Planning and Environment Court of Queensland gives decisive weight to the ecological provisions of a later planning scheme and refuses a development application for reconfiguring a lot

In brief

The case of Roseingrave & Anor v Brisbane City Council & Anor (No. 2) [2022] QPEC 43 concerned an appeal to the Planning and Environment Court of Queensland (Court) against a decision of the Brisbane City Council (Council) to refuse an impact assessable development application for a development permit for reconfiguring a lot (one lot into five lots) (Proposed Development) on land located at 155 Old Northern Road, Everton Park (Site).

The planning scheme in effect at the time the development application was properly made was the Brisbane City Plan 2014 (version 9) (Earlier Planning Scheme) and the planning scheme in effect at the time the development application was decided was the Brisbane City Plan (version 17) (Later Planning Scheme).

The substantive issues in the appeal were whether the Proposed Development would result in unacceptable impacts, in particular, the following:

• Traffic impacts arising from an inadequate sight distance associated with the proposed new access to Old Northern Road.

• Risks from a bushfire hazard.

• Ecological impacts.

The Court's decision turned on the question of what weight ought to be given to the Later Planning Scheme. The Court found that the Proposed Development would not result in unacceptable traffic impacts or a bushfire hazard, but that the ecological impacts would be unacceptable having regard to the provisions in the Later Planning Scheme. The Court gave decisive weight to the provisions in the Later Planning Scheme about ecological impacts, and dismissed the appeal and upheld the Council's decision to refuse the development application.

Court finds that new access satisfies sight distance standards

The Proposed Development involves the creation of a new access to Old Northern Road, which is a State-controlled arterial road. The evidence of the traffic engineers was that access to a road of this type is generally not desirable from a traffic engineering perspective. However, the Court accepted that it could be considered in this instance due to factors including the substandard nature of the existing access, the absence of a lower-order road alternative, and the plausibility of a northern access eventually becoming available to the Site (at [14]).

The Court considered the sight distances provided by the Australian Standard for Off-Street Car Parking (AS2890) for the speed environment of the proposed access, that is 97 metres for the desirable five-second gap and 85 meters for the stopping sight distance (at [26]). The Proposed Development satisfies the stopping sight distance but falls short of the desired five-second gap. However, the Court was satisfied that the Proposed Development achieves the desirable five-second gap when the actual value of the speed environment is interpolated in place of the rounded value (see [27] to [28]).

Court finds that the risk of bushfire hazard does not justify refusal of the development application

The Applicants argued that the risk of a bushfire hazard in respect of the Site is low, whereas the Council argued that it is at the low end of medium. The variance in the parties' assessment of the risk of a bushfire hazard was primarily as a result of the Council's assessment assuming the revegetation of all land included within the Biodiversity Areas Overlay or Waterway Corridors Overlay under the Later Planning Scheme, in accordance with section 6 of the Later Planning Scheme's Bushfire Planning Scheme Policy.

The Court found that the Council's assessment of the risk of a bushfire hazard "…represents the most conservative possible approach to the application of the policy" (at [48]), and did not give it decisive weight. The Court concluded that the assessment benchmarks relating to the risk of bushfire hazard would not cause the Court to refuse the development application (at [49]).

Court finds ecological impacts are unacceptable having regard to the Later Planning Scheme

The Proposed Development involves significant vegetation clearing, including clearing 75% of the Site's existing trees, as well as some retention, compensatory planting, and rehabilitation. The Site is affected by the High Environmental Significance (HES) sub-category designation on the Biodiversity Areas Overlay (HES Designation) in both the Earlier Planning Scheme and the Later Planning Scheme.

Under the Earlier Planning Scheme, only a small part of the Site is affected by the HES Designation and the Council conceded that the Proposed Development complies with the Biodiversity Areas Overlay Code in the Earlier Planning Scheme.

The Later Planning Scheme incorporated major amendments which changed the biodiversity-related provisions and mapping (Amendments) and relevantly resulted in a much larger portion of the Site being affected by the HES Designation and parts of the Site being affected by the HES Strategic sub-category designation.

The Court accepted evidence from the Council that under the Later Planning Scheme the vegetation on the Site has a high ecological value because it forms part of a greenspace network and a stepping stone corridor, and is likely to be used by threatened and locally significant fauna (at [81]).

The Court assessed what weight the Later Planning Scheme ought to be given in the circumstances and found that it ought to be given decisive weight for the following reasons (see [103] to [113]):

• The Amendments went through public consultation before the development application was made and the development application was therefore made in full knowledge of the proposed Amendments.

• Due to an extended decision-making period, the Amendments came into force before the development application was decided.

• The Amendments had been in effect for almost three years.

• The ecological evidence demonstrated that the Later Planning Scheme reflected the ecological value of the Site better than the Earlier Planning Scheme.

The Court found that the clearing associated with the Proposed Development would have a significant undue adverse impact and that "[t]o permit that to occur on the basis of mapping that does not reflect the true value of the vegetation without giving weight, indeed decisive weight, to the mapping that superseded it almost three years ago and which better reflects those values, would produce a poor and indeed…an unacceptable planning and ecological outcome" (at [112]). 

Accordingly, the Court gave decisive weight to the relevant provisions of the Later Planning Scheme and found that the ecological impacts render the Proposed Development unacceptable.

Conclusion

The Court found that the Applicants did not discharge their onus and dismissed the appeal.