Even in the new era of ‘capped’ infrastructure charges on development approvals, difficulties still arise in achieving accurate and fair calculations of infrastructure charges. The recent results below were achieved by Thomson Geer in successfully recalculating infrastructure charges.
Credits for previous use
The following cases relate to credits being obtained for a previous use on the development site:
- High Rise Development, Labrador: A number of residential towers were approved on the site, where there was a previous use for a bowling alley on 1 Lot that had been abandoned and demolished over 10 years ago. The Council refused to provide a credit given the age of the previous use. An appeal was filed to the Court against the Council’s Infrastructure Charges Notice and an early settlement of the appeal was achieved allowing the credit – saving $250,000.
- Indoor Skate Park, Brisbane: Council imposed infrastructure charges exceeding $100,000 on the approval of an indoor skate park in an existing industrial building. The applicant had tried for an extended period of time to lobby Council to have the charges removed and had even entered into a payment plan with the Council for those charges. The use had also commenced. The charges were challenged in Court and an early settlement obtained resulting in their entire removal – saving $100,000.
When is a ‘bedroom’ not a bedroom?
In response to a concern that developers were nominating rooms in dwellings as something other than a bedroom (e.g. study, MPR) to pay charges at a lower rate, Councils expanded their definition of a ‘bedroom’ in their charging instruments to capture many types of rooms potentially able to be used as a bedroom.
In the following cases, the decision to charge a room as a ‘bedroom’ was reversed:
- Capalaba Unit Development: Charges levied for a three ‘bedroom’ dwelling were amended to only be charged as a two bedroom dwelling, where the study was too small to be used a bedroom – saving $80,000.
- Cannon Hill Unit Development: Units were being charged as three bedroom units where one of the ‘bedrooms’ was not capable of being used as a bedroom due to a lack of natural light. The charges were successfully amended to be levied on two bedroom units – saving $40,000.
- Toowoomba Aged Care Facility: Charges were imposed on retirement units using the rate for a three bedroom dwelling. Given the use of a retirement unit (typically 1 couple), the dwellings would never be practically used as three bedroom dwellings. The charges were amended to be based on the rate for a two bedroom dwelling – saving $275,000.
State Transport Charges
Gold Coast Residential Estate – The Department of Transport and Main Roads imposed an infrastructure contribution on the approval of the estate for State transport infrastructure of approximately $2 million. The challenge was brought against the charge several years after the approval had been granted and parts of the estate had been constructed. The charge was successfully removed from the development through proceedings in the Court.
New Infrastructure Charging Processes
Thomson Geer is presently involved in two applications under the new processes for infrastructure charging reductions being:
- Recalculation of the establishment cost of land: an application seeking an increase in the value of trunk land being dedicated as part of a development approval.
- Conversion application: an application seeking to convert non-trunk infrastructure required under a development approval to trunk infrastructure. If the conversion application is successful, the value of the infrastructure will be offset against the infrastructure charges for the development.
These applications are some of the first of their kind under the new infrastructure charges regime under the Sustainable Planning Act 2009 (Qld).
If you have any queries relating to infrastructure charges please do not hesitate to contact:
Michael Marshall | Partner | +61 7 3338 7525 | email@example.com
Rayne Nelms | Special Counsel | +61 7 3338 7534 | firstname.lastname@example.org