Supreme Court declares landowner is required to pay outstanding infrastructure charges

In brief – The Supreme Court has dismissed an application by a landowner seeking a declaration that it was not liable to pay unpaid infrastructure charges by way of a rate notice it received as the owner of the land in relation to a development approval which was obtained and acted upon by a tenant. This decision has implications for landowners, developers and local government moving forward in relation to who is lawfully required to make payment of unpaid infrastructure charges.

Implications

• the owner of land is liable to pay unpaid infrastructure charges incurred by a tenant of the land and a local government may levy unpaid infrastructure charges on a landowner as a rate on the land.
• where a landowner grants consent to the lodgement of a development application by another person, including a tenant, the owner should ensure appropriate arrangements are in place to require the applicant to pay the infrastructure charges and / or recover unpaid infrastructure charges from the applicant.

Decision

Trevorrow was the owner of land which was leased to Pro Skips Pty Ltd who remained in occupation until March 2016.

In October 2006, Pro Skips Pty Ltd made a development application to the Gold Coast City Council for a refuse transfer station, which was already in operation. As part of the making of the application, Pro Skips Pty Ltd obtained the written consent of Trevorrow as the owner of the land.

In November 2008, the Council approved the development application and gave Pro Skips Pty Ltd an infrastructure charges notice. Pro Skips Pty Ltd filed an appeal in the Planning and Environment Court against the Council’s infrastructure charges notice and in November 2009, the Council gave a new infrastructure charges notice.

In May 2013, the Council gave Trevorrow a rate notice in the sum of the unpaid infrastructure charges that was in excess of $400,000.

Trevorrow contended that it was not liable to make payment of the unpaid infrastructure charges as:

• the applicant and not the owner of land is responsible for making payment of the unpaid infrastructure charges the subject of a development application;
• the character of rates is that they are tax payable by an owner of land that is rateable;
• it cannot be held responsible for the unpaid infrastructure charges as Pro Skips Pty Ltd is the applicant responsible for receiving and making payment of the infrastructure charges notice.

The Court having regard to the provisions (as a whole) of the Sustainable Planning Act 2009 formed a view that:

• a local government must give the infrastructure charges notice to the applicant if the notice is given as a result of a development approval or alternatively give the notice to the owner of the land;
• an infrastructure charge may be levied by a local government for the purpose of recovery and is taken to be a rate;
• whilst the provisions did not expressly address whether the person who is liable to pay an infrastructure charge is the owner of the land, the effect of providing that an unpaid infrastructure charge is taken to be a rate invites the consideration of who is liable to pay rates;
• a local government may levy a rate by way of a rate notice and give the notice to an owner of the rateable land;
• if there are any unpaid rates and charges over the land, the unpaid rates and charges are a charge on the land;
• where an infrastructure charge was payable by and paid by an applicant, no recovery from an owner of land would be necessary;
• there was no other contextual support in the Act to support Trevorrow’s contention that an owner of land is not liable for the payment of unpaid infrastructure charges.

Ultimately, the Court held that the landowner was liable for the unpaid infrastructure charges and there was no restriction on recovering the unpaid infrastructure charges from the landowner despite the fact that the charges were in relation to the use of the premises by a tenant.

Authored by:
Stafford Hopewell, Partner
Elton Morais, Senior Associate