Newheath Pty Ltd v. Gold Coast City Council & Ors

[2006] QPEC 94

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Newheath Pty Ltd v Gold Coast City Council & Ors
[2006] QPEC 094

PARTIES:

NEWHEATH PTY LTD
(Appellant)

V

GOLD COAST CITY COUNCIL
(Respondent)

And

THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
(First Co-Respondent)

And

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY (Second Co-Respondent)

FILE NO/S:

No. 91 of 2006

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

30 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

Appeal Allowed

CATCHWORDS:

Appeal against conditions -  Buffers-  Respondent’s Natural Wetland Areas and Natural  Waterways Code

COUNSEL:

Mr Ure for the Appellant

Mr Everson for the Respondent

SOLICITORS:

Phillips Fox for the Appellant

McDonald Balanda and Associates for the Respondent

1. This is an appeal against conditions imposed by the respondent with respect to the development of an industrial state on Kingston Drive at Gaven (Lot 28 on RP 801742 and Lot 29 on RP 8828832).  The only remaining issue in the appeal relates to conditions 1a and 17a, which each provide for the eastern boundary of proposed Lot 33 to be moved west by 13 metres.

1. An ephemeral waterway runs approximately through the centre of the site and joins with Coombabah Creek just off the subject land to the north.  Adjacent to Lot 33, a management lot earmarked for future development, and roughly in the centre of the site, is a corridor to be dedicated as public open space which contains the ephemeral waterway and associated riparian vegetation.  In the appellant’s proposal, the corridor, where it is bounded by the eastern straight boundary of Lot 33 is 60 metres in width; and compliance with the conditions mentioned will result in a width of 73 metres.

1. Section 3.5.30 of the Integrated Planning Act 1997 provides:-

   “(1)       A condition must –

   (a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or

   (b)be reasonably required in respect of the development or use of premises as a consequence of the development.

   (2)Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

2. It is the contention of the appellant that the conditions as proposed are an unreasonable imposition on the development, and are not reasonably required in respect of the development.  However, it is common ground between the parties that a buffer of some sort is required between the corridor and Lot 33 pursuant to the provisions of the Natural Wetland Areas and Natural Waterways Code of the respondent’s planning scheme.  The parties’ experts agree that the ecological and conservation values of the riparian corridor, creek and wetland are worthy of conservation and protection.  The dispute between the parties concerns, rather, the width of the buffer and its composition.

1. Section 2.2 of the Code states that it applies to development “on sites that include or are immediately adjacent to natural wetland areas or natural waterways, as identified on overlay map OM-11 – natural wetland areas and natural waterways ...”.  It is common ground that the waterway within the riparian corridor adjacent to Lot 33 is shown on overlay map OM-11.

1. In the joint report of experts dated 12 July 2006, Dr Thorogood, the consulting ecologist retained by the appellant, opines that “a multi-element buffer 6 metres wide (comprised of engineered retaining wall, fence and dense planting of sympathetic flora) will adequately protect the corridor from any significant development related impacts.”  The form of this proposed buffer is shown in Figure 4.1 of his report.  This shows an area of 2  metres between the boundary of the corridor and a rock wall, some 3 metres in height, and to the west of that a distance of  4  metres to the  building line on the site.  The total 6 metres proposed for the buffer coincides with the   building line setback of 6 metres under the respondent’s planning scheme.

1. Dr Robson, retained by the respondent, opines that it is necessary to provide for a buffer width of no less than 13 metres, as required by conditions 1a and 17a in the Negotiated Decision Notice, “thus allowing for a vegetated component of 10 metres and 3 metres on the western side for vehicle access for maintenance purposes”.

1. The most relevant performance criterion in the Natural Wetland Areas and Natural Waterways Code is Criterion PC8 which provides:-

   “Buffers must be provided incorporating development setback/s of dimensions and characteristics that will ensure that the development does not result in a negative impact upon the long-term viability of the ecologically significant areas (including any wetland, aquatic and riparian communities) located on and/or adjacent to the site.”

2. Acceptable solution AS8.1.1 requires a buffer of not less than 100 metres width, which, it is accepted, is not warranted in this case. It is suggested, and I agree, that the relevant acceptable solution is AS8.1.2, which is in the following terms:-

   Buffer/s are provided of dimensions and characteristics that will protect the long-term viability of any freshwater or tidal wetlands and their associated riparian communities, as identified on Overlap Map OM11 – Natural Wetland and Natural Waterways, in accordance with expert ecological advice provided as part of the Ecological Site Assessment.

3. Dr Thorogood is of the view that the wall and shrubbery that he proposes will effectively buffer the waterway and adjacent riparian area from any negative impact of the development and use of Lot 33.  Dr Robson, on the other hand, considers that the length of the buffer, 6 metres, and its features, are insufficient to prevent deleterious edge effects for the corridor.  Dr Robson considers that what is required is an ecotone, or a transition area from the corridor to the eastern boundary of Lot 33, and that provision should be made within that area for vehicular access to the site..

1. I am of the opinion that Dr Thorogood’s proposal is a little “tight” in its concept and could lead to undesirable edge effects and some contamination of the corridor.  I think it is desirable that Council should have the ability to access the corridor by vehicle beyond the eastern boundary of proposed Lot 33.  However, I also think that the distance of the buffer proposed by Dr Robson is more than is reasonably required for the protection of the corridor.  I think that an ecotone is one way of providing an appropriate buffer, but not the only way.  There is merit, in my view, in the buffer designed by Dr Thorogood, featuring the rock wall already mentioned and a vegetated space of 4 metres between the wall and the building line on Lot 33.  The possible problems with Dr Thorogood’s proposal can be overcome, in my view, by extending the distance of 2 metres from the corridor boundary to the face of the rock wall from 2 metres to 6 metres, which will both provide further distance from the boundary to any structure, and will make it possible for a vehicle path to be formed to assist in the maintenance of the corridor.  This would result in a total buffer of 10 metres, rather than the currently proposed 6 metres.  I am aware that there is less buffering required on other parts of the site, but it appeared to me that the portion of the corridor which is relevant for present purposes, did contain significant pools and was in a substantially undisturbed state and lacked other woodland buffering effects which occurred in some other places on the site.  It is not possible to be definitive concerning the nature and extent of maintenance of the corridor which may be required in the future, and I think it is desirable that the Council have the facility to access the corridor at that particular part of the site by vehicle.

1. The appeal is allowed.  Conditions 1a and 17a of the Negotiated Decision Notice are amended to provide that the eastern boundary of proposed Lot 33 shall be moved west by 10 metres, instead of the 13 metres stated in those conditions.