The case of Landarch Properties Pty Ltd v Logan City Council & Anor [2024] QPEC 47 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision of Logan City Council (Council) to refuse its development application for a small lot subdivision in Waterford, Queensland (Primary Site).

Following two minor changes made to the development application after the commencement of the appeal, the development application sought a development permit for reconfiguring a lot, to create 55 small residential lots across three stages together with a balance lot and a preliminary approval for operational work (Proposed Development). The Proposed Development included a second site located several kilometres away in Chambers Flat for the purpose of providing compensatory flood storage and an environmental offset (Offset Site). 

The Court dismissed the appeal and refused the Proposed Development on the basis that it would unacceptably impact protected native vegetation, fauna and a mapped biodiversity corridor and that these impacts could not be overcome by the proposed environmental offset or by conditions of approval.  

The Primary Site is included in the small lot precinct of the low-density residential zone pursuant to version 8.1 of the Logan Planning Scheme 2015 (Planning Scheme), however it also contains areas of koala habitat and is subject to various overlay maps, relevantly including (at [8]):

• 91.6% of the Primary Site is identified as primary vegetation management area;

• 97.7% of the Primary Site is identified as a biodiversity corridor;

• 81.9% of the Primary Site is identified as locally significant remnant vegetation; and

• 87% of the Primary Site is identified as matters of both State and local environmental significance.

With respect to koala habitat, the development application was referred to the Chief Executive administering the Planning Act 2016 (Qld), which issued a referral agency request imposing conditions including a requirement to provide an environmental offset at the Offset Site to compensate for the loss of non-juvenile koala habitat trees from the Primary Site (at [2]).

The Appellant emphasised the need to consider the zoning of the Primary Site and argued that the Proposed Development achieved an appropriate balance between the land use outcome sought for the Low-Density Residential Zone Code and the ecological outcomes sought by the Biodiversity Areas Overlay Code. However, the Proposed Development was subject to code assessment and the Low-Density Residential Zone Code was not called up as an assessment benchmark by the Planning Scheme (at [43]).  

The Appellant argued that the remnant vegetation at the Primary Site was not locally significant as it was comprised of two regional ecosystems which are not locally endangered, relying on evidence of its ecology expert and a property map of assessable vegetation which had been obtained pursuant to the Vegetation Management Act 1999 (Qld) prior to the hearing of the appeal, also with the assistance of the Appellant's ecology expert (at [34]).

The Court did not accept the evidence of the Appellant's ecology expert and preferred the evidence of the Council's ecology expert, who is an expert in mapping regional ecosystems and was critical of the methodology adopted by the Appellant's ecology expert in proposing the alternate regional ecosystems. The Council's ecology expert considered that the Primary Site was correctly classified as containing regional ecosystem 12.11.18, which the Court accepted is locally significant because there is less than 10% of its pre-clearing extent left within the Council's local government area (at [35]).

The Court therefore found that the Proposed Development did not comply with provisions of the Biodiversity Areas Overlay Code concerning the protection of native and remnant vegetation (see [49] and [51]). C 

The Court also preferred the evidence given by the Council's experts in respect of the importance of the Primary Site's functionality as a biodiversity corridor and provision of habitat and movement opportunities for various fauna, including the koala.

In particular, the Court accepted that:

• There are hollow-bearing trees at the Primary Site, as conceded by the Appellant's ecology expert, in circumstances where it takes about 100 years for hollow-bearing trees to emerge (at [38]);

• the Proposed Development would result in the removal of 49% of the fauna habitat on the Primary Site (at [38]);

• the reduction in the effective corridor width would create a 'pinch point' at a strategically important section of the biodiversity corridor (at [38]); and

• the Proposed Development fails to meet key benchmarks for koalas (at [41]).

The Court therefore found that the Proposed Development did not comply with provisions of the Biodiversity Areas Overlay Code concerning the protection of mapped biodiversity corridors and fauna habitat values (at [48]).  

The Appellant argued that compliance with the Biodiversity Areas Overlay Code was achieved by the provision of an environmental offset, comprising a combination of revegetation and managing the balance lot at the Primary Site and revegetating and managing areas of the Offset Site (at [44]).

However, the Court did not accept this argument and found that, in circumstances where the Court had found that the Biodiversity Areas Overlay mapping of the Primary Site is sound from an ecological perspective, “[i]t is not appropriate for the appellant to simply disregard the overlays, including the biodiversity areas overlay, and seek to establish compensatory habitat in another location of its choosing” (at [45]).

The Court also emphasised that the proposed environmental offset did not comply with the relevant requirements provided in the Council's Planning Scheme Policy 3 - Environment (at [46]).  

The Court's decision highlights the importance of a Local Government's mapping of protected vegetation and applicants should be wary of reliance on the provision of an environmental offset elsewhere to satisfy the outcomes sought for protected vegetation by the Local Government's planning scheme.

The Court dismissed the appeal and refused the Proposed Development. If you would like further guidance on any of the matters discussed above, please contact our Planning, Government, Infrastructure & Environment team for trusted advice and support.