Reef Cove Resort Pty Ltd v Cairns City Council
[2007] QPEC 77
•20 September 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Reef Cove Resort Pty Ltd v Cairns City Council and Ors [2007] QPEC 077
PARTIES:
REEF COVE RESORT PTY LTD
Appellant
V
CAIRNS SHIRE COUNCIL
Respondent
ENVIRONMENTAL PROTECTION AGENCY
First Co-Respondent
CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999
Second Co-Respondent
FILE NO:
304 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
20 September 2007
DELIVERED AT:
Maroochydore
HEARING DATE:
6th – 9th August 2007
JUDGE:
Dodds DCJ
ORDER:
The appeal is allowed and adjourned to a date to be fixed so that final orders including conditions may be formulated.
CATCHWORDS:
PLANNING – PLANNING LAW – Integrated Planning Act 1997 – Schedule 8 – assessable development - Integrated Planning Regulation 1998 – regulation 5 – schedule 2 – function and jurisdiction of referral agency – jurisdiction of referral agencies under the Coastal Protection and Management Act 1995 and the Vegetation Management Act 1999 - where conflicting decisions by referral agencies – whether operational works (road construction) would have an unacceptable impact on coastal management pursuant to Coastal Protection and Management Act 1995 – where application form only referred to part of the land involved in development but accompanying documentation showed whole of land
Integrated Planning Act 1997 (Qld), s 2.1.4, s 2.6.7, s 3.1.8, s 3.3.2, s 3.3.6(2), s 3.3.15, s 3.5.12, s 4.1.5A, s 4.1.50(1), s 4.1.52(3)
Integrated Planning Regulation 1998 (Qld), s 5.
Vegetation Management Act 1999 (Qld), s 2(d), s 3, s22A(1)
Coastal Protection and Management Act 1995 (Qld), s 3, s 4, s 10, s 11, s 15, s 16, s 50, s 104
Land Act 1994 (Qld), s 94(1)
Statutory Instruments Act 1992 (Qld), s 29
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Advance Property Planners Pty Ltd v Brisbane City Council (2005) QPELR 113, cited
Cromar Pty Ltd & Anorv Brisbane City Council (1996) QPELR 84, cited
Lali Investments Pty Ltd v Burnett Shire Council (2004) QPELR 25, cited
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, cited
Silverton Ltd v Maroochy Shire Council (1982) QPLR 82, cited
SOS Community Action Group & Anor v Reef Cove Resort Pty Ltd [2006] QPEC 69, cited
SOS Community Action Group & Anor v Reef Cove Resort Pty Ltd [2006] QCA 519, cited
Terry Wall Director-General of the Environmental Protection Agency v Douglas Shire Council [2007] QPEC 044, cited
COUNSEL:
D. Gore QC with R. Litster for the appellant
D. Morzone for the respondent
A. Skoien for the first co-respondent
No appearance for the second co-respondent
SOLICITORS:
Clayton Utz for the appellant
MacDonnells for the respondent
Environmental Protection Agency for the first co-respondent
No appearance for the second co-respondent
Lot 204 on SP 154564 is a reserve for recreation purposes (Reserve 393). The respondent is the trustee. It contains about 234 hectares. Its northern boundary is common with the southern boundary of Lot 108 on RP 712063. Both are located in the vicinity of False Cape which is at the southern side of Trinity Inlet. Trinity Inlet is located between the CBD of Cairns and False Cape.
Underlying the issues in this appeal is the construction of a road in Lot 204 to provide access to Lot 108 (the access road). The road corridor easement occupies about 2.28 hectares. The revised footprint of the road to be cleared of vegetation is estimated to be about 1.218 hectares with 0.502 hectares to be revegetated resulting in an eventual loss of 0.716 hectares of native vegetation.
The small hamlet of Koombal (16 freehold lots) lies on the coast between part of the western border of Lot 204 and the sea. Access to it is from Pine Creek - Yarrabah Road (referred to also as Yarrabah Road) which provides access to the Yarrabah community. Yarrabah Road turns away from the coast at Koombal and travels east through Lot 204, bisecting it. The present access to Koombal departs Yarrabah Road at about the same point where the access road is to depart Yarrabah Road. However the Department of Main Roads requires the present access to Koombal be altered so that it departs the access road to the north of Yarrabah Road. In Koombal an esplanade lies between the lots and the sea, presently used as access to Lot 108.
A small creek, Brown Creek, runs through Lot 204 emptying into the ocean across Brown Beach. Yarrabah Road crosses it by bridge. The access road is to cross it also, downstream, of the Yarrabah Road crossing. A small weir has in past times, been constructed in the creek downstream of the proposed road crossing. There are other impediments to flow, for example fallen timber or vegetation and rocks. It was initially proposed the access road would use culverts for the creek flow. However a single span bridge is now to be used and the alignment of the road has been altered both to address environmental concerns. Other ephemeral drainage lines to be crossed by the access road are proposed to be dealt with by redesigned culverts, again to address environmental concerns.
Lot 108 is zoned special facilities for tourist resort development as per plan of development. The zoning is consequent upon a rezoning following an order of the then Local Government Court made on 4 December 1987 allowing an appeal against the decision of the then existing Mulgrave Shire Council. Pursuant to that order, the rezoning to special facilities sought by the appellant’s predecessor in title to Lot 108 was approved with conditions. One of the conditions was that the applicant for the rezoning be responsible for “construction and dedication of the access road from the Yarrabah Road south-east to the existing development through the recreation reserve R393 to the internal access within the site. Such construction shall include a 7 metre wide bitumen sealed carriageway in a 9 metre formation”.
Subsequently, Mulgrave Shire was amalgamated with Cairns. In 1996 a new planning scheme for Cairns (a transitional planning scheme under the Integrated Planning Act 1997 (IPA)) was gazetted. Lot 108 was described in the strategic plan as a “major future tourist accommodation” location. In 2001 a new plan of development for Lot 108 was substituted by the respondent for that accompanying the original rezoning.
The appellant acquired Lot 108 in 2002 and in June 2003 applied to the respondent for approval of reconfiguration. The application was approved by a negotiated decision notice issued 14 September 2004 with conditions. Concurrence agency (Main Roads) conditions included:
“1. Access between the state controlled road (i.e. Yarrabah Road) and the subject land shall be via a new public road located about 10 metres east of the existing public road providing access to Koombal and the subject land to the satisfaction of the Director General of the Department of Main Roads.
2. The existing access between Yarrabah Road and Koombal and the subject land shall be realigned as required to connect the proposed new access of condition 1 above a minimum of 50 metres from the centreline of Yarrabah Road.
3. No additional direct access between Yarrabah Road and the subject land is permitted.”
On 27 January 2005 a new planning scheme, Cairns Plan, was adopted. Lot 108 with its special facilities development approval was included therein as able to proceed to development in accordance with the requirements:-
“1. Of the approval (including compliance with the conditions imposed under the listed approval);
2. Of the codes contained in sections 4.5, 4.6, 4.7 and 4.8 of the scheme that are not inconsistent with the conditions of approval.”
In December 2004 an application was made to the respondent for operational works for Lot 108. Further information and discussion followed. The application was re-lodged in June 2005 and a negotiated decision notice eventuated on 31 October 2005.
On 15 July 2005 the appellant (by its former name Starline Australia Holdings) received approval for its proposed development from the Commonwealth Minister for the Environment and Heritage under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) because the land was in a declared World Heritage property. On that date a conservation agreement was entered into between the appellant and the Minister in relation to the use of the land.[1]
[1] Exhibit 4, Page 727 and following.
On 11 November 2005 the Department of Natural Resources and Mines wrote to the respondent advising of approval in principal to request the minister to open an area of road over Lot 204 (the road in question in this appeal) in accordance with section 94(1) of the Land Act 1994 subject to conditions applying to the construction of the road and future management of the recreation reserve. Conditions included that the respondent ensure no vegetation was cleared except in accordance with the requirements of the Vegetation Management Act 1999, submission of a plan for approval by the Minister to inform the design and construction of the road to achieve certain nominated standards, provision in writing from the Environmental Protection Agency that it was satisfied the applicant was implementing measures to satisfy certain nominated requirements.
In December 2005 environmental groups brought proceedings in the Planning and Environment Court for declarations that the approval by the respondent of reconfiguration of Lot 108 was invalid and that the approval of operational works for Lot 108 was invalid. The application has been heard and disposed of. (SOS Community Action Group & Anor v Reef Cove Resort Pty Ltd [2006] QPEC 69 and in the Court of Appeal [2006] QCA 519). Since those proceedings construction work has been proceeding on the slopes of Lot 108 below RL 40 AHD. Access is being obtained via the existing esplanade along the foreshore of Koombal.
In February 2006 the applicant applied to the respondent for a development permit for operational works to construct the access road on Lot 204. Lot 204 is in the conservation zone in Cairns Plan and the works were code assessable.[2] The application was refused by the respondent which was the assessment manager under IPA by decision notice of 18 October 2006. The refusal by the respondent was required by the first co-respondent, a concurrence agency.[3] Its notification of this to the respondent was dated 14 June 2006.
[2] Exhibit 28, page 174 of Cairns Plan.
[3] Section 3.5.12 IPA.
The Chief Executive of the Department of Natural Resources and Mines administering the Vegetation Management Act 1999 another concurrence agency had approved the application with conditions on 28 August 2006. Conditions were required to be imposed to ensure compliance with the requirements of the Regional Vegetation Management Code for Ongoing Clearing Purposes Wet Tropics Bio-region.
On 12 July 2007 the Department of Main Roads, having been provided with engineering and lighting design drawings for the access road approved the development application for the access road. The approval provided “access between the State controlled road (i.e. Pine Creek – Yarrabah Road) and the proposed development shall be via the new unnamed road that intersects with the Pine Creek – Yarrabah Road as shown on the drawings to the satisfaction of Cairns City Council. No other direct access between Pine Creek – Yarrabah Road and the proposed development is permitted”.
The Appeal
This appeal is against the refusal of the appellant’s application for a development permit for operational works to construct the access road. The respondent appeared by counsel at the hearing of the appeal. It supported the appellant’s position. The Chief-Executive of the Department of Natural Resources and Water, the Chief Executive under the Vegetation Management Act 1999 elected to become a party to the appeal but took no active role. The first co-respondent elected to become a party to the appeal and actively opposed the appeal.
The court, unlike the respondent is not bound by the first co-respondents referral agency response.[4] The appellant has the task of establishing the appeal be upheld.[5]
[4] Section 4.1.52(3) IPA.
[5] Section 4.1.50(1) IPA.
The reasons for the first co-respondent’s direction to the respondent to refuse the application appear at page 209 and following of exhibit 2. The grounds for refusal were said to be the first co-respondent’s jurisdiction under the Coastal Protection and Management Act 1995, section 104(2)(c) and the State Coastal Management Plan and the Wet Tropical Coast Regional Coast Management Plan pursuant to that Act. The aspect of development which led to the referral was said to be interference with quarry material on State coastal land above high water mark.[6] The facts and circumstances relied upon as justifying refusal were:
[6] See the meaning of assessable development in the dictionary and schedule 8, part 1, table 4, item 5(b)(i) of IPA.
“The construction of the proposed access road would have an unacceptable adverse impact on the wildlife, biological diversity, water quality and natural integrity of coastal ecological systems within this reserve.
The site of the proposed access road is within coastal locality 9.8 Western Malbon Thompson in the Wet Tropical Coast Regional Coastal Management Plan (2003). This coastal locality is recognised for the high natural integrity of the ranges, the diversity of the vegetation types and its value as habitat for the endangered southern cassowary.
The construction of the road will result in the removal of approximately 17,000m² of native remnant vegetation and the disturbance of one large and several small freshwater ecosystems which have high natural integrity and biodiversity values.
Impacts which are likely to occur as a result of construction and ongoing operational activities include:
(a) loss of vegetation which provide habitat for flora and fauna and a consequential reduction of ecological function
(b) Obstructs to fish movement at road culverts such as high velocities and excessive exit drops. This can deplete fish populations and reduce diversity of fish species within a catchment by obstructing fish migration to critical spawning or growth habitats
(c) reduction of water quality resulting in loss of biodiversity and aquatic environments
(d) increased wildlife mortality
(e) development of a wildlife barrier created by the existence of the road resulting in the decreased movement of fauna and eventual habitat fragmentation
(f) introduction of weed and pests species resulting in the loss of flora and fauna indigenous to the area
These impacts are inconsistent with policies 2.1 Coastal Use and Development; 2.8.3 Biodiversity; 2.9.3 State land on the coast; 2.9.4 Private use of State land on the coast and the desired coastal outcomes for key coastal sites and coastal locality 9.3”.
Some of the reasons set out above were not maintained on the appeal e.g. the issue of habitat for the endangered southern cassowary. Some were not supported with expert evidence by the first co-respondent e.g. obstruction to fish movement at road culverts leading to depletion of fish populations and reduction of diversity of fish species, reduction of water quality resulting in loss of biodiversity and aquatic environments. With respect to these reasons appropriately qualified experts for both the appellant and first co-respondent met and discussed relevant issues. Evidence led by the appellant (Dr Thorogood and Dr Johnson) dealt thoroughly and adequately with these issues. Regarding stormwater quality, adoption of suitable available control and mitigation measures and a detailed stormwater quality management plan including for erosion and sediment control professionally prepared would acceptably manage it. The measures to be adopted were detailed in Dr Johnson’s evidence. Regarding matters of aquatic ecology, Dr Thorogood convincingly opined that the likelihood of any adverse impact to the biodiversity of Brown Creek and the ephemeral watercourses resulting from the construction of the road was very low and in any event would be temporary and readily reversible. Likewise the likelihood for any ecologically significant impact to water and habitat quality was low and in any event would be temporary and reversible in nature. I accept the evidence of these two witnesses.
The extent of the first co-respondent’s jurisdiction
The appellant submitted the first co-respondent had exceeded its jurisdiction. What gave rise to the referral to the first co-respondent was that the application involved operational work made assessable because it would involve interference with quarry material on State coastal land above high water mark. Section 3.1.8 IPA provided that the jurisdiction of the first co-respondent for “assessing and responding to the part of the development application giving rise to the referral” is the “jurisdiction prescribed under a Regulation”. The jurisdiction prescribed under the regulation was coastal management under the Coastal Protection and Management Act 1995 excluding amenity and aesthetic significance or value and was for assessing and responding to the part of the application involving interference with quarry material on State coastal land above high water mark. That the application also inevitably involved clearing of vegetation was not something within the first co-respondent’s jurisdiction. That was the jurisdiction of the Chief Executive under the Vegetation Management Act 1999 who had responded to that jurisdiction firstly by being satisfied that the application was for a relevant purpose, namely “for establishing --- a road --- if there is no suitable alternative site for the road”,[7] and secondly by addressing matters inevitably connected with clearing of vegetation such as protection of water courses and wildlife habitat, soil erosion and loss of vegetation.[8] The Chief Executive could have directed refusal of the application if the destruction of vegetation was inconsistent with the purposes of the Act or the regional vegetation management code established under the Act but did not, rather requiring that nominated conditions be imposed.
The jurisdictions should be viewed as separate so that one did not intrude into the ambit of the other leading as here to conflicting decisions. The purposes of the Vegetation Management Act 1999 included the regulation of clearing in a way that conserved remnant regional ecosystems, whether Endangered, Of Concern or Not Of Concern, prevention of the loss of biodiversity and maintenance of ecological processes.[9] Remnant vegetation is mapped in regional ecosystems and assigned a status of Endangered, Of Concern, Not Of Concern under the Act. The purposes of the Coastal Protection and Management Act 1995 were concerned with the protection, conservation, rehabilitation and management of the coast including its resources and biological diversity and the provision in conjunction with other legislation, of a coordinated and integrated management and administrative framework for the ecologically sustainable development of the coastal zone.[10] A purposive approach to interpretation of the two statutes was required. The context of the provisions of each Act should be examined. The context required the ambit of the first co-respondent’s jurisdiction of coastal management be read down to avoid the sort of conflict evident in this case.[11]
[7] Section 22A(1) and 2(d).
[8] Exhibit 2, Page 214 and following.
[9]Vegetation Management Act 1999, section 3.
[10]Coastal Protection and Management Act 1995, section 3.
[11] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2 per McHugh, Gummow, Kirby and Hayne JJ.
Assessable development is, inter alia, development specified in schedule 8, part 1 of IPA. The construction of a road through Lot 204 was assessable development, schedule 8, part 1, table 4 IPA, both because it involved the clearing of native vegetation on a road under the Land Act 1994, Item 1D and on trust land under the Land Act 1994, item 1E and work within a coastal management district namely interfering with quarry material on state coastal land above high water mark, item 5. Both the Chief-Executive under the Vegetation Management Act 1999 and the first co-respondent became concurrence agencies because each was an entity prescribed under a regulation as a concurrence agency for the application.[12] As concurrence agencies both had “for assessing and responding to the part of the development application giving rise to the referral, the jurisdiction or jurisdictions prescribed under a regulation”.[13]
[12] Schedule 10 IPA and section 5 and schedule 2 Integrated Planning Regulation 1998.
[13] Section 3.1.8 IPA.
The limitation of a referral agency to a matter within its jurisdiction is referred to elsewhere in IPA e.g. sections 3.3.2, 3.3.6(2). Section 3.3.15 requires each referral agency within the limits of its jurisdiction to assess an application against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency, having regard to any planning scheme in force when the application was made for the planning scheme area and State planning policies or parts thereof.
Regulation 5 of the Integrated Planning Regulation 1998 provides that for a development mentioned in column 1 of schedule 2 to the regulation, the referral agency and its function whether as an advice or a concurrence agency can be found by referring to column 2 and its jurisdiction by referring to column 3. In Table 2 of Schedule 2, Item 5 operational work for vegetation clearing made assessable under Schedule 8, Part 1 , table 4, item 1(E) IPA, in column 2 the Chief-Executive under the Vegetation Management Act 1999 is a concurrence agency and the chief-executives jurisdiction is for the purposes of the Vegetation Management Act 1999. For Item 12 operational work in a coastal management district (as in this case) in column 2 the Chief-Executive under the Coastal Protection and Management Act 1995 is a concurrence agency and the jurisdiction is coastal management under that Act excluding amenity and aesthetic significance or value. Coastal management is dealt with in Chapter 2 of that Act and Part 6 thereof, division 1 and 2 deals with assessment of development applications over land in the coastal zone.
A purpose of the Vegetation Management Act 1999 is inter alia to regulate the clearing of vegetation in a way that conserves remnant Endangered Regional Ecosystems, remnant Of Concern Regional Ecosystems, remnant Not Of Concern Regional Ecosystems, to prevent the loss of biodiversity, to maintain ecological processes and to manage the environmental effects of clearing of vegetation to achieve these things.[14]
[14]Vegetation Management Act 1999 section 3.
The Chief-Executive of the Department of Natural Resources, Mines and Water, the Chief Executive under the Vegetation Management Act 1999 assessed the appellant’s application against the purposes of that Act in accordance with the Regional Vegetation Management Code for Ongoing Clearing Purposes Wet Tropics Bio-region. Attention was directed to the effects of clearing of vegetation inevitably required by the road construction. Conditions to address those effects were required to be imposed on any approval by the assessment manager.
The main objects of the Coastal Protection and Management Act 1995 include:
provision for the protection, conservation, rehabilitation and management of the coast including its resources and biological diversity;
provision in conjunction with other legislation of a coordinated and integrated management and administrative framework for the ecologically sustainable development of the coastal zone.[15]
[15]Coastal Protection and Management Act 1995 Section 3(a) and (c).
The coast is defined to mean “all areas within or neighbouring the foreshore”.[16]
[16] Section 10.
In section 11 of the Act coastal management is said to “include(s) the protection, conservation, rehabilitation and ecologically sustainable development of the coastal zone”. Ecologically sustainable development has the meaning given by the National Strategy for Ecologically Sustainable Development endorsed by the Council of Australian Governments on 7 December 1992.[17] The coastal zone means inter alia “(b) all areas to the landward side of coastal waters in which there are physical features, ecological or natural processes or human activities that effect or potentially effect the coast or coastal resources”.[18] Section 4 of the act provides how coastal management is to be achieved: “by co-ordinated and integrated planning and decision making involving among other things the following: ----
[17] Section 16 and schedule dictionary.
[18] Section 15.
(a) Preparing coastal management plans that –
state principles and policies for coastal management
identify key coastal sites and coastal resources in the coastal zone and planning for their long term protection or management, ---
(b) Coastal management districts –
Declaring coastal management districts in the coastal zone as areas requiring special development controls and management practices.
(c) Use of other legislation
using other relevant legislation wherever practicable to achieve the object of this Act.”
Relevantly, then the Act is concerned inter alia with protection, conservation and management of the areas to the landward side of coastal waters in which there are physical features, ecological or natural processes or human activities that affect or potentially affect the coast or coastal resources. It is concerned with the resources and biological diversity of the areas and with ecologically sustainable development thereof. Its provisions deal with ways to achieve these objectives e.g. Part 2 of the Act makes provision for both a State coastal management plan and regional coastal management plans. These plans are statutory instruments under the Statutory Instruments Act 1992[19]. An assessment manager or a referral agency for a development application under IPA is to assess the application as if a relevant coastal management plan were a State Planning Policy under IPA and apply sections 2.1.4, 2.6.7 and schedule 1, section 18 of IPA.[20]
[19] Section 29.
[20] Section 50.
Chapter 3, Part 6 of the Act deals with development approvals for assessable development. If the chief-executive is a concurrence agency, section 104(1)(b) requires that the Chief-Executive : “consider the potential impact of the development on coastal management excluding amenity or aesthetic significance or value”. Section 104(2) requires the chief-executive direct attention to specific matters.
“(a) natural coastal, riverine and estuarine processes, including, for example, erosion and accretion, wave and tidal currents, littoral drift, tidal prism and tidal inundation;
(b) natural topography and drainage of coastal land, including, for example, the integrity of dune systems and natural surface runoff;
(c) coastal wetlands and other coastal ecological systems, including, for example, the wildlife, biological diversity and water quality of the wetlands or systems;
(d) places or objects that have cultural heritage, landscape, historical, anthropological, archaeological or aesthetic significance or value;
(e) public access to the foreshore.”[21]
[21] Section 104(3).
The matter nominated by the first co-respondent’s reasons for directing refusal of the application was:
“(c) coastal wetlands and other coastal ecological systems including for example, the wildlife, biological diversity, and water quality of the wetlands or systems”.
Section 104(5) provides that subsections (1) to (4) of section 104 do not limit section 3.3.15 or chapter 3, part 5, division 2 of IPA, that is, the part of IDAS involving the assessment of applications for assessable development.
Section 105 requires that for referral agency assessment of an application (section 3.3.15(1)(a) IPA), policies referred to in IPA include the State Coastal Management Plan and regional plans.
Section 106 empowers the chief-executive to impose on a development approval the conditions he or she considers appropriate for coastal management
The jurisdiction of the Chief-Executive was that prescribed by regulation namely coastal management under the Coastal Protection and Management Act 1995 excluding amenity and aesthetic significance or value. By definition it included the conservation of the coastal zone i.e. all areas to the landward side of coastal waters in which there were physical features ecological or natural processes that potentially effect coastal resources. This is widely expressed and may include vegetation. Coastal management is to be achieved amongst other things by preparing coastal management plans identifying key coastal sites and coastal resources and planning for their long term protection or management and by declaring coastal management districts as areas requiring special development controls and management practices. Reference to the State Coastal Management Plan and the Wet Tropical Coast Regional Coastal Management Plan reveal that vegetation conservation is a matter addressed.
The jurisdiction was for addressing and responding to the inevitable earthworks involved in road construction because construction was to occur in the coastal zone. Put another way it was the impact or potential impact of those earthworks on coastal management excluding amenity or aesthetic significance or value[22] which was the subject of the jurisdiction and as originally particularised in the first co-respondents concurrence agency response was the impact or potential impact on
“(c) coastal wetlands and other coastal ecological systems including for example the wildlife, biological diversity and water quality of the wetlands or systems”.
[22] Section 104.
The view I have come to is that the jurisdiction of the first co-respondent is not confined to that aspect of coastal management, (interference with quarry material on State coastal land above high water mark), which triggered its referral jurisdiction. Its assessment and response may deal with any effect the part of the development application, giving rise to the referral, here the inevitable earthworks, may reasonably be regarded as having on coastal management. Once referral jurisdiction is enlivened the jurisdiction is confined only by the limits of “coastal management” in the Coastal Protection and Management Act 1995, in other words in this instance all that may be included in protection, conservation and ecologically sustainable development of that part of R393 consequent upon the operational works involved in construction of the road.
As mentioned above in its concurrence agency response, the first co-respondent indicated that it was the potential impact of the operational works on coastal wetlands and other coastal ecological systems including for example the wildlife, biological diversity and water quality of the wetlands or systems which was the aspect of coastal management which was unacceptable. In providing further particulars pursuant to an order of this court the aspect of potentially impacted coastal management was enlarged.[23] To the extent these matters (and evidence on the hearing of the appeal) intruded into use of part of R393 as a road if and when the access road is constructed jurisdiction was exceeded. The jurisdiction was coastal management potentially impacted by the operational works involved in the road construction.
[23] See Exhibit 5, Page 19 and following.
I do not think that the Coastal Protection and Management Act 1995 should be read in such a way as to exclude vegetation or more specifically destruction of vegetation in the coastal zone from the jurisdiction of the Chief Executive under the Act. If, in a matter referred, it may properly be seen to be within the scope of coastal management then it may come within the Chief Executive’s jurisdiction. The Act is specifically concerned with the protection and conservation of the resources and biological diversity of the coastal zone. The Vegetation Management Act 1999 applies generally to vegetation clearing across the whole State.
I note that Judge Robin QC in Terry Wall Director-General of the Environmental Protection Agency v Douglas Shire Council [2007] QPEC 044 rejected an argument that the Environmental Protection Agency’s jurisdiction in that case should be confined to the jurisdictional trigger of interference with quarry material. That case was concerned with different issues. His Honour also expressed hope “that in accordance with IPA philosophy” a ‘one stop shop’ approach can somehow be implemented by cooperative endeavours”. Although the issues in that case and this case were not the same I would respectfully endorse that hope. The comment may be made in passing, that coordinated and integrated planning and decision making, a laudable aspiration of the CoastalProtection and Management Act 1995[24] may have been misplaced in this case.
[24] Section 3(c) – 4.
The planning history of Lot 108
I consider some weight should be accorded to the planning context in which the application for a development permit for operational works to construct the access road was made. By that I mean the prior development approvals and attached conditions regarding Lot 108. Site access is an issue in the assessment of both rezoning and reconfiguration applications and was the subject of conditioning involving Lot 204 when these approvals occurred. A rational approach to town planning requires this context not be ignored as irrelevant.
Coastal Management – an unacceptable impact
I turn to the evidence which focussed on fauna and flora. Has the appellant shown that the operational work constructing the access road will not have an unacceptable impact on coastal management. The evidence also dealt with impacts use of the road may have.
Fauna
Dr Goosem gave evidence in the first co-respondent’s case. Her PhD was concerned with the impacts of roads upon rainforest wildlife, in particular road mortality issues, edge and barrier effects. She has worked in this specialty for a number of years, most recently at James Cook University as a research fellow investigating the impacts of roads and powerline clearing on vegetation, fauna and microclimate. She is experienced and qualified. I do not doubt her commitment and sincerity. Dr Goosem is opposed to putting roads through undisturbed remnant native vegetation. Ideally roads should be located in areas where native vegetation is already cleared or significantly disturbed. Her opposition is based upon the effects construction and use of a road put through undisturbed remnant native vegetation will inevitably have upon fauna. There will always be adverse effects due to loss of habitat, edge effects, alteration to microclimate, disturbance effects of traffic, road mortality, invasion of weeds and alien species and vehicle pollution. Whilst to a degree these can be managed by design and construction and use controls, they cannot be eliminated. In this case, her opinion was that the construction of the access road, and its use once constructed, even accepting the design and construction and use controls proposed by the appellant, would result in significant adverse impact to the fauna of the area. Additionally the location of the access road close to Koombal would have the effect of creating small areas of fauna habitat isolated by the proposed road with detrimental flow on effect.
Mr Agnew gave evidence in the appellant’s case. He is a scientist in the field of terrestrial fauna and their habitat. He is experienced and qualified. He had considered the various impacts the access road construction and thereafter, use, may have on fauna. He pointed out that the easement for the road corridor occupies 2.218 hectares or less than 1% of R393. After the revision of works for the access road which he with Dr Olsen undertook, the area of R393 to be directly effected by the road construction will be 1.218 hectares or about 0.5% of R393. 0.502 hectares of that is to be revegetated. He had had regard to the concerns expressed by the first co-respondent and in particular Dr’s Goosem and Wannan with whom he had spoken. With Dr Olsen he revised the access road plans to reduce the extent of native vegetation clearance for the road and to reduce potential impediments to fauna movement by substituting a relocated bridge over Brown Creek in lieu of a culvert and revision of and increase in the number, location and size of culverts over the length of the access road, thereby benefiting drainage and ecological flows and movement of ground dwelling fauna. Additionally the new access into Koombal from the access road required by the Department of Main Roads was moved further to the north to ensure retention of a pandanus wetland. Other improvements were revegetation of all road shoulders and batters with locally endemic plant species particularly designed to minimise gaps between tree canopies on each side and provide protective cover around culvert openings, road design elements to reduce maximum traffic speeds to 40 kilometres an hour, protocols for construction responding to animal welfare issues and a monitoring program to assess fauna mortality during the operational phase. Other strategies which he recommended be implemented included establishment and maintenance of fencing between underpasses to reduce the opportunity for ground dwelling fauna to access the road pavement, provision of road tunnel overpasses, inclusion of structures internally in culverts to enhance movement opportunities for ground dwelling fauna.
The access road location is at the north-western edge of the northern most section of R393 bisected as it is by Yarrabah Road. It is as close as it is practicable to put it to the lots in Koombal yet still within R393. One of Dr Goosem’s concerns was the isolation of small areas of habitat between the access road and the lots in Koombal and between the access road, the new access into Koombal and the Yarrabah Road. Mr Agnew was of the view that the impact of the access road comparatively speaking would be higher in the small isolated areas of remnant vegetation on the coastal side than on the other side beyond which was the great bulk of R393 rising up the slopes of the range.
One of the sources upon which Mr Agnew’s opinions were based was fauna survey investigation work done by NRA Environmental Consultants in support of an application for operational work approval. The extent of work they did was largely on Lot 108. Its validity was called into question by Dr Goosem. She suggested it would have been beneficial if investigation had included both more on R393 and during different seasons and if more extensive collecting had been undertaken. Mr Agnew also considered it would have been beneficial if investigation had been done across at least two seasons, been more site intensive and a wider variety of traps used. Nonetheless he considered the NRA approach to be sound and useful. He applied it with other source material. He considered that he had sufficient information upon which to base conclusions about species upon or likely to be upon the part R393 to be affected by the access road.
In the final analysis he considered implementation of the measures proposed would result in the construction and operation of the access road having minimal impact upon flora and fauna habitat values of R393 and the local area. The biodiversity values of R393 and surrounds would not be significantly diminished.
Flora
Dr Olsen is a scientist with particular expertise and experience in botany. His PhD was based on eco-physiological studies of natural regeneration of flora. He was requested by the appellant to apply his expertise to the matter on appeal and the expressed concerns of the first co-respondent about the effect of the access road on the vegetation. To this end he called upon observations he had made over the years during professional visits to the general area and site inspections he undertook on 26 February and 17 April 2007.
Dr Olsen’s evidence conflicted with the evidence of Dr Wannan, an employee of the first co-respondent. Dr Olsen considered the access road did not traverse any area of high local, regional, state, national or global biodiversity. Best practice construction and operational practices after construction would minimise environmental impact upon the flora of R393. The requirements of the Vegetation Management Act1999, the Coastal Protection and Management Act 1995, the State Coastal Management Plan 2001, and the Wet Tropical Coast Regional Coastal Management Plan 2003 were satisfied.
Dr Olsen observed that the Department of Natural Resources and Water responsible for the Vegetation Management Act1999 had not objected to clearance of remnant vegetation within the road corridor. The purpose of that Act was to regulate the clearing of vegetation in a way that conserved remnant vegetation be it Endangered, Of Concern or Not Of Concern regional ecosystems, that prevented the loss of biodiversity and that maintained ecological processes. A regional ecosystem as defined in the Act was a vegetation community in a bioregion that is consistently associated with a particular combination of geology landform and soil. It was his view there were no endangered regional ecosystems as defined identified pursuant to the Vegetation Management Act1999 on the road alignment. He was critical of the recently revised increased numbers of regional ecosystems on the Regional Ecosystem Digital Database (REDD) in the wet tropics area as in truth being no more than variations of land types within regional ecosystems. As he put it, some of these recently listed regional ecosystems in the wet tropics area which attain an Of Concern status under the Vegetation Management Act1999 only attain the status due to their “limited mapped spatial extent”. In other words if any entity is sliced thinly enough, the entity can attain an enhanced level of significance. His criticism was directed at the views expressed by Dr Wannan that the vegetation through which the road corridor between Brown Creek and Lot 108 would pass, contained Of Concern vegetation recently created regional ecosystem 7.12.59. Despite the listing of that regional ecosystem for certain vegetation communities on the current certified mapping (REDD version 5), in his view it was in truth a land type within regional ecosystem 7.12.24 or a regional ecosystem which was a combination of 7.12.55, 7.12.59 and potentially other geographical segregates. Even if it be accepted 7.12.55 or 7.12.59 was a correct regional ecosystem designation, neither of those regional ecosystems were close to the threshold between Of Concern and Endangered, so the loss of one or so hectares would not cause the regional ecosystem to fall into the endangered category.
Dr Wannan is presently employed as a principal biodiversity planning officer with the first co-respondent. His PhD was in botany. He is experienced in Environmental Impact Assessment and Management with regard to flora. Most, if not all of his professional working life has been in north Queensland.
His opinions differed from those of Dr Olsen most markedly about vegetation on the section of the road corridor between Brown Creek and Lot 108. They were based upon field inspection in May 2006. He identified 3 main vegetation communities along the corridor of the access road. Firstly between Yarrabah Road and Brown Creek he identified woodland open forest corresponding to regional ecosystem 7.12.24. The Vegetation Management Act1999 status of this community was Not of Concern and its biodiversity status by the Environmental Protection Agency was No Concern at Present. This accorded with Dr Olsen’s view. He also identified riparian woodland along Brown Creek. He said this particular community had not been separately recognised by the Wet Tropics Regional Ecosystem mapping due to its small size. It consisted of a riparian community related most closely to the wetter areas of the nearby regional ecosystem 7.12.24. Regardless, he thought it would constitute a naturally restricted or rare community if separately mapped thus attracting an Of Concern Vegetation Management Act 1999 and biodiversity status. Dr Olsen considered the vegetation at Brown Creek riparian flank where the bridge would cross, to be open forest with a range of vine forest taxa in the understorey. It was analogous to Of Concern regional ecosystem 7.3.25. Regarding the vegetation between Brown Creek and Lot 108, Dr Wannan considered that under current regional ecosystem mapping for the Wet Tropics Bioregion this type of woodland community was regional ecosystem 7.12.53 or 7.12.59. Whilst there was 7.12.24 dominant species present in this area the community was more dominated by Molloy Red Box, or eucalyptus leptophleba with more broadly spaced trees so that it was structurally more open forest. On balance he assessed it closest to regional ecosystem 7.12.59 although the presence also of eucalyptus portuensis a dominant species in regional ecosystem 7.12.24 meant it differed from other regional ecosystem 7.12.59 communities. Regional ecosystem 7.12.59 status under the Vegetation Management Act 1999 was Of Concern and its biodiversity status was endangered.
Biodiversity conservation status is not a function of the Vegetation Management Act. It is a status attributed by the first co-respondent. It is derived from the opinion of scientists including from the first co-respondent whether a particular regional ecosystem should be considered to be endangered from a biodiversity conservation perspective. In arriving at a conclusion an assessment is made of the condition of the main examples of the regional ecosystem and an assessment made of the threats which apply to it.
In the final analysis it was the opinion of Dr Wannan that clearing of vegetation in the road corridor which of necessity would involve nearly 1.2 hectares of what he considered to be regional ecosystem 7.12.59 vegetation and the potentially naturally restricted or rare riparian vegetation around the crossing of Brown Creek would have a significant impact at the local level. Additionally there would be a reduction in the integrity of vegetation in the corridor due to the clearing of vegetation for the road and likely influx of weeds associated with vehicle use.
Dr Wannan’s approach and opinion may be contrasted with the concurrence agency response by the Chief Executive under the Vegetation Management Act 1999 who did not direct a refusal but instead directed the imposition of conditions.[25] The regional ecosystems discussed in the evidence of Drs Wannan and Olsen are established pursuant to the Vegetation Management Act.
[25] See Exhibit 2, Page 214 and following.
State Coastal Management Plan – Queensland Coastal Policy
Section 2.1 – Coastal Use and Development
Outcome: “use and development of the coastal one occurs in a ecologically sustainable manner.”
Principal 1D: “Coastal use and development is planned and managed to ensure that significant adverse effects of activities on the natural environment are avoided mitigated or remedied.”
Policies:
2.1.2 Settlement pattern and design
“To the extent practicable the coast is conserved in its natural or non urban state outside of existing urban areas --- urban growth is managed to protect coastal resources and their values by minimising adverse impacts.”
2.8Conserving nature
Outcome: “Coastal ecosystems including their ecological processes, opportunities for survival, biological diversity and potential for continuing evolutionary adaptation are maintained, enhanced and restored.”
Principles:
“8B – Further loss or degradation of native vegetation on the coast particularly of endangered regional ecosystems, is avoided wherever possible.”
“8D – Further loss or degradation of coastal habitats particularly habitats for rare, threatened or migratory species is avoided wherever possible.
Policy 2.8.3 - Biodiversity
Relevantly this policy seeks to achieve a number of conservation outcomes including for the marine, freshwater and terrestrial systems, the native vegetation, coastal wetlands, flora and fauna habitats particularly for rare, threatened or migratory species. Threats to biodiversity include habitat loss, declining habitat quality and changes to ecological processes. The policy seeks to safeguard biodiversity through conserving and appropriately managing the diverse range of habitats by the maintenance of connectivity of ecosystems particularly remnant ecosystems by ensuring viable populations continue to exist throughout their range, including by protection of habitat, by the retention of native vegetation wherever practicable, by the retention of and appropriate management of riparian vegetation along waterways of sufficient width to provide for a self sustainable linked network.
2.9Coordinated management
Outcome: ‘Coastal management is coordinated and integrated across all levels of government and within the community.”
Principles:
“9A – Planning processes and management decisions by government agencies and non government groups are integrated and coordinated and appropriately reflect the outcomes, principles and policies of the State Coastal Plan and relevant regional coastal management plans.”
“9C – The management of State land on the coast is consistent with and seeks to further the outcomes, principles and policies of the coastal plans.”
Policy 2.9.3- State Land on the Coast
This policy is directed to managing State land on the coast such as R393 in a way consistent with the outcomes, principles and policies of the coastal plans, in this case the Wet Tropical Coast Regional Coastal Management Plan.
Policy 2.9.4 – Private Use of State Land on the Coast
Like policy 2.9.3 this policy is directed to managing the use of State land on the coast. Private use of this land is to be compatible with coastal management outcomes in the State coastal plan and any relevant regional coastal plan. Regard is to be had to inter alia, protecting coastal resources and values.
Wet Tropical Coast Regional Coastal Management Plan - Commenced 1 March 2004
Coastal Site 9 – Malbon Thompson
Desired Coastal Outcomes: “Appropriate management regimes are in place to maintain the extent and diversity of wildlife habitat, particularly the rainforests of the Malbon Thompson range and the neighbouring dune systems and wetlands which provided important habitat for the southern cassowary.”
“The natural scenic coastal --- landscape character (part of the site’s world heritage values) are maintained, particularly the forested Malbon Thompson.”
“Tourism and recreational use has minimal impact on coastal resources and is compatible with the semi-remote material setting.”
Significant coastal resources (natural and cultural) and their values:
“The westerly group of ranges contain extensive areas of high natural integrity, diverse remnant vegetation dominated by a mosaic of mesophyll vine forests with subordinate simple notophyll vine forests and vine forests with eucalyptus and acacias. Open forests and woodlands dominated the Mount Yarrabah – False Cape areas ---.”
Coastal Management Issues: “Road construction associated with residential development and tourism has the potential to adversely impact on the site’s scenic values, natural integrity and water quality. Inappropriate land clearing generally associated with residential and tourism development may adversely impact on biodiversity and water quality.”
In the Wet Tropical Coast Regional Coastal Management Plan, key coastal site 9, Malbon Thompson, encompasses an area south from Trinity Inlet from the seashore to and including the Malbon Thompson Range. A desired coastal outcome which has potential relevance to the matter under appeal, is that appropriate management regimes are in place to maintain the extent and diversity of wildlife habitat particularly the rainforests of the Malbon Thompson Range and the neighbouring dune systems and wetlands which provide important habitat for the southern cassowary. With respect to this outcome there is no rainforest or significant vine forest on the land the subject of the application, dune systems are not impacted, some wetland is but the road system as revised to take account of environmental concerns has made provision for management and protection for them. All the experts were agreed the area was not habitat for the southern cassowary. Water quality is maintained.
Coastal Locality 9.3 – Western Malbon Thompson
In the Wet Tropical Coast Regional Coastal Management Plan, coastal locality 9.3 is the western Malbon Thompson. This locality covers an area from the coast between the southern shore of Trinity Inlet to False Cape southward with its seaward border the Malbon Thompson Range. On it seaward side it is bordered by the Yarrabah Peninsula and the eastern Malbon Thompson. Of the desired coastal outcomes provided for, three are potentially relevant namely, maintenance and rehabilitation of world heritage values of scherophyll clad ridges which may support a diverse fauna, managing clearing of native vegetation to minimise erosion and adverse impacts on water quality at Trinity Inlet and maintaining biodiversity and use of R393 consistently with it’s dedicated purpose and including the community purpose of “environmental purposes”.
Coastal Management Issues
“Clearing of native vegetation --- adversely impacts on biodiversity and scenic values and has the potential to create erosion problems and degrade water quality particularly in Trinity Inlet”.
“Maintenance of scenic and natural values is an important issue --- The reserves (Lot 204 ------) need to be managed to conserve their high environmental values and features including scenic values.”
Decision
When all the evidence is considered, the total area of R393, the area of R393 to be involved in the road construction, the location of the road at the edge of R393 near to the Koombal lots, the evidence of Dr Olsen and Mr Agnew and of Drs Thorogood and Johnson, the revision of the operational work for the access road resulting in conditions designed to minimise impacts of the operational works on fauna, flora, and ecological processes (and also from operation of the constructed access road), together with the evidence of Drs Goosem and Wannan, I have come to the conclusion that the operational works will not have an unacceptable impact on coastal management. I am unable to see any significant conflict with the coastal plans. Loss of native vegetation, of flora and fauna habitats, adverse affect on coastal wetlands, marine and freshwater and terrestrial systems and erosion will be controllable and minimal. Removal of riparian vegetation at Brown Creek will be limited to that required by the bridge crossing and will b e minimal. Impact on scenic values will be negligible.
It will be apparent from the conclusion I have reached that I have preferred the opinions of Dr Olsen and Mr Agnew to those of Drs Goosem and Wannan. Whilst I have no doubt the opinions held and expressed by the latter are honestly and sincerely held, it appeared each may have been influenced by a view that the existing esplanade at Koombal already largely cleared of native vegetation would be preferable as the access to Lot 108. Whether or not that may be so is not an influential matter.[26] The task of an assessment manager and this court is to reach a decision upon the available material about the proposal before it.
[26] Silverton Ltd v Maroochy Shire Council (1982) QPLR 82. See also Cromar Pty Ltd & Anorv Brisbane City Council (1996) QPELR 84.
A further matter requires consideration. The application in the approved form for the development permit for operational works[27] described the land involved in the application as part of Lot 204 on SP 154564 with an existing use as a recreation reserve. It did not refer to some small areas of existing road reserve upon which operational work will also have to occur. Plans which accompanied the application[28] however showed the extent of the proposed operational works which clearly included these areas. Subsequent correspondence with the Department of Natural Resources and Water[29] revealed that whilst the plans which accompanied the application showed the works were also over road reserve areas the Chief Executive was only concerned with works on R393. Its response was unaffected by the additional areas of road reserve. Subsequent correspondence with the respondent revealed that it was aware plans accompanying the application included areas of road reserve in the works and it considered these areas formed part of the operational works application.[30] Subsequent correspondence with the Department of Main Roads likewise revealed that its approval was for that part of the works for which the department was responsible within the “Pine Creek – Yarrabah Road reserve including turnout of new intersection to approximate chainage 30 on the new road”.
[27] Exhibit 1 document (c).
[28] Exhibit 1, documents (c) and (f).
[29] Exhibit 15.
[30] Exhibit 33.
It is apparent then that no relevant person or body was in any doubt about the land involved in the operational works development application. The failure to particularly specify these areas of road reserve in the development application form itself is not a matter which should inhibit grant of development approval which is otherwise proper.[31]
[31] See Section 4.1.5A IPA, Advance Property Planners Pty Ltd v Brisbane City Council (2005) QPELR 113; Lali Investments Pty Ltd v Burnett Shire Council (2004) QPELR 25.
The appellant has shown the road construction will not have an unacceptable adverse impact on coastal management. The appeal is allowed. Conditions to be imposed are to follow the recommendations of Drs Thorogood, Johnson and Olsen and Mr Agnew as emerged in their evidence together with those required by the Chief Executive under the Vegetation Management Act, the Department of Main Roads and any others properly required by the respondent.
The matter is adjourned to a date to be fixed so that final orders including conditions may be formulated.
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