Bakrnchev Enterprises Pty Ltd v. Maroochy Shire Council & Ors
[2007] QPEC 117
•19 December 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 117
PARTIES:
BAKRNCHEV ENTERPRISES PTY LTD
(Appellant)
v
MAROOCHY SHIRE COUNCIL
(Respondent)
and
GEORGE PETER MALEY & FRANCES MARY MALEY
(First Co-Respondents by Election)
and
PHILIP EDWARD LEONARD & ANNE ELIZABETH LEONARD
(Second Co-Respondents by Election)
and
JAN CROSSING & CHESTER CROSSING
(Third Co-Respondents by Election)
FILE NO/S:
44 of 2006
DIVISION:
Appellate
PROCEEDING:
Developer Appeal against refusal of development application
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
19 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
19-21, 29 November 2007
JUDGE:
Robin QC DCJ
ORDER:
Appeal adjourned to enable appellant to change its proposal to retain additional “of concern” vegetation
CATCHWORDS:
Striking balance between urban designation of site in a master planned community / special management area under the Maroochy Plan 2000 – circumstances where Acceptable Measure should be complied with
COUNSEL:
G.R. Allan for the appellant
C.L Hughes SC and S. Holland for the respondent
A. Skoien for the first co-respondent by election
SOLICITORS:
P&E Law for the appellant
G.N. Phillips, Maroochy Legal Services for the respondent
Butler McDermott Solicitors for the co-respondents
Reasons for judgment
This is an appeal under s 4.1.27(1)(a) of the appellant’s development application to the Council in respect of its 4.008 hectare site at 115-123 Stringybark Road, Buderim. The Council advised rejection of the development application by decision notice of 5 January 2006. The application was made on 3 September 2004 for:
“(a)A development permit for an impact assessable reconfiguration of a Lot (23 Lots – moderate urban sub-division);
(b) A preliminary approval for engineering operational works;
(c) A preliminary approval for landscaping operational works.”
The appellant bears the onus of showing the appeal should be upheld under s 4.1.50(1) of the IPA. It has reduced the number of lots proposed from 23 to 22 and more recently, in accordance with the advice of its own environmental consultant, Mr Warren, to 18. The changes made have been accepted as “minor” for IPA purposes; they reduce the footprint of the proposed development in the sense that the area proposed to be devoted to conservation purposes or public open space is increased. The relevant planning instrument is the Maroochy Plan 2000 which came into effect in April 2000. It was amended in May 2002 and again, subsequent to the making of the application, giving rise to what was called the current planning scheme which became effective on 21 August 2006. There were some changes favourable to the appellant, such as a detached house becoming self-assessable development, rather than impact assessable in most circumstances. Exhibit 15 included in Part 1 relevant extracts from the planning scheme as it stood after May 2002, against which the relevant application must be assessed; Part 2 included corresponding extracts from the “current planning scheme” which need not be referred to, the only changes of potential significance relate to the Code for Nature Conversation and Biodiversity in Volume 4. There was a consensus that the considerable changes in arrangement and expression amount to an exercise in simplification and streamlining, without any relevant substantive change.
As the foregoing indicates, environmental considerations are the important ones.
The site is and at all relevant times has been allocated by the planning scheme to:
· Planning Area Number 3 – Sippy Downs;
· Planning Precinct Number 4 – Stringybark Road East;
· Precinct class – master planned community (as shown in the Planning Area Number 3 Map);
· The urban land use designation (strategic plan map 2.1);
· Comprehensive Impact Assessment of Vegetation Special Management Area (Regulatory Map 1.1); and
· A Specific Assessment Special Management Area for Flood-Prone Land (Regulatory Map 1.3).
In the “current planning scheme” there has been some change in the words used to describe the Special Management Areas – Nature Conservation and “Flood-Prone and Drainage Constraints”; currently relevant to the site is Acid Sulphate Soils Area Number 2 – land above 5M AHD and below 20M AHD (Regulatory Map 1.4). For the reason indicated, the following discussion will be by reference to the Maroochy Plan 2000 as it was from 7 May 2002. The Plan through its four Volumes descends from the more general to the more particular in their application to the site, or any site in the Shire. One would expect the more particular provisions to be more influential in assessment of a development application. However, one finds statements of relevance in all four Volumes.
Volume 1 of the planning scheme – the site and surroundings
The introduction in Volume 1 focuses immediately on the Shire’s “rich and diverse landscape and extensive biological diversity”, the Council’s “core responsibility” for “management of the sustainable use of …. natural, community and economic resources” and its “Vision Statement … Maroochy Shire strives to be the most environmentally responsible, caring, enterprising and dynamic community in Australia”. The planning scheme’s role is seen as advancing the purpose of the IPA:
“in seeking ecological sustainability … defined as a: ‘balance that integrates:
(a) protection of ecological processes and natural systems at local, regional, State and wider levels; and
(b) economic development; and
(c)maintenance of the cultural, economic, physical and social wellbeing of people and communities’.”
In 1.5 Towards Achieving Ecological Sustainability there is acknowledgement of (4) Valuable Features:
“The Planning Scheme provisions include a regulatory overlay of Special Management Areas in which particular valuable features (eg. areas of natural conservation significance, water and land resources, and places of cultural heritage significance) are intended to be protected through higher levels of assessment for various types of development, and more rigorous assessment criteria. Such features include the escarpment areas of Buderim and the Blackall range, the wetland areas extending north from the Maroochy River, the State Forests, the Shire’s rivers, major creeks and water supply lakes, and the Shire’s beaches.
In Special Management Areas, and in Rural and many Special Purpose Precincts, the balance in assessing development proposals will be in favour of the protection or enhancement of environmental values and resources. This may include a need to demonstrate the sustainability of any proposed development and use of premises. This balance will also be sought in other areas (assessed on a site by site basis) where specific features of environmental, scenic, cultural or heritage value have been identified.
The Council’s approach to co-ordinating and integrating the matter of the Shire’s valuable features through this Planning Scheme is summarised as follows:
(a)The desired Environmental Outcome for Environmental Management (DEO No. 1) in particular seeks the protection of the Shire’s valuable natural resources.
(b)The key issues, strategies, objectives and implementation criteria for the Shire’s valuable resources are set out, in particular, in Parts 7 to 11, 15 and 17 of the Strategic Plan.
(c)The Planning Area and precinct provisions recognise the need to identify, protect or restore the valuable features of the Shire’s natural and built environments.
(d)The Special Management Area and other Planning Scheme provisions contain guidance about the more rigorous information requirements and assessment criteria to be applied to development proposals likely to impact on specified valuable features.
(e)Particular code provisions intended to protect the Shire’s cultural heritage, remnant vegetation, land and water resources, economic resources and other valuable features, have been prepared and adopted.” (italics added)
Section 1.6 deals with measuring the performance of the planning scheme in achieving desired environmental outcomes. There one finds:
“1.6.2 Performance Indicators
(1)Desired Environmental Outcomes No. 1 – Environmental Management
By the year 2005, this planning scheme is expected to have achieved the following:
(a)Ecological condition and the level of protection for majority of ‘Endangered’ or ‘Of Concern’ vegetation communities remain unchanged or improved;
(b)At least 70% of ‘Endangered’ or ‘Of Concern’ vegetation communities on private land protected as a result of self-assessable and assessable development in the Shire.”
After the last component of Volume 1 is the Comprehensive Assessment Special Management Areas Regulatory Map 1.1. The legend indicates that development in areas indicated will generally require impact assessment. A dark green colour indicates impact assessment vegetation management areas, a light green colour impact assessment vegetation areas coincident with National Park, State Forest, Conservation Park or State-owned land. The site is coloured dark green, except for a strip along the 105 metre frontage to Stringybark Road and an area roughly central to the site’s 445 metre depth, extending to the southern boundary adjacent to the Buderim Springs Development, but not to the northern boundary which has been cleared, but for some large trees retained and where a substantial home with outlying buildings and other facilities have been built.
The mapping of such areas is not always consistent. Going by the green shaded areas on Nature Conservation Strategy Code Map figure 4-2.1.1 reproduced at page 38 of Mr Brown’s report Exhibit 8, there to indicate nature – conservation – management areas, the excluded area on the site is more limited and confined to the central tract. The appearance of a white patch in the northeast may indicate that the coloured overlay should be further to the east. Whatever uncertainty may exist does not affect the outcome of this appeal. It may bear on how well environmental values were protected in the Buderim Springs development. Immediately south of the site recently developed on parcels aggregating 12 hectares or so is Buderim Springs, a large subdivision likely to be enhanced by provision of a small convenience centre; the approval also included a retirement village (which the court was told is no longer going ahead) and some contribution to the road network. An 86 metre strip along the eastern boundary of Buderim Springs now belongs to the Council as (forested) public open space. It is said that, against the 70 per cent retention benchmark mentioned above (and below) 55 per cent was achieved on Buderim Springs. That figure may be consistent with Regulatory Map 1.1, but seems high against the shaded area in Mr Brown’s map.
To the north of the site, aggregating roughly twice the site’s area, are the properties of the first co-respondents by election (the Maleys) and the third co-respondents by election (the Crossings). There has been a subdivision creating a battleaxe block whose handle adjoins the site, as does the otherwise landlocked area away from Stringybark Road. This is the Crossings’; the Maleys have the “front” block; strictly, they are not neighbours of the site. North of that aggregation on the eastern side of Stringybark Road is solidly “green” land; the boundary, the court understands, is roughly where Mountain Creek crosses Stringybark Road (or vice versa). The eastern boundaries of all the properties mentioned form a line east of which, for present purposes, is land now in public ownership likely to be preserved for vegetation and/or fauna habitat conservation purposes. Linkage will doubtless be preserved to the Mooloolah River National Park immediately across Dixon Road. To the west of Stringybark Road the linkages extend much further, to the Blackall Ranges. To the extent that there is to be a strictly east-west corridor, the site and the abovementioned co-respondents’ properties are the obvious providers of it. The Buderim Springs development has put paid to any prospect of a corridor to the south. The development immediately across Stringybark Road on the west is not quite so unhelpful, but there is a phalanx of half a dozen or so houses, albeit with some vegetation surrounding them. Stockland’s development to the north was praised as sensitive development in the location the development footprint is set well back from Stringybark Road, preserving a large area of forested wetland.
Volume 2 of the planning scheme
Volume 2 is the strategic plan incorporating in Part 2 the “vision”:
“2.2 Environmental Management
(1) Desired Environmental Outcome No. 1
The shire’s unique natural, open space, climatic, rural and scenic attributes are protected to maintain biodiversity, ecological processes, and visually attractive and varied landscapes and managed so as to provide a sustainable focus and setting for the Shire’s community and economic development. This includes:
·the variety of ecosystems and the species they support being maintained or enhanced,
·prominent natural landscape elements such as escarpments, ridgelines, beaches, headlands and mountain peaks, which serve as distinctive visual landmarks within the Shire, being protected,
·the Maroochy, Mooloolah and Mary River systems and other water resources, being protected,
·high standards of water and air quality, and acceptable noise levels, being maintained, and
·premises which are sensitively sited and designed having regard to local climatic conditions, vegetation cover and topography.
(2) Strategic Implementation Measures
In order to achieve Desired Environmental Outcome No. 1, the following Strategic Implementation measures are to be employed:
(a)comprehensively assess and effectively manage the likely individual and cumulative impacts of development on the natural and built environments to ensure ecologically sustainable development.
The third section focuses on urban development which comprehends a wide range of uses as the urban strategy makes clear:
“3.3.2The Urban allocation indicates areas existing and preferred for predominantly residential use. A range of ancillary uses such as commercial and retail, social and education facilities and industry may also establish within Urban areas.
3.3.3.Areas within the urban designation possess significant natural attributes important to the character or environment of a locality or are needed to meet open space requirements of the community. Development proposals in these areas should seek to preserve significant habitat and provide for a integrated open space network.”
Consistently, the following preferred dominant land uses provide:
“3.4.1 Urban
The Urban allocation identifies areas suitable for residential premises of varying densities, but allows for retail, commercial, community services and general industrial activities required to serve the day-to-day needs of local communities.
The Urban areas may include land which is considered to have significant ecological value and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact.”
The objectives include:
“3.5.3 To Encourage A Comprehensive and Integrated Set of Performance and Prescriptive Standards To Cover Low and Medium Density Residential Development
Implementation
…
2.In some parts of the Shire, additional criteria will be applied as dictated by local conditions, which may relate to matters such as the protection of significant vegetation, natural resources, flood prone land and steeply sloping land. These are identified by the Special Management Areas and Planning Areas and Precincts.”
The following objective (3.5.4) includes:
“Urban designated areas which contain significant stands of vegetation or fauna habitats may have their significance protected in a variety of ways, depending on the nature of the stand or habitat, ranging from habitat preservation measures to dedication of land. The appropriate development of a particular area can only be determined after an assessment has been made of its environmental and/or visual significance.
Implementation
….
2. Development of land which is recognised as having conservation value is to provide for the adequate protection of the relevant significant habitat and other areas which are determined to have habitat areas of significance. In such cases, the Council may seek the dedication of land for that purpose. Developers are encouraged to negotiate the parameters of development and land dedication prior to lodging an application. Negotiation may include alternative means of preserving the significant areas.
3. Applications for development on land, displaying other sensitive environmental characteristics, and generally included in a Special Management Area under the development management provisions (in Volume 1) of the Planning Scheme, are likely to be subject to a request for a formal environmental assessment report outlining the manner in which the development is to be carried out to minimise environmental degradation, having regard to the guidelines for such assessment set out in relevant Planning Scheme Codes and Policies. The Council may request the submission of an environmental impact statement in some cases.
….
6. If, after assessing any environmental impact statements or environmental assessments, Council is not satisfied that a sensitive environment or habitat can adequately sustain a proposed development, it may not support the application.”
Mr Brown, the Council’s planning consultant placed reliance on the general objectives and implementation measures applicable under the general heading Natural Resources, which, in relation to the objective of protecting and maintaining the biodiversity values of the Shire provided in 10.5.1A Implementation in closely similar terms:
“If after assessing any environmental appraisal, Council is not satisfied that a sensitive ecosystem, habitat or natural area with an integrated landscape function can be adequately sustained, it may not support the application.”
The next objective is:
“10.5.2 To Protect those Habitats of Terrestrial and Aquatic Fauna and Flora which are Considered Ecologically Significant in a Manner which Ensures Long Term Sustainability
Implementation
1. On land shown as Conservation, Urban and Rural or Valued Habitat on the Strategic Plan Map, and/or shown as a Special Management Area on Council’s regulatory maps, Council will not support development which is likely to:
· unduly degrade or reduce the values of regionally significant ecosystems;
· require the removal or destruction of rare and threatened flora or its habitat;
· otherwise impact on the habitat so as to threaten the existence of the rare and threatened species.
10.5.3 To Protect or Provide Connections and Linkages to or Between Areas of Conservation Significance
The protection and rehabilitation of vegetation corridors utilising waterways, ridgelines and remnant vegetation to link to or between significant natural areas is essential to:
· link core areas and provide critical linkage from coast to hinterland or connect extensive areas of similar habitat type;
· assist fauna movement through viable, quality and safe areas of habitat;
· minimise the fragmentation of areas and increase the quality of the linkage;
· manage biodiversity within a fragmented landscape by minimising edge effects and impacts from surrounding land uses;
…
Implementation
…
3. In linkage areas development is to be sensitive to site values through sympathetic design and should seek to establish in existing cleared areas to prevent further fragmentation.
…
5. The protection or rehabilitation of other corridors and linkages may also be required in locations not identified specifically on the Strategic Plan Map. Such features may include …”
Volume 3 of the planning scheme – the appellant’s view of its role
Volume 3 of the planning scheme is entitled Planning Areas, Precincts and Precincts Classes. Mr Holliday, the appellant’s planning consultant, collected Volume 1 provisions giving an idea of the interrelations of the Volumes in his paragraph 60:
“60.Clause 2.3 of Volume 1 of the planning scheme explains how the Strategic Plan, Planning Areas and Precincts are intended to work together. Cl. 2.2(1) states the ‘Planning Scheme is intended to recognise and be responsive to the individual character and needs of the many different localities which exist across the Shire.’ The Planning Areas ‘provide a link to the strategic plan through setting each area’s context and role within the shire’, Cl. 2.3(2). Cl 2.3(3) states that ‘Each planning area is further divided into precincts………..These precincts establish each localities context and role within the Planning Area and the desired future local character.’ …Cl. 2.3.(4) requires that ‘Proposals for impact assessable development will be assessed against the statements of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and the statement of Desired Precinct Character for the individual precinct in which the development is situated.’ These statements of precinct character appear in Volume 3.”
His following paragraph deals with corresponding provisions in the “current planning scheme in Volume 1, such as 2.2(5) to the effect that it is the planning area provisions in Volume 3 which “represent Council’s specific planning intent for the relevant localities” and clause 2.2(6) which indicates that in the event of inconsistency, Volume 3 prevails, though it is “the primary basis for assessment” where there is no direct inconsistency, but “merely different or additional outcomes or requirements indicated”; the strategic plan is not to be used “to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions”. Volume 3 deals with the topic in the preface:
“PREFACE
Potential Inconsistencies between Statements of Policy or Intent
The statements of strategic and local policy in Volumes 2 and 3 of this Planning Scheme, respectively, may include somewhat different statements of policy or intent for the same areas of land. Where there is no direct inconsistency in those statements, all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme. If in any case the different statements are inconsistent, that statement of policy or intent which would result in the least detriment to the environment shall prevail in determining if a proposal conflicts with the Planning Scheme.”
The general intent for the precinct class of Master Planned Community appears in 2.5(2) of Volume 3. The intention is that such communities be developed with “a higher degree of soft-containment and sustainability than are typically found in dormitory suburbs”. Further:
“Master planned communities should promote a unique identity, strong visual character and special ambience through urban design, landscaping, integration of the natural environment, the built form and public art.
Many precincts are located within, adjoin or traverse areas of recognised ecological significance, which are identified as special management areas. In these instances, the specific conservation values of vegetated areas, as well as their strategic location in contributing to the Shire’s biodiversity values are intended to be fundamental factors in influencing the location, design, construction and management of proposed development.
Land in these areas is not intended to be developed where such land has environmental values worthy of conservation. Such areas are typically located within important ecological linkages, vegetation mosaics or are part of extensive, core habitat areas. All of these settings are significant for the Shire’s biodiversity, particularly in retaining the diversity and condition of important vegetation associations (especially rainforest remnants) and the integrity of large, unfragmented tracts of habitat.
The development of sites containing or in the vicinity of such lands will require innovative approaches and occasionally lower development yields to ensure the retention of these values.
It is intended that as areas are developed, significant natural features will be retained, rehabilitated or enhanced and incorporated as part of the overall development. In some cases the careful and sensitive development of all or part of sites within these areas may be possible, while for other sites, development would not be possible without detracting from the significant environmental values of these natural features.
…
3.3 Planning Area No. 3 – Sippy Downs
3.3.1 Location and Role
This Planning Area comprises the site of the Sunshine Coast University, lands designated as “District Centre” and “Urban” by the Strategic Plan, and adjoining lands along the Shire boundary.
This Planning Area is intended to provide for the ongoing development of the University, in conjunction with a new District Centre and surrounding residential communities. It is also intended to recognise and provide for the protection of the significant environmental values of the Mooloolah River National Park.”
What is sought is the development of a university town. In the current planning scheme, the proposed district centre is promoted in the hierarchy to Major Activity Centre. Mapping indicates the centre is to be located essentially in the southwest and southeast quadrants where Stringybark Road (running north-south) crosses the Sunshine Motorway (east-west). The separation effected by the latter is overcome by the link provided by the former, so that areas north of the Motorway are to be incorporated in the town. The vision statement for Sippy Downs Township, after dealing with (i) a university town:
“In order to maximise the potential of the proposed town centre, the level of interactions with and benefit from the university and viability of the transportation strategy, the township would best be characterised by:
· a wide range, and relatively ‘fine-grain’ mix, of uses with an emphasis on uses complementary to, and synergistic with, the university and serving the catchment area residents and employees;
· relatively high densities of development (particularly housing) and a wide range of housing types (including the provision of student accommodation);
…
a relatively high degree of self-sufficiency with respect to local retail, commercial, other forms of business and employment, and community services.”
and (ii) efficient transport choices turns to:
“(iii) An Ecologically Sustainable Network of Habitats
The Sippy Downs township area is to be framed by a network of interlinked, ecologically and culturally significant habitats so as to protect local biodiversity.
This network of habitats, extending across the area, includes:
· the Mooloolah River National Park (recognised in the Conservation Strategy - Maroochy Shire Vegetation Management Plan as Core Area 1);
· the Mooloolah River and creek systems; and
· areas of remnant rainforest and open forest (some of which are recognised in the Conservation Strategy - Maroochy Shire Vegetation Management Plan as Mosaic 2 Buderim Rainforest Remnants and Mosaic 3 Buderim South - Eudlo/Ikley).
This network of habitats will be supplemented by conserving, where practical, locally significant existing remnant vegetation and the encouragement of rehabilitation and revegetation, thereby increasing the extent and biodiversity of the existing habitat. The retention, rehabilitation, and maintenance of a considerably wide riparian buffer area throughout all precincts that Mountain Creek traverses would be supported.”
This site is within Mosaic 2. 3.3.3. Key Character Elements offers in 2 a District Overview, (a) of which explains the preferred dominant land uses indicated in the District Structure Plan (Figure 3-3.3.3{a}). The PDLUs include (i) Urban, which covers Sippy Downs and other urban areas which are “considered suitable for residential development of varying densities that allow for … (other) activities required to serve the day-to-day needs of local communities”:
“Land may be included which is considered to have significant environmental value, and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact. This may include reservation of such land for conservation purposes. Development within the ‘Urban’ should also provide for adequate buffers and separation distances to productive agricultural uses.”
Rural and Conservation follow, then:
“(iv) Ecological Links
Ecological links have been identified based on corridors containing significant environmental and/or scenic value and which are worthy of protection.
Council will encourage the retention and rehabilitation of these ecological links in a natural state as wildlife habitat to provide for the movement and dispersal of native animal and plant species and to protect the visual amenity.”
Getting more specific, 3.3.4 provides statements of desired precinct character, commencing with the town centre core, which is to be the “focus of the community… an easily identifiable central place”. The relevant precinct is:
“(4) Stringybark Road East (Precinct Class = Master Planned Community)
Intent
A.Mountain Creek runs west to east through this precinct through an extensively forested corridor. Urban development should be concentrated on lands to the south of the creek, with little, if any urban residential development occurring north of the creek.
B.In the area to the north of the creek, the established Matthew Flinders Anglican College and Ballinger Park Sports Complex are intended to remain and expand as appropriate. Both these facilities are set within a well forested landscape setting which is intended to be protected.
C.To the south of the creek, land in this precinct is intended to develop as a compact ‘urban village’ which takes advantage of its proximity to the town centre and university. The precinct should contain high quality residential development in accordance with a Local Area Structure Plan or other comprehensive Plan of Development approved by Council. A range of compatible business could also be established in this area. The precinct should be developed in accordance with transit-orientated development principles to establish a robust and legible urban environment which is integrated with development of lands in surrounding precincts.
D.Any new development should provide for the protection of remnant native forest areas, and the maintenance and/or enhancement of the existing diversity of vegetation types, especially in the area adjoining, and in areas north of, Mountain Creek.
E. Any new development should provide for the protection of the environmental values of Mountain Creek. This is intended to involve preservation of the quality of water in and entering the creek, preservation of the creek banks from any erosion or other disturbance, and maintenance of a sustainable vegetation/open space corridor along the creek.
F.Uses in the area south of the creek should comprise a range of dwelling types and densities, business uses and local centre facilities meeting the day-to-day convenience shopping needs of residents. This local (convenience) centre is intended to establish and mature with a focus to a new connecting street passing through the precinct to link Crosby Hill Road with Dixon Road as shown on Figure 3-3.3.3I. Business uses that are compatible with housing could also be located within the local centre. These may include research facilities, certain types of service and light manufacturing activities, offices, studios, tourist and conference accommodation provided they are not at a scale which would compete with the University incubator and the Business and Technology sub-precinct in Sippy Downs Town Centre.
G. Within the local centre, mixed use developments incorporating residential and non-residential uses are encouraged. Medium-density housing, in the form of apartments, terrace houses, retirement villages and unit developments, should be encouraged adjacent to the centre within 400 metres (a five minute walk) where there is high accessibility to commercial and community facilities and public transport routes, but development should be designed to avoid unreasonable amenity conflicts.
H.Development should incorporate a suitable buffer to the electricity substation determined by relevant industry standards. Generally a landscaped buffer of 50m is considered acceptable.
I.Large scale uses such as retirement villages and primary schools should be in locations that provide safe and direct pedestrian routes to local centres.
…
Landscape and Built Form
L.Significant elements of the desired landscape and built form include:
· Streets …
· Public and semi-public spaces: The design of the local centre should incorporate a small public or semi-public outdoor area for the benefit of visitors and employees. This should be a focus of the centre. After hours use should be encouraged by the appropriate location of a cafe and other suitable stores around the space. A number of small landscaped parks should be provided in the precinct to serve residents and nearby employees.
· Siting and setbacks: Buildings should be located close to frontages to streets and public and semi-public spaces: A variety of small landscaped spaces may be provided between developments to facilitate access to prevailing breezes and contribute to the sub-tropical character of the precinct.
· On-site landscaping: Wherever reasonably practicable, examples of healthy existing trees should be retained and incorporated in the design of new development. A site’s ecological values need to be ascertained prior to site development or redevelopment. Ecologically significant vegetation (in particular, swamp stringybark Eucalyptus conglomerata) is known to exist in the precinct. Such areas will need to be retained and incorporated in future development.
Identifying letters have been added to the paragraphs for ease of reference.
Figure 3-3.3.3(c) depicts the Stringybark Road East precinct, where it occupies the north-eastern sector north of the Motorway and east of Stringybark Road. In the east it extends to Dixon Road and the Mooloolah River National Park, in the north generally to the line of Mountain Creek in the eastern part falling short of the creek by 100 metres or so for the western section (70 per cent or so) – for purposes of identifying the Stringybark Road East Neighbourhood. Area (4) extends as does Planning Area Number 3 Sippy Downs further north except for some land opposite Rainforest Sanctuary Drive north of the Maley and Crossing properties extending to the southern boundary of Mathew Flinders Anglican College. This excision appears to belong to the Mountain Creek Valley planning area. It is coloured “blue” on map 2.1 to indicate its conservation designation, which extends along the line of the creek through Area (4) to connect with the National Park and/or a northern section designated rural or valued habitat on map 2.1.
Area (4) is one of 12 making up Planning Area Number 3, four of which are master planned communities:
“Legend
1. Sippy Downs Central (Town Centre Core)
2. Sippy Downs West (Town Centre Frame)
3.University And Other Education (Special Purpose)
4.Stringybark Road East (Master Planned Community)
5.Stringybark Road West (Master Planned Community)
6.Chancellor Park North (Neighbourhood Residential)
7. Chancellor Park Local Centre (Local Centre)
8. Chancellor Park South (Master Planned Community)
9. Sippy Downs Rural (General Rural Lands)
10. Mooloolah River National Park (Special Purpose)
11. Kawana Estates (Master Planned Community)
12. Sippy Downs Caneland (Sustainable Canelands).”
Area (1) envelops Stringybark Road south of the Motorway and extends south of the “top” of the inverted T junction it forms with Sippy Downs Drive, where it adjoins Area (3), a much more extensive area to the south and southeast. The Town Centre Frame lies wholly south of the Motorway. The Frame includes, along with the neighbourhoods Sippy Downs East and West, a Business & Technology sub-precinct and high school in the east and Chancellor Park West sub-precinct in the west. The existing Sippy Downs Township is included in Area (6).
The Town Centre Core, aerial photography would suggest (likewise the Nature Conservation Strategy Code Map Figure 4-2.1.1), will consume a considerable area of forested land once considered to merit protection or special attention. As Mr Hughes SC for the Council said, this sort of thing is inevitable if authorities are to plan responsibility for the growth which for the moment appears inexorable in local government areas like Maroochy Shire.
The tension between development and preservation of environmental values in Planning Area Number 3 and Area (4) in particular is clear. The expert planners, Mr Holliday on the one hand, who gave evidence for the appellant, and Mr Brown and Ms Evenhuis who gave evidence for the Council and the Maleys respectively on the other hand, came down on different sides. Mr Holliday’s evidence was helpful in highlighting the differences. He categorised the other two in dealing with the site and the issues, primarily protection of the vegetation, as ascribing “apparent dominance”, whereas he saw himself as adopting a more holistic approach and a “wider vision”: transcript at page 65, where he noted the designation of the site as urban. It is indeed depicted in the familiar pink colour in relevant maps. At page 67, Mr Holliday contrasted the blue conservation designation (preferred dominant land use) of the land immediately north of the Maley-Crossing properties. Dr Olsen (who gave evidence for the Council) and a colleague named Turnbull had at some time in the past done the work leading to vegetation mapping. The conservation areas are not to be developed. At 68, Mr Allan (for the appellant) asked about the urban-designated land:
“Given that designation, how do you, as a planner, then reconcile the overlay which is depicted in the impact assessment vegetation management area map at page 70 of your report which covers a large extent of the site … with the designation under the strategic plan? – Yes, the impact assessment of vegetation management area is also an area derived from the Turnbull and Olsen vegetation mapping. But those areas … sit over areas proposed for development and then there are a range of code requirements … - they’re basically a code trigger, … which triggers special code requirements in the assessment of development applications within the urban areas….
Now, you’ve included as figure 14 in your report, the Sippy Downs district structure plan, figure 3-3.3.3(a)?—Yes
Now, why did you include that structure plan as part of your report? --- … There were two reasons I included this structure plan. The first one, was to convey a very strong planning intent on the part of the council to develop a township around Sippy Downs where we have the university. The township population itself is proposed to be around 25,000 people. The recent Sippy Downs … - town centre master development plan talks about two population scenarios of between 45,000, roughly, and 60,000 people extending into areas of Caloundra and parts of Palmview. … There is a clear planning intention to develop urban areas around Sippy Downs in order to sustain that township, which is now a major activity centre. The second point concerned the planning scheme requirement in respect of development applications in association with structure plans. There was this structure plan and there’s also a structure plan 3-3.3.3(c) which is the Sippy Downs township structure plan which includes the appeal site within it.
… You’ve had occasion in the preparation of your report to review recent notification of intended amendments to the planning scheme for the Sippy Downs area. Would you just briefly summarise whether or not those proposed amendments reflect, at least in your opinion, consistent with the intent shown … in the structured plans? -- .. I think they are – in my opinion, there are complimentary provisions between the precinct number 4 and the Sippy Downs structured plan in that firstly, the appeal site is located within the structure plan township area. Secondly, the amendments which … have been on exhibition to the Sippy Downs town centre plan primarily relate to the town centre. They don’t actually relate to the appeal site. But the amendments are structured to facilitate that new town centre at – at fairly high residential densities, in some cases a hundred dwellings per hectare. Being within a kilometre of that township the appeal site -----
POWER FAILURE.”
There is no transcript of some of the evidence which followed, in which Mr Holliday was strongly advancing his view that the planning intention was that the site support the proposed town centre. He had corrected the estimate in his written report that the site was 700 metres from the town centre. At page 70 he denied any conflict between the proposal and the planning scheme, which he said was “quite clear, including the appeal site, as proposed for future development. It’s equally clear that the development must occur with an appropriate balance. I think the issue … is … where is the balance?” (page 70). He took comfort from the Buderim Springs approval and said one respect in which it and the appellant’s proposal represent consistency with the scheme was the provision and preservation of “linkage areas” (which connected) along the eastern boundaries – presumably a reference to the “vision” and its aspect of “(iii) An Ecologically Sustainable Network of Habitats” set out in paragraph [22]. Mr Holliday acknowledged that the rural residential low density character of the area would change in accordance with what the planning scheme envisaged by way of development around Sippy Downs (73) which he characterised (using the term found in the planning scheme) as an “urban village”. He read Ms Evenhuis’ report (prepared for the Maleys) as “not about change”. He went so far as to say that if there was conflict with the planning scheme in the proposal it lay in the proposal’s representing underdevelopment; he made a similar “criticism” of Buderim Springs which he said “seems to have lost an opportunity to establish … an urban village”, although it contains some “multi-residential development” as encouraged by the precinct intent, which the proposal does not. He described the proposal as:
“a lower density than would be envisaged by the precinct intent to promote an urban village within a radius of 400 metres – it will require a mix of housing, but generally, the Lots in the proposal plan are lower density than would normally be envisaged. In fact, most standard subdivisions such as Buderim Springs have Lots of 700 m² whereas these are generally 1,000 m²”.
Mr Allan argued that the Stringybark Road East precinct intent drew a marked distinction between areas south of Mountain Creek and areas north of it. One finds that in the paragraphs I have numbered A and C, and in the last words of D. The other parties did not seek to rely on E or those words in D. I do not regard the emphasis placed by those last dozen words at the end of D on areas adjoining or north of Mountain Creek (neither of which includes the site) as cutting down the application of the paragraph to the site. All of the ecological evidence confirms that there are remnant native forest areas on the site which “should” be protected. As it happens, this can be achieved consistently with the landscape and built form intent of locating buildings close to frontages to streets.
Volume 4 of the planning scheme – the environmental issue
Volume 4 of the planning scheme contains the codes, and in particular, relevant to the site:
2.1.1Code for Nature Conservation Management and Biodiversity Protection
PREAMBLE
(1) The Maroochy Shire contains large areas of highly significant remnant vegetation, which includes a wide diversity of ecosystems supporting plant and animal species, including some rare or threatened species. Council recognises that these areas are important to the long-term sustainability of many of the ecosystems on which the residents of the Shire and region depend, and to the Shire’s character, image and economic welfare.
(2) Maintenance of the nature conservation values of the Shire involves:
(a) Retaining the present level of biodiversity by protecting the full range and diversity of ecosystems which include remnant areas of rainforest, and eucalyptus, melaleuca, wallum (wet and dry coastal heath), mangrove, salt marsh/claypan and seagrass vegetation associations;
(b) Preserving representative remnants of the regional ecosystems that are found within the Shire (particularly those that are ‘endangered’ or ‘of concern’);
(c) Developing, in cooperation with the State Government, a system of conservation parks and reserves which provides for sufficient areas of relatively undisturbed natural ecosystems to be protected to ensure the long-term viability of species and biodiversity in the Shire; and
(d) The protection of a linked network of relatively unfragmented habitat areas to provide for the long-term viability of such areas for fauna species movement, feeding, breeding and dispersal. Fragmented habitat adjacent to waterways and wetlands should be protected to assist maintenance of water quality and the existing hydrological characteristics of these features. This may require restoration or other enhancement of degraded or threatened ecosystems.
(3) Council recognises that, beyond their species richness, areas of remnant vegetation may also have significant functional conservation values in that they can, for example, prevent erosion and slippage of soils in steeply sloping areas and dynamic coastal and littoral environments.
(4) In addition, remnant vegetation may also be valued by the community as having a range of aesthetic, cultural and recreational values, as well as providing physical, visual and noise buffers between different land uses.
(5) Council therefore may require the assessment and subsequent protection, rehabilitation or enhancement of areas of significant vegetation and/or ecological value for any or all of the above purposes.
PURPOSE
(1) This code is intended to provide for the protection and enhancement of the species diversity, viability and conservation values of the Shire’s ecosystems and the species they support by ensuring development:
(a) conserves and enhances the Shire’s biodiversity,
(b) maintains and enhances ecological processes; and
(c) protects natural areas, processes and features with aesthetic, cultural, recreational or other functional significance valued by the community.
(2) This includes protection of the environmental values of the Vegetation Management Units shown on Figure No. 4-2.1.1A and described in the Schedule to this Code.
APPLICABILITY
(1) The provisions of this code apply to development within or adjacent to any environmentally sensitive area (as defined in Section 3.2 of Volume 1 of this planning scheme) where such development is:
· Material Change of Use,
· Reconfiguring a Lot,
· Building Work,
· Operational Work,
and to the use of premises….
Performance criteria which the Council and the Maleys in reliance on expert evidence of Dr Olsen and Ms Duke contend the proposal conflicts with include 1 to 7 from the following:
PERFORMANCE CRITERIA ACCEPTABLE MEASURES P1 Ecological values and functions occurring within and/or adjoining the site must be identified and assessed, with those values and functions of significance conserved and/or enhanced.
A1.1 For assessable development, an ecological survey, assessment and report which has evaluated the site’s vegetation and habitat significance in accordance with the procedures described in Council’s relevant Planning Scheme Policies, is:
(a) prepared by a suitably qualified and experienced person and
(b) approved by Council.
AND
A1.2 The report referred to in A1.1 additionally includes:
(a) an assessment of the local and regional linkage and connectivity
values of the site, including potential links in relation to any other remnant vegetation areas; and
(b) measures to protect and where necessary enhance and
rehabilitate environmentally sensitive areas and connectivity or
linkages between them, from the impacts of development.
AND
A1.3 Measures and strategies are identified to meet all requirements
arising from the findings and recommendations of the approved
assessment and report including any matters not otherwise detailed in this code element.
AND
A1.4 All identified requirements are complied with during construction and after completion of the development.P2 The relatively unfragmented nature of the Comprehensive Assessment Vegetation Management Areas (as shown on Regulatory Map No. 1.1) and the conservation values they support, must be preserved.
A2.1 In Vegetation Management Areas shown on Regulatory Map
No. 1.1, not less than 70% of the vegetated area of the development
site remains uncleared.
OR
A2.2 Any areas which are to be cleared, or otherwise disturbed are:
(a) outside any Vegetation Management Areas shown on Regulatory Map No. 1.1; and
(b) contiguous with existing cleared or disturbed areas; or
(c) beyond the outside edge of the most significant vegetation area,
with the remaining vegetation being protected from disturbance or
environmental harm in accordance with Acceptable Measures A4.1 and A4.2 below.P3 Any adverse impacts on the habitat values of land within and adjacent to the site must be avoided or minimised through layout and/or structure plans which are sympathetic to the conservation values of the site.
A3.1.1 There is no clearance and/or degradation of remnant native
vegetation and other areas of habitat significance;
OR
A3.1.2 Clearance and/or degradation of remnant native vegetation and other areas of habitat significance are minimised through identification of “no-go” areas within the site boundaries where development must not occur.
AND
A3.2.1 There is no fragmentation of remnant native vegetation and other areas of habitat significance;
OR
A3.2.2 Fragmentation of remnant native vegetation is minimised
through identification of “no-go” areas within the site boundaries where development must not occur;
AND
A3.3 Areas of highest habitat significance, including habitat
features such as old and large dead trees, are protected where they do not pose safety problems through their inclusion in open space areas and/or vegetated buffers;
AND
A3.4 Lots are designed to ensure that valuable features such as ridges, drainage lines, stands of native remnant vegetation and other areas of habitat significance are not adversely impacted upon to an unacceptable or unsustainable level.
AND
A3.5 Lots are arranged so that buildings and associated
infrastructure are able to be located outside areas of remnant native
vegetation and other areas of habitat significance;
AND
A3.6 Building areas are sited on that part of each lot that poses the least threat to the conservation values of the site, eg. an already cleared area, disturbed area with little potential for rehabilitation, weedy area, an area away from important habitat and corridors, and other significant landscape features (eg; vegetation along waterways), or close to an access road;
AND
A3.7 Development occurs within approved building areas.
AND
A3.8 Buildings and associated infrastructure are located away from
remnant native vegetation and areas of habitat significance on and adjacent to the site;
AND
A3.9 Connectivity is provided between areas of remnant native
vegetation on site to adjoining areas of remnant native vegetation and/or areas of habitat significance on neighbouring properties;
AND
A3.10.1 Ecological corridors (other than in wet heath or wetlands) are protected for a minimum width of 200m, and only less than this width where an ecological assessment, prepared and approved in accordance with acceptable measure A1.2 above, effectively demonstrates that the proposed width is appropriate and sustainable.
OR
A3.10.2 Where an ecological corridor has been previously degraded or fragmented, an area revegetated which restores the corridor linkage between existing vegetation remnants and which provides for:
• revegetation with a locally native species mix and density typical of the vegetation type to be restored (including understorey), and/or
• management of declared (under State legislation) and environmental weed species across the required area.P4 Development must be carried out in ways which avoid causing environmental harm through indirect and incidental impacts and which minimise disturbance to significant vegetation and
environmentally sensitive areas.
A4.1 Buildings, other structures, driveways, powerlines, drainage,
access routes, public utility provision and facilities and fence-lines are not located within wetlands or along gullies, waterways or ridgelines, or through significant vegetation, environmentally sensitive areas or other remnant vegetation.
AND
A4.2 Development carried out in accordance with an approved
Environmental Management Plan which details management actions to avoid or mitigate environmental harm.P5 The protection and management of any area where rare, vulnerable,
endangered, or common species of special cultural significance, scheduled under the Nature Conservation (Wildlife) Regulation (1994) are known to occur, or where there is evidence to indicate they are very likely to occur, on the development site.
A5.1 Development is carried out and the premises used in accordance with an approved Environmental Management Plan which describes
measures for:
• habitat protection (eg. weed control, buffers, domestic animal control, fencing etc); and
• monitoring.
AND
A5.2 Any relevant State or Commonwealth guidelines orrequirements for the conservation management of the listed species are complied with.
P6 Effective buffers must be provided to environmentally
sensitive areas and adjoining sites.
A6.1 Development is carried out and the premises used in accordance
with an approved Environmental Management Plan which includes:
• identification of the processes threatening the area to be protected;
• a buffer design that is site specific to minimise the impact of threatening processes and which encompasses the area over which each separate threat operates; and• measures to reduce threatening processes.
P7 Features of the site, which may be noteworthy for their aesthetic, cultural, recreational or functional values, must be protected and/or enhanced.
A7.1 Individual trees of significance or vegetation features with aesthetic, cultural or recreational significance are incorporated into the development design and site layout;
AND
A7.2 Any noteworthy natural features such as ridgelines, rocky outcrops, or other geological formations are protected and incorporated into the development design and site layout;
AND
A7.3 The functionality of features such as natural drainage lines anddepressions are maintained and incorporated into the site layout.
“And also P12 construction must be carried out in ways which avoid environmental harm through indirect and incidental impacts and which minimise disturbance to remnant native vegetation and areas of habitat significance within environmentally sensitive areas.”
In my opinion, the expert evidence establishes such conflict. It is useful to revert to Volume 1 for a reminder of the way in which the “acceptable measures” are approached:
“2.2 Explanation of the Performance Approach Used for this
Planning Scheme
(1) This Planning Scheme is based on a performance approach to the regulation of development and the management of the impacts of development. This approach recognises that there are a number of ways in which land use and development can meet desired environmental, social and economic standards. In this approach, presenting what desired standards need to be met is considered more important than prescribing how such standards should be met.
(2) For the purposes of the Planning Scheme codes, each code and each significant aspect of land use and development (referred to as an “element”) has a statement of purpose which is capable of being achieved by various means. The outcomes which best meet the purpose of each code and each of its elements are included as performance criteria.
(3) (a)The code provisions also include acceptable measures. These measures are Council’s preferred means by which the performance criteria are to be achieved.
(b)(i) The relevant applicable acceptable measures are mandatory for self-assessable development.
(ii) For assessable development they provide an opportunity for streamlining approval processes while achieving the criteria and stated purpose. However, other ways of achieving the criteria and stated purpose of each and any element of an applicable code may be proposed by applicants.
(c)Where other measures are proposed, the Council must be satisfied that they effectively meet the performance criteria and statement of purpose. In such cases, the applicant needs to demonstrate the acceptability of the proposed measures to Council’s satisfaction.”
The advantage of compliance with acceptable measures is that it precludes Council or others arguing that the relevant performance criteria are not satisfied. Meeting acceptable measure A2.1 which reproduces the 70 per cent standard already noted in Volume 1 may not in practice satisfy P2, but for purposes of assessing a development application is taken to do so. As would meeting A2.2.
There is a schedule to code 2.2.1 offering description of environmental values of nature conservation management units, which begins:
“As referred to in Section 4.2 of Volume 1 of the Planning Scheme, Council has identified various Special Management Areas (SMAs) in which particular environmental features and values are intended to be
protected or otherwise managed through higher levels of development assessment and more rigorous assessment criteria. One type of SMA comprises Vegetation Management Areas. The conservation values of these areas are intended to provide one of the criteria against which development proposals will be assessed and as such should be taken into account by development proponents.The Vegetation Management SMA’s are shown on Regulatory Maps No 1.1 and 1.2 and are based on the vegetation management units which have been identified and assessed through the supporting remnant vegetation study of the Shire. In assessing development in or otherwise affecting these areas, the environmental values which Council will seek to be protected are as described in this Schedule in accordance with the outcomes of the remnant vegetation study illustrated on Figure 4 – 2.1.1A.
(1) Core Areas C1 – C10
(a) Area C1: Mooloolah River
Values
The National Park and the recently purchased area formerly known as the ‘Moreton Mill land’ are located in flat, unconsolidated sands. This area has one of the highest concentrations of rare and threatened species in the coastal lowlands of South East Queensland, including an endangered plant and three other species not found anywhere else in the Shire.
Two rare and threatened animals and six rare and threatened plants have been recorded here. Others probably occur. The wallum froglet (Crinia tinnula) and Richmond birdwing (Ornithoptera richmondia) have both been recorded from Mooloolah River National Park. The two other wallum frogs, both rated vulnerable, occur here as well. More frogs are likely to be recorded in more favourable seasonal conditions.
The Richmond birdwing recorded during the survey had probably wandered in from rainforest at Buderim, where its caterpillars’ food plant is present. The Richmond birdwing vine does not grow in the National Park, and the butterfly would not be resident here.
The ground parrot occurred until recently in Mooloolah River National Park. Its extinction was probably due to excessive fires originating to the west. As areas to the west are developed for urban purposes, fires will become less frequent. It is possible that ground parrots will recolonise the site in the future.
The recent addition to this area is richer in rare plants than Mooloolah River National Park.”
Finally, one comes to the descriptions of Mosaic Units of which the one comprehending the site is:
Significant Vegetation Communities and Ecosystems
Community or Ecosystem Present in Unit Conservation Status within South East Queensland 1a Riparian vine forest Significant &/or Of concern 1e Vine forest associations Significant &/or Of concern 2a Coastal eucalypt mix No concern at present 2c Blackbutt associations Significant &/or Of concern
Summary of Significant Species
Vegetation Status Fauna (*=likely) Status Eucalyptus conglomerata E Richmond birdwing (Ornithoptera richmondia) V
Phaius tancarvilleae E Greenthighed frog R
Acianthus amplexicaulis R Wompoo pigeon
Austromyrtus inophloia R Elk skink R Cascade treefrog E
Doubtless, E stands for Endangered, R for rare. Mosaic M3 is mentioned in the vision statement for Sippy Downs 3.3.2(2)(a)(iii) in Volume 3 and (as Mr Hughes confirmed at page 181 of the transcript) it can be found mapped between the purple lines in the nature conservation strategy code map figure 4-2.1.1 reproduced at page 38 of Mr Brown’s report, Exhibit 8. The site and the Maleys’ land are pretty well central in the location.
Accepting that Mr Holliday is right in identifying the balancing exercise to be undertaken by the court, I have reached the conclusion (although not without difficulty) that he sets too much store by the urban designation and the expectations it gives rise to that the site will be developed as a “built-up” component of the “urban village”. Preferred uses in the urban designation, as Volume 2, 3.4.1 acknowledges, extend beyond use as residential premises and facilities to serve the occupants of them. Land of “significant ecological value” is acknowledged to be included, in rendering appropriate “sensitive development options … to adequately incorporate this land into the urban fabric with minimal impact”. 3.5.4 goes into more detail, contemplating that significant strands of vegetation or fauna habitat may be protected by “preservation measures” or “dedication of land”. As paragraph 6 puts it, an application may not be supported if the assessment manager is “not satisfied that a sensitive environment or habitat can adequately sustain a proposed development”.
That all of the pink coloured “urban” land in Area (4) will be devoted to residential uses for the foreseeable future, as a general rule, seems highly unlikely. Indeed, Exhibit 16 depicts land acquired or being acquired by the Council or the State for its environmental values. That consists of all of Area (4) east of the line formed by the eastern boundary of the site, the Crossing property, the protrusion of the Mountain Creek Valley planning area and Mathew Flinders College south of Ballinger Road to about the mid point of the site’s eastern boundary. West of the north-south line, but separated by the remaining half of the site’s eastern boundary is more land acquired by the Council, for its environmental values one would think, at least in part, being the eastern fifth or so of the Buderim Springs site (an 86 metre wide strip) and a strip of similar width adjoining along the southern boundary, not extending as far as Stringybark Road. It seems likely that an access road will be built through this southern part. Except for the cleared area, accommodating the house and associated facilities, the site might be presumed to exhibit similar values (likewise the uncleared parts of the Maley-Crossing properties which are even closer to the creek – probably within 100 metres – and the conservation-designated land adjoining to the north. Ariel photography, including the most recent, confirms the continued existence of relatively heavily vegetated terrain in all directions from the site (restricted to the eastern 86 metres of Buderim Springs in the south).
It is not necessary to rely on presumption, as the site has been examined by experts who confirm its environmental value. Mr Warren, who laboured under the disadvantage of being brought in as a new consultant very late (and participated in the relevant conclave before having the opportunity to visit the site), offered the following summary and conclusions in his report:
“5 Summary and Conclusions
James Warren and Associates (JWA) have been engaged by P & E Law, on behalf of George Bakrnchev, to complete an Ecological Survey and Habitat Assessment for the site located at 115 Stringybark Road, Buderim. A site survey was completed at the subject site on the 3rd – 6th and 17th October 2007.
Five (5) distinct vegetation communities and a total of one hundred and ninety-five (195) plant species were recorded from the subject site. Site surveys failed to record the Attenuate wattle (Acacia attenuate) – which is listed as Vulnerable within schedules of the Nature Conservation (Wildlife) Regulation 1994 – previously recorded from the site by Yurrah Pty Ltd (2001), or Paristolochia pravenosa – which is also listed as Vulnerable within schedules of the NC(W)R 1994 – previously recorded from the site by Duke Environmental Pty Ltd.
The fauna survey recorded seven (7) species of amphibian, nine (9) reptile species – including one (1) species listed as Rare within schedules of the Nature Conservation (Wildlife) Regulation 1994 – the Elf skink, nineteen (19) bird species – including one (1) Migratory species (EPBC Act 1999) – the Rufous fantail, and three (3) species of mammal.
Additional to the on-site habitat assessment, two (2) scientists traversed all intact vegetation within a 2km radius of the subject site on the 17th October 2007. The aim of this assessment was to determine the suitability of vegetation adjacent to the subject site as habitat for the Threatened species. Approximately 2,586 hectares of vegetation with a 5km radius of the subject site are considered to provide suitable habitat for the Elf skink. The subject site is considered to provide 3.9445 hectares of suitable habitat (i.e. 0.15% of the available habitat within the locality).
Under the Maroochy Shire Council Planning Scheme, the majority of the Subject site as occurring within a ‘Nature Conservation Management Area’. Furthermore, the Wetlands and Fish Habitat Areas map identifies part of the western portion of the Subject site as occurring within 100m of a mapped Wetland. The Maroochy Shire Council Code for Nature Conservation and Biodiversity, and the Waterways and Wetlands code have been addressed for the proposed development.
The proposed development plan identifies individual building envelopes for each lot. Lot sizes vary between 1000m² and 1210m². There is ample room on all lots for tree retention. It is expected that 100 – 150 mature trees could be retained as part of the development. These trees are additional to the eastern Conservation zone. This measure is seen as an acceptable measure to retain elements of the Blackbutt association. It should also be noted that approximately 1581m² of Blackbutt association will be retained in the Conservation area.
Council has, historically, not dealt with the 70% retention acceptable measure by demanding strict compliance. In fact, Council has adopted an alternative measure to meeting the performance requirements of the Code on the adjoining Buderim Springs development. A Planning Committee Report on the 18th June 2003 discusses and approves retention of 55% of the Special Management Area vegetation on the adjoining Buderim Springs development. It should also be noted that there was no tree retention with the Buderim Springs development area, whereas there will be in this development.
The preparation of various management plans eg. Stormwater Management Plan, Site Rehabilitation Plan, Vegetation and Fauna Management Plan will contribute to meeting relevant Performance Criteria. It should be noted that a Tree Retention Plan will be completed. This Plan would form part of the Vegetation and Fauna Management Plan.”
He was highly critical of Dr Olsen for accepting the identification of Acacia attenuata by Dr Hassall of Yurrah Pty Ltd (that was certainly the tone of Mr Allan’s cross-examination of Dr Olsen); I would have thought it a reasonable approach to rely on relatively recent site-specific observations by a respected expert; in this instance the recording was supported by a photograph, unfortunately too indistinct in such copies as were available on the appeal to permit identification. The important flora species for this appeal is Pararistolochia[1] praevenosa. As to the two species, Dr Olsen reported:
[1] Throughout the hearing, I slipped into the less vocally challenging version quoted in the preceding paragraph. Google searches reveal a preponderance of the “rara” version.
“11.In addition to the Of Concern regional ecosystem 12.3.2 that dominates the remnant vegetation on the site, Pararistolochia praevenosa (Frontispiece) was observed on the site during my site inspection. Pararistolochia praevenosa is listed as a Rare plant on the Schedules of the Nature Conservation Act 1992. A population of this rare vine forest vine was located near the northern boundary of the property in remnant vegetation with a dominance of vine forest species. This rare vine is the obligate food plant for the rare and threatened Richmond River Birdwing Butterfly.
12.Yurrah Pty Ltd (2004) recorded Acacia attenuate for the site. This vulnerable plant is known from the local area which forms a core of its present day distribution, but it was not observed on the subject land. Several juvenile Acacia maidenii individuals were observed in the vicinity of the recorded plants of Acacia attenuate and the recorded population of Acacia glaucocarpa around the artificial dam was similarly not observed whereas the local Acacia o’shanesii dominated the fringes of this artificial dam.”
Mr Holliday’s town planning proposal report of September 2004 which accompanied the development application to Council (Exhibit 18, Tab 1.1) at page 14 quoted Yurrah as relying on “the medium naturalness of tall open forest vegetation, its species richness and presence of the vulnerable Acacia attenuata” for proposing that the eastern end of the site be protected. The photograph was reproduced at page 17. Every other reference indicates that the year of the Yurrah report was 2004, relatively recent, rather than 2001.
Dr Olsen drew criticism for providing no species list based on examination of the site, and for relying on work of others, Ms Duke for identifying only half (slightly more) the number of species identified by Mr Warren and his staff (I think it was asserted against her that she had relied on an underling for her identifications). The court did not ever get to the bottom of Mr Hughes’ assertions that the 195 included some species that could not possibly have been on the site beyond what is revealed by an email which became Exhibit 28:
“Please note that it appears that Pandorea baileyana was inserted into the plant list by error.
With regards to the other species in dispute, the Milk thistle (Carduus spp.) could not be identified to species level however both Carduus pycnocephalus and C. thoermeri are considered to occur within the general locality based on Herbarium mapping (attached). The Scotch thistle (Onopordium acanthum) however, is not mapped as occurring in this area by the Herbarium”.
Ms Duke accurately identified Pararistolochia praevenosa which can be found in a couple of enormous specimens in a population whose vitality is indicated by the co-location of a number of healthy juvenile specimens. No one challenged the importance of this colony of the vine; the experts’ differences boiled down to whether a customary 50 metre buffer zone was required around each specimen located, or whether alternative methods such as “edge-sealing” (see Exhibit 39) might be available as Mr Warren contended. He or his staff, although adopting the random walk method of assessing what flora was located on the site, as had Ms Duke, missed the rare vine, even though a marker ribbon had been tied adjacent to one specimen (on a less important plant). The conclusion was apparently drawn that the beribboned plant was being presented as Pararistolochia praevenosa in a demonstration of some mistake or incompetence.
The vine, described in the planning scheme and more generally as the Richmond Birdwing vine has been located generally north of a large man-made dam constructed over almost the whole of Lot 10 (of 22) as formerly proposed, now Lot 6 of 18 (1455 m²) at the eastern end of the proposed development area, abutting the proposed public open space provision of 13116 m² on the east of the site (most of which is inside the Q 100 Flood-line).
The change has been recommended by Mr Warren to provide protection for the vine. It involves deletion of five proposed lots in the north-eastern portion of the area to be developed and the creation of one new lot in their place which nestles in the curve of a question mark shaped road proposed through the site, immediately above the “dot” represented by a cul-de-sac at its end. The other end of the question mark connects with a stub provided in Buderim Springs of a constructed road known as Figbird Crescent. From the “top” of the question mark another road which straightens out the meandering driveway to the existing house connects with Stringybark Road. The proposal is that this entrance to the estate be limited to left in – left out, an arrangement rendered acceptable by nearby roundabouts in both directions. The proposed road touches the northern boundary at the “handle” of the Crossings’ property for 40 metres or so. The road layout appears to have been dictated by a desire to preserve the existing house on the site and its curtilage. I think it was unfair to castigate Mr Warren for making everything subservient to the road layout in his redesign. Even though the appellant appears to have embraced it for the purposes of the appeal, it is likely that once the final footprint of the development is clarified, further thought will be given to the most suitable road layout.
Mr Warren’s redesign continues the idea of filling the dam to create a lot, but in the interest of the vine, will preserve the site north of that lot and the cul-de-sac to its east. West of the cul-de-sac is the new Lot 5 (1,048 m²) north of which is an east-west strip some 20 metres wide running along the boundary as far as the proposed road. The Maleys contend that this strip ought to be extended further west to the Stringybark Road frontage, compromising the road through the site as currently proposed and the rear 20 metres or thereabouts of proposed Lots 1, 2, 3 and 4. Such an outcome would do much to protect the Maleys’ amenity, something their statement confirms they would welcome. They are not neighbours of the site. It is doubtful whether they are entitled to present an amenity argument specific to their private interests. Mr Skoien, on their behalf, therefore relied on ecological arguments, especially corridor or connectivity ones.
It is convenient to quote Mr Warren’s report for an outline of aspects on which State legislation has a bearing:
“4.3.3 Vegetation Management Act (1999)
The purpose of the VMA (1999) is to regulate the clearing of native vegetation on freehold land (previously unregulated) and particularly Endangered Regional Ecosystems (RE’s). The VMA (1999) gives the Chief Executive of the Department of Natural Resources, Mines and Water and their delegates the power to assess vegetation clearing which is now assessable under the Integrated Planning Act 1997.
Approval is required under the IPA (1997) when clearing is to be undertaken within a declared area or within a remnant regional ecosystem, unless listed under Exemptions relating to the Act. A declared area is an area declared by the Minister to be of high conservation value or vulnerable to land degradation.
In August 2004, Version 4.1 of the Regional Ecosystem Descriptions Database (REDD) was listed on the EPA website. At the time of writing (November 2007), Version 5.1 is current. The Subject site is mapped as containing Regional Ecosystems under both Versions 4.1 (FIGURE 3) and 5.1 (FIGURE 4). TABLE 4 provides a summary of Regional Ecosystems present on site and their characteristics, as defined under Version 4.1 and 5.1 of the REDD.
TABLE 4 – COMPARISON OF REGIONAL ECOSYSTEMS MAPPED ON SITE UNDER VERSION 4.1 AND 5.1 REDD MAPPING
Version 4.1 Version 5.1 RE Status Description Re Status Description 12.9-10.1 Of Concern Tall shrubby open forest often with Eucalyptus resinifera, E. grandis, Corymbia intermedia on sedimentary rocks. Coastal 12.9-10.1 Of Concern Shrubby open forest often with Eucalyptus resinifera, E. grandis, Corymbia intermedia on sedimentary rocks. Coastal 12.3.2 Not Of Concern Eucalyptus grandis tall open forest on alluvial plains 12.3.2 Of Concern Eucalyptus grandis tall open forest on alluvial plains 12.3.4 Not of Concern Melaleuca quinquenervia, Eucalyptus robusta open forest on or near coastal alluvial plains 12.3.4 Of Concern Melaleuca quinquenervia, Eucalyptus robusta open forest on or near coastal alluvial plains. The Regional Ecosystems mapped on the Subject site remain unchanged between Versions 4.1 and 5.1, however the following changes have been noted:
·The VMA (1999) status of RE’s 12.3.2 and 12.3.4 have been upgraded to ‘Of Concern’ under Version 5.1, whereas under Version 4.1 their status was listed as ‘Not of Concern’.
·RE 12.9-10.1, located mainly in the west of the site, now extends into the central portion of the site that was previously mapped as non-remnant.
JWA is of the opinion that neither Version 4.1 nor Version 5.1 accurately represent Regional Ecosystems present on the Subject site. During the site survey it was determined that vegetation on site most closely resembled the RE’s shown in TABLE 5:
TABLE 5 – COMPARISON OF REGIONAL ECOSYSTEMS DETERMINED PRESENT ON SITE BY JAMES WARREN AND ASSOCIATES UNDER VERSION 4.1 AND 5.1
Version 4.1 Version 5.1 RE Status Description Re Status Description 12.3.2 Not of Concern Eucalyptus grandis tall open forest on alluvial plains 12.3.2 Of Concern Eucalyptus grandis tall open forest on alluvial plains 12.3.5 Of Concern Melaleuca quinquenervia open forest on coastal alluvium 12.3.5 Not of Concern Melaleuca quinquenervia open forest on coastal alluvium The areas considered to contain these RE’s are shown on FIGURE 6. Full descriptions of all RE’s discussed in this section are provided in APPENDIX 12.
FIGURE 8 and FIGURE 9 provide an overlay of the proposed development on the Version 4.1 and 5.1 RE mapping respectively.”
The correct course would seem to be to adopt current rather than abandoned views of what is of concern or not of concern. The eastern part of the site (east of the dam) contains the 3.2.4 (if Mr Warren is correct, the 3.2.5) regional ecosystem, the balance (disregarding the clear area) 12.3.2 or 12.9-10.1, either of which is now “of concern”. Ms Duke supported the official mapping and was able to support that with reasons based on her observations. Dr Olsen, who was prepared to support Mr Warren regarding the presence of 3.2.5, expressed these views:
“14.The current certified mapping (Version 5.1) remains the statutory tool relevant to the Vegetation Management Act 1999 (Appendix 3). This mapping was compiled at a bioregional scale (1:50,000 in the case of this part of the Southeast Queensland Bioregion). Due to scale constraints and the mapping rules employed for different scales (Neldner, Wilson, Thompson & Dillewaard, 2005), many features of the vegetation that are discernable during site inspections are not capable of depiction on the current certified mapping. Field survey is able to detect finer scales of resolution than was practicable for the depiction and scale of the certified mapping layer. Scale factors account for the refinements possible for some sites/areas surveyed and detailed herein within the current study. The discrepancies between the two products are scale related and do not reflect real differences in interpretation of the landscape.
15.The most significant aspect of the disparities between my site observations and the current certified mapping are the lack of depiction of the clearing occupied by the existing residence and surrounds and the wetland community in the eastern portions of the site (Plate 1) and the dominance of the remainder by regional ecosystem 12.3.2. Site inspection reveals the areas requiring refinement within the current certified mapping.”
Whatever the status of the eastern part of the site, the desirability of quarantining it as a northern extension of the public open space now provided at Buderim Springs is manifest. The Council’s fauna expert, Mr Agnew reports that:
“… the site supports remnant vegetation and generally forms an open forest structure. This vegetation cover supports a suite of important habitat resources for native fauna, including:
·Hollow-bearing live trees and dead stags – these are resources are rare and restricted to the eastern sector of site.
·Shrubby understorey – whilst the density of the shrub and small tree layer varies, higher structural complexity is mainly associated with the northern central and eastern parts of the site.
·Ground logs and fallen timber – large ground logs are located throughout the site, though together with fallen timber debris, are more common within northern central and eastern parts of the site.
·A diversity of flowering plants within the forest strata, i.e. canopy, understorey and ground layers.
…
A noteworthy area of fauna habitat within the site is the wetland which supports a combination of paperbark Melaleuca quinquenervia and saw sedge Gahnia sp.. This habitat type is limited to eastern end of the site, i.e. within approximately 60m of the eastern boundary. This area is contiguous with similar habitat to the east and is likely to support habitat for a variety of frogs and reptiles. Also of note are two other features which occur adjacent and to the west of the wetland. These are a small population of Pararistolochia praevenosa (food plant for the threatened Richmond Birdwing Butterfly Ornithoptera richmondia) and the constructed dam (potential habitat for a variety of native fauna).
…
… the fauna assemblage likely to occur on the site is likely to be diverse, given the habitat characteristics within the site, though also, by way of its connectivity with the larger areas of high quality habitat to the east and west.
As noted in the Appellant’s ecological assessment report (Yurrah 2004a), the remnant vegetation cover on the site is well connected to other local remnants. These together, form part of an ecological linkage between larger natural areas, i.e. Moolah River National Park (an extensive habitat area of high conservation values and approximately one kilometre to the east of the site) and forest remnants to the west. As such, the vegetated habitats of the site from (sic) a strategically important part of the local area natural network of flora and fauna habitats.
…
… the site supports potentially suitable habitat for a variety of rare, threatened, and migratory fauna. These include:
·Wallum Froglet Crinia tinnula – listed as Vulnerable under the NC Act.
·Powerful Owl Ninox strenua – listed as Vulnerable under the NC Act.
·Tusked Frog Adelotus brevis – listed as Vulnerable under the NC Act.
·Richmond Birdwing Butterfly Ornithoptera richmondia – listed as Vulnerable under the NC Act.
·Elf Skink Eroticoscincus graciloides – listed as Rare under the NC Act.
·The skink Ophioscincus truncates – listed as Rare under the NC Act.
·Grey Goshawk Accipiter novaehollandiae – listed as rare under the NC Act.
·Lewin’s Rail Rallus pectoralis – listed as Rare under the NC Act.
·Square-tailed Kite Lophoictinia isura – listed as Rare under the Act.”
The reference to links to the west is important in the context of Ms Duke being criticised for changing ground to assert the appropriateness of providing a vegetated linkage to areas across Stringybark Road to the west. This is spelt out in her supplementary report Exhibit 10A. I took the suggestion to be that she had opportunistically increased her demands in response to the concessions promoted by Mr Warren. Although Exhibit 10 may not in terms advocate an east-west link, the flora and fauna experts’ conclave held on 28 September 2007 did consider that issue, Mr Agnew and Ms Duke supporting the following proposition on which Mr Warren “cannot comment as he has not undertaken a field survey yet”:
“The forested habitat of the site contributes to a locally significant area of fauna habitat which has value in supporting local fauna biodiversity, rare and threatened species, and habitat connectivity to support fauna movement between important habitat areas to the north and east (e.g. Mooloolah River National Park) and extensive bushland areas to the west. None of these values have been adequately addressed in the Yurrah (2004) report or the development application as a whole.”
It would not be fair to regard the advocacy of retention of a vegetated corridor all the way to the west as a recent invention or anything of the kind. Exhibit 13 was prepared by Dr Olsen and Mr Agnew to delineate that part of the site which they were insistent required protection. The line begins on the northern boundary opposite the eastern side of a shed on the Maleys’ land proceeding south to the cleared curtilage which it skirts before turning south again to the southern boundary south of the proposed cul-de-sac, which will be lost, along with Lots 5, 6 and 7 and half of Lot 8, going by the transposition of line on Exhibit 13 to Exhibit 2 (the current development proposal of the appellant) attempted by Dr Olsen; the northern arc of the road on this side would be lost. He and Mr Agnew made the deliberate judgment that the values of the area they recommended be quarantined against development exceeded those along the western part of the site’s northern boundary. I understood them to accept that preservation of a vegetated corridor there would be advantageous. Pressed to indicate a similar view (transcript page 150ff), Mr Warren was resistant, asserting the 200 metre interface on the northern boundary was sufficient, that he was not aiming to achieve an east-west corridor, although “of course” there was an east-west corridor function there, for birds, in any event (151). He accepted that animals moved on the ground “all over the place”, the site playing its role “as a component of this mosaic of habitats in the area”. He considered this was not significant, even on a local scale (152). At 155 he asserted his proposal “conserves the important ecological values of the site” while conceding that it did not enhance them. He concluded at 155 upon this aspect:
“Certainly there will be vegetation removed as part of this application. My job is to look at what the important ecological values are, and within the constraints of the Maroochy Plan strike a balance. It’s all about balance I think … the Plan talks about balance a lot, and in my view my plan strikes a balance. It strikes a balance for conservation of the 12.3.5 and the conservation of the best parts of 12.3.2.”
I confirm my own concern regarding some aspects of balance and equity in relation to this issue. While the IPA pays lip-service to inter-generational equity in s 1.2.3(1)(a)(iv), it is silent as to equity among all potential players in the present. The appellant’s position as an applicant developer is invidious in some respects. Only it is at this time amenable to conditions or restrictions being imposed upon its ability to turn its site to most advantageous account. Taking a larger view, it may be said that the responsibility for providing the east-west corridor (assuming there is such a responsibility) should be shared by Buderim Springs, the site, the Maley and Crossing properties and (of course) the public land further north. Buderim Springs has avoided its responsibility, if any, which is not to say that some compensating arrangements have not been achieved. Nonetheless, this bodes to increase the responsibility that might be placed on the appellant’s site. No one can say whether any opportunity is ever going to arise to protect part of an east-west corridor on the Maley/Crossing land. It strikes me as patently unfair to require of the appellant or its site provision of a sufficient “stand-alone” corridor. One would expect that development on the properties to the north, given their proximity to Mountain Creek, might be more problematic than the appellant’s. Only the future will tell. For the moment, I think that no more should be required of the site than a fair contribution, assuming that other properties will continue to make their contribution in the long term.
I agree with Ms Duke that the provision of a corridor extending along the whole northern boundary of the site is appropriate. It would be difficult to justify more than a ten metre or so wide contribution from the site in the circumstances, that is, or one of adequate width assuming equal contribution from the Maley site and the whole of the Crossing driveway.
I agree with Ms Duke that, having regard to the development that has occurred at Buderim Springs, there is no point in attempting to provide any vegetated corridor along the southern boundary of the site. I appreciate that some residents of Buderim Springs (such as the Leonards) may have relied on the site providing an attractive vegetated screen for purposes of preserving their amenity; however, I fail to see any basis for requiring that where Buderim Springs has not reciprocated in advance by similar measures calculated to preserve the site’s amenity. There is simply insufficient room on the site to provide any southern corridor. The balancing exercise which all parties and the various experts accept is called for here ought not to produce the outcome that development of the site is effectively precluded. This observation does not indicate acceptance of Mr Allan’s suggestion that it is somehow incumbent on the court to permit some “economically feasible” development. (I would add that if the existing house is found to be problematically located, that presents a difficulty for the appellant to deal with, not one for the court to find the solution to.)
The planning scheme envisages in what is said about siting and set-backs in Area (4) “landscaped spaces … between developments” along with buildings “located close to frontages to streets”. This may provide additional justification for the vegetated corridor along the northern boundary being retained; defined building envelopes or other arrangements might be devised to preserve that part of the corridor located on the site. During argument I queried the provision of five metre strips of vegetation to be retained on the Stringybark Road frontage, asking whether an equivalent in square metres might more appropriately be applied towards provision of the east-west corridor. Mr Hughes indicated that the Council favoured these strips, which one might see as Potemkin forests retained to conceal development behind them, in a pretence that a locality has a character it does not have, running counter to the siting and setback aspirations mentioned above. It is straining things to see them as landscaping “between developments”. It is very likely that for privacy or other reasons residents enjoying a frontage to Stringybark Road would provide vegetated screening there of their own volition.
Conclusion
All of the foregoing is pertinent to my conclusion that, on this site, acceptable measure A2.1 or A2.2, (which would appear more onerous) ought to be complied with. My view of the evidence before the court is that the appellant’s proposal does not – and nor would any similar development – preserve conservation values as required by P2. In my experience, it is a cause of enormous dissatisfaction to the community that their understandable expectations that acceptable measures (or “acceptable solutions”) will be implemented in developments impinging upon them so often prove totally misplaced: they are at the mercy of assessment managers or the court which may exercise the wide discretion they have to declare performance criteria satisfied. Cf Crane v Brisbane City Council [2004] QPELR 1; Gorman v Brisbane City Council [2004] QPELR 29; Tod v Brisbane City Council [2004] QPELR 170. In this instance, as things currently stand, the acceptable measures should be insisted upon. For what it is worth, in the court’s view, they probably fall short of actually satisfying P2.
In respect of the argument much relied on by the appellant and its experts that it should be treated in similar fashion to Buderim Springs and the 70 per cent benchmark, the only authority pointed to by Mr Allan was Grosser v Gold Coast City Council [2001] QCA 423 at [44]:
“It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained valid, Beck v Council of the Shire of Atherton (1991) QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following”.
The QPLR and QPELR cases cited are of no assistance in the present context. The judgment goes on to refer to what might have been seen as multiple examples of the Council indulging certain problematic uses. If it were an example of anything, Buderim Springs would provide but a single example, and hardly be compelling. The circumstances of Buderim Springs are sufficiently special to exclude it as any kind of precedent. It included features such as provision of a local centre, provision of different types of housing (including multiple dwellings and (at earlier times, at least) a retirement village) and contributions to the planned road network which are not reflected here. On Mr Holliday’s approach, the proposal would have the merit of providing more support to the Sippy Downs Town Centre and to its own local centre based community by incorporating more intensive residential development.
It does not follow that the appeal ought to be dismissed. The court has permitted the amendment of the development proposal and it can be amended again. The second co-respondents by election and the third co-respondents by election attended the hearing of the appeal and at the outset indicated they were content to rely on their submissions made to the Council (which I’ve read) and such arguments as the respondent and the first co-respondents by election might present. The latter urged dismissal of the appeal on the basis that the appellant had not satisfied its onus. The Council in the end took a more accommodating attitude, its counsel declaring (transcript 408-09) that it did not want the site in a conservation zone, or to prevent any development on the site, but rather to ensure a balance between preservation of important vegetation and a promotion of some development. The SMA designation is a mark of that. While Mr Skoien submitted that “in the balancing exercise, if there’s doubt about it, you go in favour of the ecology”, the Council’s considered position was, to quote paragraph 62 of the written submission of Mr Hughes and Ms Holland:
“Overall, it is submitted that the Court would be inclined to deliver Reasons for Judgment confirming that the extent of development shown in Exhibit 2 is unacceptable and perhaps indicating that development within the area marked for such purposes on Exhibit 14 (ie the area west of the black line) might be acceptable. The Court might then consider inviting the Appellant to reconsider its position and, if so advised, lodge an alternative plan of development with the benefit of the Reasons for Judgment for the consideration, initially, by the other parties, and ultimately by the Court”.
There was also acknowledgement that the considerable amount of work done by and for the parties ought to be used to reach some useful result in this proceeding. That would be a way of ensuring the decision-making process is “efficient”, to quote the aspiration set out in s 1.2.3(1)(a)(i) of the IPA.
The Council’s suggestion is attractive. The outcome may yet be that the appeal is allowed, assuming that a suitable development proposal is formulated by the appellant and that the court is not precluded from considering the changes by s 4.1.52(2)(b) of the IPA.
The court’s inclination is to restrict the area for development more severely than the Council suggested by including an area for contribution towards an east-west vegetated corridor along the balance of the northern boundary of the site. Ms Evenhuis presented some calculations to show how various scenarios measured up against the acceptable measure in A2.1 of 70 per cent retention of vegetation, upon which, in the circumstances, the court is inclined to insist. That makes the appeal unusual insofar as in this respect the flexibility of “performance based” planning arrangements does not avail the appellant. It may well see itself as a victim of the flexibility introduced by this planning scheme for Special Management Areas.
I have found myself much assisted by Mr Holliday’s evidence, but, in the end, do not agree with him as to where the balance lies, even acknowledging the appellant’s concessions embodied in Exhibit 2. It is convenient to state (without further detail) that, if it is pertinent to identify conflict between the application (in any of its forms) and the planning scheme, Mr Brown’s report identifies the provisions with which that conflict exists. There is no good reason for approving the current proposal notwithstanding.
Dr Olsen’s conclusion that the proposal will result in the permanent loss of:
·“The Rare plant, Pararistolochia praevenosa;
·Remnant native vegetation (the Of Concern regional ecosystem 12.3.2)”
is allayed by Exhibit 2, but insufficiently. There is insufficient accurate survey or similar information to locate the Pararistolochia pravenosa on the site, for the purposes of ensuring its protection, which is so important to the protection of the butterfly. A 50 metre buffer zone surrounding all specimens would appear impractical, if only because the site itself cannot accommodate that buffer: many specimens are within 50 metres of the northern boundary, if not all of them. A point must be reached at which it is judged unreasonable, depending on where particular specimens are located, to require the site itself to provide such an extensive buffer. The parties need adequate opportunity to consider the suggestions based on Exhibit 39, which Mr Warren advanced at a very late stage. It may be that “edge-sealing” is the best that can practicably be achieved for some specimens. On that basis, as I understood Mr Warren, a buffer from 13.6 metres up to 20 metres would be indicated (along with “sealing” measures, of course).
The appeal is adjourned to permit the parties to review their positions in light of what is set out above.