HopgoodGanim’s Planning and Development team has successfully obtained a declaration from the Planning and Environment Court that a land notice issued by the Gold Coast City Council, which was attached to an infrastructure charge notice accompanying a client’s development approval, was void and of no effect.

The development approval granted a development permit for a material change of use for a mixed use development consisting of seven high rise apartment buildings and commercial ground floor uses. The land notice required the applicant to transfer the fee simple of land identified in it to the Council.

The point in consideration in these originating proceedings was a relatively narrow one - whether the Council could issue a land notice for the land where it was not identified as ‘trunk infrastructure’ in its priority infrastructure charges plan. Ultimately, the orders were made by way of consent judgment. However, the submissions required the Court to consider relevant sections of the Integrated Planning Act 1997, including the proper meaning to be attributed to the phrase ‘development infrastructure that is land’. In making the orders proposed, the Court and Council accepted that for a land notice to be issued under section 5.1.12(2) of the Integrated Planning Act, the land must be identified as ‘trunk infrastructure’ in the infrastructure charges schedule contained within the priority infrastructure plan. As the land did not meet this description, the Council was precluded from issuing a land notice for it.

In circumstances where a Council’s priority infrastructure plan does not identify land that is the subject of a development approval as ‘trunk infrastructure’, the validity of any land notice issued in relation to the land is open to challenge, and is likely to be set aside on the basis that its issuance was unlawful and beyond power. Where land is not identified for park purposes in a Council’s priority infrastructure plan, it can only be ‘obtained’ by the Council as park through a condition imposed on a development approval or through the Council exercising its acquisition powers. The Council’s ability to impose a condition of that first type is limited to the circumstances described in sections 5.1.24 and 5.1.25 of the Integrated Planning Act. We note that the equivalent provisions in the new Sustainable Planning Act 2009, sections 649 and 650, are largely written in identical terms, and it would therefore appear that the same limitations will continue to operate on commencement of the new Act.

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