Coolum Beach Christian College v Department of Environment and Science [2023] QCAT 129

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Coolum Beach Christian College v Department of Environment and Science [2023] QCAT 129 PARTIES: COOLUM BEACH CHRISTIAN COLLEGE (applicant) v DEPARTMENT OF ENVIRONMENT AND SCIENCE (respondent) APPLICATION NO: GAR242-21 MATTER TYPE: General administrative review matters DELIVERED ON: 13 April 2023 HEARING DATE: 8 February 2023 HEARD AT: Brisbane DECISION OF: Member Olding ORDERS: The decision under review is set aside and substituted with a decision that the determination of the area the subject of the proceeding as a koala habitat area is revoked. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – SPECIES AND HABITAT PROTECTION – whether to determine an area is a koala habitat area – requirement that koala habitat is essential for the conservation of a viable koala population in the wild – where no evidence of koalas on the land Nature Conservation (Koala) Conservation Plan 2017 REPRESENTATIVES: Applicant: T Hornby, former principal, Coolum Beach Christian College Respondent: G Lundie-Jenkins, Director – Southern Wildlife & Koala Operations, Department of Environment and Science REASONS FOR DECISION What is this case about? [1] Coolum Beach Christian College was about to call for tenders for a construction project on part of its campus when it became aware that land on which the development was to occur is a “koala habitat area”. -- 1 of 5 -- 2 [2] That designation does not prohibit development but engages a more demanding assessment and approval process. The College has obtained approval for a development. However, the approval is subject to conditions the College considers to be onerous. [3] The College asked the Department of Environment and Science to amend or revoke the determination of the area as a koala habitat area. In response, the Department decided to exclude part of the area but otherwise declined to revoke the determination and confirmed that decision after an internal review. The upshot is that an area of approximately 1.1 hectares remains a koala habit area. [4] It is that reviewed decision which is before the Tribunal for review. Statutory framework Determination of koala habitat areas [5] Under the Nature Conservation (Koala) Conservation Plan 2017 (Qld) (“Koala Plan”), the Department’s chief executive may determine an area in a koala district to be a koala habitat area.1 [6] Section 7B(3) of the Plan provides that the chief executive may make such a determination in relation to an area “if satisfied: (a) the area contains koala habitat; and (b) the koala habitat is essential for the conservation of a viable koala population in the wild.” [7] In considering whether to make the determination, the chief executive: must have regard to information that is reasonably available to the chief executive in relation to the combination of biophysical measures and suitability of vegetation in the area.2 [8] The chief executive is taken to have determined an area shown as a koala habitat area on the Koala Conservation Plan Map published on the Department’s website to be a koala habitat area.3 [9] The main purpose of determining an area to be a koala habitat area is “to avoid impacts on koala habitat to ensure the long-term persistence of koala populations in the wild.”4 [10] There is also provision for determining an area to be a “koala priority area”. The main purpose of a koala priority area determination is “to strategically focus long-term management and monitoring effort on areas that have the highest likelihood of achieving conservation outcomes for koalas.”5 1 Koala Plan, s 7B(1). 2 Koala Plan, s 7B(4). I drew this provision to the attention of the Department at the hearing and have taken into account the information provided in the Department’s materials. No other information was brought to my attention. 3 Koala Plan, s 21(b). 4 Koala Plan, s 7B(2). 5 Koala Plan, s 7A. -- 2 of 5 -- 3 Request to amend or revoke a koala habitat determination [11] Under s 7C, an owner of land may ask the chief executive to amend or revoke a determination that an area is a koala habitat area. Question for the Tribunal [12] The parties’ submissions proceeded on the basis that considerations relevant to whether an area may be determined to be a koala habitat area are also relevant to requests to revoke or amend a determination. In particular, whether the Department, or the Tribunal on review, is satisfied the area contains koala habitat that is essential for conservation of a viable koala population in the wild. I adopt that approach. [13] Koala habitat is defined to include “an area of vegetation that consists primarily of koala habitat trees [in turn defined] and which is reasonably suitable for sustaining koalas.”6 Based on expert reports relied upon by the Department, there can be little doubt the land contains koala habitat.7 [14] The parties’ submissions therefore mainly focussed upon whether the Tribunal should be satisfied the area is “essential for the conservation of a viable koala population in the wild.”8 Is the area “essential for the conservation of a viable koala population in the wild”? The parties’ submissions [15] The College says the area cannot be regarded as “essential” for the conservation of a viable population in the wild when: (a) The College is not aware of a koala sighting on the land in the last 18 years. (b) The Department’s own representatives carried out a site inspection conducted over 2.5 hours, walking the entire site a number of times looking for direct evidence of koala usage in the form of scats (pellets) and tree scratchings. No evidence of koalas being on the land was found. (c) The Department’s own report indicates the nearest koala sighting was some 2.3 kilometres to the north-west. [16] In that regard, I note that while the land is adjacent to a considerable expanse of vegetated land, consistent with the evidence that the nearest koala sighting was some 2.3 kilometres away there is no evidence of koalas traversing from the adjacent land to or through the College’s land. [17] Dr Lundie-Jenkins responded, and I accept, that “absence of evidence is not evidence of absence” of koalas on or passing over the land. [18] In some respects, the evidence regarding presence or absence of koalas on the land was not ideal. The Department’s report following the field inspection stated that 6 Koala Plan, Schedule 2. 7 Report dated 7 March 2022, pages 6, 8 and 9. 8 If that question were answered affirmatively, separate questions regarding whether, as a matter of discretion, the area should be determined to be a koala habitat area, would need to be answered. Since I am not satisfied the koala habitat is essential for conservation of a viable koala population in the wild, it is not necessary to address those questions. -- 3 of 5 -- 4 ground conditions for detecting pellets were “extremely poor” due to the site being wet from recent rain and a spring discharge; water rushing across the site; and recent slashing. The absence of possum pellets other than at the dry un-slashed fence line was said to be consistent with speculation that any koala pellets that might have been present would have been disturbed. Wallaby pellets were said to be very recent and to appear to have been deposited after the slashing.9 [19] It is not altogether clear to me why possum and wallaby pellets would have been detectable but not koala pellets. However, while a curiosity, I do not draw any conclusion from this. In the end, the issue comes down to this: there is no evidence before the Tribunal of koalas being on or passing over the land. [20] In any case, the main thrust of the Department’s submissions and evidence as explained at the hearing related to the parlous state of koala habitat remaining in the Sunshine Coast area (32%) which is insufficient to meet the target recommendation that 40-50% of the landscape should be retained as koala habitat to sustain viable koala populations. The Department’s report opined that this reinforces the importance of retaining any remaining habitat, such as the high value regrowth identified on [the area] as well as the need to undertake restoration activities to increase the amount and quality of koala habitat in the future.10 (Emphasis added.) [21] As Dr Lundie-Jenkins confirmed in the course of oral submissions, essentially the Department’s view is that the state of koala habitat in the Sunshine Coast is such that it is necessary to retain any remaining koala habitat – that is, any land containing vegetation that consists primarily of koala habitat trees and which is reasonably suitable for sustaining koalas should be protected. In other words, that retention of any such koala habitat, regardless of whether there is evidence of the use of the land by koalas either as a place to live or to cross from one area to another, is essential to the conservation of a viable koala population in the wild. [22] The Department’s report emphasised that: (a) The vegetation on the relevant part of the College’s land consists almost entirely of koala habitat trees and is more than reasonably suitable for sustaining koalas. (b) The site contributes to the objective of maintaining, restoring or conserving koala habitat patches, or clusters of highly connected patches, that are large enough to sustain viable koala populations. (c) In addition to koala habitat, the site contains dispersal habitat (partially or completely cleared areas used by koalas to cross from one area to another and which facilitates the movement of animals and gene flow).11 [23] I accept this evidence so far as it supports a conclusion that retaining the koala habitat is consistent with the objectives stated. I also accept it establishes that the habitat may contribute to conservation of a viable koala population in the wild. 9 Report dated 7 March 2022, page 8. 10 Report summary dated 7 March 2022, page 3. 11 Report summary dated 7 March 2022, pages 2 and 3. -- 4 of 5 -- 5 [24] However, it is important to note the terms on which the legislature has empowered the Department to determine an area to be a koala habitat area. Those terms are specific and absolute. It is not sufficient for the Department to consider the koala habitat to be desirable for conservation of a viable koala population in the wild, nor that a determination would contribute to best practice objectives for maintaining koala habitat. Nor does the governing legislation authorise treating all land in a district containing koala habitat as a koala habitat area. It is only if the Department, or the Tribunal on review, is satisfied the particular koala habitat is essential for the conservation of a viable koala population in the wild that the power to make a determination is enlivened. [25] Having regard to the relatively small area in question and the absence of any evidence of it being used by koalas either as a place to dwell or to pass through, or even of koalas residing in or passing through land in the vicinity of the land, I am not satisfied that this particular habitat is essential for the conservation of a viable koala population in the wild.12 [26] In reaching that conclusion, I have had regard to the purpose of a koala habitat area determination being to avoid impacts on koala habitat to ensure the long-term persistence of koala populations in the wild. I accept that determination of the area as a koala habitat area would be consistent with that objective. [27] However, consistency with a stated statutory objective is not the same as, and cannot be substituted for, satisfaction of an explicit statutory test. The legislature through the Koala Plan has specified that the Department (and therefore the Tribunal on review) must be satisfied particular koala habitat is essential for the conservation of a viable koala population in the wild. [28] Not being so satisfied for the reasons outlined, I must set aside the Department’s decision and substitute a decision that the determination taken to have been made by the chief executive is revoked so far as it relates to the koala habitat on the subject land. 12 In so deciding, I should not be taken to suggest that a determination could only ever be made if land is actually used by koalas. Each case must be decided on its own facts. The particular considerations outlined have left me unable to be satisfied as required by s 7B(3)(b) that in this case the koala habit is essential to the conservation of a viable koala population in the wild. -- 5 of 5 --