Planning and Environment Court of Queensland refuses a master planned community on ecological and residential character grounds

In brief

The case of Stockland Development Pty Limited v Sunshine Coast Regional Council & Ors [2022] QPEC 30 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the refusal by the Sunshine Coast Regional Council (Council) of an impact assessable development application made by Stockland Development Pty Ltd (Applicant) for a preliminary approval for a material change of use including a variation request to vary the effect of the Sunshine Coast Planning Scheme 2014 (Version 17) (Planning Scheme) and a development permit for reconfiguring a lot, to facilitate a master planned community to be called "Twin Waters West" (Proposed Development).

The site of the Proposed Development is a former cane farm at Pacific Paradise on the northern side of the Maroochy River (Premises). There is a large freshwater wetland with high ecological significance which covers part of the site (Wetland), and that links to the Maroochy River Conservation Area. The Premises also borders the Sunshine Motorway to the west, and the Twin Waters residential development to the east (Twin Waters).

The Premises is subject to ten overlays under the Planning Scheme. Relevantly, the Proposed Development features a flowing 1.05 million cubic metre saltwater lake system pumped with a daily inflow of 43,200 cubic metres that discharges into an outfall in the Maroochy River (Lake).

The issues in dispute were broadly in respect of ecology, water quality, flood emergency management, residential character, impacts on a recreation park, community expectations, and other relevant matters.

The Court dismissed the appeal and held in particular that the Lake has "a real prospect of detriment to or destruction of this [Wetland]" and that the residential character of the Proposed Development is not consistent with Twin Waters (at [70]).

Ecological issues in dispute

The issues in dispute relevant to ecology were as follows (at [22]):

"(a) the adequacy of the proposed buffers to environmentally significant areas including the central wetland and linkages for fauna;
(b) the adequacy and practicality of measures proposed to protect the ecology of the central wetland, Maroochy River and Maroochy Conservation Park from unacceptable impacts caused by changes to surface water quality and saline intrusions; and
(c) whether the proposed lake system and pipe outlet into the Maroochy River will cause unacceptable ecological impacts."

The Court relevantly held that the Applicant bore the onus to demonstrate that any adverse ecological impact could be mitigated by imposing lawful development conditions on subsequent development approvals (see [23] to [29], and [46]).

Court finds that the proposed buffers are non-compliant with the Planning Scheme

Performance outcomes PO26 and PO27 of the Maroochy North Shore Local Plan Code (Local Plan Code) relevantly contemplate a constructed water feature that extends the existing watercourses adjacent to the Proposed Development. Performance outcome PO35 of the Local Plan Code also relevantly requires development in the Emerging Community Zone to provide for "…the protection, buffering, connection and rehabilitation of ecologically important areas…including the Maroochy River…".

The Court heard from the parties' ecological experts as to the adequacy and environmental consequences of the proposed buffers. The Court preferred the evidence of the Council's ecological experts, who opined that "[t]he proposed setbacks, of as little as 6m in width, do not minimise exposure of fauna and fauna habitat to negative edge effects introduced by an extended construction phase or by a highly urbanised environment" (at [37]).

The Court therefore held that the proposed buffers do not comply with the relevant assessment benchmarks and that there is no justification for the non-compliance (see [39] to [40]).

Court finds that the Applicant's proposal to protect the Wetland from saline intrusion is inadequate and impractical

A consequence of the Lake was that "…natural groundwater flow is in a south-easterly direction across the [Premises] and [the Lake] is likely to cause an interception of the freshwater groundwater flowing from the west toward the [Wetland]" (at [41]). The Applicant's engineering expert gave evidence of "…a system of bio-retention basins and infiltration basins 'for water quality and aquifer hydration purposes'" by means of harvesting rainwater from the Proposed Development and being deposited into the Wetland (Engineering Solution) (at [41]).

The Applicant made the following arguments in respect of the saline intrusion (at [45]):

1. The Engineering Solution is "capable of being designed" and it will protect the Wetland. 

2. The threshold of proof in the context of the appeal only requires a theoretical demonstration of the Engineering Solution and therefore only the elements of the Engineering Solution need to be identified.

3. It is not necessary to consider whether the effects of the Engineering Solution comply with the Planning Scheme in the appeal since they can be considered in the subsequent development application for operational work.

The Court considered the evidence from the Council's engineering expert and held the modelling of the Engineering Solution to be insufficiently "…rigorous or accurate to provide a sound basis for a hypothetical engineering solution…" for the following reasons (at [42]):

• The modelling relied on rainfall data from 2006 to 2015 and accounted for a 10% increase from climate change. However, "[n]o allowance is made for climate change leading to drier than average periods as well as wetter than average periods" (at [42]).

• The uncertainties of weather events caused by climate change creates doubt in relying on only 9 out of 120 years of data (at [43]).

• There was "…a lack of anything resembling a design demonstrating with any precision where the bioretention basins and infiltration basins…are to be located", and they were indicatively shown to be placed within the ecological buffer areas between the Lake and the Wetland (at [44]).

The Court held that the Engineering Solution is impractical and inadequate in protecting the Wetland from saline intrusion, and that saline groundwater leaching into the freshwater was the biggest threat to the Wetland (see [41] and [45]). The Court also rejected the Applicant's argument that the effects of the Engineering Solution need not be assessed for compliance with the Planning Scheme now because a preliminary approval "…sets the footprint for the [Proposed Development], including the location of the [Lake]…" (at [45]).

Court finds that the pipe outlet into the River will not cause unacceptable impacts on threatened species

The Court held that there will not be unacceptable impacts on the water mouse habitat located in the vicinity of the Premises because the construction of the pipe outlet and its presence would have limited interference with the species (at [48]).

Court finds that the residential character of the Proposed Development is inconsistent with the adjoining Twin Waters

The Applicant sought to vary building heights, dwelling design provisions, and the permitted residential densities prescribed in overall outcome OO2(p) and the relevant overall outcomes and acceptable outcomes in Table 7.2.18.4.1 of the Local Plan Code (see [55] to [56]). The Applicant relied on submissions from its visual amenity expert to argue that the resulting changes from the variation request will not be readily perceptible (at [59]).

The Court heard submissions from the parties' town planning experts and preferred the evidence from the Council's expert for the following reasons:

• The Applicant's town planning expert conceded that "…there was no public benefit to the variations sought, rather it was 'just about the developer getting a better yield from the site'" (at [60]).

• The Court agreed with the Council's town planning expert who stated that "…it is the difference in the scale and intensity of the [Proposed Development] caused by a smaller average allotment size, that will have the greatest impact upon the character and amenity…" (at [62]).

The Court held, on the basis of the expert evidence, that the scale and intensity and configuration of the residential uses in the variation request are inconsistent with and unsympathetic to the low density residential character of Twin Waters (at [63]). The Court further held that the average residential lot size for the Proposed Development, being 23% smaller than Twin Waters, is inconsistent with the densities prescribed by the Planning Scheme (at [63]).

Court considers other relevant matters and finds that they do not outweigh the non-compliances with the Planning Scheme

The Applicant argued that relevant matters, including locational benefits, other compliances with the Planning Scheme, and benefit to the community support approval of the Proposed Development (at [69]).

The Court held that these relevant matters are insufficient to overcome the non-compliances with the protection and enhancement of the Wetland and the unacceptable impacts on residential character caused by the variation request.

Conclusion

The Court dismissed the appeal.