Proposed offset insufficient to overcome conflict with the assessment benchmarks

In brief

The case of Kenlynn Pty Ltd v Noosa Shire Council [2019] QPEC 65 concerned an appeal to the Planning and Environment Court (Court) against the Noosa Shire Council's decision to refuse the applicant's application for a development permit to reconfigure a lot located at Castaways Beach into five lots (Proposed ROL).

Under section 46(2) of Planning and Environment Court Act 2016 (PECA), the Court was required to carry out an assessment of the Proposed ROL in accordance with section 45 of the Planning Act 2016 (Planning Act). As the development application was code assessable, the assessment of the Proposed ROL was limited to the relevant assessment benchmarks in the Council's superseded Noosa Plan 2006 (Planning Scheme), and any matters prescribed by the Planning Regulation 2017.
The issues to be determined by the Court were the following:                                                                                         

• Whether the Proposed ROL conflicted with a relevant assessment benchmark.

• If the Proposed ROL conflicted with a relevant assessment benchmark, whether compliance could be achieved by the imposition of a condition, including a condition in relation to a proposed offset or financial contribution.

The Court held that the Proposed ROL, although compliant with a majority of the relevant assessment benchmarks, did not comply with many of the specific and overall outcomes of the Biodiversity Code in the Planning Scheme because the Proposed ROL would result in the clearing of vegetation with vital ecological value greater than that envisaged by the code.

The Court did not consider that a proposed offset, including the replacement or maintenance of vegetation on adjacent land that was already protected and had ecological value, to be an adequate offset or to be a relevant matter in support of approving the Proposed ROL.

The Court found that the non-compliance with the Biodiversity Code was not able to be remedied by the imposition of development conditions, and was unwilling to condition the applicant's proposed offset or financial contribution, and therefore dismissed the appeal.

Proposed ROL of the Subject Land

The land the subject of the Proposed ROL (Subject Land) is 9,677 m² and heavily vegetated with native and weed species, making it a bushfire prone area, except for approximately 2,000 m². The Subject Land adjoins vegetated conservation land owned by the Council.

The following two prior approvals over the Subject Land were relevant to the appeal:

• Duplex Approval – A town planning consent granted in 1993, which included conditions in relation to landscaping and the retaining of certain trees, unless certain circumstances existed.

• 2016 Approval – A development approval granted by the Council in late-2016 which had not been exercised for reconfiguring the Subject Land into two lots that included a vegetation protection covenant and the provision for the further clearing of approximately 2,000 m² of the Subject Land.

The Proposed ROL involved the reconfiguring of the Subject Land into five lots of sizes varying between 1,062 m² and 3,897 m², with each of the five lots to include a building location envelope of approximately 500 m² to 600 m², and an environmental covenant area that was proposed to be subject to weed control, supplementary planting and maintenance. The access to the new five lots was proposed to be by way of a new driveway with easements to be registered over each lot.

The Proposed ROL would require additional clearing in the nearby road reserve in order to provide an appropriate sightline for the newly created access, which the Council did not agree to as the relevant road authority.

Applicant's proposed offset and financial contribution 

The applicant submitted that the Proposed ROL could be conditioned to provide an offset on the adjoining conservation land, involving weed control, supplementary planting and maintenance for a period of at least three years (Proposed Offset). In the alternative, the applicant submitted that it would be prepared to pay a financial contribution to the Council or a combination of both.

The Council was opposed to the applicant's Proposed Offset and financial contribution.

Court's assessment of the Proposed ROL against the Planning Scheme 

The Subject Land is in the Detached Housing Zone of the Eastern Beaches Locality under the Planning Scheme.

The relevant assessment benchmarks in the Planning Scheme relate to access to the Subject Land, impact on amenity and character, and clearing and earthworks.

Relevantly, the Planning Scheme states that an overlay prevails over other components of the Planning Scheme to the extent of any inconsistency, and that where code assessable development complies with the overall outcomes of a code, the development was taken to comply with that code.

Proposed ROL complied with certain codes

The Court held that the Proposed ROL complied with the following codes by meeting the stated overall outcomes:

• Natural Hazards Overlay Code, in relation to bushfire risk, as the Court found that access to the bushfire prone area on the Subject Land did not need to be by a fire-fighting appliance, where adequate access for fire-fighting appliances was provided elsewhere on the Subject Land.

• Driveways and Carparking Code, Transport Roads and Drainage Code, and Reconfiguring a Lot Code, in relation to access sightlines and the grade of the access, as the Court found that the question to be asked was whether the proposal warranted approval, or could be approved with conditions about, for example, advisory speed signs, and not whether there was a better access and traffic arrangement proposal available.

• Eastern Beaches Locality Code, in relation to character and amenity, as the Court found that the requirement in the Planning Scheme to have "vegetated character" or afford "vegetated views" did not mean that there was to be no development or that development was to be invisible, and in any event, the vegetation which provided substantive screening from the development on the Subject Land was proposed to be maintained.

Proposed ROL did not comply with the Biodiversity Code 

The Council argued that the Proposed ROL would result in an unacceptable clearing of vegetation and earthworks, contrary to the Biodiversity Code.

Although the Court accepted that the existence of weeds on the Subject Land reduced the ecological value of the native vegetation on the Subject Land, it held that the forest communities provided a diversity of species of vegetation and resources for different fauna, and that the vegetation was contiguous with surrounding vegetation and at the junction of two habitat corridors.

The Court rejected the applicant's argument that the vegetation, which would remain on the Subject Land and that which was located in the broader locality, justified the destruction of the vegetation on the Subject Land and in the road reserve.

The Court notedly rejected a similar submission in Rainbow Shores Pty Ltd v Gympie Regional Council & Ors [2013] QPEC 26, where it stated (at [305]):

"The destruction of habitat on the subject site is not, in my view, justified by pointing to habitat elsewhere which will provide for the survival of the species. The planning documents do not suggest that vegetation on the subject site is expendable having regard to what exists in the broader area…"

The Court held that the Proposed ROL did not respect the ecological values of the Subject Land, was a more significant proposal than the 2016 Approval, and that the clearing of the Subject Land would amount to more than that required for adequate bushfire protection.

Court did not entertain the Proposed Offset or financial contribution

The Council is the trustee of the land the subject of the Proposed Offset, and the road authority for the road reserve where the clearing was proposed to take place.

The Council disagreed with the Proposed Offset and submitted that it did not permit or accept the removal and maintenance of vegetation on the road reserve.

The Court noted that although it could not dictate the Council's decision as a road authority or as the trustee of the adjoining conservation land, the Court was not prevented from granting an approval of the Proposed ROL subject to an offset condition, which would depend on later agreement with the Council. However, the Court held that, depending on the terms of such a condition, an approval may not be able to be exercised until the Council had agreed.

The Court held that it should not approve development where the development is only appropriate in the context of an offset, and the offset is contingent on a later agreement or it is uncertain as to whether the offset will be achieved.

The Court held that a financial contribution would not achieve any type of offset for the impact of the Proposed ROL in the circumstances, and it was unprepared to rely on a financial contribution where it was not sought or agreed to by the Council.

The Court found that the Proposed Offset would not replace the loss of the vegetation communities on the Subject Land that would be removed as a result of the Proposed ROL, and therefore the Proposed Offset could not remedy the non-compliance with the Planning Scheme.

Conclusion 

The Court held that the proposed clearing and earthworks would not avoid impacting on ecologically important areas as required by the Planning Scheme, and the impacts would not be remedied by the Proposed Offset or by the imposition of other conditions. The Court therefore dismissed the appeal.