Krajniw & Ors v Brisbane City Council & Anor
[2008] QPEC 48
•6 August 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Krajniw & Ors v Brisbane City Council & Anor [2008] QPEC 48
PARTIES:
Appeal 3411 of 2007
TONY KRAJNIW
Appellant
V
BRISBANE CITY COUNCIL
Respondent
And
BMD PROPERTIES PTY LTD
Co-respondent
And
ENVIRONMENTAL PROTECTION AGENCY
Co-respondent by election
Appeal 3398 of 2007
BRUCE E MCDOWELL AND LAURELLE E MCDOWELL; BARRY WILLIAM POTTER; AND PETER C BALMER AND DEBRA A BALMER
Appellants
V
BRISBANE CITY COUNCIL
Respondent
And
BMD PROPERTIES PTY LTD
Co-respondent
And
ENVIRONMENTAL PROTECTION AGENCY
Co-respondent by election
Appeal 3413 of 2007
ROB WILSON ARCHITECT AND JOHN EPHRAIM GODFREY
Appellants
V
BRISBANE CITY COUNCIL
Respondent
And
BMD PROPERTIES PTY LTD
Co-respondent
And
ENVIRONMENTAL PROTECTION AGENCY
Co-respondent by election
FILE NO/S:
3398/2007; 3411/2007; and, 3413/2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeals
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
6 August 2008
DELIVERED AT:
Brisbane
HEARING DATE:
23 June (inspection of site); 24, 25, 26, and 27 June 2008; written submissions up to and including 15 July 2008
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Appeal 3411/2007 dismissed
2 Adjourn the appeals for further review on 27 August 2008
CATCHWORDS:
PLANNING – PLANNING AND ENVIRONMENT – CONSTRUCTION OF PLANNING SCHEME – WHETHER PROPOSED DEVELOPMENT IN CONFLICT WITH PLANNING SCHEME – local authority approval to develop vacant land as a golf course, and for residential and commercial purposes – whether conflict with planning scheme – native fauna and flora, preservation of – no conflict found
Integrated Planning Act 1997, ss 1.2.3(1)(a)(ii), 1.2.3(1)(a)(iii), and (2), 3.5.14, Schedule 10
State Coastal Management Plan 2001Brisbane City Plan 2000
Cases considered:
Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 007
Yu Feng v Brisbane City Council (2007) 156 LGERA 399COUNSEL:
Appellant T Krajniw in person
T Trotter for respondent Brisbane City Council
G J Gibson QC and M Williamson for co-respondent BMD Properties Pty Ltd
I R Pepper, solicitor, for co-respondent by election, Environmental Protection AgencySOLICITORS:
Appellant self-represented
Brisbane City Legal Practice
Deacons Lawyers
Environmental Protection Agency self-represented
One of the appellants, Mr Krajniw, has for many years been devoted to the feeding and care of squirrel gliders in Cannon Hill, for whom his home and its surrounds are something of a sanctuary. His appeal concerns BMD’s proposal to develop a large parcel of vacant land at Cannon Hill, slightly to the south of his residence, for a golf course, a residential subdivision, and associated commercial purposes. The land contains habitat areas for the squirrel gliders and other fauna, and that was his primary concern[1].
[1] All three appeals were to be heard together but, by the time of the hearing, Mr Krajniw was the only submitter who maintained active opposition to BMD’s proposal.
The site contains about 125 hectares and is owned by Brisbane City Council. It lies to the west of Bulimba Creek, and is east of Creek Road and north of Fursden Road. Further east across Bulimba Creek is the Minnippi Parklands Recreation Area containing approximately 200ha of flood plain, forest and waterways, and recreational trails and picnic areas.
Inspection of the site on the first day of the hearing showed parts of it have obviously been cleared in the past and used for grazing and agistment and, in the south-east corner, a landfill facility. Much of it is low-lying, and wet. Even to the layperson many parts are obviously infested with weeds and exotic plants, and it was apparent the expert witnesses’ description of the site as degraded and in poor condition[2] is not unfair.
[2]Ms Conacher, T47.15-25.
Brisbane has a number of private golf courses but only two which are true ‘public’ links, and both are north of the river. For that reason Council has had this land in contemplation for a public course for many years. In 1992, encouraged by the Bulimba Creek Regional Recreation Area Master Plan Report, it commissioned a feasibility study which affirmed the suitability of the site for that purpose and a community need for it and then invited expressions of interest and, later, tenders for a development of that kind. The co-respondent BMD submitted a tender in the late 90s followed by a development application in 2004 which envisaged an 18-hole public golf course, 28 hectares of parkland and conservation area, a residential development of 123 detached housing lots and four areas to contain a total of 42 multi-unit dwellings, and some commercial facilities.
Under BMD’s proposal the golf course would occupy about 82ha, mainly located in the eastern part of the land (including the rehabilitated landfill area), and the residential component around 12.5ha, or 10%. Near the centre of the site and covering 1.7ha there would be a precinct presently called ‘The Hub’ where it is proposed to locate a clubhouse for the golf course and various recreation, entertainment, golf-related and ‘convenience’ retail facilities and, possibly, some short term accommodation. The precise nature of the various commercial elements of The Hub is not presently fixed and it is proposed to determine and control them by way of a ‘structure plan’ forming part of a preliminary approval. Access to the residential areas and The Hub would be from Creek Road.
The proposal also incorporates an extensive network of public pedestrian and cycle pathways linking areas within the site itself, and local streets. Council will retain ownership of the golf course and parkland; and, surrender part of the land along Bulimba Creek to the State for reasons associated with the Coastal Protection and Management Act 1995 (CPMA).
In October 2007 Council approved the proposal by way of what the Integrated Planning Act 1997 (IPA) calls a negotiated decision notice[3]:
[3]s 3.5.17(2).
· preliminary approval for a material change of use – residential and centre activities (incorporating the ‘structure plan’ mentioned above);
· a development permit for reconfiguration of the 18 parcels of which the site is presently comprised;
· another development permit, for a material change of use for outdoor sport and recreation (golf course); and
· preliminary approval for operational works for outdoor sport and recreation (golf course).
Pursuant to IPA s 4.1.50(1) BMD carries the onus of showing Mr Krajniw’s appeal should be dismissed.
He has lived for many years in a caravan at the southern end of the Monte Carlo Caravan Park at 1189 Wynnum Road, Cannon Hill (or Murarrie), immediately adjoining bushland slightly beyond the northern part of the site. At that north-western extremity of the land BMD’s proposed vegetation plan[4] describes the intended use of a portion there as ‘squirrel glider habitat development zone’. It is those attractive little animals which are of most vivid interest to Mr Krajniw who has, for the past 15 years, been providing food and water and ministering to them (and, incidentally, other local fauna and birdlife).
[4]See, eg, Exhibit 17, page 28.
Notwithstanding some gentle criticism of this practice from fauna experts called in the case – on obvious grounds – it is unassailable that Mr Krajniw has a deep and abiding interest in the gliders’ care and well-being and has done much to help, care for and maintain local colonies of them. He is troubled by many aspects of the development but his concerns have a central theme: he is against anything which might adversely affect the squirrel gliders or their habitat, their use of the site and its surrounds, and their ability to find sustenance in the area.
Initially, Mr Krajniw was not alone in his interest in the proposed development: some 10,813 submissions were made during the public notification part of the IDAS[5] process under IPA. The issues raised in them can be summarised as, primarily, alleged conflicts with the planning scheme, Brisbane City Plan 2000 (City Plan); adverse impacts on waterways and wetlands; impacts on flora and fauna, particularly squirrel gliders; and, the problems potentially associated with ‘remediating’ the former landfill site. Mr Krajniw’s Notice of Appeal, the further particulars he provided, his written opening to his case and his questions during the hearing focussed on these issues and, also, the location of residential areas in the proposed development; an alleged intrusion into the Coastal Management District (CMD); flooding and water quality; concerns about acid sulphate soils; traffic; an alleged lack of need for a public golf course; and, what was said to be an inaccuracy in surveying highest astronomical tide for the CMD.
[5]The Integrated Development Assessment System set out in IPA, Chapter 3.
Mr Krajniw’s final submissions in the case (by arrangement, in writing) raised, however, issues he had not ventilated either before or during the hearing. One – that residential development was too close to some golf fairways – was briefly touched upon during his cross-examination, and seemed to spring from a concern about wayward golf balls. The others were an alleged need for a ban on wood-fired fire places, and the like; the preservation of what were said to be culturally significant structures on the site like hand-dug water wells; and, alleged conflicts with Commonwealth and international treaties. None was notified as an issue by any of the usual means, nor made the subject of evidence, nor put to any of the array of expert witnesses called by the other parties. They cannot fairly, now, be entertained as issues in the case for determination. It is in any event improbable that any would have influenced the outcome when, as will be seen, Council’s decision to approve the development sits so comfortably with the planning scheme. At the highest, they might simply have lead to changes in conditions associated with the proposal.
The long gestation of the development proposal and the strictures of the IDAS process meant that the Council, BMD and the EPA had, even before the appeal began, considered and addressed the issues mentioned earlier in great detail. The original development application was accompanied by a number of reports from experts concerning the various environmental and engineering constraints on the site. The information and request process within IDAS was coordinated by the Department of Local Government, Planning, Sport and Recreation. Its initial information request was extensive, requiring BMD to provide detailed responses to enquiries designed to satisfy concerns about the preservation and enhancement of wetlands and waterways, and flora and fauna; dealing with acid sulphate soil and contaminated land, and flood risks; and, protecting that part of the land, along Bulimba Creek, designated as a CMD.
Other events during the IDAS process also touched on these matters. First, after a notice under the CPMA concerning the land in the CMD and subsequent discussions Council agreed to surrender a part of the site, running parallel to Bulimba Creek, to the State. Second, after application by BMD, the Department of Primary Industry and Fisheries gave permission to remove or disturb marine plants in or near Bulimba Creek and lesser waterways called Windrush and Fursden Creeks, and a billabong in the centre/north-east of the site.
Then, the decision to approve was only made after an independent assessment of the entire proposal by Urbis JHD, in conjunction with Cardno Pty Ltd and Wilson Landscape Architects. The assessor’s report[6] concluded that the proposal satisfactorily addressed the physical constraints of the site, including environmental issues like the safety of the squirrel gliders and the rehabilitation of the old landfill area.
[6]Exhibit 1, Volume 5, p 3135 and following.
Finally, Council’s approval contains very detailed terms placing, it is fair to say, a high emphasis on environmental matters. It includes the Cannon Hills Community Links Structure Plan, which identifies precincts on the land and contains statements of intent for each, and conditions designed to conserve native fauna – eg, one which requires the imposition of registrable covenants over each residential lot prohibiting domestic cats and dogs.
BMD called an array of witnesses with expertise in matters including visual amenity and landscaping, traffic, bushfire risks and management, water quality, flooding, stormwater and drainage, air quality, noise, acid sulphate soils, aquatic ecology, fauna generally (and the squirrel glider in particular) and town planning. Council also called a planner and an ecologist. The EPA called its principal botanist and its appointed principal environmental engineer, as well as three of its staff with expertise in wetlands and their preservation, coastal area management, and fauna.
Before the individual issues are addressed it is appropriate to comment in a more general way on this evidence. First, it was unchallenged by any expert witnesses called by the appellant. In a case involving a lay submitter/appellant, that is not uncommon. In some cases, while the absence of countervailing evidence can be a disadvantage for the unrepresented party, an attempt may yet be made to overcome the difficulties it creates by cross-examination of the other parties’ experts in a way which reduces the force of their conclusions, or raises doubts. No disrespect is intended when I say that did not occur here and the experts’ professed confidence in their conclusions and in the ability of the conditions attached to the approval to achieve an outcome which improves, rather than damages, the ‘natural’ elements of this land, was not diminished.
Secondly while, in the light of the introduction of such large scale human activity as a residential precinct, and a golf course, the conclusion that this development will have beneficial rather than deleterious effects on the existing ‘natural’ environment is not without its surprising aspects, it is ultimately compelled by dint of the weight of the experts’ evidence. That evidence shows that the site is now, as the result of human activity, very degraded; and, that the careful and detailed conditions placed upon the developer (evolving during the lengthy IDAS process) will on balance affect an improvement in the extent of, and conditions for, natural fauna and flora.
Thirdly, although Mr Krajniw only touched upon the Precautionary Principle in passing, it is appropriate to record that the weight of evidence is strongly persuasive that the development does not infringe the principle, in the way it is to be applied under that part of IPA which contains the Act’s larger social and philosophical elements: s 1.2.3. In particular, the proposal is shown to ‘…take account of short and long term environmental effects of development at local, regional, State and wider levels[7]’ and ‘apply the precautionary principle’ as it is used and defined, in its very particular way, in that section[8].
[7]IPA, s 1.2.3(1)(a)(ii).
[8]S 1.2.3(1)(a)(iii), and (2).
The ordinary or common definition of the principle is, it must be acknowledged, markedly different from its form in IPA – indeed, almost its reverse: the Oxford English Dictionary defines it as ‘the principle that if the (long-term) consequences of an action are unknown, but have the potential to be harmful, the action should be avoided’. Assuming Mr Krajniw was more likely than not referring to the principle in that wider sense it is also appropriate to record that the welter of evidence from the experts is, again, persuasive that its elements are satisfied here and would not deter this proposal.
Mr Krajniw also pointed out that absolute compliance with conditions and covenants intended to ensure the absence of environmental harm both now, and in the future, cannot be guaranteed and they may yet be breached. That risk is also, I think, an aspect of the precautionary principle in its non-IPA use but here, too, the evidence did not disclose a perceptible risk – ie, there was nothing suggesting that compliance would be problematic, or that any conditions were unenforceable.
Planning Issues
The proposal is to be assessed against the entirety of City Plan and, in particular, the Cannon Hill District Local Plan (the Local Plan) which, under the scheme, prevails over its more general requirements and, also, contains an assessment table which overrides the general levels of assessment in Chapter 3 of City Plan.
Within the Local Plan this parcel is specifically identified and referred to as precinct 3.12. It contains a statement of intent which refers to ‘… the proposed golf course’ and, also, the possibility of residential development which, it says, is to be located in cleared/disturbed areas to minimise intrusion into the squirrel glider habitat. Other desired outcomes are the protection of the sensitive ecology and hydrology of the area, and improved pedestrian and cycle assess and a minimum of intrusion into vegetated areas.
While the town planners called by BMD and Council set great store by these references to the golf course and potential residential uses and appeared at times to suggest they put the proposal’s compliance with City Plan beyond doubt, I do not think they are quite so overwhelmingly potent. Nevertheless, they provide tolerably clear sign-posts that use for those purposes is well within the scheme’s contemplation, and extinguish any suggestion of serious conflict with it; and, because the terms of the Local Plan carry so much weight within the scheme, provide a tolerably clear imprimatur for them.
At a higher level in City Plan the land lies within the Green Space system but is designated within that system as being a ‘conservation and recreation component’ which includes formal recreation and open space areas. It is also almost entirely included in the Sport and Recreation Area, with a small part along Bulimba Creek designated as Parkland. The ‘intent’ for the former plainly encompasses formal sporting activity like golf (and associated club buildings, parking, etc), and the latter, ‘… informal open air recreation…’.
The Desired Environmental Outcomes (DEOs) found in City Plan express broad aspirations for the city and, with presently unused land like this abutting a waterway and containing some remnant vegetation, unsurprisingly emphasise the minimisation of impacts on adjacent sensitive uses, or harm to biodiversity values. Those for the Sport and Recreation Area, however, also envisage the land ‘… accommodating a wide range of organised sporting, recreational and cultural activities…’.
Under the terms of the current development approval the proposal has been required to demonstrate ‘best practice’ in the areas of water management, energy conservation, wildlife, waste and amenity; to expend up to $2,000,000 to implement a squirrel glider amelioration and habitat enhancement strategy; to create a network of bikeways and pedestrian ways at a total cost of $400,000; and, of course, to remediate the former landfill site at the developer’s expense. The golf course is to be a championship standard public golf course developed in a way which involves extensive native planting (and the retention of significant areas of vegetation) with substantial inter-fairway tree planting of both high and low density. The southeast corner of the site is also to be revegetated. The fairways are to be planted with salt-tolerant grasses which should not require traditional high levels of weed control and fertiliser. Importantly, the approval requires the creation of a number of lakes and billabongs which will assist in the maintenance of water quality and the conveyance of stormwater to Bulimba Creek.
The Hub is, initially, to incorporate facilities to support and complement the public golf course but may ultimately include conference and corporate training facilities, short term accommodation and, perhaps, other sporting venues for gymnasium, squash and tennis courts. While this is, technically, an ‘out of centre’ activity discouraged by City Plan’s provisions dealing with retail hierarchies, the evidence of Mr Norling[9] and the town planners Ms Roughan[10] and Mr Ovenden[11] convincingly establishes that there is an overwhelming community need[12] for another public golf course in Brisbane, and these proposed commercial activities are, in reality, ancillary to that golf course – and, of course, consonant with the sport and recreation activities which City Plan envisages for the site. It is unsurprising that a championship grade public course would have, associated with it, a moderate level of commercial activity; and there was no evidence to suggest that what is proposed would in any sense threaten or jeopardise the retail hierarchy established by City Plan.
[9]Exhibit 15.
[10]Exhibit 17.
[11]Exhibit 16.
[12]As to the meaning of this phrase see Yu Feng v Brisbane City Council (2007) 156 LGERA 399; and, Parmac Investments Pty Ltd v Brisbane City Council [2008] QPEC 007.
The residential development occupies a small part of the site on largely cleared areas and above the Q100 flood level. Two of the five housing precincts are for low density detached housing and three for multi-unit housing comprising a mix of low – medium density residential development, and detached dwellings on small lots. This residential component and The Hub are categorised as impact assessment generally inappropriate within the Sport and Recreation Area and must, therefore, demonstrate that they meet criteria set out in Chapter 3, cl 2.5.2 of City Plan. Some of those criteria do not apply, or were not addressed (eg, matters like the availability of utilities and telecommunications infrastructure) but it is a reasonable inference that those which were not the subject of evidence were simply (and appropriately) assumed. Given the specific provisions of the Local Plan implying a golf course and residential uses these criteria would not, it seems to me, be applied here with the stringency which might arise in a case without the same apparent (and, at least, tacit) approbation of those uses in the planning scheme. In any event of those which do apply it is apparent, for reasons which follow, that they are satisfied here.
Because the proposal involves impact assessable components it is to be assessed under the auspices of IPA s 3.5.14 which requires that it must not compromise the achievement of the DEOs for the area or conflict with the planning scheme ‘… unless there are sufficient grounds to justify the decision despite the conflict’, and ‘grounds’ means ‘matters of public interest’[13]. As the preceding discussion shows it is difficult to discern any real conflict between this proposal, and the planning scheme. It sits very comfortably with both the general and specific levels of the scheme and, in the colourful metaphor suggested by Mr Trotter (for the Council) it involves a ‘happy marriage’ between the objectives of City Plan at the general level, and the Local Plan at the specific, and is the welcome issue of that conjunction.
[13]IPA, Schedule 10.
Even if conflict can be identified, it cannot be categorised as anything more than minor. At the highest, it involves nothing more than a technical conflict between the proposal for The Hub and the Centres strategy for retail uses found in the Strategic Plan; and, in the particular context arising here, what is proposed cannot realistically be said to comprise any threat to the retail hierarchy described by City Plan (and the requisite level of need for the facility to which the ‘centre’ activities will be integral has been established).
There are compelling planning grounds which well and truly overtake this low-level conflict. The proposal involves clear public benefits: the rehabilitation of an obviously degraded site which adjoins an important waterway, and tributary of the Brisbane River; the provision of a network of bike and pedestrian paths; the replanting of significant areas of remnant vegetation, over about 23ha; compensatory marine planting and marine ecology rehabilitation; and, the rehabilitation and maintenance of significant areas of fauna habitat for the benefit of the squirrel glider colony.
Another persuasive ground is the satisfaction of the strong public need for an additional, public golf course south of the Brisbane River. As Mr Norling’s unchallenged research showed, residents in this part of Brisbane are disadvantaged by the absence of a public course. This witness also easily rebutted the assertion put to him that golf is a sport for the ‘idle rich’. His evidence showed that, while that pejorative might possibly apply (heaven forfend) to the membership of some private clubs, it cannot fairly be used as a general description of those who use public courses.
Squirrel Glider Habitat
It is not disputed that the north-west corner of the site, to the south of Mr Krajniw’s residence, supports squirrel gliders. The fauna experts Mr Moffitt and Mr Agnew, and to a lesser extent Dr Watson, Ms Milner and Ms Conacher were all of the view that the squirrel gliders are, however, already at risk because of poor habitat linkages between the site and other sub-populations in the lower Bulimba Creek catchment, and agreed that the proposed expenditure of up to $2 million would improve habitat, establish an appropriate linkage strategy and, overall, … ‘achieve a significant net bio-diversity gain’.[14]
[14]Report Mr Moffitt, exhibit 7, s 3.2.4.
Mr Moffitt’s evidence was persuasive that the appellant’s concerns about potential impacts on the squirrel glider colonies, while understandable, are groundless. His report and oral evidence also showed that the proposed urban development and associated features like the entry and exit road, associated lighting and noise (and similar impacts) could be adequately addressed under an environmental management plan, and did not pose an overall threat to any colony.
Flooding and Water Quality
Although the development involves significant alterations to water bodies on the site, with the creation of new lakes and ponds, the evidence of Mr McArthur[15] established that the proposed development would not have any unacceptable impacts either on Bulimba Creek, or on flooding in or around nearby residential developments; and, demonstrated that there would be no unacceptable impacts on or net worsening of existing water quality and, indeed, there should be an improvement. Nor will there be any net increase in the amount of water leaving the site but, rather, an increase in existing flood plain storage. It was clear Mr McArthur has caused extensive flood modelling (some 60 iterations) of flooding and storm water to be undertaken during the application stage, and that his conclusions were based on sound scientific evidence.
[15]Exhibit 10.
High Tide
For reasons which appeared to vary but which ultimately seemed to relate to the area of land to be surrendered to the State and the location of a waterbody in the northeast corner, the appellant sought to criticise the way in which the height of the highest astronomical tide for Bulimba Creek had been determined. He did not, however, adduce any evidence about the matter and the contrary evidence was impressive:
(a)Ms Conacher had adopted a recognised method of establishing high tide which involved physical marking out on the site during the occurrence of such an event[16];
(b)Mr McArthur undertook a similar exercise by way of tidal modelling; and,
(c)the level was also determined by a registered surveyor undertaking an actual survey[17].
[16]Exhibit 4.
[17]Exhibit 1, vol 3, p 1718.
Landfill Rehabilitation & Acid Sulphate Soils
The appellant expressed general concerns that rehabilitation of the old landfill site might not be successful and have adverse impacts on public health. He also cross-examined witnesses about the exposure of acid sulphate soils during site excavation and land profiling. These concerns were entirely allayed, however, by the evidence of Mr Sutherland[18] and Dr Foong that proper implementation of the required site management plans[19] will extinguish these risks.
[18]Exhibit 9.
[19]See exhibit 1, vol 3 pp 1911 and 1921.
The Residential Precinct
Mr Krajniw suggested on a number of occasions and to several witnesses that the proposed residential areas were inappropriately located in well vegetated parts of the site. As exhibit 27 (an aerial photograph showing the proposed residential sub-division) convincingly reveals, however, this part of the proposal has been located in an area where clearing will be relatively minimal. As physical inspection of the site also showed it has already been the subject of significant weedy-regrowth at the under-storey level, and much of the land already presents as very disturbed. The appellant’s concern is, then, unsubstantiated; and, again, the evidence is actually to the contrary effect.
Coastal Management District
As previously noted the subject land is a CMD and a significant part of it is to be surrendered to the state[20]. The CMD manifests because of the presence of Bulimba Creek. The evidence of Dr Thorogood, an expert in aquatic fauna and buffers near waterways[21] showed the surrendered part was an appropriate buffer to protect the ecology of Bulimba Creek – and, that conditions and plans associated with the proposal will result in better protection for that water body and, indeed, enhancement of riparian vegetation.
[20]Depicted in exhibit 6, figure 8.1.
[21]Exhibit 6.
Mr Krajniw also alleged that the area of land to be surrendered must be a minimum of 40 metres from the mean high water springs or higher astronomical tide and also, as I understood him, that the entire site may be constrained by reason of its designation as a CMD. Neither proposition was established in the evidence and nor was the appellant able to point to any provision of the CPMA which requires the area of land to be surrendered to meet any specified dimension or size.
Environmental Protection Agency
The implication of some of the appellant’s submissions was that the EPA had failed to fulfil its charter under the CPMA. Mr Pepper, who appeared for the EPA, was able to show all the Agency’s statutory obligations have been fulfilled. Section 104 of the CPMA requires the EPA to consider the potential impact of a proposed development on coastal management and, in particular, coastal wetlands. Mr Ryan, the EPA’s principal botanist gave unchallenged evidence that in his opinion this proposal will not result in the loss of any significant coastal wetlands[22]. Mr Miller, an EPA senior project officer, said that the proposed development preserves intact, and does not threaten, the sustainability of the majority of tidal wetlands in the site; allowed for substantial riparian rehabilitation in a proposed 40m buffer along Bulimba Creek; protected natural wetlands of high value; and, off-set any loss of natural wetland with replacement wetland providing valuable and more varied habitat for wetland flora and fauna including water fowl, shore birds, egrets, cranes, herons and turtles.
[22]As defined in the State Coastal Management Plan 2001.
In the course of cross-examination some focus was placed on one of the new lakes or ponds (designated Lake 1). Mr Miller’s evidence showed it had been designed in consultation with the EPA and (with Mr McArthur) that pipes between it and Bulimba Creek would work efficiently to prevent stagnation of water and, in particular, would not act as a drain upon the lake at low tide.
Section 104 also focuses upon potential impacts on coastal ecological systems and the evidence of Mr Miller and Mr Humphreys[23] showed the proposal would not affect water quality in Bulimba Creek but, rather, effect an improvement in the quality of water on, and leaving, the site; and, would be unlikely to create stagnant water bodies if the development is implemented in accordance with design and management specifications provided in BMD’s application, and the EPA’s notified concurrence agency response conditions.
[23]Exhibit 1, vol 6, pp 4004-4005.
Ms Milner shared the views of Mr Moffitt and other experts that there is unlikely to be any significant impact on the biodiversity of the site including, in particular, squirrel gliders and koalas. Mr Ryan, the EPA’s principal botanist gave unchallenged evidence that the proposed development is appropriately and generally confined to cleared areas or non-remnant vegetation, and satisfactorily compensates for the removal of some vegetation in the northern part of the site by rehabilitating other parts.
So far as the former landfill site is concerned Dr Foong, the principal environmental engineer (and third party reviewer appointed by the EPA) for the site management plan (including the remediation action plan) gave convincing and unchallenged evidence that if the site management plan is implemented the subject site will be suitable for use as parks, recreational open space and sporting and leisure activities like golfing.
Other Matters
The wide ranging nature of the appellant’s diverse objections to this proposal make it necessary to touch upon some other less readily apparent issues he appeared to raise in his notice of appeal, or particulars, or during the hearing. Some involved a measure of inconsistency: for example, although his case seemed to be based on a general opposition to clearing of the site, he complained that the sporting component of the proposal, presently limited to golf, was too constrained (and in that respect were in conflict with the sports and recreation designation of the land under the general parts of the planning scheme) and then appeared to suggest alternatives, like sporting fields, which would have involved even higher levels of clearing.
Otherwise his concerns about the effects of machinery on the site during the construction phase, and of light, noise, traffic and vehicular emissions when the golf course is operating and the residential areas are occupied, while not illegitimate, were more than adequately met by the expert evidence mentioned earlier. It is difficult to imagine a development application which has been more vigorously combed through, or more bound about by conditions touching what can legitimately be placed in the category of ‘environmental’ concerns. That is not to say, of course, that the things which excited Mr Krajniw’s attention were unreasonable, excessive or inappropriate; only, that if the development proceeds in accord with the many strictures placed upon it, those concerns are groundless.
Of the matters not previously mentioned it is appropriate to record that Mr Moffit’s evidence explodes the suggestion that the proposed development will have adverse effects on the adjacent conservation zone. The report and evidence of Mr Bain on bush fire management shows necessary safety measures can be implemented within the present design. Mr Moffitt’s evidence, again, shows how compensatory squirrel glider habitat can, realistically, be provided. The evidence of the many fauna experts reveals no risk of measurable impacts on the bushland habitat of threatened species including the powerful owl, grey goshawk, green thighed frog, wallum froglet, black cockatoo or yellow tailed black cockatoo.
Mr Moffitt’s evidence also shows that fairways 7 and 8 will not harm the adjacent conservation zone; and, the site management plan[24] and the various individual and joint reports tendered by the respondent and co-respondents are persuasive that appropriate methods have been adopted for dealing with the presence of any dangerous chemicals, asbestos, or contaminated water in or around the former landfill site. Dr Hassall’s reports[25] and evidence were persuasive that the landscape buffer now proposed between established housing in Foxmont Drive and Kennet Place, at the west of the site, and the residential component of the proposed development is appropriate to minimise impacts and should be incorporated as a condition in the terms he suggested.
[24]Exhibit 1, vol 5, p 2938 and following.
[25]Exhibits 2 and 3.
Finally, while it is true that as Mr Krajniw pointed out the covenant concerning domestic cats and dogs can be revoked, proposed condition 56[26] appears to be appropriately couched, and as strong as it should be; and, Mr Krajniw’s concerns that the proposed golf course would provide sport and recreation for only the privileged few was (as previously remarked) shown to be incorrect and, in any event, appears to be based upon a misapprehension about the nature of a ‘public’ golf course (as opposed to private golf clubs).
[26]Exhibit 1, vol 5 p 3733.
Conclusion
The proposed development is one showing significant planning merit. It achieves the goals identified for the subject land in the planning scheme. It meets a proven need for a public golf course. The evidence is persuasive that it will deliver a net gain in biodiversity for this degraded land, without any unacceptable impacts.
It is clear that in light of the support this proposal receives from the planning scheme (and the fact that the minimal conflict which does arise quickly evaporates in the face of the strong planning grounds supporting it), the appeal should be dismissed. The matter will be adjourned to a date convenient to the parties for a final order incorporating conditions.
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