The recent Queensland Court of Appeal decision of Homeland Property Developments Pty Ltd v Whitsunday Regional Council [2025] QCA 234 provides clarification on the operation of the infrastructure provisions in chapter 4 of the Planning Act 2016 (Qld) (PA) and their relationship with the development assessment framework in chapter 3.
Whitsunday Regional Council (Council) approved a large residential development to be developed in stages over a long period of time. Council imposed conditions on the development approval which required the applicant to undertake various infrastructure works, including water reservoir and sewerage works. Council imposed the conditions under section 145 of the PA as non-trunk infrastructure works. The applicant was prepared to undertake the works but sought to have the conditions imposed under section 128 of the PA. A condition imposed under section 128 would enable the applicant to benefit from offsets and refunds for trunk infrastructure works.
The applicant appealed various conditions to the Planning and Environment Court (PEC). At the time the development application was properly made, there was no Local Government Infrastructure Plan (LGIP). However, at the time of the hearing an LGIP was in place but it did not identify future water or sewerage infrastructure to service the site. His Honour Judge Williamson KC made orders to approve the application subject to conditions without the imposition of conditions under section 128 of the PA.
The applicant made an application to appeal to the Court of Appeal (COA) alleging errors of law.
The central issue before the COA was whether the statutory pre-conditions for imposing necessary infrastructure conditions under section 128 of the PA were met. The COA confirmed that these provisions only apply where an LGIP formed part of the planning scheme when the development application was properly made. Her Honour Justice Debra Mullins, COA President, thought that the starting point for determining the dispute should have been the decision of the PEC as to the weight to be given to amendments made to the LGIP in assessing the development application.
Her Honour held that section 111 of the PA governs the application of part 2 of chapter 4 (other than section 112 and division 5) which only applies to a local government if its planning scheme includes an LGIP. In this matter, no LGIP was in place at the time the application was properly made. As a result, the legislative basis for imposing a necessary infrastructure condition under section 128 was not engaged as part of the ordinary assessment under section 45(5) and (7) of the PA. If the planning scheme is amended (as happened here), then the primary question becomes what weight, if any, should be afforded to the LGIP amendment in the exercise of the planning discretion, acknowledging that section 128 is only engaged if the requirements of section 127 of the PA are met.
A significant aspect of the judgment was the COA’s endorsement of the primary judge’s interpretation of section 127 of the PA. Mullins P accepted that the provision should be read as requiring trunk infrastructure “for the subject premises”, reinforcing the need for the LGIP to identify the infrastructure relevant to the particular site as a threshold issue to the availability of a necessary trunk infrastructure condition under section 128 of the PA. This interpretation aligned with the statutory context and explanatory notes. The amended LGIP in force at the time of the PEC hearing did not identify existing or future trunk infrastructure which meant that the requirements of section 127(1) of the PA had not been met.
The COA accepted that later amendments introducing an LGIP could be afforded weight in the development assessment under section 45(8) of the PA, but the weight given to those amendments is a discretionary matter for the assessment manager (or the PEC on appeal). The primary judge had given no weight to either of these LGIP amendments. Mullins P confirmed that the exercise of this discretion was open to the primary judge and there was no error of law.
The COA also drew a clear distinction between trunk and non-trunk infrastructure conditions. While section 128 applies only where an LGIP exists and the requirements of section 127 of the PA are satisfied, section 145 is not so limited. That provision is in part 2, division 5 which is excluded from the application section (section 111). A condition under section 145 of the PA can be imposed even if no LGIP exists provided its requirements are met.
Key takeaways
This decision reinforces the importance of identifying at the outset whether an LGIP was in force when the development application was properly made. Without an LGIP, the statutory pathway for imposing a necessary infrastructure condition under section 128 cannot be engaged in the standard assessment of an application. Even where an LGIP exists, the infrastructure must be identified as trunk infrastructure for the specific premises to satisfy the requirements of section 127(1)(a) and (b) of the PA. Later LGIP amendments may be relevant as a question of weight under section 45(8), but the extent to which amendments influence the assessment will always depend on the circumstances and involve matters of discretion.
The case also demonstrates that, where section 128 is unavailable, a local government still retains the ability to impose non-trunk infrastructure conditions under section 145. These conditions are not subject to the LGIP-based constraints for necessary trunk infrastructure conditions, provided they meet the statutory requirements for a development condition.
