Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 6

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 6

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 6

PARTIES:

TRASPUNT NO. 4 PTY LTD (ACN 102 581 313)
(appellant)

v

MORETON BAY REGIONAL COUNCIL
(respondent)

FILE NO/S:

3002 of 2012

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

24 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 7, 9 and 17 September 2020

JUDGE:

Kefford DCJ

ORDER:

I order:

(a) the appeal is allowed in part;

(b) that part of the development application that sought a development permit for clearing along the northern and eastern boundaries of Lot 909 and Lot 910 on SP 198688 is approved subject to conditions 1 and 2(a) and the approved plans and documents identified in Attachment 1 to the Respondent’s Proposed Conditions of Approval dated 26 July 2019; and

(c) the appeal is otherwise dismissed and, to the extent that the development application sought a development permit for clearing along the southern and western boundaries of Lot 909 and Lot 910 on SP 198688, the development application is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – DEVELOPMENT APPLICATION – where vegetation is cleared as a necessary firebreak between development – whether it is necessary to revegetate areas outside those areas authorised to be cleared – whether the conditions imposed by the Council are lawful – whether conditions should be imposed as an exercise of discretion

LEGISLATION:

Planning Act 2016 (Qld), s 43, s 44, s 73, s 311, s 349

Planning Regulation 2017 (Qld), s 16, s 18, sch 6, sch 24

Sustainable Planning Act 2009 (Qld), s 245, s 251, s 285, s 290, s 311, s 313, s 324, s 345, s440, s 495

Sustainable Planning Regulation 2009 (Qld), s 13, sch 3, sch 7, sch 24, sch 26

CASES:

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, applied

Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, applied

Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, followed

Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, applied

Genamson Holdings Pty Ltd v Caboolture Shire Council [2008] QCA 374; (2008) 163 LGERA 386, applied

Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, applied

Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48; [2015] QPELR 49, approved

King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184, applied

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, applied

Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2013] QPEC 61; [2013] QPELR 1023, cited

Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, applied

Pike v Tighe [2018] HCA 9; (2018) 262 CLR 648, applied

Proctor v Brisbane City Council (1993) 81 LGRA 398, applied

Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPELR 460, approved

Television  Corp Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59, applied

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, cited

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2017] QPEC 76; [2018] QPELR 332, cited

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51, considered

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, applied

Wise v Maroochy Shire Council [1999] 2 Qd R 566, applied

Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, applied

COUNSEL:

R J Anderson QC and B G Rix for the appellant
D R Gore QC and J J Ware for the respondent

SOLICITORS:

MacPherson Kelley for the appellant
Moreton Bay Regional Council Legal Services for the respondent

TABLE OF CONTENTS

Introduction3

Is there a need to hear from the Chief Executive?4

What are the conditions that are in dispute?6

What is the applicable statutory regime?7

Are conditions 2(b), (c) and (d) lawful?8

Are the conditions “reasonably required”?10

Are the conditions "relevant to, but not an unreasonable imposition"?10

Is condition 2(b) relevant and not unreasonable?13

Is condition 2(c) relevant and not unreasonable?15

Is condition 2(d) relevant and not unreasonable?16

Conclusion regarding lawfulness of conditions17

Should conditions 2(b), (c) and (d) be imposed in the exercise of discretion?17

Conclusion17

Introduction

  1. [1]
    In February 2012, Traspunt No. 4 Pty Ltd (“Traspunt”) applied to Moreton Bay Regional Council (“the Council”) for a development permit for operational works to permit it to clear vegetation on land described as Lot 909 and Lot 910 on SP 198688 that is located at 44-70 Greene Street and 1-9 Cowper Court, Rothwell (“the subject land”).  The Council refused to grant the development permit.  Traspunt commenced this appeal against that decision in August 2012. 
  2. [2]
    The appeal has a protracted history, involving previous hearings before this Court[1] and the Court of Appeal[2].  The Court of Appeal determined that the vegetation clearing proposed on the northern and eastern boundaries was assessable development and required an approval.  It did not disturb the finding of His Honour Judge Horneman-Wren SC that, in that event, there are nevertheless sufficient grounds for its approval despite conflict with the Natural Features or Resources Overlay Code in the Redcliffe City Planning Scheme 2005.  The Court of Appeal remitted the case to the Planning and Environment Court for two reasons.  The first was to consider whether any conditions should be imposed on the development approval.  The second reason related to the potential need to hear from the Chief Executive administering the Vegetation Management Act 1999 (Qld).[3]
  3. [3]
    This is the hearing of the remittal of the matter by the Court of Appeal.  The substantive issue now in dispute between the parties relates to the conditions to be imposed.[4]

Is there a need to hear from the Chief Executive?

  1. [4]
    The Court of Appeal found that the development application required referral to the Chief Executive administering the Vegetation Management Act 1999 as it was a concurrence agency for the application pursuant to s 13 and schedule 7, table 2, item 5 of the Sustainable Planning Regulation 2009 (Qld).[5]  Item 5 relates to:

“Operational work, not associated with reconfiguring a lot mentioned in item 4 or a material change of use mentioned in table 3, item 10, for clearing native vegetation made assessable under schedule 3, part 1, table 4, item 1”.

  1. [5]
    Schedule 3, part 1, table 4, item 1 of the Sustainable Planning Regulation 2009 makes operational work that is the clearing of vegetation on freehold land assessable development unless, relevantly, the clearing is clearing mentioned in schedule 24, part 2 for particular land.  Schedule 24, part 2, item 2 of the Sustainable Planning Regulation 2009 sets out categories of clearing of native vegetation that are not assessable under schedule 3, part 1, table 4, item 1.  It relevantly includes, for freehold land, clearing vegetation that is necessary for essential management.  The term “essential management” was defined in schedule 26 of the Sustainable Planning Regulation 2009 as including clearing native vegetation:

“for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular track, if the maximum width of the firebreak is equivalent to 1.5 times the height of the tallest vegetation adjacent to the infrastructure, or 20m, whichever is the greater”.

  1. [6]
    The Court of Appeal found that the subject clearing was not “essential management” as the firebreak was for the protection of the adjoining residential development, which was not “infrastructure”.[6]
  2. [7]
    The development application the subject of this appeal was not referred to the Chief Executive administering the Vegetation Management Act 1999.  However, Traspunt submits that no referral of the application is now required.  Alternatively, it says that to the extent the Court considers otherwise, it is appropriate for the Court to exercise the power embodied in s 440 of the Sustainable Planning Act 2009 (Qld) to excuse the failure to refer the application so that this matter need not have any further bearing on the resolution of this proceeding.  Traspunt’s submissions are founded on legislative amendments to the Planning Act 2016 (Qld) that commenced after the Court of Appeal’s decision, namely the insertion of s 349 into the Planning Act 2016 by the Natural Resources and Other Legislation Amendment Act 2019 (Qld).  The Council does not contest Traspunt’s submissions.
  3. [8]
    Section 349 of the Planning Act 2016 came into operation on 24 May 2019.  It applies to applications made on or after 15 September 2000 and not decided before its commencement on 24 May 2019.[7]  It provides that:[8]

“For the purposes of deciding the application, a reference to infrastructure in a relevant provision is taken to have always included, a reference to a building, or other structure, built or used for any purpose.”

  1. [9]
    Relevant provision” in this context includes the definition of “essential management” in schedule 26 of the repealed Sustainable Planning Regulation 2009.
  2. [10]
    The new definition of “infrastructure” that is retrospectively imposed by s 349 of the Planning Act 2016 is such that residential houses are now “infrastructure” for the definition of “essential management”.  As such, in deciding the application, it is not necessary for me to have regard to a response from the Chief Executive administering the Vegetation Management Act 1999 for the purposes of s 313(3)(c) of the Sustainable Planning Act 2009.[9], [10]

What are the conditions that are in dispute?

  1. [11]
    The Council seeks to impose the following conditions:[11]

CONDITION

TIMING

OPERATIONAL WORKS

DEVELOPMENT PLANNING

1.

Approved Plans and/or Documents

 

 

Undertake development generally in accordance with the Approved Plans and/or Documents which form part of the approval.

Prior to and during site works and to be maintained at all times.

2.

Extent of Vegetation Clearing

 

 

  1. (a)
    Clearing of vegetation must be limited to the approved vegetation clearing areas shown on the approved plan as “Approved Clearing”.
  2. (b)
    Clearing of vegetation on the site outside the approved vegetation clearing area is prohibited.
  3. (c)
    The vegetation remaining on site outside the approved vegetation clearing areas is to be maintained in a healthy condition at all times and replaced under the supervision of suitably qualified ecologist in the event of death, destruction or removal with the replaced vegetation being maintained in a healthy condition at all times.
  4. (d)
    To the extent that there is any clearing of vegetation on the site outside the approved vegetation clearing areas, then such areas of unauthorised clearing are to be re-vegetated in accordance with an approved re-vegetation plan prepared by a suitably qualified ecologist and approved by the Council that includes a long-term maintenance schedule.

(a), (b), (c) and (d) Prior to and during site works and to be maintained at all times.

  1. [12]
    The approved plan referred to in condition 2(a) shows, by way of hatching, that area along the northern and eastern boundaries of each lot that is permitted to be cleared. 
  2. [13]
    Traspunt disputes the imposition of conditions 2(b), (c) and (d).  It contends they are not lawful or, alternatively, they should not be imposed in the exercise of discretion. 

What is the applicable statutory regime?

  1. [14]
    Both the application and the subject appeal were lodged under the Sustainable Planning Act 2009.  As such, the appeal must be determined under the Sustainable Planning Act 2009.[12]
  2. [15]
    Pursuant to s 324 of the Sustainable Planning Act 2009, there is a power to impose conditions on a development approval.  The power to impose conditions on the approval of an application is expressed in general terms.[13]  As was noted by Atkinson J in Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor:[14]

“Approvals for use are commonly given with conditions attached.  Indeed commentators have remarked that unconditional approvals are extremely rare.  Conditions are the community price a developer must pay for a development approval.  They have characteristically been the vehicle for minimising adverse effects. …”

(footnotes omitted)

  1. [16]
    The power to impose conditions must be read subject to the statutory provisions about lawful conditions.[15]  Relevantly, s 345 of the Sustainable Planning Act 2009 imposes a constraint on the power to impose conditions.  It states:

345 Conditions must be relevant or reasonable

  1. (1)
    A condition must–
  1. (a)
    be relevant to, but not an unreasonable imposition on the development or use of premises as a consequence of the development; or
  1. (b)
    be reasonably required in relation to the development or use of premises as a consequence of the development.
  1. (2)
    Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”
  1. [17]
    Even if a condition is one that can be imposed legitimately, there is no obligation to do so.  The assessment manager, and this Court on appeal, retains a residual discretion to determine what lawful conditions should be imposed.[16]  The discretion is not to be exercised capriciously.  Regard must be had to all relevant considerations, including relevant provisions of the planning documents.[17]  Improper considerations must be disregarded.  As was noted by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council:[18]

“… That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose.  A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority.[19]  In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5.  That includes assessment by reference to the planning scheme.”

  1. [18]
    The result must not offend against common sense and the conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the subject land.[20]  The condition must be fair and reasonable in the circumstances of the particular case.  Further, it is not the function of a planning authority, or this Court, to impose a condition to ameliorate an existing situation that is not worsened by the subject development.[21]

Are conditions 2(b), (c) and (d) lawful?

  1. [19]
    Condition 2(b) seeks to prohibit all future vegetation clearing on the land beyond that contemplated by the subject approval. 
  2. [20]
    The essence of condition 2(c) is to seek, in perpetuity, the reinstatement of any vegetation that may perish or deteriorate from time to time on the balance area of land.
  3. [21]
    The Council says the evident intent of condition 2(d) is to require the revegetation of the southern and western boundaries of the subject land.  With respect to those areas, the Council notes that the clearing was applied for, but rejected.  It also notes that those areas are, nevertheless, presently devoid of vegetation. 
  4. [22]
    It is unclear what obligations would arise from the imposition of condition 2(d) as it is presently drafted.  In particular, it is unclear whether the “areas of unauthorised clearing” are those areas of the subject land that are presently devoid of vegetation; or areas that may be cleared in the future contrary to condition 2(b); or both.  To the extent that condition 2(d) is intended to require revegetation of the southern and western boundaries of the subject land, it is not clear whether that is contingent upon the Council demonstrating that those presently cleared areas were not lawfully cleared.  The Council has not directed me to any finding of this Court which demonstrates that the present cleared state of the southern and western boundaries of the subject land is the consequence of “unauthorised clearing”.  Further, no such allegation has been made by the Council in these proceedings.  It is not part of the case that Traspunt was required to meet.
  5. [23]
    Although there is uncertainty in the current drafting, in light of the Council’s submissions about the “evident intent” of condition 2(d), I will consider whether a condition should be imposed that requires the reinstatement of vegetation along the southern and western boundaries of the subject land.
  6. [24]
    The Council submits that conditions 2(b) to (d) are ancillary to condition 2(a) and fulfil a legitimate planning purpose.  A condition is not lawful merely because it is “ancillary” to other conditions.  The starting point, with respect to each of conditions 2(b), (c) and (d), is a consideration of whether the condition could be lawfully imposed under s 345 of the Sustainable Planning Act 2009.
  7. [25]
    For the purposes of s 345 of the Sustainable Planning Act 2009, “the development” in question is the clearing of vegetation along the northern and eastern property boundaries of each allotment in an area that is defined by cadastre.  His Honour Judge Horneman-Wren SC found that the purpose of that clearing is to protect residences on land adjoining the northern and eastern boundaries.[22]  Having regard to the evidence of the bushfire experts, His Honour accepted that the clearing was necessary to create a firebreak for the protection of the residences on the adjoining land.[23]  He also found that bushfire prevention considerations would provide a sufficient basis to justify approval of the proposed clearing along the northern and eastern property boundaries, even though the clearing would result in conflict with specific outcomes SO1 and SO4 of the Natural Features or Resources Overlay Code of the Redcliffe City Planning Scheme 2005.[24]  These findings of fact were not disturbed by the Court of Appeal. 
  8. [26]
    As such, to be lawful, the proposed condition must be either:
    1. (a)
      relevant to, but not an unreasonable imposition on the clearing of vegetation along the northern and eastern property boundaries of each allotment;[25] or
    2. (b)
      reasonably required in relation to the clearing of vegetation along the northern and eastern property boundaries of each allotment.[26]
  1. [27]
    It is convenient to consider the “reasonably required” test first.

Are the conditions “reasonably required”?

  1. [28]
    As I have already identified in paragraphs [24] and [25] above, the pertinent consideration for s 345(1)(b) is whether conditions 2(b), (c) and (d) are reasonably required in relation to the clearing of vegetation along the northern and eastern property boundaries of each allotment.  This involves a consideration of the proposed development and the changes that the development is likely to produce.[27]  The condition must be a reasonable response to the change in the existing state of things.[28] 
  2. [29]
    Here, the relevant change to the existing state of things is the clearing of the northern and eastern property boundaries of each allotment to create a firebreak for the protection of the residences on the adjoining land.  I was not directed to any findings by His Honour Judge Horneman-Wren SC, or to any evidence, that would indicate that the maintenance of the existing vegetation in the balance area, or the re-instatement of vegetation, is a reasonable response to that change.
  3. [30]
    In this case, the proposed clearing that is to be approved would not give rise to incidental clearing nor create the need to rehabilitate other parts of the subject land.  I am satisfied that there is no relevant nexus between the proposed clearing of the northern and eastern property boundaries and the conditions sought to be imposed.
  4. [31]
    For the reasons provided above, I am satisfied that each of conditions 2(b), (c) and (d) are not conditions that may be lawfully imposed under s 345(1)(b) of the Sustainable Planning Act 2009.

Are the conditions “relevant to, but not an unreasonable imposition”?

  1. [32]
    A condition which is not “reasonably required” in respect of a proposed development may nevertheless be “relevant” on the basis that it is imposed to maintain proper standards in local development or in some other legitimate planning sense, such as where it is reasonably imposed in the interests of rational development of the area.[29] 
  2. [33]
    The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition.[30]  It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development.[31]  The requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in that light.[32]
  3. [34]
    Here, the Council’s case appears to be premised on the basis that conditions 2(b), (c) and (d) may be lawfully imposed under s 345(1)(a) of the Sustainable Planning Act 2009.  The Council submits that the conditions fulfil a legitimate planning purpose. 
  4. [35]
    The Council seeks to support its case on the basis that conditions 2(a) to (d) in this appeal bear a remarkable resemblance to conditions 1 to 4 of the operational works development permit for vegetation removal in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors.[33]  It says that neither the Planning and Environment Court nor the Court of Appeal upheld the challenges to the validity of those conditions, or commented adversely upon them. 
  5. [36]
    I do not consider that decision to be of determinative relevance in this case for two reasons.  First, in that case, the issues in dispute related to whether the conditions terminated once vegetation clearing permitted by the development approval had been carried out.  There was also an alternative argument that the development approval and its conditions ceased to have effect on the commencement of the Sustainable Planning Act 2009 or the declaration of the Greater Flagstone Urban Development Area as an urban development area for the purposes of the Urban Land Development Authority Act 2007 (Qld).  The Court of Appeal was not called upon to consider whether the conditions were lawful conditions.  To the contrary, as was expressly recorded by Gotterson JA, “the lawfulness of these conditions is not challenged in this appeal”.[34]  Second, the condition that sought to prohibit further vegetation clearing in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors[35] was materially different to that which the Council seeks to have imposed here.  Relevantly, unlike proposed condition 2(b), the condition in Peet Flagstone did not seek to prohibit the clearing of vegetation where an exemption applies. 
  6. [37]
    The Council also submits that the proposed conditions are lawful as they seek to protect and rehabilitate vegetation on the subject land in circumstances where both lots are recognised for their ecological significance under local government mapping and instruments and State government mapping and instruments.
  7. [38]
    It is common ground between the parties that the subject land is:
    1. (a)
      within the Natural Features or Resources Overlay of the Redcliffe City Planning Scheme 2005;
    2. (b)
      within the Environmental Management and Conservation Zone and the Environmental Areas Overlay under the Moreton Bay Regional Planning Scheme 2016; and
    3. (c)
      mapped under various State instruments as containing matters of State environmental significance and endangered vegetation.
  8. [39]
    The Council also says that the expert evidence about the importance of protection and rehabilitation of the vegetation on the subject land is all one way.  The Council relies on the evidence of Dr Daniel that:[36] 

“The imposition of conditions requiring reinstatement of vegetation which has been removed would in my opinion provide an appropriate improvement in ecological condition, if such a condition is deemed appropriate by the court.”

  1. [40]
    The Council also refers to the evidence of Mr Caneris that:[37] 

“4.7 I do not have any knowledge of an existing exemption or approval that was in force at the time these areas were cleared.  I understand the clearing along the southern and western boundaries of lot 909 and 910 is the areas that are the subject of the MBRC revegetation conditions.

4.8 I support the MBRC imposition of conditions requiring reinstatement of vegetation which has been removed, where not covered by any existing exemptions outside of the court approved clearing areas, provided such a condition is deemed appropriate by the court.”

  1. [41]
    Mr Warren declined to express an opinion in his individual Statement of Evidence.  In his oral evidence, he accepted that the vegetation should be reinstated if there is no power to order Traspunt to rehabilitate nearby areas instead.[38] 
  2. [42]
    This evidence is unpersuasive.  It does not address the relevance of the condition to the proposed development.
  3. [43]
    Despite the expert evidence of the importance of protection and rehabilitation of the vegetation on the subject land, and the mapped significance of the vegetation under both local and State planning instruments, I am of the view that conditions 2(b), (c) and (d) are not lawful conditions under s 345(1)(a) of the Sustainable Planning Act 2009 for the reasons that follow.

Is condition 2(b) relevant and not unreasonable?

  1. [44]
    As I have already noted in paragraph [18] above, condition 2(b) seeks to prohibit all future vegetation clearing on the land beyond that contemplated by the subject approval.  By its terms, it would have effect in perpetuity. 
  2. [45]
    The fact that a condition might apply in perpetuity does not necessarily, of itself, demonstrate that such a condition is not imposed for a legitimate planning purpose or that it is an unreasonable imposition on a development.  The planning legislation expressly contemplates the imposition of conditions of an enduring nature.[39]  Further, on numerous occasions the appellate courts have noted that conditions are the community price that a developer must pay for a development approval, and that the burden of the conditions may endure after the development the subject of the condition is completed.[40]  That said, when, as here, the effect of the condition is to preclude future consideration of the merits of a particular form of development, closer scrutiny of the proposed condition is warranted.
  3. [46]
    In this case, the proposed prohibition on future clearing of the subject land is not directed at a legitimate planning purpose.  That is because the vegetation clearing in question constitutes a form of development in its own right.  As such, the planning policy with respect to the protection of the subject vegetation can be adequately implemented through operation of the applicable planning legislation.  There is no apparent planning purpose to a peremptory decision that all future vegetation clearing should be prohibited without consideration of the basis on which the clearing is sought and the facts and circumstances that pertain at that time.  As such, its imposition would be unreasonable.
  4. [47]
    The lack of a legitimate planning purpose and the unreasonable nature of condition 2(b) is highlighted by consideration of two other appeals with respect to the subject land that were heard with this appeal.  In Appeal Numbers 391 and 393 of 2018, the Council has approved a material change of use of Lot 909 and Lot 910 on SP 198688 to permit the establishment of a house.  The conditions of approval for which the Council contends in those appeals envisage vegetation clearing on the subject land in areas where clearing would be prohibited under the proposed condition 2(b).[41] 
  5. [48]
    The absence of a legitimate planning purpose is further highlighted by a consideration of the changes in the planning laws since the time the development application was lodged.[42] 
  6. [49]
    Pursuant to s 43(5)(b) of the Planning Act 2016 and s 16 and schedule 6 of the Planning Regulation 2017 (Qld), a local government is prohibited from using its planning scheme to regulate particular types of development.  On 6 December 2019, schedule 6 of the Planning Regulation 2017 was amended to add item 20A, which states:

20A Operational work for necessary firebreaks or fire management lines

Operational work that is clearing native vegetation if—

  1. (a)
    the clearing is necessary for—
  1. (i)
    establishing or maintaining a necessary firebreak to protect infrastructure, other than a fence, road or vehicular track, and the maximum width of the firebreak is equal to 1.5 times the height of the tallest vegetation next to the infrastructure, or 20m, whichever is the wider; or
  1. (ii)
    establishing a necessary fire management line, and the maximum width of the clearing for the fire management line is 10m; and
  1. (b)
    the clearing—
  1. (i)
    is on freehold land; or

…”

  1. [50]
    This amendment was introduced as part of the Planning (Spit Master Plan and Other Matters) Amendment Regulation 2019 (Qld).  At the same time, schedule 7 of the Planning Regulation 2017 was amended to insert item 13.  It provides that the type of vegetation clearing referred to in item 20A of schedule 6 of the Planning Regulation 2017 is accepted development.[43] 
  2. [51]
    The combined effect of these legislative amendments is to ensure that no development approval is required with respect to operational work for necessary firebreaks or necessary fire management lines.  The Explanatory Note for the Planning (Spit Master Plan and Other Matters) Amendment Regulation 2019 confirms that the amendments were implemented for that purpose.  The amendments are also intended to simplify land clearing requirements, with the ultimate aim of protecting life and property in a bushfire event. 
  3. [52]
    Having regard to the definition of “infrastructure” in schedule 24 of the Planning Regulation 2017, together with the previous findings of the Court in this proceeding[44] as to the reason for the clearing in question, Traspunt submits that the clearing would now fall within the approval exemption in item 20A of schedule 6.  It submits that it could discontinue this appeal and be in a position where the clearing in question would require no approval and, as such, could not be conditioned at all.
  4. [53]
    The findings of His Honour Judge Horneman-Wren SC relate to the definition of essential management in schedule 26 of the Sustainable Planning Regulation 2009.  For that definition, His Honour found that Traspunt was not required to demonstrate that a firebreak of the particular dimensions proposed was necessary.  It was sufficient for Traspunt to establish that a fire break per se was necessary. 
  5. [54]
    His Honour’s findings turned on the placement of the word “necessary” within the definition.  He found that it only qualified the words “fire break” and “fire management line”, such that if, in each instance, a fire break or fire management line is necessary, any clearance up to the maximum would fall within the definition of “essential management”.[45] 
  6. [55]
    Item 20A in Schedule 6 of the Planning Regulation 2017 is expressed differently.  The operational work in question in item 20A is “clearing native vegetation if the clearing is necessary for establishing or maintaining a necessary firebreak … or establishing a necessary fire management line” (emphasis added).  It requires one to demonstrate that the fire break or fire management line is necessary, and that the extent of the clearing is necessary.  As such, I do not accept that the findings of His Honour Judge Horneman-Wren SC are sufficient to demonstrate that the clearing in question would be permissible without a development approval under item 20A of schedule 6 of the Planning Regulation 2017.  Whether Traspunt could lawfully clear now would depend on its ability to demonstrate that a firebreak of the particular dimensions proposed was necessary.
  7. [56]
    Although I do not accept Traspunt’s submission, it is the introduction of legislative change, rather than its particular applicability in this instance, that supports my view[46] that condition 2(b) is not lawful under s 345(1)(a) of the Sustainable Planning Act 2009.  These legislative changes illustrate why careful scrutiny is warranted when a condition is proposed that would preclude future consideration of the planning merits of a particular form of development.
  8. [57]
    For the reasons provided above, condition 2(b) is not a condition that can be lawfully imposed under s 345(1)(a) of the Sustainable Planning Act 2009.

Is condition 2(c) relevant and not unreasonable?

  1. [58]
    As I have noted in paragraph [19] above, the essence of condition 2(c) is to seek, in perpetuity, the reinstatement of any vegetation that may perish or deteriorate from time to time on the balance area of land. 
  2. [59]
    The Council has not articulated the relevance of this condition.  It has not identified a legitimate planning purpose that it says will be served by this condition.  The evidence that it says supports imposition of the condition was vague in nature.[47]  It did no more than establish that reinstatement of vegetation would improve the ecological condition of the land.
  3. [60]
    Traspunt submits that, to the extent some vegetation may perish or deteriorate in the future, that situation is unrelated to the development in question.  The development relates only to the clearing of a defined area of vegetation.  Traspunt says, in such circumstances, the condition cannot fairly fall within the scope of s 345 of the Sustainable Planning Act 2009.  It says there can be no proper planning purpose associated with a condition that does not even have a superficial relationship with the development in question.
  4. [61]
    The clearing of a defined area of vegetation will not always be unrelated to future deterioration of adjacent vegetation.  In this regard, I accept the evidence of Dr Daniel, the flora expert retained by the Council.  He says that the clearing of part of a vegetated site has the potential to impact the retained vegetation adversely.  The ecological value of vegetated areas can be compromised as a consequence of “edge effects”.  Dr Daniel explained that “edge effects” is a term that describes the situation where clearing exposes the new edge of the retained vegetation to factors that affect the health of the vegetation and encourage the incursion of weeds.  For example, the new “edge” is exposed to greater impacts from wind.  There may also be increased exposure to surrounding incompatible uses, and an associated increase in exposure to weed propagules.  The new edge is also exposed to increased light penetration, which can increase the soil temperature around the edges.  Weed propagules can take advantage of the changes in light and soil temperature. 
  5. [62]
    In some cases, a condition directed at rehabilitation of areas of vegetation that are to be left untouched may be relevant to ensure the management of any “edge effects” associated with proposed vegetation clearing.  This is not such a case.  The area authorised to be cleared by the development permit has already been cleared.  There is no evidence that the retained vegetation is in any peril or danger.  As was explained by Dr Daniel, the subject land has been extant in the environment for a very long time with little change in external stressors.  The vegetation that is to be retained is in good ecological condition.  It is not suffering from fragmentation, isolation or edge effects that are stopping it from regenerating naturally.  All of the structural layers are present in the environment.  Dr Daniel could see no reason for the retained vegetation to become further degraded, other than if other external stressors were introduced, such as people riding motorbikes through the subject land.  Dr Daniel’s evidence on this issue was not contradicted and I accept it.  Dr Daniel also clarified that his opinion that reinstatement of vegetation would provide an improvement reflects no more than his preference for further vegetation rather than an area of mown grass.
  6. [63]
    Having regard to the evidence of Dr Daniel, condition 2(c) is not a relevant condition, and it would be an unreasonable imposition on the subject development. 

Is condition 2(d) relevant and not unreasonable?

  1. [64]
    In its present state, condition 2(d) is uncertain and should not be imposed for that reason.[48]  That difficulty could be overcome by redrafting the condition. 
  2. [65]
    The real issue is whether the outcome the Council seeks is one that can lawfully be the subject of a condition.  The Council seeks the imposition of condition 2(d) in order to require the reinstatement of vegetation along the southern and western boundaries of the subject land, in an area that is currently devoid of vegetation.[49]
  3. [66]
    Leaving aside whether the area was cleared lawfully or not, it is not the role of the Council, or the Court on appeal, to impose a condition on a development approval to ameliorate an existing situation that is unrelated to, and not impacted by, the proposed development.[50]
  4. [67]
    No relevant nexus has been established between the subject development and the areas the Council seeks to have revegetated.  The evidence of Dr Daniel referred to in paragraph [58] above demonstrates that no revegetation is required to ensure the retained vegetation is not imperilled. 
  5. [68]
    For those reasons, I am satisfied that condition 2(d) cannot be lawfully imposed under s 345(1)(a) of the Sustainable Planning Act 2009.

Conclusion regarding lawfulness of conditions

  1. [69]
    For the reasons provided above, conditions 2(b), (c) and (d) are not lawful conditions under s 345 of the Sustainable Planning Act 2009.   

Should conditions 2(b), (c) and (d) be imposed in the exercise of discretion?

  1. [70]
    As the conditions are not lawful, it is unnecessary for me to address whether they should be imposed in the exercise of discretion.  It is sufficient to note that, regardless of whether the conditions are lawful, the reasons provided above persuade me that the conditions should not be imposed in the exercise of discretion.

Conclusion

  1. [71]
    The appeal should be allowed in part.  That part of the development application seeking clearing along the northern and eastern boundaries of Lot 909 and Lot 910 on SP 198688 should be approved subject to conditions 1 and 2(a) and the approved plans and documents identified in Attachment 1 to the Respondent’s Proposed Conditions of Approval dated 26 July 2019.  The appeal should otherwise be dismissed.  To the extent that the development application sought a development permit for clearing along the southern and western boundaries of Lot 909 and Lot 910  on SP 198688, the development application should be refused.

Footnotes

[1]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972 and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2017] QPEC 76; [2018] QPELR 332.

[2]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51 and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 253.

[3]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51, [66].

[4]There was disagreement between the parties about who bears the onus in the appeal given the history of the matter.  It is unnecessary for me to resolve that dispute in this case as the determination of the dispute does not turn on issues of onus. 

[5]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51, [66].

[6]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51, [48].

[7]Section 349(1) of the Planning Act 2016.

[8]Section 349(2) of the Planning Act 2016.

[9]As the Court stands in the shoes of the assessment manager, s 313(3)(c) of the Sustainable Planning Act 2009 requires the Court to have regard to any referral agency response.  A referral agency response is defined to include a concurrence agency response.  A concurrence agency response is defined by reference to s 285(2) and s 290(1)(a) of the Sustainable Planning Act 2009, which provide for a “concurrence agency” to provide a response.  A concurrence agency is defined, by reference to s 251, as an entity prescribed under a regulation.  The relevant regulation is s 13 and Item 5 of Table 2 of Schedule 7 of the Sustainable Planning Regulation 2009.

[10]Moreover, were I wrong about that I would have exercised the discretion under s 440 of the Sustainable Planning Act 2009 to excuse the failure to refer the application.  This is because, when contacted about this issue in May 2019, the Chief Executive administering the Vegetation Management Act 1999 indicated that, in its view, having regard to the relevant legislative amendments, it has no referral agency jurisdiction in relation to this matter and, in any event, it does not object to approval of the development application. 

[11]See Attachment 1 to the Respondent’s Proposed Conditions of Approval dated 26 July 2019 – Exhibit 1.8.

[12]Sections 311(1) and (2)(a) of the Planning Act 2016.

[13]See s 324 of the Sustainable Planning Act 2009; Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8].

[14][2001] QCA 334, [23].  These observations of Atkinson J were cited with approval by Gotterson JA, with whom Muir JA and Atkinson J agreed, in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, 74 [28].  They were also endorsed by the High Court in Pike v Tighe [2018] HCA 9; (2018) 262 CLR 648, 659 [40] (per Kiefel CJ, Bell, Keane, Gordon & Edelman JJ).  These observations are consistent with the observations of Kitto J, Menzies J and Owen J in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 154.  They found that a condition requiring a developer to dedicate land to the Council for purposes relevant to subdivision of the larger parcel is the “quid pro quo” for restoration of a right to subdivide, which proprietary right was taken away by the planning legislation.

[15]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [8]. The conditions power in s 345 of the Sustainable Planning Act 2009 is materially in the same terms as its predecessor, namely s 3.5.30 of the Integrated Planning Act 1997

[16]Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5].

[17]Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92; [2010] QPELR 148, 150 [9]; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 67 [93]; Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; [1970] 123 CLR 490, 499-500.

[18][2014] QPEC 48; [2015] QPELR 49, 55 [24] citing Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92; [2010] QPELR 148.

[19]Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 54-6 [56]-[58] and 67 [93].

[20]Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 86-8 [152]-[157].

[21]Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPELR 460, 465 [40].

[22]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, 994 [155].

[23]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, 995 [161].

[24]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, 999 [192]-[199].

[25]See s 345(1)(a) of the Sustainable Planning Act 2009.

[26]See s 345(1)(b) of the Sustainable Planning Act 2009.

[27]Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386; (1984) 54 LGRA 110, 113; Proctor v Brisbane City Council (1993) 81 LGRA 398, 401-4; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

[28]Wootton v Woongarra Shire Council [1986] QPLR 122; (1985) 56 LGRA 301, 303; Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [14].

[29]Proctor v Brisbane City Council (1993) 81 LGRA 398, 404; Wise v Maroochy Shire Council [1999] 2 Qd R 566, 571; Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, 153.

[30]Proctor v Brisbane City Council (1993) 81 LGRA 398, 404.

[31]See s 345(1)(a) of the Sustainable Planning Act 2009.

[32]Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [16].

[33][2014] QCA 210; [2015] QPELR 68.  The conditions are set out in Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2013] QPEC 61; [2013] QPELR 1023, 1025 [5].

[34]Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, 70 [3].

[35][2014] QCA 210; [2015] QPELR 68. 

[36]Exhibit 7.4, [40].

[37]Exhibit 7.5, [4.8].

[38]See Transcript 2-32/L22-26.

[39]See s 245 of the Sustainable Planning Act 2009 and s 73 of the Planning Act 2009.

[40]Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5]; Genamson Holdings Pty Ltd v Caboolture Shire Council [2008] QCA 374; (2008) 163 LGERA 386, 393-6 [22]-[27]; Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210; [2015] QPELR 68, 74-5 [28]-[32]; Pike v Tighe [2018] HCA 9; (2018) 262 CLR 648, 659 [40] (per Kiefel CJ, Bell, Keane, Gordon & Edelman JJ).  See also the observations of Kitto J, Menzies J and Owen J in Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 at 154.

[41]In those appeals, the appellant’s case is for a different house location and different extent of clearing, but the point remains that even the Council has conceded the need for further vegetation clearing in those proceedings yet purports to prohibit such clearing in this case.

[42]Under s 495(2) of the Sustainable Planning Act 2009, the Court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate.

[43]See also s 44(5) of the Planning Act 2016 and s 18 of the Planning Regulation 2017.

[44]See Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, 995 [160].  The finding was noted but not disturbed on appeal.  See Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51, [27].

[45]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972, 994-5 [158].

[46]Which I otherwise hold for the reasons provided in paragraphs [39] to [42] above.

[47]See paragraphs [38] to [40] above.

[48]King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184, 198; Television  Corp Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59, 71.

[49]See paragraphs [20] to [22] above.

[50]Sumvista Pty Ltd v Redland Shire Council & Anor [2005] QPELR 460, 465 [40].

Close

Editorial Notes

  • Published Case Name:

    Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2021] QPEC 6

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    24 Feb 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.