Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 65

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Evans Harch Pty Ltd v. Brisbane City Council [2004] QPEC 065 PARTIES: EVANS HARCH PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) FILE NO/S: BD 33 of 2004 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court Brisbane DELIVERED ON: 3 rd November 2004 DELIVERED AT: Brisbane HEARING DATE: 26 October 2004 JUDGE: Robin QC DCJ ORDER: Held, as a preliminary point, that the respondent was not precluded from requiring contributions for sewerage and water supply headworks in a development approval over and above contributions paid on the earlier rezoning of the site CATCHWORDS: DEVELOPER APPEAL AGAINST DEEMED REFUSAL OF APPLICATION - separate determination of issue of lawfulness of Council’s imposing a condition of contribution to sewerage headworks and water supply headworks – owner of land paid similar contributions on rezoning to Special Uses (Hotel) in 1982 – in 1982 the same contributions would have applied to retail uses – appellant contended Council was unlawfully “double dipping” Integrated Planning Act 1997 s 3.5.30, s 6.1.31 Acts Interpretation Act 1954 s 20(2)(c) Cases Considered Bruce Small Estates v Gold Coast City Council (1993) QPELR 101 Kilpatrick v Logan City Council (No.2) (1982) QPLR 278 Sunshine Coast Hospitals Pty Ltd v Maroochy Shire Council (1983) QPLR 15 Wort v Whitsunday Shire Council (2001) QCA 344; 116 -- 1 of 16 -- 2 LGERA 179 COUNSEL: Mr Fynes-Clinton for appellant Mr Hinson SC for respondent SOLICITORS: King and Company for appellant City Legal Practice for respondent [1] When this appeal by a developer against the Council’s deemed refusal of its development application came on for hearing, the court was informed that the only issue on which the court’s decision was now sought by the parties was the correct approach to charging the developer appellant for contributions towards sewerage headworks and water supply headworks referable to the proposed development. Apparently it has been agreed in principle that the appeal should be allowed, and the development application (seeking a material change of use for a suburban centre development for centre activities) approved. The court is not asked to make any final determination quantifying the rights and obligations of the parties, but to say whether the appellant’s approach is correct, or the Council’s. It is anticipated that the court’s answer will assist the parties in reaching common ground as to how the whole appeal might be resolved. While the court is faced with a rather unusual exercise, the utility of it is plain. It should dispose of the main contentious issue in the appeal and significantly advance progress towards the making of a final order disposing of the appeal. [2] The condition proposed by the Council in respect of water supply headworks is as follows: “Pay to Council a monetary contribution towards the cost of water supply headworks, as outlined below, at the rate prevailing when the contribution is paid. The contribution is calculated on 198 ETs (Equivalent Tenement) at the current rate of $3113.00 per ET, for Water System Infrastructure Charges Plan Area – Kuraby North / Karawatha, W10. Prior to the commencement of the use or prior to endorsement of a community management statement, whichever is sooner. -- 2 of 16 -- 3 The amount payable is currently assessed at $616,794.26 and comprises of the following: •Treatment Headworks component $135,920.62 •Distribution Headworks component: $480,873.64 •Total Contribution $616,794.26 The above charge is based on a minimum planning density of 45 ET per hectare (MP3 category) calculated over the entire site of 5.661 hectares (with a credit of 56.61 ETs – based on a deemed previously paid contribution of 10 ETs per hectare). This headwork charge is the current rate for the 2003/2004 financial year GUIDELINE This condition is imposed to require the payment of a proportional contribution towards a satisfactory water supply treatment system to the site. For any enquiries about this condition, please contact the Engineering Officer, Development and Regulatory Services. ” [3] The proposed condition about sewerage headworks is in similar terms, except that the amount per ET is $2,204; the summary of amounts is: “Treatment Headworks component: $109,350.00 System Headworks component: $327,320.00 Total contribution: $436,690.00” [4] The appellant contends that the Council has already sought (and been paid) contributions which entitle the appellant to develop the site as proposed and enjoy access to water supply and sewerage services without paying further contributions than those whose receipt the Council acknowledges. The Council is accused of “double dipping” or “taking two bites at the cherry”. [5] The contributions relied on were made in connection with a rezoning of land at Beaudesert Road and Compton Road, Calamvale from Future Urban Zone to Special Uses Zone, by Order in Council of 17 March 1983. The relevant land is Lots 1 and 2 on RP 132999. In accordance with the practice at the time, the Council and the owner of the land (on 26 November 1982) Cal-Mac Pty Ltd entered into a deed. By the Second Schedule, Cal-Mac covenanted: -- 3 of 16 -- 4 “A. In respect of the cost of providing for the said land a sewerage service other than a system of internal sanitary sewers within the boundaries of the said land to pay to the Council an amount calculated at the rate of Four thousand five hundred and sixty dollars ($4,560.00) for each hectare and proportionately for any fraction of a hectare of the area of the said land (at present estimated to be Thirty seven thousand one hundred and twenty seven dollars ($37,127.00) on the basis of an estimated area of 8.142 hectares for the whole of the said land) or to pay to the Council the Council’s current usual contribution or price or the relevant ruling flat rate fee as certified by the Engineer at the time of payment whichever is the greater. B. In respect of the cost of providing for the said land a water supply service other than the reticulation of the said land to pay to the Council an amount calculated at the rate of Four thousand five hundred and sixty dollars (4,560.00) for each hectare and proportionately for any fraction of a hectare of the area of the said land (at present estimated at Thirty seven thousand one hundred and twenty-seven dollars (37,127.00) on the basis of an estimated ara of 8.142 hectares for the whole of the said land) or to pay to the Council the Council’s current usual contribution or price or the relevant ruling flat rate fee as certified by the Engineer at the time of payment whichever is the greater.” Cal-Mac made those payments. [6] Although a hotel was constructed quite soon on Lot 1 pursuant to the new zoning, which was for hotel purposes, Lot 2 remained undeveloped. Cal-Mac, as owner of Lot 2, has consented to the appellant’s development application in respect of Lot 2, which contains about 5.661 hectares. The new proposal is to develop Lot 2 for shops, perhaps 21 of them, as I read the plans in evidence. [7] Mr Fynes-Clinton, who appeared for the appellant, made clear written and oral submissions, the former of which neatly outlines the contending submissions: “(a) The Appellant says that, given that the contributions imposed and paid in 1982 were the contributions then applicable in respect of all forms of development, including commercial development of the type now proposed, (as well as hotel development which was the particular form of development authorised by the rezoning), the Council, as a matter of law, has no power to now impose a further -- 4 of 16 -- 5 charge for development which, if it had been carried out on the subject land in 1982 would have attracted the same headworks charges which were in fact imposed and paid at that time. (b) The Council’s position, as it is understood by the Appellant, is that the contributions made in 1982 were calculated on the basis of 10 equivalent tenements per hectare and that, even though this is all that would have been payable at that time in order to carry out development of the type now proposed on the subject land, it is entitled to impose contributions in 2004 on the basis of the current policy provisions, which do draw a distinction between various types of development, and which calculate headworks for retail development at the rate of 45 equivalent tenements per hectare. The Council allows a “credit” of 10 equivalent tenements, and asserts that headworks are payable at a rate calculated on the basis of 35 equivalent tenements per hectare.” [8] For present purposes, the appellant accepts the Council’s calculations, but reserves the right to argue that the full 5.6 hectares of Lot 2 should not be brought into the calculation. It might be noted that the Council’s approach makes some allowance for the change in money values, in that the credits allowed of 10 ETs per hectare incorporate the current dollar sum per ET, which is several times the equivalent two decades ago. The supplanting of the 10 ETs per hectare standard by the current one of 45 bespeaks changes in the levels of services now taken as standard. [9] In Wort v Whitsunday Shire Council (2001) QCA 344; 116 LGERA 179, in circumstances somewhat similar to the present, Williams JA, with the agreement of the other members of the Court of Appeal, said at [14] (p.183): “There can, to my mind, be no doubting the proposition that it is in the public interest that a local authority vary its planning policy from time-to-time (as the duly elected authority having legislative power in that regard) to ensure that planning requirements of the locality meet changing circumstances as time goes by. Against that background it is significant that here the changes in 1995 were made after the previous policy had been in place for a period of 10 years. Further, the appellant had at least seven years after he acquired the subject land to develop it in accordance with his present proposal and in accordance with the policy referred to in the letter of 28 October 1988, without incurring an obligation to make a further contribution for sewerage and water headworks.” -- 5 of 16 -- 6 [10] It is common ground that the starting point is s.6.1.31 of the Integrated Planning Act 1997 (IPA). The power it acknowledges to impose conditions about infrastructure pursuant to planning policies and the like is controlled by s.3.5.30 which enacts the twin requirements of relevance and reasonableness so far as conditions of a development approval are concerned. The appellant argues that neither requirement is satisfied here because development (although not the same developer) is being charged twice. It argues that “The 1982 applicant effectively ‘bought and paid for’ access to water supply and sewerage infrastructure for the whole of (Lots 1 and 2) in respect of a particular level of service demand generated by development which could lawfully be carried out … following gazettal of the rezoning and a payment of the contributions imposed at the rezoning stage.” [11] It was common ground that in 1982 the Council applied a single rate of headworks charges for all forms of development, although it may have been that the only Ordinance covering the matter related to residential development. The appellant argues that it is neither relevant to nor reasonably required by a subsequent approval creating no additional service demand to ‘revisit’ the matter of headworks contributions. Two decisions of Judge Row are relied upon as indicating the state of the law before September 1985 when a statutory regime for water supply and sewerage headworks came into effect in the form of s.22E of the City of Brisbane Town Planning Act 1964. In Kilpatrick v Logan City Council (No.2) (1982) QPLR 278, the Council, in permitting subdivision of land already zoned Residential A, sought water supply headworks and sewerage headworks of $2,200 per hectare and $3,600 per hectare respectively “less any monies previously paid in relation to any prior approvals”. The rezoning had been approved by a predecessor Council (Albert Shire Council) as communicated by letter of 28 March 1979 advising approval of the rezoning subject to conditions including payment of a water and sewerage -- 6 of 16 -- 7 headworks charge of $4,000 per hectare prior to advertising - the approval to lapse if advertising were not commenced within two years. [12] It was the Logan City Council (by then the relevant local authority) which responded to a request that the rezoning be formalised (enclosing a subdivisional layout plan) by letter of 19 December 1980 requiring payment of the $4,000 per hectare contribution prior to advertising. His Honour said at 280-81: “Accepting the basis on which the Respondent conducted its case the determining fact in relation to conditions 4 and 5 is one of reasonableness. As I understand the submission by counsel for the Respondent the Respondent accepted and adopted the views in this appeal as expressed in the decision on the preliminary point of law. At the time when the re-zoning application was made to the then relevant planning authority, namely Albert Shire Council, that authority was obliged by statute to consider, amongst other things, the matters specified in Section 33(6A)(c) of the Local Government Act. Under subsection (e) (v) thereof the Local Authority was obliged to take into consideration whether, having regard to the permitted uses with or without the consent of the Local Authority of land in the zone in which the land is proposed to be included and the potential for subdivision of the land is included in the zone in which it is proposed to be included: A. water, gas, electricity, sewerage and other essential services would be available to the land and to each separate parcel thereof if the land were subsequently subdivided. In its decision the local planning authority imposed a water supply and sewerage headworks charge after a consideration of all proper and relevant factors including inferentially the statutory requirements. The basis of such headworks charges would of necessity have been related to the re-zoning of the land to Residential “A” and its potentiality for subdivision within that zone. In my opinion substantial weight should be given to the imposition of the re-zoning condition and the payment or security for such payment. The fact that the re-zoning approval is limited in time by condition 4 and the absence of any reference to further charges for water supply and sewerage headworks in the letter from the Respondent dated 19th December, 1980, all taken together, satisfy me that conditions 4 and 5 are unreasonable in all the circumstances.” [13] There is no equivalent here of the letter of 19 December 1980 (confirming the conditions set in March 1979). His Honour was plainly unimpressed by the -- 7 of 16 -- 8 Council’s making a new demand within five months of it. The application for permission to subdivide was made on 26 March 1981, approval being notified on 20 May 1981; the rezoning was gazetted 18 June 1981. Kilpatrick did not pursue a claim that Logan City Council was estopped from requiring further contributions. [14] A harder case for the Local Government (as Mr Fynes-Clinton conceded) was Sunshine Coast Hospitals Pty Ltd v Maroochy Shire Council (1983) QPLR 15. By letter of 1 July 1980 the Council notified its approval of rezoning of land from Rural B to Residential B on conditions including payment of a water headworks contribution and sewerage headworks contribution, each to be determined on a defined basis assuming a certain population density (based on 53 accommodation units). By letter of 1 September 1980 it then advised: “Further to ‘without prejudice’ conference held on 20th August 1980 … I have by direction to advise that the conditions requiring the dedication of a public road, payment of headworks and parks contributions, and the construction of the stub road, have been waived.” The rezoning occurred without imposition of any headworks contribution for water and sewerage. Just over a year later, Sunshine Coast Hospitals applied for consent to use the land for multiple unit development containing 60 units. Judge Row determined that its appeal should be allowed and the application should be approved, adjourning to permit the Council to formulate conditions, only one of which was contested in the event. It required payment of contributions towards water supply and sewerage headworks in accordance with the Council’s policy at the time of payment. His Honour said at: “I am satisfied on the evidence that a condition requiring a contribution for water and sewerage headworks is relevant to the said application for development approval. The evidence of Mr. Dillon as to the manner in which the respondent now deals with water supply and sewerage headworks contributions paid to it, which evidence I -- 8 of 16 -- 9 accept, overcomes the invalidity that I referred to in Buderim Projects Pty Ltd v. Maroochy Shire Council (1981) 1 QPLR 60 at pp. 64-65 in that there is established a sufficient nexus between the proposed development and the purposes to which the contributions are to be put. The quantum of the water supply and sewerage headworks charges was not challenged by the Appellant and accordingly I find that the respective amounts as detailed in the evidence of Mr Monson are reasonable. When considering the reasonableness or otherwise of a proposed condition relating to a development application it is proper to look at the conditions which were imposed by the Local Authority when the re-zoning was approved, if the subject land had earlier been re-zoned to a zone which could permit the proposed development. A similar approach was adopted in relation to an application for subdivision following an approval of an application to re-zone land. Kilpatrick v. Logan City Council – No. 2 (unreported) – 21.9.82). A significant fact when considering the reasonableness of the proposed headworks charges is the imposition of condition 2 (exhibit 28), on the re-zoning application relative to the subject land. Had that condition been complied with it could not be said that proposed condition 5 was reasonable. The Respondent however waived condition 2 in relation to water headworks contribution and sewerage headworks contribution. The Local Authority did not qualify the waiver of the headworks charges in any manner whatsoever. Exhibit 29 is a clear and precise statement of its decision as the local planning authority in relation to a planning consideration on a re- zoning application. There is no lawful reason why the word “waiver” should not be given its ordinary meaning. Had the Respondent wished to postpone the payment of water headworks contributions and sewerage headworks contributions to a point later in time for example subdivision or development stage, it could clearly in simple terms have so expressed itself. The fact that the Respondent waived its entitlement to the benefit of condition 2 in my view is of considerable significance when considering the reasonableness of proposed condition 5. I find that proposed condition 5 in all the circumstances is unreasonable.” [15] I am not sure that the decision would be the same today. At first instance in Wort v Whitsunday Shire Council [2000] QPE 068, Judge Quirk said: “I am not satisfied that the letter has the effect of making it unreasonable or oppressive to decide this application in line with the relevant policy in force at the time that the application was made. The application was made on 22 December 1997 and the matter was then governed by s.6.2 (3) and (6) (b) of the Local Government (Planning and Environment) Act. The policy referred to in s.6.2 (6) (b) was the 1997 policy. The council was not compelled to require -- 9 of 16 -- 10 the headworks contributions as it has. It had a discretion to do so as does the court. It is however, in my view, a matter of public interest that with the development of land there should be a just and equitable contribution to the infrastructure that such development necessitates. For these reasons I have concluded that the proper exercise of the discretion in this appeal would support the imposition of the disputed conditions. I do not believe that the letter written nearly 12 years ago and understood as it should be, is any justification for treating this application differently to others which might have been made at the same time. For these reasons I find that the onus of showing that the application should be approved free of the disputed conditions has not been discharged and the appeal must be dismissed.” [16] It might be noted that the 1997 application was for a development which was “within the limitations imposed by the Residential B zoning as at October 1988” – see 116 LGERA 182. Judge Quirk’s reasons make it clear that sewerage and water headworks contributions then required had been paid at the time of rezoning. See para. [7]- [8]. In my opinion Wort indicates that other outcomes are open than that contended for by Mr Fynes-Clinton in his written “summary”: “The subject site is land in respect of which the right to access sewerage and water supply headworks, in respect of a development of the type now proposed, is a right which was “bought and paid for” in 1982 by payment of headworks contributions at the rates which were applicable at that time in respect of retail development of the type now proposed. The fact that the actual development authorised by the 1982 approval was hotel development rather than retail development is irrelevant in circumstances where the contribution rates for both types of development were identical at that time.” [17] As at the date of the appellant’s application (on or about 30 June 2003, according to the Notice of Appeal), s.6.1.31 of the IPA was: “6.1.31 Conditions about infrastructure for applications (1) Subsection (2) applies if – (a) a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and (b) the local government has – (i) a local planning policy about infrastructure or a planning scheme policy about infrastructure; or -- 10 of 16 -- 11 (ii) a provision, that was included before the commencement of this section, in its planning scheme about monetary contributions for specified infrastructure. (2) For deciding the aspect of the application relating to the local planning policy, the planning scheme policy or planning scheme provision – (a) chapter 5, part 1 does not apply; and (b) section 3.5.32(1)1 does not apply; and (c) the local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) as if the repealed Act had not been repealed. (3) However – (a) If a condition imposed under subsection (2) (c) is inconsistent with an infrastructure agreement for supplying the infrastructure, to the extent of the inconsistency, the agreement prevails; or (b) If the application is being decided under an IPA planning scheme, subsection (2) applies only until 31 March 2005.” [18] The provision of the repealed Act (the Local Government (Planning and Environment) Act 1990) which is brought in is s.6.2 (contributions towards water supply and sewerage works) in particular subsection (5): “Where the local government, pursuant to subsections (3) to (4), requires the applicant to pay the cost or a contribution towards the cost of any water supply headworks, sewerage headworks, water supply works external or sewerage works external (or any 2 or more of them) provided or to be provided in connection with the use of the relevant land either in whole or in stages, and that requirement is satisfied, and a further prescribed application is made which relates to that land (whether by the same or by a different applicant), the local government is not, in relation to that subsequent application, to require the payment of the cost or a contribution towards the cost of any of those works unless – (a) the use then to be made of that land will, in the opinion of the local government, create a greater demand on the works than that for which a contribution has already been made; and (b) the amount of any additional cost or contribution does not exceed the cost of satisfying the greater demand.” [19] The use of the word “then” means that the opinion is the one arrived at the time when the later application is made. The Council’s current Planning Scheme Policy (Number 2 – a copy of which was Exhibit 4) is the basis of the Council’s opinion -- 11 of 16 -- 12 (as referred to in s.6.2(5)(a)) that the use now proposed to be made of the land will create a “greater demand” than “that for which a contribution has already been made”. No basis appears for challenging the appropriateness of that opinion, in accordance with which an assessment of 45 ETs per hectare rather than the 1982 estimate of 10 ETs per hectare is appropriate. (There is no material on which the court could form a view under s 6.2(5) (b), set out in the preceding paragraph.) [20] As from 16 October 2003 the words “as if the repealed Act had not been repealed” were removed from s.6.1.31 (2) (c) of the IPA and replaced by “under a policy or provision mentioned in subsection (1) (b)”. (Subsection 3(b) was also changed to permit the Minister to nominate for any particular planning scheme a later date than 31 March 2005 by gazette notice.) [21] Mr Fynes-Clinton, by reference to relevant Explanatory Notes, submitted that the point of the change was not to give local governments authority to apply policies such as Exhibit 4 in untrammelled fashion, but to make it clear that restrictions imposed by the “repealed Act” on the types of development application which might attract imposition of conditions of the kind presently in issue if approved should not apply. It may be accepted that no legislative intention appears to make any change in the law (whatever the law might have been) regarding “double dipping”. I took it to be common ground that the present development application should be assessed in accordance with the law applying when it was made. [22] Mr Fynes-Clinton presented his argument that “double dipping” is unlawful (in the sense of failing the relevant/reasonable test) in a seductive way. It began with Judge Row’s decisions, which may well have had in mind (although they did not refer to) -- 12 of 16 -- 13 s.33 (16C) of the Local Government Act 1936. That approach, he said, was subsequently enacted in the City of Brisbane Town Planning Act by s.22E which provided, among other things: “(4) Where consequent upon the making of an application referred to in subsection (1) (a) the Council or its delegate requires the applicant to pay pursuant to subsection (1) or (2) the cost or a contribution towards the cost of any works provided or to be provided in connexion with the use of the relevant land and that requirement is satisfied then if a further such application is made which relates to the relevant land, the Council or its delegate shall not in relation to that further application require the applicant to pay the cost or a contribution towards the cost of any such works unless – (a) the use then to be made of the relevant land will, in the opinion of the Council or its delegate, create a greater demand on the works; and (b) the amount of any such cost or contribution does not exceed the cost of satisfying that greater demand. (5) The amount of any contribution required to be paid to the Council under this section shall be determined in accordance with a policy fixed form time to time by the Council by resolution.” [23] It was not contended that subsection (4) helped the applicant’s situation, because such contributions as were made by Cal-Mac were not made pursuant to subsections (1) or (2). [24] Of a ‘conceptually similar” provision in the 1990 Act (s.5.6(1)), Judge Quirk said in Bruce Small Estates v Gold Coast City Council (1993) QPELR 101, 104: “It was agreed by both Counsel in argument that this provision is obviously aimed at what is colloquially called “double dipping” by a Local Authority in respect of park contribution. One might observe that decided cases in this Court have rarely favoured such a thing and it might quite plausibly be argued that the Act, as a “code”, was doing no more than making clear, by express provision, the inappropriateness of such a practice”. [25] One case in the court arguably decided in a different way which Mr Fynes-Clinton drew attention to (and sought to distinguish) is Bardell v Council of the Shire of Isis (1988) QPELR 200. At 204-05, Senior Judge Skoien upheld conditions requiring -- 13 of 16 -- 14 contributions for water supply headworks and parks contribution at subdivision stage over and above those which had been exacted at rezoning stage, the explanation being that more intensive use was contemplated at the later stage. What his Honour said at 205 was that Mr Bardell had failed to show that the intensity of development proposed by him had been in contemplation by the Council all along. [26] This is all consistent with the s.22E approach which, as has been seen, persisted in successor legislative regimes. In the end, I think it is straining things to construe the provisions considered as outlawing “double dipping”. Indeed, they appear to me to support the Council’s approach here of allowing appropriate credit for contributions already made, when effect is given to the policies etc current when a new development application is made and must be assessed . The appellant, which bears the onus of proof, has not persuaded me that the development now proposed (even assuming it to have been theoretically open) in 1982, was in contemplation of the then applicant for subdivision and Council. It is right to regard all of these matters as running with the land. There was no contention by the appellant that anything about the rezoning deed from 1982 had any particular consequences, other than the one basic to its argument that it constitutes a bargain whereby the Council bound itself to supply access to sewerage and water supply services without calling for further contributions. In my view the original contributions were part of the price of obtaining rezoning. That further contributions might not have been exigible having regard to Judge Row’s approach or s 22E if the present development application had been made a long time ago is irrelevant now. [27] Considerable reliance was placed by Mr Fynes-Clinton upon s.20 (1) (c) of the Acts Interpretation Act 1954 as it stood in 1985 (see now s.20(2)(c)) whereby the repeal -- 14 of 16 -- 15 or amendment of an Act does not “affect a right, privilege or liability acquired, accrued or incurred under the Act”. Particular reference was made to Esber v The Commonwealth (1992) 174 CLR 430, 441 (in which protection was accorded to the right of a serviceman to apply to commute a pension to a lump sum payment) and Resort Management Services Pty Ltd v. Noosa Shire Council (1997) 2 Qd.R. 291, especially at 302-03, in which a right to seek compensation for an adverse change to a planning scheme notwithstanding the repeal of s.33(1) of the Local Government Act 1936 before a claim had actually been made was held protected. Having given earnest consideration to the passages referred to, I am unable to identify anything in the nature of a right under an Act being repealed or amended in the present situation. This may explain why counsel resorted to the alternative description of “privilege” – which I find it equally difficult to identify here. It appears to me that, at all times, the appellant, or anyone seeking necessary approval from the Council to change the use of the land from hotel purposes to retail or any new purposes must expect to have the application governed by the relevant rules in place when it is made. Those are found in s.6.1.31 and other sections (in particular s.3.5.30 (1)) of the IPA which, in the ways indicated above, allow effect to be given to changes that happen. It was common ground that in respect of water supply and sewerage, over the years that have elapsed here, standards (and necessarily, costs) of services expected had increased. [28] As Judge Quirk observed, the Council’s ability to insist upon headworks contributions does not carry with it any obligation to insist upon contributions, either in full or to any particular extent. All the court determines is that the appellant’s contention that no further contributions for water supply headworks or sewerage headworks may be required by conditions on the approval of the new -- 15 of 16 -- 16 development application is rejected, that the Council’s approach is correct, rather than the appellant’s; that approach is not unlawful, nor unreasonable, for purposes of s 3.5.30(1). -- 16 of 16 --