Heritage Properties Pty Ltd v Redland City Council
[2012] QPEC 57
•27 September 2012
[2012] QPEC 57
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 3363 of 2012
| HERITAGE PROPERTIES PTY LTD | Applicant |
| and | |
| REDLAND CITY COUNCIL | |
| and | |
| STATE OF QUEENSLAND and WILDLIFE PRESERVATION SOCIETY | Respondents |
BRISBANE
..DATE 27/09/2012
ORDER
CATCHWORDS
Sustainable Planning Act 2009 s 367, s 367
Permissible changes to residential subdivision proposed where approval constituted by court orders - alternative arrangements approved where koala habitat trees required to be preserved died - whether emergency access should be sealed or unsealed
HIS HONOUR: The court makes an order in terms of the initialled draft.
It approves a request to change a development approval under sections 367 and following of the Sustainable Planning Act 2009 on the basis that what is sought is permissible change within the definition in section 367. On no view do the changes proposed for the court's consideration "result in a substantially different development" in this large multi-stage residential subdivision. The court is involved because the development approval is constituted by its order of 15 February 2007 in appeal 312 of 2006.
In large measure, if not entirely, the changes proposed are the result of the years that have passed and things that have occurred during those years, including changes in relevant standards and practice applied to new developments and perhaps, most importantly, an impetus for the current originating application has been the death of five large koala habitat trees which the original development conditions required be protected.
Mr Bittner, representing the applicant developer, tells the court of his client's concern that the Council might decline to seal plans perfecting the approved reconfiguration given the state of the trees. That particular aspect is dealt with by changing conditions so that a far greater number of necessarily immature koala habitat trees will be provided in identified locations in the open space areas of the overall development.
Additional koala related concerns arise in respect of what Mr Bittner called the entrance statement to the subdivision, which has all along been required by conditions to be "koala unfriendly", meaning that various techniques are employed to discourage animals from exiting the development via that entrance to find themselves in peril on the adjacent road.
The years that have passed have apparently caused those concerned with these matters to adopt different ideas of how koalas might be kept away or attracted to certain places. It's sensible for the court to take this opportunity to move with the times.
Just as there is this koala unfriendly feature of the development, well-intended, as I've endeavoured to explain, there are koala friendly features such as provision of poles along the lines of acoustic fencing, which can be easily scaled.
In the original appeal in 2006 the Bayside Branch of the Wildlife Preservation Society of Queensland was an active
co-respondent. Exhibit 1, their letter of 25th of September 2012, makes it clear they are aware of the present application. They have elected not to play any part. While distressed at the loss of specific trees the Society can appreciate the merit of what is proposed in reaction.
One issue the court has to resolve concerns the provision of a cleared area to permit evacuation of the development in case of emergencies. This proposal in the conditions to be changed today means that the developer has responsibility for providing that access facility rather than, as the original order contemplated, being obliged to make contributions to works to be done by others.
The developer and the Society, perhaps for different reasons, wanted this new access to be unsealed. The Council take a different view, seeking a three metre wide concreted pavement. The explanations offered in terms of maintenance and concerns that in times of extraordinarily heavy rainfall the access may become so eroded as to be unusable when needed strike the court as sensible. I think there's little or no way around according priority to the safety needs of people over those of fauna.
The conditions as changed require a different approach to provision of acoustic barriers, that's explained in terms of not only the science of the field changing, but also the knowledge that's been gained from the completion of stage 1 of levels and the like which enables acoustic barriers to be more responsive to the requirements on the site.
The changes in this regard flow on through quite a number of conditions, including community title provisions and covenants that may or may not be required of those who purchase lots for acoustic purposes, including the protection of the interests of the respondent by election, the Chief Executive administering the Transport Infrastructure Act 1994.
The order made by the court includes, as a separate part of attachment A, the conditions as now proposed by it, which the applicant is willing to accept.
It's unusual in my experience, but I think should be accounted a good thing that the opportunity to fine-tune the development which arose in the way identified as being taken advantage of.
Order as per initialled draft.
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