provided; or

(ii)    has been provided but is not adequate; and

(b)    the trunk infrastructure is or will be located on—

(i)    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

(ii)    other premises, but is necessary to service the subject premises."

Section 304 of the Planning Act, which applies in relation to a local government's planning scheme that did not include a LGIP before 4 July 2014 and does not include a LGIP on the commencement of the planning scheme, also enlivens the power to impose a "necessary infrastructure condition" (at [56]). Section 304(4)(c) empowers a local government to "impose conditions about trunk infrastructure under section 128 or 130" (at [57]). However, section 304(5)(a)(i) provides that section 304 relevantly ceases to have effect the day that the local government amends the planning scheme to include a LGIP (at [58]).

The Court considered whether it could exercise the conditions power in section 128 of the Planning Act directly or through section 304 of the Planning Act to impose the Appealed Conditions (at [62]).

The Court observed that to engage section 128 of the Planning Act the following pre-conditions must be satisfied: "…(1) the assessment manager, who is a local government, must seek to impose a condition otherwise prohibited by s 66(1)(c)(i) of the [Planning] Act; (2) s 111 or ss 304(1) and (3) of the [Planning] Act must be satisfied; and (3) s 127(1) of the [Planning] Act must also be satisfied" (at [63]).

The Court was not satisfied, as was assumed by both parties, that all of the Appealed Conditions satisfied the first pre-condition (at [64]). The Court observed that some of the Appealed Conditions do not require a monetary payment, works, or land for infrastructure, and do not state when the required infrastructure must be provided (at [111]).

In respect of the second pre-condition, the Court first considered whether the "planning scheme" referred to in section 111 of the Planning Act is "…the planning scheme in force at the time the development application was properly made…" as argued by the Council, or "…the planning scheme in force at the time the power conferred by s 128 is exercised…" as argued by the Applicant (at [72]).

Relevantly, Planning Scheme V3.5, being the planning scheme in force at the time the Development Application was properly made, did not include a LGIP, whereas Planning Scheme V3.6, being the planning scheme in force at the time the appeal was heard included a LGIP (see [70] and [71]).

The Court held that, for the purposes of section 111 of the Planning Act, the "planning scheme" is the planning scheme in force at the time the power conferred by chapter 4, part 2 is exercised, that is, Planning Scheme V3.6, for the following reasons (see [73] to [78]):

• Planning Scheme V3.6 satisfies the matters stated in section 4(c) of the Planning Act, as required by section 111 of the Planning Act, and includes a LGIP as defined in the Planning Act.

• Section 111 of the Planning Act does not include a temporal element qualifying the phrase "planning scheme", which observation is explained by the context provided by section 110 of the Planning Act and the content of section 112 to section 145 of the Planning Act.

• The emphasis placed by the parties on the context provided by section 45(6) and section 45(8) of the Planning Act were of only limited relevance.

• For section 111 of the Planning Act to be construed in the manner asserted by the Council it would require the insertion of words to the effect of "in force at the time a development application was properly made" or a meaning to be given to "planning scheme" for section 111 which is different to that in schedule 2 of the Planning Act. These insertions are not supported by section 110(1) and section 45(6) to section 45(8) of the Planning Act, and section 4 and section 32AA of the Acts Interpretation Act 1954 (Qld).

Accordingly, the Court found that section 111 of the Planning Act was satisfied and that chapter 4, part 2 applied (at [79]).

Applying the same meaning of "planning scheme", the Court held that section 304 of the Planning Act was not satisfied on the basis that it ceased to apply, pursuant to the operation of section 304(5)(a)(i), when the Council amended Planning Scheme V3.5 to include a LGIP (at [82]).

The Court observed that section 127(1) of the Planning Act is engaged and that section 128 would be available for the imposition of a necessary infrastructure condition where the Applicant could identify "trunk infrastructure", as defined in the Planning Act (at [44]), that has not been provided, or inadequately provided, on the Subject Site or other premises necessary to service the Subject Site (at [87]).

The Court was not satisfied that the Applicant had identified development infrastructure that was either in the LGIP in force at the time of the hearing, that is trunk infrastructure by reason of a conversion application, or is trunk infrastructure by reason of a condition of approval imposed under section 128(3) of the Planning Act (see [88] to [90]).

Having found that the Applicant failed to identify "trunk infrastructure" as defined by the Planning Act, the Court held that section 128 of the Planning Act was not engaged and therefore was not available to condition the Development Approval sought, and obtained, by the Applicant (at [90]).

The Court further held that, even if section 128 of the Planning Act was available to impose the Appealed Conditions, it would not, in the exercise of its discretion, do so because it was not prepared to afford significant weight to amendments made to a planning scheme after the Development Application was properly made (see [93] to [107]).

The Court held that any final approval granted by the Court should effect amendments to several of the Appealed Conditions in order to ensure compliance with section 145(a) of the Planning Act (see [108] to [111]).

The Court stated that the Advisory Notes are "unhelpful" because "[t]hey do not speak to any specific condition…" (at [112]). The Court held that they should be deleted from the Development Approval and that each Appealed Condition imposed under section 145 "…will need to be identified as such on a condition-by-condition basis to avoid ambiguity" (at [112]).

The Court found that section 128 of the Planning Act could not be exercised to impose the Appealed Conditions (see [92] and [114] to [115]).