Reynoldsman Pty Ltd v Brisbane City Council; Bulimba Creek Catchment Co-ordinating Committee v Brisbane City Council
[2009] QPEC 138
•18 December 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Reynoldsman Pty Ltd v Brisbane City Council & Ors; Bulimba Creek Catchment Co-ordinating Committee v Brisbane City Council & Ors [2009] QPEC 138
PARTIES:
BD 889 of 2009
REYNOLDSMAN PTY LTD
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
GREENDALE DEVELOPMENTS PTY LTD
(Co-Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-Respondent by election)
DB 890 of 2009
BULIMBA CREEK CATCHMENT CO-ORDINATING COMMITTEE
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
GREENDALE DEVELOPMENTS PTY LTD
(Co-Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-Respondent by election)
FILE NO/S:
BD 889 of 2009; BD 890 of 2009
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
18 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
14-18 September 2009 and submissions received to 28 October 2009.
JUDGE:
Rackemann DCJ
ORDER:
The appeals will be dismissed.
CATCHWORDS:
ENVIRONMENT AND PLANNING – Submitter appeals against reconfiguration for residential subdivision – whether subdivision ought provide for a centrally located linear corridor through the site for recreation or environmental purposes – where no such corridor shown on Strategic Plan map or Local Plan map – whether proposal retaining vegetation at eastern end of the site would provide a suitable corridor if one were required
COUNSEL:
Mr R Bain QC with Mr M Williamson for the appellants
Mr T Trotter for the respondent
Mr C Hughes SC with Mr B Job for the co-respondent
SOLICITORS:
Connor O’Meara for the appellant
Brisbane City Legal Practice for the respondent
Anderssen Lawyers for the co-respondent
Introduction
These submitter appeals are against the Council’s approval of a development application by the co-respondent for reconfiguration to facilitate a 90 lot residential subdivision on land located at 56 and 61 Greendale Way and 58 Ridgeview Street, Carindale. The subject site is severed by Greendale Way, which is a suburban route. The severance has resulted in the creation of lot 1 on SP206804, on the western side of Greendale Way. The development of that lot is uncontentious. The dispute is in relation to the design of the proposed subdivision of the land to the east of Greendale Way.
The land is undeveloped and generally cleared, save for an area at its eastern extremity, which is co-incident, in general terms, with a mapped waterway corridor. It falls within a part of Carindale which is being progressively developed for suburban residential purposes. The subdivision of the subject site for those purposes is consistent with the South East Queensland Regional Plan (the site falls within the urban footprint) and Brisbane’s City Plan[1]. The proposed layout respects the topography of the site, the location of a recycled water pipeline (which traverses part of the site) the vegetation at the eastern extremity (which is to be rehabilitated and preserved in private open space) and neighbouring developed and undeveloped areas. The appellants accept that the site is suitable to be developed for suburban residential purposes, but take issue with the design of the subdivision and, in particular, with its failure to provide for a north-south corridor to serve recreational and/or ecological purposes.
[1]The proposed development is identified as “generally inappropriate” impact assessable development given the absence of an approve structure plan, but it is evident that suburban residential development is intended, given the strategic plan and local plan designations discussed later.
At the time the application was made in 2007, the land to the east of Greendale Way was bisected by easements (the former QEC easement) associated with high voltage transmission lines which traversed the land, and locality in a north-south direction. The easements over the subject site were subsequently surrendered, and have been removed as encumbrances. It is the land which was once the subject of those easements which the appellants say ought be set aside as a corridor through the development.
The appellants were the only two submitters who objected to the application. No member of either of the appellant organisations was called at trial. The submission made to the Council by the Bulimba Creek Catchment Co-Ordinating Committee Inc stated that the organisation “is a not for profit environment group active in the southern suburbs of Brisbane”. Reynoldsman Pty Ltd is the developer of other land in the locality for suburban residential purposes. Its particular interest in this application was unexplained. There was no evidence that development of the subject site, as proposed, would adversely impact upon any of its developments. The co-respondent by election did not take an active part in the hearing.
That the developer should be required to provide for a centrally located north-south corridor traversing the site in the location of the former QEC easement is not a conclusion which would be readily reached upon an inspection of the site or a perusal of the planning documents. In that regard:
(i)No centrally located vegetated corridor presently exists. The part of the site which the appellants wish to have set aside for recreational and/or ecological purposes is cleared, privately owned land.
(ii)The land is included within the “residential neighbourhoods” element of the strategic plan. Land within that element is intended to, amongst other things, meet the challenge to ensure an efficient supply of residential land and housing.
(iii)The site is not mapped, at the strategic plan level, as within a Green Space corridor or any other component of the Brisbane Green Space system.
(iv)The land is mainly within an “emerging community area” designation. Land within that designation is said to be “generally suitable for urban purposes at some future time”.
(v)The land does have part of a mapped waterway at its eastern extremity, however the vegetated part of that area is to be rehabilitated and preserved in private open space and other parts of the mapped waterway have been obliterated by works carried out in the course of construction of the recycled water pipeline.
(vi)The land has, for a long time, been the subject of local planning, initially under the now superseded Local Area Outline Plan and more recently under the Carina/Carindale Local Plan, which is an outer suburb Local Plan. The Local Plan map includes the site within the “Potential Development Area”. Those areas are said to provide potential development opportunities for either residential or industrial purposes[2]. The Local Plan map designates other land within the area as subject to environmental and scenic constraint, environmental and waterway corridors, desirable urban nature parkland and open space, but no such designation appears on the corridor contended for by the appellants.
[2]City Plan, Chapter 4, p 289.
The appellants contend however, that their proposition gains support from certain passages of the planning documents. That is discussed later.
Parkland
The proposed development does not provide for any on-site public park. The appellants’ issues allege conflict with provisions of the Subdivision Code, Park, Planning and Design Code, Structure Planning Code and the Local Plan on the basis that the proposal does not provide for suitable parkland, corridor, linkage or connection and does not adequately provide for pedestrians and cyclists.
The conditions attached to the Council’s approval, require payment of monetary contributions, including contributions for community purposes. Those contributions, at current rates, are $881,018[3]. Such contributions are recognised and provided for in the Council’s In-Fill Community Purposes Infrastructure Contributions Planning Scheme Policy (PSP).
[3]Ex 19.
On a first principles approach, the decision to require a monetary contribution in lieu of a parkland dedication in this case is sensible and appropriate, given that an established park (Grand View Place Park) of approximately 1.5 hectares and embellished with play equipment and a gazebo, immediately adjoins the subject land to the north (the proposal would provide a further road frontage to Grandview Place Park, and facilitate movement through the development to that park) and that open space provision in the locality otherwise is adequate.
Dr Hassall (who was called by the first co-respondent) and Mr Chenoweth (who was called by the appellants) agreed in their first joint report that:
“The part of the subject land formerly within the QEC easement is not nor has been previously available for public recreation or open space enjoyment. Electricity easements have often been dedicated as public open space where the presence of the powerlines is regarded as an unacceptable constraint to residential development in future urban areas. However the constraint is no longer relevant once the powerlines are removed.
…
Although the Greendale/Great Southern land development does not propose any public open space areas on the subject land, it nonetheless meets accepted space service standards, since all proposed new allotments will be within approximately 200 m (easy walking distance) of a recreation park, and the Carindale District west of the Gateway Arterial is relevantly well served by parks and open space. In this context it is also noted that:(a)Grand View Place Park contains a flat grassy field suited to a range of activities, and has potential for embellishment (although through community infrastructure charges) for community assets such as playgrounds and picnic areas; and
(b)the eastern part of the subject land, within the waterway corridor, is also proposed to remain as undeveloped private open space, albeit not accepted by Council as a dedicated public parkland contribution.”
In their written submissions counsel for the appellants volunteered that “the appellants readily accept that Carindale is well served by existing parkland and open space provision”.
In short, given the adequacy of open space provision, it would seem sensible for the Council to take a monetary contribution, which could fund the embellishment of those open space areas, rather than insist on yet more land being dedicated for open space purposes.
Local planning may be used to identify lands which are intended to be brought within the park network. City Plan states that[4]:
“Where lands are intended to be included in the park network and come in the public ownership at some stage in the future, these may be noted on the Local Plan maps. Some additional privately-owned sport and recreation facilities may also be required to cater for increased recreation demands.”
Although the superseded Local Plan mapping depicted a “desirable local sports facility” and “desirable parkland” in the northern section of the land, and adjoining land, that indication was removed in the current Local Plan map presumably, as was submitted for the co-respondent, because Greendale Place Park is in place.
[4]City Plan, Chapter 4, p 288, s 4.2.2.
The version of the PSP which was in force at the time the application was made (and also at the time of Council’s decision and the institution of this appeal) did not suggest any requirement for additional park land on the subject site. More recently, in July 2009, the Council adopted a later version of the PSP. That version contains a community facilities network plan which includes a proposal to:
“Provide sub-district/district level sport infrastructure in existing park on Greendale Way in Carindale.”
The infrastructure map (Map 4.9) shows a diamond shape “D3” designation which partly covers the site. That indicates “land acquisition and embellishment”. Appendix L of the policy contains a calculation of charges. It describes the intent for “D3” park as “acquire and embellish land with district informal recreation and sporting infrastructure”. The desired parkland area said to be 10 hectares. The park is similarly described in Appendix G of the new PSP.
The policy suggests possible future land acquisition for park purposes but, despite that change, the Council has not taken any steps towards acquiring any part of the subject site for the expansion of Grand View Place Park. Through its counsel it denies any interest in doing so in this case. The Court cannot require the Council to exercise its acquisition powers although it could, in an appropriate case, require the developer to dedicate part of a site for park purposes. The prospect of requiring or acquiring part of the subject site for park purposes was considered in the report and recommendation to the Council on the subject application, but was rejected. The report and recommendation stated, in part:
“It is the assessment manager’s opinion though that the parkland and open space available in this location far exceeds most other Brisbane areas due to the location of the Belmont Hills Reserve and the linear park associated with the Bulimba Creek system.”
Mr Chenoweth and Dr Hassall agreed, in their supplementary joint report, that a 4,000 m2 expansion of Grand View Place Park into the subject site could not, per se, achieve the size required for a D3 park. The subject land is suitable for a larger park, in the sense that it is cleared open grassland which meets the location and access criteria for a park of this nature, but the land is constrained for development as a district level sports park due to its moderate slopes, requiring significant earthworks to construct playing fields. Those earthworks would probably conflict with the recently constructed recycled water pipeline over part of the site.
Further, the table in the supplementary joint report shows the presence of six district or higher level sports park, some of which are privately owned, within five kilometres of the subject land, and a seventh within six kilometres. The number, size and quality of these facilities taken together illustrates how well the subject land is generally situated with respect to convenient sports parks.
The primary function of the PSP is to calculate the quantum of monetary contributions. The suggestion that Grand View Place Park should be expanded to become a district level facility has not been reflected in any amendments to the local plan, or to any other provision of the planning scheme itself. In their written submissions, counsel for the appellants accepted that “there is less than clear guidance” as to whether a district level park is to be provided in the vicinity of the subject land.
The decision in this appeal must be based on the laws and policies applying when the application was made, although the Court may give weight to any new laws and policies the Court considers appropriate[5]. The weight to be attached to any new law or policy is a matter for Court. The laws and policies which applied as at the date of the application, and indeed as at the date of the Council’s decision and subsequent commencement of this appeal, did not contain any requirement that Grand View Place Park be extended on to the subject site. Given the admitted lack of clear guidance, that the change in the policy has occurred at a relevantly late stage and that the evidence otherwise establishes the adequacy of park provision in this locality, I am not prepared to afford significant weight to the latest provisions of the PSP concerning an expansion of Grand View Place Park.
[5]Integrated Planning Act 1997 (Qld), s 4.1.52(2)(a).
Mr Chenoweth’s support for a north/south linear parkland dedication, through the subject site, relies not so much on any identified need for a greater quantum of park, but rather on what he saw as a particular opportunity to complete the missing links in what could be a continuous linear north/south open space provision in the locality. Mr Brown (the town planner called by the appellants) was of a similar view. The feature of the locality upon which the appellants rely is the linear tract of generally vacant land which was previously the subject of QEC easements.
The QEC easement land was shown on the local plan map which was in force on the day the application was made as well as on its predecessor[6] and its successor[7] The existence of the powerlines and easements would obviously have had an effect upon the development potential of that land. Unsurprisingly, much of it became open space in public ownership. The Council has obtained some 37.71 hectares of it and there are a number of parks located within that land[8]. There is the opportunity to provide the “missing links” if the subject land and the co-respondent’s land immediately to the south are developed in a way which dedicates the former QEC easement land to public open space Land to the north and south of those “missing links” is included in the parkland area under City Plan[9]. That such an opportunity exists does not however, of itself, lead to the conclusion that it will or should be realised or that the developer should bear the burden of that.
[6]The Local Area Outline Plan under the former Brisbane Town Plan.
[7]The version of the local plan which became effective on 1 August 2008.
[8]See Ex 13, pg 10, Figure 2.
[9]See the Area Classifications.
It would be open to the Council to acquire the land for that purpose, but it has taken no steps towards doing so and, through its counsel, disavows any interest in doing so. It has already been noted that the prospect of acquiring open space was considered, but rejected, during the development assessment process. It has also been observed that there is an adequate supply of public open space in the area and that the developer will, through the conditions of approval, be required to make a significant financial contribution.
There is nothing in City Plan and, more particularly, in the local plan, which evinces an intention for continuous parkland along the whole of the former QEC easement. This cannot be dismissed as simply an accident or oversight, explicable by the former presence of the powerlines and easements. Nor is the acquisition of other parts of the QEC easement land, including parts previously shown within the potential development area[10], to be taken as a defacto policy or a planning intent to acquire the rest of it.
[10]See the now superseded Local Area Outline Plan and the version of the Local Plan map current when the application was made.
Examination of the planning documents reveals a differential treatment of different parts of the QEC easement land. While much of it is now within the parkland area, some is within the conservation area, while the subject site is within the emerging community area and the site to the south is within the low density Residential Area. Further, while much of the QEC easement land (but not that on the subject site) is now left blank in the Local Plan map, consistently with provisions referred to later, the Local Plan map current at the time the application was made, showed different parts of the QEC easement land as variously subject to the following designations:
·Potential development area
·Area subject to environmental and scenic constraint
·Open space
·Environmental and waterways corridor
·Urban nature parkland
·Desirable urban nature parkland
I do not accept Mr Brown’s proposition that the QEC easement land on the subject site was not designated as a corridor because of the entrance of the easement[11].
[11]See T 4, pp 62-64.
The earlier Local Plan outline plan had also taken a differential approach to designating the various parts of the QEC easement land. The Local Plan map, current at the time the application was made, showed an area of desirable parklands in the northern part of the site (and adjacent land) but did not indicate any planning for continuous parkland/open space/environment corridor that part of the QEC easement which traversed the subject site and carries to the immediate south. It included that part of subject land which was affected by the QEC easement in the potential development area. No designation, other than “potential development area” appears on the subject site in the most recent version of the Local Plan map.
There is not a common planning intent which applies to all parts of the former QEC easement land. It was submitted, on behalf of the appellants, that “connectivity” between areas of open space is an important consideration, yet the Local Plan does not disclose a strategy of a continuous linear open space provision along the entire length of the former QEC easement land. It could easily have so provided if that was the intention. The planning scheme does not provide the basis for a reasonable expectation that the balance of the former QEC easement land will be required to be preserved from development.
The co-respondent does accept the desirability of providing the opportunity for members of the public to traverse the subject site in order to get from one area of park to another. It has designed the layout and street pattern of its proposed subdivision in order to facilitate that. That, I accept, is a reasonable, adequate and appropriate approach in the circumstances[12].
[12]I also note that Dr Hassall and Mr Chenoweth agreed, in their joint report, that the proposal satisfies page 18 of the Subdivision Code dealing with easement networks.
The north/south connection relies upon development of the land to the south. That land is too steep to provide a pathway running in a direct north/south direction. It would need to incorporate for some zigzagging to achieve appropriate grades. The co-respondent has a concept plan to that effect.
In their first joint report, Dr Hassall and Mr Chenoweth recommended that the road reserve be widened to 19-20 m to facilitate a “landscape avenue” link from Grand View Place Park in the north to Alderbury Place Park in the south. While Dr Hassall would see that as a better outcome, he did not regard the recommendation as being necessary in order to achieve a connection, since the 16 m wide road reserve, as designed, was sufficient to construct the usual pathways on both sides of the road. Mr Chenoweth maintained that something more should be provided for the landscape avenue link, but the plan, as approved, would fulfil a link function for people to get from one park to another.
As for the contention that more should be provided for pedestrians and cyclists, Dr Hassall’s evidence, which I accept, was to the effect that:
(a)there are no pathways, bike paths or other infrastructure in the existing park to the south;
(b)the park to the south has a moderate north/south slope;
(c)there is no bikeway or path in Grand View Place Park, other than a path meeting the gazebo and play equipment;
(d)the slope between the existing parks was generally too steep for bike riding between them; and
(e)there is no need for a shared bike/pedestrian path arrangement.
It may be noted that there is a bikeway network along the Bulimba Creek Corridor, and pathways on Greendale Way.
Whilst I can appreciate that Mr Chenoweth thinks that it would be a shame to pass up the opportunity to obtain continuous parkland. I do not consider that the development application ought be refused or required to be amended in order to provide that continuous parkland. I accept and prefer Dr Hassall’s evidence which satisfies me that the proposal is not deficient in these respects. In particular, there is no need for public parkland on the site either to provide a greater quantum of public open space or to provide for north/south movement between existing parks. As Dr Hassall pointed out in the joint report, the dedication of the former easement land would involve a public cost, through ongoing embellishments and maintenance costs, and “the most viable and cost effective outcome … is to provide a monetary contribution…”. Similarly, Mr Schomburgk (the town planner called by the co-respondent) expressed the view, in the joint report of the town planners[13], that a monetary contribution would provide better community benefits in the circumstances. I accept that evidence. The merits of requiring a monetary contribution in these circumstances is sufficiently strong to warrant approval notwithstanding any conflict which might be thought to arise by reason of the failure to provide on-site public parkland.
[13]Para 5.9, last bullet point.
There was some dispute about the proposed arrangements for protecting the vegetated area at the eastern extremity of the site. It is proposed for that to be included with a lot as private open space with appropriate management obligations. Mr Chenoweth would prefer to see it in public ownership, which he saw as a more appropriate response for the long term management of the residential/open space interface. The Council shows no interest in assuming that responsibility. The preservation and management of vegetated areas within private open space is not novel. I am satisfied that the subject area can be managed appropriately as private open space. The proposal, in this respect, is acceptable.
Ecological corridor
It has already been observed that the part of the subject site which lies to the east of Greendale Way is, in the main, cleared grassland, with a vegetated area at the eastern extremity of the site, in an area proposed for private open space. Unsurprisingly, the ecologists agreed, in their first joint report that, in relation to flora:
“Previous and ongoing land uses within the site have significantly reduced the flora structure and composition of the site. The disturbance footprint associated with the proposed development will not impact on any regionally important vegetation. The vegetation in the east should be clearly defined as a no-go area during the construction phase.
The only vegetated part of the site providing some floristic value will be wholly retained as part of the proposal. The vegetation to be retained should be subject to a rehabilitation exercise.”
Similarly, in relation to fauna, it was agreed that:
“The majority of the site has been subject to extensive vegetation clearance. As a consequence, the majority of the site supports non-native flora, mainly exotic grasses (which appear to be regularly slashed). This habitat type does not support habitat for a diverse fauna assemblage. The proposed development is contained within the disturbed grassland habitat.
The only remaining area of native vegetation, and the more structurally diverse fauna habitat, is restricted to the relatively narrow band along the sites sub-eastern boundary. No development is proposed within this habitat type
…
The band of native vegetation along the eastern side of the site is the only habitat on the site which supports potentially suitable habitat for fauna species listed as rare or threatening under either the NCA or the EPBCA. No development is proposed within this habitat type. Of the rare and threatened fauna considered, none would be regarded as resident within that part of the site, with any potential occurrence being irregular at best.”
Similarly, Mr Caneris (the ecologist called by the appellants) acknowledged in his report that “the disturbance footprint associated with the proposed development will not impact on any regionally important fauna habitats” and “the only vegetated part of the site currently providing notable habitat value is being retained as part of the proposal”.
Notwithstanding those matters, the appellants contend that the site is of importance “in terms of its potential for fauna movement in the local landscape”[14] particularly between Belmont Hills to the north and Mount Petrie to the east of the Gateway Motorway. Fauna underpasses, beneath the motorway, are being constructed at various points, including one which is proximate to the eastern extremity of the co-respondent’s land to the immediate south of the subject site.
[14]Ex 14 at [2.7].
A habitat linkage between Belmont Hills, Bulimba Creek and Mount Petrie is provided for by the Spring Creek system within the local plan area. That habitat linkage is identified in the Council’s planning documents. Neither the subject site nor the co-respondent’s land to the immediate south, form part of that habitat linkage. The dispute was as to whether the subject site (and indeed the site to the south) ought be developed in a way which provides for a further habitat linkage, in addition to the Spring Creek System and, if so, what form that linkage should take.
In the first joint report of the ecologists it was agreed, in relation to ecological corridor issues, that:
“The strip of habitat along the site’s eastern boundary contributes to a band of vegetation of varying width which extends from the southern tributary of Spring Creek (vicinity of Oakley Street), northwards along the western side of the Gateway Motorway corridor to the site. Habitat along the site’s eastern boundary represents an area of comparatively higher form of habitat value as there are significant areas of disturbance and degradation between the site and the southern tributary of Spring Creek.
The aforementioned band of habitat adjacent to the western site of the Gateway Motorway Corridor (including eastern end of the site), supports habitat which could facilitate fauna movement from under the Gateway Motorway (via culverts and “fauna underpasses”) into and out of the Spring Creek Corridor system. The Spring Creek network of riparian/wetland/waterway habitats supports the potential for fauna movement between the Belmont Hills bushlands (to the north of the site) with those of the Mount Petrie area (to the east of the site and the Gateway Motorway Corridor). It is possible for all ground dwelling fauna movement through the Spring Creek Corridor to be undertaken (although current conditions may not be optimal within some sections), without the requirement to cross roads (as underpass opportunities occur throughout the system).”
In the first joint report, Mr Caneris acknowledged that “fauna movement currently and in the future is compromised in the eastern precinct due to roadways and fences and existing housing to the north of the site”.
The primary position of the respondent and co-respondent is that, given the planning for the Spring Creek system, the subject site is not required to provide or contribute towards a further ecological corridor. In the alternative, they submit that the preservation of the strip of habitat along the site’s eastern boundary is adequate for this purpose. The appellants, on the other hand, argue that:
· there is evidence of fauna traversing the subject site, and the site to the south, in their presently undeveloped state;
· development of the subject site (and that to the south) should occur in a way which preserves fauna movement through the site;
· the former QEC powerline easement should be preserved and rehabilitated as an ecological corridor.
It has already been observed that the Spring Creek linkage system is well-recognised in the Council’s planning documents. That includes in the Strategic Plan and the Local Plan. The system was designated “environmental waterways corridor” on the local plan map (Map B) at the time the development application was made. The current version of the map shows only a portion of that system. Much of it is in an area left blank on the local plan map. That is unsurprising, given that those parts of the system have already been secured. City Plan provides that[15]:
[15]City Plan, Chapter 4, p 287.
“For some parts of a local plan area, more localised planning direction is not necessary. These locations are usually left blank on the local plan map. The underlying area of classification should be used to ascertain the preferred land use intent for these locations and prevent incompatible development. Parts of the local plan that are likely to be dealt with in this manner are:
· lands to be retained in the Greenspace system;
…
Environmental and scenic constraints or other elements are generally not shown over these lands, as this information is not necessary to inform development proposals, as urban development is not envisaged/as already occurred, over these lands. These constraints will be indicated however where contributing to consideration of connectivity or integration issues, or where consideration of such constraints needs to be triggered by development proposals on adjoining sites;
In addition, a Local Plan only includes information that varies or is in addition to the generic information in City Plan. Such generic information, such as wetland and waterway mapping, Heritage Places and other city-wide mapping and provisions is not repeated in the local plan, but still has equal applicability within the local plan area.”
None of the subject land is left blank, it is all within the Potential Development Area.
In contrast to the Spring Creek system, the appellants’ proposal for a vegetated linkage through the subject site is not (and has not been) reflected in any mapping at any level within City Plan. Further, the fact that the area of the former QEC easement immediately to the south of the co-respondent’s southern allotment is left blank in the latest version of the local plan map, suggests that it was not thought that any connectivity or integration issues would be triggered by development proposals on adjoining sites.
It was contended, on behalf of the appellants, that the planning scheme maps do not deal with ecological constraints in an exhaustive way and are not conclusive.
The Strategic Plan discusses Greenspace values in s 4.1.2.1. One of those values is “corridor value” which is described as:
“Providing for wildlife movement and refuges, habitat connectivity, maintenance, regional green space links, enhancement of biodiversity and ecosystem functioning, water quality protection, viability of ecological processes, screening or separation between incompatible activities, drainage/floodway areas with recreation resource potential, and linking land with open space and recreational value.”
The Strategic Plan goes on to provide that:
“Larger tracts of land with these values are identified on Map B – Greenspace system values (at the end of this chapter). Note that smaller areas may have important Greenspace values even if they are not shown.”
Map B identifies both Balmont Hills and Mount Petrie as having biodiversity value and natural scenic value and shows the Spring Creek system, which provides a link between them, as having corridor value. It was pointed out, on behalf of the appellants, that even though the subject site is not shown as having corridor value on Map B, that does not mean that it might not be one of the “smaller areas” which have important values even though not shown on Map B. Emphasis was placed on the provision of the Strategic Plan which states that “once lost, green space is difficult to regain”. Why a north/south corridor providing another habitat link between Belmont Hill and Mount Petrie (if intended) would have been dealt with as an unmapped “smaller area” is not clear.
The components of the Greenspace system are discussed in s.4.1.2.2 of the Strategic Plan and shown on Map C. Greenspace corridors “link and unify the Brisbane Green space system”. As with Map B, the site is not shown as a Greenspace corridor, even though the Spring Creek system is. Mount Petrie is shown as part of the environmental protection component, while Belmont Hills is mainly part of the conservation and recreation components, with a smaller part in the environmental protection component. The appellants drew attention to that part of s.4.1.2.2 which provides:
“The major lands in these components are shown on Map C – Brisbane Greenspace System (at the end of this chapter). Many smaller components will be identified overtime as part of local plan development or development assessment processes.”
The appellants also drew attention to another part of s 4.1.2.2 which provides:
“Green Space corridors and regional green space links of strategic significance are shown on Map A – City Structure, Map B – green space System Values and Map C – green space System. Other corridors with local significance exist throughout the City and their functions will be identified during local plan and development assessment processes. It is intended to progressively acquire parkland at strategic locations along waterways throughout the city.”
The appellants again pointed out, consistently with those passages, that Map C should not be regarded as exhaustively identifying corridors. It shows those of “strategic significance” whilst “smaller components” of those with “local significance” will be identified during the local plan and development assessment processes. It is not clear why one linkage system (the Spring Creek system) between strategically significant areas would be mapped as of strategic significance but another (that contended for by the appellants) not, if it also was intended to provide a linkage to the same areas.
It was also pointed out that the Strategic Plan provides, in relation to land within the Emerging Community area, that:
“Some parts of the emerging community area…are unsuitable for urban development where there is a need to protect or preserve:
·areas of significant historical, architectural, typographical, landscape, scenic, bushland, ecological, social, recreational or cultural interest;
·fauna habitats and fauna movement corridors;
·wetlands and waterway corridors.
…
·areas supporting significant biodiversity values and elements, particularly the diversity of significant fauna, flora and vegetation habitat types.
The proposals for development on land subject to these considerations must demonstrate that the values of the site and locality have been properly considered and will be protected.”
Similarly, s 4.2.2 of the Strategic Plan provides that maintenance of land with environmental or scenic value is one of the components of the Residential Neighbourhood Strategy.
The appellants also drew attention to paragraphs 3 and 4 of the Desired Environmental Outcomes for the Emerging Community Area which are as follows:
“3.Land is developed in a sustainable manner to reflect the general form of the city by integrating development sites, community infrastructure, greenspaces and important natural features.
4.significant historical architectural, typographic, landscape, scenic, social, recreational and cultural features and associations, as well as fauna and flora habitats, fauna movement corridors, wetland and waterway corridors, are protected and enhanced and incorporated into the overall development of the area.”
The respondent and co-respondent also, on the other hand, drew attention to paragraph 2 of those Desired Environmental Outcomes which provides:
“2.Land is developed in an orderly sequence, and in accordance with a neighbourhood structure plan and/or local plan.”
The respondent and co-respondent relied, in particular, on the Local Plan. The Local Plan component of the City Plan is said to provide “detailed guidance for development outcomes across particular locations of the city”. Local plans override any other part of the City Plan with which they conflict[16]. Not all land within the city, and covered by the Strategic Plan, is the subject of a local plan. Further, not all local plans are alike. The subject site falls within a local plan and, more specifically, within one of the local plans for outer suburbs. City Plan has particular provisions relating to those types of local plans in section 4 of Chapter 4.
[16]City Plan, Chapter 4, p 3.
The outer suburbs are said to have been planned for in greater detail to, amongst other things, protect environmental features of the localities[17]. Implementing those local plans is said to “assist in achieving the purpose of the structure planning code and the Desired Environmental Outcomes for the emerging community area”. In order to achieve that local plans for outer suburbs identify a number of elements, including environmental and scenic constraints, City Plan provides[18]:
[17]City Plan, Chapter 4, p 287.
[18]City Plan, Chapter 4, p 287, s 4.2.
“The Local Plan will specifically refer to these elements where they apply – either in the text or the accompanying maps…”
Environmental and scenic constraints are mapped in those kinds of local plans and are generally excluded from identified Potential Development Areas. Section 4.2.1 of Chapter 4 of City Plan provides, in part, as follows:
“Land in a Local Plan may be subject to a variety of significant environmental and scenic constraints. Of those constraints, the following are mapped and discussed within the Local Plan, in addition to other references within the City Plan:
·waterway corridors;
·habitat areas and ecological corridors;
·landscape features;
Individual local plans may also identify other scenic and environmental constraints particular to that local plan area. City wide environmental and scenic constraints such as wetlands may also affect the local plan area, but are not duplicated within the local plan.”
City Plan goes on to describe habitat areas and ecological corridors as including fauna movement corridors. It then states:
“Local plans have delineated these features in order to identify habitat areas and ecological corridors that are not suitable for urban development and are therefore not included in a Potential Development Area…”
It was submitted, on behalf of the appellants, that there is some tension between those provisions of the planning scheme which suggests that not all constraints are mapped and the provision that certain features, including fauna movement corridors, have been delineated in the local plans for outer suburbs in order to identify areas which are not suitable for urban development. It was further submitted that the “tension” should be resolved in favour of treating the Local Plan as less than exhaustive. It was pointed out that the Local Plan does not mention the presence of an endangered plant, Zieria furfuracea, which Dr Olsen found in the vegetated area at the eastern extremity of the site, which is proposed for retention. The dispute in this case however, relates not to a particular plant or other vegetation of significance first identified upon site investigation, but rather to planning for ecological corridors, which is something in respect of which local planning has evidently been done at the local plan level. It was also pointed out that the Structure Planning Code, in requiring the identification of constraints, refers to the fact that a Local Plan “may” already identify “a number” of the constraints. In this case however, the Local Plan is of a particular kind (for an outer suburb) and has considered corridor requirements.
The principles governing the construction of planning schemes are well established and include that they must be read as a whole, broadly rather than pedantically or narrowly and with a sensible, practical approach. Construed in that way, there is no significant tension.
The Strategic Plan maps identify Green Space values and components of the Green Space system at a strategic level. Smaller and locally significant components are left for identification either during local planning (if there is any) or development assessment. Where land falls within a local plan, it is subject to more detailed planning. That might not pick up everything of significance, but where the area is within a local plan for outer suburbs, the identification and protection, at the local level, of waterway corridors, habitat areas and ecological corridors and landscape features in particular is done through the local plan making process, in addition to any other reference to those aspects within City Plan. That was done in the Carina/Carindale Local Plan[19]. Individual local plans may (or may not) also identify other scenic and environmental constraints particular to that local plan area.
[19]Which, for example shows the Spring Creek system in addition to the mapping of that system in the Strategic Plan.
The local plans do not however, necessarily duplicate constraints, such as wetlands, which are already identified, at the strategic level, and some areas are left blank in the local plan where more localised planning direction is not necessary. Accordingly, for example, the mapped waterway at the eastern end of the site is not duplicated at the local plan level, while parts of the Spring Creek system, which are shown on the Strategic Plan maps and have otherwise been secured, are left blank in the Local Plan map.
The ecological corridor contended for by the appellants is not planned for at either the strategic or local level. Further not only does the Local Plan not identify any corridor over the subject site, it also includes the site (including the area of the former QEC easement) within the Potential Development Area. Habitat areas and ecological corridors are said not to be suitable for urban development and are generally not to be included in such areas. Similarly, potential residential development yield in potential development areas is said to be:
“Calculated excluding parts of the site that are not within a potential development area (these usually include habitat areas and ecological corridors and waterways, but may also include other environmental and scenic constraints).”
In the subject case it is significant that:
(i) the only constraint, mapped at a city wide level, is the waterway at the eastern extremity of the site;
(ii) the site is within the area covered by a local plan which descends to detailed planning, including with respect to environmental corridors, but does not indicate any existing or planned corridor of the kind contended for by the appellant, and
(iii) the site is included within a Potential Development Area, which is a description within which fauna habitat and fauna movement corridors are generally not included.
It is evident that limited fauna movement[20] does occur across the site. That is unsurprising, given the significant habitats to the north and to the east of the motorway corridor and the undeveloped nature of the site. Mr Caneris also referred to the “potential” for the land to be used by a range of fauna[21]. No doubt fauna also moved across other lands in the area prior to their development. That does not, of itself, mean that each site is, or is part of, a significant fauna movement corridor.
[20]See Agnew, Day 2-66, Watson T2, 54 l 10.
[21]Ex 14 at [2.8].
Dr Watson pointed out that the Bulimba Creek Waterway Management Plan (2005) does not identify the site as a “fauna movement corridor”, a “fauna movement area” or “koala bushland”. Indeed no corridor value has been attributed to the site in any published study or planning document.
Dr Olsen pointed out that, from a vegetation perspective:
“Other than the retained vegetation on the eastern side of the subject land, only weed dominated landscapes, cleared areas, urban development or poorly conceived landscaping connect the subject land to any substantial bushland remnants in the local area.”
As Mr Hughes SC submitted, the fact that fauna may have resort to an undeveloped allotment otherwise designated for urban residential development does not, of itself, give rise to a town planning imperative or requirement that the land or part thereof be preserved for a fauna corridor, particularly where the relevant planning documents have provided for that corridor function to be served by other land.
The evident planning strategy is not necessarily to preserve any and all fauna movement opportunities on all land within the local plan area, but rather to permit the area to be developed for residential purposes, while providing for fauna movement via the Spring Creek system.
Mr Caneris was critical of aspects of the Spring Creek system and advocated the need for an additional linkage system. I accept that there are some aspects of the Spring Creek system which could be improved, and that as Mr Agnew accepted[22] having alternatives is obviously of potential benefit from an environmental perspective, but I also accept the evidence of Mr Agnew[23] and Dr Watson[24] to the effect that the Spring Creek system is adequate[25]. As was submitted for the co-respondent, planning involves resolving competing claims for land use. Not all land should be developed for residential purposes, but not all available land should be reserved for open space, habitat areas or corridors. Given the adequacy of the Spring Creek systems I would not be minded to change or augment the corridor planning evident in the planning scheme maps even if it was appropriate for me to do so. I do not accepted Mr Caneris’ view that the ecological outcome would be unacceptable in the absence of his preferred corridor.
[22]T 2, 82 ll 35-55.
[23]T 2, 65 l 58; T2, 68 l 40.
[24]T2, 60 l 55.
[25]Watson T2, 60 6 55; Agnew Tw, 65 l 55.
Even if the developer were required to provide for continued fauna movement over the site, it would not necessarily follow that that should be by way of a north-south connection along the former QEC easement land, as the appellants contend.
Indeed, in the first joint report of the ecologists, Mr Caneris did not advocate a corridor or linkage along the former QEC easement land. Instead he advocated a linkage along the north eastern boundary of the site, linking the eastern end of Grandview Park to the proposed open space at the eastern extremity of the site, across the entrance road to the development. That proposal was rejected by Mr Agnew and Dr Watson, who were opposed to “funnelling” fauna in a relatively narrow corridor between residential housing and across both the entrance road to the development and Greendale Way (in order for fauna to travel to/from the Belmont Hills bushlands). I accept and prefer their evidence to the effect that the east-west corridor initially advocated by Mr Caneris is not appropriate.
Following that meeting, the ecologists were asked to reconvene to consider the possibility of a north-south connection through the site. That became Mr Caneris’ preferred option. He says that he did not initially advocate it, because he thought that the co-respondent’s land to the immediate south would be developed in a way which would not link in with such a corridor. Indeed much of the discussion in the subsequent meeting centred on the co-respondent’s land to the south, rather than on the subject site. Mr Caneris referred to generic NALL mapping to suggest that the vegetation on the land to the south had some ecological importance.
The site to the immediate south is densely vegetated and used by fauna although, as Mr Agnew pointed out in the second joint report, it does not support habitat which typically sustains a diverse fauna assemblage. The vegetation is dominated by a range of weed species. Dr Olsen, whose evidence I accept, does not consider that site to have any positive environmental flora values. Further, as he explained, the use of that site by fauna serves to promote the spread of weed species. In short, the use of that area by fauna is “precisely the problem”. Dr Olsen attested that the removal of the existing vegetation on that site would be a positive for the surrounding bushland landscapes. A north-south linkage to that site, in its current condition, is not desirable from a flora perspective.
It is, of course, possible that future development of the site to the south might occur in a way which provides a revegetated and rehabilitated north-south corridor to link with any such corridor which might now be required on the subject site, but no development application or approval has, as yet, materialised.
There was debate between Mr Caneris on the one hand and Dr Watson and Mr Agnew on the other as what is an appropriate corridor linkage through the site, were one to be required. Mr Caneris favoured a north-south linkage along the former QEC powerline easement land, while Dr Watson and Mr Agnew saw greater merit in providing for movement via the vegetation proposed to be retained and rehabilitated at the eastern extremity of the site.
It has already been noted that the ecologists agreed, in their first joint report that the band of habitat adjacent to the western side of the Gateway Motorway Corridor (including the eastern end of the site) supports habitat which could facilitate fauna movement from under the Gateway Motorway into and out of the Spring Creek corridor system. That band of vegetation runs in a north-south direction, affording the opportunity for fauna movement north to Greendale Way. With the implementation of a Rehabilitation Plan the vegetation in the eastern extremity of the site will be enhanced as a fauna habitat. Mr Agnew and Dr Watson saw that connection as superior to the centrally located north-south connection advocated by Mr Caneris, because:
(a) it extends from Greendale Way in the north to Spring Creek in the south and can augment the values of the primary corridor a shorter distance and more direct path for fauna to travel;
(b) it provides a direct interface with fauna underpasses and, in relation to the underpass closest to the subject site is a shorter and more direct connection;
(c) the connection is already generally vegetated and rehabilitation could readily be carried out;
(d) the connection is already used by fauna. Many of the mature trees exhibit evidence of koala usage. Fauna and flora species of conservation significance are known to occur there;
(e) while the north-south movement to/from the bushland to the north would involve a crossing of Greendale Way, the crossing point is close to the underpass, in a location where vehicles are likely to be travelling at lower speed.
Mr Caneris, on the other hand, was not prepared to rely upon that linkage. Criticism was made of the fact that it relied upon land within the jurisdiction of the motorway authority, such that its ongoing management for environment purposes would be subject to the road infrastructure requirements[26]. It was pointed out, on behalf of the respondent and co-respondent however, that the motorway authority has demonstrated its concern for environmental concerns[27] and that the involvement of the motorway authority might reduce the cost burden to the Council of future management. Further, notwithstanding its management of other parts of the further QEC easement land the Council has shown no interest in assuming responsibility for the management of the centrally located north-south corridor favoured by Mr Caneris.
[26]And vehicles traverse it at times.
[27]See Ex 17.
Each of the proposed north-south corridors involve fauna being required to cross Greendale Way, which is a suburban route. The crossing point for the Corridor favoured by Mr Caneris was criticised as being on a section of Greendale Way where vehicle speed is relatively unconstrained. Mr Caneris pointed out that measures could be implemented to reduce speed at that point, but there was no evidence that the Council, as the road authority, plans or would countenance that on this suburban route. The crossing point for the alternative corridor favoured by Mr Agnew was criticised as being at a point where motorists would just be emerging from an underpass (affecting, it was said, visibility) and preparing to accelerate up a hill. Neither Dr Watson nor Mr Agnew were as concerned about that. Mr Agnew countered that speed was likely to be lower, in accordance with his observations. Mr Caneris pointed out that his preferred corridor was up to 60 m wider and linked with the bushland to the north at a more central location. Mr Agnew did not see that as dictating its adoption. Dr Watson did not regard the location of the corridor entry point as important[28].
[28]T 2, 53 l 15.
Neither of the proposed north-south corridors are ideal, but the evidence Mr Agnew and Dr Watson which was more balanced than that of Mr Caneris and which I generally prefer,, satisfied me that to the extent that the developer ought be required to provide for fauna movement, the retention of the vegetation at the eastern extremity of the site is an appropriate, adequate and acceptable provision in the circumstances.
Other Provisions of City Plan
The appellants also relied upon provisions of the Structure Planning Code, the Subdivision Code and the Biodiversity Code[29]. They rely on what they allege to be a failure to provide adequate connection to the open space network and a failure to respond to the “ecological corridor” of which the site forms part, to establish conflict.
[29]The appellants’ written outline states that they do not pursue alleged conflict beyond that dealt within in those submissions.
In particular, reference was made to:
(a) In relation to the structure planning code:
· The purpose of the code, which, amongst other things, seeks orderly development which preserves environmental assets;
· P1 of section 4 of the Code, which requires a Structure Plan;
· P2 of section 3, which requires proposals to enable ordered and co-ordinated development in terms of infrastructure, movement and park networks;
· Section 6.1.2, which refers to the identification of constraints, including local constraints by way of habitats and ecological corridors.
(b) In relation to the Subdivision Code:
· The purpose of the code which is, amongst other things, to ensure provision of an integrated open space system along major watercourses and areas of environmental significance throughout the city.
· Performance criteria and acceptable solutions in the code as amended after the application was made, particularly P1 and A1 (relating to integration of previous planning for an area and its surrounds), P2 (relating to the layout giving a neighbourhood a strong and positive identity by responding to open space network amongst other things), P3 (relating to neighbourhood design integrating with the surrounding area by, amongst other things, providing for the existence of corridors, networks and linkages) and P10 (relating to neighbourhood design providing well distributed and located parkland that, amongst other things, protects biodiversity values and features.
(c) In relation to the Biodiversity code:
· The purpose of the Code, which is to ensure that the ecological features and processes that underpin the biological, social, cultural and economic wellbeing of the city and protected and managed to ensure their long term viability;
· P1, which provides that ecological features and processes on or adjacent to the site must be protected, managed and restored, where necessary, to ensure their long term viability;
· P2, which provides that ecological corridors within or adjacent to the site must be identified and retained to create, maintain and/or improve connectivity between habitat areas and to allow wildlife movement between habitat areas.
For the reasons already discussed, I am satisfied that the proposal is consistent with the Local Plan and otherwise appropriately responds to the open space network (by a monetary contribution and a layout design which provides connection through the site to open space) and the ecological values of significance of the site (by rehabilitating and preserving the vegetation at the eastern extremity of the site). I am satisfied that, in the circumstances the proposal is not in conflict with the planning scheme.
Conclusion
I am satisfied that the provision of open space in a north-south corridor along the former QEC easement land is not required for recreation or ecological reasons. I am satisfied that the development is otherwise appropriate. The co-respondent has discharged its onus. The appeals will be dismissed.
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