Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council & Ors (No 2) [2008] QPEC 27

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council & Ors (No 2) [2008] QPEC 27 PARTIES: BAKRNCHEV ENTERPRISES PTY LTD (Appellant) v MAROOCHY SHIRE COUNCIL (Respondent) and GEORGE PETER MALEY & FRANCES MARY MALEY (First Co-Respondents by Election) and PHILIP EDWARD LEONARD & ANNE ELIZABETH LEONARD (Second Co-Respondents by Election) and JAN CROSSING & CHESTER CROSSING (Third Co-Respondents by Election) FILE NO/S: 44 of 2006 DIVISION: Appellate PROCEEDING: Developer Appeal against refusal of development application ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 2 June 2008 DELIVERED AT: Brisbane HEARING DATE: 20 May 2008, Brisbane JUDGE: Robin QC DCJ ORDER: Appeal adjourned to permit investigation of possible development approval consistent with court’s views -- 1 of 23 -- 2 CATCHWORDS: Integrated Planning Act 1997 s 3.5.30 – Land Title Act 1994 s 97A – whether registered covenant a suitable way of satisfying requirement of a development condition to provide a corridor for wildlife or to preserve conservation values of “relatively unfragmented Comprehensive Vegetation Assessment Management Area” – “Acceptable Measure” required not less than 70% of vegetated area of development site to remain uncleared COUNSEL: G R Allan for the appellant C L Hughes SC and S Holland for the respondent A Skoien for the first co-respondents by election SOLICITORS: P&E Law for the appellant G N Phillips, Maroochy Legal Services for the respondent Butler McDermott Solicitors for the co-respondents [1] Unfortunately it was not until 20 May 2008 that the parties could reconvene for further consideration of this appeal which was heard in Maroochydore over four days concluding on 29 November 2007. The reasons for the court’s conclusions were published to the parties the following month. See [2007] QPEC 117. The conclusions would ordinarily have led to dismissal of this developer appeal under s 4.1.27(1)(a) of the Integrated Planning Act 1997 (IPA), a course which the first co-respondents by election by their counsel Mr Skoien urged the court to take; I infer that the second and third co-respondents by election (who took no active part in the appeal), would have favoured the same course. However, the Council, which had come to favour some residential development on the site (albeit not to the extent desired by the appellant), invited the court to adjourn the appeal to permit the appellant, if so advised, to come up with an alternative plan of development, having in mind the court’s reasons, for consideration by the parties and ultimately by the court in this appeal. See [2007] QPEC 117 at [58] ff. -- 2 of 23 -- 3 [2] The proposed development had to comply with performance criteria set out in the relevant planning scheme’s Code for Nature Conservation Management and Bio-Diversity Protection, including performance criterion P2, for which alternative Acceptable Measures are indicated: “P2 The relatively unfragmented nature of the Comprehensive Assessment Vegetation Management Areas (as shown on Regulatory Map No. 1.1) and the conservation values they support, must be preserved. A2.1 In Vegetation Management Areas shown on Regulatory Map No. 1.1, not less than 70% of the vegetated area of the development site remains uncleared. OR A2.2 Any areas which are to be cleared, or otherwise disturbed are: (a) outside any Vegetation Management Areas shown on Regulatory Map No. 1.1; and (b) contiguous with existing cleared or disturbed areas; or (c) beyond the outside edge of the most significant vegetation area, with the remaining vegetation being protected from disturbance or environmental harm in accordance with Acceptable Measures A4.1 and A4.2 below.” [3] Further, the court’s reasons accepted the view supported by one or more Council witnesses, if not by the Council itself, that a vegetated corridor ought to be provided extending the whole length of the northern boundary -- 3 of 23 -- 4 of the site to link the ecologically valuable eastern portion of it to Stringybark Road, beyond which were links to important habitat on more elevated country. This is all part of what was called the “mosaic of habitats in the area”. See the published reasons at [49] ff and the endorsement of Ms Duke’s views at [53]. [4] The conclusion (which the court is not asked to review) that P2 in its own terms cannot be satisfied has to be qualified by acknowledging that it is taken to be satisfied by definition, if either of the acceptable measures is complied with. See [33] and [56]. [5] The appellant has engaged Mr Hickey, a surveyor, who has devised a revised plan of development setting out to provide the corridor contemplated by the court and to comply with acceptable measure A2.1. His affidavit became exhibit 38, the attached revised layout plan TMH-1 was separately identified as exhibit 38A. The number of lots now proposed is 23, as opposed to the 18 settled on during the appeal hearing. The layout is considerably changed; the internal road terminating in a cul de sac well inside the site originally was proposed to sweep to the north, touching the boundary, to avoid the substantial residence and associated improvements now on the site. The sweep is now to the south, touching the boundary there at the link always proposed with an existing stub road on the adjoining developed estate. Whereas adjacent to the northern boundary, four lots close to the Stringybark Road end were proposed, there would now be 12, six occupying roughly the space allocated to the earlier four mentioned - the other six in the line being larger, generally more irregularly shaped lots. -- 4 of 23 -- 5 [6] Exhibit 38A colours dark green the proposed public open space area in the east of the site whose area, apparently inclusive of a five metre access from the cul de sac, is 1.446 hectares. There appears coloured light green a 19.2 metre deep corridor along the northern boundary of the site. Towards the eastern boundary of lot 6 there is a protrusion at right angles to a point roughly doubling the width, which immediately reverts at about 45 degrees to the general line of the corridor (albeit no longer a straight line). The line curves to the south through lots 10, 11 and 12 to meet the walkway. On the opposite side of the walkway is a smaller light green area within lot 13 covering most of its eastern boundary with the public open space proposed and of its southern boundary with the adjoining developed estate. [7] The appellant’s proposal is that, whereas the dark green areas are to be dedicated as public open space, the light green ones will be the subject of “vegetation covenants” to be registered against each of the lots pursuant to s 97A of the Land Title Act 1994. Section 97A is: “97A Covenant by registration (1) A lot may be made the subject of a covenant by the registration of an instrument of covenant under this division. (2) An instrument of covenant may be registered under this division only if the covenantee under the instrument is the State or another entity representing the State, or a local government. (3) The covenant must - (a) relate to the use of - (i) the lot or part of the lot; or (ii) a building, or building proposed to be built, on the lot; or -- 5 of 23 -- 6 (b) be aimed directly at preserving - (i) a native animal or plant; or (ii) a natural or physical feature of the lot that is of cultural or scientific significance; or (c) be for ensuring that the lot may be transferred to a person only if there is also transferred to the person - (i) another lot that is also the subject of the covenant; or (ii) non-freehold land that, under the Land Act 1994, is the subject of the covenant; or (iii) a lot mentioned in subparagraph (i) together with non-freehold land mentioned in subparagraph (ii). (4) The covenant - (a) may be a positive covenant or a negative covenant; and (b) is binding on the covenantor and the covenantor’s successors in title. (5) The covenant must not prevent a person from - (a) registering an interest under this Act; or (b) exercising the person’s rights under a registered interest; or (c) releasing or surrendering a registered interest. (6) The covenant must not - (a) secure the payment of money or money’s worth payable under a condition of a development approval or an infrastructure agreement under the Integrated Planning Act 1997, or (b) provide for anything capable of being the subject of an instrument of easement. (7) For subsection (3)(a), the covenant relates to the use of the lot, a part of the lot, a building on the lot or a -- 6 of 23 -- 7 building proposed to be built on the lot, only if it provides for - (a) a purpose for which the lot, the part of the building must be used; or Examples of covenants for paragraph (a) – • that a building on the lot must be used for educational purposes • that the lot must be used for noise attenuation purposes (b) a purpose that is the only purpose for which the lot, the part of the building may be used; or Examples of covenants for paragraph (b) – • that a building on the lot may be used only for residential purposes • that the lot may be used only for organic farming (c) a purpose for which the lot, the part or the building must not be used.” although the language that might be adopted ultimately is yet to be indicated, either precisely or generally, it may be taken that s 97A(3)(b)(i) would be satisfied. The appellant’s proposal for covenants so far is limited to what appears in exhibit 40: “Environment Conservation Covenant A conservation covenant as shown on the approved proposal plan, Drawing No. 0405-CA-SO-1H dated 14 May 2008, must be registered against all the titles for created Lots upon the covenant line crosses. The covenant must include Sunshine Coast Regional Council as Covenantee and be in a form that enables registering of a covenant pursuant to s 97A(3)(b) of the Land Titles Act 1994; and (a) the applicant must provide a written undertaking that the covenant will be registered pursuant to s 97A and 97B of the Land Titles Act 1994 against -- 7 of 23 -- 8 the subject Lots at the time of registering the approved plan for reconfiguration of a lot. Such covenants are recognised in the IPA in s 3.5.37: “3.5.37 Covenants not to be inconsistent with development approvals (1) Subsection (2) applies if a covenant under the Land Act 1994, section 373A(4) or the Land Title Act 1994, section 97A(3)(a) or (b) is entered into in connection with a development application. (2) The covenant is of no effect unless it is entered into - (a) as a requirement of a condition of a development approval for the application; or (b) under an infrastructure agreement.” and in s 2.1.25: “2.1.25 Covenants not to conflict with planning schemes Subject to section 3.5.37, a covenant under the Land Act 1994, section 373A(4) or the Land Title Act 1994, section 97A(3)(a) or (b) is of no effect to the extent it conflicts with a planning scheme – (a) for the land subject to the covenant; and (b) in effect when the document creating the covenant is registered.” [8] That recognition of covenants led Mr Allan, for the appellant, to make a submission (Transcript p 18), the broad thrust of which I accept: “On my review of the Maroochy Plan 2000 there is no specific reference to covenants as such of the type. For example, we find in section 3.5.37 it clearly again can’t be disputed that a planning scheme can’t be inconsistent with the IPA but one struggles to find any direct reference or express reference to covenants. However, if your Honour reads again, Acceptable Measure, A4.1 on page 408, specifically the words: ‘An environmentally sensitive area within a development site is secured in a form of tenure that ensures the conservation of resource values of the area and the area so secured is in addition to any public parks contribution.’ -- 8 of 23 -- 9 Now, assuming for the purposes of the submission that at the present time the state of the law is at least in the context of Maroochy Plan 2000 that a parks contribution may be made by either a monetary contribution or by the dedication of land. Subparagraph (a) of Acceptable Measure, A4.1, provides support in the planning scheme or some support that the planning scheme envisages the protection of land through the use of restrictive covenants because by the statutory force of 97A of the Land Title Act, those provisions cannot, in my submission, be read otherwise than that they are designed to ensure the conservation of resource values of the area. In short, there is Maroochy Plan 2000, in the code for reconfiguration some words of support. Certainly they require to be construed in context but words which offer general support that the planning scheme envisages the protection of resources through the mechanism of restrictive covenant.” Mr Allan reminded me of Arnold & Arnold Pty Ltd v Gold Coast City Council [2006] QPEC 075 in which, where the main point was whether a change proposed to a development was “minor change” under s 4.1.52(2)(b) of the IPA, reference was made to protection of a considerably increased part of the site by a “vegetation covenant”. At the completion of the hearing, I was still awaiting receipt of copies of material on the Arnold file (Southport 580 of 2005) so that I could remind myself of the layout of the 10 (reduced to nine) lot sub-division and ascertain what covenants were incorporated in the final development approval constituted by an order made by Judge Rackemann on 17 October 2006. My associate has advised the parties what was unearthed. Grand View Horizons Pty Ltd v Maroochy Shire Council [2007] QPELR 588 was pointed to as indicating that the respondent Council has supported, indeed required a covenant under s 97A in the circumstances prevailing there. [9] I have come across such covenants in other contexts, for example where they are required by the Main Roads Department with a view to trying to -- 9 of 23 -- 10 ensure that residences near a highway will not be developed in ways that lead to complaints about highway noise, Hymix Australia Pty Ltd v Gold Coast City Council [2005] QPELR 583 at [28]. [10] There are other instances of the court developing some familiarity with the concept of development conditions incorporating provision for covenants to be entered into and registered. In Wall v Doyle [2008] QPEC 23, enforcement orders were made by consent which provided for recording of them in the Land Registry under s 173 I ff of the Nature Conservation Act 1992. [11] From the material obtained from Southport, it can be noted that Arnold contemplated protection by a vegetation covenant of 5.4 hectares of an 8.5 hectare site said to be adjacent to a National Park. The Council was agreeable. The final consent order made in Southport (N580 of 2005) on 17 November 2006 by condition 23 required an instrument of covenant over the area to be protected in a form “capable of being registered with the Department of Natural Resources and Mines”: “ENVIRONMENTAL COVENANT (VEGETATION) 23 An instrument of covenant shall be placed over the area described as ‘Covenant Area’ on Plan No. VMRC.01 drawn by Yurrah Pty Ltd and dated May 2006 prior to commencement of the use or reconfiguration of a lot, whichever is sooner. The ‘protected areas’ are to be shown on the face of the survey plan and shall be accompanied by a document(s) that is capable of being registered with the Department of Natural Resources and Mines. This covenant must incorporate the following: (a) the purpose of the covenant is to provide clear access for Council to ensure the developer and successors in title, or their agents do not intentionally or wilfully clear, damage, or destroy any area relating to the conservation of the physical -- 10 of 23 -- 11 features or natural features the subject of the covenant, or otherwise; (b) the nominated protected area is for the purpose of conserving/providing (vegetation and animal movement corridors) and shall be managed in accordance with Covenant Management Plan (to be submitted and approved in accordance with the condition below); (c) the developer and successors in title, or their agents must not on the Protected Area: i. erect any fixtures or improvements, including buildings ii construct any concrete or hardstand trails or paths; iii deposit any fill, soil, rock, rubbish, ashes, garbage, waste or other foreign material; iv keep domestic animals; v perform any other acts on or in respect of the Protected Area which may have detrimental impact; and (d) ‘Vegetation’, for the purposes of this covenant means trees, bushes, plants, shrubs, flowers and other flora including (where the context so admits or requires) grasses, algae, fungi and the like but excluding declared noxious weeds and other vegetation declared by Council by way of applicable policy.” (It may be a question whether the above precludes fencing.) An earlier related condition was: “ENVIRONMENTAL COVENANT (EFFLUENT DISPOSAL) 21 Prior to the endorsement of the relevant survey plans, the applicant shall prepare a covenant to be entered into between the applicant and Council applying to each individual allotment. The applicant shall submit the covenant to Council for written approval prior to registration of the covenant. The applicant shall register the covenant in the Office of the Registrar of Titles (Department of Natural Resources and Mines) pursuant -- 11 of 23 -- 12 to section 97A of the Land Titles Act 1994 prior to or at the same time as registration of the plans of subdivision. The covenant shall incorporate the conditions of the development approval for subdivision relating to: (i) the location and maintenance of effluent disposal areas in accordance with Drawing Reference No. 5184.39B, drawn by Arnold Development Consultants and dated 11 May 2006. The covenants shall be prepared by the applicant in accordance with the relevant provisions of section 97A of the Land Title Act 1994 and shall be endorsed by the covenantor and covenantee prior to or at the same time as the endorsement of survey plans. [12] The appellant’s development in its context is very different from that in Arnold, where the nine lots were in a rough noughts and crosses configuration, divided into “threes” by a short cul de sac road and two adjoining parallel access easements of similar lengths according to a plan exhibited to Mr Arnold’s affidavit filed on 31 March 2006. The smallest lots were 880 m2 , 882 m2 and 1270 m2 ; the others exceeded 1540 m2 . Acknowledging the suggestion in condition 23(b) that the covenant area was to serve a corridor function, that aspect may not have been as central as I believe it to be here, where other nearby options for east-west movement of wildlife are more limited. The agreed outcome in Arnold says little about the suitability in the present context of a covenant or covenants applying to a row of 12 lots, all smaller, intended to serve as a corridor for wildlife. [13] The appellant’s contention is that covenants of the kind suggested are a suitable means of complying with the requirement of acceptable measure A2.1 that not less than 70% of the vegetated area of the development site remains uncleared. In principle, that proposition would appear acceptable, -- 12 of 23 -- 13 although it should be made clear that I have not gone into any investigation of the avenues assumed to be available to anyone interested (whether or not an authority such as the Council) to do something about getting covenants enforced, either standing on their own or as development conditions. The difficulty foreseen by me, in advance of any reference to them by Mr Hughes SC and Ms Holland, appearing for the Council, lies in the complexity of arrangements on the ground and their likely efficacy in providing the corridor for east west movement of wildlife through the site which the published reasons envisage, and which the appellant claims to be providing. Lot 13 is irrelevant to the corridor. [14] The appellant provided (exhibit 41) a so-called “schedule of lot areas with and without vegetation covenants” based on Mr Hickey’s drawing exhibit 38A which is a useful summary of the situation: “Lot No. Area Area of Covenant (Lots 1-13) Area excluding Covenant 1 751 m2 336 m2 415 m2 2 756 m2 336 m2 420 m2 3 756 m2 336 m2 420 m2 4 756 m2 336 m2 420 m2 5 756 m2 336 m2 420 m2 6 866 m2 468 m2 398 m2 7 2474 m2 664 m2 1810 m2 8 1322 m2 516 m2 806 m2 9 1228 m2 559 m2 669 m2 10 1134 m2 462 m2 672 m2 11 1453 m2 990 m2 463 m2 12 1692 m2 1111 m2 581 m2 13 897 m2 301 m2 596 m2 14 778 m2 - 778 m2 15 700 m2 - 700 m2 16 826 m2 - 826 m2 17 682 m2 - 682 m2 18 626 m2 - 626 m2 19 625 m2 - 625 m2 20 625 m2 - 625 m2 -- 13 of 23 -- 14 21 625 m2 - 625 m2 22 625 m2 - 625 m2 23 620 m2 - 620 m2 Note: (i) Total Area Covenants: 6,751 m 2 - as a percentage of Total Site Area: 16.8% (6751/40077 m2 ) - as a percentage of Vegetation within Nature Conservation Management Area: 23.1% - when combined with Public Open Space (13713 m2 – 46.9%): 70% of Total Area of Vegetation within Nature Conservation Management Area (i) Minimum lot size is 600m 2 . See Code for Reconfiguring Lots MP 2000 (21 August 2006) pages 399-418 at page 405, P1:A1.1(a): Lot Size and Dimensions and Table 8.2 – “Urban Coastal” Planning Area (includes Sippy Downs) for Lots with slope up to 15%; see also P4:A4.1(a)-(g)(ii) at p 408 – 409: configuration of land for residential purposes securing protection of an environmentally sensitive area. Number of Lots affected by vegetation covenant with residual lot area < 600 m2 :9 Lots affected by Covenants are dedicated to open space, remaining lots: 14” [15] It is important to achieve minimum lot size of 600 square metres. The reason for this is that requirements are different for detached houses (in the applicable Sippy Downs urban coastal precinct in particular) depending on whether the lot is 600 square metres or is smaller. The examples given by Mr Hughes of features to be approached in special ways included none which I thought at first blush particularly relevant to the appellant’s current proposal. That is by the by. It is a matter of principle, in that the development application required and went through public notification. Interested members of the public were given no inkling that any lot less than 600 square metres was proposed. Mr Crossing on 20 May 2008 -- 14 of 23 -- 15 handed me a copy of the email he and Mrs Crossing sent to the other parties setting out their views (exhibit 37); the document complains about “cramming a greater number of smaller lots into the area, with little regard for the character of the local area or for the amenity of immediate neighbours or of environmental concerns & considerations.” [16] Mr Hughes handed up a succinct written outline: “The Council’s position is simply this, in regard to the Reasons for Judgment: 1. The area on the revised layout plan in exhibit 38 (ie Drawing No. 0404-CA-80-1H) marked “Vegetation covenants within lot” should be included within the “Public Open Space dedication” and, where necessary, subject to appropriate edge treatment including fencing. 2. The lot layout should be amended to ensure that all allotments have a minimum area of 600m2 . 3. Provided these matters are taken into account, the Council has no objection to the inclusion of 23 allotments, if possible (although it appears 2 or 3 may be lost).” The Council, understandably, is reluctant to risk being saddled with the administrative nightmare of policing a dozen or more vegetation covenants. In the proposal, the covenant areas, except for that on lot 1 adjacent to Stringybark Road, will be inaccessible for the purpose of monitoring what is going on there except through the lots themselves or through the adjacent private land, which belongs to the Crossings. They make the point obvious to anyone, in my opinion, but worth making nevertheless, that “fences along the side boundaries of proposed lots would either (if solid & tall) destroy the viability of corridor or (if wire strands) fail to protect fauna from resident cats & dogs”. The Crossings (whose points it is convenient -- 15 of 23 -- 16 to refer to as summaries of what is likely to happen) observe that proposed building envelopes are “butting right up to the marked vegetation buffer. Realistically on such small lots, this would mean the encroachment on the protected area by sheds, trampolines, pets, children and the like.” [17] If Mr Allan intended to submit that the court had already dealt with these matters in some way that precluded concern about the usefulness of the “corridor”, I respectfully disagree. Except for animals with the ability to fly, a corridor with fences at each end and another 11 in between would not serve a corridor function at all, in my view. (I was less concerned about Mr Hughes’ apparent reservations about a fence along the northern boundary of the site running east west. I would not regard such a fence as compromising east west movement in the absence of evidence to show that it did.) Ultimately, I understood Mr Allan to acknowledge that the covenants could forbid boundary fences in the covenant area. While from a social engineering perspective it may seem attractive to establish a large open area, possibly to be enjoyed by residents of a dozen households, I think that approach is unlikely to be appealing to the market. I would not wish to preclude the appellant from devising and presenting some kind of “common property” proposal. [18] I agree with Mr Allan’s complaint about the confiscatory nature of the Council’s proposal that the whole of the covenant area should be dedicated to the public. Without hearing argument about it, I expressed the view that it would be surprising if a condition in those terms satisfied the “reasonableness” requirement for conditions imposed by s 3.5.30 of the -- 16 of 23 -- 17 IPA, although I would be willing to incorporate such a condition in an approval if the appellant agreed to it. [19] Loss of title to the whole of the covenant area would, I think, substantially reduce the lot yield, although Mr Hickey’s ingenuity might manage to avoid that. Other things being equal, and without pre judging the appellant’s application to have its revised proposal declared to involve only “minor change” for purposes of s 4.1.52(2)(b), I would think it unfortunate to reduce lot yield. Not only are we in an era when the provision of additional residential lots is seen as a goal to be pursued vigorously (vide the South East Queensland Regional Plan and current moves to impose minimum quotas on Councils in respect of provision of new residential lots), in terms of Maroochy Plan 2000, as was noted in the appeal proper, the proposal merited criticism for falling short of residential densities envisaged for the site in its locality. [20] In my opinion, the expectations which the Crossings (and maybe the other co-respondents by election) harbour are too ambitious. It has never been realistic to expect some pristine bush land area of the kind that may be envisaged for the proposed public open space; even that will inevitably be at risk of being degraded by inappropriate activity by its users. The corridors in the area (one of which the court was hopeful of preserving, in accordance with Ms Duke’s recommendation) are far from being peaceful nature reserves, or anything like. For example, any wildlife getting to the opposite side of Stringybark Road will have to find a way through the half dozen or so houses and other improvements located there. -- 17 of 23 -- 18 [21] If the truth be told, the applicant’s proposal in relation to the width of the corridor, offers more than the court envisaged, which was in terms of a 10 metre wide contribution from the site. There was nothing hard and fast about that dimension. It was an estimate of what I thought might be a fair contribution from the site, if there was to be any east west corridor in the locality, given the destruction of any possibility of a corridor in the vicinity of the southern boundary. Accepting that the court is without jurisdiction (in the absence of any development application before it) to require any contribution towards the northern corridor by the Crossings or the Maleys (whose land is separated from the site by the Crossings’ narrow driveway), it seemed to me reasonable to contemplate that at some future time, a contribution to enhance a corridor in that area might be forthcoming from them. In practice, their properties make such a contribution already. In the appeal, they are in the position of saying there ought to be a corridor and that it ought to be provided wholly out of the appellant’s land – at least, that seems to be the point reached on 20 May 2008. There are questions of judgment and balance involved here. My conclusion last year, which I am inclined to adhere to, was that a contribution about 10 metres wide to the corridor could appropriately be required. It takes the court’s suggestion too far to seek now some well-protected strip about twice as wide, or, come to that, to insist on 10 metres and nothing less. [22] Much as one might regret it, in similar vein, I do not think it a correct or realistic approach to require perfection in the ultimate in the application of acceptable measure A2.1, as some guarantee along these lines. I think it has to be accepted that, once the developer is out of the picture, at all -- 18 of 23 -- 19 events, future owners of sub-divided lots may (wrongly) so act that vegetation is lost – which is not to say that measures ought not to be put into place in an effort to prevent that. [23] On this occasion, it was Mr Skoien (for the Maleys) who proposed giving the appellant another chance to reformulate its proposal. [24] I have reached provisional conclusions, which the parties ought to have a chance to consider. First, I accept Mr Allan’s submission that exhibit 38A represents “minor change”. The only aspect really calling for comment is the increase in the number of lots proposed. As noted in [2007] QDC 117 at [1] ff, the original application was for 23 lots. More pertinently, the number proposed was reduced to 22 and public notification occurred on that basis. I accept from Mr Skoien that some earlier attempt at public notification of a 23 lot proposal was (probably at his client’s instance) deemed ineffective. While the appeal was conducted on the basis of a reduced number of proposed lots (18, as proposed by the appellant’s own environmental consultant), the comparison, for the purposes of s 4.1.52(2)(b), is with the original proposal as properly publicly notified – for 22 lots. While the number of lots is increased by one (raising no issue of over-development in terms of the planning documents), the footprint of the development as now proposed will not increase, if anything the contrary. Mr Allan none too subtly referred to me decisions of my own, over and above Arnold, on the application for s 4.1.52(2)(b), namely Huntingdale (Queensland) Pty Ltd v Hervey Bay City Council [2007] QPEC 045, The Wild Life Preservation Society of Queensland (Bayside Branch) Qld Inc. v Redland Shire Council [2007] QPEC 016 and -- 19 of 23 -- 20 Highfields Land Pty Ltd v Crows Nest Shire Council [2006] QPEC 081. I have no difficulty in proceeding in a consistent way given my view of the merits of the current application and am satisfied the change, even with an increase of one in a number of lots, is minor change. I do not think any rational person confronted with the application as now proposed who did not object to the one publicly notified would wish to make a submission now. Everything happens in an enclave served by a single road offering no through access – with the exception (always there) of anyone who might venture in from Fig Bird Road from the neighbouring estate. [25] Next, in principle, I adhere to the substance of my view that a corridor 10 metres wide or thereabouts ought to be provided along the northern boundary of the site. I referred to a “10 metre or so wide” corridor contribution, which allows some flexibility that it may be appropriate to exploit. The Council’s argument persuades me that this part of the corridor should be public open land in the Council’s ownership, indistinguishable in character from the “dark green” areas including the access from the cul de sac. [26] Further, I am inclined to accept the appellant’s proposal for vegetation covenants in respect of the balance of Mr Hickey’s light green areas. It might be noted that what he has done is respect the boundaries of areas of vegetation found on the site presently (which vegetation is, pretty well universally, attractive, even majestic), and selected out enough of it to meet the 70% benchmark, essentially in one strip (ignoring lot 13), which can be protected from clearing, while allowing the proposed development to go -- 20 of 23 -- 21 ahead. The protrusion in proposed lot 6 happens as part of the exercise of protecting existing significant vegetation. [27] On the basis of the above, some work remains to be done. For reasons indicated, the bench mark 600m2 must be adhered to. I would invite the parties to make submissions as to whether the loss of a few square metres from proposed lots 1 and 23 where the road through the development joins Stringybark Road if it produced a falling below 600 metres, might be acceptable. The “10 metre or so wide” strip I refer to would, for the practical reasons advented to above, become public open space, presumably to be dedicated to the Council. I am assuming for the moment that this arrangement would give to the Council or anyone minded to take advantage of it access for purposes of monitoring compliance with the adjoining lot owners’ compliance with the covenant(s) – whose essential terms need to be worked out. The parties (the Council particularly) may make further submissions in respect of the practicality of that. [28] The separation of Mr Hickey’s light green strip into two components has the effect of producing lots which, inclusive of the covenant area, will come close to 600 m2 . One possibility offering of additional square metres appears to lie in moving “road A” slightly to the south, to make use of the “surplus” 25m2 or more (20m2 only on lot 23) to increase the size of lots 1 to 5. As indicated, it would be appropriate to reduce the 10 m strip to be dedicated by a modest amount to preserve the possibility of achieving 23 lots. [29] The substantial increase in the number of lots along the northern boundary makes some difference. The corridor previously envisaged would have -- 21 of 23 -- 22 incorporated fences of only four lots, which wildlife might have circumvented by slipping across to the Crossings’ driveway. This is one of the reasons why Mr Allan should not be allowed to avoid issues like the effect of fencing now. One might expect complaint from the northern “neighbours” about the number of residences to be “crammed in”. Essentially these will back on to the Crossings’ driveway, and be remote from their residence and its curtilage. There is not going to be any increase in residential development proposed close to their house. Mrs Maley was present on 20 May 2008, when she said nothing about this or any other aspect. The Maleys will have the buffer of the driveway, in the dedicated strip of 10 metres or thereabouts, then the covenant area. I expect the parties will consider what I’ve written and attempt to proceed further towards a resolution of the appeal on the basis of a full set of development conditions. If that is achieved, by co-operation of the parties or by the court’s intervention, then the order that Mr Hughes anticipated last November allowing the appeal on an appropriate basis might be made. [30] Mr Allan applied for costs on the basis that, at the Maleys’ instance, Mr Hickey had been brought to court and kept waiting all day to face possible questioning. I do not propose to accede that application, assuming, for present purposes, that the circumstances may be such as to give the court a discretion to order the costs. In the end, no-one wanted to ask Mr Hickey questions. His presence assisted the appellant in that Mr Allan was able to offer to call him to resolve some important uncertainty in relation to the protection of Pararistolochia Parevenosa (Richmond Birdwing Butterfly vine) a rare species located on the site. -- 22 of 23 -- 23 [31] GPS locations of identified plants which the court intends to be protected can be found marked in an aerial photo and a plan reproduced in Ms Duke’s supplementary report, exhibit 10A at the original hearing. That document records the ecologist’s recommendation that the location of the rare species be confirmed by detailed survey by a licensed surveyor. It is yet to be demonstrated that Mr Hickey set about and succeeded in doing that. It is an aspect which must be satisfactorily resolved before final development conditions acceptable to the court suitably dealing with this aspect can be formulated. Throughout the day, there was the potential for Mr Hickey to be called on for useful input, and it seems to me that there is work remaining for him to do. Given the court is, generally speaking, a “no costs” jurisdiction, I am not persuaded that Mr Skoien’s clients, who appeared to be the ones from whom costs were sought (or the Respondent or the other Co-Respondents) should be ordered to pay costs in this respect, assuming the discretion to so order to arise. That the jurisdiction invoked (under s.4.1.23(2)(e)) has arisen is highly doubtful. -- 23 of 23 --