Planning and Environment Court of Queensland upholds a building envelope condition but strikes down a condition prohibiting additional vegetation clearing

In brief

The case of Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 7 concerned two appeals to the Planning and Environment Court of Queensland (Court) that were heard together, each in respect of development conditions imposed by the Moreton Bay Regional Council (Council) on a development permit for a material change of use (dwelling house) and a preliminary approval for building work in respect of a partly cleared lot in Rothwell (Proposed Development).

The following two development conditions were the subject of the appeals:

1. Condition 1, which required the dwelling house and its ancillary structures to be located within a specified building envelope (Condition 1).

2. Condition 3b, which prohibited vegetation clearing beyond what is required to implement an approved bushfire management plan (Condition 3b).

The Court assessed the development conditions against the "relevant or reasonable" test in section 65(1) of the Planning Act 2016 (Qld) (Planning Act) which states as follows:

"A development condition imposed on a development approval must—

(a) be relevant to, but not 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 use of premises as a consequence of the development."

The Court found that Condition 1 is reasonable and relevant for the purposes of the Planning Act and is necessary to secure compliance with the Moreton Bay Regional Council Planning Scheme 2016 (Version 6) (Planning Scheme), but that Condition 3b is unlawful.

Court finds that the development condition requiring the Proposed Development to be built within a building envelope will not result in an unacceptable outcome

The Appellant proposed to build each dwelling house in a location which would require vegetation clearing. Condition 1, however, moved the building envelope so that no vegetation clearing would be required.

The Appellant argued that the alternative location stipulated by Condition 1 would give rise to additional costs and engineering difficulties because of the driveway gradient. The Court did not accept that the location of the building envelope in accordance with Condition 1 would result in an unacceptable outcome. Rather, the Court found that each residential lot will present its own design and construction hurdles and it is ultimately a matter for the owner or builder as to the engineering solution for the driveway that is adopted (at [75]).

Further, whilst the Court was not persuaded that Condition 1 would result in materially different engineering costs it found that to the extent there was a difference, the additional cost was not an unreasonable imposition given the significant ecological considerations affecting the Proposed Development (at [88]).

Court finds that the development condition reducing vegetation clearing is necessary to achieve compliance with the Planning Scheme

Both of the subject lots are identified as having biodiversity values of State significance on Overlay Map 1 and are subject to the Natural Features or Resources Overlay Code (Overlay Code) in the Planning Scheme. The evidence established that each lot contains high conservation value regional ecosystem associated with core threatened species habitat for koala. The Court accepted that the ecological values present on each lot align with the values prescribed by the Planning Scheme (at [99]).

Although the Appellant accepted that the proposed location of each house would result in the removal of valued vegetation, it argued that this would not result in significant additional impacts. The Court preferred the Council's evidence that the clearing of vegetation would result in a significant loss as it would remove the home range of an endangered species. The Court therefore found that the construction of each house in the location proposed by the Appellant would result in an unacceptable ecological impact and a non-compliance with the Overlay Code, which would warrant refusal of the proposed development absent Condition 1 (at [113]).

Court finds that vegetation clearing will only be exempt clearing work to the extent that it is necessary for essential management

The Council argued that Condition 3b is reasonable and relevant on the basis that without the condition vegetation clearing could be undertaken "as of right" as clearing for "essential management" up to 35 metres from the edge of a building or other structure, rather than the 12-metre wide zone that the bushfire experts said is the extent of necessary clearing (at [139]).

The Court considered what constitutes clearing for "essential management" and held that not all such clearing is accepted development as "exempt clearing work" under the Planning Regulation 2017 (Qld), and is only accepted development where it is "clearing vegetation that is necessary for essential management" (at [140]). The Court held that the extent of clearing that is "necessary" is a question of fact to be determined by reference to the particular circumstances of the case (at [141]).

In this case, the Court accepted the evidence of the bushfire experts that a bushfire hazard protection zone with a width of 12 metres is the extent of clearing that is "necessary" for essential management (at [141]).

Therefore, the Court found that Condition 3b is not relevant to the Proposed Development, nor reasonably required in relation to the Proposed Development, and is therefore not a lawful condition under section 65 of the Planning Act (see [142] to [145]).

Court finds that it is necessary to impose two additional conditions concerning bushfire management and site rehabilitation

The Court found that additional conditions concerning bushfire management and site rehabilitation ought to be imposed on the Proposed Development.

The Court therefore ordered the addition of Condition 2, which incorporates recommendations from the Joint Expert Report of the Bushfire Experts to achieve compliance with Specific Outcome SO9 of the Reconfiguration of a Lot Code in the Planning Scheme.

The Court found that regardless of the location of the building envelope, the commencement of the use of the subject land brings the "…potential for changes that could adversely impact the ecological values of the subject land, such as changes associated with construction of the houses and landscaping" (at [118]). As a result, the Court ordered the addition of Condition 4, which requires the submission of a site rehabilitation plan prepared by a suitably qualified person for approval by the Council (Rehabilitation Plan) and the implementation of the Rehabilitation Plan. Condition 4 also requires that the Rehabilitation Plan include the recommendations of the ecological expert engaged by the Appellant (at [119]).

Conclusion

The Court allowed the appeals and remitted the development applications to the Council with directions, including the removal of Condition 3b and the addition of the two new conditions concerning bushfire management and site rehabilitation.