The Planning and Environment Court of Queensland, on 30 April 2025, delivered the decision of OPD Developers Pty Ltd v Logan City Council [2025] QPEC 8, which reinforced the statutory limits on local government powers to issue infrastructure charges notices (ICNs).
The case turned on whether a council can impose infrastructure charges when the development is made “accepted” under a Ministerial Infrastructure Designation (MID) and is not the subject of a development approval.
The first applicant, OPD Developers Pty Ltd, is the owner of land at Nestor Drive, Meadowbrook. Its related entity, Meadowbrook Health Pty Ltd (the second applicant), was the proponent of a hospital development on the land. On 1 July 2022, the Minister for State Development, Infrastructure, Local Government and Planning issued a MID under Chapter 2, Part 5 of the Planning Act 2016 (PA), designating the site for “hospitals and healthcare services.” The designation had the effect of making the hospital use “accepted development” under section 44 of the PA, meaning it could lawfully proceed without the need for a development approval.
Subsequently, on 20 June 2023, a private certifier issued a building approval to enable construction of the hospital. In response, Logan City Council (Council) issued an ICN referencing the building approval and imposing infrastructure charges totalling approximately $704,000.00. The applicants sought a declaration that the ICN was invalid and of no effect, and an order that it be set aside. The Court agreed.
Statutory framework and Issue in dispute
The case required close examination of the statutory framework regulating infrastructure charges. Under section 119 of the PA, a local government may only issue an ICN where a development approval has been granted. Section 120 then limits the scope of levied charges to “extra demand” placed on trunk infrastructure that the development will generate. Section 280 of the PA confines references to “the development” in this context to the development that is the subject of the development approval.
In this instance, the hospital use was authorised not by a development approval but by the MID, which rendered the use an accepted development. The ICN was issued with reference to the building approval, not the use itself. The question was whether the building approval could support the imposition of infrastructure charges in circumstances where the underlying use had already been authorised and did not require approval.
Council did not dispute that the hospital use was the source of the demand on trunk infrastructure, nor did it argue that the building works themselves created a separate or additional demand. As such, the dispute centred on whether the statutory preconditions for issuing an ICN had been met in the absence of a development approval for the use.
The Court’s reasoning
His Honour, Judge Everson, held that the Council lacked the statutory authority to issue the infrastructure charges notice. His Honour observed that because the use of the premises for a hospital had become accepted development as a result of the MID, there was no development approval as defined under the PA to which the infrastructure charges could lawfully attach. His Honour reasoned that:
“Because pursuant to s 119 a development approval is a pre-condition to the levying of an infrastructure charges notice, the reference to ‘the development’ in sub-s (1) [of s 120] must be a reference to the building approval, having regard to s 280.” at [9]
However, the building approval did not generate any new or additional demand on trunk infrastructure beyond that already attributable to the use authorised by the MID. As his Honour explained:
“In both cases the hospital is what will generate the demand on trunk infrastructure. As noted above, the use of the premises for a hospital became accepted development as a consequence of the MID.” at [9]
His Honour’s interpretation of section 120(2)(c) was central to the decision. That provision excludes from chargeable demand any development that may be lawfully carried out without a further development permit. In this case, the hospital use had already been lawfully authorised under the MID and did not require a development permit. The Court found:
“Subsection (2) requires that when working out the extra demand on trunk infrastructure, the demand generated by the use of the premises as a hospital must not be included ‘if the development may be lawfully carried out without the need for a further development permit’.” at [10]
His Honour also turned to the Acts Interpretation Act 1954, referring to section 14A(1), which favours a purposive construction of statutory provisions, and considered extrinsic material under section 14B. Relying on the explanatory notes to the Planning Bill 2015, which ultimately became section 120 of the PA, the Court said:
“Clause 119 ensures that a levied charge is only levied for additional demand placed on trunk infrastructure by a development. The clause prevents the existing lawful use of a site or the existing rights to develop a site from being considered additional demand, unless an infrastructure requirement that applies or applied to the use or development has not been complied with.” at [11]
These supported the Court’s conclusion that the Council’s interpretation was inconsistent with the legislative purpose. His Honour stated:
“It is clear to me that because the use of the premises for a hospital became accepted development as a consequence of the MID, s 120(2)(c) does not permit the infrastructure charges the subject of the ICN to be levied on the granting of the subsequent building approval.” at [12]
The Court found no discretionary basis to withhold relief, declaring the ICN invalid and ordering that it be set aside:
“I am unpersuaded that there are discretionary reasons which should deny the applicants the relief they seek.” at [13]
Implications
The judgment serves as an important reminder that infrastructure charges can only be levied strictly in accordance with the statutory scheme.
The decision draws a clear boundary around the charging powers of councils. It highlights that infrastructure funding cannot be pursued in circumstances where the legislation does not expressly permit it.
This interpretation gives full effect to the statutory intent that existing use rights and accepted development be credited in calculating infrastructure demand, thereby preserving development certainty.
This article has been authored by the Mullins Planning & Environment team; Partner, Mitchell Osborne, Partner, Anthony O’Dwyer, and Associate, Gus Haseler.