Under the former Sustainable Planning Act 2009 (Qld) (SPA), and the current Planning Act 2016 (Qld) (PA), developers may apply to a local government to convert non-trunk infrastructure to trunk infrastructure. Until last week, this new area of the law had been untested.
A recent decision of her Honour Judge Kefford in The Avenues Highfields Pty Ltd v Toowoomba Regional Council (Avenues) has provided some guidance concerning conversion applications.
The Avenues case was an appeal against the refusal by the Toowoomba Regional Council of an application to convert non-trunk road infrastructure (which was conditioned in an approval) to trunk infrastructure.
The key findings of the Avenues judgment are as follows:
- An appeal about a conversion application must be decided based on the laws that apply at the time the appeal is heard and determined (not the laws that apply when the application is made). The Court is not precluded from also having regard to the laws that applied at the time the conversion application was made, but only to the extent that it may have “regard” to that law.
- The applicant for the conversion application has the onus of persuading the Court that the conversion application should be approved.
- In deciding a conversion application under SPA the decision maker must have “regard” to the relevant conversion criteria. The wording in PA is quite similar, only changing “regard” to “consider”.
- An applicant is not required to meet all of the conversion criteria to succeed in a conversion application. Instead, the assessment process simply requires the decision maker to “have regard to”, or “consider”, the criteria. It follows that an applicant does not have to satisfy all of the conversion criteria (for example in the relevant charges resolution) in order to succeed with the conversion application.
- More weight is likely to be given to the conversion criteria that consider the trunk / non trunk nature of the infrastructure, compared to the more legal-based criteria.
- The Court must be satisfied that the works are more (or do more) than what is required by section 665(2) (ie non-trunk infrastructure) of SPA (or the equivalent section 144 of PA).
- Upon approving a conversion application, the infrastructure condition(s) the subject of the conversion application are deleted, and the decision maker has a broad discretion to:
- Elect not to impose any necessary trunk infrastructure condition; or
- Impose a necessary trunk infrastructure condition.
- If the decision maker elects to impose a necessary trunk infrastructure condition, then it has a broad discretion regarding the form of the infrastructure. That is, the local government is not required to impose a condition for the same, or substantially the same (in an engineering sense) form of infrastructure. In this regard, the Court found that:
- If the local government imposes a more onerous necessary trunk infrastructure condition than the original condition, section 649 of SPA (and the equivalent section 128 of PA) is framed to ensure that a developer is compensated adequately;
- In determining whether to impose the necessary trunk infrastructure condition, local governments need to take into account that, should they not impose the condition, the development can lawfully proceed by complying with all remaining conditions; and
- The power to impose a necessary trunk infrastructure condition does not extend to a power to change the approval. For example, the local government could not reduce the number of approved lots of a subdivision so that a larger road could be accommodated within the development.
- If a decision maker elects not to impose a necessary trunk infrastructure condition, it may be because it will undertake the works itself. However, in practice there is nothing to guarantee that a local government will do so, and it may be the case that a successful conversion application results in a development being serviced by substandard infrastructure.
This is undoubtedly an area of law that will be further considered by the Planning and Environment Court in the future, particularly given the financial incentive behind conversion applications and the crucial difference they can make to a proposed development.
If you would like to discuss any potential conversion applications required for your development, or an appeal in respect of a conversion application, please contact Peter or Kelly on the details below.
This article was written by Peter Bittner, Partner and Patrick Byrne, Solicitor.