JJJM Pty Ltd v Council of the City of Gold Coast - [2024] QPEC 9

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

JJJM Pty Ltd v Council of the City of Gold Coast [2024] QPEC 9

PARTIES:

JJJM Pty Ltd
(Appellant)

v

COUNCIL OF THE CITY OF THE GOLD COAST
(Respondent)

FILE NO/S:

209 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

22 March 2024

DELIVERED AT:

Southport

HEARING DATE:

29 January – 1 February 2024

JUDGE:

Jackson KC DCJ

ORDER:

THE APPEAL IS DISMISSED.

CATCHWORDS:

ENVIRONMENT AND PLANNING – APPEAL - ENVIRONMENTAL PLANNING – PLANNING SCHEMES – GENERALLY – where the respondent refused an application for a material change of use for accepted development subject to requirements – where the application concerns the development of caretaker’s accommodation – where the Environmental Significance Overlay Code is one of the assessment benchmarks – where the application concerns Hinterland to Coast Critical Corridors - whether the proposed development provides corridors that enable adequate fauna movement through the site - whether the proposed development is consistent with the intent and purpose of the planning scheme – whether the proposed development complies with the assessment benchmarks in the planning scheme

CASES:

Boral Resources (Qld) Pty Limitedv Gold Coast City Council [2018] QPELR 982
Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63

Sincere International Group Pty Ltd v City of Gold Coast [2019] QPELR 247
GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2021] QPELR 124

Newing & Ors v Silcock & Ors [2010] QPELR 692

LEGISLATION:

Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)

COUNSEL:

K W Wylie for the Appellant

J J Ware for the Respondent

SOLICITORS:

Hickey Lawyers for the Appellant

Hopgood Ganim Lawyers for the Respondent

Introduction

By application dated 12 December 2019 the appellant sought a development permit for a material change of use for accepted development subject to requirements (caretaker’s accommodation and animal keeping (horse-stables)) (“proposed development”) in respect of a site situated at 13 Monday Drive, Tallebudgera Valley, Queensland (“the subject site” or “the land”). The subject site has an area of 17.24 hectares. By decision notice dated 19 May 2021 the development application was refused by the respondent.
This appeal was commenced on 22 June 2021. On 25 August 2022 a minor change application was approved. A further minor change was approved on 11 August 2023. The effect was that, to avoid and reduce impacts to native vegetation, the location of the proposed caretaker’s accommodation was moved approximately 19 metres closer to Monday Drive, the alignment of infrastructure was altered, the internal proposed caretaker access link was removed and the extent of the development footprint was reduced.
Some of the expert evidence is largely irrelevant because it deals with a previous location for the proposed caretaker’s accommodation which has been abandoned.

Issues on appeal

The Agreed List of Disputed Issues refines the extent of dispute[1] and provides the parties agree that the following matters remain in dispute for determination by the Court in carrying out the assessment under section 60(2) of the Planning Act 2016 (the “Planning Act”) and deciding the subject development application:
[1]From that which appeared in the filed documents defining the scope of the issues on appeal.
“Assessment Benchmarks under section 45(3) of the Planning Act 2016
1.    To the extent it is relevant, whether the Proposed Development is consistent with the intent and purpose of the Gold Coast City Plan Version 7 (the “Planning Scheme”), having regard to
(a)the proposed establishment of a caretakers’ accommodation use and animal keeping use in the Rural zone – rural landscape and environmental precinct; and
(b)the small-scale nature and character of the proposed caretakers’ accommodation, consistent with the purpose and overall outcomes of the Caretakers’ accommodation code
2.    Whether the Proposed Development, by establishing the southern Caretakers’ accommodation, including the clearing of native vegetation to facilitate development of the residence, driveway and associated bushfire asset protection zone, and in a locality identified in the Planning Scheme as falling within the:
(c)Environmental significance - Biodiversity areas overlay map – Hinterland to coast critical corridor area;
(d)Environmental significance - Vegetation management overlay map – General priority vegetation; and
(e)Environmental significance - Priority species overlay map – local and state significant species, and koala habitat area
will, notwithstanding the conditions and controls proposed in paragraph 78 of the Ecology Joint Expert Report dated 17 April 2023, comply with the following provisions of the Planning Scheme:
Environmental significance overlay code
(i)Purpose (1);
(ii)Overall outcome (2)(a)(iv), (b) and (f); and
(iii)Performance outcomes PO1, PO3, PO9, PO13, PO15, PO17 and PO19.
Rural Zone Code
(iv)Overall outcome (3)(a) and (b); and
(v)Performance outcome PO5;
Rural activity Code
(vi)Overall outcome (2)(b); and
(vii)Performance outcome PO3(d);
3.    Whether the Proposed Development, by establishing the southern Caretakers’ Residence, will comply with the following provisions of the Planning Scheme:
Bushfire Hazard Overlay Code
(i)Overall outcomes (3)(a), (b), (c) and (e); and
(ii)Performance outcome PO1, PO3, PO4, PO6, PO7 and PO9.
4.    Whether the Proposed Development is required to provide vehicular connectivity between the northern and southern premises such as to avoid or minimise impacts on the external road network, surrounding areas and traffic movements and, if so, whether appropriate connectivity is provided, having regard to the following provisions of the Planning Scheme:
Transport code
(i)Overall outcome (2)(a)(ii); and
(ii)Performance outcome PO24.
5.    Whether compliance with the assessment benchmarks in the Planning Scheme can be achieved, or any non-compliance addressed, by the imposition of conditions upon any approval of the Proposed Development.
Discretion
6. Whether, in the exercise of the discretion under section 60(2) of the Planning Act 2016, the Proposed Development should be approved, approved in part, or refused.”
The breadth of dispute was further lessened by the respondent abandoning reliance upon the Rural Zone Code and the Rural Activity Code. Broadly, the disputed issues are ecology, bushfire and traffic.

Nature of the appeal and relevant principles

Section 43 of the Planning and Environment Court Act 2016 (the “PECA”) provides that an appeal to this Court is by way of hearing anew.[2] As is clear from ss 45(1) of the PECA, the appellant bears the onus of proof.
[2]PECA ss 45(1).
Sub-section 46(2) of the PECA provides that when an appeal is being heard s 45 of the Planning Act is to be read as if the Court were the assessment manager for the development application.
The proposed caretaker’s accommodation is accepted development subject to requirements. Accordingly, development approval is not required if the relevant requirements are met. However, if such requirements are not met development approval is required. It is common ground that the required outcomes are not met. The animal keeping aspect is code assessable but there is no remaining issue as to it.
Pursuant to s 5.3.3(2) of the Gold Coast City Plan Version 7 (the “Planning Scheme”), accepted development becomes code assessable in the present circumstances. It is to be assessed against all the assessment benchmarks identified in the assessment benchmarks column. Those benchmarks are identified above under the heading Issues on Appeal.
Unlike impact assessment, the task to be undertaken on code assessment is much more circumscribed. The assessment is only against the relevant benchmarks.[3] Although a discretion remains under ss 60(2)(b) of the Planning Act to approve the application even if not all the benchmarks are complied with, it is constrained by the fact that assessment must be carried out only against the assessment benchmarks and having regard to any matters prescribed by regulation.[4]
[3]Compare ss 45(3) and (5) of the Planning Act.
[4]Subsection 45(3) of the Planning Act.

The land and its surrounds

As I have mentioned the subject site has a total area of 17.24 hectares. It is an elongated site between Chesterfield Drive[5] to the north and Monday Drive to the south. It is largely bounded on the eastern side by a gazetted road reserve used as a fire trail. Other development at each end of the subject site is rural residential in nature. The subject site is a little over a kilometre in length with a height change from the lowest area in the south to the north of about 190 metres.
[5]The address of the house situated at that end of the land is 327 Chesterfield Drive, Bonogin.
The land is part of a broader rural / environmental corridor that extends from Old Coach Road, approximately 2km to the northeast, to the Tallebudgera Valley to the southwest, and beyond. To the north of the subject site, on the north-western side of Chesterfield Drive, is rural residential land. To the south of the land, on either side of Monday Drive, is rural residential land. More broadly, to the north, east, west, and south of the subject site is heavily vegetated land within environmental designations. Land to the south across Monday Drive is in the open space zone. There is an existing dwelling house at the northern part of the site addressing Chesterfield Drive, and a gravel road connecting the northern and southern part of the land that travels in (small) part on the land and otherwise in the road reserve I have already mentioned which adjoins the eastern part of the land.
The subject site is situated in the rural landscape and environment precinct of the rural zone under the Planning Scheme. There is rural residential zoned land to the immediate east and west of the land along Monday Drive, while the lower finger of land where it is proposed the caretaker’s accommodation will be sited is within the rural landscape and environmental precinct of the rural zone. The land immediately south of the subject site across Monday Drive and that to the north-west are both zoned open space.

Description of the proposal

As I have mentioned, the proposed development is to establish caretaker’s accommodation and animal keeping (horse-stables) in respect of the subject site. The proposed development of the caretaker’s accommodation area is that of 1,455m2, which represents 0.84% of the land. The proposed development requires earthworks and the clearing of vegetation for the caretaker’s accommodation and driveway as well as for an asset protection zone around the building to protect against bushfire risk. The proposal requires the clearing of 24 trees, one of which is a pest species (Camphor Laurel), and five of which are dead with no habitat features of utility. Of the remaining 18 trees, 12 are koala habitat trees.

Relevant assessment benchmarks

Under the Planning Scheme the subject site is situated in the rural zone and wholly within the rural landscape and environmental precinct. As I have mentioned, within that zone and precinct:
(a)caretaker’s accommodation is accepted development subject to requirements; and
(b)animal keeping is code assessable.
It is common ground that development which is accepted subject to requirements does not require approval if the relevant required outcomes are met. Code assessment is required for accepted development where such required outcomes are not met. That is the position in relation to the caretaker’s accommodation aspect of this matter.
The subject site is, relevantly, subject to the following overlays (and their associated codes):
(a)Bushfire Hazard Overlay;
(b)Environmental Significance - Biodiversity Areas Overlay;
(c)Environmental Significance - Priority Species Overlay; and
(d)Environmental Significance - Vegetation Management Overlay.
Within those three Environmental Significance Overlays, it can be seen that the subject site is affected by the Hinterland to Coast Critical Corridors, the Hinterland Core Habitat System (although this does not extend to the development footprint) under the Environmental Significance - Biodiversity Areas, under the Environmental Significance - Priority Species Overlay, both Matters of State Environmental Significance and Matters of Local Environmental Significance including significant species and in particular, koalas - the site is situated a koala habitat area and under the Environmental Significance - Vegetation Management Overlay most of the land is covered by either medium priority vegetation or general priority vegetation with the development footprint for the proposed caretaker’s accommodation coinciding with the latter.
The other benchmarks which remain relevant relate to traffic. In turn, these three sets of assessment benchmarks may be more fully identified as follows.[6]
[6]I have sought to only set out assessment benchmarks of most potential significance for brevity, although some others were dealt with in submissions.
Bushfire Hazard Overlay Code
The provisions of the Bushfire Hazard Overlay Code (“the bushfire code”) of most remaining relevance are PO1, PO6 and PO9. Those provisions provide, in part, as follows:
“PO1 In a bushfire hazard area, the fire mitigation methods used at the site are adequate for the bushfire hazard of the individual site, having regard to:
(a)vegetation type;
(b)slope;
(c)aspect;
(d)bushfire history;
(e)conservation values of the site;
(f)ecological restoration, including forest succession;
(g)ongoing maintenance;
(h)climate change; and
(i)on-site and off-site fire hazard implications.
…

Figure 8.2.3-1
…
PO6 In a bushfire hazard area, vehicular access (including internal roads) is designed to mitigate against bushfire hazard by ensuring adequate access for:
(a) fire-fighting and other emergency vehicles, and
(b) the evacuation of residents and emergency personnel, during a bushfire event
…
PO9 In a bushfire hazard area, fire trails must be provided to:
(a) enable access for fire fighters, residents and equipment;
(b) contribute to (where required) bushfire radiation zone(s);
(c) mitigate against bushfire hazard; and
(d) allow access for hazard reduction management programs.”
Environmental Significance Overlay Code

The provisions of the Environmental Significance Overlay Code (“the ESO code”) of most remaining relevance are Purpose (1), Overall Outcomes 2(a)(iv), 2(b) and 2(f), PO1, PO3, PO9, PO13, PO15, PO17 and PO19. Those provisions provide, in part, as follows:
“(1)The purpose of the Environmental significance overlay code is to identify and protect matters of environmental significance and ensure that development is consistent with, and contributes to, the achievement of the objectives of the Nature Conservation Strategy.
(2)The purpose of the code will be achieved through the following overall outcomes:
(a)Matters of environmental significance are identified, protected in situ and enhanced to maintain flora and fauna diversity within:
…
(iv)Hinterland to coast critical corridors.
(b)Degraded matters of environmental significance are protected and rehabilitated.
…
(f)Buffers are provided between matters of environmental significance and any proposed development to manage impacts.
…
PO1 All matters of environmental significance on and adjacent to the development site are identified and protected.
…
PO3 Development within the Hinterland to Coast Critical Corridors as identified on the Environmental significance–biodiversity areas overlay map is located and designed to:
(a) provide corridors of sufficient dimensions and characteristics that will enable adequate movement of fauna through the site;
(b) protect in situ matters of environmental significance and associated buffers;
(c) protect in situ, vegetation identified on the Environmental significance – vegetation management overlay map and habitat for native flora and fauna;
(d) link matters of environmental significance, existing corridors and/or conservation estate/reserves on adjacent properties;
(e) maintain and improve upon the regional connectivity of the Hinterland to Coast Critical Corridors; and
(f) allow for the rehabilitation of disturbed, cleared or modified areas that form part of the Hinterland to Coast Critical Corridors.
…
PO9 Medium and general priority vegetation as identified on the Environmental significance – vegetation management overlay map within biodiversity areas as identified on the Environmental significance – biodiversity areas overlay map is protected in situ.
…
PO13 Assessable koala feed and shelter trees are protected in situ when they are located:
(a) in koala habitat areas as identified on the Environmental significance – priority species overlay map; and
(b) within biodiversity areas as identified on the Environmental significance – biodiversity areas overlay map.
PO15 Site design provides safe koala movement opportunities by incorporating measures to maintain connectivity between areas of koala habitat on and adjacent to the site.
PO17 State significant species, and their habitat, are protected in situ when it is:
(a) identified on the Environmental significance – priority species overlay map, or through an ecological site assessment; and
(b) within biodiversity areas as identified on the Environmental significance – biodiversity areas overlay map.
PO19 Local significant species, and their habitat, are protected in situ when it is:
(a) identified on the Environmental significance – priority species overlay map, or through an ecological site assessment; and
(b) within biodiversity areas as identified on the Environmental significance – biodiversity areas overlay map.”
Transport Code
Provisions of the Transport Code (“the transport code”) of relevance are Overall Outcome 2(a)(ii) and PO24. Those provisions provide, in part, as follows:
“(2)The purpose of the code will be achieved through the following overall outcomes:
(a)Development –
…
(ii) ensures that onsite access and parking, manoeuvring and servicing areas are designed to result in a functional and efficient site layout that minimises impacts on surrounding areas and traffic movement.
…
PO24 New development ensures continuous circulation aisles are provided linking all driveways and intersections to access carparking modules and service areas, and avoids the use of the road network when accessing areas within the development.”
The term “protect in situ” which appears in some of the assessment benchmarks is defined in the Planning Scheme as:
“For the purposes of the Environmental significance overlay code matters of environmental significance must not be damaged or removed, and the matter cannot be offset.”
Other relevant codes are the Caretaker’s Accommodation Code and the Rural Activity Code, however, it is not suggested the development proposal does not comply with them and it is unnecessary to consider them further.
In terms of hierarchy of benchmarks, s 1.4 of the Planning Scheme provides in parts as follows:
“ …
(c) overlays prevail over all other components (other than the matters mentioned in (a) and (b)) to the extent of the inconsistency;
(d) zone codes prevail over use codes and other development codes to the extent of the inconsistency; and
…”
The respondent submitted that hierarchy indicated that the relevant overlays for bushfire hazard and environmental significance were not afterthoughts. I accept that submission as clearly following from the hierarchy.

Expert evidence

Bushfire

Daniel Clowes, on behalf of the appellant, and Rodney Rose, on behalf of the respondent, authored a joint expert report on the topic of bushfire dated 18 November 2022 and a supplementary joint report dated 22 December 2022. They also each provided individual reports – Mr Clowes on 21 December 2023 and Mr Rose on 20 December 2023.
They disagree as to the predominant bushfire attack risk. Mr Clowes believes it is from the north. Mr Rose believes the major risk is from the south rising through the treed area to the south of Monday drive.
They agree that the development as proposed does not comply with Required Outcomes 1 to 6. They address their views as to Overall Outcomes 3(a), (b), (c) and (e) and PO1, PO3, PO4, PO6, PO7, PO9 and PO10 of the bushfire code in paragraph 21 of the joint report. While this analysis remains relevant to their opinions, it is important to recognise that it concerned a superseded proposed location such that the driveway length is now different as is the proximity to Monday Drive.
By the time of the supplementary report the experts were agreed as to which trees needed to be removed or pruned to create an asset protection zone (“APZ”) which in turn would require achievable construction able to withstand BAL 29 kw/m² which was an acceptable standard. In this they considered a further option for the location of the proposed caretaker’s accommodation referred to as option 2. Unfortunately, this was about the extent of the agreement.
Individual reports were subsequently provided as I have mentioned. The essence of the remaining differences between the experts as to the issues in dispute is as follows:
(a)appropriate access for fire-fighting and other emergency vehicles as well as for the evacuation of residents and emergency personnel; and
(b)whether a fire trail is required to the northern extremity of the APZ.
Within the first of those issues there are considerations of whether the gradient of the access is too steep, the absence of a turnaround area and the lack of any passing bays. As to the steepness of the site, the experts were also in fundamental disagreement as to the means by which it was likely a fire would be fought. That is, whether by a fire vehicle travelling up the driveway or fire fighters going up the driveway on foot. Mr Rose had concerns as to fire fighters realistically being able to manoeuvre hoses full of water up the steep slope. He was also clearly concerned as to the ability of residents to leave that property partly from the point of view of the driveway potentially being blocked by a fire fighting vehicle and partly because Monday Drive is a cul-de-sac servicing about 100 residences within a high-risk bushfire landscape, such that it could become congested or blocked by fallen trees.
Each of Mr Clowes and Mr Rose also gave brief supplementary evidence and were cross-examined.
As to the question of access for fire fighters and evacuation relevant to PO6 of the bushfire code, Mr Clowes identified that because the proposed caretaker’s accommodation was located close to Monday Drive, the driveway access was located within the APZ being an area of reduced fuel zone such that fire fighters would not need to traverse a bushfire prone area, that is an area of fire line intensity, to get to the property. It is important also to recognise that there is a significant difference between travelling a 45-metre driveway through the APZ and perhaps a 200-metre driveway not passing through the APZ in an area that was itself bushfire prone. In that latter circumstance Mr Clowes said that you would absolutely consider passing bays.
Related to this topic, it was put to Mr Clowes that occupants could be trapped in the proposed caretaker’s accommodation if there were fire fighters there fighting a fire. Mr Clowes expressed the view that given the design of the proposed caretaker’s accommodation was to withstand a BAL 29kw/m², being in the house with fire fighters there when surrounded by an APZ would be the safest place to be, rather than attempting to leave. In addition, he did not consider that that described scenario was at all likely because had there been very significant bushfires travelling through the area it was highly likely that evacuation would have occurred well before. Further, it was said that if the driveway happened to be blocked by a fire truck you would simply move the fire truck if it was necessary for an occupant to escape by car. Consistent with what he had otherwise said in the reports, he considered the predominant source of hazard was from the north which was likely to be a relatively slow-moving fire such that you would be aware of the fire well before it arrived affording plenty of opportunities to evacuate.
As to the steepness of the proposed driveway and the absence of turnaround such that it would necessary to either reverse up or down the driveway, Mr Clowes conceded that that was not perfect but he thought that it provided adequate access given how close the proposed caretaker’s accommodation was to the road, the fact that the driveway was proposed to be sealed and that the top of the driveway was within the APZ. His evidence was that accessing a site through the APZ which was directly connected to a road was the safest way. In summary, his evidence was that for the type of hazard which he considered that the subject site was exposed, the access was adequate allowing for emergency services access and for egress.
Mr Clowes identified, by reference to figure 8.2.3-1 within PO1 of the bushfire hazard code,[7] that the siting of the proposed caretaker’s accommodation fell somewhere between the most preferred siting and the second most preferred siting being lowish on a south-east facing slope.
[7]It is reproduced in paragraph [20] above.
He said that he thought Mr Rose had focused too much on aerial photographs and not enough on the actual specific hazards in the particular landscape nearby the location of the proposed caretaker’s accommodation. In particular, he considered that some of the world heritage rainforest areas generally did not generate significate bushfire hazards. Further, he considered that the landscape in the general vicinity was actually fairly fragmented such that he did not consider that it was the sort of landscape which would lead to catastrophic fires taking over the whole landscape. He considered that this was consistent both with Council’s bushfire hazard mapping as well as the collection of fire scar mapping documents contained within exhibit 17 showing the regularity and nature of historic fires in the area. What those documents show is that the fires are generally patchy in nature, consistent with what is described by Mr Clowes as the fragmented landscape.
Mr Clowes disagreed with Mr Rose’s concerns as to access for fire fighters and evacuation. He also did not consider that a fire trail was necessary given it would be a fire trail to service one property only rather than, for example, a whole subdivision. He considered that the APZ provided adequate defendable space given the scale of the proposed development. He thought it quite unrealistic to suggest that firefighters would attempt to go behind this one property to back burn for a major fire. He considered that back burning would be undertaken elsewhere in the landscape so as to provide a broader level of protection than to one residence. Such a control fire line or back burn might be employed to protect all the homes on Monday Drive rather than one.
In cross-examination Mr Clowes gave evidence as to the nature of the vegetation on the southern side of Monday Drive. He looked at it in detail and described its nature including that the hazardous vegetation included in that area ran for only about 45-metres upwards from the creek towards Monday Drive. Any fire that ran through those 45 metres would then meet a mowed verge, the bitumen at Monday Drive and a further mowed verge as it travelled north. The significance of that was that he considered that Mr Rose’s evidence as to potentially extensive runs of fire from the south was unrealistic having regard to the actual conditions in the area. He thought that the extent of the run might be 45 metres or so. He explained that it was less than the threshold dimension when assessing bushfires hazards of about 75metres. Below about that dimension they tend not to be captured as bushfire prone areas. That evidence was unchallenged.
Mr Rose gave evidence as to his view that the more significant fire risk was from the south of Monday Drive. Although he considered that the more significant risk, he did not walk through the vegetation to the south of Monday Drive so as to assess it, as Mr Clowes had. Instead, he had stepped into it 10 metres or so from the top. He did not go to the bottom. He said he did not need to. He gave evidence that there was nothing in doubt about how he and Mr Clowes were to classify the vegetation. It was said they agreed on it. What that boiled down to was that he gave evidence that there had been an agreement as to the APZ to the south. It was very clear from Mr Clowes’ evidence, which I have already set out, that he did not agree as to the classification of the vegetation at all. In fact, he considered that any fire from the south would move quickly through the vegetation and effectively stop at the southern verge of Monday Drive having run out of fuel to burn.
It was clear that in terms of all the scenarios put to Mr Clowes during cross-examination about fighting a significant fire from that direction (whilst people were trying to evacuate from the property), that he considered it to be highly unrealistic. In any case, he considered that if there was a substantial risk people would have already left by then, otherwise, if the fire were being fought the safest place for them was in the house with a BAL 29 kw/m².
Mr Clowes was then further cross-examined as to Mr Rose’s evidence as to the potential intensity of a fire travelling from the south of Monday Drive. He did not accept that there was a significant risk of fire from the south but nonetheless considered it was appropriate to have access in that area such that he was not opposed to the APZ being configured in the way it was on the southern side. He made clear however that he was not to be taken to have agreed as to the level of risk from the south. As to the proposition that the level of fire intensity from a fire coming from that direction would approximate 47,000 kW of radiant heat, he said that he could not comment on that as he was not aware of the calculation performed by Mr Rose. He considered that any fire from that direction would burn out quickly because the vegetation below the road would burn out very quickly and then the fire would have nowhere to go. He did not consider that it could cross the road, and in any case, there was an APZ adjacent the road such that no significant fuel existed below the property. More generally, he said that, of course, if there were a bushfire there no one would be standing out on the driveway at all.

Ecology

On 8 November 2021 the parties’ ecology experts authored a document titled Preliminary Joint Expert Report: Ecology. The function of that report was to identify an agreed analysis between the ecology experts as to what they would subsequently need to report on and what underlying material they needed for that purpose. That report usefully served the desired function but the terms of it need not be considered further.
They prepared a joint expert report dated 17 April 2023 which considered an updated vegetation management plan as well as the findings of the bushfire experts’ supplementary joint report which identified the alternative location for the proposed caretaker’s accommodation which has ultimately been adopted by the appellant. The report considered in some detail the differences between the subsequently adopted proposal for the location of the proposed caretaker’s accommodation and that which went before including that there was thought to be a significant reduction in the potential ecological impacts with the updated proposed location. Mr Clowes’ position was that this option located the proposed caretaker’s accommodation in the most degraded area of the subject site given its infestation with weeds. Dr Watson proceeded on the basis that this was not the most degraded area, with that being the cleared area adjacent Chesterfield Drive. In any case, it was common ground that a landowner was obliged to remove the Singapore Daisy in this area. Further, there was no impediment to fauna movement by reason of this particular weed. In those circumstances, it does not seem to be of much moment that there is a weed issue in this area.
Mr Clowes concedes a direct impact to a north-south connection between the Hinterland Core Habitat System (to the north of the proposed development footprint) and part of one of the Hinterland to Coast Critical Corridors which traverses the land and beyond in a generally east west direction and known as the Burleigh Heads to Springbrook Corridor (which I will refer to as the Corridor to distinguish it from the north-south one which I will refer to as the north-south corridor) and the native vegetation located in the park on the southern side of Monday Drive.
He concedes the development would result in apparent non-compliance with parts of PO3, PO9, PO13, PO17 and PO19 of the ESO code requiring certain matters of environmental significance and vegetation to be protected in situ, although he does not consider the non-compliance to be significant.
Dr Watson considered that there were positive effects associated with the change to the proposed location of the caretaker’s accommodation closer to Monday Drive being in particular that no large trees needed to be removed and no new road or access was proposed.
Dr Watson disagreed with Mr Clowes’ statements regarding the level of importance of the west-east connection versus the north-south linkage. He said the area was particularly important to the north-south linkage and that the proposed building was in an area that compromises that connection. The north-south corridor he refers to appears in the extract on page 19 of the joint report. He considers the effect will be to compromise if not extinguish the relevant connection. He objects also to Mr Clowes’ use of the word “apparent” in respect of matters of non-compliance. He says the non-compliances are more than apparent - they are clear. While he agrees that the area of disturbance is small, he expresses the view that a critical issue is that the area is not intended by the Planning Scheme to be developed, the ecology values will not be retained and what he refers to as the north-south corridor will be compromised if not destroyed.
The experts also agreed as to appropriate conditions required should the Court find in favour of the appellant.
There was significant disagreement as to the level of impact upon the north-south corridor. That description of the corridor is useful to identify it but if one is not careful focus on that description can take the focus away from what it must be - whether the relevant assessment benchmarks are complied with.
Dr Watson provided an individual report dated 20 December 2023. As to the proposition that the area where it is proposed that the caretaker’s accommodation would be sited is degraded, whilst Dr Watson accepts that there are weeds, he says that many native species also occur in the ground and mid-storey levels and that several small trees including koala habitat trees and many she-oak (glossy black cockatoo feed trees) also occur in the proposed development area and have not been mapped.
In terms of the north-south corridor, he identifies this as the last remaining vegetated north-south linkage in the landscape connecting the ridgeline Corridor (which includes the subject land) and another of the Hinterland to Coast Critical Corridors, the corridor associated with the Tallebudgera Creek to the south.
He identifies the direct impact caused by the construction and associated earthworks for the dwelling and the driveway as including the loss of 24 mapped trees as well as several unmapped smaller native trees and ground cover and mid-storey. Further, it is identified that the APZ extends at least 10 metres beyond the building footprint to the west and east being essentially to the property boundaries and more than 15 metres to the north and south. As to this, he identifies the restrictions in terms of planting within the APZ as compared with what is presently located on the proposed development area. He expresses the view that the proposed development will create a barrier to fauna movement which is effectively the width of the site. He expresses the view that the proposed development will not disrupt the west-east movement of fauna as that corridor lies further north of the disturbance footprint.
Mr Clowes provided an individual report dated 21 December 2023. He highlights that the amended proposal retains larger habitat trees which is important, that it occurs in what he describes as the most degraded part of the site and that the proposal to rehabilitate an area to the north of the proposed development footprint would strengthen the outcome sought by the ESO code. He expresses the view that the proposed development would not result in significant barriers to fauna movement within the site.
He highlights that in his view the connectivity between the area to the north of the development footprint and the vegetation to the south of Monday Drive is not significantly compromised while he observes that Dr Watson says it is. His view is that the connection is not severed. He says that regard has to be had to the additional vegetation within the road reserve to the east which is not impacted.[8] He also says that the need to maintain physical connection is less important than the importance of what he refers to as the landscape mosaic. He rejected the proposition that terrestrial habitat connections function like physical conduits between otherwise isolated islands. He says instead that the landscape mosaic is more important. Having said all that he concludes that connectivity depends upon the heterogeneity of the entire landscape matrix though it is enhanced by more physical connections than fewer.
[8]At least by this particular proposed development.
Each of Mr Clowes and Dr Watson gave brief additional evidence-in-chief and was cross-examined.
Mr Clowes did not accept Dr Watson’s view that pruning of the individual trees to be retained and collectively would compromise the overall habitat for fauna. He explained that the proposed ecological enhancement to the north of the development footprint was intended in part to eradicate a weed Urochloa decumbens which had the capacity to quickly over-run areas.
While Mr Clowes accepted that the development footprint was in the Corridor, he said that he could not really explain how the Corridor was derived or why it was mapped the way it was so as to include the narrow finger of land to the south, where the proposed caretaker’s accommodation is to be situated. During re-examination on the same point he expressed the view that what he described as the “tiny little stub of vegetation at the bottom” which was otherwise surrounded by residential lots and houses to the east and west, seemed to go nowhere and did not seem to be that critical presumably referring to part of the name of the collection of mapped corridors described as critical.
As to the topic of north-south corridor and other north-south connections from below Monday Drive towards the Corridor or on to it, Mr Clowes was at pains to emphasise that, in his view, these connections were not like a sort of urban area where there was one patch of vegetation in between very, very dense development. Fauna could travel through the landscape because there is vegetation through it. He described the smaller patches of habitat as being like stepping stones within the landscape and sought to emphasise that the areas of open space in between did not act as a barrier. In doing so he was explaining that animals do not stay in a lane that they cannot deviate from. He said, for example, koalas will move within the landscape provided there are no significant barriers. He appeared reluctant to accept that this north-south corridor was superior to the others depicted in figure 7 on page 30 of the joint ecologist’s report. Part of the point he made in this respect was that the other corridors were superior because this one crossed Monday Drive, although it appears that two of the others do as well. Dr Watson considered this one superior being as he described it the last remaining vegetated north-south linkage in the landscape.

Mr Clowes made the point in relation to this part of the north-south corridor that he did not accept that the connection was severed and opined that the relative impact was small. Further, at this point he expressed the view that the Corridor does not connect to anything to the south of Monday Drive. Further, the development footprint is relatively small and although vegetation is significantly reduced in the APZ it is not appropriate to consider it as effectively a hardstand area. Mr Clowes seemed for a period reluctant to accept the proposition that the house itself constituted a hard barrier to fauna movement.
Although the land is relatively narrow at about 40 metres in this area, he identified that the development footprint was about 40 metres by 35 metres and there was vegetation to the east in the road reserve and that the development footprint was designed to remain permeable to fauna. He accepted that depending on what the retaining walls were made out of those might constitute a barrier to terrestrial fauna movement. He identified that in terms of the 24 trees shown to be removed, 5 of those were dead, 1 was an exotic weed while 18 were natives with 12 of those being koala habitat trees. Otherwise, pruning would be such that no canopies would intersect or overhang the proposed caretaker’s accommodation. It was also clear from his evidence that the inner part of the APZ was likely to be 95% mown lawn. Wildlife-friendly fencing was also to be included so that there was no barrier stopping terrestrial fauna moving through the site. At one point he said that the questions during cross-examination were treating fauna movement through the landscape as being like a highway such that there was nowhere for the fauna to go if an obstacle was placed in the way. He said that that was an absurd proposition and that terrestrial fauna could move anywhere through this landscape. As to this:
“There are very few barriers to fauna movement because the landscape itself contains lots of vegetation cover, lots of open space areas that aren’t barriers to movement.”
His view was that the impact was insignificant.
He agreed with the proposition that there was potential for any domestic pets which might be kept at the caretaker’s accommodation to impact on fauna.
Dr Watson identified that he disagreed with Mr Clowes’ view expressed in sub- paragraph 18(b) of his individual report to the effect that the need to maintain the physical connection was less important than the landscape mosaic. He said that he thought it important to bear in mind that there was presently a physical connection in the area in question and that, while fauna could still move through a mosaic patchwork landscape, certainly having physical connections is a much better ecological outcome in the long term. As to Mr Clowes’ view in sub-paragraph 18(c) of his individual report dealing with the rehabilitation of an area to the north, while he said that no doubt rehabilitating areas that are disturbed is a good ecological outcome, he did not accept that there would be a net enhancement of fauna movement and habitat connectivity opportunities.
Dr Watson accepted, as is obvious when one has regard to the percentage of the subject site involved in the proposed development, that it could be described as modest. Another advantage of the proposed development was that it maintained all the larger habitat trees. Dr Watson accepted that he had treated the requirement in the benchmarks to “protect in situ” to mean that there was non-compliance if there was any damage or removal of any native vegetation.
He identified that he was not aware of how the Corridor had been mapped and why it included the narrow finger of land at the southern end of the subject site. He expressed the view that “in terms of mapping” it is not providing a contribution to the east-west connection. He did not accept that it did not contribute to the function of the Corridor. He said: “we know the values are there”. However, he accepted that it could be said that it was an unusual arrangement, the way it was shown on the map with the small finger of land coming down, but again, of course, he said this from the position of not knowing why it was mapped.
He agreed that if one looked at the mapping overall for the koala area and its broader values the removal of 12 smaller koala habitat trees would not of itself damage or remove the koala habitat. He wasn’t asked about his views as to the removal of the under-storey and other trees which might not have been mapped in relation to this comparison.
He maintained his view that the construction of the proposed caretaker’s accommodation and the APZ would significantly compromise fauna movement when compared with what is there now.
He agreed with the proposition that the corridor he proposed was not required by PO3 because the part to the south that it connects to is not part of the mapped corridor area.[9] As to the proposition that the proposed development, being at the very end of an unusual mapped area, would have no material impact on the operation of the Corridor, he said perhaps not the east-west part of it. This exchange then occurred:
“Which is what, having regard to the mapping it’s designed to promote? ---like I said, I’m not sure how the mapping was derived”.
[9]T3-56/10 – 15.
Ultimately, after having been pressed to agree with the proposition that this part of the mapped Corridor was something of an anomaly, and to close his mind to the parts of the land falling even immediately outside the mapped area, he said he could agree that the mapping showed east-west but as an ecologist he was being asked to do something that was quite difficult. He explained it this way:
“So I’ve looked at the values on – on site and in the landscape and how animal – animals will move through the landscape, maintaining things like other connections to other corridors, which, I think, is one of the POs. Maybe it’s in PO3.”

Town planning evidence

Mr Ovenden, on behalf of the appellant, and Mr Mewing, on behalf of the respondent, prepared a joint expert report.
The most significant expert evidence in the matter relates to ecology and bushfire. The town planning evidence was relatively confined. Each of the experts expressed their views as to land use, as to the application of the defined term “protect in situ”[10] and as to traffic matters.
[10]I have set this out in paragraph [105] below where I deal with this construction issue.
As to land use, Mr Ovenden’s opinion is that the most appropriate parts of the land for development are the northern part, where the existing residence is and the southern part fronting Monday Drive where it is proposed that the caretaker’s accommodation be situated. Each of these have a rural residential context. It is observed that otherwise the subject site is a large elongated and heavily vegetated rural land-holding. He expresses the uncontroversial view that the use in question is one clearly contemplated. Mr Mewing expresses the view that while the zone may intend a range of land uses in a general sense including caretaker’s accommodation, the ability to use the land for such purposes must be tested against the overlays.
As to traffic issues, Mr Mewing expressed some concern as to the absence of any evidence as to whether the gazetted roadway being used as a fire trail could be safely used and whether it is trafficable and also as to what the impacts of regular use upon it might be. It seems to me that where it is a public road with a commensurate right to use it, and where it is situated adjacent this boundary of the subject site, it becomes an obvious means of transport from one end of the land to the other to the extent that is necessary. In any case, Mr Mewing appropriately conceded that any impact on the external road network would likely be imperceptible.

The parties’ submissions

I have set the evidence as to the various issues out in some detail above. The submissions also focus to a large extent on the expert evidence in circumstances where there is little in issue as to the relevant law. I have had regard to the detailed references to the evidence contained in the submissions but will not repeat them all given that which I have already set out.
Ecology was clearly the main issue on the view I take of the evidence although bushfire risk was an important topic too with traffic being much less so.

Bushfire Issues

The appellant submits that while Mr Rose gives evidence regarding the broader landscape risk, Mr Clowes’ evidence was that the agreed APZ had regard to this, such that this risk ought not be further considered. I would not be prepared to proceed on the basis that agreement to the APZ meant that further consideration could not be given to discrete issues regarding access and egress requirements amongst other things, however, the evidence as to the extent of the landscape fire risk from the south and its intensity was most unsatisfactory given the way it developed.[11]
[11]See the discussion of this topic below.
The appellant submits, and it is uncontroversial, that establishment of the proposed lot layout with the agreed APZ and BAL building rating establishes compliance with PO3 and AO7 of the bushfire code, as the plan details the required extent of vegetation clearing, and also refers to the minimisation of such through the retention of all large habitat trees in the APZ area.[12]
[12]Appellant’s written submissions at paragraph 54.
The appellant submits that:
(a)there is a low-level risk of any significant fire event coming from the south. The mapping shows this area to the south of Monday Drive as being a low bushfire hazard area. A physical examination of the area was consistent with this;
(b)the existence of Monday Drive provides an adequate level of protection to firefighters for a fire coming from the south. It serves a function as a fire trail in respect of such a fire. The relatively short driveway with the house being proximate to Monday Drive satisfies PO6(a) of the bushfire code requiring adequate access for fire-fighting and other emergency vehicles;[13]
(c)further, for residents attempting to egress the proposed caretaker’s accommodation during a bushfire event, Monday Drive is both relatively short and free of any mapped bushfire hazard area, providing adequate access for evacuation of residents during bushfire events as per PO6(b) of the bushfire code;
(d)no fire trail is necessary to the north of the proposed development footprint including the APZ because PO9(a)-(d) of the bushfire code are satisfied through the provision of the APZ, the driveway and Monday Drive. A fire trail is not practically required in order to protect one property against a likely slow-moving fire from the north.
[13]Appellant’s written submissions at paragraph 69.
The respondent submits that whilst the experts agree that the proposed APZ will achieve an acceptable bushfire risk for the proposed caretaker’s accommodation and that the water pressure requirements under PO10 of the bushfire code are met, [14] there are remaining unacceptable risks that:
(a)the design fails to adequately assist firefighters to mitigate the risk, including by providing adequate fire trails for firefighting and hazard reduction; and
(b)access and egress are unacceptable.
[14]Which was previously an issue taken by the respondent.
As to this, Mr Rose expressed the view that there is non-compliance with PO6 of the bushfire code in that:
(a)the driveway has an access grade of 25%, which is too steep for safe use by fire-fighting vehicles particularly in a major bushfire;
(b)the development footprint is within a high-risk landscape, and the steep driveway exacerbates the risks to firefighting vehicles in that landscape;
(c)there is no turnaround area which requires firefighting vehicles to reverse back to Monday Drive, a manoeuvre considered unsafe;
(d)the alternative to vehicular access is for firefighters to operate from Monday Drive by foot however this is considered unrealistic given they will not be familiar with the site of the proposed caretaker’s accommodation and will be confronted by a steep driveway in circumstances when they are often weary; and
(e)it is an unreasonable risk for firefighters to operate by foot given the weight of the fire hoses, the distance the hoses need to carried or dragged up the driveway, the steep grade of the driveway and the high-risk landscape which will lead to hot and dangerous conditions when they may already be weary.
Mr Rose further stated that the evacuation of residents is not acceptable because:
(a)if firefighters use the driveway for vehicular access, there is no suitable turnaround or parking area such that any resident’s vehicle will be blocked from exiting;
(b)if firefighters operate on foot from Monday Drive that involves heavy firehoses being dragged up the driveway and the possibility the firefighting vehicle will be parked on or near the driveway because of the location of the fire hydrant very near the driveway location, such that evacuation will not be possible amid these firefighting operations; and
(c)Monday Drive is a one-way in and out road providing access for over 100 residences in a high-risk bushfire landscape. This heightens the risk of blockages or congestion in a bushfire evacuation as well as traffic accidents.
As to Mr Rose’s concern in relation to a fire from the south, it was submitted for the appellant that I should place little weight upon his evidence as to that concern given that he does not set out his reasoning for disagreeing with the bushfire hazard mapping and in that sense he has failed to expose his reasoning sufficiently to allow it to be tested. This was an unsatisfactory aspect of this evidence and I would place little weight on the evidence in these circumstances but importantly also because I generally prefer Mr Clowes’ evidence to the effect that the predominant risk is from the north consistent with the mapping.
I found Mr Clowes’s evidence as to what might be considered to be realistic fire risks associated with the subject site of significant assistance. I found his answers in cross-examination to questions about the fire risk from the south, particularly from the land across Monday Drive, to be logical and persuasive, having regard to the vegetation mapping relating to that area, his scar mapping exercise, his inspection of the vegetation that exists to the south of Monday drive and as to from where such a fire might be fought.
I found Mr Clowes’ evidence of the absence of risk of a fire of the intensity described by Mr Rose compelling having regard not only to the mapping but also to the absence of history of fires threatening the subject site from that direction, as can be seen from exhibit 17 as well as the evidence as to the relatively short length of the possible run.
I also thought it most unsatisfactory that Mr Rose’s evidence as to the possible intensity of such a fire from the south was only raised for the first time in oral evidence. Obviously, such evidence would suggest not only that there were difficulties in terms of access or egress but that each was impossible. It was quite remarkable that such a theory had not been mentioned at all in his detailed written evidence as to the risk associated with each of these matters. I found the explanation as to why it was raised late odd having regard to the obvious relevance of such a matter in the way I have just outlined. If that risk were so extreme that the driveway could not be used either for the purposes of fire fighters entering or leaving the subject site or for evacuation, I would have thought that that would be a matter Mr Rose would have mentioned in previous reports as to impediments to access or evacuation, yet it was mentioned for the first time in his viva voce evidence.
I was also not persuaded of the relevance of this evidence as to the risk in terms of fighting a fire travelling from the south from the driveway. I thought Mr Clowes’ evidence that in what he considered to be the unlikely event of a fire of significant intensity travelling from the south, one would not enter the driveway in the middle of a fire, to be a clear explanation as to why this perceived risk was very unlikely.
I found Mr Rose’s evidence as to the need for a fire trail in respect of a potential fire from the north quite unpersuasive having regard to the likely nature of such a fire and the logistics of backburning for the protection of a single residence rather than more broadly.
Overall, I was assisted more by Mr Clowes’ evidence than that of Mr Rose and I prefer it where there are differences.

Traffic impacts

The appellant submits in summary as to transport that:
(a)overall outcome (2)(a)(ii) of the transport code has been complied with in circumstances where access and parking, manoeuvring and servicing areas for each individual use have been provided, with appropriate access to the parking, manoeuvring and servicing areas for the animal keeping use taking place from Chesterfield Drive and for the proposed caretaker’s accommodation use taking place from Monday Drive;[15] and
(b)further or alternatively, given the low vehicular numbers and the impacts on surrounding areas which have been “minimised”, the transport code overall outcome ought to be satisfied.[16]
[15]Appellant’s written submissions at paragraph 81.
[16]Appellant’s written submissions at paragraph 82.
The respondent submits that there is a lack of appropriate vehicular connectivity between the northern and southern premises on the subject site such as to avoid or minimise impacts on the external road network, contrary to the transport code.
I accept that there is a lack of appropriate connection, but I also accept that the impact on the external road network would be miniscule.

Ecology impacts

The appellant in its written submissions submits:
(a)and it appears to be uncontroversial, that the proposed development would not result in any direct or indirect impact on endangered, vulnerable or near threatened flora species;[17]
[17]Appellant’s written submissions at paragraph 11.
(b)relying on Mr Clowes’ evidence, that the impacts on species including the white throated needletail, koala, glossy black cockatoo and greater glider were not likely to be significant because the proposed development:[18]
[18]Appellant’s written submissions at paragraph 11.
(i)would not result in significant loss of total remnant vegetation habitat present on the subject site;
(ii)would not result in significant barriers to fauna movement within the land or wider landscape;
(iii)would maintain native vegetation to enable adequate movement of fauna through the subject site;[19]
[19]Mr Clowes’ individual report at paragraph 16.
(c)that while accepting there will be what it describes as a “modest loss of vegetation” on the development footprint, the following matters mitigate such loss including:
(i)Mr Clowes’ and Mr Rose’s evidence to the effect that the APZ would permit the retention of all large habitat trees on the subject site;
(ii)the caretaker’s accommodation being developed on the most degraded part of the southern part of the land, which has been impacted by edge effects, including the presence of weeds in the under-storey, shrub and tree layers including Singapore Daisy;
(iii)the development could be conditioned to manage these edge effects, rather than exacerbate them;
(iv)the APZ should not be seen as requiring a “scorched earth” area to be established, and instead encourages the retention of mature trees;[20]
[20]Supplementary bushfire joint experts’ report at subparagraph 13(a).
(v)Mr Clowes and Mr Rose having agreed upon conditions that may be included should the development be approved to “ensure the long-term protection of ecological values on the land”;[21]
[21]Joint experts report ecology at paragraph 78.
(vi)Mr Clowes’ evidence as to remediation proposed to be undertaken to parts of the subject site to the north of the proposed APZ. He says that this area would extend from the northern edge of the APZ to the southern outside edge of the Hinterland Core Habitat System and would enable rehabilitation of an area of at least 1370 sqm”.[22] As such, any impact of edge effects, may be mitigated and this would also strengthen the outcomes sought by the overall outcomes (2)(b) and (2)(f) of the ESO code;
[22]Mr Clowes’ individual report at subparagraph 5(d).
(d)as to the north-south corridor, that:
(i)Dr Watson agreed in cross-examination that this was his “principal issue” with the development;
(ii)the difficulty with that being the assessment is “bounded”, such that in circumstances where the north-south corridor is not required to be protected by the benchmarks, the Court cannot take it into account;[23]
[23]Appellant’s written submissions at paragraph 32.
(iii)overall outcome (2)(a)(iv) of the ESO code only requires in situ protection of flora and fauna diversity within the Hinterland to Coast Critical Corridors and the north-south corridor is not identified as one of the Hinterland to Coast Critical Corridors;
(iv)PO3 of the ESO code is limited to development within the Hinterland to Coast Critical Corridors;
(v)Dr Watson agreed that:
(A) overall outcome (2)(a)(iv) of the ESO code, would be compiled with as the proposed caretaker’s accommodation would have no material impact on the function of the Corridor as mapped in the Planning Scheme;[24]
[24]T3-57/12-27.
(B) the north-south corridor is not required to be maintained under P03 of the ESO code because the vegetated land to the south of Monday Drive was not part of the mapped Hinterland to Coast Critical Corridors;[25]
[25]T3-56/1-17.
(e)that whilst a functioning ecological corridor may be present between the proposed development and the vegetation to the south of Monday Drive, [26] there are no benchmarks that recognise that corridor. It follows that the principal issue raised by Dr Watson in his evidence does not warrant consideration in this appeal;[27]
(f)that while PO1 of the ESO code recognises that matters of environmental significance are to be identified and protected, the impacts that arise due to the proposed caretaker’s accommodation are minimal especially in light of the conditions that the experts have agreed upon, such that it ought to be considered as satisfied;
(g)that the proposed development will not impact upon the Corridor, such that it cannot be said to damage or remove that matter of environmental significance;
(h)that PO15 of the ESO code requiring the provision of safe koala movement opportunities has been complied with including by the conditions agreed upon by the ecology experts;
(i)that to the extent the Court considered there was non-compliance with any benchmarks within the ESO code, the development should still be approved, in the exercise of discretion, due to:[28]
(i)the proposed development having modest impacts on the environmental values of the subject site;
(ii)the experts having agreed upon various proposed remediation works that will enhance the mapped values of the land;
(iii)the principal concern of Dr Watson being one not protected under the Planning Scheme and thus not a matter which ought to be considered on this appeal; and
(iv)it being ‘unduly onerous’ to require protection in situ.
[26]The submission that this corridor exists between the development and the other land to the south, must be viewed against the evidence that it intersects and overlaps with the Corridor just to the south of the footprint of the proposed development (on the northern side of Monday drive) and extends through that area of proposed development to the north, further into the Corridor.
[27]Appellant’s written submissions at paragraph 35.
[28]Appellant’s written submissions at paragraph 41.

In summary the respondent submits as to ecology that:
(a)the principal point of disagreement between the ecology experts is the nature and extent of the impact of the proposal on the mapped features and compliance or otherwise with various benchmarks. Dr Watson considers the ecological non-compliance is extensive whilst Mr Clowes is of the view that the application ought to be approved subject to conditions;
(b)the Court would accept Dr Watson’s evidence as to the impact of the proposed caretaker’s accommodation in the narrow southern portion of the subject site being:
(i)the development footprint is approximately 1,450m² and this area covers almost the entire width from boundary to boundary;
(ii)this impact covering almost the entire width is in part the proposed caretaker’s accommodation itself together with the required APZ, with the overall dimensions being approximately 35 x 40 metres;
(iii)the proposed caretaker’s accommodation is a hard barrier to terrestrial fauna, although not for birds;
(iv)the driveway, some of which is outside the APZ also has no vegetation on it and includes retaining walls rising vertically up to 1.6 metres on the northern side which will prevent fauna movement;
(v)the loss of vegetation associated with trees of greater than 150mm diameter at breast height;
(c)the proposed development would create potential edge effects including weeds and pets unless there are conditions in perpetuity which would be difficult to enforce;
(d)having regard to Dr Watson’s evidence, the proposed development would:
(i)not protect in situ matters of environmental significance within the Corridor as required by the ESO code;
(ii)result in the clearing of koala habitat and glossy black-cockatoo habitat;
(iii)result in the compromising, if not extinguishment of the greenspace connections/network in the landscape;
(e)PO3, PO9, PO13, PO17 and PO19 of the ESO code require that regulated vegetation, koala habitat, habitat for local and State significant species and matters of environmental significance are protected in situ and do not anticipate that impacts upon these values can be mitigated or offset;
(f)the proposed development does not protect in situ the various values referred to in the relevant ESO code benchmarks;
(g)the matters of environmental significance present on the development footprint are agreed between the experts and the proposed development causes these to be damaged or removed;
(h)while PO3(f) of the ESO code requires that development must be located and designed to allow for the rehabilitation of disturbed, cleared, or modified areas that form part of the Hinterland to Coast Critical Corridors, this is not achieved;
(i)overall outcome (2)(b) of the ESO code provides that “Degraded matters of environmental significance are protected and rehabilitated”. While the area selected for the development is degraded (by edge effects), there is an obligation under the benchmarks to rehabilitate, and the proposed development does the opposite and removes these values or damages them;
(j)the proposed development does not comply with PO3(a) or (d) of the ESO code both of which relate to providing corridors and links. Rather the proposal significantly compromises the existing corridor function of the development footprint. PO3(e) of the ESO requires that the development be designed and located to not only maintain but to “improve” the regional connectivity of the Hinterland to Coast Critical Corridors however the proposed caretaker’s accommodation does not do so;
(k)with respect to the discretion to approve a code assessable application even if the benchmarks are not met, the discretion, while expressed in permissive and broad terms, is subject to an important constraint. Under ss 59(3) of the Planning Act, it is required that this decision must be based on the required assessment, and in this case, it is bounded assessment against the benchmarks put in issue. Given the proposed development does not comply with many of the benchmarks put in issue, it is submitted that the discretion ought not be applied under ss 60(2)(b) as that would effectively fail to assess against the benchmarks;
(l)as to the appellant’s submission to the effect that it is a corridor of north south orientation which is interfered with whereas the Corridor is east west such that there is no benchmark requiring its protection, this is simply wrong because:
(i)the land is mapped as part of the Hinterland to Coast Critical Corridors and the ecology experts agree it serves a corridor function;
(ii)the Planning Scheme does not specify that the Corridor must be an east west orientation either in whole, or at any point in the corridor;
(iii)the Corridor contemplates movement of fauna in all sorts of different directions, even though it may be predominantly from coast to hinterland. In other words, fauna may move north south as part of ultimately moving east west, or it could assist the east west movement by providing the option of doing so in a different location;
(iv)the fact that the land to the south is not mapped as part of a corridor is irrelevant to the operation of PO3(a) to (f) of the ESO code.

Construction of the requirement to “protect in situ”

The requirement to “protect in situ” appears in overall outcome (2)(a)(iv), PO3(b) and (c), PO9, PO13, PO17 and PO19 of the ESO code.
That term is defined so as to require that:
“For the purposes of the Environmental significance overlay code matters of environmental significance must not be damaged or removed, and the matter cannot be offset”.
Each of the parties made submissions as to what it means.
The appellant submits that the Planning Scheme does not require the complete avoidance of damage to, or removal of, native vegetation.[29]
[29]Appellant’s written submissions at paragraph 17.
It is submitted that it would be wrong to determine compliance only by reference to whether the proposed development would result in any damage to, or removal of, native vegetation which contributes towards a matter of environmental significance.[30] Instead, what is required is to identify matters of environmental significance, determine the impact of the proposed development and then consider whether that impact would damage or remove the relevant matter.
[30]Appellant’s written submissions at paragraph 19.
It is then submitted that taking that view of the requirement leads to a conclusion that PO9, PO13, PO17 and PO19 of the ESO code would be complied with.[31]
[31]Appellant’s written submissions at paragraph 39.
By contrast the respondent submits that the term means what is says and while it may not mean that not a single blade of grass or limb of a tree may be removed, that would be far from an accurate description of the effect of the proposed development.
It was emphasised on behalf of the respondent that once it was appreciated that the Planning Scheme had struck the balance by a deliberate decision to protect in situ particular environmental values, one ought not to lose sight of that deliberate drafting decision.
That submission was made by reference to GTH Resorts No 5 Pty Ltd v Gold Coast City Council.[32]In that case Williamson QC DCJ repeated what he had said in Sincere International Group Pty Ltd v City of Gold Coast:[33]
“The extent to which development of privately owned land should be permitted to impact on its existing environment is influenced substantially by the formal instruments of planning control. It is the planning authorities who accept responsibility for the identification of areas where environmental conservation is appropriate. The formal identification of such areas is contained in the formally adopted planning controls. Where there is to be a balance struck between environmental considerations, and the entitlement of private ownership, as would be expected, the planning controls are to be closely examined. The planning scheme is, after all, said to embody a contemporary statement of the public interest.”
[32][2021] QPELR 124.
[33][2019] QPELR 247 at [58].
His Honour also said in GTH that:[34]
“[71]That matters of environmental significance must not be damaged or removed, and cannot be offset, means they are to be treated as constraints to new development, and, importantly, respected. This is to ensure development does not, inter alia, erode the extent, function or values of the green space network.
…
[83]“Against the above background, it can fairly be said that City Plan (in particular the Strategic framework, the ESOC and the Open space zone code) contains a comprehensive planning strategy to balance environmental considerations on the one hand, against the entitlement to develop privately owned land on the other. The balance is struck, and deliberately so, in favour of environmental considerations where land is constrained by matters of environmental significance, and located in a biodiversity area. In these areas, new development is required to respect matters of environmental significance and not erode the extent, function or values of the green space network. To achieve this intended balance, City Plan requires new development to be designed to, inter alia, protect matters of environmental significance, and rehabilitate them where degraded.”
[34]At [71] and [83].
Each of the town planners also expressed their view as to the application of this requirement. Mr Ovenden considered that the requirement to “protect in situ” in relation to protection of areas of high environmental value in the ESO code should be considered in a practical sense and with regard to the overall context of a site. The focus in this respect is upon the area of disturbance being less than one per cent of the land area.
He adds that it should be considered whether it is reasonable that every tree on a 17.24 hectare property be retained such that an intended use could not be built because it would involve removal of some trees even though disturbing less than one per cent of the site. I found the focus on percentages[35] rather than to specifically examine the extent of interference with the portion to be developed somewhat artificial. Further, I do not accept the underlying premise that the effect would be to preclude development on the land. That question of course needs to be decided by reference to the overlays. That analysis has not been carried in respect of other portions of the land including the large, cleared portion at the northern end. Mr Mewing takes issue with Mr Clowes’ statement to the effect that PO3 of the ESO code would be prohibitive to any form of development on the site because, as Mr Mewing indicates, there appear to be other portions of the site which could be developed for the relevant purpose adjacent the existing residence.
[35]A possibility because of the large size of the land.
By contrast to Mr Ovenden’s approach, Mr Mewing observes that there are different levels of protection for different levels of environmental significance and, in effect, those which are required to be protected in situ do not anticipate that impacts upon those features may be mitigated or offset, given the requirement is not one to avoid or minimise impacts or to offset if that is not possible.
I was referred to various authorities on the question. Included amongst those were Boral Resources (Qld) Pty Limitedv Gold Coast City Council[36] and GTH[37] which I have already mentioned.
[36][2018] QPELR 982.
[37][2021] QPELR 124.
As is clear from Boral, such a requirement does not preclude effects which are trivial and must be construed with a sensible practical approach. As to this, Gotterson JA (with whom the other members of the Court agreed) referred to a statement of Rackemann DCJ as to the construction of such requirements of schemes in Lockyer Valley Regional Council v Westlink Pty Ltd.[38] His Honour took the view that “planning schemes should be constructed broadly, rather than pedantically or narrowly and with a sensible practical approach”. Gotterson JA also referred with apparent approval to what Rackemann DCJ had said in Newing & Ors v Silcock & Ors,[39] where his Honour observed that it “should not readily be inferred from the absence of an express requirement that a provision of a planning scheme relevant to a change of use application requires that the proposed use have no impact at all, no matter how insignificant or trivial”.
[38] (2011) 185 LGERA 63.
[39][2010] QPELR 692.
It is unnecessary for me to express a concluded view as to the appropriate construction of “protect in situ” given the conclusion I have reached in relation to PO3(a) of the ESO code. I am inclined to the view that excluding trivial or insignificant impacts, the phrase means what it says. I consider that is especially likely having regard to the way it is defined and the distinction between what it seems on its face to permit compared to that permitted in respect of matters of lesser environmental significance. It is important in my view to give effect to that distinction and respect the deliberate difference in language and apparent choice to restrict the kind of effects which might be tolerated for areas of greater environmental significance.

Consideration

I prefer Dr Watson’s evidence as to the effect of the proposed caretaker’s accommodation on fauna movements through the southern part of the subject site where it is intended to undertake the development. In particular, I accept his evidence that the effect would be to compromise if not extinguish the relevant connection in respect of terrestrial fauna. The evidence was clear that the impact was across almost the entire width of this southern part of the subject site and of the Corridor being one of the Hinterland to Coast Critical Corridors. I found Mr Clowes’ evidence to the contrary unpersuasive. There are a number of hard barriers placed in the area as well as the lack of vegetation required in the APZ.
I do not accept that when regard is had to Dr Watson’s evidence overall he agreed that, other than from a strict mapping point of view, the small finger of land in question did not contribute to the function of the Corridor. In this respect he was asked to close his mind to areas of land immediately outside that corridor. While that might be a potentially relevant approach if one was considering possible development of those other pieces of land, it was an artificial way to consider the evidence relating to movement of fauna through land which is part of the Corridor and the effect of development in the Corridor. Nor do I consider his evidence as to whether PO3 of the ESO code required protection of the north-south corridor of any particular significance.
Such a question is ultimately a matter for the Court as a question of construction. But more importantly, the question for the Court is about development in the Corridor and not about whether the effect might be to interfere with a different corridor beyond the area of overlap. It is not obvious that the protection sought to be afforded to land within the Hinterland to Coast Critical Corridors, and the Corridor in particular, is withdrawn if the fauna might be travelling north-south rather than east west.
I found Mr Clowes’ evidence as to the protection being intended to be for travel east-west rather than anything else to be inconsistent with his evidence otherwise that he did not know why the Corridor was mapped as it is and to the effect that koalas do not travel on one path as if in a conduit. It also rather ignores the possibility that it was anticipated that there might be travel onto the Corridor at various points, rather than starting at its eastern extremity.
The significance of this was said to be that if the development will not adversely impact upon the functional utility of the Corridor (ie east-west) then it follows that any non-compliance would be much less significant or material. I do not accept the starting basis for that submission being that the protection sought to be afforded is for east-west travel, rather than for movement of fauna within the Corridor.
For the appellant it was submitted, in effect, that this principal concern of Dr Watson’s as to what has been referred to as the north-south corridor could be put to one side because it was not something sought to be protected under the assessment benchmarks. Accordingly, so the submission went, it was not something that fell for consideration in the assessment under ss 45(3)(a) of the Planning Act.
I do not accept this submission. It gives no significance to the fact that the proposed caretaker’s accommodation is intended to be sited within the Corridor being one of the Hinterland to Coast Critical Corridors which is subject, amongst other things, to the requirements of PO3 of the ESO code requiring the provision of corridors of sufficient dimensions and characteristics to enable movement of fauna “through the site”.
Further, I consider questioning of the ecology experts as to whether development in this southern part of the Corridor is unlikely to have a material impact on the function of that corridor because it is at the southern-most part of it to be somewhat artificial for a number of reasons. First, the purported analysis of the Corridor in this way simply ignores the fact that this land is in fact mapped as part of it. The fact that it is at the southern extremity does not indicate to me that one can ignore its designation or consider it must by definition be less important than the broader part to the north. Secondly, each of the ecologists gave evidence that they were not involved in the mapping and did not know why it was mapped in this way. Thirdly, there was unchallenged and uncontroversial evidence from Mr Clowes that fauna do not travel as if within some conduit. That must also apply to the east-west aspect of the Corridor such that the proposition that one can treat the southernmost part of that as being of less significance is not all that appealing.
Fourthly, this analysis ignores the fact that evidence of the presence of fauna in the area of the proposed development including koalas has been identified by each of the ecologists. Fifthly, the fact that there is no statutory requirement to protect an unmapped north-south corridor does not mean it is not necessary to take steps to protect a corridor which is mapped (the Corridor) and which presumably fauna move onto or through from all directions. For example, in relation to the parcel of land in question, fauna could be moving onto the footprint of the proposed caretaker’s accommodation, and its related APZ, from residential properties to the east or west or from across Monday Drive to the south. It seems to me to matter not at all where those animals might have come from. If, hypothetically, there were an important corridor north-south (although not mapped or required to be protected) with the northern part of that corridor existing on the subject site and within the Corridor being one of the Hinterland to Coast Critical Corridors, that northern part, in my view, is required to be protected and if there is reason to think that there might be a significant movement of fauna onto that part of the land from the south (or from anywhere else) that rather heightens the possible interference of such a development. That seems to be exactly the position in the present case.
The question is not one of whether a development on land remote from the Corridor where there is some interference with a hypothetical north-south corridor travelling towards the land and the Corridor (but not reaching) might be approved. In that scenario there would plainly be no question of the Corridor being applicable. That says nothing as to the question in the present appeal which is whether the proposed development in the Corridor might be permitted because it is thought that the movement of fauna on the proposed development site might be pursuant to the north south corridor referred to be the ecologists.

I thought the questioning of Dr Watson as to this topic simply ignored the fact that the subject site is within the Corridor and that the Corridor and this north-south corridor referred to by Dr Watson overlap in the area of the proposed caretaker’s accommodation.
In my view, it is quite wrong to consider the Corridor as something which exists to protect movement within in it rather than on to it from whatever direction animals might choose to travel. It does not exist as a fenced area such that movement might only be within it, or from one end to the other, with no opportunity to enter except from the starting point. As the words used in PO3 of the ESO code make clear, the requirement is to provide corridors with certain characteristics to enable adequate movement of fauna through the site. Obviously enough, the site referred to is one that exists within one of the Hinterland to Coast Critical Corridors as does the subject site. “Site” is a defined term and comprises any land on which development is carried out or proposed to be carried out, whether or not the whole or part of one lot or more than one lot if each of the lots is contiguous. That clearly contemplates the narrow finger of land in this case. The requirement is not to facilitate movement of fauna on the land but through it.
There is no dispute that this north-south corridor has some significance in terms of fauna travel. That fauna travel seems to me to be protected to the extent of the overlap with the Corridor in this southern part of the land. To my mind it would be perverse to construe the requirements as not protecting the travel of fauna where they have entered from the south. It may be that the protection of that corridor by reason of the protection of the part of which overlaps with the Corridor is a happy coincidence or it might be that the mapping recognises that fauna travel from all sorts of different directions in order to then continue travel on this Corridor. In this respect it might well indicate that this southern narrow finger of land is far from an anomaly but protection of fauna making their way onto the corridor from the south.
This construction issue ought to be decided against the appellant.
I am satisfied that PO3(a) and, possibly (d), of the ESO code would not be complied with. I consider the non-compliance is serious and would not approve the development despite this non-compliance.
Had it not been for the conclusion I have reached as to PO3 of the ESO code, I would otherwise have been minded to approve the proposed development from the point of view of compliance or excusable non-compliance with the bushfire code and the transport code.
I would not have been minded to approve it in respect of the other ecological benchmarks where there was a requirement to “protect in situ” based on my preliminary view expressed as to the way in which that phrase should be construed. I would not have approved the development despite this non-compliance.
For the reasons outlined above, the appeal ought to be dismissed.

CITATION:	JJJM Pty Ltd v Council of the City of Gold Coast [2024] QPEC 9
PARTIES:	JJJM Pty Ltd (Appellant) v COUNCIL OF THE CITY OF THE GOLD COAST (Respondent)
FILE NO/S:	209 of 2021
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Southport
DELIVERED ON:	22 March 2024
DELIVERED AT:	Southport
HEARING DATE:	29 January – 1 February 2024
JUDGE:	Jackson KC DCJ
ORDER:	THE APPEAL IS DISMISSED.
CATCHWORDS:	ENVIRONMENT AND PLANNING – APPEAL - ENVIRONMENTAL PLANNING – PLANNING SCHEMES – GENERALLY – where the respondent refused an application for a material change of use for accepted development subject to requirements – where the application concerns the development of caretaker’s accommodation – where the Environmental Significance Overlay Code is one of the assessment benchmarks – where the application concerns Hinterland to Coast Critical Corridors - whether the proposed development provides corridors that enable adequate fauna movement through the site - whether the proposed development is consistent with the intent and purpose of the planning scheme – whether the proposed development complies with the assessment benchmarks in the planning scheme
CASES:	Boral Resources (Qld) Pty Limitedv Gold Coast City Council [2018] QPELR 982 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Sincere International Group Pty Ltd v City of Gold Coast [2019] QPELR 247 GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2021] QPELR 124 Newing & Ors v Silcock & Ors [2010] QPELR 692
LEGISLATION:	Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld)
COUNSEL:	K W Wylie for the Appellant J J Ware for the Respondent
SOLICITORS:	Hickey Lawyers for the Appellant Hopgood Ganim Lawyers for the Respondent