Como Glasshouse Pty Ltd v Noosa Council [2017] QPEC 75 (2018) QPELR 321

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Como Glasshouse Pty Ltd v Noosa Council [2017] QPEC 75 PARTIES: COMO GLASSHOUSE PTY LTD (ACN 124 616 459) (Appellant) v NOOSA COUNCIL (Respondent) FILE NO/S: 3 of 2017 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court at Maroochydore DELIVERED ON: 6 December 2017 DELIVERED AT: Planning and Environment Court at Maroochydore HEARING DATE: 23, 24 & 25 October 2017 JUDGE: Robertson DCJ ORDER: Appeal allowed in part. Appeal is adjourned to enable “demand” associated with use of sheds and dwelling house associated with the previous lawful use to be calculated. Liberty to apply, by giving 3 days notice in writing. CATCHWORDS: PLANNING & ENVIRONMENT LAW – Infrastructure Charges Notice; where Council passed an Infrastructure Charges Resolution whereby it adopted charges subject to a State Planning Regulatory Provision (Adopted Charges) pursuant to a Scheme mandated by the now repealed SPA; whether Council erred in calculating the amount of its Notice; whether the legislative scheme permits of individual additional demand based assessments. APPEALS: where appeal rights against a Notice are limited, whether Wednesbury unreasonableness has been demonstrated, whether Council erred in the working out of additional demand by not taking into account GFA of various buildings associated with previous lawful use of the land. Legislation Planning Act 2016 s 311(2)(a) -- 1 of 12 -- 2 Sustainable Planning Act 2009 ss 20, 478, 493(4), 495(1)(a), 629, 630, 631, 635, 636, Cases Associated Provincial Picture Houses Limited v Wednesbury [1948] 1 KB 223 Birkdale Flowers v Redlands City Council [2016] QPELR 231 Bon Accord v Brisbane City Council (2010) QPELR 23 Clark & Ors v Cook Shire Council [2007] QCA 139 Ferreyra v Brisbane City Council (2016) QPELR 334 Jones v Dunkel (1959) 101 CLR 298 Minister for Immigration and Border Protection v Stretton (2016) FCAFC 11 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165 Project Blue Sky Inc v Australian Broadcasting Authority (1992) 174 CLR 178 COUNSEL: KW Wylie of counsel for the appellant CL Hughes QC and D Jones of counsel for the respondent SOLICITORS: P&E Law for the appellant Wakefield Sykes for the respondent Development history [1] The appellant is the owner of land at 305 Lake McDonald Drive described as Lot 1 on SP 108094 with an area of approximately 33.4 ha (“the land”). The land is favoured by a development permit for a Material Change of Use for Cultivation – Type 2 Intensive for Crops (Greenhouse), High Impact Rural and the appellant had, prior to the issue of the permit, constructed a greenhouse of approximately 144m x 140m on the land with an area of 20,160m² GFA and a 475m² multi-purpose shed, making a total of 20,635m² GFA. There are other buildings on the land to which reference will be made later in these reasons. [2] The appellant purchased the land in December 2013. The land had been used previously for many years, and prior to the introduction of the 1985 Planning -- 2 of 12 -- 3 Scheme, as a turf farm, which use is now included in the same use description as greenhouse in Council’s Planning Scheme, however no development permit had ever been applied for and/or granted for that use. It is not in dispute that, relevantly for the purposes of the issues on this appeal, the use of the land as a turf farm was (at least) “a previous use that is no longer taking place on the premises (and was) lawful at the time it was carried out.”1 [3] The appellant was not aware of the need to seek a permit when it constructed the greenhouse and associated multi-purpose shed. When Council became aware of its existence, it required the appellant to make an application to regularise or cease the use of the greenhouse. [4] On 4 June 2015 the appellant applied for a development permit, supported by a town planning consultant’s report.2 Ms Gorton gave expert town planning evidence at the hearing on behalf of the appellant. [5] Council issued an Information Request3 on 25 June 2014 to which Ms Gorton responded on 2 July 2015.4 Council approved the application with conditions on 26 November 2015,5 and the appellant appealed against a number of conditions,6 which appeal was ultimately compromised, and judgment was given by this court on 18 November 2016,7 which includes the approved plan of development.8 The appeal [6] On 5 December 2016, Council gave the appellant an Infrastructure Charges Notice (“the Notice”) under the SPA and the Local Government Act 20099 for $250,096.00. On 11 January 2017,10 the appellant appealed against the Notice pursuant to s 478 of the SPA on grounds that: (a) the charge in the Notice is so unreasonable that no reasonable relevant local government could have imposed it; (b) the decision involved an error relating to the working out, for s 636 of additional demand. The nature of the appeal [7] As the appeal was filed on 11 January 2017, the SPA was still in force.11 [8] Section 478 of the SPA is in these terms: 1 Section 636(2)(b) of the Sustainable Planning Act 2009 (“the SPA”). 2 Exhibit 3, Town Planning Report of Nadine Gorton from martoo consulting Pty Ltd pp 24-36. 3 Exhibit 3, pp 37-42. 4 Ibid, pp 43-49. 5 Ibid, pp 50-60. 6 Ibid pp 61-69. 7 Ibid pp 70-75. 8 Ibid p 70. 9 Exhibit 6, Tab 2. 10 Ibid, Tab 3. 11 Section 311(2)(a) Planning Act 2016. -- 3 of 12 -- 4 “478 Appeals about infrastructure charges notices (1) The recipient of an infrastructure charges notice may appeal to the court about the decision to give the notice. (2) However, the appeal may be made only on 1 or more of the following grounds- (a) the charge in the notice is so unreasonable that no reasonable relevant local government could have imposed it; (b) the decision involved an error relating to- … (ii) the working out, for s 636, of additional demand; or …” [9] Clearly the appellant’s grounds of appeal focus on s 478(2)(a) and (b)(ii). [10] Council in its outline of submissions prepared prior to the hearing, clearly anticipated that the appellant’s approach would be that this court is empowered to undertake a merits review, i.e. “by way of rehearing anew”,12 and submitted that “the appellant’s approach appears to confuse the nature of this appeal with the nature of a merits review of a decision to impose a condition on a development application approval”.13 [11] Consistently with the majority judgment in Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville,14 the appellant accepts that the appeal rights under s 478(1) of the SPA are not “at large”, and that it is only if the court determines that either one or both of the grounds of appeal are made out can the court then consider matters on a de novo basis pursuant to s 495(1)(a) of the SPA. What the Council describes as the threshold issue, and the appellant describes as the “first” issue, requires the court to have regard to the material that was before the decision maker at the time Council made its decision to issue the Notice. Relevantly, that material is set out in the MCU Development Application, accompanying planning report, Information Request, Response thereto, Council’s decision, notice of appeal and judgment which are all annexed to Ms Gorton’s town planning report dated 18 October 2017 provided to this court.15 Attachment G to that report16 was disclosed by Council and is a Microsoft Excel ICN Worksheet prepared by Council officers dated 2 December 2016. It can also be inferred that the decision maker had before him or her the Planning and Organisation Committee Meeting Agenda dated 10 November 201517 which sets out 12 Section 495(1) of the SPA; and see Council’s outline para 24. 13 Council’s outline para 34. 14 [2014] QCA 165 per Douglas J at [35]. 15 Exhibit 3 Annexures A-F. 16 Ibid pp 76-81. 17 Ibid 117-133. -- 4 of 12 -- 5 the decision notice and the conditions of approval that led to the appeal and resolution by judgment of this court. [12] Before turning to consider the “unreasonableness” and “working out” issues, it is necessary to set out the legislative framework pursuant to which Council issued the Notice. This is important as Council’s position is that it has strictly complied with this framework, which it describes as orthodox, in issuing the Notice, and “this approach also obviates the need for repeated and ad hoc and uncertain assessments to be undertaken for the multitude of uses that could occur… The SPRP and the Infrastructure Charges Resolution do not provide for such performance-based assessment to be undertaken.”18 Council’s Power to Levy Infrastructure Charges (a) Introduction [13] It can be accepted that the present legislative structure from which local authorities derive their power to levy infrastructure charges is designed to “establish a long- term local infrastructure planning and charging framework that is certain, consistent and transparent and which supports local authority sustainability and development feasibility in Queensland.”19 In this case, the development is not connected to water or storm water trunk infrastructure and the Notice on its face levies 85 per cent of the charge for Transport “Trunk” Infrastructure and 15 per cent for Public Park and Land for Community Facilities. Setting aside the threshold issue, and by reference to the evidence put on by the appellant,20 and the “demand analysis” undertaken by the appellant,21 the quantum of the charge levied seems high, but Council’s position (in accordance with its “orthodox” approach) is that the legislative scheme is designed to strike “a balance between local authority sustainability and providing confidence to the development industry when planning projects”.22 [14] As Council submits, that may in individual cases produce “winners and losers”.23 Council submits that the intent of the legislative scheme for the levying of Infrastructure Charges is clear. “Any Infrastructure Charges regime will involve at least some averaging… for such a regime to function, the resources of local governments cannot be stretched to deal with an ad hoc assessment of each and every application on its individual merits – which assessment would inevitably involve issues of judgment, about which reasonable minds may differ”.24 (b) The legislative framework 18 Exhibit 7, report of town planner Shane Adamson para 30. 19 Explanatory Notes to the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Bill 2014 p 1. 20 Affidavit of Dudley McMullin, Exhibit 5 and T2-2-2-15. 21 Exhibit 4 (Traffic); Exhibit 3 (Town Planning). 22 Explanatory Notes ibid p 1. 23 Clark & Ors v Cook Shire Council [2007] QCA 139 per Keane JA (as his Honour then was) at [32]. 24 See footnote 2, Council outline p 8. -- 5 of 12 -- 6 [15] Under s 20 of the now repealed SPA, the Minister may make a State planning regulatory provision for a “relevant area” (which includes local governments) to provide for matters mentioned in s 629 of the SPA. Section 629 is contained in Chapter 8 (Infrastructure) Division 1 (Charges for Trunk Infrastructure) Subdivision 1 (Power to adopt charges) of the SPA. On 1 July 2012, the Department of State Development, Infrastructure and Planning issued State Planning Regulatory Provision (Adopted Charges) (“Charges SPRP”). The Charges SPRP limits the maximum charge that local governments may levy for trunk infrastructure to $20 per m² GFA.25 Sections 630 and 631 of the SPA give power to local governments to adopt charges for providing trunk infrastructure for development. The effect of these provisions is that Council may pass an Infrastructure Charges Resolution (“Charges Resolution”) by which it adopts charges (“Adopted Charges”) for developments such as this one, subject to the Adopted Charges being not more than $20 per m² GFA. [16] That is what Council did on 28 October 2016 when it passed the Noosa Shire Council Charges Resolution (No. 2) 2014 (Amendment 1) (“Noosa Charges Resolution”).26 The adopted charge rate to be charged by Council pursuant to the Noosa Charges Resolution for a development such as the present is $12 per m² GFA.27 [17] Obviously, the making of such a resolution does not in itself levy an infrastructure charge. Instead, charges are levied pursuant to s 635 and 636 of the SPA. [18] These provisions relevantly provide: “635 When charge may be levied and recovered (1) This section applies if – (a) a development approval has been given; and (b) an adopted charge applies for providing the trunk infrastructure for the development; and … (2) The local government must give the applicant an infrastructure charges notice. … (6) If the infrastructure notice levies on the applicant an amount for a charge worked out by applying the adopted charge (a levy charge), the following apply for the levy charge – (a) its amount is subject to s 636 and 649; (b) it is payable by the applicant; (c) it attaches to the land; (d) it only becomes payable as provided for under subdivision 4; (e) it is subject to any agreement under s 639(1). 25 Exhibit 6, Tab 6. 26 Ibid, Tab 7. 27 Ibid, Tab 7, Table 10.3 Cultivation Type 2 Intensive Column 7. -- 6 of 12 -- 7 636 Limitation of levied charge (1) A levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development. (2) In working out additional demand, the demand on trunk infrastructure generated by the following must not be included— (a) an existing use on the premises if the use is lawful and already taking place on the premises; (b) a previous use that is no longer taking place on the premises if the use was lawful at the time it was carried out; …” The issues in dispute [19] The appellant has raised many issues including the lawfulness of parts of the Noosa Charges Resolution,28 however the real issue is whether or not the appellant (on the basis of the “evidence” before the decision-maker which led to the Notice) has established either or both of its grounds of appeal. In that sense, having regard to s 636(1) and (2)(b) of the SPA, the decision-maker was required to assess “additional demand placed upon trunk infrastructure that will be generated by the development,” and in “working out additional demand” the demand generated by “a previous use that is no longer taking place on the premises if the use was lawful at the time it was carried out”, “must not be included.” The “evidence” before the decision-maker [20] The evidence or common material before the decision-maker relevant to GFA of the greenhouse development and the GFA associated with the previous lawful use of the land as a turf farm, is contained in the various annexures to Ms Gorton’s trial report referred to above. It was this material that necessarily informed the decision- making process. Relevantly that material disclosed (at a time when the present use was underway albeit without a permit): a) The site “contains an existing residential dwelling located close to the road frontage”;29 b) Figure 1 (an unclear aerial photograph) shows what appears to be a green roof in the area described in a) above;30 c) Manager onsite in existing dwelling;31 d) Packing shed used to store up to 20 tonnes of fertiliser;32 e) Existing greenhouse (2 ha);33 28 In particular 8.4 to which reference will be made later. 29 Exhibit 3, p 24. 30 Ibid, p 25. 31 Ibid, p 28. 32 Ibid, p 28. 33 Ibid, p 34. -- 7 of 12 -- 8 f) The aerial photograph attached to Ms Gorton’s planning report with the original DA shows the existing 15m x 30m packing shed and the outline of the greenhouse at 144m x 140m, and two sheds (on either side of the word “staff”), and a much clearer aerial photograph which depicts a house at the end of what was then to be the proposed access from the existing driveway onto Lake McDonald Drive.34 [21] It must be kept in mind that at this time three greenhouses were proposed, and access was to be via the existing driveway. This material was then part of the common material and the decision-maker would necessarily have had to consider the terms of the ultimate actual approval and the approved plan. [22] By the time of the Information Request I (25.6.2014), the appellant was proposing access through the adjoining property at 271 Lake McDonald Drive. In its response,35 the appellant attached “new proposal plans”,36 which indicate access via a proposed easement through the adjoining property, but show again relevantly to GFA: g) The existing greenhouse and packing shed, two existing farm sheds, and the aerial photograph37 shows the house at the end of the block on Lake McDonald Drive, but that is not shown on the site plan.38 f) In the Notice of Appeal,39 reference is made to the land having been “a turf farm, with associated sheds and attached house”; g) In the approval given by this court on 8 November 2016, Condition 7 is to this effect: “The access driveway servicing the existing dwelling is to be used only for the residential use on the site”.’ h) The approved plan40 shows the two existing farm sheds, but does not include the detached dwelling. It includes the multipurpose shed referred to earlier as the packing shed, and the existing greenhouse with dimensions of 144m x 140m. Was the charge in the Notice so unreasonable that no reasonable Council could have imposed it? (Ground 1) [23] It is common ground that this issue involves what is now referred to in the extensive administrative law jurisprudence as “Wednesbury Unreasonableness”.41 As Council notes in its outline, the test of “unreasonableness” is a stringent and difficult test for a litigant in the position of the appellant to meet. In 2010, Rackemann DCJ (by reference to the “test” now adopted in the words of s 478(1)(a) of the SPA) noted that in applying the test, a court should proceed with caution, and by reference to 34 Ibid, p 36. 35 Ibid, p 43. 36 Ibid, p 48-49. 37 Ibid, p 48. 38 Ibid, p 49. 39 See 1f Exhibit 3, p 62. 40 Ibid, p 75. 41 Associated Provincial Picture Houses Limited v Wednesbury [1948] 1 KB 223. -- 8 of 12 -- 9 Wednesbury “to prove a case of that kind would require something overwhelming”.42 As the Council notes, superior courts including the High Court have considered the test in more recent times. The High Court has made it clear that the concept of unreasonableness is not rigidly defined.43 [24] Li has been considered by this court on a number of occasions.44 In Birkdale Flowers his Honour Judge Jones, by reference to authority,45 emphasised that the test is whether the decision reached at first instance was an irrational one or one devoid of plausible justification. [25] Here, the decision-maker, relying on the information supplied by the appellant, appears to have followed the infrastructure charges regime set out in the Charges SPRP promulgated pursuant to the SPA, in accordance with its own Noosa Charges Resolution which has been prepared and adopted in accordance with the requirements of the legislation. It is clear that no credit has been giving for lawful existing development previously on the site i.e. the turf farm. The only information (relevant to GFA) before the decision-maker was that two small sheds and the dwelling house were associated with that use. I note that the decision-maker did calculate GFA of the multipurpose shed from aerial photos.46 From any perspective the greenhouse use involved a very substantial increase in GFA, and therefore (having regard to the Charges SPRP and the legislative regime referred to above) did involve “additional demand”. The “unreasonableness” ground has not been established by the appellant which bears the onus.47 The legislative scheme as promulgated and adopted by Council, uses increase in GFA to effectively calculate “additional demand,” and does not in any way permit of a form of “comparative demand analysis” as proposed by the appellant’s experts, Ms Gorton and Mr Crank. It may lead to unfair results in some cases, but it seems to me that the scheme mandated by the legislature clearly calls for “demand placed upon trunk infrastructure by development (to be) determined broadly having regard to the increase in GFA,” to adopt the opinion expressed by Mr Adamson on behalf of Council.48 [26] In Minister for Immigration and Border Protection v Stretton,49 the Full Court of the Federal Court observed: “…crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the 42 Bon Accord v Brisbane City Council (2010) QPELR 23 at [112]. 43 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 44 Birkdale Flowers v Redlands City Council [2016] QPELR 231 [2016] QPELR 231; Ferreyra v Brisbane City Council (2016) QPELR 334. 45 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290. 46 Exhibit 3, p 76. 47 Section 493(4) of the SPA. 48 Exhibit 7, [22]. 49 (2016) FCAFC 11 at [89]. -- 9 of 12 -- 10 decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.” (my emphasis) [27] On ground 1, the Council’s decision cannot be said to be irrational or devoid of plausible justification “by reference to the statutory source of the power”. Ground 2 [28] The evidence establishes that the decision-maker had before him or her evidence of the existence of at least two sheds and the dwelling house inferentially associated with the previous lawful use of the land as a turf farm. There is no evidence of any contribution being made to trunk infrastructure during the time the turf farm was in operation. On a proper construction of s 636(1) and (2)(b), a levied charge could only be for “additional demand… that will be generated by the development”. Council have calculated that by reference to the legislative scheme referred to above by reference to the GFA of the 2 ha shed and the multiple purpose shed. It seems to me that by not including any component in the calculation of additional demand by reference to the GFA of the existing sheds and the dwelling house, Council, in “working out additional demand” has not complied with s 636(2)(b). The decision maker calculated GFA of the “all-purpose” shed by reference to the aerial photographs, so there is no reason why “demand” from the prior use could not have been calculated on the same basis, and by reference to Council’s Charges Resolution. [29] It follows that the appellant succeeds on its second ground of appeal and the appeal must be allowed in part. Merits review assessment (hypothetical) [30] The success of the appellant on Ground 2 however does not permit this Court on a rehearing de novo, to formulate its own methodology of assessing “additional demand” by reference to other than the legislative scheme based on GFA adopted by Council in this case. [31] Mr McMullan provided an affidavit50 and gave evidence and was cross-examined. He has had a life long association with the turf farm and ran the turf farm from 1987, when he took over its operation from his father. He continues in a management role in running the tomato and cucumber growing production use of the greenhouse. There was a mild attempt to impugn his reliability by reference to aerial photographs produced by Mr Holland, Council’s traffic expert.51 The 50 Exhibit 5. 51 Exhibit 11. -- 10 of 12 -- 11 difficulty with the aerial photographs is that it is difficult to ascertain when they were taken, although some appear to be later in the day when the turf farm operations (on the basis of Mr McMullan’s evidence) had likely ceased for the day. There is no reason to doubt that Mr McMullan was a reliable historian. [32] His evidence relates to the number of employees of the turf farm at various times, and the number of vehicles (particularly heavy vehicles) associated with the turf farm use. His evidence is also relevant to the number of employees engaged in the present use and the number of vehicles associated with the greenhouse use. [33] The difficulty with his evidence is that it would be relevant if additional demand was to be assessed by reference to the number of employees associated with both uses and the number of vehicles using Council roads; the methodology advanced by Ms Gorton on behalf of the appellant and supported by Mr Crank the traffic expert. In my opinion, accepting the opinion of Mr Adamson in preference of that of Ms Gorton, the methodology adopted by the legislative scheme is based on GFA and not on an “actual comparative demand analysis, comparing the actual demand on trunk infrastructure generated by the new use with the actual demand on truck infrastructure generated by (the former) use”.52 This is not the proper construction of s 635(6)(a) and s 636(1) and (2)(b) when one has regard to the whole of the legislative scheme and by applying well known principles of statutory construction to the effect that legislative provision should be interpreted in such a manner as to produce harmonious goals.53 [34] As indicated before, the appellant contends that Pt 3, paragraph 8 of the Council’s charges resolution,54 and in particular 8.4, is beyond power, a point Council seems to concede. Nevertheless, the appellant relied upon it in asserting that a “credit” should have been given by Council in its Notice, for demand generated by the turf farm itself, the two sheds (including a third noted on the inspection but not visible in any of the material before the decision-maker) and the dwelling house. It is not necessary to determine the point about the validity of 8.4 and it is doubtful that this court would have jurisdiction to make such a determination. [35] In relation to employee numbers (relevant both to transport and parks infrastructure impacts) Mr McMullan’s evidence establishes that with the introduction of a turf cutter in 2003, the number of employees reduced over the next few years to 10, which reduced to 4-5 during winter. The present operation employs up to 25 people between May and December which increases substantially during the short cucumber season for 6 to 8 weeks in January/February, and then reduces to 10 employees in March/April. Although there was some evidence that employees carpool, there is a direct correlation between the number of employees and the number of cars potentially impacting on the road network. Heavy vehicles clearly impact much more on transport infrastructure, and Mr McMullan’s evidence 52 Paragraph 28, appellant’s outline. 53 Project Blue Sky Inc v Australian Broadcasting Authority (1992) 174 CLR 178 at [70]. 54 Exhibit 6, tab 7. -- 11 of 12 -- 12 establishes that there are more heavy transport vehicle movements per day associated with the previous use than with the greenhouse use. [36] For the reasons I have stated “additional demand analysis” for individual development is not mandated by the scheme lawfully adopted by Council for the purposes of calculating additional demand on trunk infrastructure. However, the Council (through its decision maker) has made no reference (in terms of GFA and/or its Charges Resolution) to the 2 sheds (a third was observed on inspection) or the dwelling house, which leads me to conclude that Council has not complied with s.636(2)(b). Rather than leave it to me to calculate, I shall order that the appeal be allowed in part and adjourned to enable demand to be assessed (by reference to the Charges Resolution) so that such “demand” can then not be included in the calculation of “additional demand” for the purposes of s.636(1). If agreement can be reached, an amended Notice can then be issued by the Court. If agreement cannot be reached, I will allow the parties liberty to apply to enable directions to be formulated. [37] The appellant submits that an adverse inference can be drawn against the Council from its “failure” to call the decision maker as part of its case pursuant to the so- called “rule” in Jones v Dunkel (1959) 101 CLR 298 at 312, however, because I have not accepted the appellant’s primary contention that an individual “additional demand based assessment” is mandated in this case, that submission has no merit. -- 12 of 12 --