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Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3)[2021] QPEC 8

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3)[2021] QPEC 8

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3) [2021] QPEC 8

PARTIES:

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

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO/S:

1940 of 2018 and 1941 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 and further written submissions received 2 November 2020

JUDGE:

Kefford DCJ

ORDER:

Appeal No. 1940 of 2018

I order that the development application is refused, and the appeal is dismissed.

Appeal No. 1941 of 2018

I order that the development application is refused, and the appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the developer seeks permission to reconfigure land – where it made a development application under the Integrated Planning Act 1997 – where the Council did not decide the development application until after the repeal of the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 – whether there is a right of appeal – whether the applicable legislative regime is under the Integrated Planning Act 1997 or the Planning Act 2016

PLANNING AND ENVIRONMENT – APPEAL – DEVELOPMENT APPLICATION – where the developer seeks permission to reconfigure land – where the land is vegetated – whether the proposed development will protect and maintain significant environmental values – whether weight should be given to the new planning scheme – whether the proposed development is consistent with community expectations – whether the proposed development should be approved

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 4, s 14B, s 20, s 20A

Integrated Planning Act 1997 (Qld), s 1.3.1, s 3.1.9, s 3.2.1, s 3.2.12, s 3.5.1, s 3.5.5, s 3.5.7, s 3.5.11, s 3.5.14, s 3.5.15, s 4.1.27, s 4.1.50, s 4.1.52, schedule 10

Planning Act 2016 (Qld), s 43, s 44, s 229, s 285, s 288, s 311, s 312

Planning Regulation 2017 (Qld), s 16, s 18, schedule 6, schedule 7, schedule 24

Sustainable Planning Act 2009 (Qld), s 764, s 802, s 819

Vegetation Management Act 1999 (Qld), s 19O

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257, cited

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; [2008] QPELR 342, approved

ADCO Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18; (2014) 254 CLR 1, applied

Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4; [2008] QPELR 464, cited

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

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161, applied

Barro Group Pty Limited v Redland Shire Council [2009] QCA 310; [2010] 2 Qd R 206, cited

Bell v Brisbane City Council & Ors [2018] QCA 84, considered

Chang & Anor v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1, cited

Chang & Anor v Laidley Shire Council [2006] QCA 172; (2006) 146 LGERA 283, cited

Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138, distinguished

Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430, applied

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208, applied

Gold Coast City Council v Fawkes Pty Ltd & Ors [2007] QCA 444; [2008] 2 Qd R 1, cited

Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, considered

Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QCA 510; (1999) 106 LGERA 185, cited

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

Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162, distinguished

Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538, cited

Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors [2003] QPEC 63; [2004] QPELR 308, cited

Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, applied

Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2009] QCA 400; [2011] 1 Qd R 226, cited

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, cited

Queensland Investment Corporation & Anor v Gold Coast City Council & Anor [2001] QPELR 83, cited

R v Brisbane City Council (1962) 7 LGRA 316, cited

Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor [2020] QCA 41, considered

Terton Corporation Pty Ltd v Gold Coast City Council [2003] QPEC 60; [2004] QPELR 260, cited

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

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

Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 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

Is there a right of appeal?5

Did the Council have authority to decide the development applications?6

Does s 311(1)(c) of the Planning Act 2016 confer a right of appeal?8

Does the Planning Act 2016 provide for an appeal against a deemed refusal of an application made under the Integrated Planning Act 1997?13

Does the Acts Interpretation Act 1954 preserve a right of appeal?14

What is the relevant framework for the decision?17

What are the substantive issues in dispute?18

What is the proposed development for each of Lot 909 and Lot 910?18

Does the proposed development comply with the Planning Scheme?19

Is the potential for clearing a relevant consideration?19

Does the proposed development comply with the relevant planning provisions?21

Should the Planning Scheme be read as calling only for a minimisation of impact?23

What are the ecological values of the subject land?25

What is the significance of the ecological impact?27

Conclusion regarding compliance with the Planning Scheme30

What weight should be given to the 2016 Planning Scheme?30

Is the proposed development consistent with community expectations?33

Conclusion34

Introduction

  1. [1]
    Over a decade ago, Traspunt No. 4 Pty Ltd (“Traspunt”) made a development application to Moreton Bay Regional Council (“the Council”) with respect to each of 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”).  The development applications were made under the Integrated Planning Act 1997 (Qld).  Traspunt sought development permits to reconfigure Lot 909 into 14 lots and Lot 910 into five lots.
  2. [2]
    The Council did not purport to decide the applications until after the repeal of both the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 (Qld).  In decision notices dated 8 May 2018, the Council notified Traspunt of its decision to refuse the development applications.  Traspunt was discontent with the decisions.  On 24 May 2018 it commenced Appeal Number 1940 of 2018 and Appeal Number 1941 of 2018 in relation to the decisions with respect to Lot 910 and Lot 909 respectively. 
  3. [3]
    Although the appeals relate to separate development applications, they were heard together.[1]  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.
  4. [4]
    The issues for me to decide are:
    1. (a)
      whether the Court has jurisdiction to determine the appeals; and
    2. (b)
      whether the development applications comply with the applicable planning instruments and, if not, whether they should be approved in any event.

Is there a right of appeal?

  1. [5]
    On 24 May 2018, Traspunt filed these appeals.  On their face, the Notices of Appeal do not record the legislative foundation for the appeals.  They record that the appeals are against the decision of the Council, made 8 May 2018, to refuse the respective development applications. 
  2. [6]
    The decision notices sent by the Council state that the decisions were made under s 3.5.15 of the Integrated Planning Act 1997.  With respect to appeal rights, the decision notices attach extracts from the Integrated Planning Act 1997, which are said to detail Traspunt’s appeal rights.
  3. [7]
    Prior to the commencement of the hearing, I asked the parties to identify the source of the Court’s jurisdiction and the applicable legislative regime.  These issues had not been considered by the parties.  By the conclusion of the hearing, there was still doubt about these matters. 
  4. [8]
    Traspunt’s primary position is that, while there are no provisions about applications made under the Integrated Planning Act 1997, s 288 of the Planning Act 2016 (Qld) should be read as capturing such applications and as authorising the Council to decide the applications.  It submits that the appeals could only be, and were, commenced pursuant to chapter 6, part 1 of the Planning Act 2016 and are otherwise governed by part 5 of the Planning and Environment Court Act 2016 (Qld).[2]  In the alternative, Traspunt submits that the Acts Interpretation Act 1954 (Qld) preserves its rights of appeal.[3] 
  5. [9]
    The determination of these issues raises the following questions for consideration.
  1. Did the Council have authority to decide the development applications?
  2. Does s 311(1)(c) of the Planning Act 2016 confer a right of appeal?
  3. Does the Planning Act 2016 provide for an appeal against a deemed refusal of an application made under the Integrated Planning Act 1997?
  4. Does the Acts Interpretation Act 1954 preserve a right of appeal against a deemed refusal?  

Did the Council have authority to decide the development applications?

  1. [10]
    On 17 December 2009, with respect to each of Lot 909 and Lot 910, Traspunt made a development application under s 3.2.1 of the Integrated Planning Act 1997
  2. [11]
    On 18 December 2009, the Integrated Planning Act 1997 was repealed by the Sustainable Planning Act 2009.[4]  Chapter 10, part 2 of the Sustainable Planning Act 2009 sets out transitional provisions for the Integrated Planning Act 1997.  Relevantly, s 802 of the Sustainable Planning Act 2009 preserves each development application made under the Integrated Planning Act 1997 as an “existing application” under the Sustainable Planning Act 2009.  It stipulates that existing applications would be dealt with and decided under the legislative regime in the repealed Integrated Planning Act 1997.  Existing applications continue to be subject to any requirement or restriction on the making or deciding of the application applying under the repealed Integrated Planning Act 1997.[5]
  3. [12]
    The Integrated Planning Act 1997 has an “integrated development assessment system (IDAS)” for dealing with and deciding applications.  The assessment system involves four possible stages: the application stage, the information and referral stage, the notification stage and the decision stage.[6]  The progress of an application through these stages is regulated under chapter 3, parts 2, 3, 4 and 5 of the Integrated Planning Act 1997.  The legislation sets strict requirements, timeframes and sequences for processing development applications through the four stages of the assessment system, including provisions that affect the legitimacy of any application and any decision.[7]  For example:
    1. (a)
      s 3.2.1(7) stipulates mandatory requirements to be met for an application to be a properly made application;
    2. (b)
      s 3.2.1(10) limits an assessment manager’s ability to receive and accept an application that is not a properly made application;
    3. (c)
      s 3.2.12 stipulates that a development application lapses if specified periods pass without the applicant taking the next step;
    4. (d)
      s 3.5.1(1) stipulates when the decision stage starts; and
    5. (e)
      s 3.5.7(1) requires an assessment manager to decide the application within 20 business days after the day the decision stage started, subject to stipulated circumstances when the decision making period can be extended.[8] 
  4. [13]
    Immediately prior to the repeal of the Sustainable Planning Act 2009, the Council had not decided either of Traspunt’s development applications.  Traspunt has not adduced evidence that the development applications were accepted by the Council as properly made applications, nor has it demonstrated that its development applications progressed in a timely manner to avoid them lapsing under s 3.2.12 of the Integrated Planning Act 1997.  As such, it is unclear from the evidence whether, immediately prior to the repeal of the Sustainable Planning Act 2009, there were legitimate development applications that could progress towards the decision stage.  
  5. [14]
    Assuming that the development applications were properly made applications that had not lapsed prior to 2 July 2017, it is likely that the decision making period for the development applications had ended by that time.  In that circumstance, pursuant to s 819(5) and (6) of the Sustainable Planning Act 2009 and s 4.1.27(1)(e) of the Integrated Planning Act 1997, Traspunt would have been entitled to commence an appeal in the Planning and Environment Court, at any time,[9] against the Council’s deemed refusal[10] of its existing applications.[11] 
  6. [15]
    On 3 July 2017, the Sustainable Planning Act 2009 was repealed by the Planning Act 2016.  Section 288 of the Planning Act 2016 provides that a development application made under the Sustainable Planning Act 2009, but not decided before its repeal, is to be assessed and decided under the Sustainable Planning Act 2009.[12]  Traspunt acknowledges that there is no corresponding transitional provision for a development application made under the Integrated Planning Act 1997 where that application was not decided in the period between 18 December 2009 and 3 July 2017 (that is during the operation of the Sustainable Planning Act 2009).[13] 
  7. [16]
    For the reasons provided above, on the repeal of the Sustainable Planning Act 2009, the Council’s authority to decide the existing applications, as it purported to do on 8 May 2018, was no longer extant.[14]  Accordingly, the “decision notices” issued by the Council on 11 May 2018 are not decision notices for the purposes of either the Integrated Planning Act 1997 or the Sustainable Planning Act 2009.  For the same reasons, the letters from the Council are not formal documents captured by s 289 of the Planning Act 2016.  As such, I do not accept Traspunt’s further submission that s 289 of the Planning Act 2016 operates to provide appeal rights under the Planning Act 2016.

Does s 311(1)(c) of the Planning Act 2016 confer a right of appeal?

  1. [17]
    Traspunt submits that the appeals were legitimately commenced under s 311(1)(c) of the Planning Act 2016.  It advances four reasons it says the Court would be so persuaded.
  2. [18]
    First, there is a clear legislative intent that appeals commenced during the currency of the Planning Act 2016 should be heard and determined having regard to the assessment framework (and associated matters) in the Planning Act 2016.  Traspunt submits that although Jakel Pty Ltd v Brisbane City Council & Anor[15] concerned a development application lodged during the currency of the Sustainable Planning Act 2009, the general commentary regarding legislative intent applies equally to this case.
  3. [19]
    I do not accept this submission.  In Jakel Pty Ltd v Brisbane City Council & Anor,[16] there was no issue about whether the appeal had been legitimately commenced.  The relevant question in that case related to the assessment regime that would apply for the appeal.  Here, before the applicable regime is determined, it is necessary to first decide whether there is a right to commence the appeal.  Jakel Pty Ltd v Brisbane City Council & Anor[17] does not assist in answering that question.
  4. [20]
    Second, Traspunt says there is no legislative provision under any other Act or regime, other than the Planning Act 2016 or the Planning and Environment Court Act 2016, that would provide it with an appeal right with respect to the development applications.  Traspunt notes that both the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 have long since been repealed.  By way of example and contrast, when the Sustainable Planning Act 2009 replaced the Integrated Planning Act 1997 there were clear legislative provisions that enabled, in effect, appeals to be lodged under the Integrated Planning Act 1997 with respect to applications made under the Integrated Planning Act.[18]  No such provisions, in the Integrated Planning Act 1997, the Sustainable Planning Act 2009 or the Planning Act 2016, provide for a similar arrangement relevant to this case.
  5. [21]
    Traspunt does not explain how the existence of a transitional provision in the Sustainable Planning Act 2009 that permitted commencement of appeals about applications made under both the Integrated Planning Act 1997 and the Local Government (Planning and Environment) Act 1990 demonstrates that s 311 of the Planning Act 2016 should be read as importing similarly broad appeal rights (contrary to the literal meaning of the provision).  This submission is not persuasive.
  6. [22]
    Third, the relevant explanatory notes do not indicate an intention to treat applications made under the Integrated Planning Act 1997 differently to those made under the Sustainable Planning Act 2009.  They refer only to proceedings not started before the commencement of the Planning Act 2016.  Those notes relevantly state:[19]

Clause 308 provides for proceedings not started before the old Act was repealed to be brought under the Bill. However, if a proceeding was started in the Planning and Environment Court before the old Act was repealed, the started proceeding must be continued under the old Act. Any appeal in relation to the proceeding would be under the Bill.”

  1. [23]
    Section 14B of the Acts Interpretation Act 1954 prescribes how extrinsic material, such as an explanatory note, may be used to interpret a provision of an Act.  If the provision is ambiguous or obscure, the extrinsic material may be used to provide an interpretation of it.  If the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable, the extrinsic material may be used to provide an interpretation that avoids such a result.  In any other case, it can be used to confirm the interpretation conveyed by the ordinary meaning of the provision. 
  2. [24]
    Transpunt does not explain the basis on which it submits consideration may be given to the explanatory notes. 
  3. [25]
    There is no ambiguity in the ordinary meaning of s 311(1)(c) of the Planning Act 2016.  Section 311 of the Planning Act 2016 states:

311 Proceedings generally

  1. (1)
    Subject to section 312, this section applies to a matter under the old Act, if a person
  1. (a)
    had started proceedings before the commencement but the proceedings had not ended before the commencement; or
  1. (b)
    had, immediately before the commencement, a right to start proceedings; or
  1. (c)
    has a right to start proceedings that arises after the commencement in relation to
  1. (i)
    a statutory instrument mentioned in section 287; or
  1. (ii)
    an application mentioned in section 288.
  1. (2)
    For proceedings that were started in the Planning and Environment Court, Magistrates Court or the Court of Appeal—
  1. (a)
    the old Act continues to apply to the proceedings; and
  1. (b)
    this Act applies to any appeal in relation to the proceedings as if the matter giving rise to the appeal happened under this Act.
  1. (3)
    For proceedings that were started in a building and development committee—
  1. (a)
    if the committee had been established before the old Act was repealed—
  1. (i)
    the old Act continues to apply to the proceedings; and
  1. (ii)
    this Act applies to any appeal in relation to the proceedings; and
  1. (iii)
    the committee must continue to hear the proceedings despite the repeal of the old Act; or
  1. (b)
    if the committee had not been established before the old Act was repealed—this Act applies to the proceedings, and any appeal in relation to the proceedings.
  1. (4)
    For proceedings mentioned in subsection (1)(b) or (c), proceedings may be brought only under this Act.”

(emphasis added)

  1. [26]
    The word “matter” in the introductory words to s 311(1) of the Planning Act 2016 is a broad term.  It captures a wide variety of controversies that might come before the Planning and Environment Court.[20]  It can be contrasted with the more specific reference in s 288(1) to “an application (however described) that was made under the old Act”.  The breadth of meaning to be attributed to the phrase “a matter under the old Act” is also supported by the range of matters identified in s 312 of the Planning Act 2016
  2. [27]
    Here, each of Traspunt’s development applications was “a matter under the old Act”, namely an “existing application” under s 802 of the Sustainable Planning Act 2009.  Despite that, Traspunt has no identifiable right to start proceedings that arises after the commencement in relation to either of the types of matters referred to in s 311(1)(c).  Section 287 relates to making and amending statutory instruments.  It is not relevant.  Section 288 only applies to “an application (however described) that was made under the old Act”.  Traspunt’s development applications were not made under the Sustainable Planning Act 2009.  They were made under the Integrated Planning Act 1997.  As such, s 311(1)(c) of the Planning Act 2016 is of no assistance to Traspunt.
  3. [28]
    Traspunt does not submit that this ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable.  It submits that the Court would not, and should not, reach a conclusion that Traspunt has no right of appeal with respect to the Council’s refusal of the development applications in question, particularly in circumstances where there is no express legislative provision to that effect.  It also says that such an approach would be contrary to the legislative intention that has been expressed in every successive piece of planning legislation adopted in Queensland, at least in recent times (including the Integrated Planning Act 1997, the Sustainable Planning Act 2009 and the Planning Act 2016).  It says that, historically, the legislation has acted to preserve appeal rights (in some form) with respect to applications lodged but not yet determined as at the introduction of the new planning legislation.  Traspunt did not provide references to those provisions of the previous legislation that it says preserved appeal rights for development applications made under not only the previous legislation, but also the legislation prior to that.  Traspunt also does not explain why these matters, if correct, would justify an interpretation contrary to the ordinary words.  These submissions are not persuasive.
  4. [29]
    The fourth reason advanced by Traspunt relies on s 285 of the Planning Act 2016.[21]  It states:

285 What this part is about

  1. (1)
    This part is about the transition from the repealed Sustainable Planning Act 2009 (the old Act) to this Act.
  1. (2)
    If this part applies a provision (the applied provision) of the old Act to a thing, the following provisions also apply to the thing—
  1. (a)
    any other provision of the old Act, to the extent the applied provision refers to the other provision;
  1. (b)
    any definition in the old Act that is relevant to the applied provision or a provision stated in paragraph (a).
  1. (3)
    Division 2 applies subject to the other divisions of this part.”
  1. [30]
    Traspunt submits that, read in context, this provision acts to extend the transitional appeal arrangements found in s 311 of the Planning Act 2016 to applications made under the Integrated Planning Act 1997.  It submits this is so because s 288 of the Planning Act 2016 continues the application of the majority of the relevant provisions of the “old Act” to applications made under that Act but not yet decided as at the commencement of the Planning Act 2016.  It says that, given the “old Act” (i.e. the Sustainable Planning Act 2009) sought to address Integrated Planning Act applications explicitly, s 285 of the Planning Act 2016 can (and should) be read as capturing all of those provisions that applied to Integrated Planning Act applications, including s 802 of the Sustainable Planning Act 2009.  Traspunt says that, even though they are not explicitly referenced, the Integrated Planning Act transitional provisions effectively go “hand in glove” with the Sustainable Planning Act assessment provisions that are clearly captured by the Planning Act 2016.  It says the provisions “reference” each other in the sense that they coexist to ensure that all relevant applications (i.e. under both the Sustainable Planning Act 2009 and the Integrated Planning Act 1997) are addressed by the legislative regime.  Traspunt says this is enough to establish the “reference” called for by s 285(2)(a) of the Planning Act 2016Traspunt submits that such a line of reasoning similarly extends the operation of the appeal provisions found in s 311 of the Planning Act 2016 to an Integrated Planning Act development application.  It says the effect is to grant Planning Act appeal rights (and the application of the Planning Act regime more generally) to any appeal regarding an Integrated Planning Act application on foot, but not yet determined, as at the time of the commencement of the Planning Act 2016.
  2. [31]
    Although Traspunt attempts to call s 285 and s 288 of the Planning Act 2016 in aid of its submissions, Traspunt does not engage with the ordinary meaning of those provisions.
  3. [32]
    Section 285 of the Planning Act 2016 is a provision that facilitates the operation of other transitional provisions.  It is called into play once one identifies a transitional provision (i.e. a provision in Chapter 8, Part 1 of the Planning Act 2016) that applies a provision of the Sustainable Planning Act 2009 (i.e. the “applied provision”) to a thing.  Once a relevant transitional provision and applied provision have been identified, s 285 of the Planning Act 2016 operates to ensure that, to the extent the applied provision refers to any other provision of the Sustainable Planning Act 2009, those additional provisions of the Sustainable Planning Act 2009 will also apply to the thing. 
  4. [33]
    Section 288 of the Planning Act 2016 is the transitional provision on which Traspunt relies.  It applies all the relevant development assessment provisions of the Sustainable Planning Act 2009 (i.e. the applied provisions) to “an application (however described) that was made under the old Act” (i.e. the “thing”).  As I have explained in paragraph [27] above, Traspunt’s applications are not the type of “thing” that is addressed by s 288 of the Planning Act 2016.  Neither of Traspunt’s applications are “an application (however described) that was made under the old Act”.[22]  They are both “existing applications” under the Sustainable Planning Act 2009, being applications that were made under the Integrated Planning Act 1997.  Section 285 of the Planning Act 2016 cannot be used to fit Traspunt’s application into a class of “thing” to which it does not belong. 
  5. [34]
    For the reasons provided above, I am not persuaded that Traspunt’s appeals were legitimately commenced under s 311(1)(c) of the Planning Act 2016.

Does the Planning Act 2016 provide for an appeal against a deemed refusal of an application made under the Integrated Planning Act 1997?

  1. [35]
    In the alternative to its position outlined above, Traspunt submits that it had the right under the Planning Act 2016 to commence appeals against the deemed refusal of its applications.  It says this would be an appropriate case to grant excusatory relief to treat the appeals as such, given the parties have progressed the appeals to final hearing.
  2. [36]
    Assuming Traspunt’s applications were still validly on foot immediately prior to the repeal of the Sustainable Planning Act 2009,[23] it had a right to commence deemed refusal appeals under that Act.  The right to commence a deemed refusal appeal would be a right to start proceedings for the purposes of s 311(1)(b) of the Planning Act 2016.  As such, s 311(4) of the Planning Act 2016 is engaged and the right to bring proceedings is limited to those brought under the Planning Act 2016.[24]
  3. [37]
    Section 229 and schedule 1 of the Planning Act 2016 set out the categories of appeal that may be commenced in the Planning and Environment Court.  The relevant appeal right for development applications is in schedule 1, table 1, item 1 of the Planning Act 2016.  It states:[25]

“1. Development applications

For a development application other than a development application called in by the Minister, an appeal may be made against–

  1. (a)
    the refusal of all or part of the development application; or
  1. (b)
    the deemed refusal of the development application; or
  1. (c)
    a provision of the development approval; or
  1. (d)
    if a development permit was applied for–the decision to give a preliminary approval.”
  1. [38]
    The reference to a “development application” is sufficiently broad to include an “existing application” under the Sustainable Planning Act 2009 given the definition of “development application[26] and “development approval[27], and the combined effect of s 802(7) of the Sustainable Planning Act 2009 and s 286 of the Planning Act 2016.[28]  Despite that, the appeal right does not extend to appeals with respect to development applications made under the Integrated Planning Act 1997 and not decided prior to the commencement of the Planning Act 2016.  As I have already noted in paragraph [15] above, there are no transitional provisions that entitled Traspunt to continue to have its applications assessed and decided.  It was not entitled to have Council determine whether it should be given a right (being a development approval) that it did not have when the procedure to obtain the right was set in motion.[29]  As such, where an assessment manager had not decided an existing application prior to the repeal of the Sustainable Planning Act 2009, there is no decision that would engage schedule 1, table 1, item 1(a), (c) or (d).  Further, item 1(b) is not engaged because a “deemed refusal” is defined as:

“… a refusal that is taken to have happened if a decision has not been made when the following ends–

  1. (a)
    for a development application, other than an application to which section 64 applies–the period, under the development assessment rules, for making a decision;”
  1. [39]
    The development assessment rules are made by the Minister under s 68 of the Planning Act 2016.  Section 22 of the Development Assessment Rules prescribes a decision period for applications made under the Planning Act 2016.  It does not provide a decision period for applications made under the Sustainable Planning Act 2009[30] nor for applications made under the Integrated Planning Act 1997.[31]
  2. [40]
    Further, although s 311(1)(b) of the Planning Act 2016 is a transitional provision that applies to the right to commence a deemed refusal appeal, s 285(2)(b) of the Planning Act 2016 cannot be used to import the definition of a deemed refusal under either the Sustainable Planning Act 2009 or the Integrated Planning Act 1997.  This is because s 311(4) of the Planning Act 2016 does not direct that the Sustainable Planning Act 2009 applies to deemed refusal appeal rights (i.e. there is no “applied provision” under the Sustainable Planning Act 2009).[32]
  3. [41]
    For the reasons provided above, the Planning Act 2016 does not provide a right of appeal for deemed refusal of a development application made under the Integrated Planning Act 1997.

Does the Acts Interpretation Act 1954 preserve a right of appeal?  

  1. [42]
    In the event there are no appeal rights arising under the Planning Act 2016, Traspunt submits that the Acts Interpretation Act 1954 preserves its right to appeal against a deemed refusal of the subject applications.[33]
  2. [43]
    Relevantly, the Acts Interpretation Act 1954 provides:

20 Saving of operation of repealed Act etc.

  1. (2)
    The repeal or amendment of an Act does not—

  1. (c)
    affect a right, privilege or liability acquired, accrued or incurred under the Act; or

  1. (e)
    affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
  1. (3)
    The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.

  1. (5)
    This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made.

20A Repeal does not end saving, transitional or validating effect etc.

  1. (3)
    If an Act (the savings law) declares an Act (the declared law) to be a law to which this section applies—
  1. (a)
    the effect of the declared law does not end merely because of its repeal; and
  1. (b)
    the effect of the savings law does not end merely because of its repeal.
  1. (4)
    A declaration may be made for subsection (3) about an Act whether or not the Act is a law to which subsection (2) applies.
  1. (5)
    A declaration made for subsection (3) about an Act does not imply that, in the absence of a declaration about it, another Act is not a law to which this section applies.
  1. (6)
    This section is in addition to, and does not limit, sections 19 and 20, or any provision of the law by which the repeal is made.”
  1. [44]
    If all that was involved was a right to an exercise of the Council’s discretion in relation to the development applications, such a “hope or expectation” would not be protected by s 20.[34]  However, a right to appeal against a deemed refusal is not a matter of mere procedure.  It is a substantive right.[35]
  2. [45]
    The operation of s 20 may be displaced by a contrary intention appearing in any Act.[36]  However, the contrary intention must be clear.  In ADCO Constructions Pty Ltd v Goudappel & Anor, Gageler J observed:[37]

“[52] A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as “necessary implication”, has not been confined to those extreme circumstances in which alteration of an existing right or liability “cannot be avoided without doing violence to the language of the enactment”. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears “clearly” or “plainly” from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.”

(footnotes omitted)

  1. [46]
    Here, there is a hiatus in the legislation.  I am not satisfied that it is enough to conclude that there is a clear contrary intention. 
  2. [47]
    For the reasons provided above, if Traspunt’s development applications were properly made and had not lapsed at the time that the Sustainable Planning Act 2009 was repealed, Traspunt has a right to commence appeals against the deemed refusal of those applications. 
  3. [48]
    Were the only obstacle to Traspunt’s success its ability to demonstrate that its development applications were still on foot at the time the Sustainable Planning Act 2009 was repealed, I would have permitted Traspunt the opportunity to file an amended notice of appeal and adduce evidence about the progress of the development application.[38]  However, for reasons that follow, such a course is pointless.  Instead, in a context where the validity of the applications was not explored in argument, it is convenient to assume that the appeals are valid. 

What is the relevant framework for the decision?

  1. [49]
    The appeals are to be heard and determined under the repealed Integrated Planning Act 1997.[39]  The appeals are by way of hearing anew.[40]  They must be decided based on the laws and policies applying when the applications were made, but the Court may give weight to any new laws and policies the Court considers appropriate. 
  2. [50]
    The development applications were made on 17 December 2009.  At that time, the Redcliffe City Planning Scheme 2005 as amended 29 October 2009 (“the Planning Scheme”) was in force. 
  3. [51]
    As the development applications were impact assessable,[41] they are to be assessed having regard to s 3.5.5 of the Integrated Planning Act 1997 and decided in accordance with s 3.5.11 and s 3.5.14 of the Integrated Planning Act 1997.  Pursuant to s 3.5.14(2)(b), the decision must not conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict.
  4. [52]
    The task for the Court involves an evaluative exercise.  In determining whether there are grounds sufficient to justify approving the application notwithstanding any conflict, the Court is required to examine the nature and extent of the conflict with the Planning Scheme.[42] 
  5. [53]
    The term “grounds” is defined to mean “matters of public interest” and to exclude “the personal circumstances of an applicant, owner or interested party”.[43]  The range of matters that may potentially be included within the scope of “matters of public interest” is very wide.[44] 
  6. [54]
    Guidance on the appropriate approach to the evaluative exercise can be gleaned from the decisions of the Court of Appeal in Bell v Brisbane City Council & Ors,[45] Gold Coast City Council v K&K (GC) Pty Ltd[46] and Redland City Council v King of Gifts (Qld) Pty Ltd and HTC Consulting Pty Ltd & Anor[47].[48] 
  7. [55]
    It is for Traspunt to establish that the appeal should be allowed, and the development application approved.[49] 

What are the substantive issues in dispute?

  1. [56]
    The ultimate issue to be determined is whether the proposed developments should be approved, approved subject to conditions, or refused.  That decision is informed by the issues in dispute between the parties. 
  2. [57]
    The issues in dispute narrowed during the hearing such that there are now only three questions about the merits of the development applications that require determination.[50]
  1. Does the proposed development comply with the Planning Scheme requirements with respect to intended ecological outcomes?
  1. What weight should be given to the Moreton Bay Regional Planning Scheme 2016 (“the 2016 Planning Scheme”)?
  2. Is the proposed development consistent with community expectations for the subject land?

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

  1. [58]
    Lot 909 on SP 198688 is a rectangular parcel with a long east-west orientation.  It has an area of 1.918 hectares.  It has road frontages to Cowper Court to the north, Greene Street to the south and Sylivia Court to the east.  To its west, Lot 909 adjoins Lot 910 in part, and a vegetated open space area known as the Higgs Street Environmental Reserve.
  2. [59]
    Traspunt seeks to reconfigure Lot 909 into 14 residential allotments, with sizes ranging from 902 square metres to 1 641 square metres. 
  3. [60]
    Road access for all the allotments is proposed to be from the existing road reserve network, with no new roads proposed. 
  4. [61]
    A 12-metre-wide bushfire protection zone is proposed along the western boundary of the allotment (as part of proposed lots 9, 10 and 901).  It would directly adjoin the open space area to the west, which will be separated from Lot 909 by a fauna exclusion fence. 
  5. [62]
    Two smaller allotments, described as Lots 900 and 901, are proposed to contain stormwater basins, with associated drainage easements providing a point of lawful discharge from the various residential allotments.
  6. [63]
    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.  It has road frontages to Varuna Court to the north and Cowper Court to the east.  To the south and west of Lot 910 is the same Higgs Street Environmental Reserve that adjoins Lot 909.
  7. [64]
    Traspunt seeks to reconfigure Lot 910 into five residential allotments, with sizes ranging from 999 square metres to 2 376 square metres.
  8. [65]
    No new roads are proposed.  Road access for all the allotments is proposed from the existing road reserve network.
  9. [66]
    A five-metre-wide buffer planting zone is proposed along most of the western and southern property boundaries, where the land adjoins the open space area to the west and south.  A 12-metre-wide bushfire protection zone is proposed along the western and southern boundaries of the allotment directly adjoining either the buffer planting zone or, in areas where the buffer is not proposed, the large open space area to the west.  There is to be a fauna exclusion fence running along the west of the bushfire protection zone, either adjoining the property boundary (and the open space area beyond) or the buffer planting zone. 
  10. [67]
    One smaller allotment, described as Lot 902, is intended to contain a stormwater basin, with associated drainage easements providing a lawful point of discharge from the various residential allotments.

Does the proposed development comply with the Planning Scheme?

  1. [68]
    The Council alleges that the proposed development does not protect and maintain the significant environmental values of the subject land and its surrounds and, as such, it does not comply with the Planning Scheme. 
  2. [69]
    Traspunt resists the Council’s case that there is non-compliance with the Planning Scheme on two bases.  First, it says that the Council’s case with respect to the ecology issue is misguided because it assumes that the lots will be cleared for houses.  It says the vegetation clearing issues the Council seeks to raise are not relevant to these proceedings as the proposed development does not involve any clearing.  Second, Traspunt says that the provisions relied on by the Council do not call for strict compliance, rather a minimisation of impact.  Traspunt says that the proposed development is appropriate in that regard.

Is the potential for clearing a relevant consideration?

  1. [70]
    Traspunt says the ecology issue is irrelevant, and that the proposed development does not conflict with the Planning Scheme provisions that the Council relies on, as the reconfiguration will not cause or permit any vegetation clearing on the subject land.[51] 
  2. [71]
    I do not accept Traspunt’s submission.  The creation of the new lot boundaries gives rise to a right to clear vegetation for a boundary fence.  No development permit is required for clearing that is reasonably necessary to construct and maintain a property boundary fence, provided the clearing does not exceed four metres in width either side of the fence.[52] 
  3. [72]
    Traspunt also seeks to support its submission that the ecology issue is irrelevant by its assertion that, if an approval is granted, any future house on any subdivided lot will be subject to impact assessment against the 2016 Planning Scheme.[53]  This too is not correct.  Pursuant to s 43 of the Planning Act 2016 and s 16 and schedule 6 of the Planning Regulation 2017, the 2016 Planning Scheme is prohibited from stating that particular forms of development are assessable development.  Such forms of development include, but are not limited to:
    1. (a)
      a material change of use for a class 1 or 2 building, if the use is providing support services and temporary accommodation for persons escaping domestic violence;[54]
    2. (b)
      a material change of use for a community residence[55] if:
      1. the premises are included in the low density residential zone or the environmental management and conservation zone;
      2. no more than seven support workers attend the residence in a 24-hour period;
      3. at least two car parks are provided on the premises for use by residents and visitors;
      4. at least one of the car parks is suitable for persons with disabilities; and
      5. at least one car park is provided on the premises for use by support workers.[56]
  4. [73]
    Traspunt’s submissions assume that the only relevant issue when considering a proposed reconfiguration of lots is that the approval authorises the creation of lots of particular dimensions for disposition on separate titles.  That approach is artificially constrained. 
  5. [74]
    As was observed by Professor Fogg in Land Development Law in Queensland:[57]

“There are in truth two issues.  The first concerns the strict legal effect of a subdivisional approval … an approval is simply the granting of authority to the applicant to dispose of land in separate titles where he would otherwise be statutorily prohibited from so doing.  If land is appropriately zoned for the use to which the subdivided allotments are to be put, only subsequent building approvals are required.  If land is not so zoned, then a planning consent is also required before the individual allotments can be put to the changed use.  By contrast, the considerations a local planning authority is obliged to keep in mind when deciding applications are, in part, concerned with general planning principles as to the object of subdividing.  A well-intentioned local planning authority will not wish to deceive potential purchasers by granting subdivisional approval where it is unlikely that a subsequent development consent will be forthcoming.  Equally, it will be difficult to avoid anticipation of its town planning powers in connection with a proposal not yet couched in precise development terms. …”[58]

  1. [75]
    Further, Traspunt’s assertion that the intended final use is irrelevant does not accord with the applicable legislative regime.  Pursuant to s 3.5.5 of the Integrated Planning Act 1997, the application must be assessed having regard to the common material.  The common material includes the approved forms.[59]  Here, IDAS Form 1 Part F Reconfiguring a Lot required identification of the intended final use of the additional lots being created.  The completed form for each application indicates that the intended final use is residential.  For each application, this form is also supported by a Planning Report,[60] which indicates that the proposed final use of the subject land is residential dwellings.
  2. [76]
    For the reasons provided above, I do not accept Traspunt’s submission that the vegetation clearing issues that the Council seeks to raise are irrelevant.

Does the proposed development comply with the relevant planning provisions?

  1. [77]
    The Council says the proposed development does not comply with the overall outcomes in s 5.1.5 2) A) and G) and specific outcomes SO1, SO2, SO3, SO4, SO5 and SO6 of the Natural Features or Resources Overlay Code. 
  2. [78]
    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. [79]
    The subject land is identified with State significance on Overlap Map 1.  For such land, s 5.1.6 contains the following six specific outcomes:

“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.”

(emphasis added to reflect emphasis given by the Council)

  1. [80]
    It is the Council’s case that these provisions of the Natural Features or Resources Overlay Code will be determinative.  The Council also says that the requirements in those provisions are consistent with the requirements in:
    1. (a)
      overall outcome 2) A) v) of the Citywide Code, which requires that:

“Ecological processes … are maintained and enhanced.”

  1. (b)
    specific outcome SO11 of the Low Density Residential Zone Code, which requires that where development is located in Preferred Use Area 1:

“The form of development is appropriate for the area in regard to:

  1. the existing natural environment;”
  1. (c)
    overall outcome 2) B) of the Reconfiguring a Lot Code, which requires:

“Lots are appropriate for the topography and landscape features.”

  1. [81]
    Traspunt appears to accept that approval of its proposed reconfiguration is inconsistent with strict compliance with the outcomes sought in the Planning Scheme.  However, it says the provisions should be read as calling for a minimisation of impact rather than avoidance of impact. 

Should the Planning Scheme be read as calling only for a minimisation of impact?

  1. [82]
    Mr Schomburgk, the town planner retained by Traspunt, says it would be difficult for there to be compliance with all the outcomes sought in specific outcomes SO1 to SO6 of the Natural Features or Resources Overlay Code.  Considering that evidence, Traspunt submits that the Court should be wary about requiring strict compliance.  It says that would be tantamount to a prohibition on development, which it submits should not be accepted as the intention of the Planning Scheme. 
  2. [83]
    In support of its submission about the proper construction of the Planning Scheme, Traspunt relies on:
    1. (a)
      the overall outcomes for the Natural Features or Resources Overlay Code, which include that “biodiversity values for the areas identified with State or Regional, sub-regional or local significance on Overlay Map 1 are maintained and enhanced”;[61]
    2. (b)
      the desired environmental outcomes, which it says include that:
      1. The ecological and biodiversity value of areas with identified natural values … are not compromised”;[62]
      2. Impacts on … loss of vegetation … are minimised”;[63] and
      3. The design and operation of development is appropriate with regard to… environmental impacts …”.[64]
  3. [84]
    Traspunt’s selective quoting of the desired environmental outcome in s 3.1 3) F) skews the meaning of that provision.  The focus of s 3.1 3) F) is not minimisation of vegetation loss, rather minimisation of impacts on water and air quality.  In full, the outcome states:

“Impacts on water and air quality by contamination, effluent disposal, loss of vegetation, soil erosion and disturbance of acid sulfate soils are minimised.” 

  1. [85]
    When the desired environmental outcome is read as a whole, it does not support Traspunt’s submission.  To the contrary, comparison of the outcome sought by the desired environmental outcome in s 3.1 3) F) with the outcomes sought with respect to vegetation and biodiversity in areas of State, Regional or Sub-regional significance only serves to highlight the more stringent nature of the requirements with respect to the latter, which call for maintenance and enhancement of values not just minimisation of impacts.
  2. [86]
    Expressions in planning instruments are conventionally not interpreted in an absolute way.  Often, they should be “taken with a grain of salt”.[65]  That said, the principles that apply to statutory construction also apply to the construction of planning documents.  As such, it is necessary to consider the context of the provisions that are being construed, and to read them in a way that is practical, and as intending to achieve balance between outcomes.[66]
  3. [87]
    Here, specific outcome SO4 is drafted such that it does not readily admit of the injection of any significant degree of latitude when determining whether the development will involve “the destruction of vegetation or fauna through clearing of land”.  Further, when it is read in context with the other specific outcomes and the broader planning goals, including those referred to by Traspunt, it is evident that the Planning Scheme is not merely seeking the minimisation of clearing in areas that are mapped as having State, Regional or Sub-regional significance on Overlay Map 1.  To the contrary, in those areas, the Planning Scheme requires development to maintain and enhance the biodiversity values of the area. 
  4. [88]
    Although a requirement to avoid clearing may curtail the extent of development that can be achieved on the subject land, it is not tantamount to a prohibition of development.  It reflects the balance that the Planning Scheme has elected to strike between the ability to develop land for residential purposes when it is mapped as having State, Regional or Sub-regional significance on Overlay Map 1, and the protection of significant environmental values.  Further, that it does not amount to a prohibition is demonstrated by the decisions in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[67] and Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2),[68] which each involve approval of development on the subject land. 
  5. [89]
    For the reasons provided above, I do not accept Traspunt’s submissions about the approach to be taken to the construction of the Planning Scheme.  That is not to say that an absolute approach is appropriate, such that the loss of a single tree would sound in conflict warranting refusal.  Rather, whether there is compliance is a question of fact and degree to be determined by reference to the circumstances of the case. 
  6. [90]
    In this case, the question of compliance with the Planning Scheme turns on the determination of two key factual issues raised by the evidence.
  1. What are the ecological values of the subject land?
  2. What is the significance of the ecological impact?

What are the ecological values of the subject land?

  1. [91]
    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. 
  2. [92]
    The Ecological Experts Joint Expert Report makes it clear that the experts do not dispute that the vegetation on the subject land aligns with the values ascribed by the Planning Scheme.  Further detail of the values present is provided by the Ecological Assessment Report prepared under the direction of Mr Warren by two ecologists employed by JWA Pty Ltd.  The report records 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, the ecological expert retained by Traspunt, 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. 
  3. [93]
    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)). 
  4. [94]
    A tree survey undertaken over parts of the subject land 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. 
  5. [95]
    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.
  6. [96]
    Despite agreeing that the vegetation on the subject land aligns with the values ascribed by the Planning Scheme, Mr Warren opines that the relevant ecosystem present on the subject land is of only moderate value, with a moderate-high habitat value for the local koala population.  He says that some of the vegetation appears to be advanced regrowth and that there are some weed incursion issues.  For the reasons that follow, I do not accept these opinions of Mr Warren.
  7. [97]
    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.  Having regard to the whole of his evidence, his opinion appears to be premised on his view that the vegetation is advanced regrowth and that there are some weed incursion issues. 
  8. [98]
    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.
  9. [99]
    Dr Daniel also disagrees with Mr Warren’s opinion that the vegetation is only of moderate value.  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 exposed 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.
  10. [100]
    Further, 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.
  11. [101]
    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.
  12. [102]
    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.  Dr Daniel’s evidence on this issue was not contradicted and I accept it. 
  13. [103]
    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. 
  14. [104]
    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. 
  15. [105]
    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.[69] 

What is the significance of the ecological impact?

  1. [106]
    The evidence of Dr Daniel and Mr Caneris about edge effects and weed incursion persuades me that a decision to approve the proposed development would be inconsistent with the preservation, maintenance, and enhancement of the existing vegetation and the ecological values of the subject land.  It would introduce clearing associated with boundary fences and increase the external stressors on the remaining vegetation by increasing the edge to area ratio. 
  2. [107]
    Traspunt submits that the extent of impact occasioned by the proposed development does not amount to a significant non-compliance with the Planning Scheme.  It advances five reasons in support of its submission.
  3. [108]
    First, Mr Warren opines that the loss of vegetation associated with the proposed reconfiguration is not significant having regard to the local context.  He notes that the subject land forms a small part of a much larger habitat patch that extends from Boundary Road and Lipscombe Road in the north-west to Hays Inlet Conservation Park in the south-east.  That broader area includes the Higgs Street Environmental Reserve that occurs adjacent to the western boundary of the subject land.  In turn, that reserve connects to the North Lakes Environmental Reserve.  The broader area identified by Mr Warren covers approximately 232 hectares.  Mr Warren opines that, if the reconfiguration of land were to cause the complete removal of all vegetation on the proposed lots in order to accommodate houses, for Lot 909 this would result in the removal of only 0.31 per cent of the existing habitat patch.  For Lot 910, it would result in the removal of 0.12 per cent of the existing habitat patch.  In Mr Warren’s opinion, such losses are not significant.  He says they will impact upon only a small area of the likely home ranges of local koalas.  This is particularly so as, according to Mr Warren, he adopts a very conservative estimate of the local area of koala habitat and regional ecosystems.  He says the local area of habitat available to koalas is significantly larger than that which he portrays in his statement of evidence.
  4. [109]
    I accept the accuracy of Mr Warren’s calculation about the relative extent of the vegetation on the subject land as compared to the broader area of vegetation in the locality.  However, in undertaking his calculation, and expressing his opinion, Mr Warren did not make any reference to the types of vegetation communities present in the broader local context.  The broader area relied on by Mr Warren is not a homogenous vegetation community. 
  5. [110]
    Dr Daniel gave evidence of the relative scarcity of regional ecosystem 12.5.3a in the broader local context.[70]  During cross-examination, Dr Daniel accepted that there are only minor differences between regional ecosystem 12.5.3a and regional ecosystem 12.5.3.  He acknowledged that the broader local context includes other vegetation communities that provide koala food trees, including regional ecosystem 12.3.5.  I accept this evidence.
  6. [111]
    I prefer the evidence of Mr Caneris on the significance of the loss of vegetation for koalas to that of Mr Warren.  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. 
  7. [112]
    Mr Caneris accepts that there is a degree of fragmentation around the boundaries of the subject land, as there is an area of clearing along some boundaries, and some weed encroachment along the edges.  Despite that, he says the central portions of the habitats on the subject land are intact, and that the connection to the adjoining habitat off-site adds to the value of habitat that otherwise exists on the subject land.  He opines that even if the land to the south is developed, the subject land would still have viable connections to the reserve that adjoins it, and there would be sufficient habitat retained to ensure that the koala population in the area could persist in the landscape.  He acknowledges that the introduction of further development to the south would reduce connectivity to other habitat but says there would still be connections to the west, and the extant habitat value of the subject land would not be changed. 
  8. [113]
    Mr Warren and Mr Caneris agree that there is evidence that the subject land is used by koalas.  Mr Caneris says the vegetation on the subject land is sufficient to support a population of one or two koalas.  He says that local population might be lost if the vegetation on the subject land is cleared, as it would remove their home range.  Mr Caneris 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 the evidence of Mr Caneris. 
  9. [114]
    Having regard to the evidence of Mr Caneris, I do not accept the opinion of Mr Warren that the loss of vegetation on the subject land is insignificant when viewed in the broader context. 
  10. [115]
    Second, Mr Warren says the provision of nest boxes can be used to offset the loss of hollows or fissures in older native trees that may be removed.  This does not address the impact of loss of habitat for koalas.
  11. [116]
    Third, the subject land sits immediately adjacent to existing residential development to the north and east.  Similar residential development is contemplated to the immediate south of the land as well.  In such circumstances, Mr Warren opines that, with implementation of amelioration measures, the proposed reconfiguration would not result in any significant impacts on the local corridor values.  I do not accept Mr Warren’s opinion for reasons already provided in paragraphs [108] to [115] above.
  1. [117]
    Fourth, Mr Warren says it is possible to, and Traspunt is prepared to, implement a comprehensive Site Rehabilitation Plan with respect to both developments.  That involves on-site offset planting and fauna exclusion fencing, fauna management during construction, nest box installation, appropriate signage and covenants and controls on landscape or fill materials used during construction.  Mr Warren says that these mitigation measures ameliorate impacts on vegetation and habitat values both on and adjoining the subject land.  He considers such mitigation measures to be a part of the preservation process.  Traspunt notes that Dr Daniel accepts that such a plan is “always a good thing”.[71]  It submits that such a plan should be contrasted against the current rights of the landowner, which would include constructing a non-permeable “colorbond” style fence along each property boundary that would have none of these benefits and would limit the utility of the vegetation that is present on the subject land.  I am not persuaded that these matters demonstrate that there is not significant non-compliance with the Planning Scheme.
  2. [118]
    The fifth argument advanced by Traspunt is that Mr Warren’s views as to the importance, or lack thereof, of the vegetation on the subject land are consistent with previous findings of this Court with respect to the same land.  In Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council, His Honour Judge Horneman-Wren SC observed:[72]

“[109] Mr Moffit, in his statement of evidence, accepts the site supports koalas but does not believe that it provides critical habitat for the species for a number of reasons. First, in and of itself it is not essential to the viability of the Pine Rivers koala population. Second, it does not fulfil a strategic landscape role, for example as a refuge or corridor, which is essential to the viability of that koala population. Third, in his view, there are no other characters of the site’s habitats or the koalas occupying those habitats which cause him to believe that the site is essential for that koala population.

[113] To these observations, Mr Moffit replies that he interprets the critical habitat definition to mean that the subject site would need to have intrinsic values which were essential for the conversation of a viable population, and that whilst he accepts that koalas are dependent on the retention of eucalypt habitats, he notes that the subject site supports only a small component of the eucalypt habitats which occur in the broader landscape and that the subject site should not be defined as a critical habitat “because in and on itself it is not essential to the viability of the Pine Rivers koala population”.”

  1. [119]
    This submission is not compelling.  The factual findings of His Honour Judge Horneman-Wren SC were based on the evidence placed before him in that hearing.  They are not binding on me.  They do not persuade me to take a different view of the evidence placed before me in this case.

Conclusion regarding compliance with the Planning Scheme

  1. [120]
    For the reasons provided above, I am not persuaded that the extent of impact occasioned by the proposed development does not amount to a significant non-compliance with the Planning Scheme.  Although the zoning of the subject land raises the prospect of development of the land for residential purposes, it cannot be viewed in isolation.  It must be read with other parts of the Planning Scheme, including the Natural Features or Resources Overlay Code.  Having regard to the lineal extent of the proposed boundaries, and the extent to which those boundaries traverse the vegetated area of the subject land, the impact of the proposed development is material.  The evidence of Dr Daniel and Mr Caneris referred to above satisfies me that the departure from the Planning Scheme will sound in unacceptable ecological impacts and an appreciable adverse planning consequence.  It will unacceptably compromise the ecological and biodiversity value of the area.  The non-compliance warrants refusal of the applications.[73]

What weight should be given to the 2016 Planning Scheme?

  1. [121]
    Pursuant to s 4.1.52(2)(b) of the Integrated Planning Act 1997, the Court may give the weight that it considers appropriate to the 2016 Planning Scheme.  The Council submits that it should be given weight.
  1. [122]
    Under the 2016 Planning Scheme, the subject land is in the Environmental management and conservation zone.  It is also subject to the Bushfire hazard overlay, the Environmental areas overlay, the Environmental offset receiving areas overlay and the Hays Inlet stormwater catchment overlay.
  1. [123]
    In the Environmental management and conservation zone code in the 2016 Planning Scheme, s 6.2.4.2 provides:

“1. The purpose of the Environmental management and conservation zone code is to provide for the protection, restoration and management of areas identified as supporting significant biological diversity and ecological integrity.  The Environmental management and conservation zone covers the core natural environmental areas of the Region which are, for the significant majority of the land, in public ownership.  These areas consist of high ecological significance and high-value vegetation.  They include key wildlife breeding and refuge areas with the strongest conservation mandate.  This zone makes up a strong network of diverse natural landscapes which contribute to local habitat connectivity, koala and other priority species sustainability, biodiversity resilience, lifestyle and recreation opportunities.

  1. The purpose of the code will be achieved through the following overall outcomes:

a. Areas having important biological, natural, and ecological values are protected from potentially degrading and destructive effects associated with development.

b. Development is restricted to activities that directly support or appreciate the biological, natural and environmental values of the area such as parks, walking trails, and associated support facilities.

c. … Where on private land, development is restricted to activities that directly support or appreciate the biological, natural and environmental values.

d. Development not having a close association with the natural environment is avoided.

…”

  1. [124]
    Performance outcome PO10 in the Environmental management and conservation zone code relevantly provides:

“Development avoids locating in a High Value Area or a Value Offset Area.  Where it is not practicable or reasonable for development to avoid establishing in these areas, development must ensure that:

a. the quality and integrity of the biodiversity and ecological values inherent to a High Value Area and a Value Offset Area is maintained and not lost or degraded;

b. on-site mitigation measures, mechanisms or processes are in place demonstrating the quality and integrity of the biodiversity and ecological values inherent to a High Value Area and a Value Offset Area are maintained.  For example, this can be achieved through replacement, restoration or rehabilitation planting as part of any proposed covenant, the development of a Vegetation Management Plan, and any other on-site mitigation options identified in the Planning scheme policy – Environmental areas.”

  1. [125]
    The term “High Value Area” and the term “Value Offset Area” are defined in the Planning scheme policy – Environmental Areas and Corridors.  The definition captures the subject land, as both Lot 909 and Lot 910 are mapped as containing Matters of State Environmental Significance.  The relevant part of the discussion in the Planning scheme policy is as follows:

High Value Areas represent high value environmental matters of State or local significance.  These matters are to be protected from development impacts and cannot be offset.

HIGH VALUE AREAS

Matters of State Environmental Significance (MSES)

MSES are references in the Queensland Government’s State Planning Policy 2014.  MSES include certain environmental values that are protected under Queensland legislation and is generated from data including, but not limited to: regional ecosystem mapping; Queensland wetland mapping; protected areas; marine parks; fish habitat areas; and State legally secured offsets.”

  1. [126]
    For a reconfiguration of a lot in the Environmental management and conservation zone, Table 5.6.1 provides that the assessment benchmark includes the Reconfiguring a lot code (Environmental management and conservation zone). 
  2. [127]
    The overall outcomes for the Reconfiguring a lot code (Environmental management and conservation zone) include:[74]

“Reconfiguring a lot avoids areas subject to constraint, limitation, or environmental values.”

  1. [128]
    This provision is consistent with the purpose of the Reconfiguring a lot code which, in s 9.4.1.2 2 a., identifies the following overall outcome:

“Reconfiguring a lot creates a diversity of lot sizes, dimensions and arrangements consistent with the intended densities, uses, configurations and character of the applicable zone and precinct while not adversely impacting on lawful uses, values or constraints present.”

  1. [129]
    Performance outcome PO11 in the Reconfiguring a lot code (Environmental management and conservation zone) provides:

“No new boundaries are to be located within 4m of a High Value Area.”

  1. [130]
    As acknowledged by Mr Schomburgk, performance outcome PO11 is a very stringent provision.
  1. [131]
    The 2016 Planning Scheme is a contemporary statement of planning intent for the subject land.  As is evident from the provisions referred to above, the 2016 Planning Scheme provides no greater support for the proposed development than the Planning Scheme.  It demonstrates that, despite its age, the emphasis in the Planning Scheme on the maintenance and enhancement of biodiversity and ecological values is consistent with contemporary planning practice.
  2. [132]
    The town planners accept that the 2016 Planning Scheme does not provide support for the proposed development.  In examination-in-chief, Mr Schomburgk said that the 2016 Planning Scheme presents significant barriers to development of the proposed lots and would weigh heavily against an approval of development of the proposed lots for a house.
  3. [133]
    Traspunt submits that little weight should be afforded to the 2016 Planning Scheme.  It says primacy should be afforded to the planning scheme in force at the time the applications were made.  It says this is a matter of fairness to the developer.  Traspunt relies on the evidence of Mr Schomburgk, who says that the 2016 Planning Scheme should be afforded little weight given that the applications were lodged in December 2009, over six years before the 2016 Planning Scheme came into effect.
  1. [134]
    I am not persuaded that it would be unfair to Traspunt to give weight to the 2016 Planning Scheme, particularly given the amount of time that has passed since it made its development applications.  Nevertheless, the weight to be attributed to the 2016 Planning Scheme is not determinative of the outcome of these appeals.  This is because I am of the view that the development applications should be refused as they do not comply with the Planning Scheme.  The contents of the 2016 Planning Scheme do not suggest a different result should follow.  To the contrary, the 2016 Planning Scheme increases the level of difficulty Traspunt must confront to secure an approval, and to pursue its ultimate desire to develop the subject land for residential purposes.  As such, the 2016 Planning Scheme only serves to reinforce my view that the applications should be refused.

Is the proposed development consistent with community expectations?

  1. [135]
    Traspunt submits that the issue of community expectations does not represent a reason why the development applications should be refused.  Its submissions on this issue are premised on the Court accepting the submissions it otherwise advances, which I do not for reasons already provided.
  2. [136]
    In Acland Pastoral Co Pty Ltd v Rosalie Shire Council,[75] His Honour Judge Dodds said:

“A person’s right to put their land to any lawful use they wish is in these more enlightened times, tempered by town planning considerations …”

  1. [137]
    Since 2016, the subject land has been located in the Environmental management and conservation zone.  Prior to that, the subject land was included in the Natural Features or Resources Overlay, as well as Preferred Use Area 1 of the Low Density Residential Zone.  For all that time, the subject land has remained in two large allotments, and contained substantial natural vegetation. 
  2. [138]
    Having regard to those circumstances, Mr Reynolds opines that it would be the broad community expectation that there would not be any development or clearing of the land, particularly given the current planning scheme has been in place for four years.  Further, it would not be unreasonable for a well-informed person to expect each of the two existing allotments to contain a single dwelling house, if that person was aware of the former planning scheme provisions, but they would not reasonably expect the land to be cleared or subdivided.  I agree.
  3. [139]
    Despite my findings with respect to community expectations, the issue of community expectations is not determinative of the outcome of these appeals.  This is because I am of the view that the development applications should be refused as a decision to approve the development applications would conflict with the Planning Scheme and there are not sufficient grounds to justify approval despite that conflict.  The reasonable community expectations only serve to reinforce my view that the applications should be refused.

Conclusion

  1. [140]
    For the reasons provided above, Traspunt has not demonstrated that it has a legitimate right to appeal, as it has not demonstrated that its development applications were valid and effective at the time the Sustainable Planning Act 2009 was repealed. 
  2. [141]
    Further, and in any event, an assessment of the merits of the development applications does not justify their approval.
  3. [142]
    The development applications should be refused, and the appeals should be dismissed.

Footnotes

[1]Pursuant to 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 391 of 2018 and Appeal No 393 of 2018.  I have addressed the issues in those appeals in Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 6 and Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 7.

[2]See Written Submissions on behalf of the Appellant dated 16 September 2020, [24].

[3]See Further submissions dated 2 November 2020.

[4]See s 764 of the Sustainable Planning Act 2009.

[5]See s 802(5) of the Sustainable Planning Act 2009.

[6]See s 3.1.9 of the Integrated Planning Act 1997.

[7]The significance of some of these requirements is highlighted by several appellate court decisions, including that of the High Court in Chang & Anor v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 and decisions of the Court of Appeal in Chang & Anor v Laidley Shire Council [2006] QCA 172; (2006) 146 LGERA 283, Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538; Gold Coast City Council v Fawkes Pty Ltd & Ors [2007] QCA 444; [2008] 2 Qd R 1; Barro Group Pty Limited v Redland Shire Council [2009] QCA 310; [2010] 2 Qd R 206; Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2009] QCA 400; [2011] 1 Qd R 226.  As is apparent from those decisions, without a valid acknowledgment notice, the impact assessment process can go no further and cannot give rise to a valid deemed refusal appeal.  Further, where an assessment manager makes a decision before the decision stage starts, that decision is susceptible to being set aside.  See Queensland Investment Corporation & Anor v Gold Coast City Council & Anor [2001] QPELR 83, 85 [11]; Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors [2003] QPEC 63; [2004] QPELR 308.

[8]The decision making period could be extended by the assessment manager giving notice, on one occasion only and prior to the end of the decision making period, of its unilateral decision to extend the period by up to 20 business days.  It could be further extended by written agreement from the applicant, which agreement was to be provided prior to the end of the decision making period.  The Integrated Planning Act 1997 also permitted the decision making period to be suspended for a period of not more than three months to allow an applicant the opportunity to make representations about responses received from referral agencies.  See s 3.5.7(2), (3) and (4) of the Integrated Planning Act 1997.

[9]Under s 4.1.27(3) of the Integrated Planning Act 1997, Traspunt was entitled to commence its appeal at any time after the last day a decision of its applications should have been made.

[10]Pursuant to s 1.3.1 and schedule 10 of the Integrated Planning Act 1997, a “deemed refusal” was relevantly defined as:

“for a proceeding under chapter 4, part 1 or 2, means a refusal that is taken to have happened if a

decision is not made–

(a) for a development application–by the end of the decision making period (including any

extension of the decision making period)”.

[11]The Council submits that, while the evidence is silent on the point, with the long lapse between the year of application (2009) and the year of the appeal (2018), Traspunt had a right to appeal against a deemed refusal immediately before the Planning Act 2016 commenced.  It is unclear whether the Council had turned its mind to whether the development applications were properly made and/or whether they had lapsed. 

[12]See the definition of the “old Act” in s 285(1) of the Planning Act 2016.  This is conceded by Traspunt – see Written Submissions on behalf of the Appellant dated 16 September 2020, [16].

[13]Traspunt also acknowledges that there is no provision that served to treat the applications lodged under the Integrated Planning Act 1997 as ones made under the Sustainable Planning Act 2009.  To the contrary, s 802 and s 807 of the Sustainable Planning Act 2009 are to the opposite effect. See Written Submissions on behalf of the Appellant dated 16 September 2020, [16].

[14]The right to make the development applications under the Integrated Planning Act 1997 and the Sustainable Planning Act 2009 for a development approval, the grant of which is in the discretion of the assessment manager, does not confer a right to have the application continued and completed under the statute in its original form, notwithstanding its amendment or repeal:  See Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 and Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138.

[15][2018] QPEC 21; [2018] QPELR 763.

[16][2018] QPEC 21; [2018] QPELR 763.

[17][2018] QPEC 21; [2018] QPELR 763.

[18]See s 819 of the Sustainable Planning Act 2009.

[19]Explanatory Notes for the Planning Bill 2015, clause 308.  Clause 308 of the Planning Bill 2015 became s 11 of the Planning Act 2016.

[20]South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667, 675.

[21]This is the first provision in chapter 8, part 1 of the Planning Act 2016.  The part has the heading “Transitional provisions for repeal of Sustainable Planning Act 2009”.

[22]This is a material difference to the circumstances in Jakel Pty Ltd v Brisbane City Council & Anor [2018] QPEC 21; [2018] QPELR 763.

[23]This is not established by the evidence.  See paragraphs [13] and [14] above.

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

[25]See schedule 1, table 1, item 1 of the Planning Act 2016.

[26]Schedule 2 of the Planning Act 2016 defines “development application” as an application for a development approval. 

[27]Development approval” is defined, by reference to s 49 of the Planning Act 2016, as including a development permit.

[28]Although the development permit was not in effect when the Sustainable Planning Act 2009 was appealed, it is apparent from s 802(7) of the Sustainable Planning Act 2009 and s 286 of the Planning Act 2016 that had the development applications been approved, the resultant development permit would have been treated as a development approval under both the Sustainable Planning Act 2009 and the Planning Act 2016.

[29]Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162; Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138.

[30]Section 288 of the Planning Act 2016 operates to fix that period by reference to the Sustainable Planning Act 2009.

[31]This period would have been fixed by reference to the Integrated Planning Act 1997 had s 802 of the Sustainable Planning Act 2009 not been repealed.

[32]Contrast this with the situation for proceedings commenced under the Sustainable Planning Act 2009 but not ended before the repeal of that Act.  For that class of “thing”, s 311(2)(a) of the Planning Act 2016 is the “applied provision” that provides operation to s 285(2)(b) of the Planning Act 2016.

[33]The Council does not oppose appropriate excusatory relief being granted by this Court, such that the present proceedings can be properly determined on the merits, in the event that it is held that a deemed refusal is the only valid appeal right open to Traspunt.

[34]See, for example, Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162; Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 2 Qd R 138.

[35]Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430, 440; Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161, 175, 178, 185, 194, citing Colonial Sugar Refining Co Ltd v Irving (1905) AC 369.  See also Holts Hill Quarries Pty Ltd v Gold Coast City Council [1999] QCA 510; (1999) 106 LGERA 185, 188 [5].

[36]See s 4 of the Acts Interpretation Act 1954.

[37][2014] HCA 18; (2014) 254 CLR 1, 22 [52].

[38]This was a course that the Council did not oppose.  See Transcript of proceedings 17 September 2020, p 6-20.

[39]See s 819(5) and s 819(6) of the Sustainable Planning Act 2009.  Any rights to appeal, to the extent they exist, were accrued under these provisions.

[40]Integrated Planning Act 1997, s 4.1.52.

[41]See s 5.1.1 2) C) and Table 5.1.2 of the Planning Scheme, which identifies code assessment as the assessment category for reconfiguring a lot and identifies the Natural Features or Resources Overlay Code as the “relevant assessment criteria” for an application for reconfiguring a lot.  Table 4.1.2 identifies impact assessment as the assessment category for reconfiguring a lot in the Low Density Residential Zone Preferred Use Area 1.  It nominates additional relevant assessment criteria as including the Reconfiguring a Lot Code, the Low Density Residential Zone Code, and the Citywide Code.  Section 2.5(3) provides that if development is identified as having a different assessment category under a zone than under an overlay, the higher assessment category applies, with impact assessment prevailing over code assessment.

[42]Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23].

[43]Sustainable Planning Act 2009, Schedule 3.

[44]Gold Coast City Council v K&K (GC) Pty Ltd [2019] QCA 132; [2020] QPELR 631, 640 [37] citing Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 246 CLR 379, 400-1 [42].

[45][2018] QCA 84.

[46][2019] QCA 132; [2020] QPELR 631.

[47][2020] QCA 41.

[48]Although those decisions related to the regime under the Sustainable Planning Act 2009, not the Integrated Planning Act 1997, the regime was similarly one that required a development application to be refused if it would result in conflict with the planning scheme and there were not sufficient grounds to justify approval despite the conflict.

[49]Integrated Planning Act 1997, s 4.1.50.

[50]The Council no longer contends that there are stormwater or bushfire issues that warrant refusal of the proposed development.

[51]In oral submissions, Traspunt submitted that this position was “unambiguous” but could not answer whether there was a right to construct boundary fences and undertake consequential clearing.

[52]This is accepted development.  See s 44(5) of the Planning Act 2016, s 18 and schedule 7, part 3, item 12 of the Planning Regulation 2017, the definition of “accepted development vegetation clearing code” in schedule 24 of the Planning Regulation 2017, s 19O of the Vegetation Management Act 1999 (Qld), and Accepted development vegetation clearing code: Clearing for infrastructure effective 7 February 2020, which permits clearing for a boundary fence if the fence is necessary, clearing is minimised and the clearing does not exceed ten metres in width on the landholder’s side of the property boundary or involve the widening of an existing cleared area on the landholder’s side of the property boundary to more than ten metres in width.  The 2016 Planning Scheme further limits the extent of accepted development, as it regulates clearing of native vegetation unless the clearing of native vegetation is reasonably necessary to construct and maintain a property boundary fence and the clearing does not exceed four metres in width either side of the fence where the land is in the Environmental Management and Conservation Zone.  Reading Table 5.8.1 together with the note to the Environmental Overlay in Table 6.2.4.1 – Assessable development – Environmental management and conservation zone in the 2016 Planning Scheme, it seems that clearing that is greater than four metres from the property boundary would be assessable development as it would be “clearing vegetation, not associated with a material change of use or reconfiguring a lot”.  The process for identifying the category of development is explained in s 5.3 of the 2016 Planning Scheme.

[53]See Table 5.5.4.1.

[54]Schedule 6, part 2, item 2 of the Planning Regulation 2017.

[55]Community residence” is defined in schedule 24 of the Planning Regulation 2017 as follows:

“(a) means the use of premises for residential accommodation for–

(i) no more than–

(A) 6 children, if the accommodation is provided as part of a program or

service under the Youth Justice Act 1992; or

(B) 6 persons who require assistance or support with daily living needs; and

(ii) no more than 1 support worker; and

(b) includes a building or structure that is reasonably associated with the use in paragraph (a).”

[56]Schedule 6, part 2, item 6 of the Planning Regulation 2017.

[57]Fogg, Land Development Law in Queensland (The Law Book Company Limited, 1987) 463.  Although Professor Fogg was addressing an earlier planning regime, his observations remain apt.

[58]See also the decisions of the Full Court of the Supreme Court in R v Brisbane City Council (1962) 7 LGRA 316, 334-40 per Wanstall J, and that of the Planning and Environment Court in Terton Corporation Pty Ltd v Gold Coast City Council [2003] QPEC 60; [2004] QPELR 260, particularly at 266 [12] per Robin QC DCJ and Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4; [2008] QPELR 464, particularly at 466 [5]-[6] per Wilson SC DCJ.  Those cases support an approach that considers the intended use, rather than an approach that limits the considerations to the “lines on the plan” and potential additional ownership alone.

[59]See the definition of “common material” in schedule 10 of the Integrated Planning Act 1997 and s 3.2.1 of the Integrated Planning Act 1997.

[60]The report also forms part of the common material.

[61]See s 5.1.5 2) A).

[62]See s 3.1 3) E).

[63]See s 3.1 3) F).

[64]See s 3.1 3) L).

[65]Jedfire Pty Ltd v Council of the City of Logan and White [1994] QPEC 47; [1996] QPLR 41, 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, 510.

[66]Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 94-5 [52] – [56].

[67][2021] QPEC 6.

[68][2021] QPEC 7.

[69]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.

[70]See exhibit 16.2, which indicates that an area in the order of 16 per cent of RE12.5.3a would be lost if all of the vegetation on the subject land was removed.

[71]Transcript of proceedings 3 September 2020, p 3-15.

[72][2015] QPEC 49; [2015] QPELR 972, 988-9.  The evidence of Mr Moffit in this regard was accepted by the Court at [108] and [115] and this finding was not overturned in the subsequent Court of Appeal proceeding, being Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51; [2020] QPELR 590.

[73]If I am wrong about the applicable legislative regime, and the regime to be applied is the more flexible regime under the Planning Act 2016, I am nevertheless of the view that the non-compliance is such that it warrants refusal of the proposed development.

[74]See s 9.4.1.4.1 2. b.

[75][2007] QPEC 112; [2008] QPELR 342, 348-9 [40].

Close

Editorial Notes

  • Published Case Name:

    Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3)

  • Shortened Case Name:

    Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3)

  • MNC:

    [2021] QPEC 8

  • 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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