Traspunt No. 4 P/L v Moreton Bay Regional Council
[2012] QPEC 70
•2 November 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Traspunt No. 4 P/L v Moreton Bay Regional Council [2012] QPEC 70
PARTIES:
TRASPUNT NO. 4 PTY LTD
ABN 84102581313
(Applicant)v
MORETON BAY REGIONAL COUNCIL
(Respondent)FILE NO:
BD3001/2012
DIVISION:
Planning & Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
2 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
26 October 2012
Written submissions to 1 November 2012JUDGE:
Andrews SC DCJ
ORDER:
Application dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT – whether deemed approval of application for tree clearing – where applicant’s onus of proof that application not for development in a critical habitat under the Nature Conservation Act - where chief executive required by Nature Conservation Act to keep a register of critical habitats – where land not shown on the register of critical habitats – where “critical habitat” means “habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife” – where no evidence whether the land the subject of the application was not “ habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife”
Nature Conservation Act 1999 ss13 and 133
Sustainable Planning Act 1999 s 330
COUNSEL:
Given for the applicant
Skoien for the respondentSOLICITORS:
Hallett Legal for the applicant
Legal Services Department of Moreton Bay Regional Council for the respondent
Relief sought
The applicant seeks a declaration that an application lodged by the applicant with Moreton Bay Regional Council (“Council”) on 6 February 2012 for tree clearing for essential infrastructure for a development on land[1] (“the land”) (“the application”) was the subject of a deemed approval by Council.
[1]Being Lot 909 Greene Street and Lot 910 Cowper Court, Rothwell in the State of Queensland
Issues
If an applicant makes such an application and Council fails to decide the matter in time, SPA will deem an approval. There are exceptional cases when a deemed approval does not arise. The Council failed to decide the application in time. The issue is whether the applicant has satisfied its onus of proof to establish that its application is not one of three exceptions relied upon by Council in argument. If the applicant has established that its application is not one of three exceptions relied upon by Council then Council accepts that the applicant would be entitled to its declaration that there is a deemed approval.[2]
[2]T1-6 ll 1-10
The Facts
On 6 February 2012 the applicant lodged an application with Council to clear part of the land for fire breaks and other operational works. On 13 March 2012 Council delivered an amended acknowledgement notice. On 23 May 2012 Council advised the applicant by written notice that Council extended the decision-making period by 20 business days to 21 June 2012.[3] On 20 June 2012 Council requested a second extension of the decision-making period. The request was not granted. Consequently, the decision making period ended on 21 June 2012. If Council, as assessment manager, does not decide such an application within the decision-making period, the applicant may give a deemed approval notice to Council stipulating that the application should be deemed to have been approved by Council.[4] Pursuant to the Sustainable Planning Act 1999 (“SPA”), Council is taken to have approved the application on the day the deemed approval notice is received by Council.[5]
[3]As permitted by SPA s 318(2)
[4]SPA s 331(1)
[5]SPA s 331(5)
On 28 June 2012 the applicant sent a deemed approval notice to Council. Ordinarily, the day Council received such a notice, Council would be taken to have approved the application. Council did not decide the application before receiving the deemed approval notice.
The land is not recorded as “critical habitat” or as an “area of major interest” in the register the chief executive is obliged to maintain under the Nature Conservation Act 1999 (“NCA”) s133. There are currently no critical habitats or areas of major interest listed in the register.
The proposed clearing plan reveals significant areas to be cleared to a width no greater than 10 metres on the western and southern sides of the land. The proposed clearing along the areas abutting Varuna Court, Cowper Court and Sylvia Court for a fence road or vehicular track exceed the 10 metre maximum.[6]
[6]Referred to in Sustainable Planning Regulation 2009 schedule 26
The land is mapped under the Vegetation Management Act – Essential Habitat Map as being essential habitat for koalas. It is marked as “Remnant Vegetation containing endangered ecosystems” in the Vegetation Management Act Regional Ecosystem and Remnant Map Version 6.1 and Version 6.3 as essential habitat for koalas. That regional ecosystem map data took effect on 16 September 2011 and was effective on 6 February 2012 when the applicant lodged the application. It is shown as being “outside SPRP Koala Assessable Development Areas” on a map: Koala Conservation in South East Qld State Planning Regulatory Provisions.
The Legislation
Council relies on SPA s 330(c)(iv) and s 330(d) for three exceptions to the rule which deems an approval. Those exceptions are where the application is:
(1) An application for development in “critical habitat” under the NCA; or
(2) An application for development in an “area of major interest under the NCA; or
(3) A vegetation clearing application under the Vegetation Management Act 1999 (“VMA”).
So far as is relevant SPA s 330 provides:
330 Application of sdiv 4
This subdivision applies to an application requiring code
assessment only, other than—
…
(c) an application for development—
…(iv) in a … critical habitat or area of major
interest under the Nature Conservation Act 1992;
or
(d) a vegetation clearing application under the Vegetation
Management Act…
The NCA relevantly provides at s 13 and 139:
13 Meaning of critical habitat
(1) Critical habitat is habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife, whether or not special management considerations and protection are required.(2) A critical habitat may include an area of land that is considered essential for the conservation of protected wildlife, even though the area is not presently occupied by the wildlife.
133 Chief executive to keep register
(1) The chief executive must keep a register of—
…(d) critical habitats; and
(e) areas of major interest; and
…
(2) … the chief executive must—(a) keep the registers open for inspection by members of the
public during office hours on business days …; and
(b) on payment of the prescribed fee by a person—(i) permit the person to take extracts from a register;
or
(ii) give the person a copy of a part of a register.
The Submissions
Council purported to reject the application, though too late. In doing so it relied upon two exceptions being critical habitat or area of major interest under the NCA but failed to rely upon the exception of a vegetation clearing application under the VMA. The issue of the exception of a vegetation clearing application under the VMA was first raised in written submissions when the matter came on for hearing. The applicant provided later submissions on this issue. It failed to raise any objection to the late addition of the issue. Accordingly, I need not consider the propriety of Council’s adding a third basis to contest the application. Council can argue the exception of a vegetation clearing application under the VMA.
The first exception to consider is whether the application is for development in “critical habitat” under the NCA. The applicant submits, in effect, that a “critical habitat or area of major interest under the Nature Conservation Act 1992” within the meaning of SPA s 330 means land registered as “critical habitat” or as “area of major interest” on the register the chief executive is obliged to maintain under NCA s133. The submission is that land which falls within the meaning of “critical habitat” as defined in NCA s 13 is not “a critical habitat … under the Nature Conservation Act 1992” unless and until it is registered.
That interpretation is not consistent with the words of NCA s 13. It does not seem necessary to read qualifying words into NCA s 13. The purpose of s 133 is not to limit the areas of “critical habitat” but to make the task of identifying them easier. I reject the applicant’s submission.
The Council submitted that the applicant bears the onus of proof that the land is not “critical habitat”. The applicant accepted that.
The applicant also supplemented the written submission with oral argument. The oral submission was, in effect, that the land did not meet the criteria for “critical habitat” set out in NCA s 13[7] because: The court can be satisfied on the affidavit evidence that the land is not “essential for the conservation of a viable population of protected wildlife or community of native wildlife”;[8] though the affidavits reference and attach maps prepared “under” the Vegetation Management Act identifying qualities of land, because the qualities are identified for the purposes of the Vegetation Management Act they are not qualities falling within the criteria for “critical habitat” set out in NCA s 13;[9] a map prepared “under” the Vegetation Management Act may relate to koalas but it does not operate as a map for the purposes of the NCA;[10] designations of vegetation made under the VMA are for conservation of vegetation and not for conservation of vegetation for the benefit of a particular animal notwithstanding that a map specifically relates to koalas.[11]This submission is to be understood with the written submission that NCA s 13 does not include “land designated or mapped under another Act”. The applicant did not make clear by the oral submissions whether there was objection to maps, whether there was objection to the contents of the maps, whether the classifications of land in the maps were not evidence of the qualities of the land or whether on the proper interpretation of SPA s 330 (c) (iv) it should be understood to exclude reliance on maps unless they were made “under” the NCA. The obscurity of the applicant’s oral submission means there was no rebuttal submission from Council about why or whether the maps were admissible as evidence of the qualities of land or whether the maps’ assertions that the land was within an area classified as essential habitat for koalas was evidence that the land was essential habitat for koalas.
[7]T 1-11 l 59 to T 1-12 l 1
[8]T 1-12
[9]T 1-12 1l 20-25
[10]T 1-13 ll 1-39
[11]T 1-13 ll 20-30
The absence of any entry on the register showing any land to be “critical habitat” does not establish that all land in Queensland lacks the qualities of “critical habitat” and does not establish that the subject land lacks the qualities of “critical habitat”.
Mapping evidence was led by Council and was not objected to. It was relied upon in submissions by Council as if it was evidence of the qualities of the land described in the maps. Those maps, on a proper reading of them, with their explanatory legend,[12] assert that the land is inside an area designated as essential habitat for koalas.
[12]in AJD1 page 3 of the affidavit of AJ Dryden
On the hypothesis that the maps relied on by the Council have no evidentiary value because they are maps “under” the VMA and not the NCA, the Council has not led any evidence that the land is critical habitat for koalas. But Council has no onus and need not lead evidence that the land is habitat essential for koalas to successfully resist the application. To ignore the maps relied upon by Council as irrelevant or inadmissible does not assist the applicant to discharge its onus. The applicant puts no positive evidence before the court on the issue of whether the land lacks the qualities which would meet the criteria for “critical habitat” set out in NCA s 13. It relies on a map showing the land to be “outside SPRP Koala Assessable Development Areas” but leads no evidence about whether the land lacks the qualities which would meet the criterion “essential for the conservation of a viable population of protected wildlife or community of native wildlife”.
The applicant has failed to discharge its onus that the land did not meet the criterion for “critical habitat” set out in NCA s 13. That is a conclusion reached without relying on the Council’s mapping evidence referred to in paragraph [7] of these reasons.
If the maps relied upon by Council are admissible as evidence that the land is essential habitat for koalas then the evidence led by Council compounds the applicant’s failure to discharge its onus. I need not research the admissibility issue to determine whether the maps are evidence that the land is essential habitat for koalas as the applicant fails to discharge its onus whatever use may be made of the maps.
It is not appropriate to make the declaration on the basis of the first exception. It becomes unnecessary to consider the second exception about which the applicant bears the onus; although I note that the applicant relied upon a similar argument with respect to the second exception and led no evidence to prove the land was not within the second exception.
It is unnecessary to resolve the interesting issues in the applicant’s supplementary submissions relating to the third exception delivered 30 October or in the applicant’s substantially different supplementary submissions relating to the third exception delivered 1 November.
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