Size of habitat area matters to koalas: Planning and Environment Court of Queensland finds that a proposed minor change to a development application does not require referral for interfering with koala habitat in an area that is koala habitat area but not koala priority area

In brief

The case of Stephen Family Pastoral Pty Ltd v Logan City Council [2023] QPEC 30 concerned an application to the Planning and Environment Court of Queensland (Court) by the Co-Respondent  seeking a change to a development application (Change Application) the subject of the principal proceeding, being a submitter appeal against the decision of the Logan City Council to approve a combined development application for a development permit for a material change of use (childcare centre, service station and shopping centre), reconfiguring a lot (2 lots into 8 lots, and access easements) and operational works (earthworks) with respect to land located at 2-30, 1-23 and 565-577 Noffke Court, Logan Reserve (Proposed Development). 

The Court considered whether the changes proposed by the Change Application (Changes) constituted a minor change as defined in Schedule 2 of the Planning Act 2016 (Qld) (Planning Act) including whether: 

Section 73 of the Planning Regulation 2017 (Qld) (Regulation) precluded certain amendments made to the Regulation applying to the Change Application (Section 73). 

The Changes involve exempted development for the purpose of Schedule 10, Part 10, section 16B of the Regulation (Section 16B).

The Changes themselves trigger a referral under Section 16B.

Background and legislative context

Section 46(3) of the Planning and Environment Court Act 2016 (Qld) provides that the Court cannot consider a change to a development application unless the change is a minor change. 

Minor change is relevantly defined as follows in Schedule 2 of the Planning Act (Minor Change Test):

"minor change means a change that –
(a) for a development application –

(i) does not result in substantially different development; and 
(ii) if the application, including the change, were made when the change is made – would not cause –
…
D) a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made;

…"

The parties agreed, and the Court accepted, that the Changes would not result in substantially different development (at [3]).

The Appellant argued that the Changes were not a minor change as they did not satisfy section (a)(ii)(D) of the Minor Change Test (Referral Trigger), for the reason that the referral agency would have to assess the development application including the Changes having regard to the Proposed Development's "…interference with koala habitat in a koala habitat area outside koala priority areas" (at [4]). 

The development application was properly made in 2018. Subsequently, the Regulation was amended by the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 (Qld) (Koala Amendment). 

Relevantly, the Koala Amendment inserted Section 16B which, in subsection 1, provides that development is assessable development to the extent that it involves interfering with koala habitat in an area that is a koala habitat area and not a koala priority area (at [5]). However, Section 16B(2)(a) provides that Section 16B(1) does not apply to the extent that development is exempted development. 

The definitions for "koala priority area" and "koala habitat area" in Schedule 24 of the Regulation refer to sections 7A(1) and 7B(1) of the Nature Conservation (Koala) Conservation Plan 2017 (Qld) (Koala Plan) respectively. Sections 7A(1) and 7B(1) of the Koala Plan provide that the Chief Executive may determine that an area in a koala district is a koala priority area or a koala habitat area. 

Paragraph (k) of the definition of "exempted development" in Schedule 24 of the Regulation includes "development…that results in a total area on the premises of 500m² or less of 1 or more koala habitat areas being cleared of native vegetation since 7 February 2020…" (Exempted Development Definition). 

At the time the Change Application was made, a small area of approximately 195m² along the northern boundary of the land the subject of the Proposed Development was mapped by the Chief Executive as a koala habitat area (Mapped KHA). Relevantly, the Changes included an increase in the northern setback of the Proposed Development to further mitigate potential impacts on the Mapped KHA. 

The Appellant argued that the Referral Trigger was engaged for the Proposed Development because the development application was not assessed having regard to Section 16B when it was made in 2018, but would require assessment having regard to Section 16B if the development application including the Changes was made when the Change Application was made due to the Mapped KHA (at [6]).  

Court finds that Section 73 does not affect the Minor Change Test

Section 73 provides that the Regulation as in force from time to time before the commencement of the Koala Amendment continued to apply in relation to a development application that was properly made, but not decided, before the commencement of the Koala Amendment. 

As such, the Co-Respondent argued that Section 73 made the development application, and by extension the Change Application, immune to the Referral Trigger with respect to the Koala Amendment as it meant that a version of the Regulation which did not include Section 16B applied to the development application (at [7]). 

The Court did not agree with this application of Section 73 and found that Section 73 does not limit, curtail or alter the hypothetical scenario which is postulated by the Minor Change Test, that is, "what would be the case if the development application were made at the time the change was made" (at [8]). 

Therefore, the Court considered that the Change Application was subject to the Regulation including the Koala Amendment.  

Court finds that the Proposed Development constitutes exempted development for the purpose of Section 16B

The Co-Respondent relied on Section 16B(2) and argued that the Change Application did not engage the Referral Trigger with respect to Section 16B(1) as the Proposed Development, including the Changes, constituted exempted development for the reason that it involved the clearing of less than 500m² of koala habitat area in accordance with the Exempted Development Definition (at [9]).

Whilst the subject land contained only 195m² of Mapped KHA, the Appellant argued that the Exempted Development Definition did not apply on the basis that its expert ecologist had conducted a "ground-truthing" exercise and determined that the land contains approximately 2,600m² of koala habitat and that over 500m² of this koala habitat would be cleared by the Proposed Development (see [14] to [16]).

However, having regard to the legislative context outlined above, the Court found as follows (see [16] to [17]):

1. The reference to "koala habitat area" is a reference to the area which is determined to be "koala habitat area" and mapped as such on the map published by the Chief Executive. 

2. The Chief Executive's determination and mapping cannot be overridden by "ground-truthing". 

3. The Proposed Development would be exempted development for the purpose of Section 16B. 

Court finds that the Changes themselves do not engage the Referral Trigger

Whilst the Court was satisfied that the Changes were a minor change because it involved exempted development for the purpose of Section 16B, it also dealt with a third argument regarding the Referral Trigger. 

The Court noted that the Minor Change Test begins with the words "means a change that", and found that this means that the test must focus on the change itself and what the change results in rather than a consideration of "whether the law has changed in the meantime such that the assessment of unaltered parts of a development application would now attract a greater degree of scrutiny" (at [19]). 

As the Changes did not seek to increase the clearing of the Mapped KHA, the Court found that the Changes could not themselves engage the Referral Trigger with respect to Section 16B and the Appellant's argument that referral would be required relied solely on a change to the position of law, contrary to the exercise requested by the Minor Change Test (see [19] to [22]). 

Conclusion

The Court was satisfied that the Changes were a minor change and ordered that the appeal, as well as another submitter appeal concerned with the Proposed Development, proceed on the basis of the changed proposed development.