In brief

The case of Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 concerned an Applicant appeal to the Planning and Environment Court against conditions imposed by the Gold Coast City Council (Council) on a development approval for reconfiguring a lot to create 67 community title lots, common property and two balance lots. The issue before the Court concerned the balance lots, being lots 900 and 901.

The Council in its decision notice required both lots to be combined and dedicated to the Council at no cost to the Council for “Public open space for environmental conservation purposes”. In the course of the appeal, the Council contended for an amended conditions package in which it withdrew the condition in respect of Lot 900 and sought a new condition, being condition 8, in respect of Lot 900. This would constrain future development on the lot, require fauna friendly fencing, prohibit the ownership of domestic dogs, and require part of the lot to be rehabilitated for koala habitat purposes.

The Appellant accepted that Lot 901 should be dedicated to the Council as the land has ecological significance for koala habitat, which is recognised by the overlay mapping for environmental significance under the Environmental Significance overlay code of the Gold Coast City Plan (City Plan). The Appellant, however, opposed the new condition 8 and associated amendments, in respect of Lot 900, on the following two grounds:

  1. under the City Plan, the lot has no environmental significance; and

  2. under section 65(1) of the Planning Act 2016 (Planning Act) condition 8 is unlawful. 

To decide the appeal, the Court had to examine the following issues: 

  • Does Lot 900 have environmental significance? 

  • Does the overlay code under the City Plan support condition 8? 

  • Is condition 8 lawful under section 65(1) of the Planning Act?

The Court held in favour of the Appellant as the Council had failed to provide sufficient evidence to establish that condition 8 was necessary. The Court also found that the imposition of condition 8 was unlawful. 

Does Lot 900 have environmental significance?

The Council’s expert ecologist relied on a computer model which identifies and maps the areas for predicted koala activity. The results of the computer modelling suggested that Lot 900 fell within a high-use area for koala population densities and, therefore, the Council's expert concluded that Lot 900 is important for koala connectivity and dispersal in the local landscape. 
The Court noted that the evidence presented by the Council’s expert ecologist was heavily influenced by the computer modelling. The Court had concerns about the accuracy of the evidence, as the results were based on computer modelling which only predicted where koala activity was expected to occur. The evidence was not based on actual observations or fauna studies specific to the land. 
The Appellant’s expert ecologist gave evidence that Lot 900 was not environmentally significant. The Court noted that the Appellant's expert evidence was consistent with the City Plan as the City Plan did not map Lot 900 as being environmentally significant. The Court referred to section 8.1(6) of the City Plan which relevantly states as follows: 

(6) Where development is proposed on premises partly affected by an overlay, the required outcomes and assessment benchmarks for the overlay only relate to the part of the premises affect by the overlay”. 

The Court observed that only Lot 901 is mapped as being of environmental significance and, therefore, Lot 900 is not environmentally significant. The Court, therefore, held that Lot 900 is not a valuable area for koala habitat.
The Court also noted that the Appellant's expert ecologist adopted a practical approach in conducting an assessment of the land's ecological significance. In particular, the Court agreed with the Appellant’s expert ecologist’s evidence that condition 8 would actually encourage koalas to move through the local landscape by crossing busy roads and intersections where there are no existing or planned fauna friendly crossings. 
The Court, therefore, accepted the evidence presented by the Appellant's expert ecologist and held that Lot 900 is not an environmentally significant area. 

Does the overlay code under the City Plan support condition 8?

The Council relied upon PO15 and PO21 of the Environmental Significance overlay code to support the imposition of condition 8. 
PO15 relevantly provides that “site design provides safe koala movement opportunities by incorporating measures to maintain connectivity between areas of koala habitat on and adjacent to the site”. The Court held that section 8.1(6) of the City Plan made it clear that the Environmental Significance overlay code only applies to land which is impacted by the overlay mapping and, as a result, PO15 did not apply to Lot 900. 
The second provision of the Environmental Significance overlay code which the Council relied upon to impose condition 8 was PO21. PO21 encourages development design and location to provide for the safe movement of native fauna through the site. The Court also held that PO21 does not apply to Lot 900 due to section 8.1(6) of the City Plan. Further, the Court held that PO21 does not require condition 8 as the safe movement opportunity will cease on the land when it adjoins busy roads which have no fauna friendly crossings and, as such, condition 8 in fact contradicted PO15 of the Environmental Significance overlay code. 

Is condition 8 lawful under section 65(1) of the Planning Act?

The Appellant argued that condition 8 is unlawful under section 65(1) of the Planning Act, which relevantly states as follows: 

(1) A development condition imposed on a development approval must

(a) be relevant to, but not be an unreasonable imposition on, the development or the use of premises as a consequence of the development; or

(b) be reasonably required in relation to the development or the use of premises as a consequence of the development.

The Court held that condition 8 did not satisfy section 65(1)(a) of the Planning Act as the measures set out in the condition were an unreasonable imposition on the proposed development, as it would constrain the use of Lot 900 for environmental purposes by limiting the location and extent of the built form of the land, and would prohibit the keeping of domestic dogs, which is lawful when associated with residential dwellings. 

The Court also held that condition 8 did not satisfy section 65(1)(b) of the Planning Act as the proposed development already made appropriate provision for fauna movement and connectivity as required by the City Plan.

The Court, therefore, held that condition 8 was an unlawful condition under section 65(1) of the Planning Act. 

Conclusion

The Court held that Lot 900 has no environmental significance under the City Plan given that it is excluded from the relevant environmental overlay mapping. The Court also held that condition 8 is not supported by PO15 or PO21 of the Environmental Significance overlay code. The Court further held that condition 8 was unlawful under section 65(1) of the Planning Act. Therefore, the Court adjourned the appeal in order for both parties to finalise a suite of amended conditions which were consistent with the Court’s decision. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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