The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Gold Coast City Council
[2010] QPEC 17
•9 March 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane v Gold Coast City Council [2010] QPEC 17
PARTIES:
THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE
(Appellant)v
GOLD COAST CITY COUNCIL
(Respondent)FILE NO/S:
1849 of 2009
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
9 March 2010
DELIVERED AT:
Brisbane
HEARING DATE:
22 & 23 February 2019
JUDGE:
Searles DCJ
ORDER:
The appeal be allowed;(1)
Conditions 8 to 12 set out in the Council’s Decision Notice dated 3 April 2009 be deleted as conditions of the Approval in paragraph A thereof;(2)
In substitution for the deleted conditions, the subject approval have as conditions those contained in paragraphs 1, 2, 3, 4, 5, 6, 7 and 10 in the Schedule to the Council’s Position Statement filed on 21 December 2009, plus a further condition reflecting the appellant’s offer contained in paragraph 21 of its written submissions dated 1 March 2010;(3)
The appeal be adjourned to allow the parties to prepare a Final Conditions document in accordance with the above orders; and(4)
(5) Liberty to apply.
CATCHWORDS:
PLANNING AND ENVIRONMENT – CONDITIONS APPEAL – where the council does not intend to rely upon the conditions originally attached to the Development Approval – where the parties seeks to impose a further set of conditions – whether the further conditions sought are appropriate.
Sustainable Planning Act 2009
Integrated Planning Act 1997
Hymix Australia Pty Ltd v Gold Coast City Council & Anor [2005] QPELR 583
Proctor v Brisbane City Council [1993] 81 LGER 398COUNSEL:
Brian Cronin - Appellant
Michael Williamson - Respondent
SOLICITORS:
Robbins Watson – Appellant
McCullough Robertson Lawyers - Respondent
[1] The appellant (Church) is the owner of certain land (the land) upon which it conducts Marymount College, a Catholic primary and secondary school with approximately 2,200 pupils. The school is said to be the largest Catholic school in Queensland with a catchment extending from the New South Wales border to about Broadbeach and well into the adjacent hinterland[1].
[1]Exhibit 2, page 40, paragraph 81
Appeal
[2] The Church appeals against part of the decision of the respondent whereby it approved the reconfiguration of a lot (five lot subdivision from four existing lots) on land described as Lot 5 on RP 183809, Lot 32 on RP 895806, Lot 23 on SP 100126 and Lot 33 on SP 100126 situated at 285-303 Burleigh Connection Road, Burleigh Waters, Gold Coast subject to conditions. The appeal, when instituted, was against Conditions 8 to 12 of the Conditions of Approval which are set out in the Notice of Appeal. In essence, they involved the appellant entering into a statutory covenant, to be registered against the land, obliging it to maintain the Covenant Area being an area of vegetation (vegetated land) the subject of the present dispute.
Council’s change of position
[3] By a Position Statement filed on 21 December 2009, the Council notified the court it no longer intended to rely upon Conditions 8 to 12 in its Decision Notice dated 3 April 2009. Instead, it sought the imposition of the further set of conditions in the Schedule to that Notice. That Schedule contains 10 conditions but Conditions 8 and 9 are the only ones in dispute. They are:-
“8. Transfer of open space
(a) The applicant must transfer to Council the areas of public open space listed below, as identified on the plans indicated (subject to any amendments required by these conditions):
Purpose
Conservation Area
Description on Plan
Approximate Area of Vegetation
Plan Reference
Plan Titled Proposed Lots 201, 202, 203 and Proposed Easement A in Lot 32 on RP 895806 and Proposed Easement B in Lot 5 on RP 183809 cancelling Lots 23 and 33 on SP 1001126, file Ref. 05061-07C, prepared by Schlencker Surveying and dated 20.5.08
(b) The land identified in paragraph (a) must be transferred in fee simple as ‘Public Open Space’ to Council of the City of Gold Coast as trustee.
(c) Council will hold the land in trust for community infrastructure (conservation) and may use the land, or permit the land to be used, for purposes that do not compromise the purpose for which the land is dedicated.
(d) The applicant must lodge the transfer document with Council at the same time as lodgement of the survey plans or, if no survey plans, are required, prior to the commencement of the use.
(e) Where survey plans are required, the applicant must provide Council with evidence of the transfer of the land identified in paragraph (a) within 30 days of the registration of the survey plant that shows either the entirety of the land identified in paragraph (a).
(f) The transfer of the land to Council must be at no cost to Council.
9Singapore daisy to be controlled
(a) The Environmental Weed, Singapore daisy (sphagneticola triolobata) must be controlled on the land to be dedicated to Council as public open space, to the satisfaction of an officer of the Natural Areas Management Unit of the Parks and Recreation Services Branch, prior to the dedication of the land occurring.
(b) Control of the environmental weed must be undertaken in a manner that recognises and protects the sensitive nature of the site.”
Condition sought by appellant
[4] The appellant opposes the imposition of the Council’s new proposed condition and seeks a condition, in essence, to cover the following offer which has been made by the Church to the Council:-
(a) Minimal use of the vegetated area, other than for nature study type school activity;
(b) A weed management program;
(c) Monitoring of ground water and geological testing as recommended by the hydrologists Messrs Bristow, Collins and Sutherland in their joint report prepared for this appeal[2]; and
[2]Exhibit 7
(d) There be no change to the vegetated land until such time as there is a future application which would, of necessity, require the assessment of the needs of the community for schooling and arrive at a balance with the ecological value of the adjoining land[3].
[3]Appellant’s submissions, paragraph 21
Nature of Appeal
[5] Pursuant to s 819(2) of the Sustainable Planning Act 2009 (SPA), this appeal is to be heard as an appeal pursuant to s 4.1.27 of the Integrated Planning Act 1997 (IPA) as if the SPA had not commenced.
[6] Accordingly, the appeal is by way of hearing anew by virtue of s 4.1.52(1) of IPA. As the Council does not now rely upon its original conditions, the court is now to consider the matter anew to determine what, if any, conditions should be included as conditions of the approval[4]. Any such conditions must, of course, satisfy the provisions of s 3.5.30 of IPA which provides:-
[4]Hymix Australia Pty Ltd v Gold Coast City Council & Anor [2005] QPELR 583 at 584, [1] – [4]
“Conditions must be relevant or reasonable
(1)A condition must –
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in respect of the development or use of premises as a consequence of the development or use of premises as a consequence of the development;
(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”
The Council does not contend that its proposed new conditions 8 & 9 are reasonably required within s 3.5.30(1)(b) above.
Order in relation to original Conditions 8 to 12
[7] Given the abandonment by the Council of reliance upon Conditions 8 to 12, I formally order that they be deleted as conditions of the subject Approval.
Onus of proof
[8] As was said in Hymix Australia Pty Ltd.[5], the typical conditions appeal is one in which conditions set by a local government as assessment manager ought ordinarily survive appeal by the developer if they satisfy section 3.5.30 of IPA. Here, the original conditions are no longer relied upon by Council and have been deleted from the approval. By operation of circumstances, the appellant has been relieved of its obligation of proving they do not satisfy s.3.5.30.
[9] The question then arises as to who bears the onus in relation to the imposition of the proposed new conditions sought. Given I am to consider anew whether any, and if so, what conditions should be imposed, each of the parties now carries the onus of persuading me that the condition/s each contend for should be imposed. Although any condition I decide to impose must satisfy s 3.5.30 of IPA, neither party carries the onus of establishing that the other’s proposed condition/s is/are unreasonable or irrelevant. That position does not detract in any way from my obligation to ensure s 3.5.30 is satisfied before I impose any condition/s.
The land
[5]Ibid [4]
The total area of the land the subject of the application for configuration is 43.58 hectares made up as:-
Lot 23 - 29.6 hectares
Lot 33 - 13.33 hectares
Lot 5 - .0501 hectares
Lot 32 - .6085 hectares
TOTAL - 43.58 hectares
The land is located generally at the corner of Bermuda Street and Burleigh Connection Road (also known as Reedy Creek Road) Burleigh Waters.
The relevant planning scheme is the 2003 Gold Coast Planning Scheme Version 1.1 (amended January 2007)[6]. Lot 23 is situated entirely within the Community Purposes Domain. A triangular portion of Lot 33 on the corner of Bermuda Street and Burleigh Connection Road is contained in the Industry 2 (Low Impact) Domain. This is the area the appellant seeks to put on one title to the intent that all land in that domain will then be on the one title. That is the new proposed Lot 201,[7] which is currently used as a sporting field and outdoor primary school play area. The proposed Lot 202 would then contain the entirety of the vegetated land, together with other land, all of which would then be in the Community Purposes Domain[8].
[6]Exhibit 2, page 9
[7]Exhibit 2, Attachment C
[8]Exhibit 2, Figure 10
Lot 32 is a long strip containing an open drainage channel that extends parallel to Bermuda Street adjoining the western boundaries of Lots 23 and 33. Lot 5 is a 0.5 metre wide access restriction strip that extends parallel to Lot 32. Lots 32 and 5 are both situated within the Public Open Space Domain. Presently Lots 23 and 33 comprise the school’s sporting fields with the north-western portion of Lot 23 and the northern portion of Lot 33 containing 18 hectares, or 41 per cent of the school site, being the vegetated land sought by the Council to be transferred to it pursuant to its proposed new conditions.
Surrounding context
The area surrounding the land was characterized by the appellant’s town planner, Mr Hall,[9] as follows:-
[9]Exhibit 2 at page 10
(a) Bermuda Street adjoins the western boundary of the subject land, while Burleigh Connection Road (Reedy Creek Road) is adjacent to the southern boundary. Both are declared State main roads with multiple lane carriageways;
(b) Directly to the west on the opposite side of Bermuda Street, is the Treetops Shopping Centre;
(c) The southern side of Burleigh Connection Road is characterised by light industrial/showroom land uses;
(d) The land to the north and east of the subject land generally comprises residential uses that are predominantly detached dwellings;
(e) Burleigh Town Shopping Centre is situated approximately 1.5 kilometres to the east of the subject land with light industrial/showroom land uses along Burleigh Connection Road in between;
(f) The closest significant tracts of vegetation are located over 700 metres to the south and east (the Burleigh Ridge), on the opposite side of Burleigh Connection Road;
(g) The subject vegetation on the application site is well removed from other areas of natural vegetation and does not form part of any vegetated corridor.
In summary, Mr. Hall says the immediate locality can be characterised as urban, comprising a mix of commercial, industrial and residential uses dissected by two major roads.
Flora experts’ joint report
The flora experts, Professor Rogers (Council) and Dr Olsen (appellant), produced a joint report[10] in which all matters of discussion were agreed, namely:-
[10]Exhibit 5
(a) the vegetated area is a wetland dominated by remnant vegetation conforming to the circumscription of the ‘Not Of Concern’ remnant regional ecosystem 12.3.35 with values that warrant preservation;
(b) areas of the wetland, principally the edges, have significant weed infestations primarily as a consequence of surrounding land use but none of those weeds currently pose a significant problem as to the viability and integrity of the wetland apart from Singapore daisy (spahagneticola trilobata) at the interface with the drain along Bermuda Street;
(c) the drain along Bermuda Street is of such depth and extent that the natural hydrological functioning of the wetland is impaired;
(d) current management practices have been effective in controlling other weeds;
(e) reducing the impact of the Bermuda Street drain is seen as an ecological imperative for the future maintenance of the viability and integrity of the wetland; and
(f) if it is considered that the current management practices of the wetland are inappropriate for its future viability and integrity, then the Gold Coast City Council or another appropriate authority should acquire the wetland.
The fauna experts’ joint report
Dr Phillips for the Council and Dr Ingram for the appellant provided a joint report[11]. They agreed on the following:-
[11]Exhibit 6
(a) The vegetation remnants function as important stepping stones by offering temporary refugia for a variety of fragile wildlife species;
(b) Patch size is an important consideration in terms of maintaining biodiversity, conservation values of remnant vegetation. In simple terms the bigger (larger) the better, the smaller more vulnerable to disturbance/edge effects;
(c) The proposed vegetated area is primarily a wetland dominated by remnant vegetation;
(d) The northern section of the vegetated land supports a flying-fox camp comprised mostly of black flying-foxes and grey headed flying foxes the latter of which is listed as vulnerable under the Commonwealth’s Environmental Protection and Biodiversity Conservation Act 1999;
(e) Although no development is proposed that would impact on the abovementioned roost, any future development that could affect it may need to be referred to the Commonwealth Department of the Environment, Water, Heritage and the Arts.
Subsequent to the Council’s abandonment of its original conditions, the experts further convened and produced a further joint report dated 22 January 2010[12] containing paragraphs (a) to (d) in the earlier report above together with the following:-
[12]Exhibit 3, Appendix 3
(e) They were generally supportive of any determinations by either the court or the parties that would see the conservation potential of the “approximate area of vegetation maximised” and;
(f) With respect to future management or transfer conditions as they relate to the “approximate area of vegetation” it may be a mistaken assumption that rehabilitation of the remnant to a perceived more “natural” state will also be good for the roost which may have been selected by the flying-foxes because of the present condition of the remnant.
Apart from those agreed matters, Dr Phillips expressed the view that vegetation remnants the size of the vegetated land are increasingly uncommon in the Gold Coast City urban landscape. Dr Ingram neither agreed nor disagreed with that because he did not have sufficient information to form a view but said that whether or not such areas were becoming uncommon did not detract from the significance of the vegetated land for fauna.[13]
[13]His report Exhibit 3, paragraphs 11 and 12
Town Planners’ joint report
Mr Hall for the appellant and Mrs Roughan for the Council provided a joint statement dated 10 February 2010[14]. In that statement they identified the relevant sections of the planning scheme which are reproduced in Schedule A hereto.
[14]Exhibit 4
Matters agreed by Town Planners
The town planners agreed on the following:-
(a) The proposed reconfiguration has the benefit of retaining the wetland area in one lot rather than extending it across two lots as is currently the case;
(b) The re-alignment of the boundary itself is not likely to directly alter any existing environmental values, and provides for a 30 metre buffer between the proposed Lot 201 and the vegetated area. Further, the subject application did not extend to any material change of use or operational work.
(c) The consequences of the re-alignment are likely to be that future industrial development of the proposed Lot 201 occurs (requiring either filling of the land or pile construction). In addition, as a result of the loss of playing fields currently occupying the area of proposed Lot 201, the re-configuration is likely to result in an extension of the school’s facilities on the balance of the site, the proposed Lot 202, which contains the wetland area;
(d) A significant number of aspects of the planning scheme are aimed at protected areas of identified nature conservation value and identified wetland areas. While the determination of the nature of the values on the subject land is a matter for other experts, the planning scheme identifies the wetland/vegetated area on the subject land as having significance. The land is designated as “Major Areas of Existing Bushland Committed to Development, which intends that development contributes to their functioning to the greatest extent possible given existing development commitments, but also acknowledges the potential for some loss of ecological value.
(e) The planning scheme identifies a planning intent for industry development over part of the subject land and the proposed reconfiguration facilitates its development for such purposes; and
(f) The provisions of the Nature Conservation and Natural Wetland Areas and Natural Waterways Codes are relevant to the assessment of the subject application.
Matters Town Planners disagreed on
Mr Hall for the appellant expressed the following views not accepted by Mrs Roughan for the Council:-
(a) Consideration of likely future impacts on the wetland area should be left to future application. The Community Purposes Domain specifically intends that land in that domain is retained for social facilities and important physical infrastructure and service establishments, including schools. Anticipated population growth will place increasing pressure on existing school facilities and suitable land for school purposes is a rare commodity. The disputed conditions would severely limit the ability of this site to accommodate the planning intent of the Community Purposes Domain;
(b) The planning intent of Industry 2 Domain notes that suitable land for industrial activity is a limited resource in the Gold Coast City area and that there is a need to secure lands for industrial manufacturing and storage activities, required to meet the industrial needs of the City;
(c) The Conservation strategy acknowledges that the subject vegetated land is committed to development and that conservation values need to be balanced against a need to facilitate the ongoing development of the school within the context of future applications;
(d) It would be inappropriate and unreasonable to preclude future development applications from nearly half of the school land and that any such prohibition would conflict with significant aspects of the Planning Scheme;
(e) The school has effectively managed the environmental values of the land to date and the current proposal excludes any activity from ecologically significant areas, retains ecologically significant areas without the need for covenants or dedication and incorporates all necessary buffers. There is nothing in the Planning Scheme requiring dedication of the subject land as Public Open Space.
The following views were expressed by Mrs Roughan but not accepted by Mr Hall:-
(a) While a future code assessable application for expansion of school facilities is likely to be required in respect of proposed Lot 202, it is appropriate to consider the likely consequence of the reconfiguration in the assessment of the current application, given the intent of the relevant planning scheme provisions. Further, a subsequent application to develop the Industry 2 designated land may not be required to enable its development;
(b) The proposed conditions are aimed at ensuring achievement of the clear intentions of the planning scheme with regard to protection of identified areas to the greatest extent possible given existing development commitments;
(c) While some loss of vegetation may be conceivable where this would not undermine the values and ecological functioning of the area (subject to the views of the flora and fauna experts) a desirable planning outcome having regard to the intentions of the planning scheme is the protection of the whole of the remaining wetland area;
(d) Although the impacts of future development proposals for a material change of use of the land could be assessed through future applications, given the extent of the existing development commitment which does not encroach on the area in question and the value of the wetland area, a requirement to protect all, or close to all, the vegetated area is a likely outcome of any such future application;
(e) The question of need for new facilities on the school site, and the need to utilise land within the existing vegetated area should be balanced against the likely loss of land and existing playing fields as a result of the reconfiguration; and
(f) Lot 201, the Industry 2 lot proposed to be created is not of a size or location that it possesses strategic importance to the supply of industry land on the Gold Coast.
Appellant’s argument
The essence of the appellant’s argument is this:-
(a) It has for many years been a good steward of the vegetated land and now proposes a condition which will continue that stewardship;
(b) Any future development of the vegetated land would require a balance between its ecological value and the needs of the community including the appellant by way of expansion of its school; that is the point at which any perceived threat to the vegetated land can be properly addressed by, for instance, including a detailed ecological site assessment as contemplated by the Nature Conservation Code to seek dedication of the land at this point when no threat to the land is posed by the application. That is premature;
(c) In relation to proposed Lot 201, any future application for its use for industrial purposes would be code assessable when the Council would be afforded every opportunity to regulate its use to protect the vegetated land;
(d) Performance Criteria 10 in the Nature Conservation Code and the Natural Wetland Areas and Natural Waterways Code which are identical do not require dedication and an acceptable solution would be management and protection of the land in terms of the condition proposed by the appellant;
(e) It would be unreasonable for the land to be dedicated given that it comprises 41 per cent of the school’s site and 45 per cent after the proposed subdivision[15];
(f) The Nature Conservation Code identifies the land as committed to development and a 100 metre buffer line[16] contemplated by AS 8.1.1 of the Natural Wetland Areas and Natural Waterways Code would inhibit the future development of the school site. The obvious and necessary balancing of the school’s needs would be protection of the subject land can be made at the point of any future Development Application.
[15]Transcript 2.27 line 10
[16] ` See Exhibit 12
The appellant does not say that the vegetated area should be committed for unconstrained development, but that at the appropriate time in the future when an application is made in relation to it, the Council can ensure by reference to the Planning Scheme that ecological values are not compromised.
That, broadly speaking, is the thrust of the appellant’s argument as I understand it. In short, the present application does not involve anything more than a reconfiguration of the lot and there is no proper basis for the Council insisting on dedication of the vegetated land.
Council’s response
The Council’s response to the appellant’s case is that the proposed conditions are relevant but not an unreasonable imposition on the development for three reasons:-
(a) The wetland vegetation has ecological value which warrants preservation;
(b)The conditions proposed are the product of relevant considerations for the assessment of the subject application; and
(c)The conditions proposed are intended to achieve a legitimate town planning purpose, namely the conservation of a valued natural asset.
I shall consider each in turn.
Wetland vegetation area has ecological value which warrants preservation
There is no dispute with the appellant that the subject land has ecological value, both floral and faunal. The Council points, however, to two threats to the land, namely the presence of Singapore daisy and the impacts on the hydrological regime of the Bermuda Street drain. As I understand its argument, it says that those threats are heightened by the fact that they emanate from land neither owned nor controlled by the appellant. It further says that the long term viability of the wetland may require significant engineering works adjacent to the appellant’s land to manage groundwater levels. Implicit in that argument is that that work could not be undertaken other than if ownership of the subject land was in the Council. I find a logical disconnect with that argument. Why is it to be presumed in relation to any work on the Bermuda Street drain or on the Singapore daisy problem on land not owned by the appellant, that there would not be full co-operation by the appellant with adjoining landowners to address any common problem and facilitate a solution?
The next matter relied upon is a statement by Dr Ingram, the appellant’s fauna expert[17] in these terms:
“Whether or not the Council will do a better job with the future management of the area than the present owner, I cannot state certainly. I believe, however, that Council, which is better resourced and experienced at managing natural areas, has the potential to manage the area very well.”
I do not see that statement as one of unqualified confidence that the Council would better manage the land than the appellant. The statement as to resourcing and experience is speculative. No evidence was adduced as to the resources of the Council likely to be committed to management. Likewise, no evidence was put before me as to the respective experience and, importantly, outcomes of the management of such areas by the Council. The former is understandable because, as I deal with later, no detailed examination and costing of the management issues has been done. What we do know is that the appellant has acceptably managed the area for the period it has been in its ownership. There was no evidence of any criticism of that management.
[17]Exhibit 3, page 3
Relevance
On the concept of relevance, the Council relied on Proctor v Brisbane City Council[18] where the court said:-
“It may well be that a condition which is in no proper sense of the word ‘required’ by a subdivision is nevertheless relevant … as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local government or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as ‘required’ – reasonably or otherwise, by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located …”
[18][1993] 81 LGER 398 at 404.
I am satisfied, having regard to the relevant provisions of the Planning Scheme as identified by the town planning experts, that the conditions proposed by the Council are within the class of conditions which could be considered relevant in appropriate circumstances in the consideration of applications of this type. But the mere existence of dedication of such land as an acceptable solution in both the Nature Conservation Code and Natural Wetland Areas and Natural Waterways Code is not, per se, determinative of its appropriateness in any given situation.
Proposed conditions intended to achieve a legitimate town planning purpose to conserve a valued natural asset
The Council underpins this argument with five points; (a) that the land has ecological values warranting preservation, (b) the size of the land is an important consideration, (c) the wetland will require continued maintenance to ensure its viability and may require significant rehabilitation works which would be a significant impost on the appellant, (d) dedication of the land as proposed would remove any doubt about the future management intent for the land, including rehabilitation, and (e) absent the proposed dedication, a greater risk of the land being developed to accommodate school needs will arise.
The first three points are not contentious, although the nature, timing and extent of any required rehabilitation works and the magnitude of any suggested resulting impost on the appellant is, at this stage, speculative. No comprehensive study of those requirements, their timing or costings has been carried out or, if so, was not put before me.
As to the point that dedication will remove any doubt about the future management and any necessary rehabilitation works of the land; that is, to my mind, again, speculative. No evidence was put before me as to what costs are involved or what resources either party would allocate to meet those expenses. Dealing with a perceived groundwater level problem in the Joint Hydrologists’ Report , Mr Bristow[19] thought it would be practical to install an impervious barrier along the Bermuda Street drain boundary, and estimated a figure of $750,000 to $1 million for this. But that figure was predicated upon the requirement for such an engineering structure being established[20].Mr Collins thought it was far too premature to contemplate such an extensive engineering solution, that the expenses involved were unwarranted, and that without the monitoring of groundwater levels on which to base a design it may cause more harm than good[21].
[19]Exhibit 7, Hydrology Joint Report
[20]Exhibit 7, paragraph 26
[21]Exhibit 7, paragraphs 27 and 29
In considering the issue[22] of groundwater levels, the hydrologists were not sure of any effect the Bermuda Street drain has had on those levels on the vegetated land. They said it could be limited and would remain uncertain in the absence of geotechnical data[23]. Both Mr Collins and Mr Sutherland also considered that the flora experts had overstated the effect of the Bermuda Street drain in that they considered its area of influence quite limited[24]. The above divergent views by experienced experts supports the view that the nature of the requirements for the future rehabilitation and management of the vegetated land, their extent, timing and costings, is not presently fully known and would need to be the subject of a comprehensive report as a first step to addressing these issues. That would obviously be done in consultation with and with any necessary cooperation of the appellant.
[22]Exhibit 7
[23]Exhibit 7, paragraphs 9 to 13
[24]Exhibit 7, page 21
As to the suggested increased risk to the vegetated land by future needs of the appellant, I consider there is ample provision in the Planning Scheme to enable the Council to protect against any risk which may threaten the ecological values of the land.
At the hearing the Council and, to a lesser extent, the appellant proceeded on the basis that at some time in the future there may be an application which would necessarily involve encroachment into the vegetated land. On that issue of probable encroachment I asked Mrs Roughan the following:-
“HIS HONOUR: Thank you. Can I just ask something Mrs Roughan to understand. It seems to me that from your reports particularly at paragraph 6.04 in your evidence that you know the likely future nature of the or the nature of the future development. Do I take it that if – this configuration application procedure in Lot 201 (sic) is excised that the Council has done the investigation to conclude that there is no option to the school to replace those playing fields, if indeed there be an imperative, which does not threaten the vegetated area?
ANSWER: From looking at the site there are large areas that are cleared and not part of the vegetation area of – in question at the moment that are a part of the school site. That the school’s current usage of the site is largely confined to a southern half. But there are cleared areas to the north of the proposed lot 202. I think that would be potentially there as available for – for future development for sporting fields.QUESTION: So it’s at least a possibility that if the school took the view that – that the vegetated area was to be left well alone that they could – they could manage foreseeable development expansion using those areas?
ANSWER: That would be my expectation yes. There may a consideration of multi use facilities combined stadium or courts and the like that makes the most efficient use of the land, the unconstrained land available but it would be my expectation that there’s a reasonably large area of land there available for – for options for the school.”
It seems to me tolerably clear from the above views of Mrs Roughan that the school may well expand its operations without the subject land ever being threatened.
The Council next addressed what it saw as eight grounds of opposition advanced by Mr Hall in his report[25]. Dealing with each of these in turn:-
[25]Exhibit 2
(a)The condition is premature
Council says the conditions proposed are not premature because the Planning Scheme expressly contemplates protection and long term viability of ecological value, and that considerations of those issues are relevant when considering an application for reconfiguration. It says that both the Nature Conservation Code and the Natural Wetland Areas and Natural Waterways Code focus on the issue of dedication of such land to protect and conserve ecologically significant areas. It further says that the likely consequences of the present reconfiguration dictates that the question of dedication be addressed at this point because a successful reconfiguration may alienate the proposed Lot 201 land presently used for playing fields and may increase pressure to develop the vegetated wetland. For the land to be dedicated now puts beyond doubt that any future development of the appellant’s land will not be permitted to impact on the vegetated land;
(b)The proposed condition would have the effect of alienating nearly half of the school site for school purposes[26].
[26]Exhibit 2, page 40, paragraph 84
Council’s response to this is that the appellant is aware that presently 45 per cent[27] of its land is constrained by vegetation with both floral and faunal habitat values and that there is no evidence to support the proposition that some of that vegetated land may be given over to development in the future.
[27]Transcript 2.27.10-21
(c) Land is committed for development
The Council makes the point, which I consider valid, that the fact that the Nature Conservation Code identifies the land as “committed to development” does not give any unqualified expectation to the appellant that the use of the land may be intensified without consideration of all relevant considerations in the Planning Scheme, one of the most important of which is the protection of the environment.
(d)Dedication is not required for public access or for any other public purpose
This refers to the abovementioned Acceptable Solution PC 10 in the Nature Conservation Code and Natural Wetland Areas and Natural Waterways Code. Council says that the dedication of the vegetated land will be for a public purpose, namely to protect, conserve and manage it consistent with its ecological value.
(e)Dedication of the land is in conflict with the intent of the Community Purposes Domain which does not envisage lands being preserved for conservation purposes
The Council accepts that there is no specific provision in the Statement of Intent for the Domain and again relies upon the proper interpretation of the Planning Scheme which must be read as a whole. Properly construed, the Council says, the Planning Scheme contains provisions in the Natural Wetland Areas and Natural Waterways Code and the Nature Conservation Constraint Code which envisaged that some of the land within the Community Purposes Domain may be given over to conservation purposes.
(f) The current use of the proposed Lot 201 (Industry 2) (Low Impact) Domain as a sporting field and primary school area is not consistent with the intent of that Domain
The Council’s response to this argument was to rely upon the evidence of Mrs Roughan[28] who expressed the view that the appellant would have good prospects of an approval to use Lot 201 for school purposes. The Council also relied on its view that the proposed Lot 201 was small in size and irregular in shape and isolated from other industrial and commercial uses so as to render it not of strategic importance. It further says there is no town planning imperative that the land be given over to industry use.
(g) EPA and Department of Natural Resources had no issues with the application
In this regard the Council says that does not impact on the lawfulness of its proposed Condition 8 (Dedication);
(h) There is no need to dedicate the land as the appellant has been a good steward of the land
The Council relies upon two threats earlier dealt with, namely the threat of weeds and groundwater management. I have already addressed those issues.
[28]Transcript 2.55.25-40
Conclusion re Council’s proposed Conditions 8 and 9
I am unpersuaded by the Council’s arguments in relation to its proposed Conditions. I prefer the evidence of Mr Hall to the extent it is at odds with Mrs Roughan’s. I consider the appellant’s arguments to be the more persuasive, particularly the argument as to prematurity, which I think is a forceful one. All that is being proposed by the appellant is a reconfiguration of a lot. If, in the future, any application is made to develop either the proposed Lot 201 or any part of the proposed Lot 202, the Council will have the full range of powers it has articulated in argument to ensure that proper consideration is given to all environmental considerations and to the preservation and advancement of the ecological values of the vegetated land. I do not consider it appropriate that Conditions 8 and 9 form part of the approval.
Decision as to appellant’s proposed condition
I consider that the appellant’s proposed condition, the substance of which is set out in paragraph 21 of its written submissions, is an appropriate one and satisfies section 3.5.30 of IPA.
Orders
The order of the court will be:-
1. That the appeal be allowed;
2. That Conditions 8 to 12 set out in the Council’s Decision Notice dated 3 April 2009 be deleted as conditions of the Approval in paragraph A thereof ;
3. That, in substitution for the deleted conditions, the subject approval have as conditions thereof those conditions contained in paragraphs 1, 2, 3, 4, 5, 6, 7 and 10 contained in the Schedule to the Council’s Position Statement filed on 21 December 2009, plus a further condition reflecting the appellant’s offer contained in paragraph 21 of its written submissions dated 1 March 2010;
4. That the appeal be adjourned to allow the parties to prepare a Final Conditions document in accordance with the above orders; and
5. Liberty to apply.
Schedule A
.RELEVANT SECTIONS OF 2003 GOLD COAST PLANNING SCHEME VERSION 1.1 RELIED UPON BY TOWN PLANNING EXPERTS
1. Desired environmental outcomes (DEOs) and associated planning objectives
DEO ECOl.1 – The conservation of areas containing native vegetation of international, national, state, regional or local significance, and of other natural ecosystems, to ensure maintenance of the city’s biodiversity and natural landscape values.
Planning Objective Ecol.1.1 – to preserve ecologically significant areas, including those of international, national, state, regional or local significance.
Planning Objective Ecol.1.4 – to provide adequate buffer areas to further protect ecologically significant areas from the impacts of adjacent development.
Planning Objective Ecol.1.6 – to minimise disturbance to natural landscapes and ecologically significant areas, in areas where development is permitted.
DEO ECON.3 – The provision of a viable system of Activity Centres (based on service catchments) and Activity Clusters (based on the locational needs of productive business sectors) to ensure that the City’s communities have access to a wide range of suitably planned and located goods and services.
Planning Objective Econ.3.2 – to facilitate the development of a range of specialised Activity Clusters that maximise the economic advantages resulting from the agglomeration of complementary business activities in desirable locations.
DEO SOC.1 – The establishment, conservation and enhancement of local character and the promotion of a distinctive local identity and sense of place for the various communities of Gold Coast City.
Planning Objective Soc.1.2: to protect and enhance the value of significant landscape features, within both the built and natural areas of the City, as characteristics contributing to the distinctive form of the city.
2. Key strategies and land use themes
The Urban Residential Land Use Theme covers the majority the subject site. The intent statement for the Urban Residential Land Use theme details the need to accommodate residential dwellings and associated support facilities throughout the City. The Urban Residential Land Use Theme also includes the following statements:
This land Use theme acknowledges residential uses and a range of other land uses that support local community needs.
Open space, recreation and nature conservation areas are also acknowledged, as these form important elements of local character and neighbourhood amenity within urban areas.
Developments should not adversely impact upon any local environmental values, but strengthen these where possible.
3.Planning objectives associated with the Activity Centre Strategy
AC Policy 2 – The recognition and facilitation of the development of Activity Clusters within the city as major locations for employment, investment and production activity.
Objective AC 2.1 – to support and encourage the co-location and agglomeration of Industrial and commercial activity into identifiable precincts.
Objective AC.4 – to promote the consolidation and redevelopment of Activity Clusters for uses which are consistent with the individual focus of each cluster.
Objective AC 2.6 – to ensure that land uses within Activity Clusters are compatible
Objective AC 2.9 - to recognise that land use and development planning initiatives, in relation to Activity Clusters, must be coordinated with the strategies contained within the City’s Economic Development Strategy.
Nature conservation strategy
NC Policy 1 – Retain and enhance a functioning and viable conservation network throughout the city.
Objective NC1.1 – to ensure that the location, scale, density and nature of development is consistent with the Intent of the Conservation Strategy Plan categories.
NC Policy 2 – Ensure protection and management of ecologically significant areas throughout the city.
Objective NC 2.2 – to ensure the protection and management of areas that support or provide a buffer to ecologically significant areas.
Objective NC 2.4 – to ensure the protection and management of ecologically significant areas.
Objective NC 2.6 – to ensure the rehabilitation or regeneration of degraded areas, essential to the maintenance, enhancement or viability of ecologically significant areas.
The explanation to this policy states:
Protection and management of these areas should occur through a number of responses, including, but not limited to:
· exclusion of activity from ecologically significant areas;
· the retention and protection of ecologically significant areas;
· buffering of ecologically significant areas from incompatible activity;
· linking of ecologically significant areas to other significant areas;
· the rehabilitation of the ecologically significant areas; and
· regulation of low impact activity within or adjacent to ecologically significant areas.
5. Matters to note in respect of the Tables of Development for the Community
Purposes Domain
(a) An “Educational Establishment” is listed as being Code Assessable (Table A: Material Change of Use).
(b) Any Change to Ground Level is Code Assessable if it exceeds a volume of 20 cubic metres of fill or excavation, or is closer than 10 metres from the site boundary (Table C: Operational Works – Changes to Ground Level).
(c) Vegetation Clearing is Code Assessable if it results in the removal of, or damage to vegetation that is equal to, or in excess of 40 centimetres in girth (circumference) measured 1.3 metres above the average finished ground level, and alternate solutions to the Acceptable Solutions of Specific Development Code 36 – Vegetation Management are proposed (Table F: Operational Work – Vegetation Clearing).
Any proposal to erect additional buildings associated with the school or to provide additional or increased sporting fields would likely require a Code Assessable application for an Educational Establishment (provided it constituted a material change of use and was not otherwise exempted, for example under the Building the Education Revolution project) and Code Assessable applications for vegetation clearing and changes to ground level.
6.Relevant Performance Criteria The Community Purposes Domain Place
Code
(a) PC7 - All buildings must be sited to complement the natural landscapes and topographical features of the site and the surrounding community purposes area, having regard to:
a) significant views and vistas;
b) natural water systems;
c) remnant vegetation;
d) a site analysis, prepared in accordance with Planning Scheme Policy 17 – Site Analysis.
7.Matters to note re Table of Development for the Industry 2 Domain
(a) Land uses including “Manufacturer’s Shop”, “Service Industry Group B n.e.l.”, Take-Away Food Premises” and “Warehouse” are listed as being Self Assessable (Table A: Material Change of Use).
(b) Land Uses including “Industry” and “Service Industry Group A” are listed as being Code Assessable (Table A: Material Change of Use).
(c) Changes to Ground Level are Code Assessable if it exceeds a volume of 100 cubic metres of fill or excavation, or is closer than 5 metres from the site boundary (Table C: Operational Works – Changes to Ground Level).
(d) Vegetation Clearing is Code Assessable if it results in the removal of, or damage to vegetation that is equal to, or in excess of 40 centimetres in girth (circumference) measured 1.3 metres above the average finished ground level, and alternate solutions to the Acceptable Solutions of Specific Development Code 36 – Vegetation Management are proposed (Table F: Operational Work – Vegetation Clearing).
8.Relevant Performance Criteria in Industry 2 Domain Place Code
PC6 – All buildings and associated structures must be sited to ensure the efficient use of the site for the proposed purpose, whilst ensuring that the built form and landscape character of the local area is maintained having regard to a site analysis, prepared in accordance with Planning Scheme Policy 17 – Site Analysis.
PC18 – All activities undertaken as part of the industry operation must not cause harm to the surrounding environment.
AS 18 0 - The materials and outputs from the industry land use do not pollute any watercourse, water storage, drainage system, man-made lakes or canals or land adjacent to the industry.
9. Purpose of Reconfiguring a Lot Specific Development Code
To provide that any new lots, created by Reconfiguring a Lot, are suitable for their intended purpose and are appropriate to the topography and landscape features of the land. This code seeks to ensure that any reconfiguration of lots results in:
…
·Protection and enhancement of ecologically significant areas and environmental values.
10. Performance Criteria for Reconfiguring a Lot Specific Development Code
(d) PCI – Lots must have the appropriate area and dimensions to enable:
…
e) retention of ecologically significant areas and other remnant vegetation
…
PC 23 – An environmental open space network must be protected to:
a) Ensure the retention of significant vegetation, wetlands, waterways, and other habitat areas, their associated buffer and linkages/corridors and natural and cultural features; and
b) Facilitate appropriate measures for stormwater and flood management and care of valuable environmental resources;
11. Purpose of Nature Conservation Constraint Code
The purpose of this code is to ensure that development occurring within the City is consistent with and contributes to the achievement of the City wide conservation objectives defined by the Gold Coast City Nature Conservation Strategy 1998. In particular, this code seeks to ensure that development contributes to the protection and enhancement of a viable nature conservation network, thereby ensuring the long term protection and maintenance of the City’s species and ecosystem biological diversity, for its environmental, scientific, educational, social, cultural and economic values. This is to be facilitated through the identification and protection of ecologically significant areas within the City.
This code seeks to ensure the conservation of rare or threatened flora and fauna species and of ecosystems which are poorly conserved at the regional level. It also promotes the adoption of land use practices and environmental design measures that support the conservation and enhancement of the City’s biological diversity. For example, this code promotes the rehabilitation of degraded natural areas that are an intrinsic component of the nature conservation network.
12. Various Categories of Vegetation (as detailed on Overlay Map OM20.4)
are defined within the Nature Conservation Constraint Code (Section 2.0
of the code).Significant remnants range from small isolated remnants to large areas of relatively intact bushland. They contribute to ecosystem and species diversity, and provide representative samples of vegetation communities across the landscape.
There are several extensive mosaics of fragmented bushland along the coastal margins and foothills of the City. These bushland mosaics are often large, and may support significant vegetation associations. They also provide habitat for a diversity of fauna, and provide stepping stones for fauna movement between large areas of habitat. They are often located amongst rural residential development.
It is intended that these areas be retained and enhanced, wherever possible, through the use of sympathetic development designs and layouts. Further fragmentation and vegetation loss is to be avoided, and consolidation of fragments will be encouraged during the development. Existing natural reserves should be protected against impacts from adjacent development.
13.Existing Remnant Vegetation (and other Natural Areas)
Interspersed throughout the urban matrix are numerous small pockets of native vegetation and other natural systems (eg. Wetlands) which often have a high landscape value and provide habitat for small fauna species and for mobile species, especially birds. They may also contain rare and threatened species and ecological communities that are poorly conserved throughout South East Queensland.
It is intended that ecologically significant areas, including individual habitat trees, be retained during development in these areas, and managed for the future. Wherever possible, consideration should be given to habitat creation during development. In addition, existing natural reserves should not be adversely impacted by adjacent development.
14.Major Areas of Existing Bushland Committed to Development
These areas have generally been identified as being committed for urban, extractive or industrial development, as a result of either current development approvals or of the Gold Coast City Planning Scheme. They tend to occur on the coastal plain, add have a function in the overall conservation strategy for the City.
In considering applications for development within these areas, it will be recognised that some loss of ecological values is likely to occur. It is intended that development in these areas be designed and constructed in a way that contributes to the function of the particular Conservation Strategy Plan category to the greatest extent possible, given existing development commitments.
15. Performance Criteria and Acceptable Solutions for the Nature Conservation Constraint Code
PC4 – Lot size, design and layout must support the protection of the site’s ecologically significant areas.
AS4.1 – Lot size, design and layout minimises fragmentation of any ecologically significant area.
AS4.2 – Lot size facilitates the implementation of the buffers and ecological corridors identified in the approved Ecological Site Assessment as required to maintain the viability of the site’s ecologically significant areas.
PC5 – Ecologically significant areas must be protected and maintained.
AS5.1 - Development does not occur within an area identified as an ecologically significant area.
AS5.2 – The ecologically significant area is not negatively impacted, either directly or indirectly, by activity resulting from the construction and operation of the development.
PC6 – The conservation of the site’s ecologically significant areas must be supported.
AS6.2 - The development forms a consolidated and compact node which:
a) maximises the use of existing cleared and/or degraded areas not requiring rehabilitation;
b) maximises the conservation and retention of remnant vegetation;
…
d) minimises fragmentation of remnant vegetation;
…
PC8 – Buffers must be provided with dimensions and characteristics that can be demonstrated will ensure that the development does not result in a negative impact upon the long-term viability of the ecological values and functions of ecologically significant areas and natural reserves located on and/or adjacent to the site.
AS8.1.1 – Buffers of not less than 30 metres width, incorporating vegetated (representative of local native habitat) and degraded areas requiring rehabilitation, are provided between the development and ecologically significant areas located on and/or adjacent to the site.
AS8.2 - The site has been wholly or partly identified on Overlay Map OM11- Natural Wetland and Waterway Areas as having wetland areas, and the development provides a buffer of an equal or greater width than that specified in Part 7, Division 9 – Natural Wetland Areas and Natural Waterways Constraint Code.
PC10 – Management arrangements must facilitate the conservation and protection of ecologically significant areas, ecological corridors and buffers.
AS10.1 – Ecologically significant areas, buffers and ecological corridors are:
a) dedicated as Public Open Space where required for public access or for use for some other public purpose, consistent with their ecological values and functions;
b) incorporated within Private Open Space and included within a Voluntary Statutory Covenant or a Vegetation Protection Area.
PC11 – Degraded areas on the site required as a buffer to, or ecological corridor between, ecologically significant areas located on and/or adjacent to the site must be rehabilitated as near as is practical to the naturally occurring composition of plant species, and respond to the habitat requirements of fauna.
AS11 – The degraded area identified in the Ecological Site Assessment as requiring rehabilitation is rehabilitated in accordance with an approved Rehabilitation Plan, using local endemic species and stock that:
a) reflect the species composition of native remnant vegetation present on the site or surrounds; consolidate existing habitats on the site;
b) do not utilise plant species that will displace native flora species or degrade fauna habitat; and
c) support the habitat needs of any rare and threatened species
PC13 – Ecologically significant areas must be conserved and protected.
AS13.1.1. – Development does not occur within an area identified as ecologically significant, OR
AS13.1.2 – An area identified as ecologically significant is retained, unless an over- riding public safety consideration results in the ecologically significant area being modified or removed.
AS13.1.3 – The ecologically significant area is not negatively impacted, either directly or indirectly, by activity resulting from the construction and operation of the development.
Relevant Performance Criteria and Acceptable Solutions for the Natural Wetland Areas and Natural Waterways Constraint Code16.
PC2 – Ecologically significant areas must be protected and maintained.
AS2 – Development does not occur within an ecologically significant area, including wetlands, aquatic and riparian communities.
PC3 – Ecologically significant areas must not be negatively impacted upon, either directly or indirectly, by activity resulting from the establishment and operation of the development.
PC5 – The degraded wetland and waterway areas, ecological corridors and buffer areas that are important to the viability of ecologically significant areas must be rehabilitated as near as is practical to the naturally occurring composition of plant species, and respond to the habitat requirements of fauna.
AS5.1 – The degraded area identified in the approval Ecological Site Assessment as requiring rehabilitation is rehabilitated in accordance with an approved Rehabilitation Plan utilising local endemic species and stock that:
a) reflects the species composition of native remnant vegetation on the site or surrounds;
b) consolidates existing habitats on the site;
c) does not displace native flora species or degrade fauna habitat.
AS5.2 – A detailed Landscape Plan, incorporating the rehabilitation, is prepared in accordance with Planning Scheme Policy 13 – Landscape Strategy Para 2 – Landscape Works Documentation Manual.
PC 6 – The natural hydrological regimes of wetlands and waterways, including natural water quality, quantity and groundwater conditions, must be maintained and enhanced.
PC8 – Buffers must be provided incorporating development setback/s of dimensions and characteristics that will ensure that the development does not result in a negative impact upon the long-term viability of the ecologically significant areas (including any wetland, aquatic and riparian communities) located on and/or adjacent to the site. Vegetated buffers should also include groundcover and shrubs, where the natural constraints of the site allow this.
AS8.1.1 – Buffer/s of not less than 100 metres width, incorporating vegetated and degraded areas requiring rehabilitation, are provided between the development and a freshwater or tidal wetland and associated riparian communities, as identified on Overlay Map OM11 – Natural Wetland Areas. Or
AS8.1.2 – Buffer/s are provided of dimensions and characteristics that will protect the long-term viability of any freshwater or tidal wetlands and their associated riparian communities, as identified on Overlay Map OM11 - Natural Wetland Areas and Natural Waterways, in accordance with expert ecological advice provided as part of the Ecological Site Assessment.
PC10 – Management arrangements must facilitate the conservation and protection of ecologically significant areas, ecological corridors and buffers.
AS10.1 – Ecologically significant areas, buffers and ecological corridors, identified in the Ecological Assessment are:
a) dedicated as Public Open Space, where required for public access or for some other public purpose consistent with their ecological values and functions; or
b) incorporated within Private Open Space and included within a Voluntary Statutory Covenant under the Land Title Act 1994.
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