FKP Residential Developments Pty Ltd v Maroochy Shire Council [2009] QPEC 35 [2009] QPELR 666

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: FKP Residential Developments Pty Ltd v Maroochy Shire Council [2009] QPEC 35 PARTIES: BD 2606 of 2006 FKP RESIDENTIAL DEVELOPMENTS PTY LTD (ACN 040 422 241) Appellant V MAROOCHY SHIRE COUNCIL Respondent BD 380 of 2008 FKP RESIDENTIAL DEVELOPMENTS PTY LTD (ACN 040 422 241) Appellant V MAROOCHY SHIRE COUNCIL Respondent FILE NO/S: BD 2606/2006, BD 380/2008 DIVISION: Original jurisdiction PROCEEDING: Appeal against conditions ORIGINATING COURT: Planning and Environment Court of Queensland, Brisbane DELIVERED ON: 8 May 2009 DELIVERED AT: Brisbane HEARING DATE: 1 October 2008 and 8 December 2008 with written submissions received up to 17 December 2008 JUDGE: Alan Wilson SC, DCJ ORDER: Appeals dismissed -- 1 of 12 -- 2 CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS – CONDITIONS – RELEVANCE AND REASONABLENESS – INFRASTRUCTURE CHARGES – where council imposed infrastructure charges associated with stormwater runoff – whether policy used to calculate infrastructure charges contains flawed methodology – whether charges relevant and reasonable – whether invalid – whether council prevented from imposing charges by earlier preliminary approval Integrated Planning Act 1997 s 3.5.11, s 3.5.30, s 4.1.50, s 5.1.7(1), s 6.1.20, s 6.1.31 Statutory Instruments Act 1992 s20 Cases considered: Beck v Atherton Shire Council [1991] QPLR 56 Braemar Power Project Pty Ltd v Chief Executive Department of Mines and Energy [2008] QSC 241 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 54 LGRA 110 Coupe v Mudgee Shire Council (1986) 7 NSWLR 264 Everpark Pty Ltd v Pine Rivers Shire Council [1998] QPELR 206 Grant v Pine Rivers Shire Council [1991] QPLR 160 Griffith University v Tang (2005) 221 CLR 99 Hickey Lawyers v Gold Coast City Council [2005] QPELR 597 Oakden Investments Pty Ltd v Pine Rivers Shire Council (2001) QPELR 7 Plafaire Projects Australia Pty Ltd v Maroochy Shire Council [1991] QPLR 87 Proctor v Brisbane City Council (1993) 81 LGERA 398 Sellars Holdings Limited v Pine Rivers Shire Council [1988] QPLR 12 Stockland v Gold Coast City Council (2008) 160 LGERA 230 COUNSEL: D R Gore QC and J Haydon for the appellant CL Hughes SC and M Williamson for the respondent SOLICITORS: Bain Gasteen Lawyers for the appellant Sunshine Coast Legal Department for the respondent [1] These appeals concern a residential development on the Sunshine Coast and conditions Council has imposed upon it requiring that the developer pay ‘infrastructure charges’ associated with stormwater runoff. The developer FKP says the charges are inconsistent with an earlier preliminary approval it received; and are irrelevant to, or an unreasonable and unnecessary imposition on, the development itself; or, invalid. -- 2 of 12 -- 3 [2] FKP’s arguments primarily attack the method used to calculate the charges which wrongly and unfairly, it says, places upon new developers too much of the burden for paying for stormwater infrastructure throughout the entire local government region, and not just within the immediate vicinity or catchment of each new development. Council responds by saying that it is not inappropriate or unfair for it to require new development to contribute to the overall cost of funding. FKP carries the burden of establishing its appeals should succeed1 . [3] There is no doubt about Council’s statutory power to impose charges of this kind which arises, in the circumstances applying here2 , under s 6.1.31 of the Integrated Planning Act 1997 (Qld) (IPA). Nor is there any dispute about the amount Council claims, in accordance with its own formula and calculations. It is the formula and what underpins it which, FKP says, is wrong and offends s 3.5.30 of IPA, which requires that conditions be ‘relevant and reasonable’. [4] More particularly, the two proceedings are appeals against conditions imposed by Council requiring FKP to pay monetary contributions for the provision of stormwater management infrastructure in accordance with Council’s Planning Scheme Policy DC4 – Stormwater Quality (PSP DC4 – ‘the Policy’). The conditions were attached to approvals for reconfiguration of land (ROL) which forms part of the Coolum Ridges Master Planned Community situated at Peregian Drive, Peregian. That land was the subject of the Coolum Ridges Master Plan, an instrument of a master planned community developed pursuant to a preliminary approval for a material change of use (MCU) granted by this court on 16 December 2005. [5] On 15 May 2008 the court ordered that these appeals be heard together. They raise the same issues. In action 2606/2006 the condition the subject of the appeal reads: The applicant must pay a monetary contribution to the Council for the provision of stormwater management infrastructure in accordance with Planning Scheme Policy DC4 – Stormwater Quality. The contribution must be paid at the time of lodgment of the plan of a survey with Council. The actual amount of the contribution must be in accordance with the Policy at the time of payment for Planning Area 12. NOTE: at the time of issue of this approval the subject development incurs a contribution requirement of $1,389.20. [6] The condition the subject of appeal 380/2008 is in these terms: The applicant must pay contributions towards infrastructure in accordance with the following Planning Scheme Policy: … (c) Planning Scheme Policy DC4 – Stormwater Quality … The contributions must be paid at or before the time of lodgment of the Plan of Survey with Council. The actual lodgment of the contribution must be in accordance with the Policy at the time of payment. [7] The 2005 preliminary approval contained an approval for an MCU and included three infrastructure deeds which dealt with a range of external infrastructure 1 Integrated Planning Act 1997 (Qld), s 4.1.50(1). 2 Those circumstances being such, the parties agree, as to avoid the prohibition against conditions which seek monetary payments, imposed by s 3.5.32 of IPA. -- 3 of 12 -- 4 including sewerage, water supply, road construction and contributions for various urban improvements, parking and public amenities, and community and cultural facilities. The conditions of the preliminary approval also touched upon those things, and measures to deal with stormwater runoff. At the time PSP DC4 had commenced, but no reference was made to it. The preliminary approval did not, it should be remarked, approve any ROLs. [8] It is also appropriate to observe that a local authority’s power to impose conditions upon development approvals is to be found in Chapter 3, Part 5, Division 3 of IPA: s 3.5.11; but, the power to impose conditions about infrastructure appears in a different part of IPA – Chapter 6, Part 1, Division 8, s 6.1.31 (‘Conditions about infrastructure for applications’). It has already been suggested by his Honour Judge Robin QC 3 that conditions of the latter kind (ie, imposed with reference to infrastructure charging powers, and under quite a different part of the legislation) are subject to, but might not be readily amenable to being attacked or set aside upon, the ‘relevant and reasonable’ grounds contained in s 3.5.30. [9] In any event FKP says the conditions do not satisfy the ‘relevant and reasonable’ test because, firstly, they are superfluous; FKP claims, in short, that conditions attached to the preliminary approval (and later development approvals), combined with evidence conclusively establishing that the quality of run off water leaving the site would meet or exceed the Shire’s water quality objectives means the issue has already been fully addressed, and Council’s attempts to impose further conditions are unnecessary, excessive and unlawful. [10] Secondly, it is said that the contributions which the conditions seek can be shown, by reference to the Policy and the documents which led to its creation, to address impacts which are unrelated to recent development approvals – and therefore fail the s 3.5.30 tests. A third contention, flowing from FKP’s analysis of the Policy which purports to show that it relies on flawed methodology and calculations leads, it is said, to the conclusion that it is also invalid. Fourthly, it is argued that the conditions are inconsistent with the preliminary approval, which was intended to provide exhaustively for the infrastructure required in connection with the Coolum Ridge’s Master Planned Community, and should be set aside. [11] The Policy, PSP DC4, was created under s 6.1.20 of IPA and took effect on 1 July 2005. S 2.1.23 of IPA gives it the force of law and categorizes it as a ‘statutory instrument’ under the Statutory Instruments Act 1992. Under s 20 of that Act the Policy is presumed to be validly made. [12] It contains a mechanism addressing funding for dealing with stormwater quality throughout the local government area, including funding by way of contributions from developers. Its announced intention is to improve the health of one of the Shire’s natural assets – its waterways. On its face the basis for seeking contributions from developers rests upon propositions that urban development increases stormwater runoff quantity, but may decrease quality; infrastructure is necessary to deal with that runoff; and, the consequences of urban development on the Shire’s waterways are felt both locally, and regionally. 3 in Hickey Lawyers v Gold Coast City Council [2005] QPELR 597, at 617. -- 4 of 12 -- 5 [13] FKP’s attack upon the Policy focussed upon documents which led to its development including, in particular, the Urban Stormwater Quality Management Plan for Maroochy Shire (USQMP) dated November 2002. That document contains a formula, carried through to the Policy, which FKP says wrongly imposes upon new developments a requirement to pay infrastructure charges related not only to the cost of dealing with water runoff from the particular development but, also, the cost of ‘retrofitting’ better infrastructure for that purpose in other areas of the Shire which are quite remote from the new development. [14] The exercise undertaken by FKP’s expert witness Dr Johnson and explored in considerable detail in the appellant’s written submissions are persuasive that an effect of the Policy is to take a percentage of the Council’s capital costs for improving or expanding stormwater infrastructure in already existing and established urban areas, and average that amount across the whole Shire (irrespective of the existing or future state of development, or impact from a stormwater quality) as a basis for determining contributions to that infrastructure to be borne by new development applications. [15] That evidence is also persuasive that a figure calculated in the course of the USQMP, and carried through to the Policy ($152.5m) is clearly directed towards addressing existing problems by improving stormwater quality infrastructure in all existing urban areas, in all fifteen water catchments within the Shire; and is not directly related to stormwater runoff or the necessary infrastructure for this particular development. In other words, the Policy is not only responsive to the impacts of new development, but is concerned with addressing impacts caused by an existing state of affairs. [16] In particular an attack is made upon the proposition, advanced for Council, that requiring new developers to contribute to the cost of fitting or improving infrastructure in other areas or catchments is justified because the new residents in newly developed areas will likely use facilities in existing catchments. It is said, for FKP, that new residents are no different to any other persons, including those from outside the Shire, who might choose to visit retail or other facilities in the local government’s different catchment regions and there is no sound basis for imposing this burden upon them. [17] It is also said that the USQMP, in taking that approach, falls into particular errors: that those other catchments will probably attract future development requiring new infrastructure within them and, on proximity grounds alone, have a closer and more logical connection with stormwater quality in their own particular catchment areas far exceeding what is said to be a tenuous connection between this development, and those areas; and, that the document already shows a ‘retrofit cost’ for the particular catchment in which this area lies (the Doonan Creek Catchment) which, by inference, would provide a more reliable basis for estimating the cost. [18] FKP also contends that tables in the USQMP and the Policy wrongly ‘double-dip’ in that FKP is required to bear one hundred percent of its share of the future urban costs associated with its new development plus fifty percent of the total of the costs associated for retrofitting existing urban areas with appropriate infrastructure, in all fifteen catchments within the Shire. -- 5 of 12 -- 6 [19] FKP categorises these things as errors in methodology leading, it submits, to the Policy itself being invalid because costs associated with infrastructure outside the development itself and the immediate catchment are clearly unrelated to it. Infrastructure charging provisions must, it is said, be soundly based and logically conceived, and will have no force if they lack those qualities. An analogy is drawn with principles to be extracted from the cases dealing with the ‘relevant and reasonable’ test, which has its foundation in the principle that there must be something about a development which will bring about a change in an existing state of affairs that will have to be met, or catered for, before a condition can be found to possess the necessary qualities4 . [20] Other cases indicate that to comply with the ‘relevance’ test it must be shown that a condition is not inconsistent with the terms or plan or policy of the relevant legislation;5 and, with the subject matter of the development application itself. In Coupe v Mudgee Shire Council (1986) 7 NSWLR 264 McHugh JA (as he then was) said6 that the power to impose conditions could not be used, for example, as a device for raising funds for the maintenance or improvement of a road which led directly or indirectly to the subject property. [21] FKP also referred to s 5.1.7(1) of IPA which requires that infrastructure charges must not be more than the proportion of the establishment cost of the network that can reasonably be apportioned to the premises for which the charge is stated, taking into account the usage of that network by the premises, and network capacity allocated to it. That provision does not directly apply (because of IPA s 6.1.31(2)(a)) but, it is said, gives some guidance as to the intention of the policy of IPA. A local government, may not, it is said, use its power to impose contribution conditions to aggrandise its own funds: Oakden Investments Pty Ltd v Pine Rivers Shire Council (2001) QPELR 7 at [24]. [22] Dr Johnson was also critical of an alleged failure on the part of the Policy to meet IPA infrastructure charging guidelines and provisions, although the Policy was not required to comply with them. [23] A further criticism, leading, it was said, to invalidity rests on the notion that Council’s attention has been wrongly focused on the use that residents of FKP’s new estate would make of other parts of the Shire, while ignoring the fact that they would also be ratepayers and it is from general rates the Council should be funding ‘retrofitting’ in other areas, instead of requiring the new residents to subsidise existing ratepayers or, in effect, making them pay twice. [24] So far as the s 3.5.30 test is concerned, FKP says there are three further problems: it is unreasonable to apply an averaging approach when the Doonan Creek catchment, in which its proposed development lies, contributes only a small proportion of the total figure allowed for retrofitting in the Policy; secondly, the reconfigurations the subject of this appeal would not themselves create any impact and there is, then, no ‘consequence of the development’ which can justify the condition; and, thirdly, because the figures used in the Policy itself are, for the reasons advanced by Dr Johnson and Mr Lowry, insupportable. 4 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 54 LGRA 110 at 113. 5 Proctor v Brisbane City Council (1993) 81 LGERA 398. 6 At 266. -- 6 of 12 -- 7 [25] It is said, too, that Council can take no comfort from the decision in Hickey Lawyers because in that case the local government had complied with the infrastructure guideline; and, the policy in that case was not tainted by what FKP says are the significant flaws arising here. [26] As to its argument that the matter has, in any event, been fully dealt with by the preliminary approval and its associated infrastructure agreements, FKP says the extensive ‘package’ contained within that approval provides, on its face, exhaustively for the infrastructure required for this development. That is also, it is said, another reason for concluding that the Policy offends the s 3.5.30 test. [27] For a number of reasons I am not persuaded the Policy is flawed in the way FKP contends; or, invalid; or, offends the ‘relevant and reasonable’ test. [28] The evidence and submissions were ultimately persuasive there was no implicit failure of principle in, or proper legal or moral objection to, the exercise undertaken in the USQMP and carried through to the Policy, based on the notion that the occupants and users of new residential estates will utilise urban infrastructure and services elsewhere in the Shire external to the new development in which they reside, and thereby contribute to pollutant loads entering the region’s waterways. Dr Johnson, FKP’s expert, fairly conceded that persons would, at least, travel through and therefore use different catchment areas for such purposes as retail, educational and leisure activities. [29] There is nothing surprising or unusual about the notion that increasing the population of any part of the former Shire area by opening up newer urban areas will add to the people using, and therefore the pollutant loads upon, existing urban areas and their many facilities. The proposition is logical and unsurprising. Council also holds that a development which effectively attenuates water quality impacts will nevertheless have some external impacts, a proposition which is also unsurprising. Once these things are acknowledged, the Policy’s plain intention of apportioning funding for the overall trunk water quality network between the existing population and the likely future population cannot be said to be unsound, incorrect or improper. [30] The evidence also establishes that the Policy was properly informed by the USQMP and other studies undertaken by and for the Council, which were before it for consideration when the Policy was adopted7 . Criticism of the Policy by reference to, for example, the USQMP has to be considered, too, in the context of the overarching fact that a decision to adopt a policy about infrastructure under IPA s 6.1.20 is a determination of local government, and one in which it has a discretion to adopt all, or some, or none of recommendations made by consultants in preliminary documents. [31] It was also apparent that some of Dr Johnston’s criticisms were excessive in the sense that what he says Council should have done is unnecessary in terms of the legislation and would be prohibitive in terms of cost; in particular, he suggested that before Council could fairly consider the kind of exercise it has undertaken to determine costing levels for infrastructure charges, it should have prepared a 7 e.g. The Supporting Information Infrastructure Charges and Water Quality, June 2004, prepared by Council’s principal engineer, Mr McGarry. -- 7 of 12 -- 8 detailed design and costing for each and every element of the stormwater network – an exercise which, common sense suggests, would be prohibitively and unrealistically expensive. [32] On any view the USQMP is a comprehensive and highly detailed document produced after extensive community consultation, surveys and the like. It contains a detailed assessment with respect to each of the 15 catchments in the Shire. Its breadth and complexity supports Council’s argument that it was sufficient to reasonably support a Policy of the type contemplated by IPA s 6.1.31 – a conclusion reinforced, here, by the fact that at the time it was adopted s 6.1.20 did not contain any particular legislative requirements for policies of this particular kind. [33] The additional supporting information provided to Council in June 2004, based upon the USQMP, led to Council accepting recommendations for the Policy which meant that it eventually contained provisions requiring contributions calculated in accordance with the proportion in which each new development would add to the ultimate population of the shire; for Council to meet the remainder of the cost to achieve ‘shire-wide environmental values’; and, adopting a contribution rate for each planning area which was the average of those otherwise calculable for the individual catchments. This meant that new development would have some responsibility for contributing to the cost of works external to it, with the balance being funded by Council. That, I am satisfied, is what the Policy does. It shows on its face why contributions are sought and contains, in considerable detail, the purpose for which they are to be used. [34] As I understood its case, another of FKP’s particular criticisms is that the methodology underlying the Policy does not bear a sufficiently identifiable relationship to either stormwater quality impacts caused by new development, or the cost of trunk infrastructure works responsive to impacts of that kind. [35] Again, however, the principle apparently underlying the Policy is that residents of new development will visit and use facilities (of, for example, a retail, commercial, educational, recreational, government and other kind) outside their particular catchment in already urbanised parts of the balance of the local government area, placing additional pollutant loads and additional demands on the water quality requirements there. The Policy on its face seeks to apportion the cost of the relevant infrastructure works across all catchments within the Shire (to ensure that none is disadvantaged) based upon the proportion that the population of new development (in respect to which contributions are sought) bears to the ultimate population of the area. That is achieved by averaging – a well understood, equitable, and appropriate means of recovering costs through a policy of this kind8 . [36] FKP’s strongest attack was mounted upon elements of the USQMP and the Policy which, it is said, involve extracting charges for infrastructure from developers of new areas to ‘retro-fit’ better stormwater infrastructure in existing urban areas, to treat existing problems. The term does not appear in the Policy itself which, read in context in the preliminary documents is, I am satisfied, referring (in the parts FKP criticises on this basis) to the positioning of trunk infrastructure in urban areas outside new development areas – with the intention of managing both the additional 8 Everpark Pty Ltd v Pine Rivers Shire Council [1998] QPELR 206; Grant v Pine Rivers Shire Council [1991] QPLR 160 at 166. -- 8 of 12 -- 9 impact of new development and demands placed upon existing urban areas by increased levels of population. [37] In other words, the intention of the Policy is to properly manage the impacts of a fully developed catchment. Once that is appreciated, FKP’s criticisms become less than compelling. The various catchments within the local government area will inevitably be used, to one degree or another, by its residents, and that will involve the use of both new and existing services and facilities. It cannot, then, be reasonably said that requiring new development to contribute to costs associated with existing facilities by the method of apportionment the Policy adopts is apparently unjust or unfair; or an unreasonable imposition upon a new development; nor, a method which lacks an appropriate degree of calculation, and precision. [38] It is also to be acknowledged, in this context, that the USQMP is a supporting document which came into existence almost three years before the Policy. Plainly, it was one used by Council in reaching its decision but it must be remembered that the latter was, ultimately, a decision involving a matter of policy – i.e. a matter for the Council, as a duly elected local authority. [39] There are now, of course, two versions of the Policy – 2005, and 2008. The latter has some materiality to the issue in this appeal, it being a document to which the court can give some weight; IPA, s 4.1.52(2)(a). It also varies the rate of contribution, in ways which may be advantageous to the developer. [40] FKP criticised one of the important figures used to measure contributions in the 2008 version9 on the grounds that the index used to calculate it, associated with construction costs, was inappropriate and another index, unconnected with building, was more suitable. This criticism, the evidence showed, was unjustified: the important question is whether or not the use of the index might result in developers being overcharged for works, and the unchallenged evidence of the quantity surveyor Council called, Mr Lowry, shows that estimates Council has used are at the lower end of the range of reasonable costs for the work to which the charges relate. This conclusion is reinforced when, as other evidence showed, the relevant periods saw substantial growth and construction costs. Finally, as Mr Lowry also said, the non-construction index may not have made sufficient provision for costs increases. All of these issues fall to be considered too, in the context of evidence which shows that the estimates upon which the Policy relies are at the very lower end of the range10 . [41] FKP’s challenge to the validity of the Policy is limited to the assertion that the Policy is not soundly based. That question must be considered in the context of the matters already discussed, and the conclusions reached about the underlying approach the Policy takes to the business of infrastructure charging for stormwater runoff; the fact it was the product of research at a very detailed level, and wide public consultation; its very nature, as a Policy document – which means, for example, that it cannot be amended or varied by Council officers; and, ultimately, the fact that it is binding in law as the product of a decision of the local authority which is legislative, rather than administrative, in character. The latter distinction 9 the ‘SQ’ rate of 2192. 10 Exhibit 11. -- 9 of 12 -- 10 has been described as one sometimes fraught with elements of instability11 ; but for present purposes, the overarching factors attributable to each kind of decision were helpfully considered and outlined by McMurdo J in Braemar Power Project Pty Ltd v Chief Executive, Department of Mines and Energy [2008] QSC 241. [42] These policies are statutory instruments. While they are required, under Chapter 6 Division 4, to contain certain specified information, they are broadly defined in IPA s 2.1.16 as ‘instruments’ which are ‘made by a local government …’ and support planning schemes and the actions of local governments under them. With reference to the tests suggested in Braemar12 , it can be said of this Policy that it formulates a new rule of general application; incorporates wide policy considerations; and, has a binding effect. In its most important aspects, then, it has the plain tenor of a legislative decision. [43] Even if the opposite conclusion is reached, however, and the creation of the Policy is categorised as an administrative act, FKP’s attacks upon it would not have the effect of rendering it invalid. As it read at the relevant time, IPA s 6.1.20 gave little guidance as to the required, formal substance of a planning policy about things like trunk stormwater drainage infrastructure. It cannot be said that this Policy, on its face, fails to meet the requirements of the provision or has taken a form which falls outside the ambit of the power conferred by it. Finally, for reasons already explored at length, I am simply unpersuaded that what might be described as the underlying philosophy of the Policy, with its intention to share infrastructure charges according to a formula, can be shown to be wrong in a sense which would create an invalidity. [44] Indeed, it is difficult to see how invalidity could arise, unless the Policy could be shown to be quite disconnected from reality. Submissions for FKP referred to decisions of this court relating to the power to depart from planning strategies in a planning scheme where they are shown to lack a sound basis, or to have been overtaken by events, but that is not the case here13 . The only discretion open to Council under this Policy is to apply it, or not14 . [45] As Robin QC, DCJ observed in the Hickey Lawyers case, while the ‘relevant and reasonable’ test under IPA s 3.5.30 applies to conditions imposed under s 6.1.31 there appears to be some tension between the two. Conditions relating to infrastructure are, as his Honour observed15 , imposed under a specific head of power, and not the general power to impose conditions found in s 3.5.11. As he said: The scope for planning scheme policies is enlarged and … such policies are not lightly swept away by section 3.5.30(2); they are entitled to a higher level of respect than other ‘policies’ around the place that might be pointed to by a local government or other assessment manager … it may not be an easy task to persuade the court that conditions complying with section 6.1.31(2)(c) flowing from planning scheme policies duly adopted are unreasonable or irrelevant. The possibility is nevertheless open, in my opinion. 11 Griffith University v Tang (2005) 221 CLR 99, at 123 per Gummow, Callinan and Haydon JJ. 12 At paragraph [24]. 13 Sellars Holdings Limited v Pine Rivers Shire Council [1988] QPLR 12, at 17; and, Beck v Atherton Shire Council [1991] QPLR 56, at 59, and Plafaire Projects Australia Pty Ltd v Maroochy Shire Council [1991] QPLR 87, at 88. 14 Hickey Lawyers (supra) at 615. 15 Ibid, at 617. -- 10 of 12 -- 11 [46] His Honour went on to refer to the possibility of ‘egregious conduct’ by a local government as one ground which might establish ‘unreasonableness’; and, suggested that a broad view would be taken of relevance when s 3.5.30 was to be applied to policies of this kind. He suggested, in another passage which I respectfully adopt, that it ‘…would ordinarily be a curious outcome to discover section 3.5.30 rendered the condition unlawful. One would think that what IPA mandates or permits is by definition both relevant and reasonable for IPA purposes.’ [47] The earlier exploration and analysis of the nature and effect of this Policy militates against a finding of unreasonableness, or irrelevance, here. The Policy apparently reflects decisions about an appropriate underlying principle for infrastructure charging in new developments with which some might disagree, but which cannot be said to be unreasonable in the sense that its terms or application involve anything which begins to approach ‘egregious conduct’; and, at a much lower level, when these principles are measured against ordinary notions of ‘reasonableness’, they pass any fair test which might be applied. [48] Again, the evidence shows that detailed estimates have been made of funds likely to be required to ensure, in the future, that existing urban areas are properly served by appropriate water quality systems, and to calculate the extent of contributions to be sought from new developments – but limited, apparently, by the extent to which those new developments will add to the ultimate population of the locality. In its original and current form the Policy identifies that proportion of the ultimate population which the residents of the new development will represent, and that figure forms the basis of developer contributions. [49] Further, as pointed out by Council in written submissions on its behalf 16 , the fact that elaborate conditions are imposed to ensure stormwater quality runoff from the particular area of a new development satisfies relevant objectives is not, itself, reflective of the limits a Policy of this kind might fairly reach, or the factors it might adopt as a basis for determining the proper charges. [50] The overarching factor which determines relevance and reasonableness in cases where the condition is imposed under Chapter 6 and not Chapter 3 of IPA, and the matter underlying Judge Robin’s remarks, is that a local government, in introducing a planning scheme policy, is at liberty to determine the extent to which it will relevantly seek contributions from developers and the extent to which it will fund infrastructure from those, and other sources; and, it would only be if the extent of the contributions sought outweighed any reasonable relationship to prevailing circumstances or potential increases in population (or whatever other logical circumstances are chosen to determine funding sources, and apportionment) that the policy could be said to be unreasonable. A local government, in adopting a planning scheme policy, is not obliged to seek every dollar of contribution it can justify under the legislation, but once it has adopted a policy which determines the contribution, the only power it has is to apply it. [51] FKP also argued that the infrastructure agreements entered into before the 2005 preliminary approval provided exhaustively for infrastructure and Council was effectively prohibited from departing from the terms of that approval, and its 16 At page 14, paragraph [60]. -- 11 of 12 -- 12 associated deeds. While s 3.5.32(1)(a) provides that a condition cannot be inconsistent with a condition of an earlier development approval, and s 6.1.31(3)(a) confirms this in the context of earlier infrastructure agreements, there is in truth no inconsistency here. The conditions now disputed by FKP deal with infrastructure which was not addressed at the preliminary approval stage. That preliminary approval was for an MCU, but the relevant conditions are newly attached to ROL approvals, granted in circumstances where there could never be any development of the land without these new development permits and separately applied for and granted to authorize the reconfiguration. As Robin QC, DCJ observed in Stockland v Gold Coast City Council (2008) 160 LGERA 230 17 , these new, different and later approvals must be assessed upon their own merits. [52] Nor, for the sake of completeness, can it be said that the imposition of these conditions to a later, necessary development application offends the s 3.5.30 test. First, the manner in which IPA sets up the system for preliminary approvals and its IDAS system strongly militates against, if it does not exclude, the possibility that documents associated with a preliminary approval provide an absolute fetter on Council’s discretion to consider and impose conditions requiring infrastructure contribution in respect of later applications. Secondly, that occurrence is neither unusual nor unexpected in those contexts and cannot, therefore, be categorized as unreasonable or irrelevant. [53] For these reasons, FKP’s two appeals are dismissed. 17 at 242 and following. -- 12 of 12 --