Wagner Investments Pty Ltd & Anor v Toowoomba Regional Council [2021] HCATrans 73 (16 April 2021)

Last Updated: 19 April 2021

[2021] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B60 of 2020

B e t w e e n -

WAGNER INVESTMENTS PTY LTD ACN 011 055 271

First Applicant

MARCOOLA INVESTMENTS PTY LTD ACN 103 682 382

Second Applicant

and

TOOWOOMBA REGIONAL COUNCIL

Respondent

Application for special leave to appeal

GAGELER J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 10.06 AM

Copyright in the High Court of Australia
MR D.F. JACKSON, QC: Your Honours, if the Court please, I appear with my learned friends, MR R.S. LITSTER, QC and MR L.V. SHEPTOOHA, for the applicants. (instructed by Andrew Davis Planning Lawyers)

MR D.R. GORE, QC: May it please the Court, I appear with my learned friend, MR M.J. BATTY, for the respondent. (instructed by Evans Planning Law)

GAGELER J: Mr Jackson.

MR JACKSON: Your Honours, may I go immediately to the statutory provisions which are relevant. They are provisions in the Sustainable Planning Act 2009, which have been replaced but in similar terms by the Planning Act 2016 (Qld) and that is referred to in the written submissions.

GAGELER J: That is one of the difficulties in this area. This legislation is changing all the time, is it not?

MR JACKSON: Well, the legislation changes, of course. It has not changed, with respect, relevantly and it applies throughout Queensland ‑ ‑ ‑

GAGELER J: Yes.

MR JACKSON: ‑ ‑ ‑ to every council. Your Honours, the relevant provisions – if I could go to those briefly – because the case does involve, I would submit, relatively short questions of construction.

GAGELER J: Yes.

MR JACKSON: The provisions commence with the definition of “adopted charge” in section 627, which is at page 105 – and your Honours will see that it takes one to section 630(1), at page 107. You will see from that the State has empowered local governments to adopt by resolution what are called adopted charges:

for providing trunk infrastructure for development.

The power of a local government to adopt such charges is not, however, unlimited. In the first place, any such charge must not exceed the maximum which has been imposed by the State for such charges. Your Honours will see that first of all from section 629(1) - you will see the word “maximum”, and then in the definition provisions in section 629(5), once again, it is a maximum charge. If one goes from that to section 631 at the next page, page 108, what your Honours will see is that section 631(1)(b) provides that the adopted charge may be:

no more than the maximum adopted charge for providing trunk infrastructure for development ‑

Now, “trunk infrastructure”, your Honours, is defined in section 627, “development infrastructure” is at page 105. But the Act in section 630(2)(a) at page 108, makes it clear that the adoption of a charge by a local government does not, of itself, impose a charge. Rather, that is done by the local authority giving a notice pursuant to section 635 which is at page 109. Your Honours will also see the definition of “levied charge” in section 627.

It is here, in section 635, that one comes to the core of the case because it was a case in which section 635(6) applied in the sense that the amounts levied for transport infrastructure simply applied the adopted charges by the Council. The terms of section 635(6)(a) make it apparent, your Honours, that that is not the end of the matter. They provide specifically that the amount of the charge so levied is subject to section 636. When one goes to section 636, it states very clearly in section 636(1) that:

A levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development.

GAGELER J: Do you say that goes to the quantum of the levy?

MR JACKSON: Yes, your Honour, yes. Could I put it shortly, your Honour? The State government sets the level of adopted charges. They cannot be exceeded but the amount actually charged up to the amount of the levy – up to the amount of the adopted charge is something that can be challenged. Your Honours will see that there are two integers referred to. One is additional demand and the other is trunk infrastructure ‑ ‑ ‑

EDELMAN J: Mr Jackson, do you accept that the levied charge cannot be used effectively as a collateral challenge to an adopted charge?

MR JACKSON: It depends what your Honour means by “collateral”. In a sense ‑ ‑ ‑

EDELMAN J: If the levied charge is simply the adopted charge with some formula attached to it, and there is no real dispute about the formula, you cannot, under section 478, challenge the levied charge as a collateral means of challenging the adopted charge.

MR JACKSON: I think I agree with your Honour in the sense that what we would say is that it may be that if one were to work out, in the abstract, what the additional cost was, it would exceed the adopted charge, in which case the Council could charge the adopted charge, but no more. It may be that, in working out what is the appropriate amount, less than the adopted charge, one has to apply a methodology provided for in the adopted charge. But the result of the application of the methodology is the matter that could be challenged, your Honour.

EDELMAN J: That is the sphere we are in. We are in the area where what your challenge is, is not really in relation to the provisions, it is in relation to the methodology that was adopted in the implementation of these particular provisions.

MR JACKSON: Well, no. With respect, your Honour, no. What we are challenging in this application is the view taken by the Court of Appeal that if a case was one where an adopted charge was potentially applicable, the amount to be charged was the adopted charge itself, not some amount below that. Your Honour, that can be seen from the essence of the decision of the Court of Appeal, which your Honours will see at paragraph [94] at page 84, and the last lines of that paragraph. Your Honours will see there is a reference to the appeal provision, section 478(3). It said it:

made it clear that any appeal could not be about the adopted charge itself.

Your Honours will see, in the last four or five lines of that paragraph, which lies at the heart of the decision, that the provisions to which reference is there being made can be seen at page 104 ‑ ‑ ‑

EDELMAN J: But is not the Court of Appeal really saying, in the last sentence of [94], that assuming that the methodology of moving from the adopted charge to the levied charge were correct, then the effect of the legislation is that there is no room left for challenge because ‑ ‑ ‑

MR JACKSON: Well, in our submission, not ‑ ‑ ‑

EDELMAN J: ‑ ‑ ‑ a challenge to the levied charge then is a challenge to the adopted charge.

MR JACKSON: That seems to be a possible view of, and a kind of reconstruction of, if I may so, with respect, what the Court of Appeal actually said, because the Court of Appeal’s view simply seems to be that if you are – if there is the threshold issue of some additional demand satisfied, then the appropriate amount to be charged is the adopted charge itself. I think the distinction “without a difference”, a phrase that is used - is elsewhere in the reasons for judgment.

Your Honours, could I just say, the appeal provisions, your Honours will see at page 104. They reflect, in our submission, what the correct construction of the later provisions is. You will see, your Honours, that section 478(3)(a), makes is apparent that one cannot appeal about the adopted charge itself.

GAGELER J: What does that mean?

MR JACKSON: It means, your Honour, that one cannot challenge the amount that has been fixed by the State government as the amount of any adopted charge.

GAGELER J: So, does that take us to then to the charge’s resolution? I mean, do we end up construing the legislation ‑ ‑ ‑

MR JACKSON: Well, not really, your Honour, because what you have is a situation where the Council adopts the resolutions. Assuming that the subject matter is within the particular resolution, that does not seem to be a particular issue here except perhaps in one respect, the question then is whether the amount that is so charged can be something that is the subject of an appeal. By that I mean you will see that section 478(1) allows there to be an appeal against:

the decision to give the notice -

and section 478(2)(a), refers to the fact that the charge is “so unreasonable”, et cetera, and your Honours will also see that section 478(2)(b) also makes it clear that one can appeal about the application charge or the working out for section 636 of additional demand.

So, your Honour, within the upper limit of the charge there can be a challenge to the result of - to the notice. But the error in the Court of Appeal, in our submission – I should also pass over to section 636 and that is that - you will see that 635(6)(a) says that the notice is “subject to sections 636” ‑ ‑ ‑

GAGELER J: I am sorry, Mr Jackson, what page is that on?

MR JACKSON: I am sorry, page 110, your Honour.

GAGELER J: Thank you.

MR JACKSON: You will see there a limitation in section 636(1) that it:

may be only for additional demand placed upon trunk infrastructure that will be generated by the development.

Then you will see subsections (2), (3) and (4) deal with the matters that may be taken into account. They make it apparent, in our submission, that the fact that the case is one falling within a category to which there may be infrastructure levies made and where there are adopted charges does not have the consequence that the amount of the levy has to be the amount of the adopted charge. Your Honour, that is the point in the case, if I can put it that way.

GAGELER J: Yes.

MR JACKSON: That is one of very considerable significance.

GAGELER J: I think your grounds of proposed appeal might go a little beyond that point, Mr Jackson. You are saying that is the gist of the special leave point, I take it.

MR JACKSON: Your Honour, the grounds of appeal to which I was addressing those submissions were paragraphs 1, 2 and 3.

GAGELER J: Yes.

MR JACKSON: I have not come to paragraph 4, but may I do so and do so briefly, your Honours. There is a further issue to which we referred in paragraph 4, namely, whether there was an error in treating a natural feature.

EDELMAN J: But the ground of appeal in the Court of Appeal to which that related was a ground on which you succeeded.

MR JACKSON: Yes, it was. I am sorry, no, I am sorry, your Honour.

EDELMAN J: This is the stormwater.

MR JACKSON: Could I just say there were two issues in the Court of Appeal dealing with that question. The first of them was that they arose because the primary judge had decided in our favour on two issues that were raised: one, whether the creek was or was not trunk infrastructure, on the one hand, but, in any event, he held there was no additional demand placed upon it. As to those two bases, the Court of Appeal overruled him on the question of whether Westbrook Creek was trunk infrastructure and arrived at the same conclusion on the other issue. So, our case succeeded.
It is not, in our submission, a case where the appeal is just one against reasons and may I seek to demonstrate why that is so.

Your Honours, the Council’s appeal did not wholly succeed, and the stormwater charges remained set aside, but the finding that Westbrook Creek was trunk infrastructure was a crucial part of the appeal and it was an independent ground of appeal in the Court of Appeal.

It has significant ongoing implications for our future development, and it may involve very significant amounts of money. It is a case, in our submission ‑ as in Driclad and the other cases on this area – where it was intended to dispose in a final way of all the issues in the litigation which the court was required to resolve.

EDELMAN J: You did not ask for the declaration that you are now asking for.

MR JACKSON: I am sorry, your Honour?

EDELMAN J: In the Court of Appeal, you did not ask for the declaration that you would now ask for in this Court.

MR JACKSON: We were resisting an appeal, as your Honour will appreciate. It was a question of what the correct result of the appeal should be and, of course, the appeal was simply stated as one that was failing. In our submission, it was appropriate that the orders be along the lines referred to on page 93, paragraph 7 of our submissions. Can I mention one other matter, and that is that the – I think I will leave it at that, your Honour.

GAGELER J: Thank you, Mr Jackson. Mr Gore, we do not need to hear from you. Thank you.

MR GORE: As your Honour pleases.

GAGELER J: The decision from which special leave to appeal is sought turns on the construction of frequently amended provisions of planning legislation peculiar to Queensland. We are not persuaded that it raises a question of principle suitable for the consideration of this Court. Special leave to appeal is refused with costs.

AT 10.24 AM THE MATTER WAS CONCLUDED