Summary

Amendments to the Planning Act 2016 (Planning Act) make clear that local governments can levy an infrastructure charge for development associated with accepted development.

The decision of the Planning and Environment Court in OPD Developers Pty Ltd & Anor v Logan City Council [2025] QPEC 8 raised doubt around the ability of local governments to do so after the Court declared an infrastructure charges notice (ICN) for development relating to the use of premises for a hospital which was accepted development under a Ministerial Infrastructure Designation (MID) to be invalid, and of no effect.

However, on 30 June 2025, the Planning (Social Impact and Community Benefit) and Other Legislation Amendment Act 2025 was passed, introducing amendments to the Planning Act 2016 to clarify that a local government may, and has been intended to be able to, levy an infrastructure charge for approved development associated with accepted development where the development generates extra demand on trunk infrastructure.

The amendments to the Planning Act also validate non-complying ICN’s given since 4 July 2014 when the current infrastructure charges framework was introduced.

OPD Developers Pty Ltd & Anor v Logan City Council [2025] QPEC 8

Facts

The decision of the Planning and Environment Court in OPD Developers concerned an Originating Application brought by the owners of land located a Meadowbrook for a declaration pursuant to section 11 of the Planning and Environment Court Act 2016 that an ICN purportedly issued by the Logan City Council (Council) was invalid and of no effect.

The Minister for State Development, Infrastructure, Local Government and Planning had previously made a MID under chapter 2, part 5 of the Planning Act identifying the Land for the development of infrastructure for a hospital and healthcare services use. As a result of the MID, the hospital use was accepted development by reason of section 44 of the Planning Act for which a development approval was not required.

The developer subsequently obtained a building works approval from a private certifier for the construction of the hospital and the Council issued an ICN in the amount of $704,029.49 in respect of the building works approval.

Issue

The key issue was whether the Council had the power to levy the infrastructure charges the subject of the ICN in circumstances where there was no extra demand placed on trunk infrastructure generated by the building works approval over and above that which was a consequence of the MID.

Findings

The Court noted that section 120(2) of the Planning Act in force at that time provided that when working out the extra demand on trunk infrastructure, the demand generated by the use of the premises as a hospital must not be included “if the development may be lawfully carried out without the need for a further development permit”.

The Court acknowledged that on one view the use may be lawfully carried out without the need for a further development permit but that on another view, the use still required an approval for building works for the construction of the hospital in order for it to be carried out.

In resolving the competing views, the Court referred to sections 14A of the Acts Interpretation Act 1954 requiring the interpretation which best serves the purposes of the Act to be preferred and section 14B of the AIA permitting extrinsic material, including an explanatory note, to be considered in assisting in the interpretation of a provision.

The Court ultimately found that in working out the extra demand, section 120(2)(c) did not permit the inclusion of the demand on trunk infrastructure generated by the use of the premises for a hospital in circumstances where the use of the premises for a hospital had already become accepted development as a consequence of the MID.

The Court found that interpretation is consistent with both sections 120(1) and 120(2) of the Planning Act read as a whole, which requires existing use rights (whether or not those use rights are active) to be credited in working out any extra demand generated by the development to which the infrastructure charges notices attaches.

It follows that the Court held that the infrastructure charges the subject of the ICN were not permitted to be levied upon the granting of the building works approval and declared the ICN invalid and of no effect and set it aside.

Legislative amendments to the Planning Act 2016

Following the decision in OPD Developers, the Planning (Social Impact and Community Benefit) and Other Legislation Amendment Act 2025 was introduced, entirely replacing section 120 of the Planning Act. The text of the new replacement section 120 can be found here.

The explanatory notes to the Planning (Social Impact and Community Benefit) and Other Legislation Amendment Bill 2025 provide that:

New section 85I substitutes section 120 (Limitation of levied charge) for improved readability by framing in the positive when an infrastructure charge notice can be issued to levy a charge on a development approval, as opposed to the current section 120 which details when a charge cannot be levied.

The purpose of the section 120 being substituted is to provide certainty and clarity that local governments may, and have been intended to be able to, levy an infrastructure charge for approved development involving accepted development when extra demand on trunk infrastructure is generated.

Accepted development may be stated in an Act, regulation or local categorising instrument (a planning scheme, a temporary local planning instrument, a variation approval). It may be an exemption certificate, a Ministerial Infrastructure Designation or where a defines a use as accepted development (for example, a warehouse in the industry zone).

The new section 120 now expressly permits the demand on trunk infrastructure generated by the following prescribed development or use to also be included in working out extra demand in certain circumstances:

• development that may be carried out on the premises without a development permit (for example, accepted development);
• development that is the subject of another development approval for the premises;
• an existing lawful use of the premises already being carried out;
• a previous lawful use of the premises no longer being carried out;
• another use of the premises that is a natural and ordinary consequence of the approved development or of the development referred to above; or
• another use that is, or is taken to be, a lawful use of the premises under the Planning Act or another Act.

The demand on trunk infrastructure generated by the above prescribed development or use may be included in working out the extra demand in either of two circumstances:

• An infrastructure requirement has not been complied with – that is, an infrastructure charges notice or development condition requiring infrastructure or an infrastructure-related payment in relation to the prescribed development or use has not been complied with; or
• The prescribed development or use has not yet been carried out, and either:
  • the approved development is for or relates to the prescribed development or use and the demand on trunk infrastructure generated by the prescribed development or use has not been included in working out extra demand for another infrastructure requirement; or
  • an infrastructure requirement applying to the premises on which the prescribed development or use will be carried out was given or imposed on the basis of development or a use of a lower scale or intensity being carried out on the premises.

The amendments also include a new Chapter 8, Part 11 validating ICN’s that did not comply with the former section 120 of the Planning Act (or its predecessor under section 636 of the Sustainable Planning Act 2009 as in force since 4 July 2014) and any payments made in relation to them.

The validation does not however revive an ICN that a court or tribunal had already declared invalid or set aside before the amendments commenced including, on its face, the ICN in OPD Developers itself.

Should you have any queries in relation to an ICN, or the current infrastructure charging framework, please do not hesitate to contact us.

This article was written by Shaun Pryor, Special Counsel, Chris Haywood, Senior Associate and Reuben Amdur-Webb, Solicitor.