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  4. Roseingrave v Brisbane City Council (No. 2) - [2022] QPEC 43

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Roseingrave v Brisbane City Council (No. 2)[2022] QPEC 43

Roseingrave v Brisbane City Council (No. 2)[2022] QPEC 43

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Roseingrave & Anor v Brisbane City Council & Anor (No. 2) [2022] QPEC 43

PARTIES:

JEROME JOSEPH ROSEINGRAVE AND NANCY CASTILLO

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

And

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(Co-Respondent by Election)

FILE NO/S:

601/2020

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 24, 25 March, 4-5 May and 12 August 2022

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION FOR APPROVAL TO RECONFIGURE 1 LOT INTO 5 – where land was in the Emerging Community Zone and a Potential Development Area – where development would involve access onto a state controlled road and clearing of the majority of mature trees on the site – where Planning Scheme amended after development application made so as to substantially increase the extent to which the vegetation is covered by biodiversity overlay designations – whether the proposal access would have inadequate sight distance – whether dwellings on the proposed lots would be exposed to undue bushfire hazard – whether the development would have an undue ecological impact – what, if any, weight ought be given to the Planning Scheme amendments

CASES:

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

Brisbane City Council v Klinkert [2019] QCA 40

Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117

Edwards & Alexander v Gold Coast City Council & Anor [2005] QPELR 226

Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37 at [12]

Klinkert v Brisbane City Council [2018] QPEC 30

Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPEC 26

Roseingrave & anor v Brisbane City Council & anor [2021] QPEC 76

LEGISLATION:

Integrated Planning Act 1997

Planning Act 2016 ss 29, 45, 60

Planning and Environment Court Act 2016 ss 43, 45, 46, 47

Transport Infrastructure Act 1994

COUNSEL:

A Skoein for the appellants

N Loos with G Kiss for the respondent

K Buckley for the co-respondent by election

SOLICITORS:

O'Shea Lawyers for the appellants

City Legal for the respondent

McCullough Robertson for the co-respondent by election

Table of Contents

Introduction

4

The Site and the Proposal

5

The Issues

5

Safety of the Access

7

  1. (i)
    the ‘temporary’ access and the appropriate standard

7

  1. (ii)
    the position of the co-respondent by election and of Mr Williams

10

  1. (iii)
    the sight distance

12

Bushfire

16

Ecology

21

Relevant Matters

44

Conclusion

44

Introduction

  1. [1]
    This appeal is against the respondent’s refusal of a development application seeking a development approval to reconfigure a site (the site) of approximately one hectare in area and located at 155 Old Northern Road, Everton Park from one lot into five lots.  The co-respondent by election was a referral agency because Old Northern Road is a State controlled arterial road. 
  2. [2]
    The development application was subject to impact assessment.  Such assessment;[1]
    1. (a)
      must be carried out:
      1. against the relevant assessment benchmarks; and
      2. having regard to any matters prescribed by regulation;
    2. (b)
      may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise; and
    3. (c)
      when carried out against a statutory instrument or other document applied, adopted or incorporated therein, must be carried out against the statutory instrument or document as in effect when the application was properly made, although the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to any amendment or replacement made before the assessment manager decides the application.
  3. [3]
    There is a broad discretion, conferred by s 60(3) of the Planning Act 2016 (PA), in relation to deciding a development application that requires impact assessment.  It is for the decision-maker to weigh and balance the factors to which consideration may be given.[2]
  4. [4]
    It is for the appellant to establish that this appeal ought be upheld.[3]  The appeal proceeds by way of hearing anew.[4]  Section 45 of the PA applies as if the Court were the assessment manager.[5]  In deciding the appeal the Court must confirm the respondent’s decision, change it or set it aside and make a decision replacing it or returning the matter to the entity that made the decision (here the respondent) with directions the Court considers appropriate.[6]

The site and the proposal

  1. [5]
    The site sits between two neighbourhoods being a neighbourhood centred around Flockton Street, Everton Park (to the south), predominantly developed during the 1970s, and the Keona Road neighbourhood within McDowall (to the north and east), which has been progressively developed for dwelling houses and multiple dwellings over the past three decades.[7]  Downfall Creek, which is on the southern side of the site (and crosses into the site towards its eastern end), forms something of a natural border between the two areas.
  2. [6]
    The site is sloped, generally from north to south.  It is currently improved with a single dwelling in the western part of the site (towards its road frontage).  There is a relatively dense tree cover over the central and eastern parts of the site.  The proposal involves:
    1. (i)
      the creation of a new access to Old Northern Road and the simultaneous closure of the existing road access;
    2. (ii)
      the provision of an internal road along part of the northern boundary of the site, to provide access to the new lots and a turnaround at its eastern end;
    3. (iii)
      the establishment of the new lots, which are to have designated building envelopes;
    4. (iv)
      clearing existing vegetation (including mature trees), over much of the site), and
    5. (v)
      the retention, compensatory planting and rehabilitation of vegetation in parts of the site, including in a 1500m2 rehabilitation area in the south-east corner (within proposed lot 5).

The issues

  1. [7]
    Pursuant to the respondent’s planning scheme (City Plan) the site is within the Emerging Community Zone, subject to the McDowall-Bridgeman Downs neighbourhood plan (NP) and is one of a number that is designated as falling within a Potential Development Area.[8]  There can be little doubt that, subject to dealing with constraints and, in particular, the specific matters raised in this appeal, the site is generally well located for residential development of the kind proposed, given its convenient access to urban services and facilities.  Such development would, I accept, add to the provision of housing in a way that makes more efficient use of the site and infrastructure.
  2. [8]
    The issues in dispute reference a large number of provisions of Version 9 of City Plan (being the version in effect when the development application was made) and Version 17.  Mercifully, counsel focussed on the substantive issues which underlay the consequential allegations of conflict/non-compliance with those provisions, rather than on the verbiage of each provision.  The submissions at the conclusion of the evidence did not descend to a provision by provision analysis and I was not invited to do so.[9]  I have however, been conscious of the assessment benchmarks.
  3. [9]
    The key substantive issues became whether the proposal would result in unacceptable:
    1. (i)
      traffic impacts, arising from inadequate sight distance associated with the proposed new access to Old Northern Road;
    2. (ii)
      bushfire hazard, and
    3. (iii)
      ecological impacts.[10]

The weight to be afforded to the provisions of Version 17 of City Plan was a relevant consideration in relation to bushfire hazard and ecological impacts. 

  1. [10]
    Other substantive issues, of a town planning nature, fell away.[11]  They related to integration with surrounding development, inconsistency with the character of the locality and with community expectations.  In that regard:
    1. (a)
      the proposal, by locating the internal road along the northern boundary makes provision for future potential integration with future potential residential development on the appropriately zoned land to the immediate north, if and when that occurs.  At that point the proposed access to Old Northern Road is to be closed and the internal road connected, through the then new adjoining development, to Keona Road.  In that sense the proposed new access is said to be “temporary”.  There is nothing more the appellant can do to achieve integration at this stage, given that a development approval granted by the respondent over other land to the east prevents a connection in that direction and there are no other realistic options;
    2. (b)
      Mr Perkins, the town planner called by the respondent, had a prematurity concern about the proposed development proceeding in advance of obtaining access in conjunction with development to the north.  That was however, a reflection of what he understood to be traffic engineering concerns in relation to the proposed Old Northern Road access (an issue considered separately).  He confirmed that his prematurity concern would fall away if the proposed access was found to be satisfactory,[12] and
    3. (c)
      character issues and reasonable expectations must be assessed in the context of the planning scheme provisions concerning the potential for development, subject to the resolution of constraints.  In the joint report of the town planners Mr Perkins had volunteered that “the identification of an appropriate balance between ecological protection and site development… would result in the resolution of local character issues.”[13]  Consistently with that he confirmed, in the course of cross-examination, that if the ecological issues and bushfire issues were resolved in favour of the appellant, there would be no residual character issue upon which the development application ought be refused.[14]  The same could be said in relation to reasonable expectations.

Safety of the access

  1. (i)
    The “temporary” access and the appropriate standard
  1. [11]
    It has already been noted that the proposal involves a proposed new access to Old Northern Road in lieu of the existing access.  The only issue with respect to that access relates to the adequacy of the sight distance.  It might be observed that it is common ground that the proposed new access is superior to the unsatisfactory existing access, although the proposed access would be used to service a larger number of lots, by reason of the proposed reconfiguration.
  2. [12]
    The access was put forward as “temporary”, in contemplation of it being closed when access to the north becomes available upon future subdivision of that land.  The co-respondent’s referral agency response sought to impose conditions upon what it described as the “temporary road access”, having satisfied itself that the location would not impact on the safety and efficiency of the road.[15]  At the same time it gave a decision notice, pursuant to the Transport Infrastructure Act, permitting the road access location.[16]
  3. [13]
    The traffic engineers engaged by the parties for the purposes of the appeal produced two joint reports.  In the second of those the adequacy of the sight distance for the new access was described as “marginal” and was the subject of further analysis.
  4. [14]
    As Mr Trevilyan (the traffic engineer retained by the respondent) and Mr Williams (the traffic engineer retained by the co-respondent by election) observed, in the second joint report,[17] sound traffic engineering principles dictate that, generally speaking, a driveway access or residential cul-de-sac should not be provided directly to an arterial road such as Old Northern Road.  Accordingly, direct access is not desirable.  They also recognised however, that such an access is not necessarily precluded.  They considered that such an access could be considered in this instance because of a combination of factors, being the absence, at this stage, of a lower order road alternative, the existing substandard access that would be removed by the proposed new access, the intention for the new access to be temporary and the plausibility of the northern access ultimately becoming available.[18]  I accept that.
  5. [15]
    Mr Trevilyan and Mr Williams considered that, in order to assess the acceptability of the sight distance, the preferable reference document was the Austroads intersection design standards but that, in the circumstances of this case, the “more relaxed” Australian Standard for Off-Street Car Parking (AS2890) could reasonably be adopted.[19]  It was that standard that became the focus of attention and debate.
  6. [16]
    Ms Meehan (the traffic engineer retained by the appellants) expressed the view that appropriate sight-lines are available for the five lot proposal.[20]  There was however, no agreement to that in the second joint report.  Attention then turned to the reduced requirements in AS2890 for domestic property access, which is defined by reference to a property comprising three or less domestic units.  That led to agreement, in the second joint report, that the temporary access was acceptable for three lots, with the remaining two being achieved when the northern access becomes available.[21]
  7. [17]
    Having regard to what the traffic engineers could agree upon, the appellants made an application for the Court to consider, as a minor change, a change to its development application in order for the development to be staged, with the first three lots, being Stage 1, reliant on the temporary access and Stage 2 being reliant on the achievement of the northern access.  In the course of dismissing that application[22] observations were made about the lack of certainty in relation to the northern access.  Subsequently, the appellants decided to proceed to the hearing of this appeal on the basis of their (unstaged) five lot proposal.  During the hearing they sought to rely on a slightly amended access arrangement.  The change was quite minor and raises no issue upon which I need to remark.
  8. [18]
    I accept that there is an intention for the proposed access be temporary, in the way described.  I accept that the proposal has been designed to facilitate that outcome.  I also accept that there is a realistic prospect that the intended outcome will ultimately be achieved.  I also accept that it is appropriate, in the circumstances, to adopt the “more relaxed” standards in AS2890 as the reference in considering the acceptability of the proposed access.  There is however, no certainty about the realisation of the northern access or about the time when it will be realised.  The proposed access would be used for an indeterminate period of time.  The acceptability of the proposed access should be assessed with that in mind.
  1. (ii)
    The position of the co-respondent by election and of Mr Williams
  1. [19]
    The attitude of the co-respondent by election to the appeal and, indeed, whether Mr  Williams was to be called at the hearing, were matters that were not clear at the commencement of the hearing.  Counsel did not appear for the co-respondent by election at that time.  Counsel did appear however, on the second day of the hearing and informed the Court that the co-respondent by election would seek the imposition of specific conditions on any approval and would call Mr Williams to give evidence, but would not actively contend for approval or refusal of the development application.[23]
  2. [20]
    The co-respondent by election’s amended conditions were provided to Mr Williams, who then prepared an individual statement of evidence.[24]  In that document he expressed the view that “notwithstanding the views expressed in JER2, I do not consider the proposed development (being five lots) ought be refused on the basis of sight distance provisions” and he supported a condition (Condition 7) now proposed by the co- respondent by election.  He expressed the view that, whilst limiting access to three lots would be the “most appropriate” traffic engineering outcome, the five lot proposal should not be refused due to sight distance provisions alone.[25] 
  3. [21]
    It would seem that the impetus for Mr Williams to consider, or to reconsider, his position was being provided with the updated set of conditions formulated by the co-respondent by election who, as has been noted, adopted the position of not actively opposing the development application.  The attitude of his client should, of course, have been of no consequence to Mr Williams in relation to the content of his evidence if he nevertheless maintained the view that the five lot proposal was unacceptable from a traffic engineering perspective.  Mr Williams is an experienced expert witness, well versed in the role and duties of those who give evidence as experts.
  4. [22]
    Unsurprisingly, the apparent modification of Mr Williams’ opinion was the subject of cross-examination by counsel for the respondent.  In the first joint report Mr  Williams had made it clear that the advice provided to the co-respondent by election as part of the decision-making process on the development application was not provided by him or his business.[26]  Further, it was, at that stage, his view that insufficient detailed assessment had been undertaken to demonstrate that the access could be provided in a manner that did not compromise the safety of users of the access and the State-controlled road network.[27]  In the second joint report he said as follows:

“46 SW notes that while not the ideal outcome for a State-controlled road that is an arterial road in the hierarchy, he accepts that the sight distance available at the site access as demonstrated by the long sections provided would strictly comply with the requirements of AS2890 and consequently the RPDM 2nd edition for up to three (3) residential dwellings.”

He went on to concur with the view that the proposed access was acceptable for three lots, with the balance two lots being achieved when the northern link was implemented.

  1. [23]
    In the course of cross-examination Mr Williams sought to characterise what he had said in the second joint report as expressing a preference for the three lots as the best option, without advocating for a refusal of the five lots.[28]  He sought to explain his apparent change of position by saying that, in the second joint report, he should have been “more definitive” on whether it (the 5 lot proposal) was a case of refusal.[29]  He sought to explain that it was when he was provided with the co-respondent by election’s amended conditions and asked consider the matter, knowing that the staged approval was no longer an option, that he questioned whether using the access for five lots was a refusal point.[30]  He now thinks that it is “on the margins”,[31] but that it does not warrant refusal.  He seems to have been influenced, in that regard, by the magnitude of the difference between 3 and 5 lots.[32]  Mr Williams accepted that what he said in the second joint report and his statement of evidence “might read as a change of view”, but added “I just don’t know I necessarily agree with that”.[33]  At least at one point however, he acknowledged a shift to a less conservative approach.[34] 
  2. [24]
    Mr Williams’ explanation is difficult to fully accept.  He is, as I have noted, an experienced expert witness.  The need for clarity in expressing opinions in a joint report would not be lost on him.  There is no indication, in the second joint report, that he regarded anything in excess of 3 dwellings as acceptable for use of the “temporary access” from Old Northern Road.  If he thought that limiting development to three dwellings in advance of the northern access becoming available was best, but that five did not, or might not, warrant refusal, then it is difficult to see why he would not have said so.  That is particularly the case given that the expert retained by the appellants, Ms Meehan, in the same joint report, although joining with the others in endorsing the staged approach, did so subject to expressing her view that the appropriate sight-lines were achievable for the five lot proposal in any event.  Further, the same report recorded that there was no agreement to her position in that regard.[35]  It seemed to me that Mr Williams was, at least to some extent, seeking to avoid the fact that his evidence was, in truth, a modification of his earlier, more conservative, approach.  This left me somewhat reluctant to place great weight upon his evidence, although I have considered the content of what he said.
  1. (iii)
    The sight distance
  1. [25]
    The difference in the opinions about whether the sight distance is acceptable involves a debate about the application of AS2890.  The standard has different requirements for access to properties with three or fewer units (domestic properties) and those giving access to a greater number.  The five lot proposal falls into the latter category.  For those there are two criteria, namely the desirable five second gap distance and the minimum stopping site distance (SSD).  The former relates to the ability for a driver, on the access, to make a sound decision as to the available gap in the traffic stream.  The latter relates to a vehicle in the traffic stream having a sufficient distance to brake in order to stop without colliding with a stationery object. 
  2. [26]
    The appropriate sight distance varies with the speed environment.  The relevant table in AS2890 specifies sight distances for various speeds in increments of 10 kilometres per hour.  The speed to adopt is said to be the “posted or general speed” unless the 85th percentile speed is more than five kilometres above the limit, in which case the nearest tabulated speed is used.[36]  The relevant section of Old Northern Road has a speed limit of 60 kilometres per hour, but the 85th percentile speed is 67 kilometres per hour, which suggests adoption of the sight distances in the table for 70 kilometres per hour.  Those are 97 metres for the desirable five second gap and 85 metres for the SSD.
  3. [27]
    The sight distance available from the proposed access only just fails to achieve the desirable five second gap for a 70 kilometre per hour speed environment.  As Ms  Meehan pointed out however, the values in the table are derived from calculations for which the design speed is an input.  It is therefore, by calculation, possible to interpolate the appropriate sight distance for a 67 kilometre per hour speed environment, in order to achieve the desirable five second gap.  The proposed access achieves that. 
  4. [28]
    Mr Trevilyan objected to departing from adoption of the nearest speed provided for in the table, but I accept that the interpolation carried out by Ms Meehan, whilst not a methodology provided for the in the AS2890, demonstrates that the desirable five second gap would in fact be achieved in the prevailing speed environment.  In the course of cross-examination,[37] Mr Trevilyan conceded that the five second gap will be provided in absolute terms.  In those circumstances I accept that the sight distance is adequate in terms of the five second gap.
  5. [29]
    The minimum SSD for a 70 kilometre per hour speed environment is 85 metres.  There is no difficulty with that being available if it is assumed that the concern is for a vehicle on Old Northern Road having a sufficient distance to stop in order to avoid collision with a vehicle that, having used the proposed access, has stalled or come to a stop or is moving too slowly into the carriageway of Old Northern Road (both are measured at 1.15 metres above ground level).  This, as Ms Meehan pointed out, would appear to be the scenario of relevance to a driveway access.  The available sight distance is comfortably in excess of the 85 metres required for 70 km/hr.[38]
  6. [30]
    Mr Trevilyan contended that:
    1. (i)
      there ought be an allowance for a downfall grade correction, to reflect the fact that a vehicle travelling along Old Northern Road will decelerate more slowly because of the downgrade in this part of the road; and
    2. (ii)
      the stationery object in Old Northern Road should be assumed to be at a height of 0.2 metres, rather than 1.15 metres.
  7. [31]
    Mr Williams had, in the second joint report, made similar observations, but in his individual statement expressed the view that an approach which applied no specific downhill grade correction and adopted an object height of the top of a vehicle (which would be in excess of 1.15 metres) could be considered reasonable in the circumstances.[39]
  8. [32]
    AS2890 does not call for any downhill grade correction to be made.  Mr Trevilyan sought to make something of Ms Meehan’s preparedness to go beyond the terms of AS2890 to interpolate the desirable five second gap sight distance between the nominated speed increments on the one hand and her reliance on not having to go beyond AS2890 in order to make a downhill grade correction on the other.  It is however, one thing to interpolate between figures provided in the standard, but quite another thing to say that distances specified in AS2890 should be adjusted for factors which go beyond those for which the standard requires any adjustment. 
  9. [33]
    In the course of cross-examination however, it emerged that, whilst she did not consider that she needed to (a point with which I agree), Ms Meehan had done some of her own check calculations.  The calculations varied depending upon the assumed co-efficient of deceleration and the assumed reaction time of the driver.  Mr Williams explained that the sight distance in AS2890 for a driveway for up to 3 lots (domestic property) is derived from calculations using a 1.5 second reaction time and a 0.46 co-efficient of deceleration time.[40]  Ms Meehan’s calculation using a 1.5 second reaction time and a 0.36 co-efficient of deceleration (i.e. slower deceleration) produced an SSD of 88.3 metres,[41] which is only fractionally more than stipulated in AS2890 for 70 km/hr and would be available in relation to the proposed access.  I note that, in his statement of evidence, Mr Williams said that adopting a reaction time of 1.5 seconds could be considered reasonable in the circumstances.[42]  I am, in the circumstances, satisfied that there would be an appropriate SSD for the scenario where the object height is 1.15m.
  10. [34]
    In so far as the object height is concerned, AS2890 makes no reference to the adoption of a 0.2 metre height.  The only reference to height is in Note 7 to the Table which provides as follows:

“When checking sight distance the driver’s eye height and the height of the object (approaching vehicle) are to be taken as 1.15 metres above the road surface.”

  1. [35]
    The contention that a height of 0.2 metres should be used for the object height relies on the following propositions:
    1. (i)
      the note is not apt to deal with the calculation of SSD;
    2. (ii)
      resort should instead be had to the object height adopted in Austroads which is 0.2 metres and allows for an item, such as a toolbox, which may have fallen from the vehicle and come to rest within the carriageway.
  2. [36]
    As Ms Meehan pointed out, it should not readily be assumed that the object height from Austroads is to be applied in AS2890, having regard to the fact that Austroads is concerned with the design of intersections and roads rather than driveways.[43]  That the proposed access does not provide for the SSD nominated in AS2890 if it is measured by reference by an object of 0.2  metres in height, does not cause me to conclude that the sight distance is unacceptable.  In that regard:
    1. (i)
      AS2890 does not stipulate an object height of 0.2 metres;
    2. (ii)
      Note 7 is not expressly limited to the calculation of the desirable five-second gap.  It is concerned with the height of the two things between which the sight distance is to be measured in order to compare with the criteria.  It was submitted for the appellants that the single note can be used to inform the measurement of the distance shown in the diagram in the standard as “Y” and then used for the purposes of checking the criteria for both the desirable five second gap and SSD.  When asked about that submission, counsel for the respondent responded that “I am not seriously arguing against that.”[44]
    3. (iii)
      as Ms Meehan pointed out[45] and Mr Trevilyan accepted in the course of cross-examination,[46] the scenario of the object being a vehicle which has used the access represents the most likely need for a driver on Old Northern Road to have to make use of the SSD in relation to the proposed access;
    4. (iv)
      as Ms Meehan pointed out[47] and Mr Trevilyan also accepted,[48] the “toolbox” scenario is a relatively unlikely event in relation to the proposed access, and
    5. (v)
      as Ms Meehan also pointed out in her statement of evidence,[49] the “toolbox” scenario would, even if it eventuated and resulted in a collision, cause only a low severity property damage incident, having regard to the time the driver would have, in any event, to observe the object and reduce speed prior to any collision.
  3. [37]
    In the circumstances and for the reasons given, I am satisfied that the sight distance is acceptable and the proposed access will not result in unacceptable traffic impacts.  The access is acceptable, subject to the imposition of conditions.  The assessment benchmarks that would cause me to refuse the development application on traffic grounds, having regard to my findings. 

Bushfire

  1. [38]
    The extent to which dwellings constructed on the proposed new lots would be exposed to an undue risk by reason of bushfire was the subject of expert evidence from Mr  Siddle (called by the appellants) and Mr Clowes (called by the respondent).  The two experts differed in relation to the outcome of the bushfire assessment and what that meant for the development of the site.  Mr Siddle’s conclusion was positive for the proposal.  Mr Clowes concluded that, if any subdivision were to proceed, asset protection zones would be required that would make proposed lots 4 and 5 impractical if not impossible to develop for dwelling houses and affect vegetation within the site.[50]  Mr Siddle does not consider that there is a need for asset protection zones.
  2. [39]
    The difference between the experts in relation to the need for asset protection zones stems from their different hazard assessments.  Mr Siddle assessed the risk as low such that, consistently with the Bushfire Overlay code,[51] no further assessment was required.  Mr Clowes, on the other hand, concluded that the risk was at the low end of medium.[52]
  3. [40]
    It should be noted that there is no suggestion of a high bushfire risk in this instance.  As Mr Clowes acknowledged in the joint report,[53] any fires within the landscape are likely to be affected by the small size of the patch of bushland and the fact that the bushland is separated from other bushland prone areas by urban development.  As such, fires which establish and burn within these environments would tend to be of lower intensity and scale.
  4. [41]
    The difference in relation to the bushfire hazard assessment turns on what was assumed in relation to potentially hazardous vegetation.  Mr Siddle took into account vegetation proposed to be retained or rehabilitated as a consequence of the proposal, and existing vegetation beyond the site and other sites in respect of which there is an existing commitment (such as a condition of an approval) to establish or rehabilitate vegetation.[54]  Had Mr Clowes carried out his assessment on that basis then he would have reached the same conclusion as Mr Siddle.[55]  Mr Clowes came to a different conclusion because, in addition to that vegetation, he also assumed revegetation of all other land now included within the Biodiversity Areas Overlay or the Waterway Corridors Overlay under City Plan.[56]  Mr Siddle confirmed that Mr Clowes’ conclusion is correct if that further area is assumed to be revegetated to its mature state.[57]
  5. [42]
    The Bushfire Overlay Code is supported by the Bushfire Planning Scheme Policy.  At the time the development application was made, it provided as follows in relation to the assumptions for assessing bushfire risk:[58]

“6 assumptions for assessing bushfire risk

For most types of development, bushfire risk is assessed based on the vegetation existing on and in proximity to the site.  However if reconfiguring a lot, the level of bushfire hazard should be assessed as if the vegetation in that area, including any areas designated for revegetation, has reached its mature state.”

  1. [43]
    I do not consider that an area was “designated for revegetation” for the purposes of the policy simply because it fell within a biodiversity or waterway corridor overlay.  It should also be remembered that the vegetation mapped in the overlays at the time the development application was made was not as extensive as that now mapped (which is what Mr Clowes relied on).  The weight to be given to the amended mapping in the context of the ecological issues is discussed later.  Mr Clowes’ approach however, relies not just on the change to the Biodiversity Areas Overlay mapping, but also on a change to the policy.  That Mr Siddle’s approach is consistent with the policy that was in force at the time that the development application was made is a significant consideration.
  2. [44]
    The State publishes a Technical Reference Guide (Bushfire Resilient Communities) for State Planning Policy State Interests “Natural Hazards, Risk and Resilience – Bushfire”.  It sets out the procedure for undertaking a hazard assessment.  In so far as the identification of vegetation hazard is concerned, it provides, in part, as follows[59] (underlining added):
  • “In the short term, current development approvals that permit clearing but are not acted upon (in whole or in part) tend to maintain or increase levels of hazard within the landscape.  As such, where there is land within the site assessment area in this circumstances, the vegetation is to be mapped and classified according to its current extent.
  • Conversely, where areas of revegetation are proposed, or current development approvals require revegetation of cleared areas to achieve environmental outcomes, an increase hazard within he landscape, not apparent during the initial stages of development can occur.  Where there is land within the site assessment area in this circumstance, the vegetation is to be mapped according to the approved revegetation extent and then classified as though the vegetation had reached its ‘remnant state’ including rules for patches and corridors of vegetation.”
  1. [45]
    As counsel for the respondent accepted in the course of oral submissions,[60] Mr Siddle’s approach is consistent with that.  The significance of the Bushfire Resilient Community Technical Assessment Guide is reflected in the point of agreement in the joint report of the experts that:[61]

“To the extent that there are inconsistencies in the way in which level of bushfire hazard is assessed between the Bushfire PSP, the Technical Assessment Guide – Bushfire Reporting and Bushfire Resilient Communities; Bushfire Resilient Communities is the appropriate method for assessing bushfire hazard in Queensland.”

  1. [46]
    In support of his approach, Mr Clowes called in aid the amended version of the Bushfire Planning Scheme Policy, which came into effect after the development application was made and which, in relation to the assumptions for assessing bushfire risk, provides as follows (underlining added):[62]

“6 assumptions for assessing bushfire risk

For most types of development, bushfire risk is generally assessed based on the vegetation existing on and in proximity to the site.  However, the potential impacts of future bushfire hazard must be assessed for any areas Council assumes are subject to revegetation or regrowth vegetation.  The level of bushfire hazard should be assessed as if the vegetation in that area, including any areas designated for revegetation or regrowth vegetation has reached its mature state.  Potential impacts are identified through consideration of the following:

  1. a development approval on the subject site;
  2. either a development approval or a development application in the decision-making stage, on an adjoining site;
  3. an overlay such as the biodiversity areas and waterway corridors overlays;
  4. a neighbourhood plan;
  5. an infrastructure agreement;
  6. natural area parks and corridor link parks along vegetated waterways;
  7. Habitat Brisbane, revegetation planting sites;
  8. any other public lands that are not intended to be managed in a low threat state.

Where insufficient detail is available to determine fuel loads, pre-clear vegetation committees are to be assumed.”

  1. [47]
    It should be noted that the policy does not say that all areas covered by the biodiversity areas and waterway corridors overlays, (whether in public or private ownership and whether vacant land or underdeveloped land in a zone where future development is envisaged, or land already developed consistent with its zoning, such as the church on the Community Facilities zoned land to the south) are to be assumed to be entirely revegetated to remnant status.  Rather, the overlays are amongst things that may be “considered” in identifying potential impacts in circumstances where hazard must be assessed for any areas the Council assumes are subject to revegetation or regrowth vegetation.[63] 
  2. [48]
    Counsel for the respondent, in the course of oral submissions, did not contend that the policy required a blind and invariable assumption that all land affected by an overlay is revegetated.  He conceded that the facts and circumstances of the land could be considered.[64]  Mr Clowes’ approach, to proceed on an assumption that all land covered by the overlays is wholly revegetated to its mature state, represents the most conservative possible approach to the application of the policy.  Counsel for the respondent acknowledged that it involved using “a blunt instrument”.[65]
  3. [49]
    The amended policy is one which the Court may give weight.  It should also be remembered that it is only a policy and, in the context of P01 of the Bushfire Overlay Code, referenced in the acceptable outcome.  Whilst I appreciate that it deserves serious consideration, particularly as it relates to the serious matter of bushfire risk, I am ultimately not prepared to give it or, more particularly, Mr Clowes’ conservative application of it, decisive weight, so as to refuse the development application.  It is not suggested, even on Mr Clowes’ approach, that this is a case where there would be a high level of risk.  The assessment carried out by Mr Siddle complied not only with the policy which existed at the time the development application was made, but is also consistent with the Bushfire Resilient Communities Technical Assessment Guide published by the State.  It is, in my view, acceptable in the particular circumstances of this case.  Whilst there is no need to rely on it, I note that counsel for the respondent acknowledged in the course of oral submissions, that future development of nearby land that involves revegetation would have to take into account the bushfire risk to any development on the subject site.[66]              In the circumstances the assessment benchmarks relating to bushfire risk would not cause me to refuse the development application. 

Ecology

  1. [50]
    Ecology was identified, in the respondent’s outline of submissions, as the key issue.[67]  It has already been noted that Downfall Creek lies on the southern side of the site, that the site itself is well vegetated, particularly in its central and eastern parts and that the proposal would involve clearing much of the site, but retention, compensatory planting and rehabilitation of vegetation in parts thereof.  There was a debate about the ecological value of the site, the likely impact of development upon that and the acceptability or otherwise of the impact.
  2. [51]
    The ecological assessment that accompanied the development application identified three vegetation communities across the site.  The first, towards the western end (the road frontage) consists of a native tree canopy over a disturbed and modified weedy under-story associated with the existing residence and driveway.  The second, across the central and eastern parts of the site, consists of a native canopy, consistent with regional ecosystem 12.11.5, with a combined native and weedy under-story.  The third is vegetation adjacent to Downfall Creek, which is dominated by an exotic grass specie.[68]
  3. [52]
    A survey of trees of over 150 millimetres DBH was conducted for trees on and close to the site.  233 trees were surveyed of which 159 were on the site.  As a consequence of the proposal in excess of 75% of the existing on-site surveyed trees would be lost[69] (even assuming the successful retention of those close to the internal road and building envelopes for which Dr Watson, the ecologist called by the respondent, held some concern[70]) which, as Mr Siddle (who also gave evidence as an ecologist) acknowledged,[71] represents a significant number of trees.  Dr Watson described the extent of tree retention as minimal.[72]
  4. [53]
    Whilst there are some trees to be retained elsewhere, the proposal focuses tree retention, within the site in the east.[73]  Further, it is proposed to establish:[74]
    1. (i)
      some compensatory plantings, particularly along the southern boundary; and
    2. (ii)
      a 1,500m² rehabilitation area at the south-eastern end of proposed lot 5.

In the course of the hearing the appellants volunteered that, with no prospect of a road connection to the east, proposed lot 5 could be re-arranged, with a shorter section of internal road, in order to incorporate a further 350m² of rehabilitation area in the north-eastern corner.[75]  That would permit the retention of a further 11 trees.  Based on the tree survey, four of those are dead, two are wattles and five are gum trees.[76]

  1. [54]
    Downfall Creek intrudes into the site at its south-eastern corner.  That part of the creek would fall within the rehabilitation area.  There is proposed to be a 15 metre corridor from the centreline of the waterway.  That corridor intrudes into lots 3, 4 and 5, but is clear of the building envelopes on those lots.[77] 
  2. [55]
    The appellants’ proposal is, from an ecological perspective, an attempt to respond to the provisions of City Plan current when the development application was made.  Under those provisions:
    1. (i)
      part of the site was mapped as subject to a waterway and a waterway corridor; and
    2. (ii)
      only the south-eastern corner of the site was mapped as within a biodiversity area, specifically within a High Ecological Significance subcategory designation pursuant to the Biodiversity Areas Overlay.
  3. [56]
    The waterway, as mapped in City Plan, intrudes into the site more significantly than is shown in the proposal plans.  A survey established that the mapping of the waterway (and, as a consequence, its corridor) in City Plan places the creek a little too far north.  Dr Watson acknowledged[78] that the mapping in City Plan requires correction in this respect.  The proposal also adopts a somewhat narrower (15m) corridor than is provided for in City Plan.  Accordingly, the proposal provides for the waterway and for a corridor but:
    1. (i)
      it is a corridor of reduced width; and
    2. (ii)
      the proposal does not adopt AO20.1 of the Waterway Overlays Code in that the proposal is to include a corridor within more than one lot.  The corresponding performance outcome requires the development to ensure that the waterway corridor provides for environmental connectivity along the water way.
  4. [57]
    The proposal therefore sought to respect the strategy for a waterway corridor associated with Downfall Creek, albeit in a way other than by the adoption of the acceptable outcome, whilst both preserving from development and rehabilitating part of the site, including that part falling within the High Environmental Significance designation on the Biodiversity Areas Overlay at the time the development application was made.
  5. [58]
    Mr Perkins drew attention to the proposal for the waterway corridor being within more than 1 lot.  In so far as it is to be included in proposed lots 3 and 4 as well as lot 5, there are only 2 additional lots and the extent of intrusion is limited.  Further, as Mr Cumming pointed out, easements could be conditioned to prohibit fencing so as to ensure connectivity remains.  It is not an issue which loomed large in the evidence of the ecologists.  I am satisfied that it is not a significant concern.
  6. [59]
    As Dr Watson acknowledged, the waterway, in its current form, has reduced ecological function.[79]  The ecologists agreed however, that opportunity exists to rehabilitate and reinstate the ecological values of the waterway and corridor.[80]  The appellants propose some rehabilitation.  The extent to which that provides for environmental connectivity is discussed later.
  7. [60]
    It should also be noted that there is some overlap between the waterway corridor and that part of the site shown as within the High Environmental Significance sub-category designation on the Biodiversity Areas Overlay pursuant to City Plan as it was when the development application was made and as subsequently amended.  It is that mapping which ultimately attracted the greater focus in this case.  Indeed, in the course of oral submissions, counsel for the respondent acknowledged[81] that the waterway is not a standalone issue upon which the respondent contends for refusal of the development application.  Its case focused more on the vegetation subject to the amendments to the Biodiversity Areas Overlay map.
  8. [61]
    The respondent conceded that the proposal complies with the Biodiversity Areas Overlay Code in force at the time the development application was made.[82]  The respondent contends however, that the Court ought nevertheless find the likely ecological impact of the proposal to be unacceptable and, in so finding, attach weight to the amendments to City Plan that came into force subsequently to the development application being made.
  9. [62]
    On 29 November 2019, prior to the respondent’s decision on the development application, Version 17 of City Plan came into effect.  That version incorporated major amendments package – B, Biodiversity and Associated Consequential Amendments which was said to:[83]
    1. (a)
      ensure that City Plan remains effective and up to date;
    2. (b)
      protect the City’s most important habitat and remnant bushland;
    3. (c)
      identify Brisbane’s main ecological corridors and incorporate significant koala habitat areas;
    4. (d)
      refine mapping of the biodiversity areas overlay;
    5. (e)
      incorporate Queensland Government mapping;
    6. (f)
      change the categories in the mapping; and
    7. (g)
      refine and amend biodiversity-related provisions of City Plan.
  10. [63]
    In so far as the subject site is concerned the Biodiversity Areas Overlay was amended such that a much greater proportion of the site was included within the High Ecological Significance sub-category designation, through the central and eastern portions of the site.  An area at the western extremity of the site was also included in the High Ecological Significance Strategic sub-category designation.  Only a relatively small proportion of the site remained free of any biodiversity overlay sub-category designation.  The boundaries of the mapping were generally consistent with State Government mapping.
  11. [64]
    That the development application complies with the Biodiversity Areas Overlay Code as in force at the time the application was made is a significant factor in favour of its approval.  Had the application been code assessable only as against that code then the point would have been decisive, because of the provisions of the PA that relate to code assessable development applications.
  12. [65]
    In Klinkert v Brisbane City Council[84] Williamson QC DCJ dealt with an appeal against the refusal of a code assessable development application for the demolition of a house.  His Honour said that, if he had been free to do so, he would have put decisive weight on the amendments that had come into force after the development application had been made and, as a consequence, would have dismissed the appeal.  His Honour concluded however, that the appeal should be allowed, because the proposal complied with the applicable code in force when the development application was made and because the development application was code assessable and the relevant provisions of the PA:
    1. (i)
      restrict code assessment to assessment only against the assessment benchmarks and having regard to any matters prescribed by regulation;[85] and
    2. (ii)
      require the application to be approved to the extent that it complies with all of the assessment benchmarks.[86]
  13. [66]
    His Honour’s decision was upheld on appeal to the Court of Appeal.[87]  The position in relation to impact assessable development applications however, is different because the PA does not place those constraints either on the assessment or the decision of such development applications.
  14. [67]
    Whilst the legislation does not provide guidance on how the decision-maker is to go about giving weight to the amended provisions, the existence of a discretion of this kind is not new.  The Court has, in the past, where appropriate, shown a willingness to place not insignificant weight on new provisions where there is a discretion to do so.  In Edwards & Alexander v Gold Coast City Council & Anor[88] Wilson SC DCJ (as he then was), in considering exercising the discretion that then existed under the Integrated Planning Act 1997 said (footnote omitted):[89]

“It might be thought that when the laws and policies of a planning scheme touching a particular parcel change it would be unusual, if not artificial, to give little weight or credence to the altered provisions.  In the past, this Court has acknowledged that in those circumstances the provisions of a new planning scheme may be entitled to considerable weight.  It is a reasonable presumption that planning schemes are evolutionary and that a later scheme would usually (but not necessarily) contain a more informed and timely understanding of all the relevant town planning issues.  Those considerations alone would ordinarily suggest a new planning scheme will attract not insignificant weight.  When, as here, the new scheme becomes effective in the course of deliberations about the proposed development relevant provisions of that new scheme must attract close attention and considerable weight.”

  1. [68]
    It will often be appropriate to give the applicant for development approval the benefit of giving full weight to amendments which are in the applicant’s favour, since those benefits could be obtained, in any event, upon the making of a fresh development application.[90]  The same line of reasoning does not apply to amendments which are adverse to an applicant, but that is not to say that it might not be appropriate to give such amendments decisive weight in the circumstances of a particular case.  As has been noted, Williamson QC DCJ would have given the amendments determinative weight, adverse to the applicant for development approval, in Klinkert v Brisbane City Council,[91] but for the statutory provisions relating to code assessment.
  2. [69]
    The amendments with which the Court is concerned in this case were made not so much to change the substance of a planning strategy, but rather to alter the mapping of those areas to which that strategy applies so as to ensure, amongst other things, that City Plan was up to date and that its mapping incorporated Queensland Government mapping.  It would appear that the amendments did that with respect to the subject site.[92]  It was submitted for the appellants however, that no weight ought be given to the amendments.  In particular, it was submitted that:
    1. (i)
      the site does not have the values attributed to it under the amendments;
    2. (ii)
      any non-compliance with Version 17 is technical or minor and ought not lead to refusal of the development application, given the effect of the proposed rehabilitation in balancing or mitigating any adverse ecological impacts from the proposed loss of existing canopy trees; and
    3. (iii)
      weight should not be given to Version 17 of City Plan in any event, for reasons that may generally be described as going to fairness.
  3. [70]
    I note that Mr Siddle, in the joint report in relation to ecology, expressed the opinion that it would be unreasonable to apply the amended mapping not just because of his opinions about the relative ecological value of the site and the waterway (matters within his field of expertise) but also because the amendments only came into force some 18 months after the development application was made.  The latter matter is considered later in the context of the fairness issue, but it is unclear why that was a matter of concern to Mr Siddle in his capacity as an expert ecologist.
  4. [71]
    The boundaries of the amended biodiversity mapping in City Plan generally mirror the boundaries of the remnant vegetation mapping of the State. It was submitted, for the appellants, that the adoption of the State mapping has led to the inclusion of areas on the site and surrounds that do not have ecological significance.  In the course of oral submissions, counsel for the appellants relied, at least in part, on a grassed area of the church site to the south that is now mapped as within the High Ecological Significance Strategic sub-category.[93]  Reliance on that is however, misplaced when it is acknowledged that areas of strategic biodiversity value are those that may currently be cleared or support degraded habitat, but which could form part of an ecological corridor or provide habitat for native fauna and flora if restored.[94]  I take the point that the mapping might potentially be shown to be inaccurate by ground truthing, but in the case of the subject site there is no significant discrepancy between the mapping of the High Ecological Significance sub-category and the extent of remnant vegetation.
  5. [72]
    The current vegetation of ecological value on the site is the remnant vegetation, being the trees that provide the canopy cover.  Mr Siddle regards the disturbed and weed infested under-story as having low ecological value.  Dr Watson regards it as being of low value from a flora perspective but of low to medium value for fauna, since fauna will still use it (although it does not have the diversity of resources available in a native under-story).[95]  He readily conceded however that, given its condition, it is not important vegetation from an ecological perspective.[96]
  6. [73]
    Both ecologists see ecological value in the remnant vegetation.  The difference between them is as to the relative value of that vegetation and, in particular, whether it justifies the “high” sub-category now ascribed to it by the amendments.  Dr Watson considers that it does whilst Mr Siddle regards its value as “moderate”.[97]  It is not a case however, where, on any view of the evidence, it could be said that the vegetation that the respondent, as the planning authority, has chosen to recognise and protect by amendment of its mapping, is demonstrably without any ecological significance, such that it could be said that the mapping is a case of clear and obvious error.  Indeed the outline of submissions on behalf of the appellants states that they “accept that the subject land has ecological values associated with the significant canopy trees that are present on the subject land”, albeit that they dispute the significance of the values.
  7. [74]
    It may also be noted that the High Ecological Significance sub-category and the High Ecological Significance strategic sub-category, being those applied to different parts of the subject site, are not the only sub-categories of the Biodiversity Areas Overlay.  Had the relevant parts of the site instead been included in the General Ecological Significance sub-category and the General Ecological Significance strategic sub-category, the Biodiversity Areas Overlay Code would still have been relevant.  It is unnecessary however, to pause on that.
  8. [75]
    The ecologists agreed that the vegetation forms a patch of relatively intact vegetation that generally conforms to the State-mapped remnant vegetation.[98]  Mr Siddle pointed out that the vegetation community type is regional ecosystem RE12.11.5.  That is a “least concern” category at the State level.  Whilst that does not necessarily mean that it is unimportant[99] or could not be regarded as of high significance at a local level, pursuant to a planning scheme, it is not one of the RE’s that is given the status of a significant vegetation community for the purposes of the Biodiversity Diversity Areas Overlay Code.[100]  The vegetation would therefore appear not to be of high ecological significance by reason of its RE type.  That is not however, the end of the matter.  As Dr Watson attested,[101] ecological significance takes account of other factors.  It should also be noted that the remnant vegetation is also mapped, at a State level, as State Koala Habitat and State Matters of Environmental Significance.[102]
  9. [76]
    Dr Watson referred to a number of factors relevant to his assessment of the ecological value of the site’s vegetation as high.  In that regard:
    1. (i)
      the site supports a reasonable sized patch of intact canopy trees;[103]
    2. (ii)
      the patch on the subject site is not an isolated patch, but forms part of a larger “polygon” which extends to the north, south and east in areas with the same biodiversity sub-category[104] within the amended overlay map;
    3. (iii)
      the vegetation features not only a significant number of mature trees but, as Mr Siddle accepted,[105] a diversity of species, which affords ecological value;
    4. (iv)
      the trees include:
  • large trees of local importance.  I note that the trees include species listed as significant flora species for purposes of the Biodiversity Areas Overlay Code;[106]
  • habitat trees (which Dr Watson describes[107] as trees that are old growth, mature and/or hollow bearing providing breeding, foraging and refuge) which occur within the broader vegetation patch and/or are semi-isolated on the site.  I note that elements which provide important habitat value, “such as”[108] hollow bearing trees are “ecological features” for the purposes of City Plan and, in particular, the Biodiversity Areas Overlay Code.
    1. (v)
      the vegetation provides habitat and resources for locally common fauna[109] and, in Dr Watson’s view, would likely be used from time to time by species other than common fauna, and
    2. (vi)
      the patch of bushland is in a location where it has connections within the broader landscape.[110]  It was a point of agreement amongst the ecologists, that the site forms part of a green space network and stepping stone corridor.[111]  Dr Watson’s evidence was that, in that context, the vegetation functions as a patch of vegetation to provide a refuge and is part of a corridor.  He explained that, by having such patches (or stepping stones) within the landscape, fauna can move through shorter distances of less optimal areas to get get to the next patch which provides refuge.[112]
  1. [77]
    In the course of cross-examination, Mr Siddle acknowledged the following:
    1. (i)
      there are a number of “very large” and “significant” trees on the site;[113]
    2. (ii)
      the big old trees can provide a range of habitat for different fauna;[114]
    3. (iii)
      some hollows in trees were recorded in the tree survey;[115]
    4. (iv)
      the trees can also provide nests and other forms of habitat;[116]
    5. (v)
      the canopy trees also provide refuge, forage and movement opportunities for fauna including, potentially, gliders, a variety of birds and koalas;[117]
    6. (vi)
      the canopy trees provide a food source and shelter for common fauna,[118] and
    7. (vii)
      the weeds in the under-story do not affect the value of the canopy trees.[119]
  2. [78]
    It is evident from the above that the vegetation has value.  The main areas of disagreement between the ecologists with respect to the extent of value of the vegetation on the site related to the level of ecological corridor/connection value of that vegetation in the broader landscape and the value the site offers to threaten and locally significant fauna and their habitats.
  3. [79]
    It has already been observed that the ecologists agree that the site forms part of a greenspace network and stepping stone corridor.  That is consistent with the Brisbane Greenspace System Strategic Framework Map[120] which depicts, in schematic form, an east-west connection, crossing Old Northern Road about the subject site,[121] which has a “corridor value” designation over a “conservation and environmental management and biodiversity” designation.  Mr Siddle’s view is that the historical and ongoing development and land uses surrounding the site, including Old North Road itself to the west and significant development and incursions of and into the waterway corridor to the east are such that the connections are “tenuous at best” and likely to be utilised only by common fauna, such that the site’s vegetation should not be regarded as of high value.[122]
  4. [80]
    There are larger patches of bushland and reserves further to the east and treed parks and large tree allotments to the west of Old Northern Road.  The landscape linkages between these can be seen in the marked-up aerial photographs in the joint report[123] and in Dr Watson’s statement of evidence.[124]  Dr  Watson acknowledged that there are challenges for fauna movement through the urban landscape, but was influenced by the fact that there is still a connection in the landscape and by his assessment that the site, as a patch of bushland,  sits within an area that is important to that landscape connection because of the relative paucity of linkages.[125]  I found that evidence persuasive, because it better brought to account the value of the vegetation to the opportunities that remain, notwithstanding the effects of urbanisation.  I prefer his evidence in relation to the value of the vegetation from this perspective.
  5. [81]
    In so far as the species likely to make use of the vegetation is concerned, the ecological assessment that accompanied the development application acknowledged the possibility that the grey-headed flying fox and koala may utilise the site for foraging opportunities from time to time, since the site provides suitable resources for those mobile species, both of which are significant fauna species for the purposes of the Biodiversity Diversity Area Overlay Code.  There were no flying fox roost found.  There are also no records of koala sightings on the site although the records rely on people reporting sightings and the information being uploaded.[126]  As Dr Watson explained, the lack of recorded sightings does not mean that koalas do not use the site from time to time, given the resources that exist and evidence of koalas in other parts of the broader landscape, both east and west of Old Northern Road.[127]  In his view “they could be using the green corridors and the network-greenspace network through the urban landscape to allow them to move”.[128]  I accept that evidence. 
  6. [82]
    Dr Watson pointed out that there are other threatened species which have, in his view, a reasonable likelihood of occurring, that are known from near the subject land.  He referred, in particular, to the powerful owl and the tusked frog, each of which are significant fauna species for the purposes of the Biodiversity Areas Overlay Code.[129]  He also referred to the migratory birds the rufous fantail and the spectacled monarch.  In his view the vegetation provides an important patch for birds moving through the landscape.[130]  I accept his evidence.  I do not accept that the site has value only for (or is only used by) common fauna.
  7. [83]
    There was also some debate about whether vegetation on the site falls within the meaning of “significant vegetation” in accordance with the Vegetation Planning Scheme Policy.  That is relevant for the Subdivision code, rather than for the Biodiversity Areas Overlay Code.  That comes down to whether the vegetation provides an “important” food source or shelter for native fauna.  The experts’ differing views on that reflected their differing views on the importance of the vegetation for fauna generally with which I have dealt.
  8. [84]
    Dr Watson, in his statement of evidence, drew attention to the fact that the subject site and surrounds are part of a larger parcel of bushland that is recognised as being significant urban and significant native vegetation under the respondent’s Natural Assets local law.  That is not part of City Plan and I have not given it weight.
  9. [85]
    I prefer Dr Watson’s assessment of the value of the vegetation on the site.  In that regard I have had regard to the matters set out earlier in relation to the vegetation on the site and to the preference that I have expressed for Dr Watson’s view about the importance of that vegetation in providing a connection within (and facilitating movement across) the broader landscape and his view in relation to the likely use of the vegetation by more than just common fauna.  I accept his conclusion that the on-ground site values are better reflected in the respondent’s current Biodiversity Areas Overlay mapping.  It follows that I do not accept that the weight to be afforded to amendments is adversely affected by error or by reason of them not being soundly based in so far as the subject site is concerned.
  10. [86]
    It has already been observed that the proposed development would involve the clearing of most of the canopy trees on the site.  It was submitted for the appellants however that, in any event, the overall loss of those trees does not warrant refusal in the circumstances, particularly given the proposal for tree retention, compensatory planning and rehabilitation.  In oral submissions counsel for the appellants went so far as to submit[131] that the Court would be satisfied that, on balance, the overall effect of the proposal would be, at worst, neutral if not positive. 
  11. [87]
    It has already been noted that the proposed rehabilitation area in the south-east corner of the site is 1,500m² in area.  That covers the area (of approximately 660m²) mapped as within the High Ecological Significance sub-category in the Biodiversity Areas Overlay at the time the development application was made, together with a further area (of approximately 840m²) generally in the area of the proposed setback from Downfall Creek on proposed Lot 5.[132]  The rehabilitation in the 1,500m² would involve weed removal, the planting of between 1,500 and 3,000 (depending on the density required by a condition of approval) native ground covers, shrubs and canopy trees.  Mr Siddle estimated that 150 canopy tree plantings would be involved.  There is to be some tree retention outside of the building envelopes and some compensatory planting of advanced stock (more mature saplings) particularly along the southern boundary.  In his statement of evidence Mr Siddle described these measures as providing a level of “mitigation”, “compensation” and “offset” for the loss of trees within the development footprint.[133]  In the joint report he had said that they would “partially”[134] offset the loss of native vegetation.
  12. [88]
    Notwithstanding that proposed rehabilitation Mr Siddle agreed with Dr Watson, in their joint report[135] that:

“Should it be determined that the current/amended biodiversity mapping were to apply, the development would not comply with the relevant biodiversity (and other) benchmarks.”

Whilst the agreement was not specific in relation to the provisions with which the proposal would not comply, the point of agreement was recorded in circumstances where Mr Siddle dealt with the benchmarks individually in Table 1 of the joint report.  In doing so he repeatedly relied on the fact that the proposal was to retain and rehabilitate the entirety of the High Ecological Significance sub-category vegetation as mapped on the site at the time the development application was made.  Read in that context, the concession in the point of agreement would appear to be one of general application.  In his evidence- in -chief however, he sought to heavily qualify the concession by confining it to conceding that the proposal would only offend that part the purpose (or more accurately, the overall outcomes) that relates to the protection, enhancement and restoration (rather than removal) of koala habitat.[136]  I find it difficult to accept that was the intention of the concession at the time.  Certainly it should have been expressed differently if his agreement was intended to be so heavily qualified.  I have not however, placed substantial weight upon the concession.

  1. [89]
    Dr Watson was, of course, content to acknowledge the proposed rehabilitation, but pointed out that it is essentially an opportunity to undertake some infill planting that is, considered in isolation, an improvement to the area to be rehabilitated and a positive aspect of the proposal, but will not replace or offset that which will be lost over a much greater area.[137]  He drew attention to the difficulties in using a relatively small area in trying to replace the value of canopy vegetation removed from a much larger area.  As he said, if 150 tree species are planted, they will take some 20 years to reach remnant status and will not yield 150 mature trees.[138]  As he further said:

“You can’t take that amount of greenspace and try and fix a small piece of greenspace and think you’re getting the same or close to the same values.”[139]

I accept that evidence.

  1. [90]
    It has already been observed that, in the course of the hearing, the appellants pointed to the possibility of altering the internal road and the building envelope on proposed lot 5 so as to facilitate a further 350m² of rehabilitation area in the north-eastern corner of proposed lot 5.  Mr Clowes raised a potential fire-fighting issue in relation to gaining access to the east of the east boundary of the revised building envelope, but it is unnecessary for me to dwell upon that.[140]  Whilst welcoming the additional retention and rehabilitation as a “positive approach”, Dr  Watson, in his supplementary statement of evidence, pointed to the limited number (11) and quality[141] of the trees that could be further retained as a consequence of increasing the rehabilitation area in this way.  He also doubted the scope for achieving improvement in the quality of remnant vegetation in this area, given the current density of trees.[142]  The additional potential area for rehabilitation did not cause him to alter his conclusions.  I accept that the potential expansion of the rehabilitation area, whilst a positive, does not result in a proposal that would substantially replace or offset the loss of the value of the trees that would be cleared.
  2. [91]
    In his statement of evidence Dr Watson, in expressing the opinion that the adverse ecological impact of the proposal is unacceptable, referred back to the following impacts to which he had referred in the joint report:[143]
    1. (a)
      loss of an important patch of bushland that is remnant vegetation and provides resources for a variety of fauna;
    2. (b)
      loss of a significant number and diversity (species) of trees;
    3. (c)
      loss of a large number of habitat trees (as he described that expression);[144]
    4. (d)
      compromise (remove) fauna movement/linkage opportunities in the landscape.
  3. [92]
    He also explained that, for both threatened and common species, the vegetation patch size, diversity of tree species within the patch, size of trees and connection in the landscape are critical for maintaining biodiversity and eco-system function.  He regards the loss of urban bushland patches and greenspace network connections in the landscape as a poor ecological outcome.[145]
  4. [93]
    The positive characteristics of the existing vegetation in terms of its patch size, provision of resources for a variety of fauna and the size, diversity and habitat value of its trees have all been discussed.  It should be noted that, whilst Dr Watson speaks of the “loss” of a patch of bushland, the patch on the subject site is part of a larger polygon which extends beyond the site.  Further, some trees on the site are to be retained and there is proposed to be compensatory planting and rehabilitation.  The loss of on-site canopy trees would however, be extensive.
  5. [94]
    In the course of cross-examination, Dr Watson was challenged on his opinions in relation to the compromise/removal/loss of linkage opportunities/connections in the landscape as a consequence of the proposal and made some concessions.  In particular, he conceded that with not only the rehabilitation area within proposed Lot  5, but also with retained trees and with compensatory planting along the southern boundary, as well as trees beyond the southern boundary of the site, there would continue to be a connection.[146]  Further, as the rehabilitation area lies adjacent to other vegetation in the larger polygon, there will be an opportunity for fauna to move into that vegetation beyond the site.[147]  That did not however, obviate his concern.
  6. [95]
    Dr Watson pointed out that, at present, the onsite vegetation affords an opportunity, effectively across the entire width of the site, for movement and refuge.  The effect of the clearing associated with the proposed development would be to narrow that opportunity to, effectively, the area proximate to the southern boundary of the site (including the rehabilitation area in the south-east) by clearing much of the vegetation over the remainder of the site.  This would effectively result in the loss of the balance of the patch on the subject site and thereby intrude into, and consume part of the larger polygon of vegetation of which it forms a substantial part.[148]  The consequence would be a diminished opportunity for fauna to move safely through the landscape because of the effective removal of the patch on the subject site which serves as a refuge and the extension of the challenging area for fauna movement.[149]  I accept that evidence.
  7. [96]
    For the reasons given, I prefer the evidence of Dr Watson to the effect that, because of the proposed tree clearing, the proposal would have a significant undue adverse impact on the ecological value of the site notwithstanding the proposed tree retention, compensatory planting and rehabilitation.  If assessed in light of the amended City Plan provisions, particularly the amended mapping, the proposal would find itself in substantial conflict with the relevant provisions.  That would not be confined to the non-compliance acknowledged by Mr Siddle.  Given the way the case was run, it is unnecessary for me to descend to the detail of all the specific provisions.  In relation to the Biodiversity Overlay Code the conflict would extend to Overall Outcomes 2(a) and 2(e) (in addition to 2(d) that was the subject of Mr Siddle’s (now) qualified concession) and PO4 of that code.  The conflict would also include, at an overall outcome level, conflict with Overall Outcome 2(g) of the Emerging Community Zone Code (in relation to the adverse affect on the now mapped environmental value of the land).
  8. [97]
    It was submitted, for the appellants, that there are other circumstances which ought persuade the Court not to give any weight to the City Plan amendments.  They may generally be described as going to fairness.  One circumstance is the Council’s approval of a development application at 122 Keona Road by which the Council is said to have exhibited an inconsistent approach.  That involved the development of some townhouses together with a sub-division to create two large residential lots.  The large residential lots formed part of a “biodiversity area” on that part of the land now subject to the High Ecological Significance and High Ecological Significance Strategic sub-categories in the Biodiversity Areas Overlay.  The approval was subject to conditions requiring an environmental covenant.  This Court is not in a position to judge the merits of that approval, but it is evident that much less development was proposed in the area now subject to the biodiversity sub-category designations than is the case with the subject proposal.  In any event, that approval was given on 30 November 2018.[150]  Whilst that was after public consultation in relation to the amendments, it was well prior to the amendments coming into effect.  Indeed it was prior to the second State interest review.[151]  Whilst the amendments could perhaps have been taken into account on the Coty principle,[152] they had not then achieved the status of amendments to which the Council, as decision-maker, could have given weight pursuant to s 45(7) of the PA.  Further, the evidence does not justify a conclusion that the approval has had the effect of overtaking the amendments more broadly.  The weight that the Court should now give to the amendments in deciding this appeal, in October 2022, with respect to the subject site is, in any view, not significantly adversely affected by the fact of that 2018 approval. 
  9. [98]
    Reference was made to a voluntary contribution made by the appellants, in 2013, to assist neighbours in building sewer infrastructure.  They made that contribution in anticipation of being able to develop their own land.[153]  In support of the reasonableness of that anticipation of development, reference was made to a generally supportive response to a consideration in principle request in 1997.  That is, of course, very dated.  The decision to contribute to the sewer, in 2013, was a personal decision of the appellants.  It does not, in my view, compel the respondent or, on appeal, this Court, to ignore the amended provisions in 2022 so as to meet the appellants’ aspirations and make good their earlier investment.
  10. [99]
    There was a pre-lodgement meeting on 7 November 2017 to discuss a potential 10 lot proposal.  In principle support was indicated, but was subject to many qualifications including the need for a layout determined by the ecological values of the site identified through an ecological assessment.  I note that was referred to by Mr Cumming (the town planner engaged by the appellants) but not by counsel for the appellants in submissions.  It does not, in my view, materially assist the appellants.
  11. [100]
    Some reference was made by Mr Cumming to the fact that the site is within the ‘Urban Footprint’ under the SEQ Regional Plan.  That however, is a broad designation and does not imply that all land to which it applies can be developed for urban purposes.  Ultimately it is City Plan that gives the more detailed guidance.  As the description of the Urban Footprint says:[154]

“Shaping SEQ relies on local government planning schemes to determine the most suitable zone for each land parcel within the urban footprint.  The development assessment process determines the extent and suitability of development on each site.”

This is also not a point that was addressed by counsel for the appellants in submissions.  It is not something that materially assists the appellants.

  1. [101]
    I appreciate that the amendments, in this case, markedly increase the extent of the mapped environmental constraints over the appellants’ land.  The appellants would no doubt wish to avoid the effects of that by having the development application decided without any weight being afforded to the amendments.  That is entirely understandable from their perspective.  That does not mean however, that the Court should oblige them by considering the subject development application on that basis.
  2. [102]
    It should be acknowledged that the PA makes provision otherwise for those aggrieved by adverse changes to a planning scheme.  If a person wants a superseded planning scheme (which is defined to include an amended planning scheme)[155] to apply to a proposed development application they may, within one year, make a superseded planning scheme request pursuant to s 29 of the PA.  That is, relevantly, a request to accept, assess and decide a development application under a superseded planning scheme.  If the request is agreed to (or is taken to be agreed to) a superseded planning scheme application must be made within six months.  Despite sections 45(6) to (8) such an application must be assessed as if the superseded planning scheme was still in effect.[156]  Refusal of a superseded planning scheme request may lead to a right to claim compensation for an adverse planning scheme change.[157]  Whether the appellants chose to avail themselves of those provisions once the amendments came into force was a matter for them.  Because the subject development application is not a development application superseded planning scheme, sections 45(6) to (8) do apply and so the assessment manager and, on appeal, the Court, may give the weight it considers appropriate in the circumstances to the amendment.  That is not unfair, given the statutory scheme considered as a whole.[158]
  3. [103]
    It was pointed out, for the respondent, that the amendments came as no surprise to the appellants.  The amendments had gone through the public consultation phase well prior to the development application being made on 10 April 2018.  The development application was made in full knowledge of the proposed amendments[159] and the ecological assessment, lodged in support of the development application, referred to the proposed amendments.[160]  I am reluctant however, to put too much weight on that circumstance because, given the process for effecting amendments to a planning scheme, it will very often be the case, in instances where decision-makers are called upon to consider the weight to be given to an amendment pursuant to s 45(8) of the PA, that the proposed amendment has been subject to public consultation prior the development application.
  4. [104]
    It was pointed out, for the appellants, that whilst the amendments took effect prior to the respondent’s decision, they did not take effect until some 18 months after the development application was made.  Mr Cumming referred to what he described as “an extraordinarily prolonged decision-making period”.[161]  Indeed the length of time the respondent took to decide the development application was the subject of complaint by the appellants at the time.[162] It appears that the appellants consider that they ought to have had a decision at an earlier time, perhaps prior to the amendments taking effect.
  5. [105]
    A review of the development application and documents[163] reveals that substantial time was consumed by extensions of information request periods to which the appellants agreed and by the time taken to respond to the subsequent information requests.  There was also a further advice request from the respondent issued in May 2019, to which the appellants responded on 4 September 2019.  It has already been noted that the amendments came into effect on 29 November 2019, which was prior to the appellant’s first letter of complaint about delay, sent on 17 December 2019.
  6. [106]
    It is unnecessary for me to descend into the detail of the processing of the development application.  It was the appellants who agreed to the extensions of time for the information request periods and chose to provide further information pursuant to those requests and to respond to the further advice request.  If they thought that was unreasonable or unnecessary they did not need to co-operate with it.  The Development Assessment rules permit an applicant to advise, on the approved form, that the applicant does not agree to accepting information requests.[164]  An applicant is not compelled to agree to an extension of an information request period.[165]  An applicant may respond to an information request by providing all of the information requested or may respond by providing only part of the information or by providing a notice that none of the information will be provided.[166]  In the latter two cases the applicant may also advise the assessing authority that it must proceed with its assessment of the application.[167]  The further advice request was not a formal information request and did not have to be responded to if the appellants did not wish.  Once the decision-making period passed, the appellants were not compelled to wait for a decision.  They had the option to appeal against a deemed refusal.
  7. [107]
    Reference was made to a plan attached to the respondent’s further advice request that showed a revised drainage easement plan,[168] but not a revised plan for ecological considerations.  It was clear however, from the first paragraph of the further advice request, that the respondent was looking for a revised plan that took account of the amended mapping.[169]  In particular, it stated that “the proposal in its current form cannot be supported as there is still significant encroachment into the waterway corridor and amended Biodiversity Overlay…”.  The then proposed amended mapping had been raised as early as May 2018.[170]
  8. [108]
    Whilst the passage of time between the making of the development application and the coming into effect of the amendments is a consideration, there is nothing about the way the development application was dealt with which, in my view, significantly detracts from the weight the Court should now afford.
  9. [109]
    It must be remembered that the question is as to the weight the Court should now give to the amendments in dealing with the appeal.  The amendments could hardly now be said to be said a late intrusion into the matter.  They may have come into effect well after the making of the development application, but they were in force prior to the decision of the respondent and, therefore, prior to the appeal being instituted.  They have now been in effect for almost three years.  The situation may be contrasted with Klinkert v Brisbane City Council,[171] in which Williamson QC DCJ would have given the amendments in that case decisive weight even though they had not come into effect until after the decision on that development application and after the appeal had been instituted and where notice of an intention to rely upon them had not been given until some six weeks after the Court had made orders identifying the issues in the appeal.
  10. [110]
    Not only have the amendments been in force for a very considerable period of time, I have found that they better reflect the actual ecological value of the relevant parts of the site in a way the mapping current at the time of the development application was made did not.  It is difficult to see why one would not give substantial, even decisive, weight to corrected versions of mapping which have now been in force for almost three years.
  11. [111]
    The provisions of concern relate to the ecological value of vegetation, in particular mature trees comprising remnant vegetation proposed to be cleared to make way for development.  The subject matter of the provisions under construction in Klinkert v Brisbane City Council[172] was the protection of a dwelling house of a certain character.  It was observed, by Williamson QC DCJ, that that is something which, once demolished, is forever lost.  Similarly, mature trees once cleared to make way for development would be lost forever and I have found that the proposed tree retention, compensatory planning and rehabilitation would not make good the loss.
  12. [112]
    I accept that an approval in this case would not be determinative of some broader principle or issue.  The ecological evidence that I have accepted however, is to the effect that the ecological value of the site does not stand in isolation and I have found that the clearing would have a significant undue adverse impact.  To permit that to occur on the basis of mapping that does not reflect the true value of the vegetation without giving weight, indeed decisive weight, to the mapping that superseded it almost three years ago and which better reflects those values, would produce a poor and indeed, in my view, an unacceptable planning and ecological outcome.
  13. [113]
    In the circumstances, the amendments should be given considerable and, indeed decisive weight.  The ecological impacts render the proposal unacceptable.

Relevant matters

  1. [114]
    The considerations raised by the parties as “relevant matters” have, to an extent, been dealt with in the context of the issues that have already been addressed.  The appellants contended that the proposal would produce desirable residential land close to, and with convenient access to, appropriate urban services and facilities.  I have already acknowledged that.  The appellants contended that the proposal would contribute to the provision of housing choice, affordability, and diversity and the efficient use of land and infrastructure.  They also pointed out that the vegetation and clearing and management on the subject site would serve to reduce bushfire risk in the locality.  Accepting all of those things however, I do not consider the proposal to be acceptable in view of its likely ecological impacts.

Conclusion

  1. [115]
    For the reasons given, the appellants have not discharged their onus.  The appeal is dismissed.

Footnotes

[1]See s 45(5) to (8) of the Planning Act 2016 (PA).

[2]Abeleda v Brisbane City Council & Anor [2020] QCA 257.

[3]Section 45, Planning and Environment Court Act (PECA).

[4]Section 43, PECA.

[5]Section 46(2), PECA.

[6]Section 47, PECA.

[7]Ex. 10, para 9.

[8]The Potential Development Area designation does not apply to the south-east corner of the site.

[9]Counsel for the respondent, in the course of oral submissions, said that his client did not ask me to “track through each of the provisions one by one” – T8-9.

[10]Including failure to respond to the waterway corridor through the site.

[11]The respondent’s outline of submissions said they were NOT standalone reasons for refusal – para 86.

[12]T3-26.

[13]Ex. 10 para 115.

[14]T3-35,36.

[15]Ex. 2, pp 96 – 102.

[16]Ex. 2 pg 103.

[17]Ex. 8 para 16a.

[18]Ex. 8 para 16c.

[19]Ex. 8 para 16d, 17.

[20]Ex. 8 paras 43, 45.

[21]Ex. 8 para 47.

[22]Roseingrave & anor v Brisbane City Council & anor [2021] QPEC 76.

[23]T2-8.

[24]Ex. 25.

[25]Ex. 25, paras 2.2.4, 2.2.6(d).

[26]Ex. 7 para 18.

[27]Ex. 7 para 19.

[28]T5-22.

[29]T5-25.

[30]T5-26.

[31]T5-25.

[32]T5-23.

[33]T5-26.

[34]T5-24.

[35]Ex 8. Para 43.

[36]Note 4 to the Table.

[37]T3-96.

[38]T3-66.

[39]Ex. 25, para 2.2.6.

[40]T5-23.

[41]Ex. 28. She also did a calculation using 0.46 and a reaction time of 2 seconds which produced a distance of 85m.

[42]Ex. 5 para 2.2.6 (a).

[43]Ex. 9 paras 26, 28.

[44]T8-54.

[45]T3-56.

[46]T5-23.

[47]Ex. 9 para 53, T3-69.

[48]T3-99.

[49]Ex. 9 paras 49-54.

[50]T6-7, 8, Ex. 33, Fig. 1.

[51]See the Note to AO1.

[52]T6-5, Ex. 4, para 79.

[53]Ex. 4, para 79.

[54]Ex. 4 Fig 6 at pg 136.

[55]T6-13.

[56]Ex. 14 para 22 and Fig 4.

[57]T5-67.

[58]Ex. 16A.

[59]Ex. 34 pg 27.

[60]T8-25.

[61]Ex. 4 para 86(c).

[62]Ex. 14 pg 6.

[63]Reference was also made to a technical assessment guide published by the respondent (Ex. 16C), that also does not go so far as to say that all areas within such overlays must be assessed to be revegetated, but that document has no statutory force.

[64]T8-27.

[65]T8-28.

[66]T8-47.

[67]Para 18.

[68]Ex. 19, pp 10 – 12, T2-28.

[69]There was some confusion over whether the number to be retained on site is 35 or 38 – see T-29.

[70]Ex. 15 para 8.

[71]T2-29.

[72]Ex. 15 para 8.

[73]Lots 4 and 5.

[74]Ex. 6 Appendix C.

[75]Ex. 22.

[76]Ex 32 para 15.

[77]Ex. 1, p 18.

[78]Ex. 4 pg 25.

[79]Ex. 4 para 55.

[80]Ex. 4 para 87(c).

[81]T9-29, 30.

[82]T8-7.

[83]Ex. 10 para 143, Queensland Government Gazette No. 96, 29 November 2019.

[84][2018] QPEC 30.

[85]Section 45(3).

[86]Section 60(2)(a).

[87]Brisbane City Council v Klinkert [2019] QCA 40.

[88][2005] QPELR 226.

[89]At [9].

[90]See Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37 at [12].

[91]Supra.

[92]That is not to say that the amended mapping of the subject site did not also fit with other stated purposes of the amendments.

[93]T8-60.

[94]Ex. 16, p 585.

[95]T2-68.

[96]T2-70.

[97]T2-45.

[98]Ex. 4, para 88.

[99]See Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPEC 26 [277-280].

[100]See Table 8.2.4.3B.

[101]T2-87.

[102]Ex. 15, p 5.

[103]Ex. 4, para 35(a), T2-60.

[104]Ex. 4, para 35(a), T2-44.

[105]T2-44.

[106]Table 8.2.4.3C, and, as a consequence are “ecological features”.

[107]Ex 4. para 35(b).

[108]I.e. not limited to.

[109]A point of agreement between the ecologists – Ex. 4, para 88.

[110]Ex. 4, para 35(e).

[111]Ex. 4, p 89.

[112]T2-78.

[113]T2-42.

[114]T2-43.

[115]T2-43.

[116]T2-44.

[117]T2-44, 45.

[118]T2-45.

[119]T2-45.

[120]Ex. 21.

[121]The map is not cadastrally-based.

[122]Ex. 4, para 96.

[123]Ex. 4, Fig 18, Ex. 19, Fig 6 shows a wider view which includes Raven Street Reserve further to the east.

[124]Ex. 15, p 10.

[125]T2-62, 63.

[126]T2-71, 72.

[127]T2-93, 94, T2-69.

[128]T2-73.

[129]Table 8.2.4.3.D.

[130]Ex 15 para 41, T2-69.

[131]T8-58.

[132]Ex. 6, Appendix C.

[133]Ex. 6 paras 29, 30.

[134]Ex 4 para 97.

[135]Para 90.

[136]T2-37, 38.

[137]T2-65, 84.

[138]T2-65 – see also T2-50 where Mr Siddle spoke of an approximate 20 year period for planting to achieve remnant states.

[139]T2-65.

[140]And I note that I have already rejected his assessment of the level of hazard.

[141]Ex. 32, para 16.

[142]This is an area in which a number of trees were proposed for retention in any event.

[143]Ex. 15, para 17.

[144]Which is not limited to the trees bearing hollows.

[145]Ex. 15, para 43.

[146]T2-81.

[147]T2-85.

[148]T2-61 – see the maps in Ex. 15, pp 5, 6.

[149]Insert.

[150]Ex 10 para 22.

[151]Ex. 10, p 512.

[152]Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117.

[153]Ex. 12, paras 9 – 12.

[154]Ex. 24 pg 101.

[155]Section 29(2) of the PA.

[156]Section 29(9).

[157]Div. 2 of Part 4 of Chapter 2 of the PA.

[158]See Klinkert v Brisbane City Council (supra) at [148].

[159]See Ex. 19A pp 12, 13, 18.

[160]Ex. 19, p 32.

[161]Ex. 10, p 47.

[162]Ex. 12, para 21.

[163]Ex 2.

[164]Section 11.1(8) DAR.

[165]Section 12.2, 12.4 DAR.

[166]Section 13.2 DAR.

[167]Section 13.3 DAR.

[168]Ex 2. pg 120 para 6(c) and Ex 1 pg 13.

[169]Ex. 2, p 118.

[170]Ex. 2 pg 75.

[171]Supra.

[172]Supra.

Close

Editorial Notes

  • Published Case Name:

    Roseingrave & Anor v Brisbane City Council & Anor (No. 2)

  • Shortened Case Name:

    Roseingrave v Brisbane City Council (No. 2)

  • MNC:

    [2022] QPEC 43

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    28 Oct 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Brisbane City Council v Klinkert [2019] QCA 40
2 citations
Jump To
Cite 1 - [2019] QCA 40
Cite 2 - [2019] QCA 40
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
2 citations
Jump To
Cite 1 - (1957) 2 LGRA 117
Cite 2 - (1957) 2 LGRA 117
Edwards & Alexander v Gold Coast City Council & Anor [2005] QPELR 226
2 citations
Jump To
Cite 1 - [2005] QPELR 226
Cite 2 - [2005] QPELR 226
Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37
2 citations
Jump To
Cite 1 - [2019] QPEC 37
Cite 2 - [2019] QPEC 37
Klinkert v Brisbane City Council [2018] QPEC 30
2 citations
Jump To
Cite 1 - [2018] QPEC 30
Cite 2 - [2018] QPEC 30
Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26
2 citations
Jump To
Cite 1 - [2013] QPEC 26
Cite 2 - [2013] QPEC 26
Roseingrave v Brisbane City Council [2021] QPEC 76
2 citations
Jump To
Cite 1 - [2021] QPEC 76
Cite 2 - [2021] QPEC 76

Cases Citing

Case NameFull CitationFrequency
427 Beckett Rd Pty Ltd v Brisbane City Council (No. 2) [2024] QPEC 242 citations
Roseingrave v Brisbane City Council [2024] QPEC 72 citations
1

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