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Nairn v Brisbane City Council[2024] QPEC 46

Nairn v Brisbane City Council[2024] QPEC 46

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Nairn & Anor v Brisbane City Council [2024] QPEC 46

PARTIES:

LENA ELIZABETH NAIRN AND BRADLEY NAIRN

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

2026 of 2022

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

7 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15, 16 and 17 October 2024

JUDGE:

Kefford DCJ

ORDER:

The appeal is dismissed.  The Appellants’ development application for a development permit for a material change of use is refused.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s decision to refuse a development application for a development permit for a material change of use for a domestic enterprise – where the application was made to regularise the currently unlawful use – whether the proposed development is an appropriate land use on the subject land – whether the proposed development is out of character with the locality – whether the proposed development supports the implementation of the policy direction for the planned Greenspace System – whether the proposed development cuts across the clear land use intent for the subject land – whether the proposed development involves unacceptable ecology impacts – whether the mitigation measures proposed provide a sound town planning reason to not give the provisions of City Plan about ecology their full force and effect – whether the discretion should be exercised to impose additional conditions to address non-compliances with City Plan – whether there are any relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 – whether the proposed development should be approved in the exercise of the discretion

LEGISLATION:

Planning Act 2016 (Qld) ss 45, 59, 60, 65

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

Planning Regulation 2017 (Qld) s 31(1)(f)

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied 

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965, approved

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

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, applied

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

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

Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, applied

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, approved

Cook v Woollongong City Council (1980) 41 LGRA 154, applied

Fidler v First Secretary of State [2005] 1 P & CR 169, applied

Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied

Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, applied

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

Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12, approved

Lifnex Pty Ltd and Oil Recyclers Australian Pty Ltd v Ipswich City Council [1998] QPELR 517, applied

Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied

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

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

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

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

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

E Morzone KC and M McDermott for the Appellants

M Batty and N Batty for the Respondent

SOLICITORS:

P&E Law for the Appellants

City Legal for the Respondent

TABLE OF CONTENTS

Introduction4

What is the applicable framework for the decision?5

What are the issues in dispute?6

What is the character of the subject land and the locality in which it sits?6

What is approved and lawful on the subject land?8

What does the proposed development entail?11

Is the proposed development an appropriate land use on the subject land?15

Is the proposed development out of character with the locality?16

Does the proposed development support the implementation of the policy direction

for the planned Greenspace System?19

What is policy direction for the planned Greenspace System?19

Does the proposed development support the planned Greenspace System?23

Does the proposed development cut across the clear land use intent for the subject land?24

What is the significance of the non-compliances with respect to land use?28

Does the proposed development involve unacceptable ecology impacts?31

What do the assessment benchmarks require in respect of ecological impacts?32

What mitigation measures with respect to ecology do the Appellants propose?38

Does the proposed development achieve appropriate ecological outcomes?42

Should I impose conditions requiring additional measures consistent with the recommendations

of Mr Clowes?47

Conclusion regarding ecological impacts50

Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016

that lend support to approval?50

Should the proposed development be approved in the exercise of the discretion?51

Conclusion52

Introduction

  1. [1]
    This case concerns a development application that arose because of a lengthy enforcement history. 
  2. [2]
    The Appellants, Lena and Bradley Nairn, live on land in the heart of the Environmental management zone at Gumdale.  They seek approval for a use that they have been unlawfully operating and that contravenes the land use intent for the subject land and broader locality in Brisbane City Plan 2014 (“City Plan”).
  3. [3]
    The Appellants seek approval to make a material change of use of their land to permit them to operate two businesses from the premises, namely a subcontracting construction company that specialises in the placement and finishing of concrete works and a building company.  To regularise the currently unlawful use and works, an impact assessable development application was made to Brisbane City Council (“the Council”) seeking two development permits – one authorising the making of a material change of use and the other for operational works in the form of excavation and filling. 
  4. [4]
    The development application was publicly notified and attracted 158 properly made submissions.  Some supported approval but the majority did not.  The submissions that opposed approval raised concerns about, amongst other things, inconsistencies with City Plan; flora and fauna impacts; traffic and parking; and amenity impacts occasioned by the use, including character impacts associated with the extent of truck movements and vehicular activity associated with workers attending the subject land.
  5. [5]
    The Council refused the development application.  The reasons for its decision are set out in the decision notice dated 25 July 2022.
  6. [6]
    This is an applicant appeal against that decision.  The Appellants have withdrawn that part of the appeal that relates to the Council’s refusal of a development permit for operational works.  As such, the only issue for me to determine is whether they should receive a development permit authorising the material change of use.
  7. [7]
    During the preparation of the appeal, the Appellants made a minor change to their development application.  Despite that, the Council maintains that the development application for a material change of use should be refused.
  8. [8]
    The Appellants bear the onus of establishing that the proposed material change of use should be approved or approved in part: s 45 of the Planning and Environment Court Act 2016 (Qld). 
  9. [9]
    For the reasons that follow, the Appellants have not discharged the onus.

What is the applicable framework for the decision?

  1. [10]
    Under s 43 of the Planning and Environment Court Act 2016, the appeal proceeds by way of hearing anew, subject to ss 46(2) and (5).  The Court has a broad discretion in determining the appeal.  It is to be exercised judicially and subject to the limitations in the relevant statutes.  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 (Qld) provides relevant guidance in that respect.
  2. [11]
    The Court must assess the development application under s 45(5) of the Planning Act 2016 as if it were the assessment manager: Planning and Environment Court Act 2016 s 46(2).  The Court’s decision is governed by s 47 of the Planning and Environment Court Act 2016 and informed by ss 59(3) and 60 of the Planning Act 2016.
  3. [12]
    Sections 45(5)(a)(i) and (7) of the Planning Act 2016 mandate assessment against the assessment benchmarks in a categorising instrument in effect when the development application was properly made, namely version 23 of City Plan.  Weight can be given to amendments to City Plan: s 46(2) of the Planning and Environment Court Act 2016 and s 45(8) of the Planning Act 2016.  The parties agree that there are no relevant amendments to be considered in this case. 
  4. [13]
    The assessment must also be carried out having regard to, amongst other things, any development approval for, and any lawful use of, the premises: s 45(5)(b) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017 (Qld).
  5. [14]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987; Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003; Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321; and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309. 
  6. [15]
    Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793 at 803-13 [35]-[86].  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328 at 333-7 [12]‑[22]. 
  7. [16]
    As is explained in those authorities:
    1. the ultimate decision called for when making an impact assessment is a broad, evaluative judgment that admits of flexibility to approve an application in the face of non-compliance with a planning scheme;
    2. the exercise of the discretion under s 60(3) of the Planning Act 2016 is subject to three requirements, including that it be based upon the assessment carried out under s 45 of the Planning Act 2016; and
    3. the Planning Act 2016 does not alter the characterisation of a planning scheme as a document that reflects the public interest.
  8. [17]
    With that framework in mind, I now turn to consider the issues in dispute.

What are the issues in dispute?

  1. [18]
    The Appellants concede that the proposed material change of use does not comply with various assessment benchmarks in the Strategic framework, Environmental management zone code, and Biodiversity areas overlay code.  They accept that compliance cannot be achieved by the imposition of conditions.  Despite this, the Appellants contend that approval is appropriate.
  2. [19]
    Having regard to the cases advanced by the Appellants and the Council, the issues that require determination can be addressed by answering the following four key factual issues:
  1. 1. Is the proposed development an appropriate land use on the subject land?
  2. 2. Does the proposed development involve unacceptable ecology impacts?
  3. 3. Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 that lend support to approval?
  4. 4. Should the proposed development be approved in the exercise of the discretion?
  1. [20]
    Before turning to address these issues, it assists to appreciate:
    1. the features and character of the subject land and the locality generally;
    2. the parameters of the development approvals for, and lawful use of, the subject land to which regard must be had under s 45(5)(b) of the Planning Act 2016 and s 31(1)(f) of the Planning Regulation 2017; and
    3. the parameters of the proposed development.

What is the character of the subject land and the locality in which it sits?

  1. [21]
    The development application relates to land described as Lot 144 on RP 333825 that is situated at 302 Grassdale Road, Gumdale (“the subject land”).  It is rectangular in shape and has an area of approximately 19,073 square metres. 
  2. [22]
    The subject land has a gently undulating landform that generally falls towards the south-western and north-western corners from a high point around 40 metres Australian Height Datum along the eastern boundary.  The elevation along the Grassdale Road frontage of the subject land falls from 37 metres Australian Height Datum in the south-eastern corner to 28 metres Australian Height Datum in the south-western corner.  The northern boundary, although lower than the localised high point along the eastern boundary, is higher than the southern boundary and has a height of 33.5 to 35 metres Australian Height Datum.
  3. [23]
    There is an established dwelling house with attached garage and associated parking areas at the mid-point of the eastern boundary.  Towards the Grassdale Road frontage, there is a storage shed, office building, parking area and outdoor storage area. 
  4. [24]
    A 3.5-metre-wide common driveway in the south-eastern corner serves both the residential and non-residential uses that presently operate on the subject land.
  5. [25]
    There is dense vegetation in the western and northern portions of the subject land that are regulated regional ecosystems.  The shrub layer of the vegetation has been removed but the groundcover layer is maintained.  The vegetation on the subject land supports core koala habitat and is connected to other vegetated areas of core koala habitat in the Gumdale area.
  6. [26]
    The ecological attributes exhibited on the subject land are consistent with its designation in City Plan as:
    1. land in the Environmental management zone; and
    2. affected by the High ecological significance, High ecological significance strategic, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay.
  7. [27]
    Grassdale Road runs along the southern boundary of the subject land.  It has a formalised asphalt pavement to a rural standard.  There is kerb and channel on the southern edge of the road.  There are no verge footpaths.  A table drain drainage channel is located on the northern side of the road and there is piped drainage under the access driveway.
  8. [28]
    Grassdale Road undulates gently along its predominantly east-west alignment.  It rises to the east of the subject land from between 28 and 37 metres Australian Height Datum to a localised high point of approximately 46 metres Australian Height Datum at a location that is 150 metres to the east of the subject land.
  9. [29]
    The suburb of Gumdale is almost entirely located within the Environmental management zone.  The area generally presents as well vegetated with a rural character.  Most of the lots surrounding the subject land are rectangular rural residential style allotments that are generally either one or two hectares.  The allotments have a consistent depth of 190 metres and frontages of either 50 or 100 metres. 
  10. [30]
    The built form elements within the area are diverse in their range and appearance.  Although the setting is typically characterised by detached residential dwellings, there is variation in building setback, height, building materials, location and visibility of driveways, location and appearance of ancillary structures such as sheds, and fencing scale, form, colour and appearance.
  11. [31]
    The vegetation on the subject land forms part of a wider and diverse mosaic of vegetation within the Gumdale locality.  The aerial photographs and mapping show that most of the land in Gumdale contains bands of native vegetation that provides interconnected areas of koala habitat.  This is reflected in City Plan, which maps the entire Gumdale locality as a critical component of the Greenspace System.  The native vegetation on the subject land forms part of the broader habitat mosaic within the Greenspace System that is intended to support a diverse mosaic of remnant habitats, treed areas and open space, which in turn support biodiversity.  Mr Dan Clowes, the terrestrial ecologist retained by the Council, says that site inspections indicate that the extent of koala habitat is consistent with the mapping.  His evidence in this respect was not challenged and I accept it.
  12. [32]
    The subject land is also located within a broader koala priority area. 
  13. [33]
    In general terms, the local area is characterised by the regular road and lot pattern, large lots that are well vegetated, patches of open space, gently undulating terrain, and dispersed built form.

What is approved and lawful on the subject land?

  1. [34]
    The Appellants case for approval relies heavily on its assertions that:
    1. many of the negative aspects of the proposed development are already lawful; and 
    2. the proposed development will result in environmental benefits that are not otherwise provided under the existing approvals and lawful use.
  2. [35]
    As such, before considering the proposed development, it is useful to understand the parameters of the development approvals for, and the lawful use of, the subject land.
  3. [36]
    At the time that the Appellants purchased the subject land, it contained an existing dwelling house with attached garage.  The dwelling house with attached garage is still present on the subject land.  Although I do not have any evidence of the approvals for them, it seems reasonable to infer that they are lawful and that the subject land is lawfully being used for a single residential dwelling.
  4. [37]
    On 4 May 2018, the Council granted a development permit for building work for an “Extension to Dwelling House in Environmental Management Zone – Shed” (“the Council’s shed approval”).  The Council’s shed approval has an application reference number of A004813391.
  5. [38]
    The approved drawings that form part of the Council’s shed approval show the approved shed as:
    1. 25 metres long and 15 metres wide;
    2. a single storey structure constructed on a concrete slab;
    3. having a height of 5.477 metres to the bottom of the eaves and a gable roof; and
    4. having windows on the northern, southern and western sides and a large roller door on the eastern side.
  6. [39]
    The approved plans do not contain a notation for the height of the approved shed but, applying the scale, it is approximately 7.7 metres high.
  7. [40]
    The conditions of the Council’s shed approval require:
    1. the building work to be carried out, and maintained, generally in accordance with the approved drawings and documents;
    2. the development footprint to be restricted to areas within an approved development footprint (“the approved development footprint”) on the approved Development Footprint Plan Drawing A01.01 dated 17 April 2018 as amended in red on 18 April 2018 (“the approved Development Footprint Plan”), which area was to be surveyed and pegged prior to the commencement of any operational work or building work;
    3. any fences erected to the perimeter of the subject land outside the approved development footprint to be constructed to allow the free movement of native fauna;
    4. retention, protection and maintenance of all existing vegetation outside the approved development footprint; and
    5. there to be no part of any building or structure (including but not limited to swimming pools, tennis courts, retaining walls, and tanks), no facilities associated with the development, no open space, no recreation areas, no landscaping, no on-site stormwater drainage, no on-site wastewater treatment, no areas of disturbance (including excavation and filling), no storage or stockpiles of materials, no on-site parking, no access and no manoeuvring areas outside the approved development footprint, whether for temporary, short-term or long-term periods unless otherwise agreed in writing by the Council.
  8. [41]
    The approved Development Footprint Plan outlines a 2,470 square metre area in red, which is the approved development footprint.  It encompasses the approved shed and a small rectangular area to its north, the existing dwelling house with attached garage, an area to the north of the existing dwelling house and a single transpiration trench in the north-western quadrant of the subject land.  The approved Development Footprint Plan shows the approved shed to be located 39.504 metres from the western boundary.
  9. [42]
    The approved shed is located in an area that is partly affected by the High ecological significance, High ecological significance strategic, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay.  It is reasonable to infer from the conditions of the Council’s shed approval that the Council was only prepared to permit building work in that location because of the offsetting ecological benefits that would be achieved by compliance with the conditions.
  10. [43]
    As was made clear in the Council’s shed approval, the development permit granted by the Council related to assessment of the building work against City Plan.  It did not include an assessment of building work against the requirements of the Building Act 1975.  A separate development permit was required to authorise the building work after assessment of the work against the requirements of the Building Act 1975.
  11. [44]
    It seems reasonable to infer from evidence given by Ms Nairn that Hartley Burns was engaged as a private certifier to assess the building work against the Building Act 1975.  Ms Nairn’s affidavit attaches a copy of a document that appears to be a development permit for building work assessed against the Building Act 1975 issued by Hartley Burns as private certifier (“the private certifier’s shed approval”).
  12. [45]
    The plans attached to the private certifier’s shed approval include the Development Footprint Plan with a Hartley Burns stamp indicating it to be an approved plan.  The other plans that are attached to the private certifier’s shed approval provide details of the footing, bracing and framing for the shed and provide construction details for a suspended slab.
  13. [46]
    There are no plans attached to the private certifier’s shed approval that depict a shed with a built-in undercroft, nor with a bathroom in the shed. 
  14. [47]
    The conditions of the private certifier’s shed approval state:
  1. “1.The plans and specifications are approved subject to
  • …
  • Shed Associated works to be constructed in accordance with Brisbane City Council Approved Decision Notice, Plans and Conditions.  Ref: A004813391 Dated: 04/05/2018.”
  1. [48]
    It is apparent from the affidavit of Ms Nairn that the Appellants have a copy of the approval referred to in condition 1 of the private certifier’s shed approval.  It is the Council’s shed approval.
  2. [49]
    Ms Nairn’s affidavit attaches a copy of a document that she says is a plumbing approval from the Council authorising an on-site effluent system for the shed (“the plumbing approval”). 
  3. [50]
    The on-site effluent system depicted in the plumbing approval includes a septic tank immediately adjacent the western wall of the shed and a transpiration trench further to the west, at a location that is 40 metres from the Grassdale Road frontage and 20 metres from the western boundary.  This is within the area mapped as High ecological significance, Koala habitat area, and Matters of state environmental significance sub-categories on the Biodiversity areas overlay in City Plan.
  4. [51]
    The plumbing approval indicates that the on-site effluent system was assessed in accordance with the Plumbing and Drainage Act 2002.  One of the approved plans shows a building lot envelope that largely mirrors the approved development footprint in the Council’s shed approval, save that the outline has been extended to include the septic tank and transpiration trenches proximate the shed. 
  5. [52]
    With respect to vegetation on the subject land, on 11 May 2023, with the consent of the parties, this Court made an order replacing an enforcement notice issued by the Council with a new enforcement notice dated 10 May 2023 (“the enforcement notice”).  The enforcement notice records that Ms Nairn contravened the condition of the Council’s shed approval that required the retention, protection and maintenance of all existing vegetation outside of the approved development footprint.  It imposes obligations on Ms Nairn to remedy the effect of that development offence.
  6. [53]
    The remedial action required in the enforcement notice includes the preparation and implementation of a replanting plan.  The replanting plan is to be prepared by a suitably qualified rehabilitation specialist.  It is to comply with identified minimum conditions, including that:
    1. replanting must include 34 native plants of 50 millimetre tube stock size comprising no less than 60 per cent canopy tree species and no more than 40 per cent shrubs and ground covers, with plants to be chosen from a list of native species;
    2. native plants must be planted in accordance with the following spacing:
      1. tall and small trees – one plant per five square metres; and
      2. shrubs – one plant per two square metres; and
      3. ground covers and grasses – one to two plants per one square metre;
    3. all weed species must be removed through weed management within the replanting area; and
    4. the replacement plants are to be maintained and monitored for 12 months.
  7. [54]
    To address the requirements of the enforcement notice, the Appellants commissioned JWA Ecological Consultants, who prepared the Site Replanting Plan dated May 2023 (“Site Replanting Plan”).  The Site Replanting Plan proposes two planting areas, which are annotated as planting area A and planting area B.  It also details the number and species of plants to be planted in each area to meet the requirements of the enforcement notice.  The identified planting involves 44 native plants.  The Site Replanting Plan indicates that an additional 10 plants are proposed to compensate for the loss of an additional two dead trees that are identified in an arborist report.  The arborist report was obtained pursuant to the terms of the enforcement notice.

What does the proposed development entail?

  1. [55]
    The Appellants seek approval to use part of the subject land to operate a building construction business.  Activities on-site include indoor storage of building equipment within the existing shed; an ancillary, detached office for accounts and business management activities; and periodic storage of containers and vehicles outdoors.
  2. [56]
    To ensure that any development approval reflects the nature of the activities that the Appellants are currently (unlawfully) undertaking on the subject land, the Appellants seek a development permit to make a material change of use for a domestic enterprise (“the proposed development”).  This is not a defined use in City Plan.  In their development application, the Appellants define the “Domestic Enterprise” use as:

“The use of a premises for business activities where:

  1. 1.the premises is also used for a dwelling; and
  2. 2.the dwelling is occupied by the owner of the business.

Business activities, for the Domestic Enterprise, means:

  1. 1.the private storage of goods, plant, and equipment that is used for a business; and
  2. 2.office activities,

carried out in the locations shown on the Plan of Development and Development Footprint Plan.”

  1. [57]
    By order of the Court made on 23 July 2024, the Appellants were permitted to make a minor change to their development application.  The Court ordered that the appeal proceed based on changed plans and a revised operational management plan.
  2. [58]
    Exhibit 16 contains a complete set of plans depicting the proposed development for which approval is sought (“the proposed plans”).  It includes Development Plan Drawing No. DP01.01 revision 3 (“the development plan”).
  3. [59]
    The business activities component of the domestic enterprise use is to be confined to a proposed development footprint that is marked with a blue dashed outline on the development plan (“the proposed development footprint”).  The proposed development footprint has an area of 2,890 square metres and is located towards the Grassdale Road frontage of the subject land.
  4. [60]
    Within the proposed development footprint for the business activities are:
    1. a shed, which is described as “existing approved shed” (“the proposed shed”);
    2. a demountable office building;
    3. an asphalt driveway that provides access to the business activities and the dwelling;
    4. 12 carparks, which are proposed on a concrete slab (described as “existing approved slab”), adjacent the concrete slab and at the end of the asphalt driveway;
    5. a 366-square-metre outdoor area designated for storage;
    6. a grassed area that appears to provide an area for vehicle manoeuvres that are associated with the outdoor storage area; and
    7. an area between the office building and the western boundary that is described as “existing approved transpiration trenches”, which appears to generally accord with the transpiration trenches depicted in the plumbing approval.
  5. [61]
    Although the development plan describes the shed as “existing approved shed”, the shed shown in the proposed plans is different to that depicted in the Council’s shed approval and the private certifier’s shed approval.  It is of similar length, width and height at the eastern end to the approved shed.  However, unlike the approved shed, the proposed shed has an enclosed undercroft level that is accessed from the west via a large roller door. 
  6. [62]
    The enclosed undercroft extends 18.112 metres under the ground level from the western façade.  The height of the proposed shed at its western end, measured as the distance between the floor of the undercroft level and the peak of the roof, is 10.742 metres.  The enclosed undercroft adds approximately 225 square metres gross floor area to the 375 square metres gross floor area that is available for storage in the approved shed. 
  7. [63]
    The new access point at the western end is within that part of the subject land that is identified as in the High ecological significance, Koala habitat area, and Matters of state environmental significance sub-categories of the Biodiversity areas overlay.
  8. [64]
    The office building is 12 metres wide and 10.4 metres long with a covered landing that extends the width of the structure.  It has a gross floor area of greater than 120 square metres.  The proposed office building sits 0.6 metres above the concrete slab and has a maximum height of 3.14 metres above the slab level.  It sits above ground that batters down to the adjoining vegetated areas to the west.  It contains three offices, six workstations, a meeting room, and kitchen and bathroom facilities. 
  9. [65]
    The proposed outdoor storage area has a road base surface and batters down the adjoining existing ground level.
  10. [66]
    On my review of the photographs in evidence before me, the proposed shed and the proposed office building reflect the existing shed and existing office building on the subject land. 
  11. [67]
    Outside of the proposed development footprint are:
    1. a 9,942-square-metre area that is designated as a covenant area;
    2. the existing approved dwelling with attached garage;
    3. existing transpiration trenches for the dwelling house;
    4. an area annotated as the location of a proposed, approved pool house;
    5. four areas of proposed planting in which:
      1. planting areas A and B are coincident with those areas in the Site Replanting Plan.  They are described as “existing replanting” and are to contain 35 tree species and 17 shrubs and ground cover species;
      2. planting areas C and D are described as “extra replanting” and are to contain 21 tree species and 8 shrubs and ground cover species; and
    6. large areas that are otherwise unannotated.
  12. [68]
    The parameters of the proposed development that the Appellants invite me to approve are further defined by reference to an Operational Management Plan dated 10 May 2024 (“the Operational Management Plan”).
  13. [69]
    The Operational Management Plan records that the shed is proposed to be used to store building equipment that is used on offsite construction sites.  The equipment is said to include three bobcats, tools, timber, scaffolding, H frames and laser levels. 
  14. [70]
    A forklift will also be stored in the shed and will be used to move materials to and from the undercroft level.  A flatbed truck and a concrete tipper will also be stored in the shed and will be used to move equipment to and from the ground floor level of the shed.
  15. [71]
    The Operational Management Plan provides an indication of the frequency of movement of vehicles.  This is not expressed as fixed limits on the proposed use, rather as an indication of typical operating conditions.
  16. [72]
    With respect to the flatbed truck, the Operational Management Plan says that the flatbed truck is stored on the ground floor of the shed each evening.  The driver of the truck parks in the office car park or in the shed if there is room.  The flatbed truck is used four days each week and, on rare occasions, on a Saturday.  The flatbed truck goes to and from the subject land up to three times per day.  It is driven into the storage shed for loading and unloading, which occurs within the shed using a forklift between 7 am and 6 pm Monday to Friday and between 7 am and midday Saturday.  The roller door and all windows are to be kept shut during loading and unloading, which is supervised by a resident employee.
  17. [73]
    According to the Operational Management Plan, the tipper truck is normally stored on a construction site but is stored in the shed when it is not being used on a construction site.  The Operational Management Plan says that the tipper truck will return to the subject land up to five times in a six-month period. 
  18. [74]
    A work utility vehicle is parked on the ground floor of the shed and is used up to five times a week to transport tools to and from construction sites.  The driver of the work utility vehicle will park their personal car in the car park or shed.
  19. [75]
    According to the Operational Management Plan, the office will be used for six full-time employees, with a maximum of four non-resident employees.  Office hours are to be between 6 am and 6 pm Monday to Friday and between 6 am to midday on Saturday, although one staff member arrives at 5.30 am to commence work in the office.  It is also proposed that up to two visitors be permitted at the office at any one time.
  20. [76]
    The Operational Management Plan identifies that the outdoor storage space is to be used to store up to four shipping containers, a scissor lift, a scissor lift trailer and a site office.  This equipment is to be stored in the outdoor storage space when it is not required on construction sites.  A tilt tray truck is to be used to move the shipping containers to and from the subject land.  The flatbed truck is used to move the scissor lift and trailer.  Movement of plant and equipment from the outdoor storage space is proposed to occur between 7 am and 6 pm Monday to Friday and between 7 am and midday on Saturday.
  21. [77]
    The Operational Management Plan provides an indication of the frequency of movement of equipment stored in the outdoor storage space.  This not expressed as fixed limits on the proposed use, rather as an indication of typical operating conditions.  In this respect, the Operational Management Plan says that shipping containers are normally moved directly between constructions sites but will be stored on the subject land when the business is not busy or sometimes between jobs or when they are not required at construction sites.  Shipping containers stored in the outdoor storage space are moved infrequently to and from the site.  The indication provided in this respect is four to six movements per year with eight to twelve truck movements to take containers off site and bring them back.  The scissor lift and trailer are moved up to ten times per year.
  22. [78]
    The Operational Management Plan also details noise management measures and traffic management measures.
  1. [79]
    In addition to the limits contained in the Operational Management Plan, the Appellants case is that approval should be subject to those conditions set out in Exhibit 20 (“the Appellants’ proposed conditions”).  They are not proposed with the agreement of the Council.  The Appellants can elect to adopt the conditions as parameters that define the extent of their proposed development.  If they elect not to, I have serious reservations about the Court’s ability to lawfully impose some of the Appellants’ proposed conditions. 
  1. [80]
    The Appellants’ proposed conditions contain limits and controls on the proposed development with respect to traffic, access and parking arrangements, stormwater management, visual amenity, ecology, bushfire and noise and air quality.  They have been proposed in response to recommendations made in joint expert reports with respect to traffic, stormwater, visual amenity, ecology, bushfire, and noise and air quality.  In effect, they are refinements (or changes) to the parameters and details of the proposed development that the Appellants have elected to propose.  The refinements to the proposed development contained in the Appellants’ proposed conditions represent no more than a minor change to the development application. 
  2. [81]
    In those circumstances, I will assess the development application on that basis that the Appellants are content for their proposed development to be defined by reference to the limitations and other parameters specified in the Appellants’ proposed conditions.

Is the proposed development an appropriate land use on the subject land?

  1. [82]
    The Council contends that the proposed development is an inappropriate land use on the subject land as it:
    1. is out of character with the locality;
    2. does not support the implementation of the policy direction for the planned greenspace system; and
    3. cuts across the clear land use intent for the subject land. 
  2. [83]
    For those reasons, the Council alleges that the proposed development does not comply with applicable assessment benchmarks against which the proposed development must be assessed, namely:
    1. the strategic outcome for Theme 3 of the Strategic framework in s 3.5.1 1.d., and Element 3.1 specific outcomes SO1, SO2 and SO4 and associated land use strategies L1, L2.1 and L4.2;
    2. the strategic outcome for Theme 5 of the Strategic framework in s 3.7.1 1.h. and i., and Element 5.6 specific outcome SO1 and associated land use strategies L1.2 and L1.3; and
    3. the overall outcomes in ss 6.2.4.1 2.a., b. and e. of the Environmental management zone code.
  3. [84]
    It is uncontentious that the provisions referred to by the Council are relevant assessment benchmarks. 
  4. [85]
    The Appellants concede that the proposed development does not comply with land use strategy L4.2 for Element 3.1, land use strategy L1.2 for Element 5.6 and the overall outcome in s 6.2.4.1 2.b. of the Environmental management zone code. 
  5. [86]
    Otherwise, the Appellants dispute the Council’s contentions.  They say that the proposed development is not out of character with the locality given the limits on the use.

Is the proposed development out of character with the locality?

  1. [87]
    To assist me with an assessment of the character impacts of the proposed development, I have the benefit of:
    1. expert evidence of Mr Dean Butcher and Mr Nicholas Mc Gowan, the visual amenity experts retained by the Appellants and the Council respectively;
    2. expert evidence from Mr Stephen Buhmann and Mr Greg Ovenden, the town planners retained by the Appellants and the Council respectively;
    3. many photographs of the area and the proposed plans; and
    4. the properly made submissions.
  2. [88]
    The submissions are a matter to which I must have regard: s 45(5)(a)(ii) of the Planning Act 2016, s 31(1)(g) of the Planning Regulation 2017 and paragraph (a)(v) of the definition of “common material” in sch 24 of the Planning Regulation 2017. 
  3. [89]
    In this case, the residents’ submissions reflect their experiences of the level of activity that is proposed.  This is because the Appellants are seeking a development permit to regularise their currently unlawful operation of business activities on the subject land.  Allowing for the fact that some of the mitigation measures now proposed are not currently in place, the submissions (and the photographs they attach) assist me with a real assessment of the impact that the proposed development would have on the character of the area: Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271. 
  4. [90]
    When viewed from the west along Grassdale Road, the subject land is moderately prominent within the local visual catchment because of its elevated nature and semi-open character.  This results in the existing shed having a prominence when viewed from Grassdale Road adjoining the subject land.
  5. [91]
    Mr Butcher opines that the presence of existing site vegetation along the western and southern boundaries, and to a lesser degree along the eastern boundary, reduces the visibility of the structures on the subject land.  Nevertheless, he accepts that the colouration of the enclosed undercroft of the shed may contribute to its perceived bulk and scale.  He says that, in contrast, the dark-coloured wall sheeting above the split-face blockwork is visually recessive and does not appear as prominent as the other lighter coloured finishes.  In Mr Butcher’s view, when the cream-coloured blockwork is combined with the split-face blockwork at ground level, it accentuates the appearance of height of the shed from ground level along its western façade.
  6. [92]
    To minimise any perceived visual impacts because of the prominence of the enclosed undercroft area, Mr Butcher recommends:
    1. painting the enclosed undercroft area of the shed with a darker colour to reduce its impact and prominence; and
    2. planting around the western and southern sides of the shed to minimise visibility and prominence of the enclosed undercroft area through natural screening in nominated locations.
  7. [93]
    Dr McGowan opines that, in its current form, the shed and existing unlawful use detracts from the greenspace values and the character of the area.  He says that the impact on these values and character could be adequately mitigated if additional landscaping is undertaken.  He also considers that an updated fence along the Gumdale Road frontage would improve compatibility with the local character.
  8. [94]
    In response to the evidence of the visual amenity experts, the Appellants’ proposed conditions require:
    1. the enclosed undercroft area of the shed to be painted with a darker colour;
    2. the planting referred to in paragraph [67](e) above;
    3. a new front boundary fence; and
    4. the installation of sections of colorbond fence running from the front boundary along the western boundary for 47.823 metres and along the eastern boundary for 41.641 metres. 
  9. [95]
    Mr Buhmann opines that these mitigation measures successfully mitigate the visual amenity impacts and that the proposed development will not be more imposing than a large dwelling.  He says that with the benefit of the proposed screen planting and the change in colour of the lower-level split-face blockwork on the shed, the proposed development will blend into the neighbourhood to the point of being unobtrusive.  I disagree.
  10. [96]
    On my review of the photographs, the existing shed presents as a two-storey-high shed at its eastern extent and as a three-storey high shed at its western extent.  Consideration of the properly made submissions reveals that several residents of Grassdale Road hold a similar view.  They describe the existing shed as a “large warehouse”, “an existing large warehouse visible at the front of the property … very close to the road … completely out of character with this semi rural area”, “a two-storey warehouse and large commercial office building” and representative of a “commercialisation” of the suburb. 
  11. [97]
    I accept that the appearance of excessive scale will be moderated by the proposed vegetative screening and change in colour of the split-face blockwork.  However, this will not disguise the intense nature of the operations proposed to be undertaken. 
  12. [98]
    The properly made submissions include photographs that demonstrate how, by reason of the topography of the land along Grassdale Road and the open style fence and gate at the access point, the proposed shed, office building and outdoor storage area are readily seen from Grassdale Road and neighbouring properties.  The photographs show how the subject land appears when the flatbed truck, forklift and other vehicles are present.  The photos support the observations of residents of Grassdale Road, who say that the large trucks and other vehicles that are regularly seen entering, exiting and parked on the subject land negatively impact on the character of the area.  The residents also describe traffic blockages caused by large trucks entering the subject land.
  13. [99]
    These observations from the residents of Grassdale Road are generally consistent with the view I have formed about the likely character impacts of the proposed development.  My views are informed by:
    1. my findings about the character of the locality in paragraphs [21] to [33] above;
    2. my appreciation of the character impacts of lawful development on the subject land having regard to the information in paragraphs [36] to [54] above; and
    3. the details of the proposed development identified in paragraphs [55] to [81] and [94] above, and all the Appellants’ proposed conditions in Exhibit 20.
  14. [100]
    Having regard to that material, I accept the evidence of Mr Ovenden about the character impact of the proposed development.  His opinions accord with the views that I have formed. 
  15. [101]
    Mr Ovenden opines that the nature of the built form and the type of activity associated with the proposed development will clearly be different from that found elsewhere along Grassdale Road and in the wider locality.  He explains that although a solid fence is now proposed, the proposed development, and its associated activity including vehicle movements, will remain visible from the driveway and Grassdale Road.
  16. [102]
    Mr Ovenden refers to several aspects of the development to explain the differences that he says will be apparent despite all the controls and mitigation measures that are proposed by the Appellants. 
  17. [103]
    One example of a material difference to which Mr Ovenden refers is the driveway that is required for the proposed development.  Condition 10 of the Appellants’ proposed conditions requires the construction of the Council’s Type B2 crossover that is generally in accordance with the Council’s standard drawing BSD-2021, with a “W1” dimension at the property boundary of six metres.  As Mr Ovenden explains, the standard drawings show that the width of the driveway then splays out wider at the interface with the carriageway.  I accept the evidence of Mr Ovenden that this enlarged driveway crossover will appear industrial in nature and out of place in Grassdale Road.  As Mr Ovenden observes, 34 properties on Grassdale Road between its intersections with Stanbrough and Tilley Roads, 27 of which have single width driveways, and seven have unformed driveways. 
  18. [104]
    Mr Ovenden also explains that the different character of use on the subject land will be highlighted by the placement of prominent signs on both approaches to the subject land that warn of trucks crossing or entering at times when the tilt tray vehicle is scheduled to visit the subject land.
  19. [105]
    These are but two examples of aspects of the use that demonstrate its inappropriate character.  As was explained by Mr Ovenden during his cross-examination, despite the proposed management measures and conditions, residents of the locality will still see and hear the uncharacteristic activity, such as shipping containers being dropped off.  Activities of that kind will indicate that there is an unanticipated use being conducted from the subject land.
  20. [106]
    Mr Ovenden’s opinion about the different character of the use accords with the observations made by residents of Gumdale Road in their submissions about the development application.  The submissions include photographs that demonstrate a level and type of activity that is inconsistent with the character of the area.   
  21. [107]
    I am satisfied that the mitigation measures adopted by the Appellants in their proposed plans and in the Appellants’ proposed conditions will reduce the visibility and the prominence of the built form associated with the proposed development compared to that shown in the photographs.  However, I am not persuaded that they will disguise the proposed development’s non-residential character. 
  22. [108]
    The frequency of vehicle movement, and the types of vehicles entering and exiting the subject land, coupled with the scale of the proposed shed, give the subject land an industrial character like that associated with a warehouse, contractor’s depot or storage yard.  The proposed development will be out of character in the locality.

Does the proposed development support the implementation of the policy direction for the planned Greenspace System? 

  1. [109]
    To assess whether the proposed development would support the implementation of the planned Greenspace System, it is necessary to first understand what City Plan seeks to achieve in that respect.

What is policy direction for the planned Greenspace System?

  1. [110]
    The Strategic framework sets the policy direction for City Plan and forms the basis for ensuring appropriate development occurs in the planning scheme area for the life of City Plan: s 3.1 1 of City Plan.  It is comprised of the strategic intent; five themes that collectively represent the policy intent of City Plan; strategic outcomes proposed for development in the planning scheme area for each theme; elements that refine and further describe the strategic outcomes; the specific outcomes sought for each element; and the land use strategies for achieving each of these outcomes: s 3.1 3. of City Plan.
  2. [111]
    Brisbane’s Greenspace System is a core strategic land use outcome that is established within the Strategic framework in City Plan.  It consists of land in the Conservation, Environmental management, Rural, Rural residential, Open space and Sport and recreation zones.  It is a network of greenspaces that is comprised of land with various attributes on the functionality continuum.  Some of the network involves land intended for active recreation-oriented land uses associated with parks and sport and recreation areas, whereas other parts of the network are planned for open, rural lifestyle-oriented land uses or environment-oriented land uses associated with waterway networks and lands supporting biodiversity areas or scenic amenity values.
  1. [112]
    The policy direction for Brisbane’s Greenspace System is a key focus in:
    1. Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values of the Strategic framework; and
    2. Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System of the Strategic framework.
  2. [113]
    Section 3.5.1 of City Plan contains the assessment benchmarks for Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values.  Section 3.7 of City Plan contains the assessment benchmarks for Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System.
  3. [114]
    As is recorded in the strategic outcome in s 3.5.1 1.d.:

“The Greenspace System serves many functions.  It contributes to the city’s character and liveability; it supports landscape, recreation and ecological functions, ecosystem services and defines local neighbourhoods and the edge of the city.”

  1. [115]
    In terms of ecological functions, City Plan seeks a resilient, robust and well-protected system of habitat areas, connected by ecological corridors, to provide habitats for a rich diversity of flora and fauna species, including the koala: s 3.5.1 1.f. of City Plan.
  2. [116]
    In terms of ecosystem services, the Greenspace System provides for natural, modified and urban ecosystems that benefit, sustain and support the wellbeing of people.  These are intended to be valued, maintained, protected and enhanced: s 3.5.1 1.e. of City Plan.
  3. [117]
    As was explained by Mr Ovenden, in broad terms, the Greenspace System is intended to accommodate non-urban type uses.  It provides for high amenity lifestyle lots and non-urban rural, environmental, or open space type uses.  As part of the Greenspace System, the Environmental management zone generally provides for the protection of environmentally sensitive areas from urban and industrial activities. 
  1. [118]
    Further guidance about the policy with respect to the Greenspace System is provided by the assessment benchmarks on which the Council relies, namely:
  1. (a)
    Element 3.1 specific outcomes SO1, SO2 and SO4 (and associated land use strategies L1, L2.1 and L4.2), which state:

Specific outcomes

Land use strategies

Overall environmental values

SO1

Brisbane’s Greenspace System’s biodiversity, recreational and cultural values and functions are protected, restored and enhanced.

L1

The Greenspace System, the majority of which occurs outside the urban footprint in the SEQ Regional Plan, also extends throughout the urban footprint through a series of district and metropolitan parks, waterway networks, sport and recreation areas and lands supporting biodiversity areas or scenic amenity values.  Zones that occur within the Greenspace System are:

  1. a.Conservation;
  2. b.Environmental management;
  3. c.Rural;
  4. d.Rural residential;
  5. e.Open space;
  6. f.Sport and recreation.

SO2

Brisbane’s Greenspace System provides an effective network of greenspace links and contributes to a regional network.

L2.1

Development does not fragment environmental management, rural residential or rural lands.

Biodiversity values

SO4

Brisbane has an ecologically resilient and robust network of well-connected habitats containing a comprehensive, adequate and representative sample of ecosystems and species.

L4.2

Development for an urban purpose is located outside areas of high ecological significance or high strategic biodiversity value.

  1. (b)
    the strategic outcomes in ss 3.7.1 1.h. and i., which state:
  1. “h.Brisbane’s Greenspace and Rural Neighbourhoods which are located outside and on edges of the urban footprint in the SEQ Regional Plan and the Priority infrastructure area at the periphery of the city, including the Moreton Bay islands:
  1. i.are very low-density areas that generally comprise single houses on large lots;
  2. ii.are not provided with the same level of service as urban locations with regard to the delivery of physical infrastructure, particularly connection to the sewer network, public transport, roads and refuse collection;
  3. iii.are developed for rural industries including horticulture, intensive animal industry, livestock grazing and cropping in Rural Neighbourhoods;
  4. iv.maintain Brisbane’s ecological assets and provide some of its park and recreation needs.
  1. i.Brisbane’s Greenspace (refer to Brisbane greenspace system strategic framework map) offers a well-connected system of places with environmental, recreational and rural values in a variety of land use settings which:
  1. i.comprises the majority of the city’s land outside the urban footprint in the SEQ Regional Plan and land within the urban footprint located in a series of district and metropolitan parks, waterway networks, sport and recreation areas and lands supporting citywide biodiversity areas or scenic amenity values;
  2. ii.frames and weaves through the city, including the green hills of Brisbane Forest Park and Mt Coot-tha, the leafy suburbs and waterways, along the Brisbane River to Moreton Bay and the Moreton Bay islands;
  3. iii.maintains Brisbane’s ecological assets and provides for many of its park and recreation needs;
  4. iv.serves many functions which are described in the clean and green leading environmental performance theme.
  1. (c)
    Element 5.6 specific outcome SO1 and associated land use strategies L1.2 and L1.3, which state:

Specific outcomes

Land use strategies

Greenspace System

SO1

The Greenspace System’s values and functions are identified, retained and enhanced.

L1.2

Development intensity, land use allocation, siting and design protect the multiple values and functions of the Greenspace System.

L1.3

Development does not fragment high-value biodiversity areas, areas for large-scale rehabilitation, fauna movement and rural activities.

  1. [119]
    These assessment benchmarks in the Strategic framework record city-wide policies that are then implemented through finer-grained planning in City Plan, such as the allocation of land to zones and the assessment benchmarks in zone codes. 
  2. [120]
    Relevantly, the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code states:
  1. “a.Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:
  1. i.Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values;
  2. ii.Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System.”

Does the proposed development support the planned Greenspace System?

  1. [121]
    The town planners disagree about whether the proposed development supports the implementation of the policy direction set in the Strategic framework.
  2. [122]
    Mr Buhmann accepts that, at face value, industrial uses are a discordant use within the Environmental management zone.  However, in his opinion, the proposed development does not conflict with the strategic intent of City Plan with respect to the Greenspace System.  This is because, in Mr Buhmann’s opinion, the proposed development will appropriately mitigate any adverse impacts to the Greenspace System and its environmental, visual and lifestyle functionality.  He says this is achieved by the contained footprint of the proposed development, the adoption of measures to prevent adverse amenity impacts such as noise emissions, and the compensatory environmental improvements.
  3. [123]
    Mr Ovenden disagrees with Mr Buhmann.  He opines that, even taking account of the existing approvals and the conditions proposed by the various experts to mitigate impacts, the proposed development remains fundamentally discordant with the strategic direction of City Plan. 
  4. [124]
    I do not find Mr Buhmann’s evidence compelling.  His approach assumes that the planning policy with respect to the Greenspace System, and the assessment benchmarks that implement it, focus on the protection of existing greenspace values from material impacts. 
  5. [125]
    The assessment benchmarks in the Strategic framework are expressed in broad terms.  This is unsurprising as they set the policy for City Plan.  It is unlikely that a single development would, by itself, undermine the Greenspace System.  The Council accepts this but says that the assessment benchmarks in the Strategic framework provide important context.  I agree.  That said, I am not persuaded that there is compliance with the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code, or the identified assessment benchmarks in the Strategic framework, by the mere fact that the proposed development does not, of itself, undermine the Greenspace System or result in substantial degradation of the values and functions that define it. 
  6. [126]
    When read holistically, the assessment benchmarks reflect a clear planning policy to ensure that the extent and quality of the Greenspace System is not only protected, but also restored and enhanced.  The overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code calls for support of this policy.  Mitigation of impacts does not equate to support.
  7. [127]
    The mitigation of impacts from inappropriate development may be sufficient to demonstrate that Brisbane’s Greenspace System’s biodiversity, recreational and cultural values and functions are protected.  It is insufficient to demonstrate the restoration and enhancement of the values and functions of the Greenspace System.
  1. [128]
    Land in the Environmental management zone is an important component to the Greenspace System.  The assessment benchmarks in the Environmental management zone code that control appropriate land uses in the zone are fundamental to implementation of the strategic policy for the Greenspace System.  For reasons explained in greater detail in paragraphs [132] to [154] below, the proposed development is not consistent with those assessment benchmarks. 
  2. [129]
    The proposed development is for an urban purpose, and it is not located outside areas of high ecological significance or high strategic biodiversity value as required by land use strategy L4.2 for Element 3.1.  Even though there is an approval for a shed of a similar footprint and location to that proposed, the proposed development introduces inappropriate activity and use within areas of high ecological significance or high strategic biodiversity value.  For example, the proposed development introduces the movement of equipment in and out of the undercroft of the shed in an area that is of high ecological significance.  This brings with it ongoing threats to the biodiversity of the area, such as through the introduction of weeds.  As such, the form of land use proposed and its intensity are not consistent with the values and functions of the Greenspace System on the subject land.
  3. [130]
    For reasons that I will explain in detail below when addressing the issue of ecological impacts, I am not persuaded that the proposed development, including the measures proposed with respect to the covenant area, will restore or enhance the values and functions of the Greenspace System on the subject land.
  4. [131]
    I am comfortably satisfied that the proposed development involves a use of the subject land that does not support the implementation of the policy direction set in the Strategic framework.  It does not comply with the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code.  It is discordant with the policy identified in those assessment benchmarks relied on by the Council.

Does the proposed development cut across the clear land use intent for the subject land?

  1. [132]
    The Council alleges that the proposed development cuts across the clear land use intent for the subject land recorded in the assessment benchmarks of the Environmental management zone code.
  2. [133]
    In City Plan, zones organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses: s 6.1 1. of City Plan. 
  3. [134]
    The purpose of the Environmental management zone code is set out in s 6.2.4.1 1. of City Plan and states:

“The purpose of the environmental management zone is to:

  1. a.identify environmentally sensitive areas; and
  2. b.provide for the protection of the environmentally sensitive areas from urban and industry activities, other than:
  1. i.dwelling houses and other low-impact activities; and
  2. ii.quarries, if the protection or promotion of the quarries is identified in the planning scheme as a strategic outcome for the local government area.”
  1. [135]
    It is uncontroversial that the subject land is appropriately identified as an environmentally sensitive area and, as such, appropriately included in the Environmental management zone.  This is recognised by Mr Wayne Moffitt, the terrestrial ecology experts retained by the Appellants, and Mr Clowes.  They are each familiar with the ecological values of the locality, having conducted inspections of the area.  According to Mr Moffitt, the subject land supports regulated vegetation, koala habitat and areas of high ecological significance.  Mr Clowes expresses similar views.  I accept this evidence of the ecological experts.
  2. [136]
    The proposed development involves use for more than just a dwelling house.  As such, whether it cuts across the planning intent for land in the Environmental management zone requires consideration of whether it is an anticipated low-impact activity. 
  3. [137]
    The purpose of the Environmental management zone code will be achieved through the overall outcomes in the code: s 6.1 7. of City Plan.
  4. [138]
    The Council contends that the proposed development does not comply with the overall outcomes in ss 6.2.4.1 2.a., b. and e. of the Environmental management zone code.  It also says that no relevant support for the proposed development is provided by the other overall outcomes in the Environmental management zone code that identify the preferred and acceptable land uses, such as those in ss 6.2.4.1 h., i. and j. of the Environmental management zone code.
  5. [139]
    The Appellants do not meaningfully address these allegations, choosing instead to focus on the Council’s allegations that the proposed development is out of character and is inconsistent with the planned Greenspace System.
  6. [140]
    I readily accept that the overall outcomes ss 6.2.4.1 h., i. and j. of the Environmental management zone code provide no support for the proposed development.  Those overall outcomes identify certain land uses that are acceptable in the Environmental management zone where identified criteria are satisfied.  The proposed development is not one of those identified land uses in the overall outcomes ss 6.2.4.1 h., i. and j. of the Environmental management zone code.
  7. [141]
    The overall outcomes in ss 6.2.4.1 2.a., b. and e. of the Environmental management zone code state:
  1. “a.Development in the zone supports the implementation of the policy direction set in the Strategic framework, in particular:
  1. i.Theme 3: Brisbane’s clean and green leading environmental performance and Element 3.1 – Brisbane’s environmental values;
  2. ii.Theme 5: Brisbane’s CityShape and Element 5.6 – Brisbane’s Greenspace System.
  1. b.Development sustains natural environment-centre living and other land uses, compatible with conserving and maintaining the integrity of the city’s wildlife, habitats and other significant ecological assets and processes on private land.
  2. e.Development provides for a natural environment-centred land use, including permanent biodiversity plantation or nature-based outdoor recreation activity to co-exist with, conserve and enhance environmental values and functions through innovative design, planning and construction approaches.” 
  1. [142]
    For reasons explained above, the proposed development does not comply with the overall outcome in s 6.2.4.1 2.a. of the Environmental management zone code.
  2. [143]
    The Appellants concede that the proposed development is not consistent with the overall outcome in s 6.2.4.1 2.b. of the Environmental management zone code but say that they comply with the overall outcome in s 6.2.4.1 2.e. of the Environmental management zone code.
  3. [144]
    The evidence relied on by the Appellants to support their position is the opinion expressed by Mr Moffitt at paragraph 55.a. of the 2nd Terrestrial Ecology Joint Experts’ Report, wherein Mr Moffitt says:

“The proposed development maintains a natural environment centred landuse (sic) by retaining the width of the corridor along the western boundary of the Site, and providing mitigating planting to address the minor impacts that arise from the proposed development.”

  1. [145]
    I do not accept Mr Moffitt’s opinion. 
  2. [146]
    Mr Moffitt’s opinion is fundamentally premised on a characterisation of the use in a manner that is inconsistent with long recognised principles in town planning law about the identification, delineation and proper characterisation of a use.  I identify the relevant principles in Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12 at [30] and [31], wherein I explain:
    1. the identification and delineation of a planning use is a question of fact;
    2. the proper characterisation of a use is determined by undertaking an evaluative exercise that calls for consideration of the circumstances of the case, the applicable legislative regime and the planning context: Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160 and 161; Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 217; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, 409; Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 291 [40]; Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, 227-8 [14]; 
    3. a planning unit is the entire physical area that is used for a particular purpose, including any part of that area where a use is incidental, or ancillary, to the achievement of that purpose: Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244;
    4. where a single unit of occupation contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, each area that is used for a different main purpose (together with its incidental and ancillary activities) should be considered as a separate planning unit: Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244;
    5. where the whole premises is used for two or more purposes, none of which are subservient to the others, it is irrelevant to inquire which of the multiple purposes is dominant: Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 161;
    6. where premises are used for two or more purposes, one of which is described as the dominant purpose, and the others are described as ancillary to the dominant purpose, the ancillary purpose or purposes take their colour from the dominant purpose: Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160; Cook v Woollongong City Council (1980) 41 LGRA 154, 159; and
    7. consideration of an entire unit of occupation might reveal a composite or mixed use in circumstances where the occupier carries on a variety of activities that are not confined within separate and physically distinct areas of land, the component activities fluctuate in their intensity from time to time, and it is not possible to say that one is incidental or ancillary to another: Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] and [39], citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244 and Fidler v First Secretary of State [2005] 1 P & CR 169, 175.
  3. [147]
    When considering the relevant planning context, I am cognisant that City Plan is to be construed using the principles that apply to the construction of statutes.  City Plan is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes: AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].   
  4. [148]
    City Plan does not define the terms “natural environment-centred living” or “natural environment-centred land use”.  Those terms should be given their ordinary meaning informed by their relevant context, which includes:
    1. that the overall outcomes in question seek to achieve the purpose of providing for the protection of the environmentally sensitive areas from urban and industry activities, other than dwelling houses and other low-impact activities; and
    2. the examples provided in the overall outcome in s 6.2.4.1 2.e. of City Plan.
  5. [149]
    With those matters in mind, I turn to the relevant attributes of the proposed development that inform its proper characterisation. 
  6. [150]
    In urging me to adopt Mr Moffitt’s evidence, the Appellants’ approach assumes that the retention of vegetation along the western boundary of the subject land and the provision of mitigating planting are material characteristics defining the nature of the use.  I disagree.  Even if I ignore that the retention of vegetation and parts of the replanting are already required by the Council’s shed approval and the enforcement notice, they are not the primary characteristics that define the use. 
  7. [151]
    Those characteristics that primarily define the use are readily identified by reference to the Appellants’ definition of “Domestic Enterprise” (see paragraph [56] above).  The other parameters that define the use are set out in paragraphs [55] to [81] above.   In the circumstances, I am comfortably satisfied that the proposed development is not “natural environment-centred living” or “natural environment-centred land use”.  It is a composite use that has, in part, an industrial character.
  8. [152]
    In addition, for reasons that I will explain further when dealing with ecology impacts below, the proposed development is not compatible with conserving and maintaining the integrity of the city’s wildlife, habitats and other significant ecological assets and processes and it does not conserve and enhance the environmental values of the subject land.  My findings in that respect have been formed having regard to the development approvals that authorise built form on the subject land and the lawful residential use that can occur on the subject land.
  9. [153]
    For the reasons provided above, I find the proposed development is not consistent with the overall outcomes in ss 6.2.4.1 2.b. and e. of the Environmental management zone code.  The proposed development cuts across the land use intent for the subject land evident in the Environmental management zone.

What is the significance of the non-compliances with respect to land use?

  1. [154]
    The Appellants say that little weight would be afforded to the non-compliances with those assessment benchmarks in City Plan that relate to the intended land use of the subject land.  They rely on the evidence of Mr Buhmann to support their position in this regard. 
  2. [155]
    The Council disagrees.  It says that City Plan discourages developments of the nature and type proposed in the Environmental management zone.  This discouragement extends to the Strategic framework where there is an intent for uses of this nature to be located outside of the greenspace network and outside of the Environmental management zone.  The Council submits that this land use non-compliance is incapable of resolution through conditions and, by itself, warrants refusal of the proposed development.  The Council urges me to accept the evidence of Mr Ovenden in this respect.
  3. [156]
    Mr Buhmann acknowledges that standard planning orthodoxy is to locate uses such as warehouses, contractor’s depots or storage yards with associated offices in an industry zone.  This is because industrial uses are best located within an industry zone as that provides physical separation to sensitive land uses.  It ensures that industrial use activities are not unduly hampered by proximity to sensitive land uses.  Mr Buhmann opines that City Plan reflects orthodox planning of this nature through its separation of land into identified zones.  In this respect, Mr Buhmann accepts that, at face value, industrial uses are a discordant use within the Environmental management zone. 
  4. [157]
    I accept this evidence given by Mr Buhmann.  It accords with evidence given by Mr Ovenden, which I accept. 
  5. [158]
    Mr Ovenden explains that, at the strategic level, City Plan provides for employment areas throughout Brisbane City.  City Plan identifies industrial areas, particularly land in the Low impact industry zone and General industry zone, as the appropriate location for warehouse and contractors’ yard type uses and associated offices.  The proposed development is of a similar nature to those uses.  The industrial areas are generally well located in the strategic road network and separated from sensitive residential uses and areas of high ecological value and amenity. 
  6. [159]
    Mr Ovenden acknowledges that City Plan makes provision for the establishment of home-based businesses in residential areas throughout Brisbane City.  In doing so, it provides a degree of flexibility for residents to operate businesses that are of limited scale from their dwellings and outbuildings.  This facilitates embryonic businesses that are small in scale and low in impacts.  According to Mr Ovenden, the controls on the nature and scale of a home-based business are such that there is an almost imperceptible difference between their impacts and the impacts occasioned by a dwelling house.  Home-based business uses are to be conducted within a dwelling house or outbuilding and are to be subordinate to the dwelling house. 
  7. [160]
    Mr Ovenden’s evidence is cogent, compelling and supported by a proper reading of the City Plan in its entirety.  I accept it.
  8. [161]
    Having regard to the evidence of the town planning experts referred to above, I am satisfied that City Plan’s policies about the location of warehouses, contractor’s depots or storage yards in industrial areas and the limitation of uses in the Environmental management zone are soundly based. 
  9. [162]
    The town planning experts disagree about the significance of the non-compliance occasioned by the proposed development.
  1. [163]
    Mr Buhmann opines that the proposed development does not conflict with the strategic intent of City Plan with respect to land use.  There are three propositions that are fundamental to his opinion.  First, Mr Buhmann says that the true impact of the proposed development is the marginal increase in footprint area over that permitted by the Council’s shed approval.  Second, he opines that the proposed development does not constitute an overtly commercial or industrial land use.  Third, Mr Buhmann is of the view that the proposed development will appropriately mitigate any adverse impacts to the Greenspace System and its environmental, visual and lifestyle functionality.
  2. [164]
    I do not accept Mr Buhmann’s evidence that the differences are limited to a marginal increase in footprint or that the proposed development is not an overtly commercial or industrial land use. 
  3. [165]
    When considering the impact of the proposed development, it is necessary to have regard to any development approval for, and any lawful use of, the subject land.  I have detailed the relevant information in that regard in paragraphs [36] to [54] above. 
  4. [166]
    I have set out the relevant details of the proposed development at paragraphs [55] to [81], including its built form aspects and operational characteristics.  Both the built form and the operational characteristics inform the proper characterisation of the proposed use.
  5. [167]
    When I compare the development authorised by the development approvals and the lawful use of the subject land to all the relevant details that inform the proposed development, there are material differences.  They relate to the nature and intensity of the use conducted on the premises by reason of the proposed operation of business activities on the subject land.
  6. [168]
    As I have indicated above, I accept the evidence of Mr Ovenden about the character of the proposed development. 
  7. [169]
    Also, as I have already found above, Mr Buhmann’s approach to the assessment against the Strategic framework, and the policy with respect to the Greenspace System, is not compelling.  
  8. [170]
    I prefer the evidence of Mr Ovenden to that of Mr Buhmann.  Mr Ovenden’s evidence is cogent, consistent with a proper reading of City Plan, and well-supported by the other evidence, including the photographic evidence and plans. 
  9. [171]
    Mr Ovenden opines that, even taking account of the existing approvals and the conditions proposed by the various experts to mitigate impacts, the proposed development remains fundamentally discordant with the intended character and amenity of the area.  He says that the proposed development is discordant with the strategic direction of City Plan and sound town planning principles to separate high amenity lifestyle areas from industrial type uses. 
  10. [172]
    Mr Ovenden explains his opinion by reference to a clear land use strategy in the Strategic framework and the Environmental management zone code.  He says that the Environmental management zone in Gumdale, within which the subject land is centrally located, is an area that has a rural residential character but with a higher degree of environmental protection than that provided to land in the Rural residential zone.  According to Mr Ovenden, this locality is one in which a very high degree of residential amenity would reasonably be expected.
  11. [173]
    Mr Ovenden opines that the proposed development sits in stark contrast to the nature, scale and intensity of a home-based business.  In his view, the proposed development would cut across the clear planning strategy about the appropriate location of uses.  He considers that there is no sound town planning basis to warrant such a decision.  He says that in the suburbs surrounding the subject land, there is land in the industry zones that is well located and generous in size.  According to Mr Ovenden, that land provides reasonable opportunities to establish uses such as the business activities component of the proposed development.
  12. [174]
    Mr Ovenden’s opinions accord with my own independent assessment of the proposed development, which I have undertaken having regard to:
    1. consideration of City Plan in its entirety;
    2. the development approvals for, and lawful use of, the subject land as identified in paragraphs [36] to [54] above;
    3. the details of the proposed development set out at paragraphs [55] to [81] above; and
    4. my review of the photographs, the proposed plans, all the proposed mitigation measures in the Operational Management Plan and the Appellants’ proposed conditions, and those mitigation measures identified by the ecology experts set out at paragraphs [191] to [193] and [232] below.
  1. [175]
    I accept the Council’s submission that City Plan discourages the location of development of the nature and type proposed in the Environmental management zone.  This discouragement is evident from the finer-grained assessment benchmarks in the Environmental management zone code and those that reflect the broader planning policy in the Strategic framework.
  2. [176]
    The proposed development is inconsistent with the land use and character expectations for the subject land set in City Plan.  The extent of discord between the proposed development and the land use intentions for the subject land involves serious non-compliance with the planning intentions for the subject land.  The inappropriate character impacts occasioned by the proposed use represents a compelling reason to refuse the proposed development.  The land use non-compliance and inappropriate character impact is incapable of resolution through conditions and, by itself, warrants refusal of the proposed development.

Does the proposed development involve unacceptable ecology impacts?

  1. [177]
    The Council alleges that the proposed development would give rise to an inappropriate and unacceptable ecological outcome when assessed against the planning intent for the subject land revealed by the assessment benchmarks in:
    1. Element 3.1 specific outcomes SO1, SO2, SO4 and SO5, and associated land use strategies L1, L2.1, L4.2, L5.2 and L5.3;
    2. the strategic outcome for Theme 5 of the Strategic framework in s 3.7.1 1.h. and i., and Element 5.6 specific outcomes SO1, SO2, SO4 and SO5 and associated land use strategies L1.2, L1.3, L2, L4 and L5; and
    3. the overall outcomes in ss 6.2.4.1 2.b., c., e., l. and m. of the Environmental management zone code; and
    4. the overall outcomes in ss 8.2.4.2 2.a., d., e. and f. and performance outcome PO4 of the Biodiversity areas overlay code.
  2. [178]
    The Council says that the unacceptable ecological impact calls for refusal of the proposed development.
  3. [179]
    It is uncontentious that the provisions referred to by the Council are relevant assessment benchmarks. 
  4. [180]
    The Appellants concede that the proposed development does not comply with:
    1. land use strategies L4.2 for Element 3.1;
    2. land use strategies L1.2, L2, L4 and L5 for Element 5.6;
    3. the overall outcomes in ss 6.2.4.1 2.b., c. and l. of the Environmental management zone code; and
    4. the overall outcomes in ss 8.2.4.2 2.a., d., e. and f. and performance outcome PO4 of the Biodiversity areas overlay code.
  5. [181]
    Otherwise, the Appellants contend that:
    1. the impacts to ecological values on the subject land caused by the proposed development are not of a magnitude that warrant refusal but merely require mitigation in accordance with the measures proposed by Mr Moffitt; or, alternatively,
    2. appropriate mitigation could be achieved by imposing conditions reflective of those suggested by Mr Clowes (although the Appellants also say that such conditions would not be lawful under s 65 of the Planning Act 2016); and
    3. approval of the proposed development with conditions imposing the mitigation measures (as proposed by either Mr Moffitt or Mr Clowes) will improve and enhance the ecological values of the subject land by:
      1. the grant of a covenant that secures the conservation and protection of at least 9,942 square metres of land affected by the Biodiversity areas overlay;
      2. the regeneration of at least part of the understorey that has been cleared that is otherwise likely to remain cleared;
      3. the replanting of some larger habitat trees as proposed by the visual amenity experts, which replanting will serve the dual purpose of providing visual amenity screening and improving the ecological values in that area;
      4. the construction of a pet-exclusion fence around the most vulnerable part of the covenant area; and
      5. the creation of koala crossing points along the boundary fence.
  6. [182]
    The respective cases of the parties call for consideration of the following four factual questions:
  1. 1.What do the assessment benchmarks require in respect of ecological impacts?
  2. 2.What mitigation measures with respect to ecology do the Appellants propose?
  3. 3.Does the proposed development achieve appropriate ecological outcomes?
  4. 4.Should I impose conditions requiring additional measures consistent with the recommendations of Mr Clowes?

What do the assessment benchmarks require in respect of ecological impacts?

  1. [183]
    I have already extracted some of the assessment benchmarks put in issue at paragraphs [118], [120], and [141] above.
  2. [184]
    In addition, the Council relies on:
  1. (a)
    Element 3.1 specific outcomes SO5 and associated land use strategies L5.2 and 5.3, which state:

Specific outcomes

Land use strategies

Biodiversity values

SO5

Brisbane achieves positive biodiversity development outcomes, where interface areas are provided by the development and offsets enable restoration of areas that form part of the Greenspace System and the city's biodiversity values.

L5.2

Development which results in the loss of native vegetation provides compensatory habitat that restores degraded areas within the identified network of habitat and ecological corridors.

L5.3

Biodiversity areas are identified and incrementally restored, including through the use of environmental offsets.

  1. (b)
    Element 5.6 specific outcomes SO2, SO4 and SO5 and associated land use strategies L2, L4 and L5, which state:

Specific outcomes

Land use strategies

Greenspace System

SO2

The Greenspace System is expanded to protect areas with green space values.

L2

Development in the Greenspace System appropriately reflects the values of the site and ensures those areas of the site are protected or enhanced.

SO4

The Greenspace System protects koala habitats.

L4

Development protects koala habitat in biodiversity areas as mapped in the Biodiversity areas overlay.

SO5

The Greenspace System maintains and enhances the capacity of ecosystems to provide ecosystem services.

L5

Development identifies and protects areas with high levels of ecosystem services from development impacts.

  1. (c)
    the overall outcomes in ss 6.2.4.1 2.c., l. and m. of the Environmental management zone code, which state:
  1. “c.Development provides for land to be managed for both its nature conservation values and environmental functions, including a broad range of ecosystem services.
  2. l.Development does not adversely impact upon the values and functions of the land, including its landscape or natural resource values through innovative design, planning and construction approaches, including application of noise, light and physical buffers external to the values being conserved.
  3. m.Development responds to land constraints, mitigates any adverse impacts on environmental values and addresses other specific characteristics, as identified by overlays affecting the site or in codes applicable to the development.”
  1. (d)
    the overall outcomes in ss 8.2.4.2 2.a., d., e. and f. of the Biodiversity areas overlay code, which state:
  1. “a.Conservation, consolidation, connection and restoration of the network of lands with in-situ values or areas of strategic biodiversity value within Brisbane.
  2. d.Protection, enhancement and restoration of koala habitat and the facilitation of safe koala movement to assist in the long-term retention of a viable koala population within South East Queensland.
  3. e.Avoidance of impacts to biodiversity values, ecological features and ecological processes through the placement of development within a development footprint.
  4. f.All reasonable on-site measures to avoid and mitigate impacts on biodiversity values from the development have been, and will be, undertaken.
  1. (e)
    performance outcome PO4 of the Biodiversity areas overlay code, and the associated acceptable outcomes, which state:

Specific outcomes

Land use strategies

If a site is wholly or partly in the High ecological significance sub-category or the High ecological significance strategic subcategory

PO4

Development ensures that ecological features and ecological processes, koala habitat trees, areas of strategic biodiversity value, waterways and wetlands within the High ecological significance sub-category or the High ecological significance strategic sub-category are protected, conserved and restored to ensure the area’s long-term viability.

AO4.1

Development:

  1. a.ensures that the development footprint, including roads, services, stormwater management infrastructure, any associated filling or excavation works and any fire management access and buffers, are located wholly outside the High ecological significance sub-category or the High ecological significance strategic sub-category; or
  2. b.complies with AO4.2, AO4.3 and AO4.4.

AO4.2

Development ensures that the development footprint, design and layout are informed by an ecological assessment which:

  1. a.identifies and evaluates biodiversity values, ecological features (including significant vegetation communities listed in Table 8.2.4.3.B, significant flora species listed in Table 8.2.4.3.C, or significant fauna species listed in Table 8.2.4.3.D), koala habitat trees, areas of strategic biodiversity value, waterways and wetlands;
  2. b.identifies the likely impacts of the development to biodiversity;
  3. c.outlines how any potential impacts on biodiversity will be avoided and mitigated.

Note–Guidance on completing an ecological assessment, development design and identifying koala habitat are included in the Biodiversity areas planning scheme policy.

AO4.3

Development ensures that the development footprint, design and layout conserves ecological features (including significant vegetation communities listed in Table 8.2.4.3.B, significant flora species listed in Table 8.2.4.3.C, or significant fauna species listed in Table 8.2.4.3.D), koala habitat trees, and wetlands in a spatial distribution which:

  1. a.conserves area within the High ecological significance sub-category or the High ecological significance strategic sub-category that connect habitat or areas of strategic biodiversity value which have the capacity to connect habitat upon being restored;
  2. b.maximises the size and consolidates areas to be conserved for biodiversity purposes on site and in combination with adjoining sites;
  3. c.provides connectivity between areas to be conserved for biodiversity purposes on site and with adjoining sites;
  4. d.minimises the edge-to-area ratio of areas to be conserved for biodiversity purposes to limit edge effects;
  5. e.minimises fragmentation by infrastructure;
  6. f.includes a single development footprint plan for each new residential lot to be created which is:
  1. i.1000m2 or less where on a lot in the Low density residential zone, the Low-medium density residential zone, the Medium density residential zone, the High density residential zone or the Character residential zone;
  2. ii.2500m2 or less where on a lot in the Environmental management zone, the Conservation zone, the Emerging community zone, the Rural zone or the Rural residential zone;
  1. g.excludes filling or excavation from areas to be conserved for biodiversity, except where it is directly associated with habitat restoration.

Note–Guidance on development design is included in the Biodiversity areas planning scheme policy.

AO4.4

Development is designed to minimise edge effects by locating land uses compatible with the long-term preservation of biodiversity adjacent to areas within the High ecological significance sub-category or the High ecological significance strategic sub-category, including:

  1. a.esplanade roads and pathways;
  2. b.landscaping or habitat restoration areas consisting of local indigenous plant species;
  3. c.open space land uses;
  4. d.employee or communal recreation areas;
  5. e.stormwater management infrastructure where adopting water sensitive design solutions.

Note–Guidance on development design to minimise edge effects is included in the Biodiversity areas planning scheme policy.

  1. [185]
    The Appellants concede non-compliance with the assessment benchmarks identified in paragraph [184] above and I have found non-compliance with the overall outcome in s 6.2.4.1 2.e. of the Environmental management zone code in paragraph [154] above.  That leaves, as a live issue, the question of compliance with:
    1. Element 3.1 specific outcomes SO1, SO2, SO4 and SO5, and associated land use strategies L1, L2.1, L5.2 and L5.3;
    2. the strategic outcome for Theme 5 of the Strategic framework in s 3.7.1 1.h. and i., and Element 5.6 specific outcomes SO1, SO2, SO4 and SO5 and associated land use strategy L1.3; and
    3. the overall outcome in s 6.2.4.1 2.m. of the Environmental management zone code.
  2. [186]
    The ecological outcomes sought in those assessment benchmarks are reflected in the finer-grained assessment benchmarks in the Biodiversity areas overlay code. 
  3. [187]
    The assessment benchmarks for the Biodiversity areas overlay only relate to that part of the subject land affected by the overlay: s 8.1 6 of City Plan.  That said, they apply to almost all forms of development proposed within an overlay area, including building work for outdoor lighting in specified circumstances: s 5.10 and Table 5.10.4 of City Plan. 
  4. [188]
    In combination, the Biodiversity areas overlay code and the Table identifying the development to which it applies reveals a strong planning policy that when land affected by the Biodiversity areas overlay is sought to be developed, the new development is expect to:
    1. mitigate impacts of the substantive use or works; and
    2. consolidate, connect and restore the network of lands with in-situ values or areas of strategic biodiversity value within Brisbane; and
    3. enhance and restore koala habitat and facilitate safe koala movement to assist in the long-term retention of a viable koala population within South East Queensland.
  5. [189]
    The assessment benchmarks in the Biodviersity areas overlay code sets high standards for development on land affected by the overlay.  These standards are unlikely to be addressed by adopting a minimalistic approach that only does what is necessary to mitigate the direct impacts on existing, on-site values occasioned by any new development.  This is demonstrated by consideration of the assessment benchmarks in the Biodviersity areas overlay code in conjunction with the other assessment benchmarks identified in paragraph [189] above.
  6. [190]
    The Appellants assert that the conceded non-compliances can be cured by conditions that mitigate the impacts occasioned by the proposed development on the degraded values that presently exist on site.

What mitigation measures with respect to ecology do the Appellants propose?

  1. [191]
    The Appellants’ position about how the issues of non-compliance with the relevant ecological assessment benchmarks are appropriately resolved is most efficiently identified by extracting the relevant part of their written submissions.  Therein they submit:
  1. “6.Each of the ecologists proposes mitigation measures which they say resolve the issues of non-compliance with relevant ecological assessment benchmarks.  There are three key differences between them regarding those mitigation measures:
  1. (a)
    the extent of the covenant area proposed: Mr Moffit identifies the High ecological significance overlay area (9,982m2); Mr Clowes identifies a larger area including some mapped High ecological significance strategic area, and some area not mapped under biodiversity overlay, but which he says include koala habitat trees in koala habitat area;
  2. (b)
    the area required for regeneration or replanting: Mr Moffit identifies the replanting areas in the plans at Exhibit 17, with natural regeneration of the understorey in the “pet exclusion” area; Mr Clowes requires active revegetation of the whole covenant area; and
  3. (c)
    the area of pet exclusion fencing: Mr Moffit is content with the exclusion fenced area shown by the red dashed line in the Development Plan; Mr Clowes requires the entire covenant area to be fenced as shown in Figure 8 of the Ecology JER.
  1. 7.The Appellants’ proposed conditions incorporate the recommendations and suggested conditions of Mr Moffit about these matters.  The Appellants submit that that (sic) Mr Clowes’ mitigation measures are beyond what is a reasonable imposition on the development given the nature and the extent of the incursion into the mapped High ecological significance (HES) area and the impacts that will be caused by the development. However, if the Court prefers the evidence of Mr Clowes in any of the three respects in which there are differences, it is submitted that the Court in the exercise of its discretion would not refuse the development but rather impose those alternative conditions as appropriate mitigation measures. This is because:
  1. (a)
    Both Mr Moffit and Mr Clowes agreed that “if the Court were to approve the development according to the mitigation measures DC prescribes in Section 5.2, paragraph [73], then the issues in in (sic) relation to non-compliance with the Biodiversity areas code are resolved”.
  2. (b)
    The Court, in the exercise of its broad discretion is empowered to impose conditions on the approval of a development application and this is an appropriate case to do so.
  3. (c)
    The alternative conditions will not change the development application or the proposed development in any way but merely reflect the evidence about what would be appropriate mitigation measures to be imposed on the development.
  4. (d)
    In preferring the evidence of Mr Clowes the Court would be rejecting the Appellants’ submission that such measures are an unreasonable imposition on the development and not reasonable (sic) required in relation to the development or use of premises, and determining for itself that Mr Clowes mitigation measures are reasonable and relevant.”

(footnotes omitted)

  1. [192]
    The Appellants’ proposed conditions that deal with, or touch on considerations relevant to, ecological impacts are as follows:

No.

Condition

Timing

The Domestic Enterprise use must be carried out in accordance with the Amended Operational Management Plan dated 10 May 2024 (the Operational Management Plan).

At all times.

Development for the Domestic Enterprise use must not extend beyond the locations shown on Drawing DP01.01 Development Plan Rev 3 dated 15 July 2024.

At all times.

This development approval does not prevent the applicant from carrying out lawful development and activities associated with the residential use of the premises.  This may include, for example, the parking of cars or caravans associated with the residential use of the premises or the construction of a pool and pool house at the rear of the dwelling.

At all times

Stormwater management

The proposed mitigation works identified generally in figure 3-4 of the Flood Assessment prepared by Water Engineering Plus dated 14 February 2024 must be completed within 3 months of this approval taking effect.  The stormwater pipe must be placed underground.  During installation:

  1. a.No native trees or shrubs are permitted to be removed from the premises for the mitigation works;
  2. b.The infrastructure must be installed under the supervision of a level 5 arborist; and
  3. c.Areas disturbed as a result of the installation of the mitigation works must be remediated using mulch or turf.

Within 6 months of the approval taking effect.

Visual amenity

The applicant must:

  1. a.Provide and maintain planting of low and mid-storey foliage in areas C and D shown on the Tree Planting Site Plan dated 26 April 2024 and the Tree Planting Area Details Plan dated x;
  2. b.Provide additional planting with shrubs layers in the hatched region shown in the covenant on the Tree Planting Site Plan dated 26 April 2024;
  3. c.Install a new front boundary fence in the location shown on the Development Plan and as shown on the Development – Fence Details plan dated 26 April 2024;
  4. d.Install new partial colorbond side boundary fences in the locations shown on the Development Plan.

Ecology

A covenant with a purpose of preserving native vegetation and preventing clearing for bushfire protection purposes must be registered over the area shown as covenant area on the Development Plan.  The covenant must include the following requirements:

  1. a.The landowner must use reasonable endeavours to incorporate koala friendly fencing outcomes along the boundaries of the covenant area, if new fences are installed.
  2. b.The existing sewerage infrastructure is permitted in the covenant area.
  3. c.New stormwater infrastructure is permitted in the covenant area, where installed in accordance with the conditions of this approval.
  4. d.Other than the sewerage and stormwater infrastructure identified above, no further structures, buildings or infrastructure is permitted in the covenant area.
  5. e.The landowner must carry out ongoing maintenance and weed and non-native plant control in the covenant area.

Registration of the covenant is to be obtained within 6 months of the approval taking effect.

Compliance with the registered covenant is required at all times.

All existing native vegetation in the covenant area described in condition 15 and shown on the Tree Planting Site Plan must be retained.

At all times

To facilitate koala movement:

  1. a.Koala climbing poles must be installed in the locations shown on the Tree Planting Site Plan; and
  2. b.pet exclusion fencing must be installed in the locations shown on the Development Plan and in accordance with the design shown on the Development – Fence Details plan.

To be installed within 6 months of the approval taking effect and then maintained at all times.

Lighting is not permitted on the western side of the office or shed.

At all times

Bushfire

The applicant must not clear any vegetation to establish firebreaks or asset protection zones around the development footprint, including within the vegetation covenant area.

At all times

  1. [193]
    I do not accept the Appellants’ submission that the Appellants’ proposed conditions, read in conjunction with the proposed plans, incorporate all the recommendations and conditions suggested by Mr Moffitt.  They do not include:
    1. screen planting along the batter slope behind the office building to minimise edge effects in the adjoining retained vegetation: paragraph 70.a. of Exhibit 5 – the Second Terrestrial Ecology Joint Experts’ Report; nor
    2. a requirement that the area inside the pet exclusion fence be allowed to regenerate naturally: paragraph 72.a. of Exhibit 5 – the Second Terrestrial Ecology Joint Experts’ Report; nor
    3. a requirement that the terms of the covenant be provided on terms described by Mr Clowes in paragraph 67(e) of Exhibit 17 – the Terrestrial Ecology Joint Experts’ Report: paragraph 72.a. of Exhibit 5 – the Second Terrestrial Ecology Joint Experts’ Report.
  2. [194]
    It seems reasonable to infer, on the balance of probabilities, that the differences between the Appellants’ proposed conditions and the mitigation measures proposed by Mr Moffitt are deliberate and not simply reflective of poor attention to detail by their lawyers.  That inference is supported by:
    1. the Appellants poor track record with protecting the ecological attributes of the subject land and complying with conditions of development approvals directed to that end; and
    2. their evident reluctance to voluntarily undertake steps that would enhance the ecological values of the subject land in a manner consistent with the goals sought for the Greenspace System in City Plan, which is apparent from the Appellants’ resistance to the mitigation measures proposed by Mr Clowes.
  3. [195]
    If I am wrong about that, it is immaterial to the outcome.  That is because, even if I assess the proposed development as including all the mitigation measures proposed by Mr Moffitt, it still falls short of the ecological outcome sought by City Plan.  I explain my reasons for that finding in greater detail below.

Does the proposed development achieve appropriate ecological outcomes?

  1. [196]
    The Appellants contend that the non-compliances with the assessment benchmarks with respect to ecology are resolved by imposing conditions requiring compliance with the mitigation measures proposed by Mr Moffitt.  There are three propositions that are fundamental to the Appellants’ case in this regard.
  2. [197]
    First, the ecological values of the subject land are identified not by the mere inclusion of the land in the mapping in City Plan.  Rather, the ecological values to be considered are those that are present on the subject land.  The Appellants say that this is recognised by a note in the Biodiversity areas overlay code.
  3. [198]
    The note relied on by the Appellants states:

“Note–Biodiversity areas mapping:

  • The Biodiversity areas overlay mapping includes areas with both existing biodiversity values and areas of strategic biodiversity value.
  • The Biodiversity areas overlay mapping has been undertaken on a city-wide scale.  Ecological assessments may be appropriate in order to assess the broader impact of development on desired biodiversity values and outcomes for the locality, area or the region.  Such an assessment may be considered as part of relevant information in revision and refinement of the biodiversity outcomes in the locality.
  • In such cases the revision and refinement of biodiversity outcomes may be dealt with as part of the development proposal.  Prior to undertaking such an assessment, discussions should be undertaken with Council to identify existing and planned biodiversity values for the site.  In undertaking the assessment and proposing alternate outcomes, the existing values and planned biodiversity outcomes for the site, area, locality and region must be considered and provided for.  This assessment should also address the practicality, based on the extent of existing developments, of being able to achieve the planned biodiversity values and outcomes for the site.”
  1. [199]
    The Appellants submissions only extracted those parts of the note that I have underlined above. 
  2. [200]
    Notes in City Plan form part of the planning scheme: s 1.3.2 of City Plan.  When the note is considered in full and in context, it does not indicate an intention to assess development by reference only to those ecological values that are present on the land.  Rather, it requires an assessment that has regard to the values of the area, locality and region more broadly to ascertain the land’s planned role.  In that manner, one can identify appropriate enhancement and restoration measures to achieve compliance with the Biodiversity areas overlay code.
  3. [201]
    As such, the Appellants’ case is not assisted by its observation that Mr Clowes did not undertake an ecological survey to establish ecological features of values of the subject land.  That is also because the Council does not bear the onus: the Appellants bear the onus.
  4. [202]
    As I have already mentioned, parts of the subject land are mapped as within the High ecological significance sub-category and the High ecological significance strategic sub-category of the Biodiversity areas overlay map.  There is no dispute that areas so mapped do not presently reflect a pristine natural environment.  That part of the subject land in the High ecological significance strategic sub-category is maintained as part of the mown lawn.  The vegetation communities in the High ecological significance sub-category are degraded by regular slashing to remove the understorey layers. 
  5. [203]
    I have doubt about whether the activities that remove the understorey layers are lawful given the conditions of the Council’s shed approval.  However, it is unnecessary for me to determine their legality as I accept, on the balance of probabilities, that the degraded state of the subject land is the result of activity that was lawful prior to the grant of the Council’s shed approval. 
  6. [204]
    In its present state, the subject land also provides an imperfect and tenuous habitat connection for terrestrial species such as koalas.  The movement connections for koalas are impeded by fences and threatened by the lawful presence of dogs that can freely roam the whole of the subject land.
  7. [205]
    The surrounding network of ecological areas that are mapped within the High ecological significance strategic sub-category of the Biodiversity areas overlay map are similarly challenged. 
  8. [206]
    Despite the present lawful state of the subject land and the ecological challenges in the surrounding area, the Appellants do not allege that City Plan is not soundly based or has been overtaken by events.  That is unsurprising as the evidence does not demonstrate any issue in that regard.  To the contrary, Mr Moffitt and Mr Clowes accept that the subject land is appropriately mapped under City Plan and that the broader area reflects the planning intent for the Greenspace System and Environmental management zone.  During cross-examination, Mr Moffitt explained that although there is fragmentation in the broader area, the values of the area have not been lost or irreparably damaged.  Rather, the fragmentation highlights that care needs to be taken in assessing development to ensure that the fragmentation does not continue.  I accept this evidence.  It is supported by the observations made in submissions by residents of the area who record, amongst other things, observing koalas in the area. 
  9. [207]
    In the circumstances, the existing state of the subject land and the surrounding area do not provide a sound town planning basis to depart from City Plan.
  10. [208]
    The second proposition on which the Appellants’ case is founded is that the true impact of the proposed development is marginal. 
  11. [209]
    Whether the impacts are marginal is a question of fact and degree.  In determining the impacts caused by the proposed development, it is necessary to have regard to the extent to which the impacts are additional to those authorised by existing development approvals and lawful use of the subject land. 
  12. [210]
    The Council’s shed approval authorises encroachment into the area mapped as ecologically significant on the Biodiversity areas overlay map.  The Council approved the incursion as acceptable provided there was compliance with the conditions of approval.  As I have identified in paragraph [40] above, this includes the requirement that all existing vegetation outside the approved development footprint is to be retained, protected and maintained and that there is to be no building, structure or activity outside the approved development footprint.
  13. [211]
    The transpiration trenches and sewerage infrastructure associated with the bathroom in the approved shed are approved under the plumbing approval.
  14. [212]
    The difference between the incursion into the area subject to the Biodiversity areas overlay by the proposed development footprint and the approved development footprint is shown in Exhibit 11.  Mr Clowes and Mr Ovenden estimate there to be about 1,000 square metres of the subject land that is outside the approved development footprint and within the area subject to the Biodiversity areas overlay map.
  15. [213]
    The Appellants submit that the difference in impact is this 1,000 square metres and the additional edge effects caused by the introduction of a more intense activity than otherwise might exist with the ancillary use of a shed by residents of a rural residential dwelling. 
  16. [214]
    According to the Appellants, the proposed development does not require the clearing or removal of trees.  In addition, they say that there is no decrease or change in the structure, composition, complexity or connectivity of the existing vegetation.  I have reservations about this submission given the tension between the condition of the Council’s shed approval about the protection of vegetation and conditions 4 and 16.e. of the Appellants’ proposed conditions.  In combination, those conditions would arguably permit the Appellants to continue their current practice of removing understorey – an activity that arguably would offend the conditions of the Council’s shed approval.  Nevertheless, for present purposes I am prepared to accept the Appellants’ submission.
  17. [215]
    The Appellants also submit that there are no new barriers to wildlife movement, such as through roads, paths or fences, other than, according to Mr Clowes, the pet-exclusion fence proposed by Mr Moffitt in the southwestern corner.  The proposed development does not interfere with any koala habitat, nor does the proposed development introduce dogs.
  18. [216]
    Mr Moffitt acknowledges that the proposed development (as now constructed) has caused interference and negative impact on the vegetation communities and biodiversity values on the subject land.  However, he opines that the proposed development will largely avoid impacts on biodiversity values and will not give rise to any significant additional edge effects than already experienced on the subject land.  He says that the impacts are not so small that they can be comfortably ignored, but says that they do not warrant refusal as the impacts can be mitigated by those measures identified in paragraphs [196] and [197] above. 
  19. [217]
    One of the measures identified by Mr Moffitt is permitting the covenant area to naturally regenerate.  During his cross-examination, he expressed confidence that this would occur given the current characteristics of the system.  Those characteristics involve a removed understorey.  Mr Moffitt did not explain how that will regenerate when it currently does not exist.
  20. [218]
    Another measure proposed by Mr Moffitt is the introduction of a pet exclusion fence in the south-western corner of the subject land.  During cross-examination, Mr Moffitt acknowledged that there would be greater ecological benefit if the entire covenant area was fenced.  That would allow koalas to safely move through the area to connect to koala habitat on adjoining sites.  Nevertheless, Mr Moffitt recommends a discrete area of approximately 2,900 square metres in the south-western corner of the subject land be fenced.  He says that although the broader area has ecological relevance, in his view the fencing of a much smaller area achieves a reasonable balance as there are limited impacts being occasioned by the proposed development.
  21. [219]
    During cross-examination, Mr Moffitt confirmed that his views are premised on consideration of the built form in the proposed development footprint and edge effects. 
  22. [220]
    Mr Clowes disagrees with Mr Moffitt.  He considers that the impacts are not appropriately regarded as minor.  He says that the light, noise, dust and activity associated with the proposed development will introduce edge effects, including the potential introduction of weeds that may be blown or transported across the subject land from the vehicles and materials associated with the business activity.  Mr Clowes opines that these impacts are not appropriately regarded as minor because there is no buffer between the built form associated with the proposed development and the adjoining area of high ecological significance.  According to Mr Clowes, this will introduce impacts in the southwestern corner of the subject land.
  23. [221]
    Mr Clowes also opines that the introduction of a pet exclusion fence bifurcating the area of High ecological significance will fragment the koala habitat and restrict koalas to an enclosure of about 2,900 square metres. 
  24. [222]
    In Mr Clowes’ opinion, the measures proposed by Mr Moffitt are insufficient to mitigate the impacts of the proposed development.  Mr Clowes does not accept that leaving the covenant area (or part thereof as recommended by Mr Moffitt) to naturally regenerate will mitigate the edge effects of the proposed development.  He says that the covenant area does not contain sufficient native shrub and understorey species to successfully regenerate naturally.  Mr Clowes explains that this is because the previous maintenance practices have limited the recruitment of native species.  According to Mr Clowes, this exacerbates the impact of disturbance.  He explains that the damage done by previous understorey removal leaves the area more susceptible to adverse impact.  In Mr Clowes’ opinion, when weeds that are transported by equipment and vehicles blow into the area, they are more likely to colonise.  This will inhibit regeneration with native species.  It will ultimately impact on the long-term viability of the vegetation community on the subject land.
  25. [223]
    The Appellants submit that Mr Clowes evidence of impacts on the southwestern corner of the subject land is an example of an alleged impact largely arising from the already approved shed.  They submit that the proposed planting would serve as both a visual amenity and ecological buffer for the area west of the shed.  I disagree.  This submission does not appropriately recognise the operational aspects of the proposed development identified in paragraph [70] above.  The path between the main floor of the shed and the undercroft area that will be traversed by a forklift carrying equipment.  The path is within that part of the subject land mapped as an area of High ecological significance. 
  26. [224]
    Where their opinions differ, I prefer the evidence of Mr Clowes to that of Mr Moffitt.  Mr Clowes provides cogent explanations for his opinions, and his opinions are premised on a proper consideration of all the operational aspects of the proposed development.  The same is not true of Mr Moffitt’s evidence. 
  27. [225]
    Having regard to Mr Clowes’ evidence, I am satisfied that the impacts are not appropriately regarded as minor, nor are the measures proposed by Mr Moffitt sufficient to mitigate them. 
  28. [226]
    The third proposition that is fundamental to the Appellants’ case that ecological impacts do not warrant refusal is their contention that there are ecological benefits of the proposed development that outweigh the impacts.  They say that the benefits include:
    1. the regeneration of the understorey, which has been cleared and is otherwise likely to remain cleared;
    2. the replanting of some larger habitat trees as proposed by the visual amenity experts, which will have the dual purpose of providing visual amenity screening and improving the ecological values in the identified planting areas;
    3. the grant of a covenant that secures the conservation and protection of approximately 10,000 square metres of area mapped on the Biodiversity areas overlay map;
    4. the construction of a pet-exclusion fence around part of the covenant area; and
    5. the creation of koala crossing points along the boundary fence.
  29. [227]
    As I have already indicated, I have my doubts about the lawfulness of continued clearing of understorey.  I am also not persuaded that regeneration will occur as suggested by Mr Moffitt.  Nevertheless, for present purposes I am prepared to assume that the present clearing of the understorey is lawful.  I am also prepared to assume that the proposed development will provide each of the ecological benefits claimed by the Appellants.  I will assess the proposed development on that basis.
  30. [228]
    Even assuming all the claimed benefits in the Appellants’ favour, the Appellants have not persuaded me that the ecological benefits are sufficient to resolve the non-compliances with the assessment benchmarks.  The Appellants’ case in this regard overlooks a fundamental aspect of the assessment benchmarks, namely that they do not call only for mitigation of impacts.  Where development is proposed in areas affected by the Biodiversity areas overlay, the development is required to achieve enhancement, restoration and rehabilitation.  The proposed development, including the mitigation measures proposed by Mr Moffitt, does not achieve this. 
  31. [229]
    For the reasons provided above, I am satisfied that when the proposed development is assessed against applicable assessment benchmarks in City Plan, it does not achieve an appropriate ecological outcome.  As was recognised by Mr Moffitt during cross-examination, the requirements to preserve and respect the environmental designations is a matter of importance.  The proposed development’s failure to comply with the requirements in that respect is a matter that weighs heavily against its approval. 

Should I impose conditions requiring additional measures consistent with the recommendations of Mr Clowes?

  1. [230]
    As is evident from the extract of the Appellants’ submissions in paragraph [195] above, in final submissions the Appellants raised an alternative case.  If I do not accept the evidence of Mr Moffitt, they submit that I should approve the proposed development subject to those conditions recommended by Mr Clowes.
  2. [231]
    Unlike Mr Moffitt, Mr Clowes addresses the assessment benchmarks’ requirements for enhancement, restoration and rehabilitation, not simply the requirements directed at avoidance and mitigation of impacts.  Consequently, Mr Clowes recommends additional mitigation measures above those recommended by Mr Moffitt.  The conditions recommended by Mr Clowes involve:
    1. the creation of a larger environmental covenant area, being an area of approximately 11,000 square metres;
    2. supplementary planting of native vegetation and appropriate maintenance of all native vegetation and ecological values, including by retention of all native vegetation, ongoing weed control and rehabilitation undertaken in accordance with an approved rehabilitation plan for the subject land; and
    3. the fencing of the entire environmental covenant area to prevent domestic pets, both current and future, from accessing the area.
  3. [232]
    The Council submits that the Appellants should not now be permitted, during final submissions, to advance an alternative case that relies on the conditions proposed by Mr Clowes.  It says that the Appellants could have embraced Mr Clowes recommendations but instead they argue that the conditions are not lawful under s 65 of the Planning Act 2016.  
  4. [233]
    I accept the Appellants’ submission that, provided I am satisfied that the conditions are lawful, I can exercise my broad discretion to impose the conditions recommended by Mr Clowes on the development approval.  That said, I do not accept that the mere fact that I prefer the evidence of Mr Clowes to that of Mr Moffitt of itself necessarily demonstrates that the conditions are lawful under s 65 of the Planning Act 2016.
  5. [234]
    The power to impose development conditions is subject to the statutory provisions about lawful conditions.  Section 65 of the Planning Act 2016 imposes a constraint on the power: Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965 at 969 [16].  It, relevantly, states:
  1. “65
    Permitted development conditions
  1. (1)
    A development condition imposed on a development approval must–
  1. (a)
    be relevant to, but not an unreasonable imposition on, the development or the use of premises as a consequence of the development; or
  2. (b)
    be reasonably required in relation to the development or use of premises as a consequence of the development.”
  1. [235]
    I identify the relevant legal principles with respect to conditions in Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22; [2023] QPELR 965 at 969-70 [14] – [20]. 
  2. [236]
    I am satisfied that the conditions proposed by Mr Clowes are relevant for the purpose of s 65(1)(a) of the Planning Act 2016.  This is because they are directed to the legitimate planning purpose of achieving compliance with the planning outcomes sought in the assessment benchmarks in the Biodiversity areas overlay code, the Environmental management zone code and the Strategic framework. 
  3. [237]
    The mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition: Proctor v Brisbane City Council (1993) 81 LGRA 398, 404.  It also must not be an unreasonable imposition on the development or use of premises as a consequence of the development.  The requirement that a relevant condition not be an “unreasonable imposition” focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in light of the development or the potential use: Bryant v Caloundra City Council [2005] QPEC 113; [2006] QPELR 335, 337 [16].
  4. [238]
    Even if a condition is one that can be legitimately imposed having regard to the constraints in s 65 of the Planning Act 2016, there is no obligation to do so.  There is a residual discretion to otherwise determine what lawful conditions should be imposed: Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd & Anor [2001] QCA 334, [5]. 
  5. [239]
    Whether a condition represents an unreasonable imposition is a question of fact to be determined having regard to all the circumstances of the case.  Here, none of the evidence called by the Council addresses this question.  That is unsurprising as the alternative case was not raised by the Appellants until final addresses. 
  6. [240]
    The only substantive evidence that I have with respect to whether the additional conditions proposed by Mr Clowes’ are an unreasonable imposition are the opinions of Mr Moffitt to that effect.  I do not find Mr Moffitt’s opinions to be persuasive.  They are founded on an assumption that the proposed development is properly characterised only by reference to the business activities carried out in the proposed development footprint.  I reject that characterisation for the reasons provided in paragraph [146] to [152] above.  That said, it does not follow that the conditions are a reasonable imposition. 
  7. [241]
    I have insufficient evidence about the nature and extent of rehabilitation works required by the conditions proposed by Mr Clowes, including with respect to the time and expense that they involve, to assess whether they are a reasonable imposition.  Having regard to the existing obligations in the Council’s shed approval and the nature of the development, I am inclined to think that the additional conditions may be reasonable.  However, I am not persuaded of this to the requisite degree, namely on the balance of probabilities. 
  8. [242]
    In those circumstances, the Appellants have not discharged their onus with respect to their alternative case.
  9. [243]
    Further, even if the additional conditions proposed by Mr Clowes are lawful, I am not persuaded that I should exercise my discretion to impose them. 
  10. [244]
    I am cognisant that the unfortunate attitudes of the Appellants as citizens residing and carrying on business in Brisbane City are not immediately relevant to the merits of the proposed development.  They would not be a reason to refuse an otherwise meritorious development (if such a development was proposed).  However, they may be a reason to carefully consider the extent of conditions that are appropriate: Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, 767-7 [239]; Lifnex Pty Ltd and Oil Recyclers Australian Pty Ltd v Ipswich City Council [1998] QPELR 517, 518.
  11. [245]
    In this case, the Appellants have made it abundantly clear that they regard the additional conditions proposed by Mr Clowes to be unreasonably onerous.  Despite that, they say that if the imposition of the conditions would obtain them an approval, rather than a refusal, I should exercise my discretion to impose them.  The conditions in question would require ongoing compliance with obligations of a similar nature to those imposed under the Council’s shed approval.  Given the Appellants’ history of non-compliance with such conditions, and their strong resistance Mr Clowes’ conditions, I am not persuaded that I should exercise my discretion to grant an approval including the additional conditions.  My view in this regard is not determinative.  That is because, even with the additional conditions suggested by Mr Clowes, I am not persuaded that the proposed development should be approved given the unacceptable character impacts occasioned by the use.

Conclusion regarding ecological impacts

  1. [246]
    For the reasons provided above, an assessment of the proposed development against the assessment benchmarks with respect to ecology tells against its approval.  The mitigation measures proposed by Mr Moffitt do not provide a sound town planning reason to not give the provisions of City Plan about ecology their full force and effect.  Although the additional conditions suggested by Mr Clowes may be lawful, I am not persuaded of this to the requisite standard.  In any event, I am not persuaded that I should exercise my discretion to impose the additional conditions to address the non-compliances with City Plan given the Appellants’ strong resistance to them on the basis that they are unreasonably onerous.
  2. [247]
    Although not determinative, I also note that several other conditions proposed by the Appellants are also unsatisfactory.  They create uncertainty.  For example, it is unclear what is meant by “ongoing maintenance”, as distinct from weed and non-native plant control, in condition 16 of the Appellants’ proposed conditions.  The Appellants’ proposed conditions contain no requirement about encouraging natural regeneration of native understorey.  Further, their conditions state that the purpose of the covenant is preservation of native vegetation, not restoration or enhancement of it.  In those circumstances, does ongoing maintenance permit the current practice of removing the understorey?  This is but one example of the difficulties with the Appellants’ proposed conditions. 

Are there relevant matters relied on by the Appellant under s 45(5)(b) of the Planning Act 2016 that lend support to approval?

  1. [248]
    The Appellants identify two relevant matters that they say arise for consideration under s 45(5)(b) of the Planning Act 2016 and support approval.  They are framed in the following terms in the Appellant’s Particularised List of Reasons for Approval dated 17 April 2023 in Exhibit 1:
  1. “21.The proposed development can be undertaken without adverse impacts upon surrounding properties in the locality.
  2. 22.The proposed development complies with the relevant assessment benchmarks, or if there are any non-compliances, those can be conditioned to comply with the relevant assessment benchmarks.”
  1. [249]
    I accept that each of these matters is a relevant matter for s 45(5)(b) of the Planning Act 2016.  The real issue is whether they are each established on the evidence and what weight should be attributed to each of them.
  2. [250]
    I have already addressed the substance of these contentions above.  As relevant matters, I am not persuaded that the substance of these contentions lends any greater weight to the case for approval (or refusal) than they do as considerations relevant to the assessment of the proposed development against the applicable assessment benchmarks in City Plan.

Should the proposed development be approved in the exercise of the discretion?

  1. [251]
    There are four propositions that are fundamental to the Appellants’ case for approval, namely:
    1. the impacts caused by the proposed development to the Greenspace System are at a site-level only and are minor;
    2. the impacts caused by the proposed development to ecological values on the subject land are not of a magnitude that warrant refusal but merely require mitigation in accordance with the measures proposed by either Mr Moffitt or Mr Clowes;
    3. the proposed development:
      1. is compatible with the green, open space, lifestyle and amenity of the neighbourhood;
      2. can comfortably co-exist with the local identified environmental values;
      3. does not adversely impact on the landscape or streetscape values of the location;
      4. is appropriately screened and buffered from adjoining residents; and
      5. will have no unacceptable impacts on the character or amenity of the local area; and
    4. approval of the proposed development with conditions imposing the mitigation measures (either as proposed by Mr Moffitt or Mr Clowes) will improve and enhance the ecological values of the subject land by:
      1. the grant of a covenant that secures the conservation and protection of at least 9,942 square metres of land subject to the Biodiversity areas overlay map;
      2. the regeneration of at least part of the understorey that has been cleared and that is otherwise likely to remain cleared;
      3. the replanting of some larger habitat trees as proposed by the visual amenity experts, which planting will have the dual purpose of providing visual amenity screening and improving the ecological values in that area of the subject land;
      4. the construction of a pet-exclusion fence around at least the most vulnerable part of the covenant area; and
      5. the creation of koala crossing points along the boundary fence.
  2. [252]
    The Appellants’ case was advanced on the basis that the Court would accept all these propositions and that, collectively, they justify approval of the proposed development.
  3. [253]
    As would be evident from my findings above, the Appellants have demonstrated, or I am prepared to assume, those matters identified in paragraphs [251](a), [251](c)(iii), [251](c)(iv), and [251](d) above.  The Appellants have also demonstrated that there are no unacceptable amenity impacts on the area other than those occasioned by the inappropriate character of the proposed development.
  4. [254]
    Those matters established by the Appellants lend support to the case for approval.
  5. [255]
    Against those matters, I must weigh the non-compliances with City Plan. 
  6. [256]
    The most significant non-compliance is occasioned by the business activities component of the proposed development and its associated inappropriate character impacts.  This is a matter that, alone, is determinative.  The fundamental non-compliance occasioned by the inappropriate use of land in the Environmental management zone cannot be overcome through the imposition of conditions or the mitigation of ecological impacts.
  7. [257]
    The non-compliances with the assessment benchmarks with respect to ecological issues also tell strongly against approval.  This is because of the failure to restore the ecological features, ecological processes and areas of strategic biodiversity value on the subject land as planned for that part of the subject land that is within the High ecological significance subcategory and the High ecological significance strategic subcategory of the Biodiversity areas overlay code.
  8. [258]
    On balance, I am not persuaded that all the matters that favour approval that I have identified throughout these reasons, taken collectively, are sufficient to provide a sound town planning basis to depart from City Plan.  They do not render the impacts on character acceptable.  Moreover, there is no sound town planning reason to not give City Plan its full force and effect insofar as it seeks to restore and enhance ecological values on the subject land to ensure the long-term viability of the Greenspace System.

Conclusion

  1. [259]
    The Appellants have not discharged the onus.  I order that the appeal be dismissed.  The development application for a development permit for making a material change of use is refused.
Close

Editorial Notes

  • Published Case Name:

    Nairn & Anor v Brisbane City Council

  • Shortened Case Name:

    Nairn v Brisbane City Council

  • MNC:

    [2024] QPEC 46

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    07 Nov 2024

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
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
4 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Cite 3 - [2013] 1 Qd R 1
Cite 4 - [2013] 1 Qd R 1
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
2 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
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
Ashanti Logistics Pty Ltd v Sunshine Coast Regional Council [2022] QPEC 22
3 citations
Jump To
Cite 1 - [2022] QPEC 22
Cite 2 - [2022] QPEC 22
Cite 3 - [2022] QPEC 22
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
2 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
2 citations
Jump To
Cite 1 - (1990) 69 LGRA 404
Cite 2 - (1990) 69 LGRA 404
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Bryant v Caloundra City Council [2005] QPEC 113
2 citations
Jump To
Cite 1 - [2005] QPEC 113
Cite 2 - [2005] QPEC 113
Bryant v Caloundra City Council [2006] QPELR 335
2 citations
Jump To
Cite 1 - [2006] QPELR 335
Cite 2 - [2006] QPELR 335
Burdle v Secretary of State [1972] 3 All E.R. 240
4 citations
Jump To
Cite 1 - [1972] 3 All E.R. 240
Cite 2 - [1972] 3 All E.R. 240
Cite 3 - [1972] 3 All E.R. 240
Cite 4 - [1972] 3 All E.R. 240
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52
2 citations
Jump To
Cite 1 - [2018] QPEC 52
Cite 2 - [2018] QPEC 52
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221
2 citations
Jump To
Cite 1 - [2019] QPELR 221
Cite 2 - [2019] QPELR 221
Cook v Woollongong City Council (1980) 41 LGRA 154
2 citations
Jump To
Cite 1 - (1980) 41 LGRA 154
Cite 2 - (1980) 41 LGRA 154
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
4 citations
Jump To
Cite 1 - (1975) 32 LGRA 157
Cite 2 - (1975) 32 LGRA 157
Cite 3 - (1975) 32 LGRA 157
Cite 4 - (1975) 32 LGRA 157
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council [2021] QPEC 33
2 citations
Jump To
Cite 1 - [2021] QPEC 33
Cite 2 - [2021] QPEC 33
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2022] QPELR 705
2 citations
Jump To
Cite 1 - [2022] QPELR 705
Cite 2 - [2022] QPELR 705
Hymix Industries P/L v Alberton Investments P/L [2001] QCA 334
2 citations
Jump To
Cite 1 - [2001] QCA 334
Cite 2 - [2001] QCA 334
Kelly Consolidated Pty Ltd v Ipswich City Council [2024] QPEC 12
2 citations
Jump To
Cite 1 - [2024] QPEC 12
Cite 2 - [2024] QPEC 12
Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271
1 citation
Jump To
Cite 1 - [2006] QCA 271
Lifnex Pty Ltd & Anor v Ipswich City Council (1998) QPELR 517
2 citations
Jump To
Cite 1 - (1998) QPELR 517
Cite 2 - (1998) QPELR 517
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
2 citations
Jump To
Cite 1 - (1983) 155 CLR 211
Cite 2 - (1983) 155 CLR 211
Murphy v Moreton Bay Regional Council [2019] QPEC 46
2 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
2 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Proctor v Brisbane City Council (1993) 81 LGRA 398
2 citations
Jump To
Cite 1 - (1993) 81 LGRA 398
Cite 2 - (1993) 81 LGRA 398
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
2 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
2 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
10 citations
Jump To
Cite 1 - [2005] QCA 262
Cite 2 - [2005] QCA 262
Cite 3 - [2005] QCA 262
Cite 4 - [2005] QCA 262
Cite 5 - [2005] QCA 262
Cite 6 - [2006] 1 Qd R 273
Cite 7 - [2006] 1 Qd R 273
Cite 8 - [2006] 1 Qd R 273
Cite 9 - [2006] 1 Qd R 273
Cite 10 - [2006] 1 Qd R 273
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
2 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
2 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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