Parties Dispute Council's Duty to Issue "Infrastructure Charges Notices"

Sunland Group Limited v Gold Coast City Council [2021] HCA 35 (10 November 2021)

The second appellant purchased an undeveloped parcel of land in 2015.  The preliminary approval, granted in 2007 for development project pursuant to Integrated Planning Act 1997 (Qld), contained "conditions" regarding payment of infrastructure contributions by developers to respondent Council.  The development permits were granted in 2016. The parties dispute whether or not the new regime for the payment of infrastructure contributions applied following the issue of the development permits in 2016. 

Facts:

GORDON J. Sunland Developments No 22 Pty Ltd ("Sunland 22"), the second appellant, is part of a property development group of companies controlled by the first appellant, Sunland Group Limited.  On 29 May 2015, Sunland 22 completed a $60 million purchase of a large parcel of undeveloped land located at Mermaid Beach on the Gold Coast ("the Land").  The Land is within the local government area of the respondent, the Gold Coast City Council ("the Council").  When Sunland 22 purchased the Land it was subject to a preliminary approval granted on 3 May 2007 by the Planning and Environment Court of Queensland under s 3.1.6 of the Integrated Planning Act 1997 (Qld) ("the IPA"), which approved a multi‑stage residential development called "Lakeview at Mermaid" ("the Preliminary Approval").

The Preliminary Approval had an initial term of four years but has since been extended by the Council.  It remains in effect until 2023.  The Preliminary Approval approved "the development application ... subject to the conditions of approval as contained in Schedule A".  Section C of Sch A set out the conditions attached to the Preliminary Approval.  The planning scheme policies referred to in Conditions 13 to 16 ("the Planning Scheme Policies") were made by the Council under a transitional regime set out in the IPA and had statutory effect pursuant to s 6.1.20 of the IPA. 

In 1997, the IPA introduced a new regime to permit local governments to levy infrastructure charges by notice to a developer.  However, by s 6.1.31(2)(c), the IPA also preserved, as an interim measure, a capacity for a council to impose a condition on any development approval requiring a developer to pay various contributions for infrastructure.  The new regime for levying infrastructure charges by notice, rather than as a condition on a development approval, was maintained by both the SPA and the Planning Act.  It submitted that it is obliged by the Planning Act to levy infrastructure charges in accordance with the new regime. 

The appellants argued that Conditions 13 to 16 should be understood to be conditions because they were described as "conditions" and a mere notification of something to be done in the future is not a condition authorised by s 6.1.31(2)(c) and so had no statutory foundation.  Hence, the Council must be taken to have entered upon an exercise of the power under s 6.1.31(2)(c).  

The primary judge declared that the Council had the power to collect infrastructure contributions calculated under and in accordance with the Preliminary Approval should be dismissed with costs.  The Sunland appeal such decision of the Court of Appeal of the Supreme Court of Queensland. 

Issue:

Whether or not the new regime for the payment of infrastructure contributions applied following the issue of the development permits in 2016. 

Applicable law:

Integrated Planning Act 1997 (Qld) ("the IPA") - contemplated that a condition requiring a contribution to infrastructure may be imposed in a preliminary approval as a species of development approval.  

Ashtrail Pty Ltd v Gold Coast City Council [2020] QCA 82; (2020) 4 QR 192 - an example of a condition of the kind in question made in exercise of the power given under s 6.1.31(2)(c). 

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] - provides that "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". 

Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 at 373 [149], 471 [452], 487 [507] - provides that the duty of the Council to impose conditions requiring infrastructure contributions is a question of statutory construction remains constant, regardless of whether the words of a statutory provision are uncertain or unclear. 

Kennedy v Lowe; Ex parte Lowe [1985] 1 Qd R 48 at 49 - provides that "when inconsistencies or ambiguities appear they are dealt with by [c]ourts according to the established principles of statutory interpretation".

Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59 at 71 - provides that there is no general principle that uncertainty in an instrument made pursuant to power given by an Act spells legal invalidity. 

Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237 - provides that the instrument must, however, "be shown to be within the powers conferred by the statute" under which it purports to be made. 

Ex parte Victoria Legal Aid [1998] HCA 44 - the question is whether the provision under which Conditions 13 to 16 were purportedly imposed – s 6.1.31(2)(c) of the IPA – is "to be read as 'requiring certainty of expression as a condition of [its] valid exercise' so that 'in the end, the question comes back to ultra vires'" 

Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCATrans 367 - where Hodgson JA said that a development consent should be construed, like a contract, to preserve its validity and to avoid uncertainty. 

Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 - provides that "there must be sufficient specification" to enable such a person to comply with their obligations in order for a condition to be validly imposed under s 6.1.31(2)(c) of the IPA." 

Gold Coast City Council v Sunland Group Ltd [2020] QPELR 662 - decided that the appellants were obliged to pay infrastructure charges in accordance with the Planning Act. 

Hall & Co Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240 at 245 - where the Court was urged not to scrutinise Conditions 13 to 16 "in the same way as the words used by a parliamentary [draftsperson]". 

Gough and Gilmore Holdings Pty Ltd v Council of the City of Holroyd [2002] NSWLEC 108 - provides that the Court cannot "add that which has been omitted". 

Analysis:

The argument that conditions should be construed to give them practical effect falls into the same category. Both arguments fail to have regard to what s 6.1.31(2)(c) requires if the power it gives is exercised. Further, the appellants' argument fails to appreciate that no specific power was necessary to include in a preliminary approval a notice alerting the developer to the Council's future intentions. Conditions 13 to 16 did not require a contribution towards the cost of supplying infrastructure. It is unnecessary to consider the operation of the transitional provisions of the legislation that followed the IPA.

Conditions 13 to 16 of the Preliminary Approval that was granted in 2007 by the Council to the second appellant's predecessors in title did not purport to be, and were not, conditions of the kind authorised by s 6.1.31(2)(c) of the IPA.  They expressly gave notice of the Council's then intention to require contributions to infrastructure "at the time application is made for a Development Permit".  The power conferred by s 6.1.31(2)(c) of the IPA was simply not exercised.  If the conditions in the Preliminary Approval about contributions towards the cost of supplying infrastructure were purportedly imposed under s 6.1.31(2)(c) of the IPA, the conditions were not an effective exercise of that power; objective criteria or standards fixing such contributions were not set out in the Preliminary Approval.  

The Council filed a Notice of Contention which assumed , in the alternative, that Conditions 13 to 16 did create valid liabilities pursuant to s 6.1.31(2)(c) of the IPA, contending that the Council's obligation to levy infrastructure charges under the Planning Act prevailed over any such liabilities. 

Conclusion:

The appeal should be dismissed with costs.  The assumption upon which the Notice of Contention depended is incorrect.  Hence, it is unnecessary to consider it any further.