Australia: ESD and the Sustainable Planning Act 2009: Where is the Balance? (Part 2)

Planning and Development
Last Updated: 25 May 2010

(Part 2) (see Part 1 )

David Nicholls, Partner at HopgoodGanim Lawyers

Queensland Heritage Act 1992 (Heritage Act)

The objective of the Heritage Act is to provide for the conservation of Queensland's cultural heritage for the benefit of community and future generations27. The objects clause sets out a number of ways in which this is to be primarily achieved, including the establishment of the Queensland Heritage Register and Local Heritage Registers, and "regulating in conjunction with other legislation development affecting the cultural heritage significance of registered places"28. Further, in exercising powers conferred by the Heritage Act, the Minister and other people concerned in its administration must seek to achieve:

  • the retention of the cultural heritage significance of the places and artefacts to which it applies; and
  • the greatest sustainable benefit to the community from those places and artefacts consistent with the conservation of their cultural heritage significance29.

Section 68 of the Heritage Act provides that where the Chief Executive is the assessment manager or a referral agency for a development application for development on a State heritage place, the Chief Executive must assess the application against the object of the Heritage Act. The Chief Executive is, however, not released from the obligation under section 4(1)(b) or (c) to have regard to the purpose of the SPA. The purpose of the SPA through the breadth of its definition of the term "environment", includes managing the effects of development on places of cultural heritage significance. There is, again, a degree of synergy between the objects of the two Acts. Further, section 68(2) and (3) of the Heritage Act call into play safety, health and economic considerations, amongst others, in arriving at a decision as to whether the Chief Executive as assessment manager or as a concurrence agency should refuse or direct refusal of a development application. This is consistent with the balancing of competing factors required to advance the purpose of the SPA, to which the Chief Executive administering the Heritage Act must have regard.

Consequently, while the Heritage Act does not in terms call up ESD principles in relation to the impact of development on heritage places, there are linkages through the IDAS process which may result in a particular outcome being seen as consistent with the objects of both statutes.

Nature Conservation Act 1992 (NC Act)

The objective of the NC Act is "the conservation of nature"30. For this purpose "nature" includes all aspects of nature31. It goes on, without limiting the breadth of the definition, to include references to ecosystems, natural and physical resources and processes and the characteristics of places which contribute to their biological diversity and integrity or intrinsic or scientific value, consistently with the definition of "environment" in the SPA.

Section 5 of the Act describes how the object is to be achieved, including by dedication and declaration of protected areas and prescribing protected and prohibited wildlife. The NC Act contains no references to decision making under the SPA, nor any duty to actively seek to achieve the object of the NC Act in making decisions under the Act. The integration of the NC Act into IDAS has been achieved so far on a fauna-specific basis only in relation to the koala species, and identifies the referral jurisdiction as "the purposes of the Nature Conservation Act 1992", other than in respect of development in interim koala habitat protection areas where the referral jurisdiction is stated to be "the SEQ Koala State Planning Regulatory Provisions". Accordingly, in respect of koalas, the object of protecting them through the mechanisms provided for in the NC Act through declaring them as protected species and the adoption of management and conservation plans requires no consideration of other factors such as economic consequences. As a result, in the case of the NC Act, there is a convergence between its purpose and the ecological component of the definition of "ecological sustainability" under the SPA, but involves no concept of balancing with other factors. Further, the approach taken with respect to interim koala habitat protection areas and the SEQ Koala State Planning Regulatory Provisions is similarly weighted in favour of conservation to the exclusion of the other considerations.

Vegetation Management Act 1999 (VMA)

The purpose of the VMA is to regulate the clearing of vegetation in a way that conserves the different categories of remnant vegetation, conserves vegetation in declared areas, ensures clearing does not cause land degradation, prevents loss of biodiversity, maintains ecological processes, manages the environmental effects of clearing to achieve all of those outcomes and also reduces greenhouse gas emissions32. The purpose of the VMA is achieved mainly by providing for codes for the purposes of the SPA relating to clearing vegetation that are applicable codes for the assessment of vegetation clearing applications under IDAS, enforcement of controls on vegetation clearing, the provision of declared areas and having a framework for decision making that, in achieving the Act's purpose previously described, applies the precautionary principle33. The purpose section of the Act defines "environment" in the same way in which it is defined under the SPA34. The VMA provides that entities performing functions or powers under the Act must perform the function or exercise the power in way that advances the purpose of the Act35.

As is the case with the NC Act, the VMA is convergent only with the ecological limb of the definition of "ecological sustainability" under the SPA. There is no reasonable prospect of reconciling the purpose of the VMA with that of the SPA with the consequence that the duty to have regard to the SPA's purpose is a meaningless exercise.

Environmental Protection Act 1994 (EP Act)

The object of the EP Act is "to protect Queensland's environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development)"36. The objective of the EP Act is to be achieved by an integrated management program that is consistent with ecologically sustainable development37. The objects are to be achieved through a program divided into phases involving determining the state of the environment and defining environmental objectives, developing environmental strategies and then implementing those strategies and integrating them into efficient resource management. The latter phase is said to be achieved by integrating environmental values into land use planning and the management of natural resources38, in common with some of the other legislation discussed. The EP Act also contains a duty to perform a function or exercise a power under the Act in a way that best achieves the object of the Act39.

In the case of the EP Act, there is some synergy between its statutory purpose and the SPA's statutory purpose, such that in appropriate circumstances the EP Act can be discharged while having regard to the purpose of the SPA.

Wild Rivers Act 2005 (WR Act

The WR Act is perhaps the Queensland Government's most controversial environmental protection statute. The purpose of the WR Act is to "preserve the natural values of rivers that have all, or almost all, of their natural values intact40. The purpose is achieved by declaring wild rivers and setting up zoning systems for their catchments including high preservation areas, preservation areas, floodplain management areas and sub-artesian management areas41. The purpose of the WR Act does not reference ESD principles. The SPA re-introduced limited prohibition of development. Schedule 1 to the SPA contains an extensive list of prohibitions relating to various types of development in areas covered by wild rivers declarations.

Clearly the WR Act's purpose, in combination with the prohibitions in place under the SPA with respect to development in parts of declared areas, makes the duty to consider the SPA's purpose for the most part a fruitless exercise.

The WR Act is perhaps an extreme example of a statute within the SPA's legal framework which exhibits an overtly antidevelopment policy. It has been trenchantly criticised in a series of articles by the director of the Cape York Institute, Noel Pearson, as destructive of the land rights and economic independence of Cape York's indigenous land owners42.

Conclusions regarding related statutory instruments

The range of legislation and other statutory instruments affecting decisions under the SPA is extensive and continuing to expand. The selection above is merely intended to illustrate the considerable scope for either convergence with, or divergence from, the integrated balance sought under the SPA's statutory purpose. When one drills down into the relevant operative provisions of the legislation and statutory instruments, varying degrees of prescription and prohibition are revealed which are inconsistent with the concept of balance enshrined in the principles of ESD.

The conclusion to be drawn from this is that while the SPA, and its predecessor the IPA, intended that a balance be sought between environmental protection, economic development and social enhancement, when making planning instruments that strategy is easily fractured through the intervention of single purpose ecologically driven regulation. This has become most obvious in recent years in various codes, regulatory provisions and prohibitions under the SPA, which have effectively precluded any discretionary balancing exercise by decision makers43.

How has the statutory purpose been approached by the Courts?

The role of the statutory purpose in determining development applications has received some consideration by the Court, both for interpretation purposes and in connection with the duty of decision makers to apply it44. One author has downplayed its relevance. Phillipa England recently referenced Elliott v. Brisbane City Council45, as endorsing the argument that the statutory purpose would be ineffectual in raising the status of environmental protection under the Act, and went on to say that the objective of the IPA had seldom been relied upon in Court proceedings46. Alan Fogg argues that the greatest relevance that can be accorded to the statutory purpose and associated sections is of a list of considerations to which attention must be paid in an action or decision under the Act47.

In light of the SPA's, and before it the IPA's, specific identification of assessment criteria for development applications, it would be easy to conclude that the broad balancing exercise identified in the definition of "ecological sustainability", and in the statutory requirement to advance the Act's purpose, is not particularly relevant at a practical level. However, this approach fails to acknowledge the importance of the express language of the legislation. The obligation imposed on local governments when exercising functions or powers under the SPA, to do so in a way which advances the Act's purpose48, is unequivocal and clearly applies to impact assessable development, because of the express exclusion of its application to code assessable development49.

Apart from the Elliott case referred to earlier, the Courts have considered the statutory purpose in several cases under the IPA. There has also been consideration of the statutory purpose under the SPA50.

In Ridgehaven Retirement Village Pty Ltd v. Caloundra City Council & Ors51, His Honour Judge Robertson agreed that the part of the IPA's statutory purpose relating to the need for decision-making processes to be accountable and efficient was relevant to the Court's decision about an application to develop land which might be required for a rail corridor, but ultimately went on to decide the appeal against the developer appellant.

There have been numerous cases in which the Planning and Environment Court has referred to this aspect of the statutory purpose when exercising the power to excuse aspects of non-compliance with the requirements of the IPA52.

In Chesol Pty Ltd v. Logan City Council53, His Honour Judge Rackemann was considering an application for a development permit for material change of use and reconfiguration to facilitate development of a retirement village against the local government's transitional planning scheme. The case involved issues concerning flora and fauna, need and community benefit. The appellant contended that the proposal would advance the purpose of the IPA by, amongst other things, managing the process by which development occurs and managing the effects of development on the environment. The appellant submitted that the proposal was consistent with the purpose of the Act in that it would provide economic development of a kind which would assist in meeting the needs of the community and provide for its social wellbeing (without adverse affect on the wellbeing of people or communities otherwise) while, at the same time, protecting ecological processes54. His Honour accepted that submission. In the Judgment there is a reference to my earlier paper55 on this subject56. Relevantly His Honour said:

"In my view a consideration of ecological sustainability is not necessarily irrelevant to an assessment of an impact assessable application under a transitional planning scheme, at least for the purposes of considering whether there are "sufficient planning grounds" to warrant approval notwithstanding alleged conflict with a strategic plan or development control plan. That is particularly so where, as here, the strategic plan in the transitional planning scheme itself makes reference to the concept in the intent of the designation in question."
"The conclusion that the proposal is one of substantial overall merit, on a first principles basis, is not however, dependent upon the relevance of the Act's purpose. The conclusion is one which I would draw in this case even if the Act's purpose were put to one side.
I was also reminded, by counsel for the Respondent, that the Court is not the planning authority and should not usurp its role. That is accepted. I do not consider however, that assessing the merits of an individual proposal, including by reference to whether it advances the purpose of the Act is tantamount to usurping the role of the planning authority. I do not propose to attempt to re-write or ignore the planning documents, but the legislation requires the application to be assessed on its merits, which includes a consideration of whether there are sufficient planning grounds to warrant approval even where the proposal conflicts with the strategic plan."57

In Bruce v. Caloundra City Council58 His Honour Judge Alan Wilson SC decided an appeal involving an application for a development permit for material change of use and reconfiguration of lot under a transitional planning scheme. The case involved a number of factors including the weight to be given to a new planning scheme for the local government area which came into force a year after the development application was lodged. The transitional arrangements under the IPA applied to the determination of the application which called up the assessment criteria in various provisions of the repealed Local Government (Planning and Environment) Act 1990. The case involved alleged conflict with the planning documents. In referencing His Honour Judge Robin QC's decision in Mackay Conservation Group Inc. v. Mackay City Council59, that implementation clauses, as part of the strategic plan, are a function of the objectives therein and are to be read in context and sensibly, His Honour Judge Wilson SC observed:

"This approach aligns with the intention, promulgated within IPA, to direct planning in Queensland away from highly prescriptive forms towards performance based approaches and in ways that achieved the purposes of the legislation, in particular the achievement of ecologically sustainable development (ESD). The proper approach is, therefore, to assess the performance of the proposal against the objectives of the Strategic Plan, sensibly and in the context of the intent of the rural zone, with a view to advancing the purposes of the IPA."60

His Honour went on to say in deciding to approve the development:

"It is not inappropriate to describe this development as unusual and, indeed, exceptional. As a rural residential development is has, I am persuaded, significant advantages and benefits in terms of ecological, social and economic outcomes (the three, integrated, themes of ESD under IPA) that constitute relevant, favourable and strong planning grounds and justify its approval, notwithstanding it does, on its face, involve a degree of conflict with the superseded planning scheme, City Plan and SEQRP."
"That conclusion arises because, in summary, the conflict is of a kind that is primarily referable to planning scheme provisions encapsulating general, modern town planning principles restricting the spread of rural residential development. These principles, which touch on questions of efficiency, preservation of good quality agricultural land, and land fragmentation are reinforced in the various implementation clauses to the superseded plan, and acceptable solutions under City Plan and are important; but, the circumstances of this case are of a kind where the overall proposal does not prejudice them, or other outcomes contained within the superseded, and current planning instruments; and, there are unusual, but relevant and compelling grounds which overcome that perceived conflict."61

In Bullock & Ors v. Maroochy Shire Council & Anor62, His Honour Judge Griffin SC said in relation to the insertion of the following definition of "grounds" in relation to section 3.5.14 of the IPA, by the amendments of March 2006:

"1. Grounds means matters of public interest;

2. Grounds does not include the personal circumstances of an applicant, owner or interested party."63
"In my view the effect of this change has brought about a widening of the notion of what constitutes "grounds" and is no longer limited merely to "planning issues" but now has a wider reference to the purpose and objects of the IPA."64

Later in 2007, in Chuwar Recycling and Landfilling Pty Ltd v. Ipswich City Council & Ors65, His Honour Judge Rackemann referred to his earlier Judgment in Chesol Pty Ltd v. Logan City Council and in addressing ecological sustainability as a sufficient ground advanced by an appellant, His Honour said:

"The extent to which a proposal is consistent with the purpose of the Act in seeking to achieve ecological sustainability is a relevant consideration. Ecological sustainability is a balance which integrates protection of ecological processes and natural systems at local, regional, state and wider levels; economic development; and the maintenance of cultural, economic, physical and social well being of people and communities. It was submitted that the landfill was an "outstanding example" of this, because it would meet a community need and contribute to the community's social well being while protecting ecological processes and natural systems. For the reasons already discussed, I do not consider that a significant community need for the proposal has been demonstrated. I also do not consider that it has been demonstrated that the proposal would contribute in any significantly positive way, to the community's social well being. I do not consider that the proposal would significantly advance the purpose of the Act."

In this case, the relevance of ecological sustainability as a potential ground for approval of an application despite conflict with a planning scheme is reinforced, but the evidence led by the appellant was insufficient to engage the application of the principle to tip the balance in favour of approval of the development. Late in 2007, His Honour Senior Judge Skoien referred to the statutory purpose of the IPA in striking out a submitter's appeal which had been commenced outside the statutory timeframe66. His Honour said:

"A primary purpose of IPA, as stated in s. 1.2.1(b) is "managing the process by which development occurs, and s. 1.2.2 requires an entity (which includes this council, as an assessment manager) "to perform the function of exercise the power" [conferred on it] "in a way that advances this Act's purpose (s. 1.2.2(1)(a)). Then, s. 1.2.3(a) provides that advancing the Act's purpose includes:
"(a) ensuring decision making processes –
(i) are accountable, coordinated and efficient."
"That coordination and efficiency must surely include, when approving a development application, ensuring that statutory time limits are obeyed. It is clearly a matter of great importance to a successful applicant for development, whether the most wealthy or the most humble, to be assured as early as the IPA timetable provides that, for example, the time for submitter appeals is over and the approval is firmly in place. In this case Hamfam, as was its right, contracted after that time to sell the land with the benefit of the approval. Now that contract is under threat because of the institution of this appeal."67

More recently in Metroplex v. Brisbane City Council & Ors68, environmental impacts were one of a number of factors being weighed by the Court. One of the parties, who was particularly concerned about ecological impacts, drew the Court's attention to relevant parts of section 1.2.3 of the IPA which refer to advancing the Act's purpose by, amongst other things, ensuring the decision making processes take account of the short and long term environmental impacts of development and apply the precautionary principle. In response, His Honour Judge Rackemann said:

"'Ecological sustainability' however, is not concerned just with protecting ecological processes and natural systems. It is as much about economic development and the maintenance of cultural, economic, physical and social well being. The balance sought is one which integrates the three limbs of the definition.
In considering the extent to which the proposal advances ecological sustainability, it is appropriate to have regard not only to the particular site but to its context. Sometimes the promotion of ecological sustainability, at a broader level, requires a particular site or area to be entirely preserved from development for the protection of ecological processes, while another is given over to intense economic development."69

His Honour referenced his judgment in Chesol v. Logan City Council for this proposition. He went on to say that the relevant plan in consideration in Metroplex had been prepared under the IPA and sought to advance its purpose. He observed that the balancing of the three components of ecological sustainability, and the integration and coordination of the core matters, were said to be primarily reflected in the city wide desired environmental outcomes and supporting strategies of the strategic plan. After examining the relevant provisions of City Plan, His Honour went on to observe that when the plan is read as a whole, it was difficult to escape the conclusion that the subject site was intended primarily to be developed for industrial purposes, rather than being retained undeveloped for its ecological significance.

In Refaka Pty Ltd v. Scenic Rim Regional Council & Anor70, the statutory purpose of the IPA was raised in the context of an appeal against a Council's refusal to change the conditions of a development approval where the change substantially increased use of local roads as a haul route by the approved quarry. The statutory purpose was referred to in the context of the requirements of section 1.2.3(1)(f) that advancing the Act's purpose includes providing opportunities for community involvement in decision making, which would be denied if the changes proposed were allowed to proceed. The Court found the local impacts to be unacceptable and refused the appeal.

Conclusions regarding the Court's approach

This brief survey of decided cases demonstrates that the statutory purpose is being increasingly referred to in the Court and that, while not a decisive factor in itself, can be of assistance to the Court when balancing competing evidence for and against approval of development. It is now clear that where there is "sufficient grounds" evidence which the Court is prepared to accept, the weight given to that evidence will be enhanced where it aligns with the advancement of the statutory purpose. In other cases the statutory purpose may be called upon to reinforce a particular discretionary outcome, as occurred in Davies71 and Refaka72.

Overall conclusions

The common thread running through the international legal instruments concerning development and the environment is that the environment's prospects are better in nations with strong economies. Consequently the core principles of ESD which the Commonwealth, States and Territories have strongly embraced incorporate the requirement for balance between economic, social and environmental factors. Despite this, there is no cohesion in the application of this principle across the whole of government in Queensland, nor is there any meaningful way to effectively audit government decisions against the ESD principle.

A range of factors quite unrelated to ESD are affecting the regulation of development under the SPA in ways which potentially preclude ecologically sustainable outcomes. A development which would take a piece of degraded land, revegetate a significant portion of it with koala habitat trees, and sensitively develop the balance, can be prevented through regulations of the type mentioned in this paper. In truth, application of the principle of ESD in government decision making is quite elusive.

However, where development has not been absolutely precluded or rendered improbable through regulation of the kind described in this paper, the statutory purpose of the SPA can have some meaningful work to do. This is especially so where detailed ground-truthing establishes that there will be environmental, economic and social benefits delivered by a particular form of development, which the planning scheme has not necessarily contemplated. The judicial decisions surveyed in this paper show that where the Court accepts that the evidence shows such benefits will be delivered, it is also probable that the Court will find that the approval will advance the SPA's statutory purpose. This would tend, in my respectful view, to add weight to the grounds for approval of a development application despite conflict with the planning instruments.

27 Queensland Heritage Act 1992 section 2

28 ibid section 2(2)(d)

29 ibid section 2(3)

30 NC Act section 4

31 NC Act section 8(1)

32 VMA section 3(1)

33 VMA section 3(2)

34 VMA section 3(3)

35 VMA section 4

36 EP Act section 3

37 EP Act section 4

38 EP Act section 4

39 EP Act section 5

40 WR Act section 3(1)

41 WR Act section 3(2)

42 Articles published in Weekend Australian and reproduced at

43 Such as SEQRP Regulatory Provisions, NC Act, VMA, and WR Act

44 IPA section 1.2.2; SPA section 4

45 op cit

46 See "From Revolution to Evolution: Two Decades of Planning in Queensland" by Phillipa England (2010) 27 EPLJ 53 at 61.

47 Fogg et al, "Planning and Development Queensland" at [1185]

48 SPA section 4(1)(a)

49 SPA section 4(2)

50 Coles v. Sunshine Coast Regional Council [2010] QPEC 4

51 [2004] QPELR 439 at [58]

52 See for example Advance Property Planners Pty Ltd v. Brisbane City Council [2005] QPELR 113; Jewry v. Maroochy Shire Council [2005] QPELR 655; Nimmo v. Land One Solutions Pty Ltd [2006] QPELR 645; and Lachlan Reit Ltd v. Beaudesert Shire Council [2008] QPELR 493

53 [2007] QPEC 001

54 [2007] QPEC 001 at [89]

55 Referenced at footnote 6

56 [2007] QPEC 001 at [95] and in the footnote to paragraph [98]

57 [2007] QPEC 001 at [96] – [98]

58 [2007] QPEC 046

59 [2006] QPELR 209

60 op cit at paragraph [29]

61 op cit at paragraph [46]

62 [2007] QPEC 089

63 IPA Schedule 10

64 [2007] QPEC 089 at [35]

65 [2007] QPEC 102

66 Davies v. Caloundra City Council & Ors [2007] QPEC 114

67 op cit at paragraph [15]

68 [2009] QPEC 110

69 op cit at paragraph [161] and [162]

70 [2009] QPEC 139

71 [2007] QPEC 114

72 [2009] QPEC 139

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