Wagners seeking special leave to appeal to High Court over Court of Appeal infrastructure charges decision

The Wagners are taking their fight against Toowoomba Regional Council to the High Court, arguing a September Court of Appeal decision if left uncorrected would have consequences for the levying of infrastructure charges right across Queensland.

THE Wagner family has taken its fight against millions of dollars of infrastructure charges levied by the Toowoomba Regional Council to the High Court.

Two Wagner companies, Wagner Investments Pty Ltd and Marcoola Investments Pty Ltd, are seeking special leave to appeal to the High Court after a Court of Appeal decision in September delivered mixed results for Wagners and TRC in their years-long fight over infrastructure charges levied for the Wellcamp Airport and Business Park developments.

In seeking special leave to appeal, Wagners argue the application “raises matters of public importance and of general application” and that if left uncorrected, the CoA decision would have consequences for the levying of infrastructure charges right across the state.

Wagners are arguing the CoA decision curtails people’s rights to appeal infrastructure charges notices in Queensland on merits advanced by parts of the Sustainable Planning Act.

Wagners also claim that left uncorrected, the CoA decision means local governments can impose a levied charge for non-residential lot reconfiguration that generates no additional demand on trunk infrastructure and which “could not be challenged on the grounds identified by the Sustainable Planning Act”.

Thirdly, Wagners argue that the CoA decision means local governments in Queensland would be able to levy stormwater charges for additional demand placed on a natural feature of the land (for instance, a creek) as “trunk infrastructure”, “even though it has not been acquired or in some way modified and there are no plans to do so.”

The council is arguing special leave should not be granted because “the decision of the CoA was correct or not attended with sufficient doubt” and “(Wagners) have insubstantial prospects of success”, among other reasons.

The CoA in September agreed with a May 2019 decision by the Planning and Environment Court which cleared Wagners of having to pay more than $20 million in stormwater infrastructure charges.

The court found the decision to levy stormwater charges on infrastructure that caused no additional demand on the stormwater system was unlawful.

The court dismissed Wagners’ original, successful appeals against traffic trunk infrastructure charges, allowing the council to charge as per the infrastructure charges notice.

A date is yet to be set for the special leave hearing.