Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2024
  4. Landarch Properties Pty Ltd v Logan City Council - [2024] QPEC 47

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

Landarch Properties Pty Ltd v Logan City Council[2024] QPEC 47

Landarch Properties Pty Ltd v Logan City Council[2024] QPEC 47

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47

PARTIES:

LANDARCH PROPERTIES PTY LTD (ACN 646 808 657)

(Appellant)

v

LOGAN CITY COUNCIL

(Respondent)

AND

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(Co-Respondent)

FILE NO:

1740/2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

15 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 October – 1 November and 4 – 5 November 2024

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – Appeal against refusal of application for reconfiguring a lot with proposed environmental offset.

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme

LEGISLATION:

Planning Act 2016 (Qld)

Vegetation Management Act 1999 (Qld)

Planning and Environment Court Act 2016 (Qld)

Planning Regulation 2017 (Qld)

Planning and Environment Court Rules 2018 (Qld)

CASES:

Brisbane City Council v Klinkert [2020] QPELR 579

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147

H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor [1992] QCA 384; (1992) 80 LGERA 230

COUNSEL:

M J Batty and J E Bowness for the Appellant

B D Job KC and J G Lyons for the Respondent

K J Buckley for the Co-Respondent

SOLICITORS:

McKeown Solicitors for the Appellant

Collin Biggers & Paisley for the Respondent

Corrs Chambers Westgarth for the Co-Respondent

Introduction

  1. [1]
    This is an appeal against the refusal by the respondent of a development application for a development permit for reconfiguring a lot and preliminary approval for operational work which now relates to two separate sites. It is currently proposed to reconfigure land at 123 Jarvis Road, Waterford (“the Waterford site”) into 55 small residential lots. It is also proposed to utilise land at 279-305 Rossmore Road, Chambers Flat (“the Chambers Flat site”) to provide compensatory flood plain storage and compensatory ecological enhancement by way of an offset.
  2. [2]
    The development application was code assessable pursuant to the respondent’s planning scheme[1] (“the planning scheme”). The development application required referral to the Chief Executive administering the Planning Act 2016 (Qld) (“PA”).  Relevantly, part of the referral related to the Waterford site containing areas of Koala Habitat situated outside of a Koala Priority Area as mapped by the state government in providing for the state koala protection framework. On 5 May 2023 the co-respondent issued a changed referral agency response providing amended conditions to attach to any development approval given by the respondent. These conditions relevantly provided for a limitation on clearing Non- Juvenile Koala Habitat Trees (“NJKH Trees”) at the Waterford site and rehabilitation to be undertaken in accordance with the Rehabilitation Management Plan at the Waterford site. It also required planting to be undertaken at the Chambers Flat site in accordance with the Rehabilitation Management Plan involving a minimum establishment of 3,366 NJKH Trees. Other conditions included a preservation covenant and koala exclusion fencing.

The sites and their relevant contexts

  1. [3]
    The Waterford site has a short frontage to Jarvis Road and a long frontage to Dairy Creek Road. It contains an area of 4.5 ha.  It is a long and narrow site which is vacant and subject to significant tree cover. There is intense residential development immediately to the north and west.  Some of this urban development is small lot development. On the opposite side of Dairy Creek Road are large rural residential lots which are of a markedly different character to other residential land in the vicinity. The Waterford site is directly linked to other vegetation which surrounds nearby urban development. The middle of the site is traversed by Cambogan Creek which flows northwards towards to the Logan River. When the Waterford site is viewed in the context of surrounding land uses it presents as a highly heavily vegetated site with a creek running through it which links to numerous surrounding vegetated areas.[2]
  2. [4]
    The Chambers Flat site is located on the western bank of the Logan River. It presents as a farm in circumstances where it is substantially cleared of vegetation but still has pockets of both remnant and regrowth vegetation.[3] It contains an area of 45.7 ha.[4] It is completely disconnected from the Waterford site as it is approximately 3.7 km away and on the opposite side of the Logan River.[5]

The development which is proposed in the context of assessment benchmarks

  1. [5]
    The proposed development of the Waterford site has been changed to reduce its impacts. What is now proposed is 55 small lots in 3 stages.[6] It is proposed that 51% of the site will be undeveloped and that a vegetated corridor approximately 50 m wide will remain between existing residential development to the north and the northern boundary of the proposed lots.[7] Development in the area of Cambogan Creek is avoided acknowledging the environmental values in this part of the site. 
  2. [6]
    Substantial filling is proposed for the Waterford site in order to create residential lots which comply with the relevant flood immunity standards. Large retaining walls are planned to retain the fill. These are indicated to be up to 6.5m in height but no more than 4.5m before being recessed by 1.5m.[8] The highest retaining walls are to be located on the northern side of the proposed residential lots, away from the road frontages and adjacent to the balance area.
  3. [7]
    In the course of the hearing of the appeal the appellant put forward draft conditions of approval which seek to enhance the conditions imposed by the co-respondent.  Relevantly, in respect of the Waterford site it is contemplated that only 838 NJKH Trees will be removed, and 220 koala habitat trees will be planted. Further, invasive weeds on the balance lot will be removed  and other indigenous vegetation will be planted to achieve rehabilitation outcomes set out in the rehabilitation management plan for the site. It is proposed that the balance area will be maintained by the owner pursuant to an appropriate covenant registered over the land.[9]
  4. [8]
    The Waterford site is zoned Low density residential in the Small lot precinct,  however it is subject to a number of notable overlays. The Primary vegetation management area overlay affects 91.6% of the site. The Biodiversity corridor overlay affects 97.7% of the site. The Locally significant remnant vegetation area overlay affects 81.9% of the site and the matters of both State and local environmental significance overlay affects 87% of the site.[10] 
  5. [9]
    The appellant has also obtained a property map of assessable vegetation (“PMAV”) for the Waterford site pursuant to the Vegetation Management Act 1999 (Qld) (“VMA”).
  6. [10]
    As noted above, the Waterford site contains areas of koala habitat situated outside of a Koala Priority Area pursuant to the state koala protection framework.[11]
  7. [11]
    The Chambers Flat site is in the Rural zone and the Farming precinct. It is also subject to a number of relevant overlays. 100% of the site is covered by the Matters of local environmental significance overlay. 60.4% is covered by the Biodiversity corridor overlay. 51.1% of the site is covered by the Primary vegetation management area overlay, and 48.9% of the site is covered by the Secondary vegetation management area overlay.[12]
  8. [12]
    Relevantly, the appellant in its draft conditions of approval, proposes to plant a minimum of 3,366 koala habitat trees and maintain them until they reach non-juvenile tree status. The planting of indigenous shrubs and grasses in conjunction with these trees is also proposed. Again, maintenance obligations are sought to be secured by a covenant binding the owner of the site.[13] The revegetation program is to take place in stages and primarily enhance an identified koala corridor along the bank of the Logan River. This is consistent with the co-respondent’s referral agency response conditions in circumstances where the Chambers Flat site contains some areas of koala habitat within a Koala Priority Area.[14]

The statutory assessment framework

  1. [13]
    Pursuant to the Planning and Environment Court Act 2016 (Qld) (“PECA”), the appeal is by way of hearing anew,[15] and the appellant must establish that the appeal should be upheld.[16] Section 46 of the PECA addresses the nature of an appeal and relevantly provides:
  1.  The Planning Act section 45 applies for the P&E Court’s decision upon the appeal as if—
  1.  the P&E Court were the assessment manager for the development application; and
  1.  a reference in subsection (8) of that section to when the assessment manager decides the application were reference to when the P & E Court makes the decision.
  1. [14]
    As the development application was code assessable, s 45 of the PA relevantly states:
  1.  A code assessment is an assessment that must be carried out only—
  1.  against the assessment benchmarks in a categorising instrument for the development; and
  1.  having regard to any matters prescribed by regulation for this paragraph.
  1. [15]
    The assessment benchmarks in a categorising instrument mean the relevant codes of the planning scheme in the context of this appeal. Unlike impact assessment, no regard can be had to “any other relevant matter, other than a person’s personal circumstances, financial or otherwise” in s 45(5) of the PA. Moreover, it is expressly stated that s 5(1) (which states that an entity that performs a function under the PA must perform that function in a way that advances the purpose of the PA) does not apply.[17]
  2. [16]
    Thereafter s 59 of the PA requires that the assessment manager’s decision “must be based upon the assessment of the development carried out by the assessment manager”.[18] 
  3. [17]
    In deciding a code assessable development application, s 60 of the PA states that the assessment manager, after carrying out the assessment:
  1.  must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  1.  may decide to approve the application even if the development does not comply with some of the assessment benchmarks; and

…

  1.  may decide to impose development conditions on an approval; and
  1.  may, to the extent the development does not comply with some or all of the assessment benchmarks, decide to refuse the application only if compliance can not be achieved by imposing development conditions.[19]
  1. [18]
    As was observed by Boddice J in Brisbane City Council v Klinkert:

A proper interpretation of s 60(2)(a) of the Planning Act, having regard to the contents of the Act as a whole, is that s 60(2)(a) requires the assessment manager to approve a development application that complies with the assessment benchmarks in the Code in force at the time the application was properly made.[20]

  1. [19]
    The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council, notably that the same principles which apply to statutory construction apply to the construction of planning documents[21] and that such documents need to be read as a whole and in a way which is practical and intended to achieve a balance between outcomes.[22]
  2. [20]
    Finally, it should be noted that included in the matters prescribed by the Planning Regulation 2007 (“PR”), code assessment must be carried out having regard to, relevantly, the State Planning Policy to the extent it is not identified in the planning scheme as being appropriately integrated in the planning scheme.[23] However, the assessment manager may, in assessing development requiring code assessment, consider such a matter “only to the extent the assessment manager considers the matter is relevant to the development”.[24]
  3. [21]
    I am informed that State Planning Policy 2017 (“SPP”) is not identified in the planning scheme as being appropriately integrated in the planning scheme. The SPP is a broad document which provides for amongst other things, the mapping of competing state interests with varying degrees of priority including mapping layers which must be appropriately integrated in a way which achieves the relevant state interest policy, and layers which can be locally refined, when integrated into a planning scheme.[25] Appendix 1 includes biodiversity as a state interest topic subject to state mapping layers.
  4. [22]
    Pursuant to the VMA, section 20AK provides:
  1.  A property map of assessable vegetation (or PMAV) is a map certified by the chief executive as a PMAV for an area and showing the vegetation category for the area.
  1.  The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area.
  1. [23]
    It is in this context that I am asked to have regard to the PMAV obtained by the appellant in respect of the Waterford site.

Relevant provisions of the planning scheme

  1. [24]
    In s 1.3.2(3) it states that Notes are part of the planning scheme. Thereafter in s 1.5, the hierarchy of benchmarks relevantly provides:
  1.  Where there is inconsistency between the provisions within the planning scheme, the following rules apply:

…

  1. c.overlays prevail over all other components…to the extent of the inconsistency;
  2. d.local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;
  3. e.zone codes prevail over use codes and other development codes to the extent of the inconsistency;

…[26]

  1. [25]
    In s 5.3.3 of the planning scheme it states that code assessable development that complies with the purpose and overall outcomes of the code complies with the code, and further that code assessable development that complies with the performance or acceptable outcomes complies with the purpose and overall outcomes of the code.[27]
  2. [26]
    Section 8.1 of the planning scheme addresses overlays which are stated to identify areas in the planning scheme “that reflect state and local level interests and have one or more of the following characteristics”. These characteristics include that “there is a particular sensitivity to the effects of development” and that “there is a constraint on land use or development outcomes”.[28]
  3. [27]
    The following provisions of the Biodiversity areas overlay code have been identified as relevant to the determination of the remaining issues in dispute:

8.2.2.2 Purpose

  1. The purpose of the code is to:

a. connect biodiversity corridors;

b. protect and enhance habitat values and ecosystem functions;

…

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

a. Development protects and enhances:

i. habitat values and biodiversity corridors;

ii. native vegetation in the primary vegetation management area;

…

iv. wildlife habitat and movement;

…

  1. [28]
    Thereafter the following Performance outcomes have been identified as relevant:

PO1

Development in a Biodiversity corridor identified on Biodiversity areas overlay map OM-02.02 is designed and located to:

a.  provide for habitat links;

b.  facilitate safe wildlife movement;

c.  facilitate wildlife refuge;

d.  enhance habitat values;

e.  rehabilitate degraded areas with

     native vegetation

Note – Compliance with this performance outcome is to be demonstrated by a detailed ecological assessment report prepared in accordance with Part 2 of Planning scheme policy 3 – Environmental management.

PO2

Development in the Primary vegetation management area identified on Biodiversity areas overlay map OM-02.01 is designed and located:

a. to:

iprotect the current extent of native vegetation; or

iiachieve a net gain of native vegetation.

Note – The Primary vegetation management area includes the locally significant vegetation identified on Biodiversity areas overlay map OM-02.03.

Note – Compliance with this performance outcome is to be demonstrated as a detailed ecological assessment report [for section (a)(i)] and an environmental offset report [for section (a)(ii)] prepared in accordance with Part 2 of the Planning scheme policy 3 – Environmental management.

…[29]

PO5

Development in a Locally significant vegetation area identified on the Biodiversity areas overlay map OM-02.03 protects Melaleuca irbyana vine forest, Gossia gonoclada and significant remnant vegetation areas from:

a.  encroachment;

b.  edge effects.

Note – Compliance with this performance outcome is to be demonstrated by a detailed ecological assessment report prepared in accordance with Part 2 of the Planning scheme policy 3 – Environmental management.

…[30]

  1. [29]
    Planning scheme policy 3 which, amongst other things, sets standards for an environmental offset, is applicable. Section 1.2 identifies information requirements for the preparation and submission of an ecological assessment report and an environmental offset report.[31] In s 2.1 it is stated that the purpose of the information required in an ecological assessment report is “to set out the circumstances and level of ecological assessment to be undertaken and the requirements for the preparation and submission of an ecological assessment report.”[32] Although the policy applies to assessable development in a biodiversity area identified on the Biodiversity areas overlay map, the appellant did not submit such a report.[33]
  2. [30]
    Provisions of the Reconfiguring a lot code are also identified as relevant to the determination of the appeal. In 9.4.6.2 it states that the purpose of the code is “to ensure that new lots are of an appropriate size, shape, dimension and density to accommodate development”.[34] The relevant identified overall outcomes are that reconfiguring a lot results in “design outcomes that are consistent with the intended character of the applicable zone, local plan, precinct and adjoining road”; and that “new lots of appropriate size and dimension” are created.[35] Thereafter PO6 states that 10 or more new lots created within the Small lot precinct of the Low density residential zone “provides a diverse mix of lot sizes” and “avoids concentrations of smaller lots”.[36]
  3. [31]
    Provisions of the Filling and excavation code are also referenced as relevant assessment benchmarks by the parties. Overall outcomes speak of development protecting “natural physical processes and ecosystems” and “visual amenity”,[37] and there are similar Performance outcomes specifically in respect of retaining walls.[38]

The disputed issues

  1. [32]
    The disputed issues remaining for determination narrowed considerably during the course of the hearing of the appeal. The issues which remain may be summarised as follows:
  1.  whether the proposed development would result in an unacceptable loss of native and remnant vegetation and whether any such loss can be adequately compensated by an environmental offset;
  1.  whether the proposed development would unacceptably impact on fauna habitat and movement opportunities and compromise the functionality of the Biodiversity corridor identified on the Biodiversity areas overlay map and whether any such impact can be adequately compensated by way of an environmental offset;
  1.  whether there are any unacceptable impacts on the character of the surrounding area due to the lot sizes proposed;
  1.  whether compliance with the relevant assessment benchmarks can be achieved by the imposition of development conditions such that the development must be approved; and
  1.  whether there are discretionary grounds pursuant to s 60(2)(b) of the PA which warrant approval of the proposed development.

Ecological issues

  1. [33]
    Three distinct ecological areas of expertise were the subject of expert evidence given at the hearing of the appeal. These were flora, fauna and koalas. The co-respondent only called one expert, Dr Watson in the field of expertise of koalas. The appellant called only one expert, Mr Delaney and he gave evidence as a flora, fauna and koala expert.  The respondent called Dr Daniel in respect of flora issues, Mr Agnew in respect of fauna issues, and Professor Carrick in respect of koala issues.
  2. [34]
    Mr Delaney was not an impressive witness. He repeatedly acted as a partisan advocate for the appellant. Despite this being inappropriate pursuant to r 33 of the Planning and Environment Court Rules 2018 (Qld), Mr Delaney sought to justify the clearing of the Waterford site on a number of alternative bases, some of which he said were suggested by his client. Ultimately, he conceded in cross-examination that he had chosen an approach of being an advocate for the clearing of this site for his client’s benefit.[39] Part of the approach taken to addressing the floristic qualities of the Waterford site by Mr Delaney was to call into question the accuracy of the various overlays, and in particular the Locally significant remnant vegetation area overlay. He did this by investigating the site and submitting that the parts of the site outside the creek corridor were not appropriately classified. He submitted they were in fact regional ecosystem 12.11.5 (one of the most common regional ecosystems in South East Queensland) or 12.11.24.[40] Either regional ecosystem 12.11.5 or 12.11.24 are regional ecosystems which are not of concern.[41] Mr Delaney admitted he was involved in obtaining the PMAV which reclassified the Waterford site pursuant to the VMA in the way he contended for.[42]
  3. [35]
    Whereas Mr Delaney is something of a generalist, Dr Daniel is an expert in mapping regional ecosystems in South East Queensland. Not only was he critical of the methodology adopted by Mr Delaney but he was also critical of the absence of the indicator species required for the classification contended by Mr Delaney.[43] He pointed out the plots upon which Mr Delaney relied did not contain the vegetation which was required for the reclassification giving rise to the PMAV. Under cross-examination Mr Delaney conceded the absence of indicator species either alone or as a dominant species.[44] In these circumstances pursuant to s 27(2)(a) of the PR I am of the view that the PMAV is not relevant to the development. Conversely, Dr Daniel eloquently justified the classification of the balance of the site outside of the creek area (which is not intended to be cleared) as regional ecosystem 12.11.18 and therefore correctly mapped[45] as being of concern, because there is less than 10% of its pre-clearing extent left within the respondent’s local government area.[46]
  4. [36]
    It is uncontentious that the existing forest cover and associated fauna habitats on the Waterford site is regrowth which has occurred over 69 years and developed into tall open forest “in structurally and floristically good ecological condition that meets the definition of remnant vegetation” under the VMA.[47] I accept the evidence of Dr Daniel that an offset must cater for impacts on all of the component parts of the vegetation community.[48] I accept his evidence that any offset:

should demonstrate that it will replace all the floristic and associated ecological values that will be lost by the removal of a 69-year-old tall open forest vegetation community that is in good ecological condition and well connected to the broader ecological landscape. This includes a diversity of native trees, shrubs, grass and other vascular plants within the canopy, subcanopy, upper and lower shrub and ground layers.[49]

  1. [37]
    I accept the evidence of Dr Daniel and accordingly find that the Waterford site is correctly described in the overlays pursuant to the planning scheme. I find that, in accordance with PO5 of the Biodiversity areas overlay code, it is a “significant remnant vegetation area”.
  2. [38]
    Turning to the issue of fauna, Mr Delaney conceded in cross-examination that hollow bearing trees are very important resources for native fauna.[50] He further conceded that there were some hollow bearing trees at the Waterford site in circumstances where it takes in the order of 100 years for hollow bearing trees to emerge.[51] It is in this context that I prefer the evidence of Mr Agnew. He emphasised that the proposed development will result in the removal of at least 49% of the fauna habitat on the Waterford site. This is a significant reduction in the effective corridor width and creates a “pinch point” and potential edge effects at a strategically important section of the Biodiversity corridor.[52] I accept his observation that:

It is my view that the provision of an offset elsewhere in the City cannot adequately compensate for the removal of habitat on the Waterford Site or the significant reduction in functionality of the planned Biodiversity corridor relevant to the Waterford Site. The Waterford Site’s habitats support a strategic contribution to the local area habitat network and the planned Biodiversity Corridor.[53]

  1. [39]
    In reaching his conclusion, Mr Agnew took into account the extent of the earthworks proposed for the Waterford site, stating:

Even given the most optimistic retention/rehabilitation prospect, such a narrow strip of vegetation, flanked by high concrete walls would not provide a conducive environment to facilitate movement for a variety of native fauna that are known to occur or likely to occur, on the Waterford Site.[54]

  1. [40]
    So far as the question of impacts on koalas is concerned, Mr Kennedy had no reservations that the proposed development coupled with the rehabilitation of the Chambers Flat site resulted in a better outcome for koalas. Dr Watson noted that the proposed balance area protected koala habitat and that a safe passage for koalas would not be compromised by the proposed development on the Waterford site. He was of the view that the “compensatory rehabilitation exercise” was of benefit.[55]
  2. [41]
    Professor Carrick was of the view that “as currently proposed, the development fails to meet key benchmarks for Koalas.”[56] During cross-examination Professor Carrick conceded that the loss of half the koala carrying capacity of the Waterford site was probably manageable but undesirable from his perspective.[57] He also pointed out that the Waterford koala population will not benefit at all from the proposed enhancement of koala habitat at the Chambers Flat site.[58] Professor Carrick is a renowned koala expert and extremely knowledgeable in the field of the status, health and sustainability of Australia’s koala population. He was appointed as a Member, General Division of the Order of Australia (AM) for service to wildlife preservation, particularly in relation to koalas in the 1995 Queen’s Birthday Honours List. I found his evidence particularly authoritative and convincing given his degree of speciality and experience and prefer it to that of the other expert witnesses called in this field.
  3. [42]
    There was an unfortunate pattern in the way all of the parties to the appeal sought to elicit expert evidence at the hearing. The experts had been provided with the relevant assessment benchmarks from the planning scheme and asked to evaluate compliance with them from the perspective of their area of expertise. This approach led to experts giving evidence of the meaning of the assessment benchmarks rather than merely giving evidence about the relevant ecological qualities of the site in question from the perspective of their area of expertise and of the likely impact on those by the proposed development. This approach appears to offend well established principles that an expert cannot give evidence as to the meaning of the relevant assessment benchmarks which was explained by the Court of Appeal in H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor.[59]
  4. [43]
    Returning to the relevant assessment benchmarks in the planning scheme, the starting point is that acting as assessment manager I undertake a bounded assessment called up by the relevant provisions of the table of development. In making that assessment, I apply the hierarchy of assessment benchmarks and note that overlays prevail over all other relevant components to the extent of any inconsistency between the provisions within the planning scheme. In its written submissions the appellant emphasises the need for consideration of the zoning of the land for small lot residential development, however the relevant zone code is not called up in the table of development as an assessment benchmark.[60] It is the nature of the development application, namely reconfiguring a lot which identifies which assessment benchmarks are applied by the assessment manager. My role is to assess the proposed development in the context of the hierarchy of applicable assessment benchmarks to the extent that they are identified in the list of disputed issues.[61]
  5. [44]
    Turning to the provisions of the Biodiversity areas overlay code, the primary submission of the appellant is that compliance is achieved through the relevant purpose and overall outcomes. It is submitted that pursuant to s 8.2.2.2(2)(a) the proposed development protects and enhances habitat values in Biodiversity corridors, native vegetation in the primary vegetation management area and wildlife habitat and movement. It is submitted that this is achieved through a combination of revegetating and managing the balance area of the Waterford site and revegetating and maintaining the area identified at the Chambers Flat site. As was readily conceded by each of the relevant experts, there will be enhancements for both sites by the proposed draft conditions of approval.[62] Obvious examples include the extent of the replanting, the weed management regime and the eventual establishment of significant numbers of koala habitat trees on both sites.
  6. [45]
    There is a conceptual difficulty with such a simplistic approach however. I have already found that the Waterford site is appropriately mapped and that the overlays are sound from an ecological perspective. It is a matter for the respondent to decide where overlay corridors should go. It is not appropriate for the appellant to simply disregard the overlays, including the Biodiversity areas overlay and seek to establish compensatory habitat in another location of its choosing. It seeks to do so in circumstances where the Biodiversity corridor overlay affects 97.7% of the site, the Primary vegetation management overlay affects 91.6% of the site and the Locally significant remnant vegetation area overlay affects 81.9% of the site. Accordingly, the clearing of 49% of the site by the proposed development cannot be said to either protect or enhance habitat values and the biodiversity corridor at the Waterford Site. The same is the case for the native vegetation itself and for the outcome for wildlife habitat and movement. This is particularly so when what is proposed is the destruction of numerous large trees up to 70 years old. They provide habitat which simply cannot be replicated in a short period of time.
  7. [46]
    The fact that the appellant has not even attempted to comply with the relevant planning scheme policy which sets out the requirements for the proposed offset is notable. Further, as conceded by the co-respondent in its written submissions, the decision to impose the referral agency conditions it did does not mandate approval or refusal of the proposed development.
  8. [47]
    There is therefore a failure to comply with the purpose and overall outcomes identified in the Biodiversity areas overlay code.
  9. [48]
    Turning to the appellant’s alternative argument that compliance is achieved through the relevant performance outcomes. Firstly, PO1 states that development in a Biodiversity corridor is designed and located to provide for habitat links, facilitate safe wildlife movement, facilitate wildlife refuge, enhance habitat values and rehabilitate degraded areas with native vegetation. The same considerations apply as were discussed above.  Although the proposed development, by rehabilitating the balance area does provide for habitat links and does, together with the Chambers Flat rehabilitation proposal, rehabilitate degraded areas with native vegetation, it does not facilitate wildlife refuge or enhance habitat values in circumstances where numerous mature trees are to be felled and replaced with young vegetation. Moreover, the attached note which, pursuant to s 1.3.2 is part of the planning scheme, requires that compliance with this performance outcome is to be demonstrated by a detailed ecological assessment report pursuant to Planning scheme policy 3 which has not been done. PO1 is therefore not complied with either.
  10. [49]
    Turning to PO2. It requires that development in the Primary vegetation management area is designed and located to either protect the current extent of native vegetation or achieve a net gain of vegetation and to rehabilitate degraded areas with native vegetation. The conclusions above are such that there is not a net gain of native vegetation given the extent of the destruction of mature habitat trees. The attached note requiring detailed reports pursuant to Planning scheme policy 3 has also not been complied with. Therefore PO2 is not complied with.
  11. [50]
    Although AO2.1 is not called up for my consideration in the list of disputed issues,[63] I note that the appellant refers to it in its written submissions. Put simply, it has not been demonstrated to me that AO2.1(b) (which is the only potentially applicable part of the AO) has been complied with.
  12. [51]
    Turning to PO5. I have found that the relevant overlay correctly maps significant remnant vegetation areas which are going to be encroached upon. I further find consistent with the evidence of Mr Agnew that this area will likely suffer edge effects as a consequence of the encroachment. Accordingly PO5 is not complied with in circumstances where, again, the requirement in the attached note calls up Planning scheme policy 3 which has not been complied with.
  13. [52]
    There are also corresponding non-compliances with the identified assessment benchmarks in the Filling and excavation code for the reasons identified above, other than the requirements to protect visual amenity which I address below.
  14. [53]
    The extent of the habitat destruction at the Waterford site contemplated by the proposed development is such that there are no conditions of approval which could satisfactorily address the non-compliances with the relevant assessment benchmarks of the Biodiversity areas overlay code and the Filling and excavation code.

Planning issues

  1. [54]
    This area of assessment relates to primarily the Reconfiguring a lot code. Firstly in issue is the requirement that the proposed development results in design outcomes that are “consistent with the intended character of the applicable zone, lot plan, precinct and adjoining road” and secondly that new lots are created “of appropriate size, shape and dimension”. These requirements arise pursuant to the purpose and overall outcomes in s 9.4.6.2. There is similar small lot development in the vicinity of the site in circumstances where there is also large lot rural residential development on the opposite side of Dairy Creek Road. Dr McGowan, who gave visual amenity expert evidence on behalf of the respondent conceded under cross-examination that this created a real “dichotomy of the character on each side of the road.”[64] I accept the evidence of Mr Buckley, the town planner who gave evidence on behalf of the appellant that the character of the northern side of Dairy Creek Road will be unchanged by the proposed development.[65] I further accept the evidence of Mr Curtis, the visual amenity expert who gave evidence on behalf of the appellant, that 13 different lot sizes will be provided in the total number of 55 lots,[66] and that there is sufficient room to provide appropriate landscaping within the lots.[67] Accordingly, having regard to the fact the proposed development it is a small lot residential development, I am of the view that the purpose and overall outcomes referred to above are satisfactorily addressed by the proposed development. I am also of the view that PO6, which requires a diverse mix of lot sizes and an avoidance of concentrations of smaller lots, is complied with in the context of the proposed development, which understandably only envisages small lots.
  2. [55]
    There are therefore not unacceptable impacts on the character of the surrounding area due to the size of the proposed lots.
  3. [56]
    There are no amenity consequences of the proposed built form itself, including the retaining walls, which justify refusal of the proposed development having regard to the relevant overall outcomes and P08 of the Filling and excavation code.

Conclusion

  1. [57]
    The non-compliances with the Biodiversity overlay code (and to a lesser extent the Filling and excavation code) are such that the proposed development must be refused. No conditions of approval can satisfactorily address the extent of the non-compliances which involve significant habitat destruction of established forest over 49% of the Waterford site. This is an unacceptable loss of established native and remnant vegetation which cannot be adequately compensated by the environmental offsets proposed by the appellant in the draft conditions of approval or by any other conditions, on the evidence I accept. The same is true from the perspective of impacts on fauna and the functionality of the Biodiversity corridor. There are no discretionary matters which justify approving the proposed development given the extent of non-compliances with these assessment benchmarks.
  2. [58]
    Proposing an environmental offset otherwise than in accordance with the relevant planning policy is not to be encouraged. The mapping of protected vegetation is an important responsibility of a local government and to be respected. A proponent for a development cannot simply put forward a planting regime at a site several kilometres away to avoid the obligation to comply with provisions in the Biodiversity overlay code. The proposed development so significantly undermines the outcomes intended by the relevant assessment benchmarks in the Biodiversity areas overlay code that it must be refused.
  3. [59]
    Accordingly the appeal is dismissed.

Footnotes

[1]  Logan Planning Scheme, Version 8.1.

[2]  Ex. 2 pp 1–2.

[3]  Ex. 11 p 6.

[4]  Ibid.

[5]  Ex. 6, para 11, p 8.

[6]  Ex. 2 p 6.

[7]  Ex. 11, para 49, p 12.

[8]  Ex. 2 p 7.

[9]  Ex. 53.

[10]  Ex. 21(a) p 2, it is mapped on overlay maps OM-02.00, OM-02.01, OM-02.02, OM-02.03 and OM-02.04 shown in Ex. 21(c) pp 365–369.

[11]  Ex. 6 p 6.

[12]  Ex. 21(a) pp 4–5.

[13]  Ex. 53.

[14]  Ex. 6 pp 6, 103.

[15] Planning and Environment Court Act 2016 (Qld) s 43.

[16]  Ibid s 45(1)(a).

[17] Planning Act 2016 (Qld) s 45(4).

[18]  Ibid s 59(3).

[19]  Ibid s 60(2).

[20]  [2020] QPELR 579 at [35].

[21]  [2014] QCA 147 at [52].

[22]  Ibid [56].

[23] Planning Regulation 2017 (Qld) s 27(1)(d)(ii).

[24]  Ibid s 27(2)(a).

[25]  State Planning Policy 2017 Part B.

[26]  Ex. 21(a) p 10.

[27]  Ibid p 39.

[28]  Ibid p 71.

[29]  Ex. 21(a) p 73.

[30]  Ex. 21(a) p 74.

[31]  Ibid p 171.

[32]  Ibid p 172.

[33]  Ex. 1(b) p 579.

[34]  Ex. 21(a) p 102.

[35]  Ibid.

[36]  Ibid p 103.

[37]  Ibid s 9.4.2.2 p 96.

[38]  Ibid P08 p 97.

[39]  T4–26 ll 35–41, 44.

[40]  T5-34.

[41]  T5-24.

[42]  T3-20 ll 30–31; Ex. 51.

[43]  Ex. 22 pp 16-29.

[44]  T3-33–34.

[45]  Ex. 4 p 15; Ex. 22, paras 13 and 14, p 6.

[46]  T4-75, ll 1–6.

[47]  Ex. 4, para 9, p 9.

[48]  Ex. 22, para 21 p 10.

[49]  Ex. 22, para 26, p 11.

[50]  T4-12, 40-45.

[51]  T4-13 ll 1–20.

[52]  Ex. 23 pp 5-9.

[53]  Ibid para 37, p 8.

[54]  Ex. 23, para 28, p 6.

[55]  Ex. 28 p 8.

[56]  Ex. 24, para 14, p 5.

[57]  T6-38 ll 20–35.

[58]  T6-29 ll 1–16.

[59]  [1992] QCA 384; (1992) 80 LGERA 230 at 235.

[60]  Ex. 21(a) p 44.

[61]  Ex. 33.

[62]  Ex. 53.

[63]  Ex. 33.

[64]  T2-88 ll 20–23.

[65]  Ex. 12, para 23, p 3.

[66]  Ex. 14, para 8, p 3.

[67]  Ibid, para 15, p 4.

Close

Editorial Notes

  • Published Case Name:

    Landarch Properties Pty Ltd v Logan City Council & Anor

  • Shortened Case Name:

    Landarch Properties Pty Ltd v Logan City Council

  • MNC:

    [2024] QPEC 47

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    15 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
Brisbane City Council v Klinkert [2020] QPELR 579
2 citations
Jump To
Cite 1 - [2020] QPELR 579
Cite 2 - [2020] QPELR 579
H A Bachrach P/L v Caboolture SC (1992) 80 LGERA 230
2 citations
Jump To
Cite 1 - (1992) 80 LGERA 230
Cite 2 - (1992) 80 LGERA 230
H A Bachrach Pty Ltd v The Council of the Shire of Caboolture [1992] QCA 384
2 citations
Jump To
Cite 1 - [1992] QCA 384
Cite 2 - [1992] QCA 384
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

Cases Citing

Case NameFull CitationFrequency
Hunt v Douglas Shire Council [2025] QPEC 192 citations
1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.