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International Restructuring Newswire
Welcome to the Q2 2024 edition of the Norton Rose Fulbright International Restructuring Newswire.
Australia | Publication | June 2019
The appeal concerned a challenge against various charges levied by the Toowoomba Regional Council for stormwater and transport infrastructure.
The principal issues in dispute were:
The Planning and Environment Court ultimately allowed the appeal, set aside the charges for stormwater and remitted the charges for transport to the Toowoomba Regional Council for further consideration and assessment.
While the appeal was decided under the repealed Sustainable Planning Act 2009, the relevant provisions are not materially different under the Planning Act 20161.
The Toowoomba Regional Council contended that Westbrook Creek, a natural formed waterway, constituted trunk stormwater infrastructure despite it not being identified as trunk infrastructure within its Local Government Infrastructure Plan.
The Planning and Environment Court held that position could not be maintained because:
It therefore concluded that Westbrook Creek was not trunk stormwater infrastructure.
The Planning and Environment Court also considered the Appellant’s alternative argument, namely that the Toowoomba Regional Council was precluded from levying charges because the development did not place any additional demand upon trunk stormwater infrastructure.
In this regard, the Planning and Environment Court relied on the joint expert report prepared by the parties’ hydraulic engineers which satisfied it that the development would not place any additional demand upon trunk stormwater infrastructure (even if Westbrook Creek was trunk stormwater infrastructure). Accordingly, the Planning and Environment Court held the Toowoomba Regional Council had no lawful authorisation to levy the charges it had for stormwater infrastructure.
The Planning and Environment Court therefore concluded the charges levied for trunk stormwater infrastructure should be set aside.
While the Appellant agreed the development would generate additional demand on trunk transport infrastructure, it contended the charges imposed by the Toowoomba Regional Council had no rational or reasonable basis. In this regard, the Appellant argued that:
Having regard to the nature of the uses contemplated by the development, as well as the expert evidence from the parties’ traffic engineers, the Planning and Environment Court held it was sufficiently clear that while some aspects of the development had been properly classified as “industry” and “special services”, others ought to have been classified as “specialised uses” which required a meaningful attempt to calculate or estimate the demand on trunk transport infrastructure.
Accordingly, it was satisfied the Toowoomba Regional Council had “adopted an approach that was not lawfully reasonable in the sense that it would result in outcomes that would be unlikely to bear any legitimate relationship between the “specialised uses” and the demand placed upon trunk transport infrastructure”;
The Planning and Environment Court therefore concluded that, so far as the “specialised uses” were concerned, the charges levied for trunk transport infrastructure should be remitted to the Toowoomba Regional Council for further consideration and assessment.
The judgment of the Planning and Environment Court in this appeal provides clarity in relation to the preconditions necessary for the levying of infrastructure, namely that:
Absent any trunk infrastructure, there can be no reasonable basis for levying a charge. Likewise, failure to identify the additional demand placed upon trunk infrastructure by a development supports the proposition that a levied charge is unreasonable insofar that it is difficult to find any legitimate or rational correlation in relation to the likely additional demand placed upon the trunk infrastructure.
For more information, or further discussion, please contact Rebecca Hoare or Daniel Tweedale.
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