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Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2)[2021] QPEC 7

Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2)[2021] QPEC 7

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 7

PARTIES:

DAVID TRASK AND TRASPUNT NO. 4 PTY LTD (ACN 102 581 313)

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO/S:

391 of 2018 and 393 of 2018

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:

Appeal No. 391 of 2018

Orders in accordance with paragraph [157]of these reasons for judgment.

Appeal No. 393 of 2018

Orders in accordance with paragraph [158] of these reasons for judgment.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS – DEVELOPMENT APPLICATION – where the Council approved development of land for a house subject to conditions – where a condition required the house to be built in a different location to that proposed – where a condition prohibited further vegetation clearing – 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 59, s 60, s 65, s 311

Planning and Environment Court Act 2016 (Qld), s 43, s 47

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

Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81, applied

Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] HCASL 291, cited

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

Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763, followed

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

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

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

Introduction4

What is the proposed development for each of Lot 909 and Lot 910?4

What are the conditions that are in dispute?5

What is the relevant framework for the decision?7

What are the issues in dispute?10

Should the house locations be controlled by condition 1?12

What vegetation clearing will be required for an appropriate bushfire hazard protection zone?12

What is the relevant bushfire assessment benchmark?13

What is the nature of the bushfire hazard assessment undertaken by the experts?14

What do the bushfire experts recommend based on their assessment?17

Conclusion regarding the extent of vegetation clearing required for an appropriate bushfire hazard protection zone18

What are the engineering consequences of the possible house locations?20

Are there significant practical difficulties associated with the driveway for Lot 909?20

Does the adjoining easement present a material complication for Lot 909?21

Are there material differences associated with engineering costs?22

What is the ecological impact of clearing for the proposed houses?23

What are the applicable assessment benchmarks?24

Do the ecological values of the subject land accord with those recorded in the Planning Scheme?25

What is the extent of the ecological impact occasioned by Traspunt’s house locations?25

What is the ecological significance of the impact?26

What are the relevant town planning considerations?30

Is condition 1 for each of Lot 909 and Lot 910 relevant?32

Is the condition an unreasonable imposition on the proposed development?32

Should condition 1 be imposed in the exercise of discretion?33

Should hazard clearing on Lot 909 be controlled by condition 2(b)?33

Should further clearing be controlled by condition 3(b)?33

Is condition 3(b) lawful?33

Is the condition “reasonably required”?35

Is the condition “relevant to, but not an unreasonable imposition on the development”?35

Conclusion regarding lawfulness of conditions36

Should condition 3(b) be imposed in the exercise of the discretion?36

What orders should be made?36

Introduction

  1. [1]
    At the edge of an existing residential estate at Rothwell, there are two vacant parcels of land.  They are Lot 909 and Lot 910 on SP 198688, which are located at 44-70 Greene Street and 1-9 Cowper Court, Rothwell (“the subject land”).  Both lots are only partly cleared.  
  2. [2]
    David Trask and Traspunt No. 4 Pty Ltd (collectively referred to as “Traspunt”) seek to develop the subject land for dwelling houses.  Traspunt made a development application to Moreton Bay Regional Council (“the Council”) with respect to each of the lots to facilitate that outcome.  The Council approved each of the applications subject to conditions.  Traspunt was discontent with the conditions and appealed each of the decisions on 2 February 2018.  Appeal Number 391 of 2018 relates to Lot 909 and Appeal Number 393 of 2018 relates to Lot 910.
  3. [3]
    As the appeals progressed towards hearing, the Council changed its position.  It issued a revised suite of conditions.  Traspunt disputes three of those conditions. 
  4. [4]
    The issues for me to determine are:
    1. (a)
      whether each of the conditions can be lawfully imposed; and
    2. (b)
      if so, whether they should be imposed in the exercise of discretion.
  5. [5]
    Although the appeals relate to two separate development applications, the appeals were heard together[1] and the ultimate issues to be determined in each appeal are the same.  As such, it is convenient to deal with them in a single judgment.

What is the proposed development for each of Lot 909 and Lot 910?

  1. [6]
    Lot 909 on SP 198688 is a rectangular parcel with a long east-west orientation.  It has an area of 1.918 hectares.  Apart from a short length which adjoins Cowper Court, most of the northern boundary adjoins developed residential lots that front Eugena Avenue.  The length of the eastern boundary fronts Sylvia Court.  The length of the southern boundary adjoins Greene Street, which has only been constructed for a short length along the southern boundary.  About two thirds of the western boundary adjoins the Higgs Street Environmental Reserve and the balance adjoins Lot 910 on SP 198688.
  2. [7]
    Lot 910 on SP 198688 is a roughly rectangular shaped parcel.  It is oriented in a north-south direction and has an area of 7 557 square metres.  Part of the eastern boundary adjoins Lot 909, with the balance fronting Cowper Court.  The length of the northern boundary fronts Varuna Court.  The entire length of the southern and western boundaries adjoin the Higgs Street Environmental Reserve.
  3. [8]
    Each of Lot 909 and Lot 910 is currently vacant.  Traspunt has applied for a development permit for material change of use and a preliminary approval for building works to facilitate the use of each of Lot 909 and Lot 910 for a single-storey dwelling house with four bedrooms and a double garage.  Traspunt’s application proposes a house on Lot 909 with a maximum development footprint of 175.7 square metres, presented in a rectangular form with a maximum width of 11.30 metres and a maximum depth of 19.05 metres.  The application for Lot 910 proposes a house with a 260 square metre development footprint and having a maximum width of 10 metres and a maximum depth of 22 metres.
  4. [9]
    In its development application, Traspunt seeks to locate the house on the western side of Lot 909, at a location that is 31.55 metres from the southern boundary and 22 metres from the western boundary.  It seeks to locate the house on Lot 910 in the south-eastern corner, at a location that is 13.5 metres from the southern boundary and 6 metres from the eastern boundary.  The length of each of the development footprints is proposed to run in an east-west direction. 
  5. [10]
    The town planning reports that accompanied the development applications state:[2]

“… the house has been strategically designed to minimise its impact on on-site vegetation, would not materially affect the surrounding environment and complies with relevant codes.  …

The proposed house is modest in its overal (sic) development footprint and has been sympathetically located [on the western side / in the south-eastern corner] of the lot to minimise its impact on on-site vegetation.  The proposal represents the logical development of this site and would not have a nominal impact on the surrounding area or local biodiversity network.

The application reasonably demonstrates that the modest development has been sympathetically designed to mitigate its impact on vegetation and the local biodiversity network.  …”

What are the conditions that are in dispute?

  1. [11]
    In each appeal, Traspunt disputes conditions 1, 2(b) and 3(b).  They are in materially the same terms.  The conditions are set out below with the relevant differences underlined.

1.

DS30 Siting of the House

 
  1. (a)
    The House and any ancillary building, pool, tennis court, structure or other construction (excluding a single driveway crossover, [which shall be limited to a driveway directly to Sylvia Court / directly to Varuna Court] only over that part of the site between the building envelope and [Sylvia Court / Varuna Court]) must be located within the MBRC building envelope shown on the approved [Lot 909 / Lot 910] – MBRC Approved House Location Plan.
 
  1. (b)
    No dwelling, building, pool, tennis court, structure, other construction or building work (excluding a single driveway crossover, [which shall be limited to a driveway directly to Sylvia Court / directly to Varuna Court] only over that part of the site between the building envelope and [Sylvia Court / Varuna Court]) is permitted outside the MBRC building envelope shown on the approved [Lot 909 / Lot 910] – MBRC Approved House Location Plan.

2.

DP1217 Bushfire Management Plan Required

 
  1. (a)
    Submit a Bushfire Management Plan and/or Bushfire Plan prepared by a suitably qualified person in accordance with applicable legislation.  The following criteria will be used to determine the level of fire hazard or risk on the site:
  1. Size of the open space;
  2. Area of vegetation coverage;
  3. Vegetation structural type;
  4. Type, quality and density of understorey;
  5. Significance as identified in the Atlas of Natural Assets;
  6. Proximity to structural assets;
  7. Existence of firebreaks or other fuel reduced areas; and
  8. Observed or potential fuel load.

Bushfire management measures are to be identified on the Bushfire Management Plan to reduce the level of fire hazard.

 
  1. (b)
    Proposed clearing for any hazard protection zone for the House under the Bushfire Management Plan/Bushfire Plan is to be limited to the areas shown in yellow and green as VMA/SPP 1.5 Clearing on the [Lot 909 / Lot 910] – MBRC Approved House Location Plan.
 
  1. (c)
    Obtain approval from Council for the Bushfire Management Plan in accordance with (a) above.
 
  1. (d)
    Implement the requirements and recommendations of the approved Bushfire Management Plan

3.

DPU Vegetation Clearing

 
  1. (a)
    No vegetation clearing is authorised by this approval, unless the vegetation clearing is carried out in accordance with the recommendations of the approved Bushfire Management Plan required by Condition 2.
 
  1. (b)
    Further clearing of native vegetation (outside of those necessary to implement an approved Bushfire Management Plan) is prohibited on the site.
  1. [12]
    The parties agree that the substantive dispute relates only to conditions 1 and 3(b).  They agree that the outcome of their dispute about condition 2(b) turns on the resolution of the dispute with respect to condition 1.  They say that if the Court ultimately directs that the house locations applied for by Traspunt are to be approved, condition 2(b) should properly be amended accordingly.  Alternatively, the parties say that if the Court determines that the Council’s building envelopes are to be approved, condition 2(b) should properly remain in its current form.
  2. [13]
    Traspunt contends that conditions 1 and 3(b) should not be imposed, either because they are not lawful or because they should not be imposed in the exercise of discretion.  The Council disagrees.  It also contends that, in the event that condition 1 is not imposed, each of the development applications should be refused.

What is the relevant framework for the decision?

  1. [14]
    Both applications were made under the Sustainable Planning Act 2009 (Qld).  However, the appeal was lodged under the Planning Act 2016 (Qld).  As such, the statutory framework in the Planning and Environment Court Act 2016 (Qld) and the Planning Act 2016 applies.[3]  The appeal is by way of hearing anew.[4]
  1. [15]
    Each of the development applications required code assessment.  As such, the Court’s assessment must be carried out only:
    1. (a)
      against the applicable assessment benchmarks in the Redcliffe City Planning Scheme 2005 (“the Planning Scheme”);[5] and
    2. (b)
      having regard to any matters prescribed by regulation, including the common material lodged in respect of the development application.[6]
  2. [16]
    In deciding the appeal, the Court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions that the Court considers appropriate.[7]  The decision must be based on the assessment.[8] 
  3. [17]
    The Court must approve the application to the extent it complies with all the assessment benchmarks.[9]  Even if the development does not comply with some of the assessment benchmarks, the Court may decide to approve the application.[10] 
  4. [18]
    There is a power to impose development conditions on an approval.[11]  It is expressed in general terms.[12]  There is also an obligation to impose development conditions and approve the development, rather than refuse the development, if compliance with the assessment benchmarks can be achieved by the imposition of development conditions.[13] 
  1. [19]
    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. [20]
    The power (and obligation) to impose development conditions must be read subject to the statutory provisions about lawful conditions.  Section 65 of the Planning Act 2016 imposes a constraint on the power to impose conditions.[15]  It, relevantly, states:

65 Permitted development conditions

  1. (1)
    A development condition imposed on a development approval must–
  1. (a)
    be relevant to, but not an unreasonable imposition on, the development or the 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. [21]
    Whether conditions are reasonably required, for s 65(1)(b), involves a consideration of the proposed development and the changes that the development is likely to produce.[16]  The condition must be a reasonable response to the change in the existing state of things.[17] 
  2. [22]
    A condition that is not “reasonably required” in respect of a proposed development may nevertheless be “relevant” if it maintains 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.[18]  The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition.[19]  It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development.[20]  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 light of the development or the potential use.[21]
  3. [23]
    Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 2016, there is no obligation to do so unless it is required to secure compliance with an assessment benchmark.  The assessment manager, and this Court on appeal, retains a residual discretion to otherwise determine what lawful conditions should be imposed.[22]  The discretion is not to be exercised capriciously.  Regard must be had to all relevant considerations, including relevant provisions of the planning documents.[23]  Improper considerations must be disregarded.  As was noted by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council:[24]

“… 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.[25]  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. [24]
    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.[26]  The condition must be fair and reasonable in the circumstances of the particular case. 

What are the issues in dispute?

  1. [25]
    Traspunt opposes the imposition of conditions 1, 2(b) and 3(b).  The basis of its opposition is outlined in a letter from Macpherson Kelly dated 18 September 2019,[27] wherein it states:

Condition 1 – DS30 Siting of the House

This condition is unreasonable because:

  1. Locating the house in the proposed MBRC building envelope will result in a significant and unreasonable cost impost on the Appellants owing to:
  1. (a)
    Additional earthworks are required to:
  1. (i)
    site the homes in the locations proposed by the Council than would otherwise be required if the house was situated in the position indicated in the development application; and
  1. (ii)
    create safe and useable driveway access in accordance with National Construction Code grade requirements, requiring a longer driveway or, alternatively, increased depth of excavation for the house pad;
  1. (b)
    Significant retaining works, built in accordance with the requirements of the Moreton Bay Regional Council Planning Scheme 2016 (Current Scheme) to secure such additional earthworks; and
  1. (c)
    Additional construction works required to connect the dwelling house to existing sewerage infrastructure (either under an existing road and requiring destruction of a private driveway, or through private property over which no easement has been granted).
  1. The size of the building envelope is too small to allow the construction of any structures reasonably associated with ancillary uses on a large residential lot including any ancillary building, pool, tennis court, or other amenity and, therefore, unreasonably restricts the Appellants’ ability to construct a dwelling house and associated structures on the land.

Our Client will adduce evidence in respect of each of these matters.

Condition 2 – DP127 Bushfire Management Plan

We are instructed that our client does not object to this condition, save for paragraph (b) in the event that Condition 1 is amended as particularised in the paragraph above, as a new approved plan will be required to be generated.

Condition 3 – DPU Vegetation clearing

We are instructed that our client does not object to condition 3(a).

Condition 3(b) is unreasonable and should be deleted because it conflicts with the ability of the landowner to undertake clearing for essential management as that term is defined in the Planning Regulation 2017 (Qld).  To the extent that Council seeks to impose condition 3(b), it is an unreasonable imposition on the development of the premises.”

  1. [26]
    Traspunt also alleges that the conditions should not be imposed in exercise of the discretion.  Its position in that regard is reflected in the document the parties produced at the start of the hearing, wherein the parties sought to define the issues in these appeals in the following terms:

“With respect to proceedings 391 and 393 of 2018, whether either of Conditions 1 and 3 of the Council’s proposed conditions of approval:

  1. Complies with section 65(1) Planning Act 2016;
  1. If the answer to the first query is yes, should it, in the exercise of discretion, be imposed,

having regard to the evidence with respect to:

a. Bushfire (concerning the extent of vegetation clearing necessary);

b. Engineering (concerning costs implications and practical issues for the condition associated with sewer servicing, earthworks and access);

c. Ecology (concerning impacts on flora and fauna, having regard to the vegetation clearing necessary for the development);

d. Town Planning.”

  1. [27]
    It is apparent from these documents that Traspunt does not allege that the conditions are not relevant to the development or the use of the subject land as a consequence of the development.  Rather, it contends that the conditions are not lawful as they represent an unreasonable imposition on the development. 
  2. [28]
    Despite the clarity of its position in the document that defined the issues in dispute, in its written submissions Traspunt submits that there is little town planning justification for the Council’s building envelopes.  It relies on evidence of the town planners, who gave evidence on that issue even though it did not form part of the defined issues in dispute.  In those circumstances, it seems appropriate that I address whether the conditions are relevant under s 65(1)(a) of the Planning Act 2016.
  3. [29]
    As such, the real issues in dispute are:
    1. (a)
      whether the conditions are relevant to the development or the use of premises as a consequence of the development;
    2. (b)
      whether the conditions represent an unreasonable imposition on the development or the use of the subject land as a consequence of the development; and
    3. (c)
      whether the conditions should be imposed in the exercise of discretion.

Should the house locations be controlled by condition 1?

  1. [30]
    The effect of each condition 1 is to require the proposed dwelling house, and any structures associated with an ancillary use, to be located within a designated building envelope.  For Lot 909, the building envelope is 268.8 square metres in a rectangular form with a width of 10.5 metres and a depth of 25.6 metres.  The building envelope is in a cleared area of the subject land, 12 metres from the northern boundary and 4.5 metres from the eastern boundary.  For Lot 910, the building envelope is 260.35 square metres in a rectangular form with a width of 10.25 metres and a depth of 25.4 metres.  The building envelope is in a cleared area of the subject land, 4.5 metres from the frontages to Varuna Court and Cowper Court.
  2. [31]
    It is common ground that vegetation clearing will be necessary to enable the construction of the proposed houses in the locations proposed by Traspunt.  In contrast, the building envelope specified by condition 1 for each of the lots is within areas of the subject land that are already cleared of vegetation. 
  3. [32]
    Although there is agreement between the parties about the extent of clearing occasioned by the building envelopes, there is a dispute between them about:
    1. (a)
      the extent of further clearing necessary for an appropriate bushfire hazard protection zone with respect to each of the possible house locations;
    2. (b)
      the engineering consequences of the possible house locations, including the cost implications and practical issues associated with sewer servicing, earthworks and access;
    3. (c)
      the ecological impact of the vegetation clearing necessary for the development of a house in the locations proposed by Traspunt; and
    4. (d)
      town planning considerations, including whether the conditions are for a legitimate town planning purpose.

What vegetation clearing will be required for an appropriate bushfire hazard protection zone?

  1. [33]
    The parties agree that vegetation clearing will be necessary to establish, and maintain, a bushfire hazard protection zone around the houses.  They disagree about the extent of clearing required for each of the proposed locations.
  2. [34]
    The bushfire experts retained by Traspunt and the Council, Mr Janssen and Mr Friend respectively, considered whether further clearing would be necessary to maintain an appropriate bushfire hazard protection zone around the houses, including by reference to the applicable assessment benchmark.  There are very few points of disagreement between the experts.  Despite that, it is necessary to outline their evidence in detail to explain the reasons for my ultimate findings on those matters of disagreement between the parties.

What is the relevant bushfire assessment benchmark?

  1. [35]
    The relevant assessment benchmark in the Planning Scheme is specific outcome SO9 of the Reconfiguration of a Lot Code.  It requires:

“SO9 Development maintains the safety of people and property by:

a) avoiding areas of high or medium bushfire hazard; or

b) mitigating the risk through appropriate:

  • lot design and the siting of buildings; and
  • including firebreaks that provide adequate setbacks to hazardous vegetation and access for emergency vehicles;
  • providing adequate road access for emergency vehicles and safe evacuation; and
  • providing an adequate and accessible water supply for firefighting purposes.”
  1. [36]
    An explanatory note for specific outcome SO9 indicates that the level of bushfire risk is determined by reference to the “Bushfire Risk Analysis for Redcliffe City” undertaken by the Rural Fire Service of the Queensland Fire and Rescue Service, which is said to be available at www.emergency.qld.gov.au.[28]  The bushfire experts note that the report is no longer available.  In those circumstances, the experts agree that it is appropriate to have regard to the Bushfire Hazard Overlay map in the Moreton Bay Regional Council Planning Scheme 2016 (“the 2016 Planning Scheme”).  It maps the subject land as “medium potential bushfire intensity” and “potential impact buffer”.
  2. [37]
    Section 2.8 of the Planning Scheme explains that probable solutions for a specific outcome provide a guide for achieving that outcome in whole or in part, and does not limit the assessment manager’s discretion to impose conditions on a development approval.  The probable solutions for specific outcome SO9 state:

“PS9.1 Development is located in sites not subject to high or medium fire risk; or

PS9.2 Buildings are setback a minimum of 1.5 times canopy height or 10m from retained vegetation which ever (sic) is greater; AND

PS9.3 Lot layout, size and shape allow emergency vehicle access for fire fighting appliances;

AND

PS9.4 Firebreaks are provided between vegetation and new lots a minimum of 20m wide with the road standard allowing for all weather access.

AND

PS9.5 Roads are designed and constructed with:

a maximum grade of 12.5%; and

exclude cul-de-sacs.”

  1. [38]
    The bushfire experts agree that the applicable tree canopy height on each of Lot 909 and Lot 910 is 23.5 metres and that, accordingly, probable solution PS 9.2 would require a 35.5 metre setback from hazardous material. 

What is the nature of the bushfire hazard assessment undertaken by the experts?

  1. [39]
    In the Joint Expert Report of the Bushfire Experts, the experts undertook a bushfire hazard assessment to inform their assessment of the proposed development against specific outcome SO 9.  For the purposes of their assessment, they considered the bushfire risk assessment methodology in Appendix 3 of the Queensland State Planning Policy 1/03 Guideline – Mitigating the adverse impacts of flood, bushfire and landslide
  2. [40]
    In addition, the bushfire experts considered contemporary standards reflected in the Environmental Management and Conservation Zone Code in the 2016 Planning Scheme and State Planning Policy July 2017 (“the 2017 State Planning Policy”).  They also considered the relevant supporting material, namely the “Natural Hazards, Risk and Resilience – Bushfire: State Planning Policy - State Interest Guidance Material December 2019” (“the State Interest Guidance Material”) and the document titled Bushfire Resilient Communities” that is called up in the State Interest Guidance Material.[29]
  3. [41]
    For the purpose of the assessment, the experts sourced information from the Queensland Fire and Emergency Services online mapping system, Catalyst.  They included the sourced information in their Joint Expert Report.  The experts considered the Queensland Regional Ecosystems Map – Remnant Vegetation, version 10, the Vegetation Hazard Class Map, the Severe Fire Weather Map and the Fire History Map.  They took potential fuel loads for vegetation hazard classes from Bushfire Resilient Communities
  4. [42]
    The experts agree that the 5 per cent annual exceedance probability[30] Forest Fire Danger Index for each of Lot 909 and Lot 910 is 55.  They explain that the Forest Fire Danger Index (or FFDI) values represent the chance of a fire starting, its rate of spread, its intensity and the difficulty of its suppression, according to various combinations of air temperature, relative humidity, wind speed and both long and short-term drought effects.  High Forest Fire Danger Index values represent more severe fire weather conditions than low Forest Fire Danger Index values.
  5. [43]
    The Fire History Map indicates one fire has occurred in close proximity to Lot 909 and Lot 910 during the past 10 years.  The fire occurred to the west of Lot 909 and Lot 910 in October 2016.  The experts agree that fire scar indicates the fire was contained along the western boundary of Lot 910.
  6. [44]
    In section 8.4 of the Joint Expert Report of the Bushfire Experts, Mr Janssen documents the results of his assessment of the land within 100 metres of the subject land.  He includes his observations about vegetation, vegetation management and slope (made while walking over the area), photographs he took of the area and the results of his ground-truthing of the Vegetation Hazard Class Map.  The experts record that they used aerial imagery of the subject land and utilised online measuring tools from Catalyst, Google Earth and the Queensland Globe to assist in validating their observations and the measurements made by Mr Janssen during the site assessment.  Mr Friend did not express any disagreement with Mr Janssen’s observations and ground-truthing results.
  7. [45]
    The experts note the locations of hydrants that are in the road reserves within 100 metres of Lot 909 and Lot 910.  They opine that each of Lot 909 and Lot 910 have appropriate vehicular access for both rural and urban fire-fighting vehicles via Varuna Court, Cowper Court, Eugenia Avenue, Sylvia Court and Greene Street, which are dual-lane public roads.  Those roads also provide appropriate evacuation routes from Lot 909 and Lot 910.  The experts agree that the trafficability of these roads will not be compromised by bushfire attack as they are through residential development.
  8. [46]
    Having regard to the agreed information outlined in paragraphs [39] to [45] above, in section 9 of the Joint Expert Report of the Bushfire Experts, Mr Janssen undertakes a site-specific bushfire hazard assessment.  The assessment adopts a “fit for purpose” approach for bushfire hazard investigation.  This approach accords with the State Interest Guidance Material and Bushfire Resilient Communities
  9. [47]
    Mr Janssen’s assessment details his calculations of potential bushfire intensity at relevant assessment reference points utilising the Queensland Fire and Emergency Services Bushfire Intensity Calculator (version November 2014).  His assessment is based on current site conditions and, as such, considers the extent to which discontinuous fuel continuity associated with the clearing along the southern and western boundaries of Lot 909 and Lot 910 modifies the potential intensity of small patches and corridors of vegetation.  Mr Janssen then uses the intensity rating to identify the bushfire hazard class for each assessment reference point by reference to part B of the “Natural Hazards, Risk and Resilience – Technical Manual – A ‘fit for purpose’ approach in undertaking natural hazard studies and risk assessments”.[31]  Mr Janssen opines that the bushfire hazard class for assessment reference points E and F is medium.  Those reference points are identified in Figure 7 to the Joint Expert Report of the Bushfire Experts.  They are located in the off-site vegetation to the west and south of the subject land, within the 100 metre assessment area.  Mr Janssen opines that the other assessment reference points have a bushfire hazard class of “non-bushfire prone”.  This includes assessment reference points G and H, which are located at a central point of each of Lot 910 and Lot 909 respectively. 
  10. [48]
    Having regard to current site conditions, Mr Friend agrees with Mr Janssen’s assessment of potential bushfire intensity.  He also agrees with Mr Janssen’s opinions about the bushfire hazard class for each assessment reference point.  However, Mr Friend opines that the area of vegetation within each of Lot 909 and Lot 910 (reflected by assessment reference points H and G respectively) should be considered areas of medium potential bushfire intensity and medium bushfire hazard class.  His opinion is premised on the fact that the clearing along the western and southern fence lines on those lots was not approved clearing in Appeal Number 3002 of 2012.  As such, in Mr Friend’s opinion, the assessment of vegetative connectivity to areas of vegetation outside of Lot 909 and Lot 910 should be assessed as continuous. 
  11. [49]
    I do not accept Mr Friend’s opinion about the appropriate approach to the classification of the potential bushfire intensity and bushfire hazard class of the vegetation on Lot 909 and Lot 910.  Although the clearing along the western and southern fence lines on those lots was not approved clearing in Appeal Number 3002 of 2012, it does not follow that it was unlawful.  The Council has not directed me to any finding of this Court that demonstrates that the present cleared state of the southern and western boundaries of the subject land is the consequence of unlawful clearing.  Further, no such allegation was made in these appeals.  It is not part of the case that Traspunt was required to meet.  
  12. [50]
    In any event, in his individual Statement of Evidence,[32] Mr Janssen opines the difference of opinion expressed by Mr Friend does not affect the ultimate conclusions and recommendations of the experts.  He provides a detailed and cogent explanation for this opinion.  That evidence was unchallenged, and I accept it.
  13. [51]
    Although the vegetation on the subject land is appropriately classified as “non-bushfire prone”, the experts agree that it is still vulnerable from exposure to radiant heat, ember attack and burning debris.  This is because assessment reference points E and F are classified as “medium bushfire hazard”.  Bushfire Resilient Communities applies a 100-metre-wide “potential impact buffer” to land identified as “medium bushfire hazard”.  Land affected by the buffer is defined as a “bushfire hazard area” or “bushfire prone area” for development planning purposes.
  14. [52]
    The experts agree that the Australian Standard for Construction of Buildings in Bushfire Prone Areas (“AS 3959-2018”) sets out the requirements for the construction of buildings in bushfire hazard areas in order to improve their safety when they are subjected to burning debris, radiant heat ,or flame contact generated from a bushfire. 
  15. [53]
    Bushfire attack level (“BAL”) ratings in AS 3959-2018, i.e. BAL-LOW, BAL-12.5, BAL-19, BAL-29, BAL-40 and BAL-FZ (flame zone), are a means of measuring the severity of a building’s potential exposure to ember attack, radiant heat and direct flame contact, using increments of radiant heat expressed in kW/m2.  They are the basis for establishing the requirements for construction to improve protection of building elements from attack by bushfire.  A building or building location with a BAL rating of BAL-40 is at a higher level of risk to radiant heat exposure than a building or building location with a BAL rating of BAL-12.5.
  16. [54]
    The BAL rating of a building or building location can be reduced by increasing its separation distance from hazardous vegetation, whereby the land between the building or building location and hazardous vegetation is maintained in a low fuel condition by the removal of shrubby vegetation and by mowing grass.
  17. [55]
    Mr Janssen undertook a radiant heat exposure assessment.  Its purpose is to ascertain the extent to which the level of exposure of a building to bushfire attack from flames, burning debris and radiant heat (and the resultant BAL rating required during construction) could be reduced by reducing fuel loads through vegetation modification and maintenance in a zone around the building.  For his modelling, Mr Janssen used the Fire Protection Association of Australia “BAL calculator V4.8” software.  It models the “method 2” assessment procedure in Appendix B of AS 3959-2018.  The Joint Expert Report of the Bushfire Experts attaches the inputs used for the modelling and the results.  The results can be summarised as follows:

Directions of bushfire attack

Distance of Building Locations to VHC 9.2 (m)

BAL-FZ

BAL-40

BAL-29

BAL-19

BAL-12.5

BAL-LOW

E and F on Figure 7

<8

8-<12

12-<17.6

17.6-<25.5

25.5-<100

100+

  1. [56]
    Mr Friend agrees with these calculations.
  2. [57]
    The bushfire experts agree that these calculations demonstrate that a 35.5-metre-wide setback from hazardous vegetation would be required to comply with probable solution PS 9.2 in the Reconfiguring a Lot Code in the Planning Scheme.[33]  A setback of that order would enable the construction of a building with a BAL-12.5 rating.  A 20-metre-wide setback from hazardous vegetation would enable the construction of a building with a BAL-19 rating, and a 12-metre-wide setback from hazardous vegetation would enable the construction of a building with a BAL-29 rating.

What do the bushfire experts recommend based on their assessment?

  1. [58]
    During their oral evidence, both bushfire experts explained that they regard the contemporary technical guidelines as providing appropriate criteria.  They explain that the previous guidelines[34] adopted a “rule of thumb” approach based on a prescribed distance (1.5 times the tree canopy height) from prescribed bushfire hazard areas.  Mr Friend says that one of the limitations with the earlier approach is that it did not take account of understorey, fuel loads and other such considerations that have come to the fore as a consequence of improved understanding about bushfires.  As such, the previous approach did not include a site-specific analysis of radiant heat exposure.  The experts are both of the opinion that the incorporation of a site-specific analysis of radiant heat exposure in the current guidelines provides a more robust and finer-grained analysis of bushfire risk and allows determination of a more appropriate bushfire hazard protection zone.
  2. [59]
    The bushfire experts agree that, applying the State Interest Guidance Material and Bushfire Resilient Communities, a setback from hazardous vegetation that achieves a BAL rating of no more than BAL-29 (or radiant heat flux Judgment-Image 29kW/m2 at the building or building location) is deemed to achieve an acceptable or tolerable level of risk to people and property.  As such, the experts say that a 12-metre-wide setback is all that is necessary, whether the house is located as proposed by Traspunt or in accordance with condition 1.  This is the extent of setback that both experts recommend. 

Conclusion regarding the extent of vegetation clearing required for an appropriate bushfire hazard protection zone

  1. [60]
    On the basis of the evidence of the bushfire experts, Traspunt proposes a 12-metre-wide bushfire hazard protection zone around its proposed house locations.  Consistent with the evidence of the bushfire experts, Traspunt says that certain ancillary structures and facilities (such as a swimming pool) can be built within the bushfire hazard protection zone without the need for further clearing.[35] 
  2. [61]
    Traspunt submits that the Council conditions would require a building envelope with a bushfire hazard protection zone of 35.5 metres.  It submits that condition 2(b) authorises clearing for the full extent of that 35.5-metre-wide zone.  The Council disagrees with Traspunt’s construction of condition 2.  It says the effect of condition 2 is to impose an upper limit on the extent of clearing, which it says will otherwise be defined by the Bushfire Management Plan that is to be submitted for the Council’s approval.
  3. [62]
    For the reasons that follow, it is unnecessary for me to resolve the dispute between the parties about the proper construction of condition 2.  As I noted in paragraph [16] above, in deciding the appeal, the Court can change the decision appealed against, or set it aside and make a decision replacing it or return the matter to the Council with directions that the Court considers appropriate.[36]  The decision must be based on the assessment undertaken as part of a hearing anew. 
  4. [63]
    When the Council provided its revised conditions of approval, it did not have the benefit of the evidence of the bushfire experts.  Those experts are eminently qualified to express opinions about the appropriate extent of clearing around any house on Lot 909 and Lot 910.  As is reflected by my summary of their evidence in paragraphs [34] to [59] above, the bushfire experts have undertaken a detailed, site-specific analysis of the bushfire risk of the subject land.  They detail all of the material facts on which their reports are based, reference the literature and other material on which they rely, comprehensively document their observations, investigations and calculations, and provide a cogent explanation for the opinions they express.  No material challenge was made to their evidence.  There is no suggestion of relevant error with the material facts on which their reports are based. With the exception of the evidence of Mr Friend referred to in paragraphs [48] and [49] above, I accept their evidence. 
  5. [64]
    For the reasons provided in paragraphs [34] to [63] above, regardless of the ultimate house locations, the proposed development on each of Lot 909 and Lot 910 should be approved subject to a condition that requires the establishment and maintenance of a 12-metre-wide bushfire hazard protection zone around a defined building envelope. 
  6. [65]
    I also consider it appropriate for the condition to reflect those requirements recommended by the bushfire experts at paragraphs [128] to [133] and [137] to [141] of the Joint Expert Report of the Bushfire Experts.  Those recommendations were not challenged.[37]  They include requirements that:
    1. (a)
      a registered surveyor must survey and peg the bushfire hazard protection zone;
    2. (b)
      the bushfire hazard protection zone must be the subject of a covenant and shown on approved site plans;
    3. (c)
      prospective purchasers of Lot 909 and Lot 910 must be notified about the effects of the bushfire hazard protection zone on the future use of the lot;
    4. (d)
      buildings (or parts thereof) which are classified under the Building Code of Australia (2019) are not permitted in the bushfire hazard protection zone;
    5. (e)
      roads, driveways, landscaped gardens, fencing, retaining walls, swimming pools and lawn locker style garden sheds are permitted in the bushfire hazard protection zone;
    6. (f)
      the bushfire hazard protection zone will consist of landscaped gardens or managed vegetation that will minimise the impact of bushfire attack on buildings and provide a defendable space for fire-fighters to operate;
    7. (g)
      pedestrian access must be provided for the Queensland Fire and Emergency Services to access the bushfire hazard protection zone at all times; and
    8. (h)
      with respect to landscaping and vegetation management within the bushfire hazard protection zone, the owner or occupier is to:
      1. remove woody shrubs and maintain grass at less than ten centimetres in height;
      2. remove trees which have canopy branches that overhang building locations or are connected with canopy branches of trees on the adjoining property to the west;
      3. remove trees or tree branches that are identified by an arborist as dead or rotting or dangerous;
      4. remove any branches from retained trees that are less than two metres above ground level; and
      5. design landscaping to minimise the potential for it to catch fire and compromise the building and/or the evacuation route in accordance with design specification in the Victorian Country Fire Authority guideline Landscaping for Bushfire – Garden design and plant selection (CFA 2011).
  7. [66]
    It is also appropriate for the Joint Expert Report of the Bushfire Experts to be noted as an approved document within the list of approved plans and documents in the development approval.
  8. [67]
    The proposed development of the land for a dwelling house, wherever it is located, introduces a new bushfire hazard consideration.  A condition that addresses the risk from bushfire hazard in a manner that will provide certainty to the owner or occupier of the land about the extent to which clearing is permitted to address the risk is a reasonable response to the proposed development.  Such a condition is lawful pursuant to s 65(1)(b) of the Planning Act 2016.  As such, conditions that accord with my reasons in paragraphs [64] and [65] above are reasonably required in relation to the proposed use of each of Lot 909 and Lot 910 for a house and in relation to any ancillary use of each lot that might occur as a consequence of the use of the land for a house. 
  9. [68]
    Further, for reasons explained in more detail below, I also consider that the conditions are relevant to, but not an unreasonable imposition, on the proposed development and use of the land as a consequence of the development.  They serve a legitimate planning purpose in that they ensure compliance with applicable assessment benchmarks with respect to bushfire and ecology.  The conditions strike an appropriate balance between those two important planning considerations.

What are the engineering consequences of the possible house locations?

  1. [69]
    Traspunt alleges that the alternative house location proposed by the Council for Lot 909 raises practical difficulties associated with the driveway and access, and complications as a consequence of the adjoining easement.  It also alleges that the alternative house locations proposed on each of Lot 909 and Lot 910 gives rise to additional costs
  2. [70]
    Mr Daly and Mr Collins, the engineers retained by Traspunt and the Council respectively, gave evidence with respect to these issues.

Are there significant practical difficulties associated with the driveway for Lot 909?

  1. [71]
    The house location proposed by Traspunt would obtain access via an existing concrete vehicle crossover and a new driveway from Cowper Court.  Given the existing topography between the Cowper Court crossover and Traspunt’s proposed house location, the driveway gradient would be relatively flat.  The driveway would be in the order of 90 metres in length and could be constructed of a variety of materials, depending on the preference of the ultimate owner or builder.  Mr Daly opines that the driveway design would not require approval by the Council.  He says a self-assessable driveway that is fully compliant with the Institute of Public Works Engineering Australia Standard Drawing Numbers RS-049 and RS-050, Vehicle Crossings – Residential Driveways (Plans 1 and 2) is readily achievable.
  2. [72]
    By comparison, Traspunt alleges that there are significant practical difficulties, and costs, associated with the construction of a driveway from Sylvia Court as required by condition 1.  That driveway would be in the order of ten metres in length but would be of a much steeper profile.  The engineers agree that an appropriate driveway is achievable with earthworks in the upper extent of the road reserve for Sylvia Court or a non-typical driveway crossover design.  However, the design will require approval from the Council before it is constructed. 
  3. [73]
    Mr Daly opines that the differences in elevation between Sylvia Court and the designated building envelope in condition 1 will result in a less functional outcome than that presented by Traspunt’s house location.  He also says that the 4.5 metre setback of the building envelope from the eastern boundary is an insufficient setback to accommodate the parking of all but three of the top ten best-selling cars of 2019.  Consequently, in order to more readily accommodate a car on the driveway in front of the house, the house would need to be constructed further back, reducing the available building envelope.  Mr Daly also says that, because of the gradient associated with a driveway to the Council building envelope, decomposed granite is unlikely to be a suitable surfacing option.  A full concrete driveway will likely be required.  Mr Daly acknowledges that alternative driveway locations may be available, but he says they will necessitate longer driveway lengths and consequent additional cost.  Having regard to these matters, Mr Daly opines that the location required by condition 1 represents a compromised outcome.
  4. [74]
    Mr Collins agrees that the driveway required under condition 1 requires greater consideration of issues associated with gradient.  Despite that, he says there is no reason why access to the approved house site could not be provided off Sylvia Court.
  5. [75]
    I do not accept that the location required by condition 1 represents an unacceptable outcome.  Self-evidently, no two residential parcels are the same.  Each residential lot will present its own design and construction hurdles to prospective owners.  Some owners may prefer to traverse a short, steep, concrete driveway rather than a long, flat driveway of decomposed granite.  Some prospective purchasers may be willing to pay for additional earthworks to achieve a flatter driveway gradient.  Ultimately, these choices will be a matter for the owner or builder.  The design issues raised by Mr Daly do not represent “significant practical difficulties”.  As both the engineers recognise, there are achievable engineering solutions for driveways to each of the potential house locations. 

Does the adjoining easement present a material complication for Lot 909?

  1. [76]
    Lot 909 is burdened by an access easement in favour of the Council.  The easement area is located immediately north of the building envelope required by condition 1 for Lot 909. 
  2. [77]
    Mr Daly says that, unless approved by the Council, the easement precludes any driveway construction or access being provided to the northern portion of the building envelope.  He says this would preclude alternative driveway design options that may avoid some of the issues identified above.  He says it would also preclude a carport or garage being located on the northern boundary of the residence and, as such, restricts built form options for the house.  Mr Daly’s opinion is premised on the assumption that clauses 2 and 4 of the easement severely limit what can occur within the easement.
  3. [78]
    Mr Daly’s opinions are premised on two incorrect assumptions.  First, the terms of the easement do not present an additional hurdle in terms of construction of a house outside the building envelope.  Regardless of the terms of the easement, condition 1 precludes the construction of a carport or garage outside of the building envelope (and within the easement area).  Second, a driveway within the easement area is within the contemplation of the terms of the easement.  This is evident from clauses 2 and 6. 
  4. [79]
    Pursuant to clause 2, the owner of Lot 909 maintains:

“full and complete right and liberty of way and passage over the said servient tenement for itself or its successors assigns servants, agents and all other persons of any description whatsoever authorised by the Grantor to have full and complete right and liberty of way and passage over the servient tenement at all times with or without vehicles of any description.”      

  1. [80]
    Clause 6 requires the owner of Lot 909 to bear the cost of maintaining the servient tenement in a good state of repair, and open and in a trafficable condition for the passage of vehicles.  The construction of a driveway from Sylvia Court across part of the servient tenement is consistent with this obligation.
  2. [81]
    For those reasons, the easement does not present a material complication.

Are there material differences associated with engineering costs?

  1. [82]
    Traspunt alleges that there are material cost differences associated with the house locations required by the Council’s proposed conditions.  It says the construction costs for the building envelope in condition 1 for Lot 909 will be in the order of $14,500 to $54,000 (or 139 per cent to 277 per cent) more than the cost of construction at Traspunt’s house location.  For Lot 910, Traspunt submits that the house location that it seeks is considerably cheaper than the building envelope required under condition 1.  It says that the cost associated with connecting the Council’s building envelope to sewer is nearly triple the cost of connecting to Traspunt’s house location.  Traspunt relies on the evidence of Mr Daly in this regard. 
  2. [83]
    In his Supplementary Expert Report, Mr Daly provides a comparative cost estimate summary for each of Lot 909 and Lot 910.  His summary provides cost estimates for each proposed house location having regard to the cost of earthworks and retaining walls to facilitate a “slab on ground” house construction; the cost of establishing electrical, water and sewer connections; the cost of driveway construction (with a cost for each of concrete and decomposed granite); and the cost of clearing vegetation for the sewer line (but not for the house site and associated bushfire hazard protection zone).
  3. [84]
    Having regard to the differential costs, Traspunt submits that condition 1 does not comply with s 65 of the Planning Act 2016 and that, even if it was lawful, the additional costs occasioned by condition 1 provides a powerful discretionary reason why the condition should not be imposed.  I disagree for each of the reasons that follow.
  4. [85]
    First, although the cost exercise undertaken by Mr Daly was more comprehensive than that undertaken by Mr Collins, I do not find Mr Daly’s evidence compelling.  Mr Daly’s curriculum vitae documents his experience as a civil engineer and in the water engineering industry.  It does not disclose any qualifications or experience in quantity surveying.  Having read Mr Daly’s reports and listened to his evidence, I have the impression that the cost estimates produced by him are not the product of his expertise.  Rather, they are the product of an intelligent individual doing the best he could with the information he had at his disposal, such as Rawlinson’s Construction Handbook 2020.  Mr Daly’s limitations in that regard were particularly apparent during his cross-examination, when he struggled to explain his calculations with respect to the likely cost of vegetation clearing. 
  5. [86]
    Second, the comparative costs analysis is of limited utility in ascertaining whether there is a material construction cost difference occasioned by the Council’s conditions because of its limited nature.  The analysis assumes a “slab on ground” construction.  A landowner may elect instead to construct a house on stumps.  The analysis also assumes that the house construction costs will remain the same between the alternative building locations.  However, as was noted by Mr Daly in the Joint Experts Report on Hydraulics, Stormwater and Civil Engineering, subsoil conditions can significantly affect house foundation design and structural engineering requirements, and consequent construction cost.  He says those costs require quantification by separate specialists.  Mr Daly also notes that the geotechnical ground conditions and subsoil conditions can equally have a significant impact on earthwork costs, especially where rock is encountered.  No geotechnical or subsoil testing has been undertaken at either house location and the precise subsoil conditions remain unknown.  Having regard to those matters, Mr Daly opines that further and additional information is necessary to quantify the comparative costs of the different house locations.  No such information was forthcoming.  In addition, during cross-examination, Mr Daly confirmed that his costs analysis did not make allowance for the cost of clearing vegetation at the Traspunt house locations to establish the house pad or to provide for the bushfire hazard protection zone.  He accepted that those costs should be taken into account when comparing the alternative sites.
  6. [87]
    Third, no evidence was placed before me about the likely overall cost of house construction or about the value of the land, nor was there any other evidence that might provide a benchmark to assess, in a relative sense, the significance of the cost differences in determining whether they are unreasonable. 
  7. [88]
    For the reasons provided above, I am not persuaded that the imposition of condition 1 will result in material differences associated with engineering costs.  Further, to the extent that certain differences have been quantified, I do not consider the additional cost to be an unreasonable impost on the development given the significance of the ecological considerations, which I address below.   

What is the ecological impact of clearing for the proposed houses?

  1. [89]
    The house locations proposed by Traspunt are in vegetated areas of the subject land.  They would necessitate clearing for construction of the house and for the purpose of a 12-metre-wide bushfire hazard protection zone.  By way of contrast, the effect of condition 1 for each of the approvals is to require the house to be located in areas of Lot 909 and Lot 910 that are presently cleared.  Most of the 12-metre-wide bushfire hazard protection zones around the designated building envelopes are also presently cleared. 
  2. [90]
    Traspunt accepts that the house locations proposed by it involve additional impacts on the habitat values of the subject land but says that the impacts are not significant.  It says the impacts do not warrant the imposition of condition 1.
  3. [91]
    The significance of the ecological impact is appropriately ascertained by reference to the applicable assessment benchmarks.

What are the applicable assessment benchmarks?

  1. [92]
    Lot 909 and Lot 910 are in Preferred Use Area 1 (Future Residential) of the Low Density Residential Zone under the Planning Scheme.  Any expectation of residential development on land so zoned is tempered by the assessment benchmarks that apply to such development.  Relevantly, Lot 909 and Lot 910 are identified as having biodiversity values of State significance on Overlay Map 1.  Consequently, the Natural Features or Resources Overlay Code contains relevant assessment benchmarks for the development applications. 
  2. [93]
    Section 5.1.5 of the Natural Features or Resources Overlay Code relevantly provides:

“2) The overall outcomes sought for the Natural Features or Resources Overlay are the following -

A) Biodiversity values for the areas identified with State or Regional, sub-regional or local significance on Overlay Map 1 are maintained and enhanced.

G) The Saltwater Creek catchment indicated on Overlay Map 7 is preserved and maintained.”

  1. [94]
    The Natural Features or Resources Overlay Code also includes six specific outcomes that apply to sites identified on Overlay Map 1 as having biodiversity values.  They state:

“SO1 The areas of the City with biodiversity values identified on Overlay Map 1 are preserved through protection and management of ecosystems containing remnant vegetation.

SO2 The ecological values of habitats and native flora and fauna are maintained where the land is included in an area of Local, State and Regional or Sub-regional significance identified on Overlay Map 1.

SO3 Corridors of remnant vegetation permit the sustainable migration of fauna between areas with biodiversity values.

SO4 Development located within or adjacent to vegetation of State, Regional or Sub-regional significance does not involve the destruction of vegetation or fauna through clearing of land, earthworks, erosion, stormwater run-off or contaminated emissions.

SO5 Development addresses biodiversity through connectivity of ecosystems; viability of protected native species and their habitats; retention of native vegetation; and retention and management of riparian vegetation.

SO6 Development maintains and enhances the linkages between areas of riparian or remnant vegetation either through the retention of vegetation or the rehabilitation of land to create a link through the development site.”

Do the ecological values of the subject land accord with those recorded in the Planning Scheme?

  1. [95]
    Overlay mapping in a planning instrument can be indicative of the presence of ecological values on a site.  However, the mapping may require ground-truthing to determine whether the values exist.  With respect to those matters, I was assisted by evidence from ecological experts retained by the parties.  They undertook a site-specific assessment and provided evidence about the results of their assessment. 
  2. [96]
    Under the direction of Mr Warren, the ecological expert retained by Traspunt, two ecologists employed by JWA Pty Ltd prepared an Ecological Assessment Report that recorded the results of a desktop assessment, a brief fauna survey, a targeted koala survey and koala habitat assessment, a tree survey and a habitat value assessment.  Mr Warren appends that report to his individual statement.  Having regard to its contents, Mr Warren opines that the vegetation communities on the subject land accord with those shown on the regulation vegetation management map.  Most of the subject land contains endangered regional ecosystem 12.5.3 and associated essential habitat.  The remainder of the subject land is grassed.  The grassed areas generally correspond to those areas where the mapping shows Category X (being vegetation not regulated under the Vegetation Management Act 1999 (Qld)). 
  3. [97]
    A tree survey undertaken over parts of the subject land, including those areas where Traspunt seeks to establish houses, records a total of 466 non-juvenile koala habitat trees.  Preferred koala food tree species (i.e. Eucalyptus tereticornis) are relatively common within the vegetation communities on the subject land.  Evidence of koala activity (i.e. scratches or scats) was observed at several locations throughout the subject land during the site assessment undertaken for Traspunt.  Mr Warren says that the targeted koala assessment records high koala activity levels throughout Lot 909, and activity levels that range from low to moderate in Lot 910.  Mr Warren also says that the habitat suitability assessment demonstrates that six significant fauna species, in addition to the koala, have reasonable potential to be present on the subject land. 
  4. [98]
    Dr Daniel and Mr Caneris, the experts retained by the Council to give evidence about flora and fauna respectively, do not dispute the results of the site assessments.  Dr Daniel explains that the applicable regional ecosystem (particularly RE 12.5.3a) is a vegetation community that is associated with core threatened species habitat for koala.  It is a high conservation value regional ecosystem comprising State biodiversity significance.
  5. [99]
    Having regard to the undisputed results of the site assessment, I am satisfied that the ecological values present on the subject land align with the values ascribed by the overlay in the Planning Scheme.[38] 

What is the extent of the ecological impact occasioned by Traspunt’s house locations?

  1. [100]
    The house locations sought by Traspunt on Lot 909 and Lot 910 are in vegetated areas of the subject land.  They would necessitate removal of vegetation that the ecological experts agree is of value. 
  2. [101]
    In his individual Statement of Evidence, Mr Warren identifies that Traspunt’s house location and the associated 12-metre-wide bushfire hazard protection zone on Lot 909 would necessitate removal of:
    1. (a)
      1 338 square metres of the endangered regional ecosystem (RE 12.5.3);
    2. (b)
      1 298 square metres of essential habitat;
    3. (c)
      96 non-juvenile koala habitat trees, eight of which are primary feed species; and
    4. (d)
      four other trees with habitat values, such as trees with obvious hollows, fissures or nests or that have a diameter greater than 0.8 metres measured at 1.3 metres above the ground.
  3. [102]
    For Lot 910, Mr Warren identifies that Traspunt’s house location and the associated 12-metre-wide bushfire hazard protection zone would necessitate removal of:
    1. (a)
      997 square metres of the endangered regional ecosystem (RE 12.5.3);
    2. (b)
      643 square metres of essential habitat; and
    3. (c)
      21 non-juvenile koala habitat trees, three of which are primary feed species.
  4. [103]
    Mr Warren’s calculations do not include the area that would need to be cleared in order to facilitate a sewer connection to Traspunt’s house locations.
  5. [104]
    While Mr Caneris proffered slightly different calculations, the differences are not material.  They are so slight that it is unnecessary for me to resolve them.  I am prepared to accept the more conservative calculations provided by Mr Warren.  Of greater interest is the difference between the experts about the ecological significance of the impacts.

What is the ecological significance of the impact?

  1. [105]
    Mr Warren acknowledges that Traspunt’s house locations result in additional impacts on regional ecosystem 12.5.3 and essential habitat on each of Lot 909 and Lot 910 as compared to the building envelope defined in condition 1.  However, he opines that the additional impacts are not significant. 
  2. [106]
    Mr Warren’s opinion is premised on seven matters.  First, Mr Warren assumes that the clearing associated with the building envelope under condition 1 will include a 35-metre-wide bushfire hazard protection zone, resulting in clearing of 794 square metres of endangered regional ecosystem on Lot 909 and 985 square metres of endangered regional ecosystem on Lot 910.  Second, Mr Warren says there are portions of the vegetation on the subject land that are comprised of advanced regrowth.  Third, Mr Warren says there are some areas of weed incursion along the edges.  Fourth, in Mr Warren’s view, Traspunt has located the proposed houses to mitigate impacts on the endangered regional ecosystem and koala habitat.  In this respect, Mr Warren says that Traspunt’s house locations abut residential development and are already suffering from fragmentation due to firebreak clearing and edge effects such as illegal dumping of rubbish and garden waste.  Fifth, Mr Warren regards endangered regional ecosystem 12.5.3a to be of moderate value.  Sixth, Mr Warren opines that the subject land contains moderate to high habitat value for the local koala population but says the vegetation is a small part of a much larger habitat patch such that its removal is not significant.  In this respect, Mr Warren notes that the Higgs Street Environmental Reserve occurs adjacent to the western boundary of the subject land.  In turn, that reserve connects to the North Lakes Environmental Reserve.  The broader habitat patch extends from Boundary Road in the west to Anzac Street in the east.  It covers approximately 232 hectares.  In that local context, Mr Warren says the loss of less than one per cent of the habitat is not significant.  Seventh, Mr Warren says the impacts on vegetation values on the subject land and on adjoining land can be appropriately ameliorated through measures implemented as part of a site rehabilitation plan.  For each of the reasons that follow, I do not accept Mr Warren’s evidence about the significance of the ecological impact of Traspunt’s proposed houses locations. 
  3. [107]
    First, I do not regard Mr Warren’s first assumption to be appropriate for the reasons provided in paragraphs [33] to [68] above.  Assuming it is relevant to compare the extent of clearing associated with Traspunt’s house locations to that associated with the Council’s building envelopes and the appropriate associated bushfire hazard protection zones, the area of clearing that will be required for the Council’s building envelope is 105 square metres for Lot 910.  No clearing is required on Lot 909.
  4. [108]
    Second, Mr Warren does not explain what he considers to be “advanced regrowth”, nor does he define its extent.  Dr Daniel disagrees with Mr Warren’s opinion that there are areas of advanced regrowth.  He says that his site investigations revealed no areas of obviously lower canopy height or canopy cover that could be regarded as separate mappable communities of advanced growth.  He also says that while there is micro-variation in canopy height across the subject land, there are no areas that detract markedly from the community’s value as remnant vegetation.  Dr Daniel provides a cogent explanation for his opinion, which was unchallenged.  I accept the evidence of Dr Daniel on this issue.
  5. [109]
    Third, although Mr Warren says there are some areas of weed incursion along the edges, he does not provide an opinion about the consequences of the weed incursion in relation to the ecological values of the subject land.  This issue was addressed in detail by Dr Daniel.
  6. [110]
    Dr Daniel acknowledges that the edges of the remnant vegetation on the subject land support some areas of non-woody weed incursion.  During cross-examination, Dr Daniel accepted that weed incursion is a form of “edge effect” that has the potential to compromise the ecological value of vegetated areas.  He explains 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.  Detrimental impacts associated with edge effects include changes in species composition due to edge avoidance, increased weed invasion, increased predation and interspecies competition, detrimental impacts from increased wind and light penetration, increased temperature, and a reduced area of core habitat.
  7. [111]
    Dr Daniel explains that the subject land has been extant in the environment for a very long time with little change in external stressors.  He says the patches of weed incursion do not appear to be inhibiting the regeneration of native canopy and shrub layers.  They are not significantly impacting on floristic values of the community on the subject land.  Dr Daniel opines that the weed incursions do not threaten the persistence of the communities in their current state.  He could see no reason why the existing vegetation would become further degraded if the house was located in accordance with condition 1, 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. 
  8. [112]
    I also accept the evidence of Mr Caneris about edge effects.  He says that greater protection of retained habitat is facilitated by minimising the edge to area ratio.  As such, the building envelopes in condition 1 represent more sensible ecological planning than the house locations proposed by Traspunt. 
  9. [113]
    Having regard to the evidence of Dr Daniel and Mr Caneris about edge effects and weed incursion on the subject land, I am satisfied that the existing weed incursion has no material impact on the ecological values of the subject land.  It does not justify the clearing that would be occasioned by locating the houses as sought by Traspunt, given such clearing would result in material non-compliance with the Natural Features or Resources Overlay Code.  The non-compliance could be avoided by imposition of condition 1. 
  10. [114]
    Fourth, I do not accept Mr Warren’s evidence that Traspunt has located the proposed houses to mitigate impacts on the endangered regional ecosystem and koala habitat.  The falsehood in his assertion is apparent from a comparison of the extent of clearing that would be occasioned by locating the houses in accordance with the building envelopes identified in condition 1 with that required for Traspunt’s house locations.  The Council’s building envelopes are in cleared areas of the subject land.  As I have noted in paragraph [107] above, with respect to Lot 909, no further clearing would be required for the building envelope and an appropriate bushfire hazard protection zone.  On Lot 910, the additional clearing required would be limited to 105 square metres.  In contrast, Traspunt’s house locations appear to have been selected in order to produce the largest possible area of further vegetation clearing on the subject land.  Traspunt’s house locations are removed from the nearby residential development to which Mr Warren refers and are in the middle of vegetated areas.  So located, the houses would introduce a number of new “edges” as a consequence of clearing for the house pad and along the sewer line. 
  11. [115]
    Fifth, Mr Warren does not explain why he regards endangered regional ecosystem 12.5.3a to only be of moderate value, either in his reports or in his oral testimony.  The ecological assessment that was attached to his report only examines the flora in terms of regional ecosystem designations and by undertaking a survey of trees to identify non-juvenile koala habitat trees. 
  12. [116]
    Dr Daniel disagrees with Mr Warren about the value of the vegetation.  He opines that the extant vegetation community is in good condition both structurally and floristically across both lots.  He says it is functionally connected to the neighbouring mapped State significant bioregional corridor.  Like Mr Warren, Dr Daniel did not explain the basis for his opinion about the floristic value of the vegetation on the subject land in his report.  When challenged about it during cross-examination, Dr Daniel explained that regional ecosystems are classified by reference to the height and cover of the ecologically dominant layer.  An area of vegetation can be classified as endangered regional ecosystem even if it only consists of trees that have made 70 per cent of the original height of the forest and 50 per cent of the cover.  It need not have any subcanopy or ground layers.  Dr Daniel says he accepts that an ecosystem that has no subcanopy and ground layers is of medium value, but he says that is not the case on the subject land.  Dr Daniel says the subject land is vegetated by a regional ecosystem that has all the layers fully developed.  Although there is some minor herbaceous weed invasion at the edges, Dr Daniel says the rest of the vegetation is in good condition.  During cross-examination, Dr Daniel accepted that neither his contribution to the joint report nor his individual report included an assessment of the bio condition of the vegetation or otherwise expose his reasoning.  In those circumstances, I am not prepared to afford substantial weight to Dr Daniel’s opinion about the floristic value of the vegetation on the subject land.  Despite that, Dr Daniel’s explanation about the system of classification of ecosystems causes me to doubt the reliability of the opinion of Mr Warren such that I am not prepared to accept Mr Warren’s opinion about the value of the ecosystem either.
  13. [117]
    Sixth, I do not accept Mr Warren’s opinion that the loss of the habitat value for the local koala population is insignificant.  I prefer the evidence of Mr Caneris on this issue.  Mr Caneris explains that it is the loss of koala habitat that is the greatest threat to the survival of the species.  Although the vegetation on the subject land is functionally connected to a reserve of approximately 232 hectares, that reserve contains a variety of regional ecosystems.  A large percentage of the area is saltwater environments.  It includes mangrove habitats, salt pans and mudflats and other habitats that are of little or no direct value to koalas.  The subject land is one of the few pockets in the broader local landscape that contains regional ecosystem 12.5.3 or another regional ecosystem that provides essential habitat for koalas.  Mr Caneris says the vegetation on the subject land is sufficient to support a population of one or two koalas, and Mr Warren and Mr Caneris agree that there is evidence that the subject land is used by koalas.  Mr Caneris says that the local population supported by the subject land might be lost if the vegetation on the subject land is cleared.  The clearing would remove the home range of the koalas.  He accepts that this would not remove the prospect of the species persisting in the landscape.  Nevertheless, he regards it as a significant loss given the endangered status of the species.  I accept this evidence of Mr Caneris.  The potential loss can be avoided by imposition of condition 1. 
  14. [118]
    Although I do not accept Mr Warren’s opinion about the significance of the ecological impact, I accept that a site rehabilitation plan should be prepared for the proposed development.  Dr Daniel and Mr Caneris agree with Mr Warren’s recommendation in that regard.  Regardless of the location of the houses, the commencement of use of the subject land for residential dwellings brings with it the potential for changes that could adversely impact the ecological values of the subject land, such as changes associated with construction of the houses and landscaping.  As such, a condition that requires the submission of a site rehabilitation plan prepared by a suitably qualified person for approval by the Council prior to works commencing on the subject land, and the subsequent implementation of the requirements and recommendations of the approved site rehabilitation plan, is reasonably required by the proposed development. 
  15. [119]
    I accept the recommendations of Mr Warren about the contents of the site rehabilitation plan.  Relevantly, the site rehabilitation plan should require:
    1. (a)
      dense plantings along the edges of the retained vegetation and other planting where appropriate;
    2. (b)
      control of weeds during construction;
    3. (c)
      on-site mulching of vegetation removed during construction and subsequent use of the mulch on-site;
    4. (d)
      control of weeds in landscaped areas;
    5. (e)
      avoidance of known environmental weeds such as umbrella tree;
    6. (f)
      use of locally endemic species for revegetation, with a focus on compensatory koala habitat or forage resources for the koala and native bird and bat species;
    7. (g)
      preparation and implementation of a fauna management plan to ensure fauna are protected during clearing activities and to detail the number and location of nest boxes to be installed to replace habitat features removed during vegetation clearing;
    8. (h)
      compliance with the Koala-sensitive design guidelines (DES 2020), including by requiring:
      1. a covenant to ensure any pool is properly fenced to exclude koalas and to require an escape rope in the pool when the pool is not in use;
      2. a covenant to state dogs must be maintained in a koala proof fenced enclosure within the building envelope and associated bushfire hazard protection zone and to otherwise require landowners to control dogs on a leash when outside of the enclosure;
      3. a pamphlet to be included with the purchase contract noting that koalas occur nearby and listing koala threatening processes and how the processes can be managed;
    9. (i)
      appropriate disposal of rubbish and food scraps to reduce the opportunity for non-native predators and disturbance adapted competitors;
    10. (j)
      landscape and landfill materials to be sourced from a supplier where cane toads do not occur; and
    11. (k)
      a qualified fauna handler to be present on-site when clearing occurs.
  16. [120]
    I also accept the recommendation of Mr Caneris that any boundary fencing should be fauna friendly. 
  17. [121]
    The evidence of Mr Caneris, and that of Dr Daniel referred to above that I accept, persuades me that the establishment of houses in the locations proposed by Traspunt would result in an unacceptable ecological impact.  Approval of the house locations proposed by Traspunt would not comply with the overall outcomes in s 5.1.5 2) A) and G) of the Natural Features or Resources Overlay Code.  It would also fail to comply with specific outcomes SO1, SO2, SO4 and SO5.  The non-compliances are such that, absent condition 1, they would warrant refusal of Traspunt’s development applications. 

What are the relevant town planning considerations?

  1. [122]
    Traspunt submits that there is a level of tension between the zoning of the land, which speaks of an intention for the residential development of the land, and the controls imposed by the Natural Features or Resources Overlay Code.  It submits that the tension calls for a balance to be struck by this Court in resolving the conditions dispute.  Traspunt also submits that there is little town planning justification for condition 1.
  2. [123]
    Consistent with the position adopted by Traspunt, Mr Schomburgk, the town planner retained by Traspunt, opines that there is no proper town planning basis to justify conditions requiring house locations in different parts of the subject land.  The basis for Mr Schomburgk’s opinion is not clear, particularly in light of the applicable assessment benchmarks in the Natural Features or Resources Overlay Code.  As best I can ascertain, with respect to Lot 909, Mr Schomburgk’s opinion appears to be premised on an assumption about increased cost and inconvenience associated with the alternative sewerage connection.  With respect to Lot 910, Mr Schomburgk’s opinion appears to be premised on an assumption that the remaining vegetation is unlikely to serve a useful ecological purpose.  I have already addressed each of those issues above.
  3. [124]
    Mr Reynolds, the town planner retained by the Council, disagrees with Mr Schomburgk.  He says that the house locations proposed by Traspunt could each result in the loss of more vegetation than the Council’s proposed house locations, and the greater severance of remaining vegetation to the balance corridor in public ownership to the west.  He says that the Planning Scheme provides no expectation that a house can be placed centrally within each lot.  Rather, it creates an expectation that the environment will be protected.  Mr Reynolds opines that the Council’s proposed conditions (and siting) of each house will enable a house to be located on each lot in a manner that he understands will acceptably protect environmental values. 
  4. [125]
    In determining the appropriateness of condition 1, it is important to recognise the way the Planning Scheme addresses the tension between the zoning of the subject land and its identification as having biodiversity values of State significance.  Here, the subject land is in Preferred Use Area 1 of the Low Density Residential Zone.  As such, under Table 4.1.1, a house is code assessable (rather than self assessable).  The applicable assessment criteria are more extensive than would be the case were the subject land not within Preferred Use Area 1.  They include the Building and Works Code, the Residential Uses Code, the Low Density Residential Zone Code and the Citywide Code.  The subject land is also identified as having biodiversity values of State significance on the Natural Features or Resources Overlay Map 1.  This also triggers the need for code assessment of any application for a house, which includes assessment against the Natural Features or Resources Overlay Code.  The development application is required to demonstrate compliance with each of these codes.  As such, the Planning Scheme makes it clear that residential development on the subject land is not to proceed at the expense of the protection and maintenance of the biodiversity values. 
  5. [126]
    The planning legislation also provides relevant guidance on how the Court should strike the balance.  Relevantly, s 60(2)(d) of the Planning Act 2016 requires the Court to approve the development where compliance with the applicable assessment benchmarks can be achieved through the imposition of development conditions.  That is the situation that pertains here.  As I have already noted in paragraph [121] above, the non-compliances with the Natural Features or Resources Overlay Code occasioned by location of the houses as proposed by Traspunt are such that they warrant refusal of Traspunt’s development applications.  However, appropriate compliance can be achieved by the imposition of condition 1 on each development approval.  In those circumstances, there is a legitimate town planning purpose for imposing condition 1.

Is condition 1 for each of Lot 909 and Lot 910 relevant?

  1. [127]
    The Council submits that conditions 1 (and 2(b)) are reasonable and relevant because:
    1. (a)
      Lot 909 contains important fauna and flora values, as does the adjoining land to the south and west;
    2. (b)
      the relevant Planning Scheme provisions require consideration and protection of those values;
    3. (c)
      the locations proposed by the Council result in acceptable impacts on those values and significantly less impact than the locations proposed by Traspunt;
    4. (d)
      the Planning Scheme provisions raise no expectation that a house can be placed centrally within the lots; and
    5. (e)
      there is no significant cost difference between the Council approved locations and the originally proposed locations, relative to the cost of land purchase and house construction.
  2. [128]
    Traspunt submits that from a town planning perspective, leaving aside the requirements with respect to setbacks, the Planning Scheme places no stipulation that the houses in question should be placed in any particular locations, whether that be the locations that Traspunt applied for or the locations stipulated by the Council in condition 1.  It submits that the Planning Scheme provides no support for the Council’s desired conditions.
  3. [129]
    I accept the Council’s submissions.  In light of the applicable assessment benchmarks in the Natural Features or Resources Overlay Code, conditions 1 and 2(b) can fairly be regarded as relevant under s 65(1)(a) of the Planning Act 2016For the reasons already provided above, the imposition of conditions of that nature ensures the development complies with these relevant assessment benchmarks. 

Is the condition an unreasonable imposition on the proposed development?

  1. [130]
    Traspunt alleges that the alternative house locations required under condition 1 raise engineering complexities, issues and costs that do not arise with respect to the Traspunt house locations and, as such, represent an unreasonable imposition on the proposed developments.  I disagree for reasons already provided above.
  2. [131]
    Traspunt also submits that the size of each building envelope is highly restrictive and, as such, condition 1 involves an unreasonable imposition.  It relies on the evidence of Mr Schomburgk in this respect.  He opines that the size of each envelope, when considered with the other conditions that limit ancillary structures and uses outside the building envelope, represents a considerable constraint.  He says that 200-odd square metres is insufficient to provide a decent sized house and the curtilage and potential outbuildings, swimming pools, sheds, etcetera, that one might ordinarily expect for a house on each of the lots.  He opines that a building envelope in the order of 500 to 600 square metres is more appropriate. 
  3. [132]
    The Council says that in light of the ecological considerations that pertain to the subject land, and the relative size of lots and houses in the immediate neighbourhood, the size of the Council’s building envelopes are not an unreasonable constraint on Traspunt’s ability to construct a dwelling house and associated structures on each of Lot 909 and Lot 910.
  4. [133]
    I do not consider a building envelope of the sizes required by condition 1 to be an unreasonable imposition in light of the maximum development footprint sought by Traspunt in its development applications.[39]  They are also reasonable given the assessment benchmarks in the Natural Features or Resources Overlay Code and the evidence about ecological impacts referred to above.  However, in light of the evidence of the bushfire experts referred to above, it is appropriate to amend condition 1 to permit certain ancillary structures within the bushfire hazard protection zone.[40]

Should condition 1 be imposed in the exercise of discretion?

  1. [134]
    Traspunt alleges that condition 1 for each lot should not be imposed in the exercise of the Court’s residual discretion.  With respect to that allegation, it relies on the same submissions made by it with respect to the lawfulness of the condition.  I do not accept its submissions for the reasons already provided above.

Should hazard clearing on Lot 909 be controlled by condition 2(b)?

  1. [135]
    Condition 2(b) is related to condition 1 in that it defines the limits of any area of proposed clearing to create a bushfire hazard protection zone for the house, assuming the house is to be located within the building envelope designated under condition 1.  The defined limit reflects an area calculated to provide a distance of 1.5 times the height of the canopy from the proposed building envelope.  
  2. [136]
    The proposed development of the land for a dwelling house, wherever it is located, introduces a new bushfire hazard consideration.  As such, a condition that addresses the risk from bushfire hazard in a manner that will provide certainty to the landowner about the extent to which clearing is permitted to address the risk is a reasonable response to the proposed development.  Such a condition is lawful pursuant to s 65(1)(b) of the Planning Act 2016
  3. [137]
    For the reasons provided in paragraphs [34] to [68] above, the terms of condition 2 should be amended in the manner I have indicated above. 

Should further clearing be controlled by condition 3(b)?

  1. [138]
    Condition 3(b) of each approval seeks to prohibit all future vegetation clearing beyond that contemplated by the subject approval. 

Is condition 3(b) lawful?

  1. [139]
    The Council contends that condition 3(b) is reasonable and relevant.  It says that without the condition, upon the construction of a house or other structure within the approved building envelopes on Lot 909 and Lot 910, clearing could be undertaken “as of right” for a distance in the order of 35 metres from the edge of the building or other structure, rather than the 12-metre-wide zone that the bushfire experts say is the extent of necessary clearing in this case.  The Council explains its submission as follows:

“101. Clearing for “essential management” on freehold land is “exempt clearing work” under the PR.[41]

  1. “Essential management” is relevantly defined as

essential management means clearing native vegetation—

  1. 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 equal to 1.5 times the height of the tallest vegetation next to the infrastructure, or 20m, whichever is the wider; or
  2. for establishing a necessary fire management line, if the maximum width of the clearing for the fire management line is 10m…”
  1. The maximum width of the relevant firebreak under paragraph (a) of the definition of “essential management” on both Lot 909 and 910 is in the order of 35m. The correct construction of “essential management” was considered in Traspunt No.4 Pty Ltd v Moreton Bay Regional Council [2015] QPELR 972 in relation to the corresponding  provision of the SPR, Horneman-Wren QC DCJ found that once a firebreak was found to be necessary to protect infrastructure or a fire management line, clearing could occur to the maximum width, regardless of whether that width was necessary.[42]  That finding was not an issue on appeal.
  1. The definition of “infrastructure” has since been amended such that it includes “a building or structure, built or used for any purpose”.
  1. Further, Schedule 6, Part 21A (sic) now provides that the following is operational work which cannot be made assessable development under a planning scheme:

“Operational work that is clearing native vegetation if—

  1. he clearing is necessary for—
  1. 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
  2. establishing a necessary fire management line, and the maximum width of the clearing for the fire management line is 10m; and
  1. the clearing— (i) is on freehold land…
  1. [140]
    The effect of the Council’s submission is that clearing for a distance in the order of 35 metres from the edge of the building or other structure could be undertaken without the need for a development approval because it would be accepted development.  I disagree.  Not all clearing for “essential management” on freehold land is accepted development as “exempt clearing work” under the Planning Regulation 2017, only “clearing vegetation that is necessary for essential management” (emphasis added).[43]  Further, the introduction of item 20A in schedule 6 does not preclude a local government from regulating operational work that is clearing native vegetation to the extent that the clearing is more than what is necessary for establishing or maintaining a necessary firebreak or establishing a necessary fire management line.[44] 
  2. [141]
    The extent of clearing that is “necessary” is a question of fact to be determined by reference to the particular circumstances of the case.  Here, the evidence of the bushfire experts establishes that a bushfire hazard protection zone with a width of 12 metres is the extent of clearing that is “necessary” for essential management.  Clearing in the order of 35 metres is not necessary.

Is the condition “reasonably required”?

  1. [142]
    Condition 3(b) is not a reasonable response to a change that will be occasioned by the commencement of the use of each of Lot 909 and Lot 910 for a house.  The changes occasioned by the proposed development are sufficiently addressed by the other conditions that I have indicated should be imposed.

Is the condition “relevant to, but not an unreasonable imposition on the development”?

  1. [143]
    Condition 3(b) is in materially the same terms as proposed condition 2(b) considered in Appeal No 3002 of 2012.  That appeal was heard together with this one, and the evidence presented before me about the relevance of the condition was the same. 
  2. [144]
    Having regard to my observations in paragraphs [28] to [57] in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council,[45] condition 3(b) is not a condition that can be lawfully imposed under s 65(1)(a) of the Planning Act 2016.

Conclusion regarding lawfulness of conditions

  1. [145]
    For the reasons provided above, condition 3(b) is not a lawful condition under s 65 of the Planning Act 2016.   

Should condition 3(b) be imposed in the exercise of the discretion?

  1. [146]
    As I have found that condition 3(b) is not lawful, it is unnecessary for me to address whether the condition should be imposed in the exercise of the discretion.  It is sufficient to say that if the reasons provided in paragraphs [28] to [57] in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[46] did not justify a conclusion that the condition is not lawful, they were, in any event, sufficient to persuade me that the condition should not be imposed in the exercise of discretion in this case.

What orders should be made?

  1. [147]
    The conditions requiring the location of the houses in already cleared areas of the subject land are instrumental to the development applications achieving compliance with the Planning Scheme.  But for their imposition, I would have refused each of the development applications.
  2. [148]
    In its written submissions, Traspunt contends that, insofar as the conditions contended for by the Council require variation, the appeal should be allowed and adjourned to permit the parties an opportunity to agree on a form of order that gives effect to the Court’s decision.  I do not consider that approach appropriate in this case for the following four reasons. 
  3. [149]
    First, there is an extensive history of litigation and protracted dispute between the parties with respect to development of the subject land.  In addition to these appeals, the parties have been engaged in dispute with respect to other development applications over the subject land in Appeal No 3002 of 2012, Appeal No 1940 of 2018 and Appeal No 1941 of 2018.  On 14 May 2020, His Honour Judge Williamson QC ordered that all of these appeals be heard together and made further orders facilitating preparation for the hearing.
  4. [150]
    The development applications the subject of these appeals were made in October 2015.  The appeals were commenced on 1 February 2018.  The Council did not deliver the conditions for which it contended in this appeal until 26 July 2019.  Traspunt did not respond to them until 18 September 2019.  The parties otherwise did little to facilitate the expeditious resolution of their dispute about those conditions or to avoid undue delay with the appeals, until their progress was subjected to regular, targeted reviews by the Planning and Environment Court in 2020.
  5. [151]
    Appeal No 3002 of 2012 relates to an application to clear vegetation made on 6 February 2012.  The appeal was commenced on 1 August 2012.  On 26 March 2019, the Court of Appeal ordered that the appeal be remitted to this Court to, amongst other things, determine the appropriate conditions to be imposed.[47]  The Council did not deliver the conditions for which it contended until 26 July 2019.  Traspunt did not respond to them until 18 September 2019.  The parties otherwise did little to facilitate the expeditious resolution of their dispute about those conditions, or to avoid undue delay with the appeal, until their progress was the subject of regular, targeted reviews by the Planning and Environment Court in 2020.
  6. [152]
    Appeal No 1940 of 2018 and Appeal No 1941 of 2018 relate to the Council’s refusal of development applications for reconfiguration of each of Lot 910 and Lot 909 respectively.  The development applications were made in late 2009.  They were made under the Integrated Planning Act 1997 (Qld).  The Council did not purport to decide them until May 2018, after both the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 had been repealed.  The appeals commenced on 24 May 2018.  In August 2019, the Council delivered a document outlining the reasons it would contend for refusal.  Traspunt responded with its grounds for approval on 13 November 2019.  The parties otherwise did little to facilitate the just and expeditious resolution of the issues in dispute reflected in those documents until their progress was subjected to regular, targeted reviews by the Planning and Environment Court in 2020.
  7. [153]
    Second, on numerous occasions, the parties have failed to adhere to the timeframes set in interlocutory orders made by the Court to facilitate the just and expeditious resolution of these appeals.  Consequently, I have no confidence that they would adhere to any interlocutory orders made with respect to the delivery to the Court of a form of order that gives effect to the Court’s decision.  Further, it is inefficient for the Court to continue to subject these appeals to review in order to finalise the litigation in circumstances where the real issues in dispute have been addressed in these reasons.  Additional reviews would also result in unnecessary further expense.
  8. [154]
    Third, during the hearing the parties were given an opportunity to provide a draft of those conditions that they contend should be imposed.  During the opening on 2 September 2020, I invited the parties to provide their drafts so that I could publish a judgment that would finalise the litigation.  I also indicated that, in the event a draft was not provided, I might be inclined to remit the matter to the Council.  I raised the issue again during final addresses.  The parties elected not to take up the invitation that I extended.
  9. [155]
    Fourth, to the extent that my orders are unclear, the parties will have liberty to apply.
  10. [156]
    In those circumstances, it is appropriate to bring this litigation to an end by remitting the matter to the Council with directions that require it to produce a new decision notice in a specified timeframe.
  11. [157]
    With respect to Lot 909, I order:
  1. Appeal 391 of 2018 is allowed.
  2. The decision of Moreton Bay Regional Council contained in its negotiated decision notice dated 25 January 2018 is set aside.
  3. The development application is remitted to the Moreton Bay Regional Council to be dealt with in accordance with the following directions:
    1. By 24 March 2021, the Council must give a decision notice in accordance with s 63 of the Planning Act 2016.
    2. The decision notice must approve the development application subject to development conditions.
    3. The only development conditions that are to be imposed are:
      1. a new condition 1 that generally reflects condition 1 in Attachment 1 of the Respondent’s Revised Conditions of Approval,[48] but which is amended to provide that:
        1. buildings (or parts thereof) which are classified under the Building Code of Australia must be located within the building envelope;
        2. roads, driveways, landscaped gardens, fencing (other than a boundary fence), retaining walls, swimming pools and lawn locker style garden sheds are permitted in the bushfire hazard protection zone defined by reference to condition 2, but are not permitted outside of the building envelope and the bushfire hazard protection zone;
      2. a new condition 2 with respect to bushfire management, which condition is to stipulate that:
        1. a 12-metre-wide bushfire hazard protection zone around the building envelope defined in the new condition 1 is to be established and maintained; 
        2. a registered surveyor is to survey and peg the bushfire hazard protection zone;
        3. a covenant is to be registered to ensure the use of the land complies with the requirements with respect to management of the bushfire risk;
        4. prospective purchasers are to be notified about the effects of the bushfire hazard protection zone on the future use of the lot;
        5. buildings (or parts thereof) that are classified under the Building Code of Australia (2019) are not permitted in the bushfire hazard protection zone;
        6. roads, driveways, landscaped gardens, fencing, retaining walls, swimming pools and lawn locker style garden sheds are permitted in the bushfire hazard protection zone;
        7. the bushfire hazard protection zone will consist of landscaped gardens or managed vegetation that will minimise the impact of bushfire attack on buildings and provide a defendable space for fire-fighters to operate;
        8. pedestrian access must be provided for the Queensland Fire and Emergency Services to access the bushfire hazard protection zone at all times;
        9. with respect to landscaping and vegetation management within the bushfire hazard protection zone, the owner or occupier is to:
          1. remove woody shrubs and maintain grass at less than ten centimetres in height;
          2. remove trees which have canopy branches that overhang building locations or are connected with canopy branches of trees on the adjoining property to the west;
          3. remove trees or tree branches that are identified by an arborist as dead or rotting or dangerous;
          4. remove any branches from retained trees that are less than two metres above ground level;
          5. design landscaping to minimise the potential for it to catch fire and compromise the building and/or the evacuation route in accordance with design specification in the Victorian Country Fire Authority guideline Landscaping for Bushfire – Garden design and plant selection (CFA 2011);
      3. a new condition 3 that generally reflects condition 3(a) in Attachment 1 of the Respondent’s Revised Conditions of Approval but does not include condition 3(b); and
      4. a new condition 4 that requires the submission of a site rehabilitation plan prepared by a suitably qualified person for approval by the Council prior to works commencing on Lot 909, and the subsequent implementation of the requirements and recommendations of the approved site rehabilitation plan.  The site rehabilitation plan is to require:
        1. dense plantings along the edges of the retained vegetation and other planting where appropriate;
        2. control of weeds during construction;
        3. on-site mulching of vegetation removed during construction and subsequent use of the mulch on-site;
        4. control of weeds in landscaped areas;
        5. avoidance of known environmental weeds such as umbrella tree;
        6. use of locally endemic species for revegetation, with a focus on compensatory koala habitat or forage resources for the koala and native bird and bat species;
        7. preparation and implementation of a fauna management plan to ensure site fauna are protected during clearing activities and to detail the number and location of nest boxes to be installed to replace habitat features removed during vegetation clearing;
        8. compliance with the Koala-sensitive design guidelines (DES 2020), including by requiring:
          1. a covenant to ensure any pool is properly fenced to exclude koalas and to require an escape rope in the pool when the pool is not in use;
          2. a covenant to state dogs must be maintained in a koala proof fenced enclosure within the building envelope and associated bushfire hazard protection zone and to otherwise require landowners to control dogs on a leash when outside of the enclosure;
          3. a pamphlet to be included with the purchase contract noting that koalas occur nearby and listing koala threatening processes and how the processes can be managed;
        9. appropriate disposal of rubbish and food scraps to reduce the opportunity for non-native predators and disturbance adapted competitors;
        10. landscape and landfill materials to be sourced from a supplier where cane toads do not occur;
        11. a qualified fauna handler to be present on-site when clearing occurs; and
        12. any boundary fencing to be fauna friendly. 
    4. The decision notice is to list the Joint Expert Report of the Bushfire Experts as an approved document within the list of approved plans and documents.
  1. [158]
    With respect to Lot 910, I order:
  1. Appeal 393 of 2018 is allowed.
  1. The decision of Moreton Bay Regional Council contained in its negotiated decision notice dated 25 January 2018 is set aside.
  2. The development application is remitted to the Moreton Bay Regional Council to be dealt with in accordance with the following directions:
    1. By 24 March 2021, the Council must give a decision notice in accordance with s 63 of the Planning Act 2016.
    2. The decision notice must approve the development application subject to development conditions.
    3. The only development conditions that are to be imposed are:
      1. a new condition 1 that generally reflects condition 1 in Attachment 1 of the Respondent’s Revised Conditions of Approval,[49] but which is amended to provide that:
        1. buildings (or parts thereof) which are classified under the Building Code of Australia must be located within the building envelope;
        2. roads, driveways, landscaped gardens, fencing (other than a boundary fence), retaining walls, swimming pools and lawn locker style garden sheds are permitted in the bushfire hazard protection zone defined by reference to condition 2, but are not permitted outside of the building envelope and the bushfire hazard protection zone;
      2. a new condition 2 with respect to bushfire management, which condition is to stipulate that:
        1. a 12-metre-wide bushfire hazard protection zone around the building envelope defined in the new condition 1 is to be established and maintained; 
        2. a registered surveyor is to survey and peg the bushfire hazard protection zone;
        3. a covenant is to be registered to ensure the use of the land complies with the requirements with respect to management of the bushfire risk;
        4. prospective purchasers are to be notified about the effects of the bushfire hazard protection zone on the future use of the lot;
        5. buildings (or parts thereof) that are classified under the Building Code of Australia are not permitted in the bushfire hazard protection zone;
        6. roads, driveways, landscaped gardens, fencing, retaining walls, swimming pools and lawn locker style garden sheds are permitted in the bushfire hazard protection zone;
        7. the bushfire hazard protection zone will consist of landscaped gardens or managed vegetation that will minimise the impact of bushfire attack on buildings and provide a defendable space for fire-fighters to operate;
        8. pedestrian access must be provided for the Queensland Fire and Emergency Services to access the bushfire hazard protection zone at all times;
        9. with respect to landscaping and vegetation management within the bushfire hazard protection zone, the owner or occupier is to:
          1. remove woody shrubs and maintain grass at less than ten centimetres in height;
          2. remove trees which have canopy branches that overhang building locations or are connected with canopy branches of trees on the adjoining property to the west;
          3. remove trees or tree branches that are identified by an arborist as dead or rotting or dangerous;
          4. remove any branches from retained trees that are less than two metres above ground level;
          5. design landscaping to minimise the potential for it to catch fire and compromise the building and/or the evacuation route in accordance with design specification in the Victorian Country Fire Authority guideline Landscaping for Bushfire – Garden design and plant selection (CFA 2011).
      3. a new condition 3 that generally reflects condition 3(a) in Attachment 1 of the Respondent’s Revised Conditions of Approval but does not include condition 3(b); and
      4. a new condition 4 that requires the submission of a site rehabilitation plan prepared by a suitably qualified person for approval by the Council prior to works commencing on Lot 910, and the subsequent implementation of the requirements and recommendations of the approved site rehabilitation plan.  The site rehabilitation plan is to require:
        1. dense plantings along the edges of the retained vegetation and other planting where appropriate;
        2. control of weeds during construction;
        3. on-site mulching of vegetation removed during construction and subsequent use of the mulch on-site;
        4. control of weeds in landscaped areas;
        5. avoidance of known environmental weeds such as umbrella tree;
        6. use of locally endemic species for revegetation, with a focus on compensatory koala habitat or forage resources for the koala and native bird and bat species;
        7. preparation and implementation of a fauna management plan to ensure site fauna are protected during clearing activities and to detail the number and location of nest boxes to be installed to replace habitat features removed during vegetation clearing;
        8. compliance with the Koala-sensitive design guidelines (DES 2020), including by requiring:
          1. a covenant to ensure any pool is properly fenced to exclude koalas and to require an escape rope in the pool when the pool is not in use;
          2. a covenant to state dogs must be maintained in a koala proof fenced enclosure within the building envelope and associated bushfire hazard protection zone and to otherwise require landowners to control dogs on a leash when outside of the enclosure;
          3. a pamphlet to be included with the purchase contract noting that koalas occur nearby and listing koala threatening processes and how the processes can be managed;
        9. appropriate disposal of rubbish and food scraps to reduce the opportunity for non-native predators and disturbance adapted competitors;
        10. landscape and landfill materials to be sourced from a supplier where cane toads do not occur;
        11. a qualified fauna handler to be present on-site when clearing occurs; and
        12. any boundary fencing to be fauna friendly. 
    4. The decision notice is to list the Joint Expert Report of the Bushfire Experts as an approved document within the list of approved plans and documents.

Footnotes

[1]Pursuant an order made by His Honour Judge Williamson QC on 14 May 2020, these appeals were also heard together with Appeal No 3002 of 2012, Appeal No 1940 of 2018 and Appeal No 1941 of 2018.

[2]The underlining represents differences in wording between the two reports.

[3]Planning Act 2016, s 311; Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763.

[4]Planning and Environment Court Act 2016, s 43.

[5]The Redcliffe City Planning Scheme 2005 effective 17 October 2011 was the categorising instrument in force at the time the development applications were properly made on on 26 October 2015.

[6]Planning Regulation 2017 (Qld), s 27(1)(g).

[7]Planning and Environment Court Act 2016, s 47.

[8]Planning Act 2016, s 59(3).

[9]Planning Act 2016, s 60(2)(a).

[10]Planning Act 2016, s 60(2)(b).

[11]Planning Act 2016, s 60(2)(c).

[12]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].

[13]Planning Act 2016, s 60(2)(d).

[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 65 of the Planning Act 2016 is materially in the same terms as its predecessors, namely s 345 of the Sustainable Planning Act 2009 and s 3.5.30 of the Integrated Planning Act 1997

[16]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].

[17]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].

[18]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.

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

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

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

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

[23]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.

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

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

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

[27]By order of His Honour Judge Williamson QC made 14 May 2020, the issues in dispute in the appeal were defined by reference to this letter.

[28]Section 2.3 of the Planning Scheme records that the Redcliffe City Planning Scheme Explanatory Notes are declared to be extrinsic material under the Statutory Instruments Act 1992, s 15, that assist in the interpretation of the provisions of the Planning Scheme.

[29]Queensland Fire and Emergency Services, 2019, “Bushfire Resilient Communities”.  This is a technical reference guide for the State Planning Policy State Interest Natural Hazards, Risk and Resilience – Bushfire.

[30]This equates to a five per cent chance of occurrence in any year.

[31]Department of Infrastructure, Local Government and Planning, “Natural Hazards, Risk and Resilience – Technical Manual – A ‘fit for purpose’ approach in undertaking natural hazard studies and risk assessments”, (2016), Brisbane.

[32]Exhibit 7.2.

[33]It would also achieve compliance with example solution E7 c for performance outcome PO7 in s 9.4.1.4 of the 2016 Planning Scheme, which is the performance outcome that relates to the design of lots to minimise the risk from bushfire hazard contained in that part of the Reconfiguring a lot code that applies to the Environmental management and conservation zone.  The subject land is in the Environmental management and conservation zone in the 2016 Planning Scheme.

[34]The previous guidelines to which the experts were referring was the bushfire risk assessment methodology in Appendix 3 of the Queensland State Planning Policy 1/03 Guideline – Mitigating the adverse impacts of flood, bushfire and landslide, which was in force at the time the development applications were made.

[35]See paragraph 106 of the Written Submissions on behalf of the Appellant.

[36]Planning and Environment Court Act 2016, s 47.

[37]The recommendations were made with respect to the development applications for reconfiguration of a lot made for the subject land that are the subject of Appeal Numbers 1940 and 1941 of 2018, but they are also appropriate for the proposed development of Lot 909 and Lot 910 the subject of these appeals.  The evidence of the recommendations was adduced as part of the evidence in these appeals.

[38]The investigations also confirm that the ecological values of the subject land also conform to the values ascribed by other local and State planning instruments, including those that are currently applicable.

[39]See paragraph [8] above.

[40]See paragraphs [64] and [65] above.

[41]Planning Regulation 2017, schedule 24 and schedule 21, part 2, item 2(c).

[42]at [157] – [158].

[43]For a more detailed explanation of the circumstances where a development permit is required, and the interaction between the regulation and a planning scheme with respect to vegetation clearing, see Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] QCA 81.  The High Court refused the application for special leave to appeal on the basis that no question of principle was raised by the application and there was no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Queensland: see Fairmont Group Pty Ltd v Moreton Bay Regional Council [2019] HCASL 291.

[44]See also Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 6, [49]-[56].

[45][2021] QPEC 6.

[46][2021] QPEC 6.

[47]See the history of the appeal in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2015] QPEC 49; [2015] QPELR 972; Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2017] QPEC 76; [2018] QPELR 332; 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.

[48]Exhibit 3.7.  See paragraph [11] above.

[49]Exhibit 3.7.  See paragraph [11] above.

Close

Editorial Notes

  • Published Case Name:

    Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2)

  • Shortened Case Name:

    Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2)

  • MNC:

    [2021] QPEC 7

  • 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.
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