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  • Unreported Judgment

GTH Resorts No 5 Pty Ltd v Gold Coast City Council

 

[2020] QPEC 20

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

GTH Resorts No 5 Pty Ltd v Gold Coast City Council [2020] QPEC 20

PARTIES:

GTH RESORTS NO 5 PTY LTD (ACN 608 556 636)

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

FILE NO/S:

4526 of 2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal against refusal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

12 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

12, 16 – 20, 23, 24, 26 September 2019, further submissions delivered on 24 October 2019 and 9 November 2019

JUDGE:

Williamson QC DCJ

ORDER:

  1. The appeal is dismissed.
  2. The decision to refuse the appellant’s development application, communicated by decision notice dated 7 December 2018, is confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against respondent’s decision to refuse an application seeking approval for a Retirement facility – whether an overdevelopment of the land – whether development protects environmental values of the land – whether development achieves a net environmental benefit –  whether compliance demonstrated with the respondent’s planning scheme – whether the planning discretion should be exercised in favour of approval.

LEGISLATION:

Manufactured Homes (Residential Parks) Act 2003, s 10

Planning Act 2016, ss 45, 59 and 60

Planning & Environment Court Act 2016, ss 43, 45 and 47

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPEC 16; [2019] QPELR 793

Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99

Hilcorp v Council of the City of Logan & Ors [1993] QPLR 199

Intrafield Pty Ltd v Redland Shire Council [2001] 116 LGERA 350

Isgro v Gold Coast City Council & Ors [2003] QPELR 414

Kenlynn Pty Ltd v Noosa Shire Council [2019] QPEC 65

Liongrain Pty Ltd v Council of the Shire of Albert & Ors [1995] QPLR 353

Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPELR 557

R.E Marriott v Maroochy Shire Council & Anor [1994] QPLR 178

Sabdoen Pty Ltd v Redland Shire Council [1989] QPLR 149

Sincere International Group Pty v Council of the City of Gold Coast [2018] QPEC 53; [2019] QPELR 247

COUNSEL:

Mr T Sullivan QC with Mr M Batty and Mr B Rix for the appellant

Mr R Litster QC with Mr J Lyons and Mr L Sheptooha for the respondent

SOLICITORS:

Thomson Geer Lawyers for the appellant

Hopgood Ganim Lawyers for the respondent

Introduction

  1. [1]
    This is an applicant (GTH) appeal against a decision to refuse an impact assessable development application seeking approval to start a new use of land situated at Galleon Way, Currumbin Waters (the land). The proposed new use is a Retirement facility as defined in Council’s planning scheme, City Plan[1].
  1. [2]
    Council resists the appeal, contending GTH’s development application should be refused. In support of its position, Council identified a number of reasons for refusal[2], which, in broad terms, allege the new use is an overdevelopment of the land. Three symptoms of overdevelopment were identified, each of which are said to warrant refusal in their own right. In this regard, Council alleges[3]:
  1. (a)
    the design and siting of the new use does not respond appropriately to, and respect, known ecological constraints;
  1. (b)
    the footprint of the new use intrudes into an area designated for open space purposes, in circumstances where City Plan provides no support for a development outcome of this kind; and
  1. (c)
    the design and siting of the new use fails to respect a known flooding constraint, and, as a consequence, is contrary to sound floodplain management principles.
  1. [3]
    Council contends each symptom of overdevelopment gives rise to serious non-compliance with version 4 of City Plan, which was in force at the time the application was properly made. This planning document is the primary assessment benchmark against which the application must be assessed[4].
  1. [4]
    GTH joins issue with Council’s reasons for refusal. It also advances a positive case in support of approval. It is said that an approval, in the circumstances of this case, would represent a balanced decision in the public interest having regard to a number of relevant matters, principally: (1) a detailed site constraints analysis; (2) a ‘strong level of community and economic need[5] for the new use, which can be met by the development absent any unacceptable amenity impacts; and (3) tangible environmental/ecological benefits the development will deliver for the land, and adjoining land.
  1. [5]
    It is for GTH to establish the appeal should be upheld[6].

The land and zoning under City Plan

  1. [6]
    The land:
  1. (a)
    comprises four contiguous lots, with a combined area of 13.854 hectares;
  1. (b)
    is irregular in shape;
  1. (c)
    has frontage to Galleon Way to the west, and Currumbin Creek to the east;
  1. (d)
    slopes from west to east; and
  1. (e)
    is partly low lying, forming part of the Currumbin Creek floodplain.
  1. [7]
    Each of the four lots that comprise the land are improved with a dwelling house and an associated shed/out building. The improvements are located towards the western end of each lot, close to Galleon Way.
  1. [8]
    The land has a significant history of disturbance.
  1. [9]
    The principal source of disturbance involved the construction (and continued use) of a trotting track, which occupies approximately 75% of the land[7]. Historical aerial photography reveals the track was constructed sometime during a five-year period commencing in 1984. The construction process involved filling lower parts of the land. A moat and number of ponds were also constructed in the area of land located inside the track.
  1. [10]
    The moat has historically been subject to tidal exchange, which is presently restricted. As a consequence of this restriction, the water within the moat is poor in quality. This limits its productivity from an ecological perspective. The evidence established this can be improved by re-starting tidal exchange.
  1. [11]
    The land has also been disturbed as a consequence of two man-made drainage lines, which are located close to, and effectively parallel with, the northern and southern boundaries. The drainage lines can be seen in historical aerial photography and, like the trotting track, were constructed sometime during the period 1984 to 1989. The northern drainage line conveys storm water to the adjoining land to the north. The southern drainage line conveys stormwater in an easterly direction across the land to Currumbin Creek. The stormwater conveyed across the land includes flow from existing low density residential development located to the west of Galleon Way.
  1. [12]
    The evidence establishes that a range of local ecological values have persisted, or regenerated, on the land despite the disturbance referred to above[8]. Those values were described by GTH as ‘recently acquired’. This description does not offer any real assistance in this case given the ecological values of the land have regenerated, or persisted, in the face of disturbance for a period of about thirty years.
  1. [13]
    Three particular ecological values were identified in the evidence. First, approximately 100 koala habitat trees are located along the western boundary, and on an elevated part of the land, referred to as the knoll[9]. This area is raised above the known flood level, and is located towards the north-western corner of the land. Second, the stormwater drains referred to above are functioning tidal waterways[10]. Third, the land supports a limited diversity of marine plants. The plant communities include[11]: (1) the grey mangrove; (2) Saltmarsh (saltcouch, samphire, and claypan); (3) grassland (mixed grasses with a small proportion of saltcouch); and (4) Swamp oak with a saltmarsh understorey below the highest astronomical tide.  The Swamp oak and Saltmarsh are recognised as having ecological value under the Environment Protection Biodiversity Act 1999 (Cth).
  1. [14]
    For the purposes of City Plan, the land is included in two zones, namely the Medium density residential zone and the Open space zone.   The shared zone boundary is orientated north-south and divides the land into two unequal parts. The Medium density residential zone is located to the west of the zone boundary, and has an area of approximately 5.121 hectares. The Open space zone is located to the east of the zone boundary, and has an area in excess of 8.7 hectares. 
  1. [15]
    A Retirement facility, as I have already said, is a defined use in City Plan, and is one of eleven uses clustered in the Residential activities defined activity group[12].  It is anticipated in the Medium density residential zone, and triggers code assessment[13] where the height of any building does not exceed two storeys and 9 metres[14].  
  1. [16]
    City Plan does not anticipate medium density residential uses, such as a Retirement facility, in the Open space zone. A use of this character triggers impact assessment in the zone[15], and is to be assessed against the whole of City Plan, which is a prescribed ‘assessment benchmark’.

The proposed development

  1. [17]
    The proposed new use is intended to operate as an ‘over 50s lifestyle village’, delivered in 5 stages.
  1. [18]
    The proposed Master plan for the development divides the land into a western and eastern portion, each serving different purposes. The western portion accommodates the development footprint. It has an area of 8.229 hectares and is severed in two locations by the existing man-made drainage channels. The eastern portion has an area of 5.625 hectares, and adjoins Currumbin creek. This area, and the two man-made drainage channels connecting to it from the west, are to be rehabilitated. The area to the east of the development footprint is proposed to be dedicated to Council for conservation purposes. The ongoing obligation to maintain, and protect, this area would, as a consequence, be placed in the hands of Council.
  1. [19]
    With respect to the development footprint, the proposed plans depict a use that comprises a number of components, namely: (1) vehicular access from a new signalised intersection at Galleon Way and Ware Drive; (2) 340 apartments in 16 buildings that range from 2 to 3 storeys in height above a basement/semi-basement; (3) recreation facilities located at the eastern end of the development footprint; (4) internal roads, roundabouts and modest carparking areas for visitors and staff; (5) landscaped areas, including communal areas; and (6) two drainage channels (with an associated buffer and road crossing) that sever the development footprint in the north and south.
  1. [20]
    The footprint of the development covers the Medium density residential zone, and intrudes into the Open space zone. The extent of the intrusion into the latter zone is considerable, equating to an area of 3.108 hectares. The built form depicted in the area of the intrusion includes 6 of the 16 apartment buildings, roads, carparks and the proposed recreation facilities.
  1. [21]
    The land is low lying in parts and constrained by flooding considerations. To provide a development footprint with an appropriate level of flood immunity, extensive earthworks are proposed. The development involves the placement of approximately 85,750m3 of fill (within the development footprint), which results in the reclamation of the ponds and part of the existing moat. No compensatory excavation is proposed.  All vegetation within the development footprint will be removed, but significant landscaping is proposed in, and around, the built form. The vegetation is intended to be fauna friendly. This includes Koala friendly vegetation, which is proposed to be planted along the frontage of the land to a minimum width of 9 metres. It will take the form of tube stock, and matures in about 8 years after planting.
  1. [22]
    The drainage channels severing the development footprint are to be rehabilitated. This involves the creation of stepped batters to the edge of each channel, which, in turn, allow for the regeneration of riparian vegetation. A vegetated buffer is also to be provided to the battered edge of each channel, functioning as a vegetated corridor for local fauna. The overall width of each channel and associated buffer varies. Save for one location, the width varies from 43.5 to 53.8 metres. The southern drainage channel and buffer reduces to a width of 28.7 metres at its south-eastern corner.
  1. [23]
    In the area to be dedicated to Council, it is proposed to implement a comprehensive rehabilitation plan to restore, and protect, known ecological values. The rehabilitation plan envisages: (1) the rehabilitation/re-establishment of a significant patch of Saltmarsh in the area inside of the moat at the south-eastern end of the development footprint; (2) re-vegetation of an area with Blue Gum, which is protected from the estuarine environment, in part, by a low bund; (3) new channel works to facilitate tidal flushing of the remaining moat; (4) rehabilitation to, and planting of, riparian vegetation around the edges of the moat and along the north, east and southern boundaries; and (5) the provision of a walking track and two nature appreciation platforms. The evidence established the rehabilitation works will significantly enhance the biodiversity and conservation value of this part of the land, and will provide an improved connection to the estuarine wetlands to the immediate north and south[16].
  1. [24]
    The proposed development also involves minor upgrades to public transport facilities. An existing bus stop, which is located directly opposite the land, is to be upgraded. A new bus stop is also to be provided at a location adjoining the land.
  1. [25]
    In describing the proposed development, the written submissions prepared on behalf of Council emphasise it is ‘not just any retirement facility[17].  Attention was drawn in this regard to a response given on behalf of GTH to a request made by the need experts during their joint meeting. The response[18] states that GTH intends to operate the proposed development under the Manufactured Homes (Residential Parks) Act 2003, and would accept a condition giving effect to this intention. The Act contemplates particular tenure arrangements.  In simple terms, it anticipates that residents of a use operated under the Act, lease a defined area (home site) from a park operator. The lease contemplates a dwelling will be erected in the lease area, which is not permanently fixed to the land. The resident is the owner of the dwelling.
  1. [26]
    Council, through its legal team, took the technical point that the Manufactured Homes (Residential Parks) Act 2003 does not apply to the subject proposal. Specific reference was made to s 10(1) of the Act, which defines ‘a manufactured home’ in the following terms:

What is a manufactured home

(1) A manufactured home is a structure, other than a caravan or tent, that—

(a) has the character of a dwelling house; and

(b) is designed to be able to be moved from one position to another; and

(c) is not permanently attached to land.

  1. [27]
    As was correctly submitted on behalf of Council[19]: (1) there is no evidence to demonstrate the proposed development satisfies two of the three cumulative elements of s 10(1), namely subsections (b) and (c); and (2) the evidence confirms it is highly unlikely, if not implausible, the proposed units may be moved from one position to another as envisaged by subsection (b)[20].  Accordingly, I was not persuaded the Manufactured Homes (Residential Parks) Act 2003 has any application to the subject proposal.
  1. [28]
    Mr Litster QC submitted this was not without consequence. He developed a point that can be reduced to this proposition: the assessment carried out by the need experts misfired because[21] it wrongly assumes the proposed development will be operated under the Manufactured Homes (Residential Parks) Act 2003.  Whilst I am not persuaded this Act has application to the proposed development, I do not accept it follows that the need evidence ‘misfired’. Rather, I agree with Mr Sullivan QC’s submission that the point is a ‘red herring[22]. This is so for two reasons.
  1. [29]
    First, during the course of the hearing, I expressed a preliminary view that the Act did not appear to have application to the proposed development. In response, Mr Sullivan QC quite properly sought instructions from his client, and withdrew the offer of the condition during his oral address. This was said to avoid the creation of a ‘false or collateral issue[23]. I agree it achieved this purpose. The application of the Act to the proposed development ceased to be an issue once the condition offered by GTH was formally withdrawn.
  1. [30]
    Second, the need assessment did not, in any event, misfire. This is made good having regard to the oral evidence of the need experts. In evidence, Mr Duane, Ms Wells and Ms Muelman made it clear the Act did not alter their assessment one way or another. Council did not engage with, or confront, this evidence in its submissions. Further, Council did not confront an exercise undertaken by Mr Sullivan QC[24]. In his oral submissions, Mr Sullivan QC directed the court’s attention, in a comprehensive way, to those parts of the evidence demonstrating the need assessment was not constrained by the Manufactured Homes (Residential Parks) Act 2003. The submissions made in this regard were compelling.
  1. [31]
    Accordingly, I am satisfied the need evidence proceeded on an appropriate footing.

The statutory assessment and decision making framework

  1. [32]
    The statutory assessment and decision making framework for this appeal is prescribed by the Planning Act 2016 (PA). It provides for the application to be assessed in accordance with, inter alia, s 45, and decided in accordance with ss 59(3) and 60.
  1. [33]
    It was common ground the statutory assessment framework should be approached consistent with the decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16.  This decision stands for the proposition that the discretion to decide an impact assessable development application under the PA is more flexible than its statutory predecessor, and is unconstrained by a conflict and grounds test. I have approached the exercise of the planning discretion with this proposition in mind.
  1. [34]
    I have also approached the exercise of the discretion cognisant of the clear words of s 45(5)(a)(i) of the PA, which provides that GTH’s application must be assessed against the applicable assessment benchmarks. As I have said, the primary assessment benchmark for this appeal is City Plan. Council’s notified reasons for refusal allege non-compliance with four aspects of this planning document, namely: (1) the Strategic framework; (2) the Open space zone code; (3) the Environmental significance overlay code; and (4) the Flood overlay code.
  1. [35]
    It is convenient to deal with those parts of City Plan touching upon environmental/ecological considerations first.

City Plan - environmental/ecological constraints

  1. [36]
    It is uncontroversial this appeal is to be conducted as a hearing anew[25], with the court standing in the shoes of the assessment manager under the PA[26]. In the exercise of this jurisdiction, the court does not have a plenary power to do whatever is thought to be in the public interest for the benefit of environmental conservation[27].  Rather, the exercise of the planning discretion is guided by the assessment benchmarks. They influence the extent to which development is permitted to have an impact upon the environment. In this regard, I repeat what I said in Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 at paragraph [58][28]:

…The extent to which development of privately owned land should be permitted to impact on its existing environment is influenced substantially by the formal instruments of planning control. It is the planning authorities who accept responsibility for the identification of areas where environmental conservation is appropriate. The formal identification of such areas is contained in the adopted planning controls. Where there is to be a balance struck between environmental considerations, and the entitlement of private ownership, as would be expected, the planning controls are to be closely examined. The planning scheme is, after all, said to embody a contemporary statement of the public interest.

  1. [37]
    City Plan includes a number of parts that inform the extent to which new development is permitted to impact on the environment. Those parts, taken in combination, articulate a clear planning strategy having application to the land. In its simplest form, the planning strategy is expressed in s 3.7.3.1(9) of the Strategic framework. This provision provides guidance as to the balance to be struck between new development and the ‘green space network’, of which the land forms part. It states:

Development does not erode and, wherever practicable, contributes to the expansion of the extent, function and values of the green space network”.

  1. [38]
    Section 3.7.3.1(9) requires development in the planning scheme area to do two things: (1) not erode the extent, function and values of the ‘green space network’; and (2) where practicable, expand the extent, function and values of the ‘green space network’. As would be expected in a modern planning scheme such as City Plan, there are numerous provisions that develop and advance this strategy. Some of those provisions articulate particular requirements against which development is to be examined. The most detailed expression of those requirements, in the circumstances of this case, are found in two overlay codes, namely the Environmental significance overlay code (ESOC) and the Flooding overlay code (FLOC).
  1. [39]
    Overlays identify locations in Council’s planning scheme area that reflect state and local level interests having one, or more, of four recognised ‘characteristics[29].  Two of the characteristics are: (1) a state or local level interest having ‘particular sensitivity to the effects of development’; and/or (2) ‘a constraint on land use or development outcomes’.  These characteristics, in my view, fairly describe the ecological and flooding constraints affecting the land.
  1. [40]
    Overlays are mapped[30].
  1. [41]
    City plan mapping reveals the land is affected by five overlays of relevance to environmental/ecological considerations, namely: (1) the Flood overlay; (2) the Environmental significance – Biodiversity areas overlay; (3) the Environmental significance – Priority species overlay; (4) the Environmental significance – Vegetation management overlay; and (5) the Environmental significance – Wetlands and watercourses overlay. Not all of the land is touched by each and every one of these overlays. Section 8.1(6) of City Plan clarifies that a mapped overlay only applies to that part of the premises affected by it.
  1. [42]
    Flood overlay map 12 reveals the land, save for a narrow but elongated strip adjoining the western boundary (Galleon Way), is covered by an overlay described as ‘flood assessment required’. That overlay is to be read with the FLOC, which touches, albeit lightly, on environmental constraints.
  1. [43]
    Overall outcome (3)(k) of the FLOC states:

Development does not occur at the expense of other environmental values.”

  1. [44]
    That development is not to occur at the expense of ‘other environmental values[31], in a flooding context, is reinforced by Performance outcome PO15 of the FLOC. This provision of the code has no corresponding acceptable outcome, and states:

Works to mitigate flood risks avoid adverse impact on other environmental values.

  1. [45]
    There are four Environmental significance overlay maps of relevance to the land.
  1. [46]
    Environmental significance – Biodiversity areas overlay map 15 identifies matters of state and local environmental significance. The map reveals the land forms part of a biodiversity area known as the Hinterland to coast critical corridor. This corridor is a matter of local environmental significance. The mapped corridor includes an area to the west of Galleon Way, which is developed, in part, with low density residential uses, and designated ‘Substantial remnant’. The ecologists identified three narrow fingers of vegetation that weave through this residential development. The middle and southern most fingers are interrupted by Galleon Way, and provide a connection to the land for local fauna. 
  1. [47]
    Environmental significance – Priority species overlay map 16 identifies that a small part of the land, in proximity to Currumbin creek, is mapped as a matter of state environmental significance.
  1. [48]
    Environmental significance - Vegetation management overlay map 16 identifies two patches of General priority vegetation on the land. One partly adjoins Currumbin creek. The other is located a short distance to the west. These patches of vegetation are regarded as matters of local environmental significance. An Acceptable outcome for Performance outcome PO23 of the ESOC anticipates this area is to be dedicated to Council, or subject to a statutory covenant under the Land Title Act 1994. The purpose of these measures is to ensure the area mapped is protected in perpetuity.
  1. [49]
    Environmental significance – Wetlands and watercourse overlay map 16 identifies that: (1) Currumbin Creek is a Major watercourse of local environmental significance; (2) the existing drainage channels on the land are designated as Canals and lakes, being matters of local environmental significance; and (3) the land contains two distinct areas of local significant wetlands, being matters of local environmental significance. The mapped wetlands are located on that part of the land enclosed by the moat, and in the south-western corner coincident with a patch of Saltmarsh.
  1. [50]
    The Environmental significance overlay mapping referred to above works hand-in-hand with the ESOC. The purpose of this code is stated as follows[32]:

The purpose of the Environmental significance overlay code is to identify and protectmatters of environmental significance and ensure that development is consistent with, and contributes to, the achievement of the objectives of theNature Conservation Strategy.” (emphasis added)

  1. [51]
    The purpose of the ESOC is two-fold.
  1. [52]
    First, to identify and protect ‘matters of environmental significance’.
  1. [53]
    This phrase is a defined ‘Administrative’ term for the purposes of City Plan[33].  The definition is as follows:

The collective term referring to any environmental matter that is either a matter of national environmental significance, matter of state environmental significance or matter of local environmental significance.

  1. [54]
    Second, the purpose seeks to ensure development is consistent with, and contributes to, the objectives of the ‘Nature conservation strategy’. 
  1. [55]
    What is the Nature conservation strategy?
  1. [56]
    This is not a defined term. Rather, I have treated it to be a reference to the nature conservation strategy articulated in Part 3 of City Plan, being the Strategic framework.
  1. [57]
    The Strategic framework sets the policy direction for City Plan, and has a stated ‘planning horizon’ of 2031[34]. For the purposes of describing the policy direction, the Strategic framework has five components. The level of detail, and shape, given to any particular policy direction increases as one descends from the first component of the Strategic framework, namely the strategic intent, down to the last component, comprising specific outcomes. The former is a high level vision statement for the entire planning scheme area. The latter are intended to represent a more refined expression of policy.
  1. [58]
    Section 3.7 of the Strategic framework is titled ‘Living with nature’. It is one of six city shaping themes that play an important role in ‘shaping the future growth and managing change across the city[35]. The theme is supported by a number of ‘strategic outcomes’.  It is necessary to dwell upon two strategic outcomes, namely ss 3.7.1(1) and (4). Both have relevance to ecological/environmental issues for determination in this appeal.
  1. [59]
    Strategic outcome 3.7.1(1) states:

A comprehensive green space network of natural landscape areas is enhanced, maintained and protected for the nature conservation and recreation needs of the city and enhances the city’s powerful image of green, gold and blue.

  1. [60]
    This strategic outcome refers to a ‘network’ of natural landscaped areas, which are to be enhanced, maintained and protected for, inter alia, nature conservation. The extent of the network captured by this provision is reflected in s 3.7.3.1(1)(c) of City Plan, which is a specific outcome relevant to the ‘green space network’ element.  It confirms the ‘green space network’ includes, inter alia: (1) biodiversity areas; and (2) other matters of environmental significance. 
  1. [61]
    Biodiversity areas are mapped. They are said to be fundamental elements of the green space network. So much is clear from s 3.7.4.1(2) of City Plan. This is a specific outcome applying to the ‘nature conservation’ element and states, in part:

Biodiversity areas are fundamental elements of the city’s green space network. These areas are conserved to maintain diversity of terrestrial, aquatic and marine species, ecosystems and ecological processes. Mapped biodiversity areas include:

(b) hinterland to coast critical corridors that link core habitat systems and isolated areas of biodiversity value by retaining existing vegetation and restoring degraded areas to enhance fauna movement between different ecosystems and landscapes; and…

  1. [62]
    The land is included in the Hinterland to coast critical corridor, which is a mapped biodiversity area. The above provision expressly recognises that such an area is a fundamental element of the city’s green space network.
  1. [63]
    Specific outcome 3.7.4.1(2)(b) identifies the function served by the Hinterland to coast critical corridor. The function will be protected by ‘retaining existing vegetation and restoring degraded areas to enhance fauna movement between different ecosystems and landscapes’. That existing vegetation is to be retained, and degraded areas rehabilitated, is a consistent theme throughout the Strategic framework.
  1. [64]
    The green space network includes ‘matters of environmental significance’. This phrase, as I have already said, is a defined Administrative term. Guidance can also be found in s 3.7.4.1(3), which states, in part:

The city’s matters of environmental significance include:

  (a) native vegetation of national, state or local significance;

  (b) coastal environments, wetlands and waterways;

  …

  (d) hinterland to coast critical corridors…;

  (e) habitat for threatened species, such as koalas.

  1. [65]
    The importance of ‘matters of environmental significance’ to the nature conservation strategy in City Plan is reflected in Strategic outcome s 3.7.1(4). This provision applies to the ‘Living with nature’ city shaping theme, and states:

Matters of environmental significance within biodiversity areas are protected in situ.

  1. [66]
    The strategic outcome applies to the land because: (1) the land is included in the Hinterland to coast critical corridor biodiversity area; and (2) the land is mapped as supporting a number of matters of local environmental significance. The provision expressly contemplates that matters of environmental significance within a biodiversity area are ‘protected in situ’. Having regard to s 3.7.4.1(3) of City Plan, the matters to be protected in situ may include native vegetation of state or local significance, wetlands and koala habitat.
  1. [67]
    The requirement to protect matters of environmental significance in situ within biodiversity areas is refined in s 3.7.4.1(4) of City Plan.  This is a specific outcome applying to the ‘Nature conservation’ element in the Strategic framework, and is further evidence of a consistent theme in City Plan. It states:

In biodiversity areas, matters of environmental significance including vegetation and habitat for native flora and fauna are protected in situ, and degraded areas are restored to improve habitat quality and connectivity.

  1. [68]
    Returning to the ESOC, an examination of that code reveals it has a deliberate and clear connection with the nature conservation strategy articulated in the Strategic framework. The connection is evident in the overall outcomes of the code, as well as Performance outcomes.
  1. [69]
    The purpose of the ESOC will be achieved through nine overall outcomes identified in s 8.2.6.2(2).  Overall outcomes (2)(a)(iv), (e) and (f) align with the Strategic framework provisions discussed in paragraphs [61], [65] and [67] above. The provisions require matters of environmental significance, and their associated buffers, to be protected and enhanced. The overall outcomes state:

(a) Matters of environmental significance are identified, protected in situ and enhanced to maintain flora and fauna diversity within:

(iv)  Hinterland to coast critical corridors.

 And:

(e) Wetlands, watercourses and their associated buffers (as prescribed in RO2) are protected and enhanced.

 And:

(f) Buffers are provided between matters of environmental significance and any proposed development, to manage impacts.

  1. [70]
    Overall outcome (2)(a)(iv), along with a number of Performance outcomes in the ESOC, expressly call for matters of environmental significance to be ‘protected in situ’. This phrase is defined in City Plan as follows:

For the purposes of the Environmental significance overlay code matters of environmental significance must not be damaged or removed, and the matter cannot be offset.

  1. [71]
    That matters of environmental significance must not be damaged or removed, and cannot be offset, means they are to be treated as constraints to new development, and, importantly, respected. This is to ensure development does not, inter alia, erode the extent, function or values of the green space network.
  1. [72]
    Overall outcome (2)(e) of the ESOC expressly incorporates ‘RO2’ as prescribing associated buffers for wetlands and watercourses. RO2 is contained in Table 8.2.6-1 of the ESOC and identifies ‘Required outcomes’ for accepted development.  Relevantly, it provides that development does not occur within 100 metres from the outer landward boundary of a local significant wetland, as identified on the Wetlands and watercourse overlay map. 
  1. [73]
    The ESOC does not limit itself to the ‘protection’ of matters of environmental significance. It also requires these matters, where degraded, to be rehabilitated. In this regard, overall outcome (2)(b), which is consistent with s 3.7.4.1(4) of the Strategic framework, states:

Degraded matters of environmental significance are protected and rehabilitated.

  1. [74]
    The ESOC includes Table 8.2.6-2, which sets out benchmarks for assessable development in the form of Performance outcomes, and Acceptable outcomes. Three Performance outcomes are of particular relevance to this appeal, namely PO3, PO5 and PO26. Each are consistent with, and advance, the overall outcomes of the code. They are also consistent with the nature conservation strategy articulated in the Strategic framework.
  1. [75]
    Performance outcome PO3, which has no accompanying acceptable outcome, is in the following terms:

“Development within the Hinterland to Coast Critical Corridors as identified on the Environmental Significance – biodiversity areas overlay map is located and designed to:

  1. (a)
     provide corridors of sufficient dimensions and characteristics that will enable adequate movement of fauna through the site;
  1. (b)
     protect in situ matters of environmental significance and associated buffers;
  1. (c)
     protect in situ, vegetation identified on the Environmental significance – vegetation management overlay map and habitat for native flora and fauna;
  1. (d)
     link matters of environmental significance, existing corridors and/or conservation estate reserves on adjacent properties;
  1. (e)
     maintain and improve upon the regional connectivity of the Hinterland to Coast Critical Corridors; and
  1. (f)
     allow for rehabilitation of disturbed, cleared or modified areas that form part of the Hinterland to Coast Critical Corridors.

(emphasis added)

  1. [76]
    Performance outcome PO5 states:

Buffers are provided to wetlands and watercourses identified on the Environmental significance – wetlands and watercourse overlay map to ensure the:

(a)  the protection of matters of environmental significance mapped onsite or identified through an ecological site assessment;

(b) unimpeded movement of fauna along the watercourse;

(c) water quality is maintained;

(d) bank stability; and

(e) protection of property and infrastructure.

  1. [77]
    Performance outcome PO5 is accompanied by five Acceptable outcomes, two of which are relevant to this appeal. Acceptable outcomes AO5.3 and AO5.5 state:

AO5.3

Buffers at least 100m wide are provided between the development and the outer landward boundary of a Local significant wetland, as identified on the Environmental significance – wetlands and watercourse overlay map.

And:

  AO5.5

Buffers at least 30m wide are provided between the development and the outer bank of a watercourse as identified on the Environmental significance – wetlands and watercourse overlay map.

  1. [78]
    Performance outcome PO26 deals with ‘rehabilitation’. The provision is in the following terms:

Disturbed cleared or modified areas are rehabilitated where they form part of:

(a)  an ecological corridor; or

(b) matters of environmental significance and associated buffers; or

(c) areas identified within an Ecological Site assessment as requiring rehabilitation.

  1. [79]
    The implementation of the nature conservation strategy is not limited to the ESOC and FLOC. City Plan also implements the strategy through particular zones where development is required to respect environmental and ecological constraints. Section 3.7.2 of the Strategic framework is of particular relevance in this regard.
  1. [80]
    Section 3.7.2 of the Strategic framework is titled ‘Element - natural landscape areas’. A ‘Note’ to the section confirms that ‘Natural landscape areas are locations’ in one of five zones, including the Open space zone. Some 8.1 hectares, or 60%, of the land is included in this zone.
  1. [81]
    Three specific outcomes are sought by City Plan for the Natural landscapes element. Council relies upon specific outcome (1), which states:

Natural landscape areas are retained and enhanced to perform essential functions such as nature conservation, cultural heritage, scenic amenity, and other green space values, which are vital to protecting the city’s matters of environmental significance, including biodiversity areas and landscape character.”  (emphasis added).

  1. [82]
    The intent of specific outcome (1) above, along with the tenor of the nature conservation strategy in the Strategic framework, can be readily identified in the following overall outcomes in the Open space zone code[36]:

(2)  The purpose of the code will be achieved through the following overall outcomes:

(a)Land uses -

(vi)include the protection and rehabilitation of matters of environmental significance onsite; and…”

(b) Character consists of –

(iii)intact and degraded matters of environmental significance that are intended to be protected and rehabilitated.

(c)Built form –

(v)is setback from matters of environmental significance onsite.

(d)Lot design –

(ii) protects intact and degraded matters of environmental significance.

  1. [83]
    Against the above background, it can fairly be said that City Plan (in particular the Strategic framework, the ESOC and the Open space zone code) contains a comprehensive planning strategy to balance environmental considerations on the one hand, against the entitlement to develop privately owned land on the other. The balance is struck, and deliberately so, in favour of environmental considerations where land is constrained by matters of environmental significance, and located in a biodiversity area. In these areas, new development is required to respect matters of environmental significance and not erode the extent, function or values of the green space network. To achieve this intended balance, City Plan requires new development to be designed to, inter alia, protect matters of environmental significance, and rehabilitate them where degraded.
  1. [84]
    The Council’s reasons for refusal allege the proposed development is inconsistent with this strategy, which is said to sound in environmental impacts. It is also said to sound in an overdevelopment of the land. GTH rejects both of these contentions.

Is the development designed to protect environmental constraints?

  1. [85]
    Having regard to the Master plan, the proposed plan of rehabilitation and the body of ecological evidence, I am comfortably satisfied the proposed development will protect, rehabilitate and enhance the environmental values identified, and mapped, in the eastern part of the land. This area is proposed to be dedicated to Council for conservation purposes. It is 5.625 hectares in size. The rehabilitation will benefit not only the land, but the region more generally.
  1. [86]
    The extent to which the proposed development would ‘enhance’ ecological values of the eastern part of the land was explored by Mr Sullivan QC in cross-examination of Council’s ecology experts. In this regard, it was readily conceded the remediation of the eastern part of the land created a ‘significant environmental benefit[37] for fishery and aquatic ecology, yielding a ‘significant increase in biodiversity[38]. It was also readily conceded the proposed rehabilitation would be a ‘positive step’ for the eastern part of the land[39], having a ‘significant ecological benefit[40] from a Terrestrial ecology perspective.
  1. [87]
    Whilst all of the ecology experts shared similar views about the benefits of the rehabilitation regime proposed by GTH, Council’s reasons for refusal focus on a different aspect of the development. The reasons are, primarily, directed towards the western part of the land where the development footprint is located.
  1. [88]
    It has already been observed the proposed Master plan divides the land into a western and eastern portion, each serving different purposes. The western portion is the proposed development footprint, which is in excess of 8 hectares, and is severed in two locations by existing drainage channels. All vegetation within the footprint would be cleared[41] to construct a development platform. Extensive earthworks would also be carried out. The volume of fill required to construct the platform is in the order of 85,750m3
  1. [89]
    The environmental impact associated with the creation of the development footprint can be examined having regard to terrestrial and aquatic ecology considerations. To examine these matters, I had the benefit of evidence from four ecologists. Mr Moffit (Terrestrial) and Dr Thorogood (Aquatic) were retained by GTH. Dr Watson (Terrestrial) and Ms Thorburn (Aquatic) were retained by Council.
  1. [90]
    Dr Watson was critical of the development, and said the design ignored the terrestrial ecological values primarily found in the western part of the land. He pointed to three impacts of the development in this regard[42].
  1. [91]
    First, Dr Watson said the development, as designed, would result in the loss of 690 trees. More particularly, he said the development would result in the loss of koala habitat (100 trees), and habitat exhibiting general terrestrial ecological values. As to the value of the habitat to be lost, Dr Watson assessed 2.4 hectares to be high value, and 2.2 hectares to be medium value.
  1. [92]
    Second, Dr Watson was critical of the development because it would remove habitat that provides a broad linkage, and connection, for fauna along the western side of the land. The extent of urban development located in this linkage at present is modest, which ensures it facilitates movement in a substantially continuous north-south and east-west direction. The development proposed will not replace this link. The lost habitat will be replaced with substantial urban form, save for the two drainage channels that will be rehabilitated to provide much narrower fauna corridors. Whilst these channels will facilitate fauna movement in all directions, they are disconnected from each other by the development footprint, creating a fragmented, rather than consolidated area of habitat. In Dr Watson’s view, this design solution would not replace the habitat lost in functional and empirical terms, and would significantly impede terrestrial fauna movement in the local landscape.
  1. [93]
    Third, Dr Watson was critical of the links provided by the development to the local area for fauna. It was his opinion that linkages from the surrounding landscape to the land will be compromised, and made redundant, as a result of the development layout. This was said to arise because vegetation along the frontage of the land (for a distance of about 500 metres) will be removed in circumstances where it provides a wide refuge area for local fauna.
  1. [94]
    A number of visual aids confirm the development footprint will require the koala habitat to be cleared, which is located in the Medium density residential zone. It will also require an area of Swamp oak, located in the Open space zone, to be cleared. This vegetation provides habitat for terrestrial fauna, including common species, migratory bird and shorebird species[43].
  1. [95]
    Mr Moffit did not cavil with Dr Watson’s assessment of the area of vegetation, and number of trees, to be lost to the proposed development footprint[44].  Nor did he disagree that the vegetation to be cleared included koala habitat.  This point of agreement was, in any event, supported by historical records for koalas in the local area. Evidence of koala activity (scats and scratches) was recorded as recently as March 2019 in the western part of the land[45].  It was also uncontroversial that the Swamp oak to be cleared by the development provided suitable habitat for native terrestrial fauna, and was associated with a matter of environmental significance mapped in City Plan, namely a locally significant wetland corresponding with the internal area of the trotting track.
  1. [96]
    Unlike Dr Watson, Mr Moffit was not concerned about the terrestrial habitat to be cleared to make way for the proposed development footprint. In his view, this was because the vegetation to be cleared had ‘some local value, and contributes to some degree to the Hinterland to coast critical corridor[46], but fell short of being a matter of environmental significance.  Mr Moffit made three points in this regard.
  1. [97]
    Mr Moffit drew attention to Council’s environmental significance overlay mapping. He pointed out that the vegetation to be cleared was not mapped as a matter of environmental significance. That the vegetation is not mapped is correct. This does not however advance the matter in any substantive way.
  1. [98]
    The koala habitat, once identified on the land, is, in my view, to be protected in situ by operation of Performance outcome PO3(c) of the ESOC. This provision of the ESOC requires development to be designed to protect in situ ‘habitat for native flora and fauna’. Relevantly, this requirement is not tied to a particular overlay map where the vegetation is designated a matter of environmental significance.
  1. [99]
    Further, the content of the overlay mapping should not necessarily be treated as the final word about the location of all matters of environmental significance. The ESOC anticipates that all matters of environmental significance, on, and adjacent to, the development, are to be identified by way of a site assessment. This assessment is required by Performance outcome PO1 of the code and may identify that Council’s mapping overstates the extent of environmental values. Conversely, it may identify that particular matters of environmental significance are not reflected in Council’s mapping. That this ‘ground truthing’ exercise is anticipated is clear from a number of provisions of City Plan, including Performance outcome PO17 of the ESOC. This provision requires State significant species, and their habitat, to be protected in situ where identified on a Priority species overlay map, or ‘through an ecological assessment’. Whether it is identified on a map, or by site assessment, this provision requires koala habitat to be protected. That it is to be protected is consistent with s 3.7.4.1(3) of the Strategic framework, read with numerous provisions of City Plan. The former recognises the habitat as a matter of environmental significance. The broader reference to other provisions of City Plan includes Performance outcome PO3(b) of the ESOC, which requires the habitat as a matter of environmental significance to be protected in situ.
  1. [100]
    A site ecological assessment has been conducted on the land, and has identified the existence of habitat for native fauna. The habitat is suitable for fauna of nature conservation interest, namely koalas, and is described as being of high and medium value. Given the habitat is located within a biodiversity area, and is suitable for native fauna of State interest, Performance outcome PO3(c) of the ESOC is engaged. This provision, which is set out above in paragraph [75], makes it clear the habitat, once identified, is to be protected in situ. To protect in situ precludes damaging, removing or offsetting the habitat.  The proposed development does not comply with this requirement of City Plan. Mr Moffit’s assessment does not give sufficient recognition to this non-compliance with City Plan.
  1. [101]
    The second matter relied upon by Mr Moffit was, in effect, a first principles assessment. He examined the value of the koala habitat to be lost to development. The assessment led Mr Moffit to concede the vegetation to be cleared had habitat value, but he said the value was less than a matter of local environmental significance[47]. He arrived at this view having regard to the size and location of the habitat. In this regard, it was pointed out that the habitat supports an individual koala[48], and is too small to be a ‘sole home range[49]. It was also pointed out that the habitat posed a risk to koalas accessing it from the west, noting they are required to cross Galleon Way[50]. This is a busy road with no fauna crossing facilities.
  1. [102]
    I have difficulty accepting Mr Moffit’s assessment in this respect. It sits uncomfortably with an assessment carried out as part of the development application. Consultants retained by GTH mapped the koala habitat to be lost as being of high, and medium, terrestrial ecology value. Mr Moffit and Dr Watson, in preparation for this appeal, reviewed that mapping and agreed with its contents. I accept this point of agreement. It points to a contrary position to that adopted by Mr Moffitt, namely it establishes the vegetation is valuable habitat for a native species of State conservation interest. Habitat of this kind is recognised by City Plan as being a matter of environmental significance, and is to be protected.
  1. [103]
    Further, Mr Moffitt’s assessment fails to take into account that the patch of vegetation to be removed, whilst considered small in isolation, has a role to play in a bigger picture. As Dr Watson put it, the ecological values of the land are considered high due to its strategic location, and direct connections to conservation areas, bushland habitats and Currumbin Creek[51].  The connection is facilitated by the habitat identified on the western part of the land. To remove the vegetation, and not replace with like-for-like, removes an established fauna connection in a strategic location. This, in my view, contributes towards the erosion, rather than the protection, of identified biodiversity values within the green space network. In such circumstances, removal of the koala habitat would not contribute to the achievement of the nature conservation strategy articulated in City Plan.
  1. [104]
    The land’s strategic location in an ecological sense is reflected in its inclusion in a biodiversity area. These areas are fundamental elements of the city’s green space network, and are to be conserved. The purpose of this conservation is to, inter alia, maintain the diversity of terrestrial species[52], and enhance fauna movement between different ecosystems and landscapes. The clearing of the koala habitat in the western part of the land would not restore, or improve habitat quality and connectivity as is envisaged by, inter alia, ss 3.7.4.1(2)(b) and 3.7.4.1(4) of the Strategic framework.
  1. [105]
    The third matter relied upon by Mr Moffit related to the patch of Swamp oak surrounding the man made ponds. He accepted this vegetation provided habitat to native fauna, but was not concerned about it being removed given, at a bioregional scale, the extent of reserves for this vegetation community are high in the Gold Coast Region[53].
  1. [106]
    This aspect of Mr Moffit’s evidence was underwhelming. I do not accept it.
  1. [107]
    The destruction of the patch of Swamp oak located in the western part of the land is not justified by pointing to the high reserves of that vegetation community across the Gold Coast. Such a view assumes the vegetation is expendable where reserves are high. City Plan provides no support for this view[54].
  1. [108]
    Armed with the overlay mapping, and the onsite ecological assessment, the ultimate conclusion was inescapable. City Plan requires the Swamp oak, which provides suitable habitat for native terrestrial fauna, to be protected in situ, irrespective of its proliferation across the Gold Coast area[55].  That the design of the development will not protect this vegetation is not without consequence. It will have a tangible environmental impact; the clearing will not restore, or improve, habitat quality and connectivity as is envisaged by the Strategic framework. As a consequence, it will not contribute to the achievement of the nature conservation strategy articulated in City Plan.
  1. [109]
    I am satisfied, having regard to Dr Watson’s evidence, read with Appendix N of the Terrestrial ecology joint report, that the proposed development has not been designed to protect terrestrial ecological values within the boundaries of the development footprint. More particularly, the evidence establishes the proposed development fails to:
  1. (a)
    protect in situ koala habitat, being native fauna of particular conservation interest[56], contrary to Performance outcome PO3(c) of the ESOC; and
  1. (b)
    protect in situ high and medium value native terrestrial habitat, contrary to Performance outcome PO3(c) of the ESOC.
  1. [110]
    Non-compliance with City Plan is not limited to PO3(c) of the ESOC. The loss of koala habitat gives rise to non-compliance with the Strategic framework, and other provisions of the ESOC.
  1. [111]
    Section 3.7.4.1(3) of the Strategic framework provides a non-exhaustive list of the ‘city’s matters of environmental significance’. They include hinterland to coast critical corridors, and habitat for threatened species, such as koalas. Here, an ecological site assessment has identified high/medium value habitat for koalas located in a biodiversity area. This habitat is to be treated as a ‘matter of environmental significance’ identified in accordance with PO1 of the ESOC. As a matter of environmental significance located within a biodiversity area, the habitat is required to be protected in situ. This is expressed in clear terms by ss 3.7.1(4) and 3.7.4.1(4) of the Strategic framework. It is also a requirement of overall outcome (2)(a) and Performance outcomes PO3(b) and PO17 of the ESOC. By failing to protect the koala habitat in a biodiversity area, the development does not comply with the Strategic framework and, at the very least, fails to comply with overall outcome (2)(a) and Performance outcome PO3(b) of the ESOC. The non-compliances are inconsistent with the development contributing to the achievement of the nature conservation strategy articulated in City Plan.
  1. [112]
    The non-compliance with City Plan arising as a consequence of the development clearing native fauna habitat is not without consequence.
  1. [113]
    Exhibit 27 is an aerial photograph of the land with the location of each koala habitat tree marked for identification. Overlayed on the land (and koala trees) are contours, cadastre, a zone boundary and a translucent area representing the development footprint. A cursory review of the exhibit makes good the Council’s point - the proposal is an overdevelopment of the land. All of the vegetation identified on the aerial photograph within the Medium density zone will, contrary to City Plan, be removed to make way for the development footprint.
  1. [114]
    The extent of clearing is not limited to land included in the Medium density residential zone. Part of the land included in the Open space zone is vegetated with Swamp oak, and as Exhibit 27 confirms, is to be cleared to make way for the development footprint. As I have said, this vegetation has an association with a mapped wetland of environmental significance. Its removal is contrary to City Plan, in particular PO3(b) of the ESOC, and a further indicator of overdevelopment.
  1. [115]
    The clearing is not just a symptom of overdevelopment. It would also have tangible ecological impacts. The development will remove habitat for native fauna in circumstances where this is directly at odds with the intended function of a biodiversity area such as the Hinterland to coast critical corridor. To remove the habitat is to erode, rather than protect, an identified ecological value[57]. The true impact of that erosion is clear once it is appreciated that the lost habitat, in terms of area and function, is not proposed to be replaced, or made good by the development in the western part of the land.
  1. [116]
    Dr Watson’s evidence establishes that linkages from the surrounding landscape to the land for koalas will be compromised, and made redundant, as a result of the development layout. The vegetation along the frontage of the land, which provides a wide fauna refuge, will be removed. The wide refuge that is lost is not made good by planting in its stead a 9 metre wide strip of tube stock that take 8 years to mature. Nor is it made good by reducing the existing wide refuge area to narrow connections at the western end of each existing drainage channel.
  1. [117]
    Dr Watson also took issue with the setback proposed within the development footprint to the high bank of the two drainage channels referred to above. As I have already said, they are to be retained and rehabilitated to incorporate aquatic and terrestrial ecosystems. In the joint report, Dr Watson indicated the setback provided was inadequate, and should be in the order of 30 metres ‘as per City Plan[58].  This is a reference to a requirement of Acceptable outcome AO5.5 of the ESOC. There was disagreement between the terrestrial ecologists about the required setback distance to the rehabilitated drainage channels. A significant reason for that disagreement turned on the interpretation of Acceptable outcome AO5.5 of the ESOC.
  1. [118]
    Mr Moffit approached Acceptable outcome AO5.5 on the footing it did not apply to the drainage channels because they are not ‘watercourses’ mapped on the Wetlands and watercourse overlay map. This is correct. The drainage channels are not mapped in this way, which is a precondition to the operation of Acceptable outcome A05.5. Accordingly, I was persuaded that Dr Watson’s reliance upon AO5.5 was misconceived.
  1. [119]
    It does not, however, follow that the setback distances provided to the banks of each drainage channel is necessarily appropriate. The suitability of the design is to be informed by, inter alia, an examination of PO3 of the ESOC. PO3 requires development within the Hinterland to coast critical corridor to be located and designed to, inter alia: (1) provide corridors of sufficient dimensions and characteristics to enable adequate movement of fauna through the site; and (2) link matters of environmental significance, existing corridors and/or conservation estate/reserve on adjacent properties; and (3) allow for the rehabilitation of disturbed, cleared or modified areas that form part of the corridor. The issue to be determined is whether compliance is demonstrated with these aspects of PO3.
  1. [120]
    The proposed development is designed such that the two drainage channels provide a primary connection through the land[59], between the rehabilitated area in the east, to the habitat in the west[60]. The channels of the drains will support marine vegetation, while the batters and areas beyond (in the buffer area) are proposed to support terrestrial vegetation suitable for koalas, and other terrestrial species.
  1. [121]
    I am satisfied, having regard to the evidence, which was comprehensively traversed at paragraph 93 of GTH’s written submissions, that the design of the drainage channels, and their associated buffers, is appropriate to facilitate the movement of terrestrial fauna on the land. The evidence establishes that the rehabilitated drainage channels will be significantly greater in width than the corridors located on the western side of Galleon Way, and will include vegetation which is suitable for a ‘corridor’. As Dr Watson conceded, the corridors will be of sufficient width to allow koalas to move safely through them.
  1. [122]
    Whilst I am satisfied the drainage channels will be rehabilitated in a way that achieves compliance with PO3(a) and (d) of the ESOC from a terrestrial ecology perspective, I was not persuaded an appropriate design solution was achieved for the western extremity of each channel where it meets Galleon Way.
  1. [123]
    As I have already said, at present, the frontage of the land is vegetated with koala habitat. It presents, as Dr Watson pointed out, a wide vegetated refuge for fauna along Galleon Way. The development would reduce this refuge to effectively two narrow points, which correspond with the western end of each drainage channel. As I understand his evidence, Dr Watson was concerned this has the effect of concentrating the fauna linkage to two narrow points, as distinct from a wide refuge area.
  1. [124]
    This outcome was not, in Dr Watson’s view, appropriate. It was said to impede fauna movement. It was also said to expose koalas to greater risk of harm. In Dr Watson’s assessment, this impact was not cured by providing replacement tube stock planting along the frontage of the land. Nor was it cured by planting an area of Blue Gum vegetation separated from the frontage of Galleon Way by the development footprint.
  1. [125]
    I accept Dr Watson’s evidence. It establishes the development will have a tangible environmental impact. In the context of City Plan, the impact is a symptom that the design of the western edge of the development is a step away from, rather than towards, improving habitat quality, and connectivity, as is envisaged by, inter alia, ss 3.7.4.1(2)(b) and 3.7.4.1(4) of the Strategic framework.  It is also evidence of inconsistency with Performance outcome PO3(a) of the ESOC. 
  1. [126]
    Turning to aquatic ecology, Dr Thorogood and Ms Thorburn prepared a joint report. In that report, they identified the impacts of the proposed development on waterways and wetlands of, and adjoining, the land. Two of the impacts examined involved[61]: (1) the partial reclamation of the moat and western dams on the island inside the trotting track, along with the associated loss of marine plants and wetland; and (2) the proximity of the development to waterways and wetlands.
  1. [127]
    There was little controversy between Dr Thorogood and Ms Thorburn that the development would not protect all matters of environmental significance mapped on Council’s Wetlands and waterways overlay. So much is clear having regard to Exhibit 27, read in conjunction with the Environmental significance – Wetlands and watercourses overlay map 16[62]. These exhibits confirm the construction of the development footprint will result in the reclamation of the ponds, and part of the moat, in an area designated ‘Local significant wetlands’. These are ‘matter(s) of local environmental significance’.
  1. [128]
    That the development footprint will not protect all matters of environmental significance mapped on Council’s Wetlands and waterways overlay was agreed by Dr Thorogood and Ms Thorburn in their joint report. It was agreed[63] that 0.87 hectares of marine plants/wetland communities would be lost within the development footprint.   The community type, and area to be lost, was identified in Table 1 of the joint report, which is in the following form:

Community Type

Areas On-site (ha)

Area to be Lost (ha)

Proportion of Area on-site to be lost

Mangrove

1.02

0.40

39%

Saltmarsh (saltcouch, samphire and claypan)

0.23

0.11

48%

Grassland (mixed grasses with a small proportion of saltcouch)

0.05

0.04

80%

Swamp oak with a saltmarsh understorey/ below HAT

0.59

0.32

54%

Total

1.89

0.87

46%

  1. [129]
    The reclamation of land, and the associated loss of wetland and wetland plant communities, is contrary to the ESOC. In particular, it is contrary to overall outcomes (2)(a) and (2)(e) and Performance outcome PO3(b). Each of these provisions require development within the Hinterland to coast critical corridor to be designed and located to protect matters of environmental significance. Overall outcome (2)(a) and Performance outcome PO3(b) require these values to be protected in situ.
  1. [130]
    The reclamation of land mapped as wetland, and the associated loss of marine plants, is also non-compliant with ss 3.7.1(4) and 3.7.4.1(4) of the Strategic framework. As to the former, paragraph 67 of the waterways and wetlands joint report records the following point of agreement between Dr Thorogood and Ms Thorburn:

The proposed development does not protect all matters of environmental significance in situ, including the swamp oaks and mangroves associated with the man-made ponds and moat, and a portion of the patch of saltmarsh TEC that is a local significant wetland [3.7.1(4)].

  1. [131]
    Dr Thorogood accepted that ‘mapped’ ecological values would not be protected by the development, but took issue with the accuracy of Council’s mapping. In his view, the mapping did not accurately describe the extent of wetlands on the land. More particularly, based on his site assessment, it was Dr Thorogood’s opinion that the mapping did not discriminate between remnant functionally significant wetlands of true environmental significance, and areas of occasionally wet land unintentionally created by the historical placement, and subsidence, of fill material. Dr Thorogood, assisted by staff under his supervision, mapped: (1) the distribution of marine plants and wetlands across the land[64]; and (2) a derived highest astronomical tide.  The resulting map is Figure 4 to the joint report.
  1. [132]
    Figure 4 of the joint report was ‘ground truthed’ by Ms Thorburn[65]. She agreed the figure is the most accurate and up-to-date depiction of the distribution of marine plant communities on the land, and is suitable to assess the impacts of the development[66].
  1. [133]
    Armed with Figure 4 of the joint report, and a map prepared by GTH’s consultant in 2018[67], Ms Thorburn agreed that some parts of the land inside the trotting track were not currently functioning as a wetland contemplated by Council’s mapping[68].  These areas were described by Dr Thorogood as ‘cow paddock’. She also agreed with Dr Thorogood that[69]:

The stand of swamp oaks surrounding the dams in the western part of the island (to be lost) currently has limited ecological/fisheries value due to the poor tidal flushing of the dams and low connectivity with surrounding estuarine wetlands.

  1. [134]
    Whilst I accept there are clearly identifiable differences between the site assessment of each aquatic ecologist and Council’s overlay mapping for the land, it does not follow that the requirement to protect, and rehabilitate matters, of environmental significance is cast aside. This is because the assessment of marine plant and wetland communities to be lost as a consequence of the development (at paragraph [128]) takes into account the mapping inaccuracies identified by Dr Thorogood.  As paragraph 35 of the joint report makes clear, this assessment is based upon, inter alia, Figure 4. That figure reveals the proposed development will remove matters of local environmental significance, namely Saltmarsh inside the trotting track, and at the south-eastern end of the development footprint.  This has the consequence that, even allowing for the short comings in Council’s mapping, areas that qualify as matters of environmental significance will not be protected in situ by the development.  The development does not comply with this requirement of City Plan.
  1. [135]
    To overcome this difficulty, GTH submitted the court should not be concerned about the loss of wetland and marine/plant communities within the development footprint. As I understood the submission, the point made was that the present condition of the wetland and plants to be lost is low, or limited, in value due to poor tidal flushing[70]. I do not accept this submission.  Put simply, the reclamation of the moat, and removal of the ponds and surrounding patch of Swamp oak, is contrary to City Plan, even if its value is assessed as low or limited.  This is because City Plan does not suggest that matters of environmental significance are expendable because they have degraded. It expressly provides for the contrary position to prevail.
  1. [136]
    City Plan requires matters of environmental significance to be rehabilitated where they have been modified, cleared and/or degraded. Overall outcome (2)(b) and Performance outcomes PO3(f) and PO26 are of particular note in this regard. The provisions contemplate that degraded areas will be protected, and rehabilitated, where they involve matters of environmental significance, or, alternatively, form part of an ecological corridor, such as the Hinterland to coast critical corridor.
  1. [137]
    Here, the development does not protect, and rehabilitate all degraded areas of wetland in the west of the land, be they mapped, identified by an ecological assessment, or included in a biodiversity area. This, in my view, is contrary to the ESOC code. It is also contrary to the nature conservation strategy articulated in the Strategic framework.
  1. [138]
    The experts also disagreed about the sufficiency of the proposed buffers and setbacks from the development to the ecological features to be retained, and rehabilitated on the land. The sufficiency of a buffer or setback provided to a recognised wetland land is relevant to the issue of overdevelopment. Inadequate setbacks may be regarded as an indicator that development has been maximised at the expense of environmental constraints.
  1. [139]
    This point of disagreement is to be examined against the background of overall outcomes (2)(a) and (2)(e) and Performance outcomes PO3(a) and PO5 of the ESOC. Overall outcome (2)(e) requires wetlands and their associated buffers to be protected and enhanced. Overall outcome (2)(a) and Performance outcome PO3(a) require matters of environmental significance, and their associated buffers, to be protected in situ where located in the Hinterland to coast critical corridor. Performance outcome PO5 requires buffers to be provided to, inter alia, wetlands identified on Council’s mapping to ensure five cumulative elements are achieved. One of the stated elements requires the protection of matters of environmental significance mapped onsite, or where identified through an ecological site assessment.
  1. [140]
    Here, the evidence establishes the development has been maximised at the expense of providing an appropriate setback to a matter of environmental significance. This development outcome does not contribute to the achievement of the nature conservation strategy articulated in City Plan.
  1. [141]
    As a starting point, the evidence establishes the development footprint requires parts of a mapped locally significant wetland in the Hinterland to coast critical corridor to be removed. In so doing, the development intrudes not only into that part of the wetland which is removed, but also any buffer/setback that should be provided to the west of the area removed. This occurs at the interface between the eastern edge of the development footprint, and the area of land to be dedicated for conservation purposes. The design of the development in this respect is contrary to the requirements of City Plan mentioned in paragraph [139].
  1. [142]
    Turning to the setback/buffers that are provided in the design to rehabilitated and retained wetlands and plant communities, I am not satisfied they are adequate in a number of respects.
  1. [143]
    The plans of development indicate a setback/buffer is to be provided to the conservation area to the east. The width of this area varies over its length. At its closest point in the south, the setback/buffer depicted on the ‘Overlay-site plan’ appears to be about 10 metres wide to the eastern edge of building 9.  The setback, and buffer provided at this interface is, in my view, underwhelming for two reasons.
  1. [144]
    Overall outcome (2)(e) of the ESOC requires wetlands and their associated buffers to be protected. The setback distances contemplated by this provision are described by express reference to RO2 of the same code, which states:

Development does not occur within the following areas:

(c) within 100 metres from the outer landward boundary of a significant wetland, as identified on Environmental significance – wetlands and watercourse overlay map;” (emphasis added)

  1. [145]
    If the requirement for a 100 metre setback is applied as the relevant test, the setback distance provided in this particular location of the development falls well short. The extent of development intruding into this setback is significant. Buildings 8 and 9 and the associated access roads intrude within the prescribed setback. The extent of the intrusion is indicative of an overdevelopment of the land.
  1. [146]
    This point is not, however, determinative. The performance of the setback/buffer against PO5 of the ESOC should also be considered. This is because of a notable difference between PO5 and overall outcome (2)(e), both read together with RO2.
  1. [147]
    There is a tension between overall outcome (2)(e) and Performance outcome PO5 of the ESOC. As I have already observed, the former incorporates, by express reference, the setbacks prescribed by RO2 of the same code. Those setbacks are expressed as quantitative measures against which development is to be assessed. Compliance with these quantitative measures is binary; development either complies with the measure, or it does not. In contrast, Performance outcome PO5 of the same code does not incorporate the quantitative measures prescribed in RO2 to assess the acceptability of a setback to a wetland of environmental significance. The setback distances prescribed by RO2 are stated only as an acceptable outcome to PO5. This contrast suggests that RO2 is not necessarily absolute, or put another way, is more flexible than the overall outcome may admit. That PO5 admits of more flexibility does not, in any event, assist GTH in the circumstances here.
  1. [148]
    I accept, having regard to the evidence of Dr Thorogood and Mr Moffit, the development complies with subsections (b) to (d) of Performance outcome PO5. The evidence, however, falls short of demonstrating that the setback distance at the south-eastern end of the development to a patch of Saltmarsh is sufficient. At this interface, the ‘Overlay Site-Plan’ depicts a setback distance of 10 metres from the edge of building 9 to the Saltmarsh. The western edge of this setback area is a vertical face comprising fill, and/or a structure supporting building 9. Ms Thorburn made the point that this setback distance, and the design of the western edge of the setback, was not sufficient to protect the long term viability of the retained wetland. She explained this was because the width of the setback did not allow for the landward migration of the estuarine wetlands in response to sea level rise. I accept this evidence.
  1. [149]
    Ms Thorburn was cross-examined at length about this aspect of her evidence. The cross-examination did not shake her view. It was put to Ms Thorburn that landward migration could be accommodated by constructing a batter in the setback area, allowing Saltmarsh to migrate landward into the development footprint. She said the Saltmarsh patch could migrate to this extent, but made clear that this did not alleviate the concern raised because landward migration was still constrained by the edge of building 9.
  1. [150]
    I accept this evidence. It is difficult to escape that the edge of building 9 will operate, in effect, as a book end to landward migration of the Saltmarsh community. This is unacceptable in circumstances where City Plan requires the protection of wetlands, and their associated buffers, from the impacts of development.
  1. [151]
    In the end, I was left with the impression GTH sought to downplay the importance of Ms Thorburn’s criticisms of the sufficiency of this setback by suggesting two things: (1) it was an issue that ‘could be readily addressed’; and (2) the court need not be concerned because the issue was limited to a small patch of Saltmarsh that did not form part of the substantive areas to be rehabilitated[71]. Neither point is persuasive. Item (1) was not made good by the evidence. Item (2), in substance, is suggesting the issue is de minimus given the limited area involved. Whilst the area is limited, and the point may not of itself warrant refusal, it is one of a number of examples that bespeak a design that maximises the development footprint at the expense of ecological values, all of which fails to contribute to the achievement of the nature conservation strategy articulated in City Plan.
  1. [152]
    The aquatic ecologists also disagreed about the sufficiency of the buffers provided within the development footprint to the drainage channels that sever it in the north and south. It was appropriate for this to be considered given it was agreed the channels, which are mapped by Council as ‘Canals’, are functioning tidal waterways[72].  In the context of this point of agreement, Ms Thorburn suggested the ESOC code should be applied[73], which requires a setback of 30 metres to an outer bank of a watercourse identified on Council’s mapping. She pointed out that the development fell well short of this requirement, which provides for setbacks ranging from 8 to 16 metres[74]. In the joint report, Ms Thorburn also expressed the view that the design of the buffer, which comprises a battered slope to the outer bank of the waterway, was inadequate to protect its long term viability and to allow for landward migration of estuarine wetlands in response to sea level rise[75].
  1. [153]
    Dr Thorogood expressed a contrary view to Ms Thorburn. Central to Dr Thorogood’s opinion was the proposition that a 30 metre buffer was not required to provide adequate protection to the waterways. He relied upon a number of factors to support his opinion.
  1. [154]
    Dr Thorogood relied upon the ‘context’ of the proposed development (being a retirement facility) and the similarity of the buffer to other development (with wetland buffers) approved by Council in the early 2000s[76].  He also emphasised four matters, in his view, that work in combination to protect the ongoing ecological function of the watercourses, namely: (1) water quality within the channels will be appropriately managed because stormwater discharged into them will be ‘treated at source[77], which lessens the need to rely upon a setback to mitigate impacts[78]; (2) the buffers provided are sufficient to accommodate a range of vegetation for terrestrial and aquatic ecology purposes; (3) sea level is predicted to rise by 0.8 metres by 2100, which will be, in large part, contained within the existing drainage channels[79]; and (4) the batter to each channel is of sufficient size to permit marine plants to migrate up the slope to accommodate sea level rise without unacceptably diminishing the function, and width, of the buffer[80].
  1. [155]
    It was not made clear why the context of the development was of any particular significance in the assessment of the buffer/setback. Nor was their sufficient evidence to establish it was appropriate to benchmark the proposed setback/buffer against other development approved by Council in the early 2000s. Put simply, there was a paucity of evidence to establish any comparability between City Plan, and the repealed planning controls applying in the early part of the 2000s. That being said, I am satisfied the four numbered factors set out above, and relied upon by Dr Thorogood, should be accepted. In combination, they establish the setback/buffers proposed to the rehabilitated drainage channels will be acceptable.
  1. [156]
    Whilst the setback/buffers to the drainage channels will be acceptable from an aquatic ecology perspective, the evidence establishes, in my view, that the design proposed represents a minimalist solution. This is not unacceptable and does not warrant refusal. However, in circumstances where Council asserts the proposal is an overdevelopment of the land because it does not respect known ecological values, the provision of a minimalist solution in relation to the drainage channels within the development footprint is a relevant matter of context. It is also relevant to an assessment of whether the proposed development will result in a net ecological gain overall.
  1. [157]
    For the reasons given above, I am not satisfied the development has been designed to respect the ecological values identified in the western part of the land in the manner contemplated by City Plan. As the evidence of Dr Watson and Ms Thorburn establishes, this is not without consequence. It manifests itself as significant non-compliance with a comprehensive nature conservation strategy articulated in City Plan. Further, it manifests as overdevelopment of the land, which erodes, rather than protects or rehabilitates, identified ecological values.
  1. [158]
    Given the above, I am not satisfied the proposed development protects, and/or rehabilitates, known environmental values (and their associated buffers) in the western part of the land, as required by City Plan. That it fails to do so is evidence of an adverse environmental impact. It is also evidence that the development footprint has been maximised at the expense of environmental values, or put another way, it is an overdevelopment of the land. These matters, taken in combination, represent a powerful reason to refuse the application.
  1. [159]
    Whilst GTH accepts the development would have some impact upon ‘recently acquired’ ecological values[81], it contends this does not warrant refusal of the application. It was submitted on its behalf that the environmental benefits of the development are significant, and outweigh any loss of ecological values. This was also said to demonstrate consistency with the Strategic framework.
  1. [160]
    Unsurprisingly, Council joined issue with these contentions.
  1. [161]
    The net environmental benefit submission made on behalf of GTH requires the following issues to be examined: (1) What is the asserted net benefit? (2) Is the net benefit established by the evidence? and (3) if established by the evidence, does the net benefit prove the development is consistent with the Strategic framework in City Plan? I will deal with these matters collectively as the ‘environmental benefit argument’.

The environmental benefit argument

  1. [162]
    The environmental benefit argument advanced on behalf of GTH requires the development, as an environmental outcome, to be compared against a baseline case. GTH’s written submissions, and the evidence led in support of its case, suggest a net benefit is demonstrated when the development is compared against two baseline cases: (1) the land in its current condition; and (2) the environmental outcome anticipated by City Plan. I will deal with these comparative exercise separately.
  1. [163]
    The first comparative exercise emerges from paragraphs 122(f) and 127(a) of GTH’s written submissions. The former, invites the court to accept, on balance, the development will deliver a ‘significant ecological benefit over the development not proceeding’. The latter invites the court to accept the proposed development, and rehabilitation plan, will ensure a substantially and significantly ‘improved ecological outcome, compared to the current site conditions’.
  1. [164]
    If the baseline adopted for comparative purposes measures the development against the land in its current condition, it is not difficult to conclude that an approval, if acted upon, would deliver a net environmental benefit. As I have already said, I am comfortably satisfied the proposed development will protect, rehabilitate and enhance the environmental values identified, and mapped, in the eastern part of the land. This area is to be dedicated to Council for conservation purposes. The extent to which the environmental values of the eastern part of the land will be improved by the development is undoubtedly a relevant consideration in the exercise of the planning discretion conferred by s 60(3) of the PA. This point does not, however, advance GTH’s net environmental benefit argument.
  1. [165]
    The purpose of the net benefit argument, as I understood it, was to demonstrate, inter alia, that: (1) the environmental impacts of the development did not warrant refusal; and (2) the development is consistent with the Strategic framework in City Plan. The first comparative exercise does not demonstrate item (1) or (2). The first basis for comparison, in my view, simply re-emphasises, or repeats in different terms, the extent to which the development complies, in part, with City Plan. That is, by emphasising the virtues associated with the rehabilitation of the eastern part of the land, GTH is repeating that the development will: (1) protect in situ matters of environmental significance in the east; (2) protect most, but not all, mapped wetlands and waterways (and their associated buffers); (3) rehabilitate degraded, modified and cleared areas in the east; and (4) protect in perpetuity (by dedication) matters of environmental significance mapped on Council’s vegetation management overlay in the east[82]. Each of these matters fall from an assessment of the application against City Plan, and are required in order to demonstrate compliance with it.  Partial compliance with City Plan in this regard does not necessarily establish a net environmental benefit.
  1. [166]
    Where there is partial compliance with a planning scheme, there is also partial non-compliance. They are the obverse sides of the same coin. For the net benefit argument to be of assistance, it must, in my view, strike a balance between these competing points.
  1. [167]
    The first comparative exercise does not deal with non-compliance with City Plan. That it provides no assistance in this regard is problematic in the circumstances of this case. The negative impacts of the development will be material, and cut across a clearly articulated nature conservation strategy in City Plan.
  1. [168]
    I am not satisfied the first comparative exercise demonstrates the proposed development will deliver a net environmental benefit overall.
  1. [169]
    The second comparative exercise measures the environmental performance of the proposed development against the requirements of City Plan. This is to examine whether the proposed development is superior, or equal, to the outcomes sought by City Plan. GTH led evidence from Mr Moffit and Dr Thorogood to address this comparative exercise.
  1. [170]
    Mr Moffit was of the view, overall, that the extent of development proposed is acceptable, and, importantly, will achieve a significant net gain in terrestrial habitat for several conservation significant species, including koalas[83]. In simple terms, he said the compensatory habitat established in the eastern part of the land, coupled with the vegetated drainage channels and proposed landscaping, offset the environmental impacts of the development. This was said to achieve an ecological outcome that is superior to protecting habitat in situ[84]
  1. [171]
    Mr Moffit’s assessment was founded on six propositions, which are identified at paragraph 88 of the Terrestrial ecology joint report as follows: (1) the development does not result in a significantly greater impact on the features of ecological value than a development wholly restricted to the Medium density residential zone; (2) the development is confined to the western portion of the land and continues the general line of existing development; (3) the development encroaches into the Open space zone, but there is no rational ecological foundation for the location of the zone boundary; (4) the encroachment into the Open space zone does not create an ecological opportunity cost because the zoning of the land (Open space) does not mean a conservation outcome will necessarily be achieved; (5) the development will maintain the ecological function of the Hinterland to coast critical corridor to an extent commensurate with its urban setting; and (6) the rehabilitation of the land will include the offset of lost habitat from the development footprint, and consolidate ecological values in the most sensitive parts of the land adjacent to Currumbin Creek.
  1. [172]
    In addition to the six matters set above, Mr Moffit’s assessment is underpinned by an assumption that it is legitimate to examine whether matters of environmental significance can be removed, and offset. As I have already observed, City Plan includes a definition of ‘protect in situ’. The definition is at odds with Mr Moffit’s assumption. The definition, which applies to the ESOC, turns its back against the proposition that matters of environmental significance may be damaged, removed and offset. The strict nature of this policy is, contextually, reinforced by the absence of a provision in the same code that prescribes a clear standard to measure the acceptability of any offset provided by development that damages or removes matters of environmental significance in a biodiversity area.
  1. [173]
    This underlying assumption was pause for concern. It has the appearance of an expert substituting his own view about a matter of planning policy for that expressed in the adopted planning controls. Ultimately, it is unnecessary to express a final view about this because, for the reasons given below, I do not accept Mr Moffit’s evidence on this point in any event.
  1. [174]
    I do not accept Mr Moffit’s assessment because, as a starting point, it wrongly assumes the value to be attributed to the koala habitat on the land is less than a matter of environmental significance. This assumption down played the significance to be attributed to the loss of these ecological values in the western part of the land, being habitat that is required to be protected in situ by PO3(b) and (c) of the ESOC. That Mr Moffit assumed the loss of koala habitat would not be significant, negatively impacts on his assessment of ‘net benefit’. It means, in my view, that the benefit has been overstated by Mr Moffit.
  1. [175]
    Further, I do not accept Mr Moffit’s evidence because not all of the six propositions that underpin his assessment are sound.
  1. [176]
    I am persuaded that items (2) and (6) have been established. In this regard, I accept the koala trees to be removed would be replaced at an offset planting ratio of greater than 10:1, which compares favourably to the State Government’s offset requirement of 3:1[85]. I also accept the rehabilitation of the area to the east of the development will increase habitat available to, inter alia, the swift parrot and estuarine raptors[86]. All of these features are to be consolidated in the eastern part of the land, which has a significant interface with a major watercourse, Currumbin Creek.
  1. [177]
    I am also persuaded there is some force to item (3). It is made good by aerial photography.
  1. [178]
    Whilst I accept items (2), (3) and (6), I am not persuaded items (1), (4), and (5) have been made out having regard to City Plan, and the evidence as a whole. That these assumptions have not been made out negatively impacts on Mr Moffit’s assessment of ‘net benefit’. They have collectively resulted in Mr Moffit wrongly minimising the nature of the impacts of the development on the western part of the land. I am unable to accept a net benefit assessment that is coloured by this error.
  1. [179]
    With respect to item (1), GTH did not establish a foundation in City Plan to support the proposition that the proposed development would result in no greater impacts than development wholly restricted to that part of the land included in the Medium density residential zone. In my view, the proposition cannot stand having regard to Table 5.5.2 of City Plan.
  1. [180]
    Table 5.5.2 identifies, inter alia, the assessment benchmarks applying to any code assessable activity in the zone, which includes ‘Any overlay code triggered by an overlay map’. It will be recalled that all of the land is included in the Environmental Significance – Biodiversity areas overlay map, which triggers the ESOC. Meaning, if development is limited to the Medium density residential zone, it must still be assessed against the ESOC. It is this code, rather than the zone code, which discourages the removal of koala habitat trees on the land.
  1. [181]
    For completeness, it can be observed that the requirement imposed by the ESOC to protect the trees in situ is not removed, or softened, by the Medium density residential zone code. Any provision of the zone code seeking to achieve an inconsistent outcome this regard would, in any event, have no force given the hierarchy of provisions in s 1.4(1)(c) of City Plan. This provision contemplates that overlay codes prevail over the zone codes, to the extent of an inconsistency.
  1. [182]
    With respect to item (4), it is correct to say the Open space zone is not the Conservation zone under City Plan. It is, however, misconceived to assume ‘conservation outcomes’ would not necessarily be achieved in those parts of the land where the development footprint intrudes into the Open space zone. The assumption ignores: (1) the requirements of the ESOC, which are dealt with in detail above and apply to this part of the land; (2) the development will remove matters of environmental significance in this very area, contrary to the ESOC; and (3) the Open Space zone code requires development in the zone to respect the same features calling for consideration under the ESOC. The zone code and the ESOC are, in my view, in lock step. They both discourage, in strong terms, development on that part of the land where the footprint intrudes into the Open space area. The codes work together to require, inter alia, the protection in situ of matters of environmental significance. The proposed development is inconsistent with such a requirement.
  1. [183]
    With respect to item (5), Mr Moffit said the proposed development will maintain the ecological function of the Hinterland to coast critical corridor. He helpfully explained his reasoning for this opinion, in part, in his evidence in chief. He said:

…In terms of protecting the values in situ, I say that we are losing scattered local values.  So we’ve got a little patch of wetland over here.  We’ve got a patch of swamp oak over there and we’ve got some scattered koala habitat trees up on a hill.  What I say the development does is it brings those things altogether into a consolidated conservation area in the eastern part of the site.  It reduces edge effects and if you refer back to the plans that I showed previously, it really improves habitat connectivity along Currumbin Creek, which I say is the most important part of the site to establish that habitat connectivity…” (emphasis added)

  1. [184]
    Dr Watson disagreed with Mr Moffit. He did not consider the creation of a consolidated conservation area in the east as compensating for the loss of terrestrial fauna habitat in the west. At paragraph 64 of the Terrestrial ecology joint report, Dr Watson said:

Linkages from the surrounding landscape (i.e to the site) will be compromised and made redundant as a result of the development layout. Currently there is some 500m of subject land frontage (approximately 400m vegetated/trees and 100m grassed) for fauna traversing Galleon Way (from the west) that serves as a wide refuge area. The development will reduce the vegetated frontage refuge area from 500m to a landscape edge and two 20-30m small pockets of vegetation at the two waterways creating higher risk for fauna and increasing the risk of vehicle strike…

  1. [185]
    For reasons already given, I prefer Dr Watson’s evidence in this regard. His evidence is made good by comparing Exhibit 27 and the proposed plan of rehabilitation. The comparison reveals the proposed development removes a substantial area of koala habitat that presently provides linkages in all directions for a considerable part of its length, and depth. The proposed development does not provide a commensurate connection to the north. It also, as Dr Watson opined, narrows the connections down to two points. This is not rendered acceptable because the vegetation lost would be replaced, in part, by tube stock along the frontage of the land. Nor is it rendered acceptable because a large patch of Blue Gum would be provided in the east, well removed from the frontage to Galleon Way.
  1. [186]
    Given the above, I do not accept the evidence establishes the proposed development, if approved, would deliver an environmental outcome that is equal, or superior, to that anticipated by City Plan for terrestrial ecology. Having regard to Dr Watson’s evidence, which I accept, the development does not respect ecological values in the western part of the land. This gives rise to an unacceptable environmental impact. That impact is not rendered acceptable by the offsets proposed, primarily, in the eastern part of the land.
  1. [187]
    I pause to observe that Dr Watson included a plan in the Terrestrial ecology joint report described as ‘JW Acceptable Balanced Ecological Outcome’. The plan, as I understand it, was Dr Watson’s attempt to balance the need for the proposed development to proceed, while also protecting some ecological values in the western part of the land. GTH invited the court to adopt Dr Watson’s plan as a basis for assessing the acceptability of the development, and its impact on terrestrial ecology. I decline to do so.
  1. [188]
    Dr Watson’s plan is no more than an attempt to demonstrate that some of the ecological values in the western part of the land can be protected, whilst respecting the developer’s overriding commercial interest to maximise the development footprint. This is not an appropriate basis upon which to assess the acceptability of the development in ecological terms. It applies the wrong test having regard to City Plan. As Dr Watson confirmed, the plan represents a ‘balance’ that ignores the requirement to protect in situ matters of environmental significance[87].
  1. [189]
    Like Mr Moffit, Dr Thorogood was of the opinion the proposed development would deliver a net ecological benefit[88].  As I understood his evidence, Dr Thorogood expressed this view on the footing that: (1) the proposed development would remove mapped wetland, which is of low ecological value; and (2) the proposed development would substantially increase the extent of high-value, functional wetland.
  1. [190]
    I accept items (1) and (2). The evidence establishes the development will remove a mapped wetland with low ecological value and will provide substantial rehabilitation. The development, if approved, would increase a substantial patch of Saltmarsh on the eastern part of the land by nearly 200%, and rehabilitate an area adjoining Currumbin Creek. The long term viability of the rehabilitation is, in large measure, directly linked to works facilitating the re-start of tidal flushing. This is not presently occurring, and is unlikely to return absent intervention. I am satisfied the rehabilitation proposed will benefit the land and adjoining land.
  1. [191]
    Whilst I accept the force of items (1) and (2) above, Dr Thorogood’s evidence does not disclose how these points establish a net benefit, or that the proposed development is equal, or superior, to the ecological outcome anticipated by the planning scheme. An explanation was required because Dr Thorogood concede he had not considered the definition of ‘protect in situ’ in City Plan until Mr Litster QC drew it to his attention[89]. I cannot accept that a fair appreciation of the benefits/dis-benefits of the development can be obtained in this case without considering, inter alia, this definition, and its impact on development yield. The failure to have regard to the definition undermined my confidence in Dr Thorogood’s evidence, which was not restored by way of evidence given in re-examination. 
  1. [192]
    This stands in stark contrast to the evidence of Ms Thorburn.
  1. [193]
    Ms Thorburn was cross-examined at length about the benefits of the development from her perspective. Unsurprisingly, this cross-examination exposed that the rehabilitation proposed would be beneficial having regard to the current condition of the land[90]. This was, in effect, agreed at paragraphs 60 and 61 of the Waterways and wetlands joint report.
  1. [194]
    Ms Thorburn was pressed by Mr Sullivan QC in cross-examination to describe the benefits of the rehabilitation in aquatic ecology terms. He invited her to agree they were ‘significant’. Ms Thorburn agreed, but, importantly, qualified her answer in this way[91]:

And it’s a significant ecological benefit? – Yes. I’m happy to agree with that, although it’s less of a benefit than would be if development was more aligned with the Planning Scheme.

  1. [195]
    The transcript reveals Ms Thorburn was not challenged about the qualification given in her answer above. This is in circumstances where the qualification was identified by her in the Wetland and waterways joint expert report. There are numerous references in that report to Ms Thorburn’s reliance upon City plan, and the requirement in it for matters of environmental significance to be protected in situ, or rehabilitated where degraded[92].
  1. [196]
    Unlike Dr Thorogood, Ms Thorburn attempted to take this requirement of City Plan into account when striking the ‘balance’ between environmental loss and gain. So much is clear from paragraph 69 of the joint report where the following opinion is attributed to her:

The development footprint of the site encroaches into the non-urban land / green space on the site (i.e. the open space zone) [3.7.1(1), (3)]. However, with some refinements of the rehabilitation strategy, particularly protection of the patch of saltmarsh TEC and the inclusion of sufficient vegetated buffers to waterways and wetlands, I accept that there would be an overall net benefit to the extent and quality of estuarine waterways and wetlands on the site [3.7.1(2)].”  (emphasis added)

  1. [197]
    This aspect of Ms Thorburn’s evidence reveals the development will not deliver a net gain for the environment. More refinement is required to achieve such an outcome. Importantly, this conclusion was informed by: (1) an understanding of the benefits of the rehabilitation proposed; and (2) the requirements of City Plan to protect, or rehabilitate, matters of environmental significance located in the eastern and western part of the land.
  1. [198]
    Ms Thorburn’s evidence was supported by a helpful benchmark against which the offset provided by the development for lost wetland values can be assessed. The benchmark is a wetland offset ratio. Ms Thorburn pointed out that the offset area proposed by the development, in comparison to the area lost, can be expressed as a ratio of 1.8:1. This is significantly less than the offset ratio required by the State government for the loss of marine plants/fish habitat, which is 4:1[93].  As one available measure of the offset proposed, it also makes good Ms Thorburn’s point that the development needs to be further refined. It also fairly illustrates the extent to which the virtues of the rehabilitation extolled on behalf of GTH have been overstated, in my view.
  1. [199]
    Ms Thorburn’s opinion is a considered and well-reasoned one. It was not shaken, or undermined, in cross-examination. It establishes, from an aquatic ecology perspective, that the development needs to be refined in order to properly make good for the loss of environmental values in the western part of the land. I accept this evidence. It is inconsistent with the proposition that the proposed development is equal, or superior, to the environmental outcome anticipated by City Plan. It is also inconsistent with the proposition that the development contributes, in all respects, towards the achievement of the nature conservation strategy articulated in City Plan.
  1. [200]
    Having regard to Dr Thorogood’s written and oral evidence, I was left with the clear impression that his assessment of net benefit was coloured by a desire to achieve a ‘compromise’ between developing the land in a financially sustainable way, as against a requirement to enhance environmental values. This compromise was first alluded to in paragraphs 41 and 42 of the Waterways and wetlands joint report. Dr Thorogood stated in this part of the joint report that he adopted a ‘holistic perspective’ to the balancing exercise. The holistic perspective was informed by ‘State Code 11, which anticipates ‘the need to compromise in order to balance conservation and development’. I do not accept the compromise approach adopted by Dr Thorogood is appropriate for the assessment of net environmental benefit in this appeal.
  1. [201]
    The approach is not reflected in City Plan. Rather, it puts the planning scheme to one side, and places the development and environment on an equal footing as if one can be equally traded for the other. Such an approach sits uncomfortably with City Plan. Further, it is an approach that, as the evidence demonstrates, permits private economic considerations to impermissibly intrude.
  1. [202]
    Mr Litster QC rigorously tested Dr Thorogood’s evidence in this regard. There were three particular passages of cross-examination that expose the ‘compromise’ approach adopted by Dr Thorogood was coloured by private economic considerations.
  1. [203]
    The first passage of cross-examination occurs in the context of questions about the aquatic value of the man-made dams, and whether they could be rehabilitated[94]:

Yes.  And you consider those features to be degraded?-- They are degraded, yes.

…But capable of rehabilitation?-- Yes.  They’re capable of rehabilitation.

Simply by providing tidal flushing to that area would start the process, wouldn’t it?--  That would significantly improve their condition, yes…But if they were to be rehabilitated, and I can’t obviously speak for the proponent in this, but if they were to be rehabilitated, presumably the development as presented couldn’t go ahead.  And if the development as presented couldn’t go ahead, then the more substantive rehabilitation of a much larger area of more ecologically and conservationally significant wetland couldn’t proceed…so I think a recurring theme…in my responses to you, Mr Litster, will be that this is a balancing act, and to achieve the optimum outcome, yes, therehas to be some loss of existing features.” (emphasis added)

  1. [204]
    The second passage of cross-examination occurs in the context of questions about the failure to protect in situ the patch of Saltmarsh underlying building 9[95]:

…do you say that there is some protection in situ of those items?  …Not of those items.  No.

Nor of part of the saltmarsh community that will lie under building 9.  If we go to page 53 in that bundle?   The big bundle?  Fifty-three of the big bundle?

Yes, yes?   Again, I’ll just come back to the same answer that the proposition that has been put to me is that the loss of .02, .03 of a hectare of saltmarsh in order to construct building 9 unlocks the capacity to create almost one complete full hectare of rehabilitated saltmarsh.  So   

Who has put that proposition to you?    the trade-off, the balance   

Who has put that proposition to you?It has been put to me through the plans of development, through the briefs that I have received from the proponent’s legal team.

Right.  Have you seen any costing or project analysis that assists us in that regard?No, I was careful to preface the previous answer by pointing out I couldn’t speak on behalf of the proponent    but my understanding is that to facilitate the development there needs to be some judicious loss of existing features on the site.

It’s an understanding you have been given by the proponent’s legal team and briefings you have received?Yes.” (emphasis added)

  1. [205]
    The third passage of cross-examination appears in the context of questions about the location of building 9 relative to recognised matters of environmental significance[96]:

…Now, you consider that it is acceptable to build building 9 over part of the threatened ecological community.  That’s that building on the southern boundary, the one near the saltmarsh?I know the building you’re talking about, and…yes,…I believe that, on balance, it’s acceptable because my understanding is that then supports the creation or the rehabilitation of almost an order of magnitude more saltmarsh than is currently onsite.

That building itself doesn’t result in that, does it?No, I’m not in a position to discuss dissecting the development and what is acceptable and what isn’t.  I understand what you’re saying.  What’s been put to me is the development as a package supports the rehabilitation as a package.” (emphasis added)

  1. [206]
    This evidence suggests Dr Thorogood’s assessment of a ‘compromise’ position proceeded on an understanding obtained from GTH’s legal team and so-called ‘briefings’. The understanding was to the effect that the development, and associated rehabilitation, would not proceed unless there was some ‘judicious’ loss of existing ecological values.  I took this to mean that Dr Thorogood assumed the rehabilitation of the land would not occur if strict compliance with City Plan was required. This was because, as he said, the proposed development and rehabilitation were a package. One would not be delivered without the other. 
  1. [207]
    I am not satisfied it is correct to assess any environmental compromise, let alone net benefit, on the footing there will have to be some judicious loss of ecological values to ensure the land is rehabilitated. It finds no support in City Plan. It finds no support in evidence suggesting there is a planning, or ecological, rationale that underlies such a conclusion.
  1. [208]
    Further, clear evidence would be required to establish the land would not be rehabilitated if strict compliance with City Plan was required. There was no such evidence. In my view, the absence of this character of evidence is telling. It suggests the understanding upon which Dr Thorogood proceeded is founded upon GTH’s private economic interests, rather than a matter of town planning. Private economic considerations fall outside the range of matters that are relevant under s 45(5)(b) of the PA.
  1. [209]
    For the reasons given above, I am not satisfied GTH established the proposed development will, if approved, result in a net environmental benefit.
  1. [210]
    Further, I was not satisfied the proposed development will achieve an environmental outcome that is equal, or superior, to that anticipated by City Plan.
  1. [211]
    On balance, the proposed development will have an unacceptable environmental impact. The impact is a tangible one, and is the direct consequence of a design that seeks to maximise yield at the expense of matters of environmental significance.

Open space zone

  1. [212]
    Council contends the development is contrary to the Open space zone code for two reasons: (1) the development does not protect matters of environmental significance in the zone; and (2) the use, and scale of the development is contrary to the intent of the zone. For the reasons given above, I agree with the first of the two points raised. There is also considerable force in the second alleged point of inconsistency.
  1. [213]
    The proposed Masterplan reveals the development footprint intrudes into the Open space zone by some 3.1 hectares. Within this area, 144 units in 6 of the 16 apartment buildings are proposed, along with roads, carparking and recreation facilities. The extent of urban residential development (even excluding the recreation facilities) proposed by the application in the Open space zone is substantial.
  1. [214]
    Is a proposal for 144 units in 6 apartment buildings consistent with the intent of the Open space zone?
  1. [215]
    This question is answered in the negative.
  1. [216]
    In section 4.2 of the Town planning joint report, Mr Perkins, Council’s town planning witness, set out a detailed examination of the proposed development against the provisions of the Open space zone code. Based on that examination, Mr Perkins concluded, inter alia: (1) the built form located in the Open space zone represents a significant departure from the purpose and overall outcomes of the zone; (2) the proposed land uses will compromise and not preserve the recreation function of the zone; (3) the development will not protect and rehabilitate all matters of environmental significance; (4) the development has not been designed to reduce the dominance of buildings and structures that are consistent in bulk and scale with the buildings located in the Medium density residential zone; and (5) building height does not comply with Performance outcome PO3 of the zone code as it exceeds 11.5 metres.
  1. [217]
    Mr Perkins’ evidence is made good having regard to the proposed plans for the development. It is also made good having regard to the purpose of the Open space zone code, which states[97]:

The purpose of the Open space zone code is to provide for local, district and regional scale parks that serve the recreational needs of a wide range of residents and visitors.

Where required to meet community needs, development may include shelters, amenity facilities, picnic tables and playgrounds and infrastructure to support safe access and essential management.

  1. [218]
    The use of land in the Open space zone to provide residential accommodation for a Retirement facility is not anticipated, let alone encouraged by the purpose of the zone code.
  1. [219]
    That the use is not anticipated in the zone is not overcome looking more broadly at provisions in City Plan, such as s 3.3.3.1(6) of the Strategic framework.
  1. [220]
    This provision of City Plan applies to the land, and suggests ‘Aged care housing’ is contemplated where located within a 400 metre walk of, inter alia, a neighbourhood centre. At face value, it provides support for the proposed development because it would be located within 400 metres of a neighbourhood centre. However, as a note to s 3.3.3 makes clear, this aspect of the Strategic framework applies to land in the Low density residential zone. The land is not included in this zone. A further note to the provision suggests it may however apply to land in other zones, depending on context. Considered broadly and fairly, it is unlikely, in my view, that the context anticipated by this note is evident in the circumstances of this case. This is because the land is included partly in the Open space zone, which is one of five zones used to capture natural landscape areas, and promote development compatible with these areas. Aged care housing is not promoted as development that is compatible with these features in the Open space zone.
  1. [221]
    Mr Perkins’ evidence is also made good having regard to Overall outcomes (2)(a)(v), (2)(b)(iii), (2)(c)(iii) and Performance outcomes PO2 and PO3 of the Open space zone code. In combination, these provisions require new development to not compromise the informal recreation function of the zone. They also require new built form to have limited site cover, to reduce the dominance of buildings and protect the recreational function of open spaces. None of these provisions can fairly be said to anticipate residential accommodation in the zone that is medium density in nature and comprises 144 units in 6 apartment buildings, at a height greater than 11.5 metres.
  1. [222]
    In simple terms, the extent of the development proposed in the Open space zone is considerable (about 3 hectares). If approved, it would alienate most, but not all of that land for its intended purpose, namely uses that serve the recreational needs of a wide range of residents and visitors. It also alienates the land from protecting matters of environmental significance.
  1. [223]
    Mr Schomburgk readily accepted the proposed development is inconsistent with the purpose, and overall outcomes, of the Open space zone code. He did not, however, see this as problematic. At paragraph 83 of the Town planning joint report, he said:

…I accept the proposed retirement community is not consistent with the Purpose and Overall outcomes of the Open Space Zone Code, but any non-compliance or departure from this Zone code is, in my opinion, academic and theoretical and has no negative practical effects, once the site’s specific features and values are assessed and considered/balanced with the proposed development.

  1. [224]
    Central to Mr Schomburgk’s reasoning is the opinion recorded in paragraph 82 of the same joint report, which states:

…one of the key issues in this appeal is exactly where the ‘line’ for delineation between that part of the site which is appropriate for medium density residential development, and that part of the site which is to be retained for open space purposes should be. In my opinion, that delineation between the two zones cannot be specifically determined simply by the zoning plan, noting that the zoning map does not have a cadastral basis for the line. Rather, the appropriate line ought to be determined based on detailed site analysis of the site features, which is what the experts in flooding and ecology disciplines have sought to do.

  1. [225]
    As a general proposition, the approach adopted by Mr Schomburgk, has appeal. It is practical and based on site specific information. Importantly, it assumes the footprint of development is not solely determined by reference to a zone boundary. This is a fair point, but it does not follow that the zone boundary is, as a consequence, discarded, and replaced by a first principles assessment. Rather, the guiding hand is to be found in City Plan.
  1. [226]
    I am not satisfied the development complies with the relevant requirements of City Plan that inform whether urban development may, if at all, intrude into the Open space zone.
  1. [227]
    As I have already observed, City Plan calls for an ecological site assessment to be prepared where land is affected by the ESOC. The evidence reveals that a number of site assessments have been carried out, and demonstrate ecological values will be removed by the proposed development in the Open space zone. The values to be removed include those required to be protected in situ, or rehabilitated. The removal of those values will, I am satisfied, have a tangible environmental impact. The impact erodes, rather than preserves, the green space values sought to be protected on the land by the Strategic framework. I cannot accept that an impact of this kind can be regarded as academic, or theoretical.
  1. [228]
    Further, I do not accept the extent of development proposed in the Open space zone gives rise to an academic or theoretical non-compliance with City Plan. The extent of the development proposed in the zone is extensive. It will alienate a considerable area of land for a purpose that is not anticipated, or encouraged, by City Plan. The alienation of the land in this context is not without consequence; the alienation will be achieved at the expense of matters of environmental significance, which are to be protected in the zone.
  1. [229]
    Contrary to Mr Schomburgk’s evidence, the non-compliances with the Open space zone code are material. They sound in tangible impacts, namely environmental impacts and the alienation of land from its intended purpose under City Plan. The non-compliances, coupled with the identified impacts, are evidence of the proposal being an overdevelopment of the land. This represents a further reason to refuse the development application.

Exercise of the planning discretion

  1. [230]
    Having regard to the matters set out above, I am satisfied the proposal represents an overdevelopment of the land, which manifests in significant non-compliances with City Plan. Council submits this should be decisive in the appeal.
  1. [231]
    On balance, I agree for a number of reasons.
  1. [232]
    First, the non-compliances arising with City Plan are, as I have said, material and not without consequence. They sound in tangible environmental impacts.
  1. [233]
    Second, it is not suggested City Plan has been overtaken by events, or is unsoundly based. In such circumstances, City Plan should be given its full force and effect. It points strongly in favour of refusal in the circumstances of this appeal.
  1. [234]
    Third, the non-compliance with City Plan is not diminished, or offset, by the evidence asserting a net ecological benefit. I was not satisfied the evidence established the development would deliver a net ecological benefit, or put another way, will achieve an outcome that is equal, or superior, to the environmental outcome sought by City Plan.
  1. [235]
    Fourth, after considering all of GTH’s evidence and submissions, I was left with the impression the appeal was approached on the footing that: (1) the western part of the land included in the Medium density residential zone was, in effect, committed for development; (2) the Open space zone boundary was arbitrary and, in essence, fluid because it was not underpinned by any particular planning or environmental imperative; (3) the extent to which the zone boundary was fluid could be informed by a site based assessment of, inter alia, ecological values; and (4) an appropriate ‘balance’ between development and environmental values could be achieved by offsetting existing environmental values to be lost with rehabilitation works on the eastern part of the land. The approach adopted by GTH in this appeal has failed because items (1), (3) and (4) are contrary to City Plan, and not established having regard to the evidence I accept.
  1. [236]
    Fifth, it was contended that any departure from City Plan ought not be determinative when balanced against a number of ‘relevant matters’. Fourteen relevant matters were identified as supporting approval. They are as follows: (1) there is a strong level of community and economic need for the proposed development; (2) the proposed development will improve the range and choice of retirement housing options in Currumbin Waters and other nearby localities; (3) the nature and location of the proposed development is consistent with the reasonable expectations of the community; (4) the proposed development is consistent with the South East Queensland Regional Plan 2017; (5) the development will improve the choice of affordable retirement housing options, which is expressly encouraged by City Plan; (6) the catchment area population is ageing, which is likely to increase the demand for retirement housing in the area; (7) the proposed development will generate no unacceptable amenity impacts; (8) the proposed development will generate environmental benefits to the land and surrounding land; (9) the proposed development will provide quality independent living that enables retirees to age in place; (10) the proponent is an established, experienced and well-regarded provider of this type of retirement living on the Gold Coast; (11) the proposed development, if approved, will provide a greater range of facilities, programs and services to the local area at a reduced cost; (12) the proposed development would be the only contemporary facility of its kind in the locality; (13) the proposed development would enable retirees to remain in retirement facilities for longer periods of time instead of moving to high care facilities; and (14) an approval would advance the purpose of the PA.
  1. [237]
    I accept, having regard to the evidence, that items (2), (4), (5), (6), (7), (9), (10), (11), (12) and (13) have been established. I would add to this list of positive features, three further matters not expressly relied upon by GTH, but raised on the evidence; the development complies with City Plan to the extent it seeks development offering housing choice, diversity and affordability; the development will upgrade part of the road network, and public transport network, at no cost the public; compliance is demonstrated with the Medium density residential zone code.
  1. [238]
    As to item (1), I am comfortably satisfied, having regard to the evidence of Mr Duane and Ms Wells, there is a need to improve access to modern retirement facilities. The proposed development, if approved, would be a modern and attractive addition to the market providing a high quality product. Importantly, it would add to the depth of choice and range of accommodation for retirees.
  1. [239]
    I am satisfied the subject development could meet the identified need absent any unacceptable amenity impacts. This is a matter of considerable force. The weight to be attributed to need is not however fixed; it is a relative concept that will be given greater or lesser weight depending on all the circumstances[98]. In my view, the weight to be given to the identified need here, coupled with an absence of unacceptable impacts, does not carry the day. This is because the balance between, on the one hand, meeting the need for development of the kind proposed, as against protecting matters of environmental significance on the other, has already been struck by City Plan. City plan makes provision for the need identified to be met in the Centre zone, High density residential zone and Medium density residential zone. The need can be met in these zones, but subject to the requirements of the EOSC. This balance requires development to give way to the protection of matters of environmental significance. A sound town planning reason would be required to approve an application that results in a development outcome that is at odds with, or seeks to restrike this balance in a materially different way. Need, coupled with an absence of amenity impacts does not provide the sound town planning basis to do so in the circumstances of this case. The reason for this can be simply put; as Mr Perkins said, the need (and absence of amenity impacts) does not render the consequential environmental impacts of the development acceptable[99].
  1. [240]
    I do not accept item (3), which suggests the development is consistent with the community’s reasonable expectations. The proposed development is inconsistent with community reasonable expectations for development of the land. It is not anticipated in the Open space zone. That is tolerably clear from the non-compliance established with the zone code. The evidence, in any event, did not support item (3). In this regard, Mr Schomburgk, GTH’s town planning witness, made the following relevant concession in cross-examination[100]:

...In paragraph 139, you speak of what should be a community expectation.  You would agree that there is no expectation conveyed by the open space zone, that there would be six buildings and the community – or the combined facilities?Not sure about the combined facilities because there is – I would have thought there was an expectation that things like the proposed tennis court and some of those facilities would go into an open space zone.  But certainly, the built form as proposed and – but more particularly, the proposed units, I agree with you.  Yes.

  1. [241]
    As to item (8), I accept the proposed development, if approved, would improve the environmental values of the eastern part of the land and adjoining land, which is a significant benefit. For present purposes, I am also prepared to assume the development, if approved, would dedicate more land to Council than is strictly required by AO23 of the ESOC.
  1. [242]
    However, for reasons already given, I do not accept it has been established the development, in ecological terms, is equal, or superior, to that which is anticipated by City Plan.
  1. [243]
    I do not accept item (14), namely that the development will advance the purpose of the PA. An approval does not withstand scrutiny when assessed against the background of the adopted planning controls because it: (1) would result in an erosion of environmental values, which will not be offset; and (2) would also result in an overdevelopment of the land, which appears to be driven by matters of private economics rather than a planning, or environmental, imperative. Given these matters, I cannot accept the discretion should be exercised on the footing that to approve the application would advance the purpose of the PA.
  1. [244]
    The ‘relevant matters’ that I accept have been established in whole, or in part, do not persuade me an approval would represent a balanced decision in the public interest. This is because the matters have little, if any, connection with the difficulty facing the development. The difficulty is one that involves overdevelopment and insufficient respect for site constraints. These matters manifest in material departures from City Plan and tangible impacts. The positive features of the development will not render the non-compliances with City Plan, or the tangible impacts, acceptable.
  1. [245]
    Finally, there was a considerable body of evidence about the extent to which the development has respected known flooding constraints. This matter does not alter the exercise of my discretion one way or another. This is because, even assuming the evidence established compliance with the stated purpose of the FLOC[101], I am satisfied this is only achieved at the expense of environmental values in the western part of the land. Such an outcome is contrary to express provisions of, inter alia, the FLOC and the ESOC.
  1. [246]
    Whilst I have not traversed the flooding evidence in detail in these reasons, I pause to observe that I have no difficulty assuming the proposed development complies with the stated purpose of the FLOC given Dr Johnson’s evidence. His evidence was considered, and appropriately cautious given the nature of the subject matter. It stands in stark contrast to that of Mr Newton, Council’s flooding expert. Mr Sullivan QC skilfully demonstrated, by way of a detailed and comprehensive cross-examination, that Mr Newton’s evidence was overly, and unnecessarily, conservative.

Conclusion

  1. [247]
    The planning discretion conferred by s 60(3) of the PA is broad and unconstrained by a conflict and grounds test. This does not mean the exercise of the discretion, irrespective of which way it goes, is a matter of mere caprice[102]. The decision is to be based on the assessment carried out under s 45 of the PA. The decision must withstand scrutiny against the background of the relevant provisions of the planning scheme, and proper planning practice. 
  1. [248]
    Here, GTH has not established an approval withstands scrutiny when assessed against the background of City Plan. Nor has it established that an approval represents a balanced decision in the public interest. This stems, in part, from the design approach adopted to the development. The approach was fairly identified by Mr Litster QC when he secured the following frank concession from Mr Schomburgk:

It’s clear that it [the development]displays little effort in retaining any environmental values within the medium density residential zone? -- That’s probably fair.” (emphasis added)

  1. [249]
    In displaying little effort to retain environmental values in the western part of the land, the development has been designed to maximise yield at the expense of the environment. This gives rise to a tangible impact. That impact would be unacceptable. It is not offset, or rendered acceptable, by positive aspects of the development.
  1. [250]
    In the circumstances, the application should be refused.
  1. [251]
    The orders of the court will be:
  1. The appeal is dismissed.
  2. The decision to refuse the appellant’s development application, communicated by decision notice dated 7 December 2018, is confirmed.

Footnotes

[1]  Schedule 1, Table SC1.1.2: Use definitions.

[2]  Ex.4, Tab 5.

[3]  Ex.53, paragraph 2.

[4]  s 45(5)(a)(i), Planning Act 2016 (PA).

[5]  Encompassing qualitative matters such as choice and affordability, provided by a modern facility.

[6]  s 45(1), Planning & Environment Court Act 2016 (PECA).

[7]  Ex.11, paragraph 13.

[8]  Ex.12, paragraphs 37 and 81.

[9]  Ex.12, paragraph 64(i); Ex.27; and Watson: T2-69/L29-35.

[10]  Ex.13, paragraph 19.

[11]  Ex.13, paragraph 30 and Table 1.

[12]  Schedule 1, SC1.1.1(1) and Table SC1.1.1.2: Defined activity groups.

[13]  Table 5.5.2: Medium density residential zone.

[14]  Table 5.5.2: Medium density residential zone, ‘all activities’ read with Building height overlay map 23.

[15]  Table 5.5.7: Open space zone.

[16]  Ex.13, paragraph 76.

[17]  Ex.53, paragraph 19.

[18]  Ex.23.

[19]  Ex.53, paragraph 172 and 173.

[20]  Schomburgk: T2-12, Line 44 and Perkins: T2-43, Line 45 to 46.

[21]  T8-24, Line 42 to 44.

[22]  Ex.52, paragraph 51.

[23]  T8-54, Line 11 to 20.

[24]  T2-44, Line 18 to T2-53, Line 37.

[25]  s 43, PECA.

[26]  s 47(3), PECA.

[27]Liongrain Pty Ltd v Council of the Shire of Albert & Ors [1995] QPLR 353, at 355.

[28]  Footnotes omitted citing Hilcorp v Council of the City of Logan & Ors [1993] QPLR 199, Sabdoen Pty Ltd v Redland Shire Council [1989] QPLR 149 and R.E Marriott v Maroochy Shire Council & Anor [1994] QPLR 178.

[29]  s 8.1(1).

[30]  s 8.1(2).

[31]  These are values ‘other than’ those defined in the administrative definition of ‘environmental values’. 

[32]  s 8.2.6.2(1).

[33]  Table SC1.2.2.

[34]  s 3.1(1).

[35]  s 3.1(3)(b)(v).

[36]  s 6.1(8)(b).

[37]  T4-63, L15-24.

[38]  T4-63, L30.

[39]  Ex.12, paragraph 91.

[40]  T2-83 to T2-86.

[41]  Ex.12, paragraphs 28 and 38.

[42]  Ex.12, paragraph 64.

[43]  Ex.12, paragraph 41.

[44]  Ex.12, paragraph 57(a).

[45]  Ex.12, paragraph 44.

[46]  Ex.20A, paragraph 2.3.5.

[47]  T1-69, L28-33.

[48]  T1-61, L1.

[49]  T1-61, L47.

[50]  Ex.12, paragraph 33.

[51]  Ex.12, paragraph 49.

[52]  s 3.7.4.1(2).

[53]  Ex.12, paragraph 55(l).

[54]  cf Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPELR 557, [305] and Kenlynn Pty Ltd v Noosa Shire Council [2019] QPEC 65, [93].

[55]  See PO3(c) of the ESOC.

[56]  Ex.12, paragraph 33.

[57]  Ex.12, paragraph 73.

[58]  Ex.12, paragraph 93.

[59]  Ex.12, paragraph 57(p).

[60]  Ex.20A, paragraph 2.6.4.

[61]  Ex.13, paragraph 33.

[62]  Ex.13, p.27.

[63]  Ex.13, paragraph 35.

[64]  Ex.13, paragraph 28.

[65]  Ex.13, paragraph 29.

[66]  Ex.13, paragraphs 28 and 29.

[67]  Ex.3, p.747.

[68]  Ex.13, paragraph 23.

[69]  Ex.13, paragraph 37.

[70]  For example, Ex.52, paragraphs 110 and 111.

[71]  Ex.52, paragraph 117.

[72]  Ex.13, paragraph 19.

[73]  Ex.13, paragraph 20.

[74]  Ex.13, paragraph 46.

[75]  Ex.13, paragraph 49.

[76]  Ex.13, paragraph 48 and Ex.21, pp.10 to 21 and paragraph 54.

[77]  Ex.21, paragraphs 13, 23, 24 and 49. 

[78]  Ex.21, paragraph 13.

[79]  Ex.21, paragraph 35.

[80]  Ex.13, paragraph 50.

[81]   Ex.52, paragraphs 78 and 100.

[82]  See PO23 and PO25 of the ESOC.

[83]  Ex.20A, paragraphs 56 and 88 (vi).

[84]  Ex.20A, paragraph 2.4.13.

[85]  Ex.20A, paragraphs 2.4.3 and 2.4.5.

[86]  Ex.20A, paragraphs 2.4.9 and 2.4.10.

[87]  T3-39/L17-20.

[88]  Ex.13, paragraphs 11 and 68.

[89]  T3-59/L9-15.

[90]  T4-63/L40.

[91]  T4-63/L45.

[92]  Ex.13, paragraphs 13, 40, 67, 77, 79, 86 and 87.

[93]  Ex.13, paragraph 65.

[94]  T3-56/L14-31.

[95]  T3-56/L38 – T3-57/L14.

[96]  T3-65/L1-12.

[97]  s 6.2.7.2(1).

[98]Intrafield Pty Ltd v Redland Shire Council [2001] 116 LGERA 350, [20] and Isgro v Gold Coast City Council & Ors [2003] QPELR 414, [24].

[99]  T2-48/L1-5.

[100]  T2-24/L37-43.

[101]  s 8.2.8.2(2).

[102]Ashvan (Supra) at [63] – [64], applying Hua Sheng Co Pty Ltd v Brisbane City Council & Ors [1991] QPLR 99.

Close

Editorial Notes

  • Published Case Name:

    GTH Resorts No 5 Pty Ltd v Gold Coast City Council

  • Shortened Case Name:

    GTH Resorts No 5 Pty Ltd v Gold Coast City Council

  • MNC:

    [2020] QPEC 20

  • Court:

    QPEC

  • Judge(s):

    Williamson DCJ

  • Date:

    12 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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