Elliott v Brisbane City Council & Anor [2002] QPEC 13 [2002] QPELR 425

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Elliott v. Brisbane City Council & Anor [2002] QPEC 013 PARTIES: SALLY ELLIOTT Appellant And BRISBANE CITY COUNCIL Respondent And BRISBANE DEVELOPMENT CO PTY LTD Co-Respondent FILE NO/S: D3945 of 2001 DIVISION: Planning and Environment PROCEEDING: Appellate ORIGINATING COURT: DELIVERED ON: 5 April 2002 DELIVERED AT: Brisbane HEARING DATE: 21, 22 March 2002 JUDGE: Judge Robin Q.C. ORDER: Appeal dismissed CATCHWORDS: Integrated Planning Act 1997, s.1.2.3(1), s.3.1.7(1)(a), s.4.1.50(2), s.6.1.29(3), s.6.1.35C Integrated Planning Regulation 1998, s.3A(1), s.12(1)(b), Schedule 7 part 3 para 5(d), Schedule 8 para 3A Local Government (Planning and Environment) Act 1990, s.1.4, s.4.4(3), s.5.1(3), s.8.2(1) Vegetation Management Act 1999 Vegetation Management Regulation 2000 Submitter appeal against local government’s Development Permit to Reconfigure a Lot to provide, inter alia, 39 residential lots and Preliminary Approval for Material Change of Use (attached houses) – Developer’s ability to carry out any works depended on further Development Permits being obtained for operational works, building works (and a further Material Change of Use for the balance of the site) – appellant submitted, unsuccessfully, referral coordination was required – adjournment to permit approaches to Queensland Herbarium to revise statutory -- 1 of 29 -- 2 mapping to classify the site “remnant endangered regional ecosystem” in the “regional ecosystem map” refused – if approaches were successful, the necessary further Development Permits would be available only consistently with the Vegetation Management Act – evidence failed to show on the site or within 100 metres a “wetland” within para 5(d) of Part 3 of Schedule 7 in the Integrated Planning Regulation – site was bushland and habitat for squirrel gliders (also hunting range for raptors which predated on them) – even if “significant” locally, the threatened population was not significant in terms of the bioregion of South East Queensland – on the merits, the site, zoned Future Urban, would ordinarily be expected to go to residential development – Council-imposed conditions struck a reasonable balance by protecting environmental values consistently with allowing development. Leatch v. National Parks & Wildlife Service (1993) 81 LGERA 270 Nicholls v. Director-General of National Parks & Wildlife (1994) 84 LGERA 397 Planning Workshop Limited v. Pittwater Council (1996) NSWLEC 211 (22 August 1996) Greenpeace Australia Pty Ltd v. Redbank Power Co (1995) 86 LGERA 143 Indooroopilly Golf Club v. Brisbane City Council (1982) QPLR 13 Hillcorp v. Council of the City of Logan (1993) QPLR 199 Walker v. Noosa Shire Council (1983) 2 QdR 86 COUNSEL: The appellant was self-represented M.Rackemann for respondent J.Gallagher QC & R.Litster for the co-respondent SOLICITORS: The appellant was self-represented Brisbane City Legal Practice for the respondent Sciacca’s Lawyers for the co-respondent [1] As one drives northwards out of Brisbane along Gympie Road there is a striking transition from development to bushland at Beams Road, Carseldine. To the east, extending to the next north-south road (Lacey Road) as far as Roghan Road to the north is a large parcel identified as “the Comino land”. Across the Roghan Road reserve to the north, extending most of the way to Linkfield Road, and bounded in the west by Gympie Road and in the east by Lacey Road is Lot 1 on RP 163346, Parish of Nundah, a parcel of some 19.3 hectares owned by Aspley Leagues Club -- 2 of 29 -- 3 Limited. The club has apparently made its own application for a material change of use so that a 6.58 hectare portion of Lot 1 facing Gympie Road may be used for an integrated sports centre. The fate of that application remains to be finally determined. The club has consented to the co-respondent’s application in respect of the balance of Lot 1 for Council approval for a material change of use and re- configuration of that site, whose street address is given as 202A Lacey Road, Bald Hills. [2] The site area is 12.74 hectares. The application, made in October 2000, envisaged attached houses in parcels (a) (b) and (c) in the west of the site, aggregating 118 units, plus detached houses on 37 lots to complete stage 1 and a further 35 lots for detached houses in stage 2. [3] The application was not approved fully. The Council has been prepared to issue a Development Permit – Reconfigure a Lot (Stage 1) covering 39 residential lots, one park lot (3.3 hectares) balance lot/s, and road as indicated on a plan which was identified. The Council has also granted a Preliminary Approval – Material Change of Use (attached houses) for the balance of the site. It should be noted that the decision notice details record that:- “Development Permit(s) for the following are required before the development can be carried out: ß Operational works – development permit – stage 1 reconfigure a lot ß Material change of use – development permit – attached houses ß Carry out building work – development permit – attached houses ß Carry out building work – development permit – detached houses. -- 3 of 29 -- 4 The Department of Main Roads was the only advice agency for the application, and there were no concurrence agencies; the Council did not refer the application to any other State agency.” The Council has set detailed conditions. [4] The appellant was a submitter, disappointed by the Council’s decision. Her Notice of Appeal asserts that historically, developments of this kind “ie., where pristine environmentally sensitive land is allowed to be developed into residential development” turn out disastrously, and contrary to expectation; a number of specific examples were put up. The Notice of Appeal raises issues of traffic, increased crime and graffiti, overcrowding and loss of property value, inadequacy of infrastructure in the area, critical changes to surrounding wildlife dependent areas (and) loss … . of a vital “living lungs greenbelt”. The relief sought by the appellant, who has represented herself, was the re-zoning of the site “to keep it free of development of any kind and … retain forever as a priceless, environmental asset.” [5] The court, of course, has an appellate function, and can never initiate a re-zoning. Furthermore, the appellant is not entitled to seek re-zoning or any equivalent change except by an application made with the consent of the registered owner of the subject land. Judge Quirk, after hearing the parties, has given directions limiting the issues in the appeal to two. The first is whether a “wetland” is involved here, so as to require referral co-ordination (which did not occur) and a longer period of advertising, thirty days instead of fourteen. If the appellant is correct, the co- respondent will have to start again. The second point identified by his Honour was whether the Council, in considering the application, had given proper consideration to flora and fauna (ie., environmental) matters. -- 4 of 29 -- 5 [6] The present zoning of the land is Future Urban. Referral co-ordination [7] Section 6.1.35C(1) of the Integrated Planning Act 1997 enacts that referral co- ordination is required for an application – “ (a) for development that is assessable under a planning scheme and that the assessment manager is satisfied is not minor or of an ancillary nature; and (b) prescribed under a regulation.” The Integrated Planning Regulation 1998, reprinted as in force on 6 October 2000, close to the application date, provides in regulation 12(1) that certain applications are prescribed for the section. Sub-regulation (b) lists the following:- “(b) an application for a material change of use of land or the reconfiguration of a lot that is wholly or partly – (i) in an area mentioned in schedule 7, part 1; or (ii) in, contains or shares a common boundary with an area mentioned in schedule 7, part 2; or (iii) in, contains or shares a common boundary with or is within 100m of the boundary of an area mentioned in schedule 7, part 3.” [8] Schedule 7 is:- “PART 1 – AREAS FOR s.12(b)(i) 1. Catchment area declared under the Water Resources Act 1989. 2. An area below a floodline adopted by the local government if the application involves filling an area greater than 5,000m² below the floodline. PART 2 – AREAS FOR s.12(b)(ii) 1. A designated landscape area as defined under the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987. 2. A protected area, registered place or restricted zone as defined under the Queensland Heritage Act 1992. -- 5 of 29 -- 6 PART 3 – AREAS FOR s.12(b)(iii) 1. An area under the Nature Conservation Act 1992 that is - (a) a protected area; or (b) subject to a conservation agreement; or (c) identified as a critical habitat or an area of major interest. 2. The wet tropics area as defined under the Wet Tropics World Heritage Protection and Management Act 1993. 3. An area under the Fisheries Regulation 1995 that is - (a) a fish habitat area under schedule 7; or (b) closed water under schedules 2 and 3. 4. An area listed as - (a) a wetland of international importance under the Ramsar Convention as defined under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth); or (b) a wetland of importance within the Queensland chapter of A Directory of Important Wetlands in Australia as published by the Australian Nature Conservation Agency, 1996, Canberra. 5. An area of permanent, periodic or intermittent inundation, whether natural or artificial, with water that is static or flowing, fresh, brackish or salt (including areas of marine water the depth of not more than 6m at low tide) that - (a) under the State of the Environment Report 1999, in Queensland, is a good example of a wetland type occurring within a bioregion as defined in the report; or (b) plays an important ecological or hydrological role in the natural functioning of a major wetland system or complex; or (c) is important as the habitat for terrestrial and aquatic animal taxa at a vulnerable stage in their life cycles, or provides a refuge when adverse conditions, such as drought, prevail; or, (d) supports a significant number of the bioregional populations of any native terrestrial and aquatic animal or plant taxa; or (e) supports native terrestrial and aquatic animal or plant taxa, or communities, that are endangered or vulnerable at the bioregional level.” [9] By the dictionary in the schedule to the Vegetation Management Act 1999, “bioregion” means a bioregion shown on Map B0001 held by the department, a copy of which became exhibit 16. The relevant bioregion is South-East -- 6 of 29 -- 7 Queensland, which appears to account for that part of the State east of the Great Dividing Range and south of Gladstone. [10] The purpose of the Vegetation Management Regulation 2000 is to collect for the purposes of the Act each regional ecosystem which is “an endangered regional ecosystem” (schedule 1 of the regulation), each which is an “of concern regional ecosystem” (schedule 2) and to identify some, if not all, of the regional ecosystems which are not of concern (schedule 3). Reference to those schedules reveals descriptions of regional ecosystems against the relevant “regional ecosystem number” which number has three components separated by a “dot”, reminiscent of the numbering of sections of the IPA. For the moment, the numbers are those established for the ecosystem under Sattler & Williams, The Conservation Status of Queensland’s Bioregional Ecosystems (1999): Regulation 2(4). The first of the three components simply serves to identify the relevant bioregion, 12 applying in south-east Queensland. The underlying mapping was of the State’s geology. Mr Chenoweth, a botanist who gave evidence for the appellant, made some helpful comments regarding the relation between geology and vegetation (at page 155):- “The Regional Forest Agreement gave it a lot of impetus, but the EPA and its predecessor organisations have been working on this bioregional approach for several decades in Queensland and it’s … . quite an advance Australia-wide. One of the reasons that it is a useful framework is that while you might have one vegetation type that appears to the casual observer to be very similar – forest red- gum, for instance, community might occur on two different soils. One is alluvium and one’s at the top of a mountain. You tend to get animals that associate their habitats with the vegetation on one soil type, not on another. It’s a fairly good predictor of all the suite of animals and plants on a site. … . When in one region, like within south-east Queensland, and within a certain rainfall zone and at a certain elevation, you can make that prediction. You could say if you’re in a high rainfall area and it’s basaltic flows on the top of tablelands, then you will get a certain type of vegetation on it in general. To some extent it predicts the vegetation, but the two things together predict habitat.” -- 7 of 29 -- 8 [11] The mapping is done on a rather gross scale of 1:100,000, this representing the base layer of data for the underlying geological mapping. (See Mr Olsen’s evidence at page 50.) It is appropriate to have “other systems, safety nets, to catch … small pockets if they are important, and as a rule of thumb, if it’s smaller than about 5 hectares” – per Mr Chenoweth at page 157. [12] There was a contest in the case as to whether or not the subject site is appropriately mapped on the official “regional ecosystem map” - meaning (see the schedule of the Vegetation Management Act 1999) a map:- “(a) certified by the chief executive as the regional ecosystem map for a particular area; and (b) maintained by the department for the purpose of showing, for the area- (i) remnant endangered regional ecosystems; and (ii) remnant of concern regional ecosystems; and (iii) remnant not of concern regional ecosystems; and (iv) numbers that reference regional ecosystems; and (v) declared areas of high nature conservation value; and (vi) declared areas vulnerable to land degradation. 2. A “regional ecosystem map” includes any amendment to the map included in a schedule to the map and certified by the chief executive as an amendment to the map at the day the amendment is certified.” [13] Exhibit 5 is a duly certified map indicating the subject site is “not of concern”. It has been classified as Regional Ecosystem 12.9-10.4 Eucalyptus Racemosa Woodland on Sedimentary Rocks. Mr Chenoweth considers that characterisation incorrect. On the site there is variation in terrain, geology and vegetation. Unsurprisingly, arguments can be mounted for the ascription of different classifications to different parts of the site, an exercise somewhat at variance with -- 8 of 29 -- 9 the exercise of mapping on a regional basis, applying a scale of 1:100,000. Mr Chenoweth mounts an argument that parts of the site include the “not of concern at present” Regional Ecosystem 12.3.6 melaleuca quinquenervia, eucalyptus terreticornis, lophostemon suaveolens woodland on coastal alluvial plains and “a possible small percentage” of the “of concern” 12.3.5 melaleuca quinquenervia tall open forest near coastal alluvial plains. In a supplementary report dated the first day of the hearing, he suggests, on the basis of hearsay from an officer of the Queensland Herbarium, that “to the immediate east of the highway in this locality the soils are derived from weathered sediments (Land Zone 5)”, in which event the site may contain Regional Ecosystem 12.5.2, which is categorised as endangered. [14] Mr Spilsbury, an expert witness called by the appellant who was permitted to act as a co-advocate with Ms Elliott (an incongruous role for an expert), produced a draft City Council geological map, Exhibit 13, dated 11 June 2001, which supports the Land Zone 5 argument. I think this is so notwithstanding the extreme difficulty that exists in identifying the precise colour applied to the area of the site in the legend. It seems that the Queensland Herbarium, to which is entrusted the task of preparing, maintaining and amending regional ecosystem maps, is from time to time approached to make changes, and that there is an etiquette of written approaches. In those circumstances, the appellant sought an adjournment of the appeal so that the ecosystem mapping issue might be clarified. [15] Mr Rackemann, who appeared for the Council, persuaded me that this would be inappropriate. He advance the reasonable propositions that the court ought to decide cases as they are heard, not putting them off to await developments, and that it ought to act on the basis of the presently legally effective mapping. Should there -- 9 of 29 -- 10 be a change in the mapping, although the appellant may have no legal right to be heard, the interests she is seeking to protect can effectively be protected under the Vegetation Management Act. I declined to grant the adjournment. [16] Although the Council is prima facie the assessment manager for applications, s.3.1.7(1)(a) of the IPA contemplates a “different entity being prescribed under a regulation”. The Integrated Planning Regulation 1998 in s.3A(1) prescribes a different assessment manager for applications in schedule 1A part 1. Summarising, the Chief Executive administering the Vegetation Management Act 1999 is the assessment manager for “Operational Work that is – (a) the clearing of native vegetation; and (b) assessable development under schedule 8 of the Act; and (c) not wholly on strategic port land; and (d) not included in an application for other assessable development.” In part 1 of schedule 8, paragraph 3A brings into the definition of assessable development “carrying out operational work, that is the clearing of native vegetation on freehold land” except for certain instances listed in the following paragraphs, none of which seems likely to be applicable at present. It will be recalled that the Council has given no authority for any operational work. I will accept the co-respondent’s submission that for clearing native vegetation on freehold land to be assessable development, in the present context, it must be shown that the clearing would involve “ a remnant endangered regional ecosystem shown on a regional ecosystem map” (paragraph 3A(c)(iii)); this is what the appellant suggests the situation may soon be. -- 10 of 29 -- 11 [17] If the appellant is correct, there are legislative and supporting administrative arrangements in place to protect the remnant endangered regional ecosystems. The court’s duty, for the moment, is to respect and apply the current “regional ecosystem map” (Exhibit 5), not to speculate that it should show things it does not presently show. [18] Exhibit 5 does not dispose of the appellant’s arguments. Her case is that referral co- ordination was required because the site came within the description in paragraph 5(d) of part 3 of schedule 7 in the Integrated Planning Regulation 1998. (The provisions are set out in full in paragraphs 7 and 8 above.) No other separate paragraph was relied on. The words of paragraph 5 preceding the sub-paragraphs were taken to describe a “wetland”, although that term is not used in or defined for the purposes of paragraph 5. The first enquiry has to be whether there is on the site a “wetland” in that special sense, or, having regard to regulation 12(1)(b)(iii), there is such a “wetland” on the Comino land. There is no common boundary between it and the subject site, but the Roghan Road Reserve, which separates them, is less than 100 metres in width. [19] As to the site itself, close to the southern boundary there has been created a small dam which holds water and, on the first day of the hearing on the inspection, proved to contain colourful water-lilies among the flora – those, as I understand the evidence, were said to be exotic and deserving of removal, certainly not protection. The dam was not put up as a “wetland”, although it is a feature of the proposed development, to be located in the park area, and play a role in the improvement of the quality of surface waters that may flow off the site to the south and east. Features of the site in that same general location centering on the south-east corner, -- 11 of 29 -- 12 including some melaleucas and (contentiously) melon-hole Gilgai, bespeak a wetland, or history of being wetland. Accepting that traces of wetland formations (which may include debil-debil or swamp hummocks, and flora suggestive of a history as wetland), in my opinion it is not reasonable to regard anything on the site as wetland. [20] The appellant’s case was never higher than that the site constituted the periphery of a wetland centred on the Comino land, which is lower lying and exhibits in its vegetation, particularly the under-storey, greater wetland features. At some unidentified time, Roghan Road was built up (although in this location never otherwise formed into a road), so as to create a dam preventing surface water flows, which would ordinarily be from north to south, in light of the topography. A channel has been formed along Roghan Road to carry water to the east and along an “environmental drain” under Lacey Road to the east via Cabbage Tree Creek. As Ms Elliott put it in her opening:- “This bushland covers a wide area on both sides of the railway line, to the west being the land bounded by Lacey, Linkfield, Gympie and Beams Roads, and to the east the Department of Housing land and the DNR (Department of Natural Resources) land on Telegraph Road. All of this land is linked together as one and forms a vital stepping-stone to the other wetland and bushland complexes including Deagon, Tinchi, Tamba, Sandgate and Pingal.” She also described this area as forming “a vital link to Brisbane Forest Park and Bunyaville State Forest, the large forest areas to the west”, but Gympie Road appears to me to constitute a formidable barrier in the west for any creature not equipped and inclined to fly over it. [21] I accept the conclusions of Mr Pullen, in his hydrology report, Exhibit 3:- -- 12 of 29 -- 13 “1. Based on the detailed site survey, and on my inspections, besides the small man made dam on the southern site boundary, there are no significant areas without free drainage within the Subject Site, with the main waterway flows confined to the Comino land to the south under all but extreme rainfall events. The Comino land to the south is lower than the Subject Site. In my opinion, the local site hydrology of free drainage does not support the view that the Subject Site is a wetland. 2. The existing drainage of the main waterway that runs through the Comino land has been significantly modified at Lacey Road, by a 7 metre wide cut drain which has an invert at least 2 metres below the level of the natural waterway. This cut drain is free draining and is likely to have produced a significant lowering of the groundwater levels across at least the eastern portion of the Comino land, resulting in less periods of pondage and more rapid drainage after rainfall events. 3. The existing formation within the Roghan Road reserve immediately to the south of the Subject Site forms an effective barrier to flow from the Subject Site to the Comino land under all but extreme flood conditions, with more than 98% of the average annual runoff from the local catchment of the site discharging directly to Lacey Road, i.e. there is no hydrologic connection between the Subject Site and the Comino land except under extreme flood conditions, with no flow under normal conditions,. 4. As there is no hydrologic connection between the Subject Site and the Comino land under all but extreme flood events, I conclude that there will be no hydrologic impact on the Comino land due to the proposed development.” [22] That there may be some connection via underground hydrology, as Mr Collins conceded, does not, in my opinion, require any adjustment of his principal conclusions. I regard it as unrealistic to regard the subject site as containing a wetland. In the circumstances, whatever may have been the situation historically, the court should deal with the circumstances produced by the formation of Roghan Road. -- 13 of 29 -- 14 [23] Mr Collins’ opinions have some relevance to the “merits” issue regarding the environment identified by Judge Quirk. The quoted conclusions do not resolve the issue whether there was any “wetland” on the Comino land. As to this, the Council’s environmental scientist, Mr Manners, accepted there was a wetland area on the Comino land, in his report, Exhibit 6A, paragraph 4.2. The co-respondent’s expert, Mr Olsen, strongly disagreed; see page 72 of the transcript for example. Given the onus of proof in this appeal, which lies on the co-respondent, it is probably appropriate to accept Mr Manners’ view. On this basis, the court must make a decision about the applicability of sub-paragraph (d) of paragraph 5 which, on examination, turns out to be drafted in a rather confusing way. Accepting that we are dealing with a “wetland”, it raises the question whether that wetland “supports a significant number of the bioregional populations of any native terrestrial and aquatic animal or plant taxa.” Does “number” refer to “populations”, a term whose meaning is mysterious in this context, or to some (even a single) species of native animal or plant? There is a question, which I would be inclined to answer affirmatively, whether “and” means “or” in this context. If there must be significant numbers belonging to multiple taxa or species, the appellant has failed to demonstrate it. I appreciate that the onus in the appeal lies on the co-respondent, under s.4.1.50(2) of the Integrated Planning Act, but in practical terms, there must be an “evidential onus” on the appellant to raise enough to create a genuine issue, as to which, then, the co-respondent carries the onus; cf. Cross on Evidence (Australian Edition) 7200ff. [24] (More generally, this appeal provides an illustration of that approach. Judge Quirk’s identification of issues has had the salutary effect of confining the appeal. No town planner gave evidence, no traffic expert. Although the co-respondent -- 14 of 29 -- 15 bears the persuasive onus that its application ought to succeed, and gains no assistance from the Council having taken that view in the first instance, in the circumstances the court must take it that the usual issues, including those in the categories instanced, have been resolved in the co-respondent’s favour.) [25] There is no detailed information regarding the Comino land. Insofar as the subject site is concerned, it provides significant habitat for squirrel gliders, an important, but common animal in the area. This is established by the evidence. The site may well provide part of the foraging range for raptors, specifically the brown goshawk, the grey goshawk and the powerful owl, although for some it is less than ideal, given the nature of the under-storey. I think it would be wrong to speculate that the Comino land, about which the court heard very little, is as good, let alone superior for use by raptors. On the evidence, the use of the site, taking it in conjunction with the Comino land, in relation to raptors, is so limited that nothing about it can be called “significant”. Reading paragraph 5(d) in its context, the term “significant” in my opinion, means more than that some phenomenon signifies or can be measured. Relevant matters must be looked at on a bioregional scale; I think they have to be looked at in the context of what is “significant” at a State or bioregional level as opposed to a local level. It may be that it is only when a “local” area supports some life-form “endangered or vulnerable at the bioregional level” that paragraph 5 (or schedule 7 itself) applies. Nothing of that kind is shown. [26] All that might be “significant” is the squirrel glider population. The site lies just within the western extremity of an area considered by Dr Coral Rowston in the Fitzgibbon Squirrel Glider Study (March 2000), which she prepared for the Council. Dr Rowston did not give evidence, but her study, the value of which was accepted -- 15 of 29 -- 16 by all parties, became Exhibit 12. The importance of the area of study as habitat for the animal is clearly established. Dr Rowston identified Priority 1 areas:- “These areas are designated as critical squirrel glider habitat of particularly high conservation value. They include the bushland areas in and adjacent to the QUT – Carseldine Campus (southern end of study area), and the Queensland Department of Housing land (between Telegraph Road and the rail-line) (Fig.5.1). These areas support squirrel glider populations of local, regional and national significance due to the very high population densities present. They are also positioned in the landscape so as to provide a source of animals for re-colonisation of less robust, smaller local populations, both within the Fitzgibbon Study area and within other remnants in the Cabbage Tree Creek system. These areas require some form of conservation zoning to protect the habitat in the longer term.” then Priority 1A and Priority 2 areas:- “Priority 1A areas (PIA; Fig 5.1) These areas are of high conservation value for squirrel gliders, as they currently support locally significant areas of squirrel glider habitat, and moderate numbers of squirrel gliders that are likely to be important in maintaining the viability of the on- and off-site metapopulation of squirrel gliders. They include some of the privately owned bushland areas to the west of Lacey Road, and the State owned bushland at 210 Telegraph Road. Both these areas also support region ecosystems of concern. An area of approximately 2 ha of bushland in the north west corner of the 210 Telegraph Road site was cleared while this study was being undertaken. Protection mechanisms for the remainder of the site are strongly recommended and negotiations with the Department of Natural Resources will be required to gain conservation protection. It is re-iterated that this site has been included as an ‘of concern’ vegetation type in a regional assessment of ecosystem significance produced as part of the implementation of the Vegetation Management Act (1999)(DNR 2000) which will provide further support in negotiations with the State. The privately owned land designated PIA to the west of Lacey Road includes some existing large-block residential and animal shelter development. Land for Wildlife registration and/or voluntary conservation agreements should be negotiated with these landholders. There is currently a proposal to develop the central portion of the block for the purposes of sporting facilities and residential accommodation (see section 1.4.3). This type of development is likely to significantly reduce the squirrel glider habitat value of all bushland to the west of Lacey Road, and is likely to impact on the -- 16 of 29 -- 17 regional metapopulation structure. This site is important as glider habitat, and it also provides the entrance/exit for glider movement through the existing narrow vegetation linkage between the privately owned land and the Qld Dept. Housing land. If Council aims to protect squirrel glider populations within the Fitzgibbon region, any development of this land should be restricted to the western side and involve a minimum loss of significant habitat features such as potential nest trees. Any development of the southern end of this area of bushland should be restricted to the disturbed and less critical areas to the extreme west and south. Some form of conservation protection should be negotiated with the land holders for the sections of land designated as PIA.” “Priority 2 areas (P2; Fig 5.1) Three areas have been allocated priority 2 classification. These sites contain habitat likely to support, or known to support at least low population numbers of squirrel gliders. They are of some conversation value, but are less critical than the priority 1 and priority 1A areas for the long term viability of glider populations. The position of these areas in the landscape is such that they are not part of corridor or stepping stone linkages between critical glider habitat, and are therefore not critical to any metapopulation of squirrel gliders.” Finally, corridors of priority 1 or priority 2 were identified. [27] Her conclusion was:- “If Council wishes to act to conserve the squirrel glider population within the Fitzgibbon Study Area in the long term, then it is highly recommended that all areas designated as either priority one (P1), priority 1A (PIA) or corridor priority one (C1) should be retained (see Fig.5.1). Various vegetation protection mechanisms including land acquisition, Voluntary Conservation Agreements, Vegetation Protection Orders, and Land for Wildlife should also be applied to ensure their long-term protection. There is scope for some of these areas to be protected as part of the State Reserve system, as both the 210 Telegraph Road site, and the Queensland Department of Housing Land support regional ecosystems of concern and hence are of high regional and potentially State significance. The Queensland Department of Housing Land is also known to be used by the powerful owl, a species listed as vulnerable in Nature Conservation (Wildlife) Regulation 1994, of the Nature, Conservation Act 1992.” [28] The site is within the Priority 1A area. So far as the site is concerned, trapping occurred in the northern part of the Comino land (there was a suggestion entry to the site was not allowed), but that trapping is probably representative of the subject -- 17 of 29 -- 18 site, or close to representative of it. Numbers trapped came nowhere near those achieved at the QUT and the Department of Housing sites. Sightings occurred on the subject land, three of the four sightings relied on by Dr Rowston being reported by the co-respondent’s expert, Mr Agnew, or others working with him. On the evidence, it is not possible to say that anything to do with the site and squirrel gliders is of more than local significance. The same findings must be made in relation to the Comino land. If the matter is to be approached by reference to the onus of proof, then the co-respondent has shown that paragraph 5(d) has no application and, accordingly, that this application to the Council of October 2000 was not one requiring referral co-ordination. [29] Before passing from Exhibit 12, it ought to be noted that Dr Rowston’s recommendations in relation to Priority 1A areas were made “if the Council aims to protect squirrel glider populations within the Fitzgibbon region”, a similar condition being expressed in her conclusion. As it happened, the Council, being the planning authority for the city, took no action over the 7 months that elapsed before the present application was lodged. No specific provisions relevantly affect the site. [30] If it was part of the appellant’s case that the Council, not being under any legal obligation to instigate any referral co-ordination, ought to have involved some other agency on a voluntary basis, I would disagree. The Council was under a duty to deal with the co-respondent’s application as assessment manager and decide it. Merits [31] The appellant’s other point was that the application ought to have been rejected by the Council on its merits, as to which much of the foregoing discussion is relevant. -- 18 of 29 -- 19 The application had to be assessed under a “Transitional Planning Scheme” and, accordingly, s.6.1.29(3) of the Integrated Planning Act 1997 indicated what matters, if relevant, would “apply for assessing the application”. The matters set out in s.4.4(3) of the Local Government (Planning and Environment) Act 1990 are brought in by s.6.1.29(3)(h)(i) and those in s.5.1(3) of the repealed Act are brought in by paragraph (h)(ii). Section 8.2(1) is brought in by s.6.1.29(1)(f). Section 8.2(1) is:- “8.2(1) Without derogating from any of its powers under this Act or any other Act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.” [32] Specific requirements to consider “the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared)” are imposed by s.4.4(3)(f) where the assessment manager is “considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme” (s.4.4(3), especially paragraph (f)) and when the assessment manager is “considering an application to subdivide land” (s.5.1(3) – see in particular sub- para.(d)). Section 1.4 has this inclusive definition of “environment”:- ““environment” includes— (a) ecosystems and their constituent parts including people and communities; and (b) all natural and physical resources; and (c) those qualities and characteristics of locations, places and areas, however large or small, which contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony, and sense of community; and (d) the social, economic, aesthetic and cultural conditions which affect the matters referred to in paragraphs (a), (b) and (c) or which are affected by those matters.” -- 19 of 29 -- 20 [33] The appellant’s concerns raise valid issues about the environmental effect of the co- respondent’s proposals. While it may be accepted that the assessment manager, which has become this court, must consider environmental issues, they amount to no more than factors to be taken into account in a balancing exercise. They do not necessarily determine the outcome. [34] It is not possible to argue that the proposal involves no deleterious consequences for the environment, from the perspective of preserving established squirrel glider habitat and territory useful for the raptors, which prey on the squirrel gliders, along with other food sources, such as rodents. The subject site is degraded to an extent, from that stand-point, by use of the site, or sections of it, to keep horses, even if not strikingly degraded. One quarter of the site area (in excess of 3 ha) is to be preserved as park, and very likely enhanced as habitat. Concern was raised by the appellant regarding a lighted pathway linking the proposed residential development with Lacey Road, but this appears to have no likely impact beyond the north-eastern periphery, and is not of concern to the court. So far as the balance of the site, an area in excess of 9 ha, is concerned, that will be destroyed as habitat for squirrel gliders, and cease to be useful for the raptors which might go there. On the evidence, it is fanciful to think that the squirrel gliders living in the 9 ha portion would survive; the evidence suggests that these are territorial creatures, which would not be welcome in adjoining territory. In the long term, if sensitive development occurs, habitat may be restored to an extent; then squirrel gliders and raptors may move in from adjoining areas, so that, in the long term, numbers are not appreciably reduced on account of the co-respondent’s development. I am not persuaded to be optimistic about that. -- 20 of 29 -- 21 [35] On the other hand, I think it is not for the court to adopt in this appeal the pessimistic approach from an environmental – conservation point of view that the wider Fitzgibbon area is “doomed”. It has already been noted that it remains unknown whether the sporting complex proposed to the west will eventuate. Across Lacey Road, there already is residential development. Immediately to the north of the site (and of the proposed location for the sporting complex) a cleared swathe that accommodates power lines is a dominant feature of the landscape. North of that, as far as Linkfield Road, is a narrow strip of wooded land, I think in private ownership, which is probably too small and “cut off” to warrant preservation, at least if that is to be achieved by the sterilisation of a privately owned asset. The court heard nothing about proposals for that land, or whether there are any for the Comino land. Further afield, there is already intensive development around Linkfield Road, west of Gympie Road, but, to the east, prospects of development of the Department of Housing land may well have abated following re-mapping of land in that location as “remnant endangered regional ecosystem”: Exhibit 5. It hardly needs saying that whatever happens in this application ought not amount to a precedent to be applied in other locations, although those in the position of the appellant may be fearful that is what could happen. [36] The appellant invoked the precautionary principle, application of which is part of advancing the purpose of the Integrated Planning Act: s.1.2.3(1)(a)(iii). It might be noted that sub-section (c) also brings in, as part of advancing the Act’s purpose “avoiding, if practicable, or otherwise lessening, adverse environmental effects of development.” The principle, or its New South Wales equivalent, has been applied in New South Wales, for example in Leatch v. National Parks & Wildlife Service (1993) 81 LGERA 270 and Nicholls v. Director-General of National Parks & -- 21 of 29 -- 22 Wildlife (1994) 84 LGERA 397, cases involving endangered wildlife, unlike the present. [37] The appellant (and Mr Chenoweth) placed particular reliance on Planning Workshop Limited v. Pittwater Council (1996) NSWLEC 211 (22 August 1996), Pearlman J. Her Honour refused development because of concern about this animal, which was classified as “endangered fauna”. She said:- “As I have earlier said, the question raised for consideration is that posed by s 90(1)(c2) of the EP&A Act, namely, whether there is likely to be a significant effect on the environment of endangered fauna. In evaluating the experts' opinions for this purpose, I place the greatest weight upon the conclusions reached by Dr Smith. He has particular expertise with regard to squirrel gliders, whilst Mr Wilson's experience is more general, and Mr Burcher stated that he would defer to Dr Smith on the subject. I find that a large part of the site will be disturbed despite the applicant's intention to implement measures to minimise disturbance, and I also find that residential development upon the site will fragment the larger existing area of bushland comprising the site and the adjacent reserves. I accept Dr Smith's conclusion that the development would result in the destruction or disturbance of over 5% of squirrel glider habitat in the major bushland reserves of the Barrenjoey Peninsula. In the light of these findings, I accept Dr Smith's conclusion that the proposed development will significantly impact upon the environment of the squirrel glider by reducing its refuge areas, by diminishing the bushland corridor, and by creating an irretrievable loss of habitat. I take into account the findings of the Scientific Committee, which determined that the decline in the Pittwater population of the squirrel glider was due to the reduction of forest habitat, and predation by feral and domestic animals. This supports Dr Smith's view that urban areas cannot sustain long-term populations of squirrel gliders. As a result of this impact, development and subdivision approval should be refused.” [38] In Greenpeace Australia Pty Ltd v. Redbank Power Co (1995) 86 LGERA 143, her Honour took from Leatch that the important point was that “decision-makers should be cautious”:- -- 22 of 29 -- 23 “The application of the precautionary principle dictates that a cautious approach should be adopted in evaluating the various relevant factors in determining whether or not to grant consent, it does not require that the greenhouse issue should outweigh all other issues.” Justice Stein in his article, “Are Decision Makers Cautious with the Precautionary Principle?”, Environmental and Planning Law Journal Vol. 17, page 3, at 15, observed:- “In so concluding, her Honour highlighted the balancing act required by section 90. The precautionary principle was but one factor to be weighed in the balance.” [39] As the helpful article shows, the precautionary principle is normally applied in situations of scientific uncertainty. The present situation cannot be so described. It is not complicated by the squirrel glider’s (or the raptors’) having any special endangered status (on the evidence the squirrel glider is much more common here than around Sydney) and, as already indicated, the court is proceeding on the basis that there will be loss of habitat and, inevitably, of squirrel gliders. Mr Gallagher Q.C. (for the co-respondent) accepted this (transcript p.198-99) as I think he had to. Evidence of the squirrel glider population on the site was sparse. The site-specific investigations of Mr Agnew and his staff were more thorough than those of Dr Rowston, who, of course, was concerned with a much larger area. While any loss of these creatures must be counted as a negative, what is threatened by this particular development, on the evidence, is minor, nothing like what Pearlman J. had to consider. [40] Environmental considerations, whether relating to flora or fauna, are important, and it is clear the Council considered them carefully. They are not the decisive or dominant consideration, although, for reasons explained, they have dominated -- 23 of 29 -- 24 proceedings in this appeal. Apart from the “planning” considerations identified in the Local Government (Planning and Environment) Act sections referred to above having to be taken as working in favour of approval of the application, there is the general consideration of the respect that has to be paid to a private landowner’s entitlement to use land for purposes that are lawful. An early recognition of the owner’s “rights” in a predecessor of this court was Indooroopilly Golf Club v. Brisbane City Council (1982) QPLR 13, at 22, one of a number of local cases collected in Hillcorp v. Council of the City of Logan (1993) QPLR 199, 202 in a useful passage which considered the P & E Act provisions set out above:- “There was a good deal of discussion and argument regarding the relevant provisions of the current Act and comparable provisions of superseded legislation. It does appear that the provisions of this Act have set out to remove doubts that were previously thought to exist regarding the relevance to rezoning applications of environmental considerations (Strathpine Developments Pty Ltd v. Pine Rivers Shire Council (1974) Qd. R. 374; Murphy v. R. (1989) 68 L.G.R.A. 186). However it is entirely another matter to suggest that, by reason of the new provisions, greater weight should be attributed to environmental considerations than was previously the case. I am not convinced that the provisions of s.14A of the Acts Interpretation Act and the stated objectives of the Local Government (Planning & Environment) Act which are found in s.1.3 should necessarily drive one to such a conclusion. The manner in which and the extent to which environmental considerations should be balanced against the entitlement of private ownership and the provisions of a Town Planning Scheme is not a novel subject in this jurisdiction (Sunnybank Chase Pty Ltd v. Brisbane City Council (1978) Planner 57; Indooroopilly Golf Club v. Brisbane City Council (1982) Q.P.L.R. 13; Sabdoen Pty Ltd v. Redland Shire Council (1989) Q.P.L.R. 149; (1991) Q.P.L.R. 185; Bowden & Ors v. Brisbane City Council & Anor (1991) Q.P.L.R. 271). I am unable to find anything in the new provisions that alters the notion that the extent to which development of privately owned land ought be permitted to impact on its existing environment must be influenced substantially by the formal instruments of planning control which, in this case, are to be found in the Town Planning Scheme for the City of Logan. -- 24 of 29 -- 25 It is most important to remember that the Strategic Plan has designated the subject land as Residential Low Density for which designation the stated objective is to provide for a Low Density Residential environment characterised by a high level of amenity. On any view of the matter, this is what the Appellants proposal sets out to achieve. Is the Appellant, having acquired the land with that designation, being unreasonable to expect that, while environmental considerations will certainly be taken into account to ensure that development contemplated by a planning scheme is as environmentally sympathetic as is reasonably possible, such considerations will not be elevated to a level which effectively precludes development of the land (consistently with the plan) in a commercially sensible and viable way? I think not.” [41] What might the co-respondent’s expectations be here? The zoning of the site is Future Urban. The Town Plan for the City of Brisbane 1987 contained a Conservation zone (page 11-84) and a Non-Urban zone (page 5-13). In the appeal reference was made to the following sections of provisions at page 6-15 regarding the Future Urban Zone Intent:- “The Future Urban Zone is intended to implement the Urban Areas Directions of the Strategic Plan as they apply to developing or not yet developed areas. Land included in the Future Urban Zone is comprised mainly of land which is generally suitable for urban or suburban residential purpose in the future. This zone represents a stock of land which is intended to be developed at some time in the future for residential and associated purposes. … While land within the zone is generally suitable for urban and suburban purposes some lands within the zone have been identified as containing areas of environmental significance. It is the intention of the Council to preserve areas of significant historic, architectural, topographic, landscape, scenic, bushland, ecological, social or cultural interest and to protect or preserve fauna habitats and fauna movement corridors and wetlands and waterway corridors. While land included in the Future Urban Zone is comprised mainly of land which is generally suitable for urban or suburban residential purposes in the future, some land or parts of land in the Future Urban Zone is unsuitable for such purposes and such unsuitability may be due to one or more of the aforementioned matters. The circumstances under which development will or may -- 25 of 29 -- 26 be disallowed for any of the reasons outlined in this paragraph are contained in a Planning Policy. It is intended that as land in the zone is developed, significant natural features will be retained and incorporated as part of the overall development of the area. In some cases the careful and sensitive development of all or part of sites within these areas may be possible, while for other sites, development would not be possible without detracting from the natural features. In cases where development within these areas is possible, the development of sites will require innovative approaches and occasionally lower development yields to ensure the retention of these natural features. Many of these areas which will require specific consideration are also included in or adjacent to the Brisbane Green Space System, or as “Land with Environmental or Scenic Constraint” in the Strategic Plan or specifically identified in Local Area Outline Plans. Where land in this zone is located close to, or in areas included in the Brisbane Green Space System or “Land with Environmental or Scenic Constraint” in the Strategic Plan, or identified in Local Area Outline Plans development will only be approved where it is consistent with the intent of the relevant part of the Brisbane Green Space System or the relevant Local Area Outline Plans development will only be approved where it is consistent with the intent of the relevant part of the Brisbane Green Space System or the relevant Local Area Outline Plan. Development proposals will be required to identify and provide for the retention and protection of these features.” [42] There was no suggestion in the appeal that the new City Plan introduced any new considerations. [43] Although it is difficult on the small maps included in copies of the plans available to me to be confident about it (and it was not a feature of the evidence or arguments adduced in the appeal), Mr Rackemann informed the court (page 188) that the site was included in the Greenspace system as mapped. His submission, borne out by the conditions attached to the approval, was that the Council had displayed appropriate awareness of the values of the site and gone a considerable distance towards protecting them consistently with allowing development of the site and in -- 26 of 29 -- 27 accordance with the approach indicated in the Town Plan. The co-respondent’s written submissions in a summary way identify conditions that:- “(a) required the dedication of the open space area indicated on Plan B2193-28K [condition 2]; (b) required protection and enhancement of existing vegetation in accordance with a Vegetation Management Plan [condition 10]; (c) (it) undertake rehabilitation works within 3.3 hectare dedicated park [condition 11] (d) (it) transfer that land to the Crown [condition 12]; (e) required no topsoil be removed from that area [condition 13]; (f) (it) minimise onsite erosion and the release of sediment [condition 14]; (g) (it) prepare a site-based stormwater management plan [condition 15].” [44] This court must not usurp the function of town planning for any local government area; it should not substitute its own view of what the planning instruments ought to provide. The planning instruments leave the site open to residential development. A situation is reached in which the flora and fauna considerations raised by the appellant, which might tend against permitting the development proposed, do not outweigh the other relevant considerations which, as it happens, have not been examined in the court, but, for reasons indicated, must be taken as favourable for the proposal of the co-respondent. The court’s and common experience confirm that places must be found in the City of Brisbane to accommodate with appropriate levels of amenity a growing population. The co-respondent’s proposal for development of its site is (or with a favourable decision upon its application will become) lawful and no sufficient reason appears why it ought not be allowed to proceed. -- 27 of 29 -- 28 [45] The appellant appears to harbour hope that local government and/or the State Government may at some time act to preserve the whole area about which she expressed concern. I am unpersuaded that the co-respondent ought to be held up to await developments, while acknowledging that if its proposal does proceed, there will be some irreversible loss of “natural” environment, which may be seen as an extension southwards from Linkfield Road of the damage already done by the powerlines, and on the periphery of the area the appellant, and others, like Dr Rowston, would wish to see preserved. The failure of the appeal does not constitute a precedent for owners of other potential development sites in the general area. See the Indooroopilly Golf Club case at page 42 and other authorities collected in Fogg, Meurling & Hodgetts, Planning and Development Queensland 1: 8655. Every site and application must be considered on its own merits. I was impressed by the careful approach of the Council’s environmental scientist witness, Mr Manners. To the extent there are environmental concerns affecting the site, I would say those to do with fauna outweigh those to do with flora, while accepting the two are inter- related. I reject the argument that the site contains “wetland” flora species that should be protected, given the severance from the Comino land that has occurred. [46] Failure of the appeal and continuation of the approval already obtained from the Council does not entitle the co-respondent to proceed to develop. As noted, there is no approval for “operational works”. These, it appears, will involve the clearing of native vegetation and the obtaining of appropriate authority from the Chief Executive administering the Vegetation Management Act 1999, as assessment manager. It is not for the court to speculate that any separate application the co- respondent will have to make will either fail or succeed: Walker v. Noosa Shire Council (1983) 2 QdR 86. Although she has no right to participate in any formal -- 28 of 29 -- 29 way in the relevant processes, the appellant will no doubt find a way of communicating her point of view; if Mr Chenoweth’s impressions of views held in at least one quarter within the Queensland Herbarium are borne out in practice, by some revision of Exhibit 5, the appellant’s prospects of winning the war may be good, although she has not won the present battle. [47] The appeal should be dismissed. -- 29 of 29 --