Australia: Koala Protection in South East Queensland: The Finalised Response Package

Planning and Development
Last Updated: 23 June 2010

By Sarah Persijn (Senior Associate) and Rachael Black (Solicitor)

1. The Minister for Environment recently released the final koala conservation measures for South East Queensland, namely the State Planning Policy 2/10: Koala Conservation in South East Queensland (SPP) and the South East Queensland Koala Conservation State Planning Regulatory Provisions 2010 (Regulatory Provisions). Collectively, these two new State Planning Instruments comprise the State planning instruments that are intended to balance the protection of koala habitat against urban development in South East Queensland.

2. Although the new State Planning Regulatory Provisions (which came into effect on 31 May 2010) prohibit development in some koala habitat areas, they do provide some flexibility and allow development in other koala habitat areas, provided assessment criteria is satisfied.

3. The new State Planning Instruments are of particular importance to developers and landowners within affected local government areas who have existing applications and approvals in place, and for those who intend to make new applications to develop their land in the future.

A general introduction to the new State Planning Instruments

4. The SPP is a statutory instrument under Section 41 of the Sustainable Planning Act 2009 (Qld) which applies to the local government areas of the Sunshine Coast, Moreton Bay, Brisbane, Ipswich, Logan, Redland and Gold Coast -known as the South East Queensland Koala Protection Area.

5. These local governments will be required to comply with and reflect the terms of the SPP when amending existing planning schemes or drafting new local planning instruments and structure plans. In time, it is anticipated that the planning schemes for these local governments will reflect the SPP and will ensure that planning processes within the koala protection area take koala habitat conservation into account in the manner intended by the SPP. In other words, the goals of the SPP, which include the maintenance of koala numbers and conservation of koala habitat, will be mirrored in future planning schemes.

6. The Regulatory Provisions complement the SPP by providing the development assessment requirements for defined areas within the designated South East Queensland Koala Protection Area. The Regulatory Provisions apply to areas where koala populations are said to be under immediate threat - specifically 'priority koala assessable development areas' and 'koala assessable development areas'. The priority koala assessable areas are generally coincident with the Redland City, and former Pine Rivers Shire, local government areas. A copy of the Map of Assessable Development Areas is shown at Annexure A.

7. The Regulatory Provisions apply in addition to the relevant matters applying under the planning schemes of the relevant local governments and are now in effect for the purposes of development assessment.

The role of State Planning Regulatory Provisions and State Planning Policies under the Sustainable Planning Act

8. The Sustainable Planning Act establishes a formal hierarchy of State planning instruments under Chapter 2, which is replicated below:

  1. State Planning Regulatory Provisions;
  2. Regional Plans;
  3. SPPs;
  4. Temporary SPPs; and
  5. Standard Planning Scheme Provisions.

State Planning Regulatory Provisions

9. A State Planning Regulatory Provision (SPRP) is a statutory instrument and has the force of law.2 It is taken to be a State interest for the Sustainable Planning Act.3 A SPRP is the most powerful of all planning instruments:

  1. Where there is an inconsistency between a SPRP and another planning instrument, or any plan, policy or code under an Act, the SPRP prevails to the extent of the inconsistency; and
  2. A SPRP may suspend or otherwise affect the operation of another planning instrument, although it does not amend the planning instrument.

10. Additionally, SPRPs have the following role in development assessment:

  1. Referral agencies must assess an application, to the extent relevant and within the limits of its jurisdiction:
    1. against each SPRP applied by the referral agency; and
    2. having regard to each SPRP not applied by the referral agency.
  2. Assessment managers must, regardless of whether the application requires code or impact assessment,assess an application, to the extent relevant, against SPRPs.
  3. In deciding an application, the assessment manager's decision must not be inconsistent with a SPRP.
  4. Also in deciding an application, the assessment manager's decision must not conflict with a 'relevant instrument' (eg a planning scheme) unless the conflict is necessary to ensure the decision complies with a SPRP.

State Planning Policies

11. SPPs are also high-ranking planning instrument, trumped only by State Planning Regulatory Provisions and Regional Plans.

12. Under Section 41 of the Sustainable Planning Act, SPPs are statutory instruments that have the force of law. Section 43 further provides that, if there is an inconsistency between an SPP and a local planning instrument, the SPP prevails to the extent of the inconsistency. SPPs are therefore one of a suite of pre-eminent State planning instruments which prevail over local planning instruments, including planning schemes, where there is inconsistency.

13. SPPs have the following role in assessing and deciding development applications:

  1. Under Section 282, each referral agency must, to the extent relevant to the development and within the limits of its jurisdiction, assess the application against SPPs applied by the referral agency to the extent those policies are not identified in a relevant regional plan or in a planning scheme as being appropriately reflected. Further, Subsection (2) requires each referral agency to have regard to SPPs that are not applied by the referral agency to the extent those policies are not appropriately reflected in a relevant regional plan or planning scheme.
  2. In terms of the assessment manager's assessment and decision, for both code and impact assessment, the assessment manager is required to assess the application against SPPs to the extent the policies are not appropriately reflected in a relevant regional plan or planning scheme.
  3. Under the decision rules for development applications in Section 326, an assessment manager's decision must not conflict with a relevant instrument (which is defined to include a matter or thing mentioned in Section 313(2) or Section 314(2), which both include SPPs against which code assessment or impact assessment is carried out), unless one of the 'departure rules' is available. The 'departure rules' include sufficient grounds to justify the decision despite the conflict and where a conflict arises because of a conflict between two or more relevant instruments, for instance between two SPPs, and the decision best achieves the purposes of the instruments.

Previous koala conservation measures

14. On 26 February 2010, the State Government made the South East Queensland Koala State Planning Regulatory Provisions (February 2010 Provisions) which replaced the draft South East Queensland Koala State Planning Regulatory Provisions (Draft Provisions), which had taken effect on 2 November 2009. The February 2010 Provisions were a 'moratorium measure' to protect koala habitat in the interim until the State Government finalised its overall response. The aim of the February 2010 Provisions was to prevent 'pre-emptive clearing' by imposing a blanket prohibition against clearing koala habitat. These Provisions remained in effect until 31 May 2010, when the new State Planning Instruments came into effect. The new State Planning Instruments represent the State Government's final and comprehensive koala conservation measures.

15. The superseded koala conservation measures continue to apply to applications made before 31 May 2010.

New State Planning Instruments

Division 1: When the Regulatory Provisions do not apply

16. Our previous paper Koalas: The Current State of Play (March 2010) focused on the exemption provisions in the State's previous koala conservation measures. We expressed concern as to the whether further applications for approvals needed to facilitate approved projects would be captured by the requirements of the February 2010 Provisions. We believed that the February 2010 Provisions attempted to rectify the deficiencies identified in the former draft Provisions.

17. The exemptions under the new Regulatory Provisions are quite different to the February 2010 Provisions. Oddly, the exemptions under Section 1.4 changed between the version of the Regulatory Provisions released at around the time of the Minister's announcement on 15 May 2010, and the version which took effect on 31 May 2010. The version released on 15 May 2010 contained exemptions which were fairly similar to those under the February 2010 provisions.

18. Under Section 1.4, the new Regulatory Provisions do not apply to the following:

  1. The assessment of a development application that was properly made before the day the Regulatory Provisions commenced;
  2. Development that is self assessable or requires compliance assessment;
  3. Development to which Section 857 of the Sustainable Planning Act applies - a transitional provision for Development Control Plans under the repealed Local Government (Planning and Environment) Act 1990;
  4. Development that is a significant project, or in a State Development Area, under the State Development and Public Works Organisation Act 1971; or
  5. Development for community infrastructure that is conducted by, on behalf of, the State of Queensland or a State Government public sector entity.

19. In particular, the following specific exemptions appear to have been removed:

  1. For development carried out under a development permit that has not lapsed for a development application that was properly made before the day the Regulatory Provisions commenced; and
  2. Old 'saved' rezoning approvals given under either the Local Government (Planning and Environment) Act 1990 or the Local Government Act 1936 (ie rezoning approvals preserved under either a planning scheme or by way of superseded planning scheme 'approval').

20. The February 2010 Provisions also did not apply to a development application made for development that was 'consistent with' development in respect of which another exemption was available (eg development carried out under a development approval that had not lapsed for a development application properly made before the commencement of the February 2010 Provisions). We contended in Koalas: The Current State of Play that this provision more extensively protected rights accrued before the commencement of the Provisions, in that it appeared to extend an exemption where further development permits were needed to facilitate development contemplated under a protected development approval. We note that this exemption provision has not been included in the new Regulatory Provisions. Rather, it appears that the Regulatory Provisions attempt to cater for further development applications required to facilitate existing development approvals under the 'committed development' regime.

Division 2: Committed development in the assessable development area

21. The Regulatory Provisions specify a set of assessment criteria that must be complied with when making a development application for development that is a material change of use (MCU), reconfiguring a lot (ROL), or operational work for committed development in any koala habitat type in the assessable development area, where the development is not mentioned in Table 2, Column 1.

22. To assist in understanding the above assessment category, the following definitions are included in Schedule 4 of the Regulatory Provisions:

  1. Committed developmentmeans development that is:
    1. the subject of a preliminary approval; and
    2. operational work associated with a development approval for MCU or ROL approval.
  2. Koala habitat type means bushland habitat, rehabilitation habitat or other area of habitat value, other than an area where koalas are generally not present. Each 'habitat type' is also ascribed a range of values - high,medium or low.
  3. Assessable development area refers to the areas shown as either koala assessable development or priority koala assessable development on the Map of Assessable Development Area.

23. By virtue of the definition provided for committed development, if a development application is made, seeking approval for development that is:

  1. the subject of a preliminary approval; or
  2. operational work associated with an existing development approval for MCU or ROL; and
  3. the land is mapped in a koala assessable development area or a priority koala assessable development area;

the development must comply with the following assessment criteria:

  1. Wherever practicable within the scope of the relevant approval, the site design must provide safe koala movement opportunities.
  2. Clearing of native vegetation must be undertaken sequentially and under the guidance of a koala spotter where the native vegetation is non-juvenile koala habitat trees.
  3. During construction, measures must be incorporated to:
    1. (1) 'not increase' the risk of death or injuring the koalas; and
    2. (2) ensure native vegetation intended to be retained for safe koala movement opportunities is progressively restored and rehabilitated.

24. The above assessment criteria will not apply if the development relates to the following:

  1. Development for a domestic activity (such as the construction of a single residence on a lot and any reasonably associated building or structure).
  2. Development of a premises that will not result in:
    1. clearing of more than 500m2 of native vegetation;
    2. a new building or extension and any reasonably associated infrastructure that will result in a total development footprint of more than 500m2;
    3. extracting more than 5,000m2 of gravel, rock or sand; or
    4. excavation or filling of more than 5,000m2
  3. ROL that will not result in the creation of an additional lot (Column 1 Exemptions).

25. The 'committed development' provisions appear to be drafted broadly enough to provide a level of protection in circumstances where further applications for approvals are required to facilitate a project approved before the introduction of the Regulatory Provisions or in respect of an application made before the introduction of the Regulatory Provisions which is subsequently approved. For example, where a preliminary approval for master planned development has been granted before the Regulatory Provisions, the effect of Division 2 is that subsequent applications for MCU, ROL or operational work needed to facilitate that development need only comply with the requirements of Column 2, Table 2.

26. What is unclear, however, is why the specific exemption in Section 1.4 protecting the underlying development approval (given in respect of an application properly made before the commencement of the Regulatory Provisions) has been removed. This seems problematic in the context of the provisions relating to the Priority Koala Assessable Development Area.

Division 3: Development in an identified koala broad-hectare area

27. Division 3 applies to a development application for development that is a MCU, ROL or operational work in any koala habitat type in an identified koala broad-hectare area not mentioned in Table 3, Column 1. Development to which Division 3 applies must comply with the assessment criteria in Table 3, Column 2.

28. Koala habitat type means:

  1. Bushland habitat (including high, medium and low value bushland habitat);
  2. Rehabilitation habitat (including high, medium and low value rehabilitation habitat); or
  3. Other area of habitat value (including high, medium and low value other area of habitat value); or
  4. Other than an area where koalas are generally not present.

29. 'Area where koalas are generally not present' is further defined to mean an area:

  1. that is mapped as an area that is generally not suitable; or that
  2. has a land cover composition that is dominated by bare and impervious surfaces; and
  3. is unsuitable for maintaining koala populations due to the alienation of any suitable koala habitat and high level of threats within a hostile matrix; and
  4. generally does not have any koalas present at the scale of tens of thousands of hectares.

30. Identified koala broad-hectare area is defined in Schedule 4 to mean any of the following:

  1. An area listed in Schedule 3 for which an approved land use plan has taken effect;
  2. An area designated as such by the planning Minister in a gazette notice in accordance with Division 8; or
  3. An area for which a structure plan has taken effect under Section 148 of the Sustainable Planning Act orSection 2.5B.12 of the repealed Integrated Planning Act 1997.

31. The following local councils have been identified in Schedule 3:

  1. Oxley Wedge, Brisbane City Council;
  2. Rochedale, Brisbane City Council;
  3. Coomera, Gold Coast City Council;
  4. Ripley Valley, Ipswich City Council;
  5. Kinross Road, Redland City Council;
  6. South East Thornlands, Redland City Council; and
  7. Palmview, Sunshine Coast Regional Council.

32. By virtue of the definition, an area listed in Schedule 3 will not qualify as an identified koala broad-hectare area until an approved land use plan has taken effect. Similarly, declared master planned areas will not qualify until a structure plan has taken effect.

33. Accordingly, if a development application is made, seeking approval for a MCU, ROL or operational work relating to land that is mapped as koala habitat area and the land is within an identified koala broad hectare area, then the development must comply with the assessment criteria listed in Table 3, Column 2.

34. The assessment criteria in Table 3, Column 2 are as follows:

  1. The site design must provide for safe koala movement opportunities as appropriate to the development type and habitat connectivity values (determined by reference to Schedule 2).
  2. Any clearing of native vegetation that is non-juvenile koala habitat trees must be undertaken sequentially and under the guidance of a koala spotter.
  3. During construction:
    1. measures must be incorporated into construction practices to not increase the risk of death or injury to koalas; and
    2. any native vegetation that is cleared and in an area intended to be retained for safe koala movement opportunities must be progressively restored and rehabilitated.
    3. Landscaping activities must provide food, shelter and movement opportunities for koalas consistent with the site design.

35. Importantly, the above assessment criteria will not apply if the development application is for development mentioned in the Column 1 Exemptions described at paragraph 24 above.

Division 6: Development in a Priority Koala Assessable Development Area (PKADA)

36. Division 6 applies to development that is a MCU, ROL or operational work in any koala habitat type within a PKADA not mentioned in Table 6, Column 1. The Division is stated to apply to development, whereas other Divisions apply to development applications. This is because Division 6 prohibits certain development, with the consequence that a development application may not be made.

Prohibited development

37. The Regulatory Provisions prohibit development in any koala habitat type within a PKADA that is a MCU to the extent that it is:

  1. for an urban activity, other than rural residential development; and
  2. in an area specified under a local planning instrument as having an open space, conservation, rural or rural residential purpose.

38. Pursuant to Schedule 4 of the Regulatory Provisions, 'urban activity' is given the meaning provided in the South East Queensland Regional Plan 2009 - 2031 State Planning Regulatory Provisions (SEQRP). The SEQRP defines 'urban activity' to mean a residential, industrial, retail, or commercial activity.

39. Accordingly, if land is located within a PKADA, a MCU for residential, industrial, retail, or commercial activity (other than for rural residential development) in any koala habitat type is prohibited if the land is also designated as open space, conservation, rural or rural residential under the local planning scheme.

40. We have a concern that because of the change to the 'exemption' provisions in Section 1.4, development may be captured by the prohibition in Section 6.2, even where it is the subject of a development approval that has not lapsed for which the development application was properly made before the commencement of the SPRP. This concern arises because the specific exemption protecting development carried out under a development approval that has not lapsed for a development application that was properly made before the day the SPRP commenced has been removed. Oddly, this could give rise to a situation where the 'committed development' Division applies to protect subsequent applications, but the underlying approval is left without protection. In our view, the specific exemption must be reinstated in Section 1.4.

Development application for development to which Division 6 applies

41. It is important to note that not all development within a PKADA is prohibited. Development that is a MCU, ROL or operational work in a PKADA and which is not captured by the prohibition pertaining to urban activities, must comply with restrictive assessment criteria listed in Table 6, Column 2.

42. The assessment criteria are as follows:

  1. The site design must not result in clearing non-juvenile koala habitat trees in areas of bushland habitat.
  2. The site design must avoid clearing non-juvenile koala habitat trees in areas of high value rehabilitation habitat and of medium value rehabilitation habitat. Further, any 'unavoidable clearing' must be minimized and offset in accordance with the Offsets for Net Gain of Koala Habitat in South East Queensland Policy at a ratio of five new koala habitat trees for every non-juvenile koala habitat tree that is cleared, or an equivalent cash contribution.
  3. The site design must provide for safe koala movement opportunities as appropriate to the development type and habitat connectivity values (determined through Schedule 2).
  4. During construction:

    1. measures must be taken in construction practices to not increase the risk of death or injury to koalas; and
    2. native vegetation that is cleared and in an area intended to be retained for safe koala movement opportunities must be progressively restored and rehabilitated.
    3. Landscaping activities must provide food, shelter and movement opportunities for koalas that is consistent with the site design.

43. Importantly, the assessment criteria will not apply if the development application is for development mentioned in the Column 1 Exemptions discussed at paragraph 24 above.

44. Divisions 4, 5 and 7 contain specific provisions for the following:

  1. Division 4: Development for linear infrastructure and community infrastructure in the assessable development area
  2. Division 5: Development for extractive industry in the assessable development area
  3. Division 7: Development in a Koala Assessable Development Area (KADA)

Our summary of these Divisions can be found at Annexure B.

Division 9: Assessment of koala habitat type

45. Division 9 provides a mechanism for the determination of koala habitat types for certain land.

46. Section 9.1(1) provides that:

As part of a development application to which divisions 4 to 7 apply, an applicant may request the assessment manager to make a determination that land, which is part of that development application, is of a different koala habitat type than the koala habitat type shown for the land on the Map of Assessable Development Area Koala Habitat Values.

47. The applicant is required to provide sufficient information with the development application, and (if requested), as part of the response to any information request, to allow the assessment manage to make the determination.

48. The assessment manager may, as part of its decision on the development application, make a determination that any part of the land is:

  1. of a different koala habitat type to that shown on the map; or
  2. in an area where koalas are generally not present.

49. We would make the following observations about Division 9:

Determination is discretionary

50. Section 9.1(4) states that the assessment manager 'may determine' that the land subject to the development application has been incorrectly mapped. Accordingly, the assessment manager is entitled to decline to make the requested determination. If the assessment manager fails to make a determination, this would flow into and inform the overall decision on the merits of the development application.

Determination not available to prohibited development under Division 6

51. As discussed above, development in any koala habitat type within a PKADA that is a MCU to the extent that:

  1. it is for an urban activity, other than rural residential development; and
  2. is in an area specified under a local planning instrument as having an open space, conservation, rural or rural residential purpose; is prohibited and a development application can not be made.

52. Landowners who are affected by the prohibited development provision in Division 6 are denied an opportunity to make a request for a determination under Division 9 because they are unable to make a development application. A request for a determination may only be made as part of a development application.

53. Arguably, it is the landowners affected by the prohibited development provision in Division 6 who are prejudiced the most by reason of their land being mapped within a PKADA. It seems unfair that they are unable to make a request to challenge the accuracy of the mapping. They should be given the ability to make a request to the Department of Resource Management to challenge the koala habitat type shown on the mapping, and the Department's decision should be capable of being reviewed by the Court. Is there a right to appeal a Division 9 decision?

54. Pursuant to Division 9, a request for a determination in respect of mapping is part of a development application. Any determination by the assessment manager, as part of its decision on the development application, that the mapping is incorrect or that the land the subject of the request is an area where koalas are generally not present, will:

  1. be treated as part of the application for the purpose of any request for information as sufficient information about the request for determination, and must be provided as part of the response to any information request (if such information is requested); and
  2. affect how the Regulatory Provisions are to be applied to the development application, as the determination is determinative of the koala habitat type for the purposes of Divisions 4 - 7, and the application of the relevant Division is taken to be a condition of the development approval.

55. If a Division 9 determination is not made, or if it is determined that the land is not of a different koala habitat, that determination (or failure to make a determination) forms an integral part of the decision on the merits of the development application. If the development application is ultimately refused by reason of the Division 9 determination or failure to make the determination, the assessment manager's determination (or failure to make a determination) can be appealed with the refusal of the development application under Section 461(1)(a) of the Sustainable Planning Act.

56. Further, an assessment manager's determination would also be appealable under Section 461(1)(b) of the Sustainable Planning Act on the basis that determination as to the koala habitat type of the land the subject of the approval is taken to be a condition of the approval.

57. Pursuant to Section 496 of the Sustainable Planning Act, the Court has the power to change the decision appealed against. This would include the power to change the part of the decision in relation to any determination that the land is not of a different koala habitat type than what is mapped, and to impose a condition on the approval to that effect.

Reflecting the mapping in a planning scheme or amendment

58. As previously discussed, the Regulatory and SPP maps will eventually be reflected in the amended or new planning schemes of local governments.

59. One would anticipate that, where the regulatory mapping has been successfully challenged using the Division 9 process, the new determination about koala habitat type for the particular land would be incorporated in any new planning scheme or amendment, in lieu of the regulatory mapping. On that basis, to the extent a landowner or proponent is affected by the regulatory mapping and considers it to be inaccurate, it would be advisable to take advantage of the Division 9 process as part of a development application in advance of the local government taking steps to amend its planning scheme, or make a new planning scheme, reflecting the Regulatory Provisions and the SPP.

60. However, one significant problem with this approach is that the determination under Division 9 does not operate to amend the regulatory mapping. Even where the mapping is demonstrated to be incorrect, it will not be amended as a consequence of the Division 9 process, with the result that if a planning scheme purports to incorporate mapping which is different to the regulatory mapping, it is arguably inconsistent with the Regulatory Provisions which prevail in those circumstances. Such an outcome seems illogical and serves to undermine the Division 9 process.

61. In our view, the Regulatory Provisions must be amended to either provide for the regulatory mapping to be changed where it is successfully challenged using Division 9, or to permit a planning scheme to incorporate different mapping where ground truthing demonstrates that the regulatory mapping is inaccurate.

62. In terms of land affected by the SPP mapping, but not the regulatory mapping, there is no formal process for challenging the mapping as it relates to particular land. Affected proponents and landowners would be advised to have the mapping reviewed and, if necessary, ground truthed by an appropriate consultant with a view to making a submission to local government in the course of preparation of an amendment or new planning scheme.

Use of SPP in development assessment

63. Under the Integrated Planning Act, conflict with an SPP did not mandate an assessment manager to refuse a development application. SPPs were one of a suite of planning instruments to be taken into account in the assessment process. Under the Integrated Planning Act, a conflict with a planning scheme could even be justified on the basis that the conflict was necessary to further the purpose of an SPP which had not yet been reflected in the planning scheme.

64. The use of SPPs has evolved under the Sustainable Planning Act, with SPPs now playing a more direct role in the development assessment and decision framework, in particular through the 'conflict' test.

65. The new role of SPPs has the potential to cause difficulties in terms of assessing conflicts between a development application and a SPP in circumstances where the local government has not yet amended its planning scheme to reflect the SPP. Our concern is that this particular SPP may be afforded too much 'force' in the assessment and decision process, having regard to its character and nature. SPPs are, by their nature, strategic higher order policies which operate on a State or region wide basis, yet trump local planning instruments which, by their nature, embody specific planning intents of a local government and operate in a relatively confined area. Often, SPPs are not designed and were not drafted for 'application by application' assessment, and indeed this seems to be the case with the Koala Conservation SPP.

66. Pursuant to Section 2.6 of the SPP, the SPP applies to the following, to the extent they relate to land in the South East Queensland Koala Protection Area:

  1. making or amending a local planning instrument or structure plan; and
  2. designating land for community infrastructure.

67. The intended policy outcomes are achieved through local planning instruments and structure plans. Section 3.3 of the SPP provides that:

A local planning instrument, structure plan or an amendments to a planning scheme made under the SPA must include planning strategies and measures aimed at minimising the impacts of new development on koalas and koala habitat.

68. A local planning instrument, structure plan or an amendment will be taken to reflect the objectives of the policy if it addresses a matter mentioned in Section 3.5. For example:

  1. koala habitat values with the planning scheme area or declared master planned area are identified using the SEQ Koala Habitat Values Map in Schedule 1; and
  2. significant areas of koala habitat value are protected and habitat connectivity is retained and enhanced to maintain koala population validity; and
  3. koala safety and movement are maximised through design and layout of development; and
  4. a net gain in bushland habitat is achieved through the use of environmental offsets and other mechanisms.

69. Although the SPP has not been drafted for use in development assessment (which is clear from Section 2.6, which expressly states that it applies to making or amending planning schemes for designating land for community infrastructure), the Sustainable Planning Act's decision test calls on an assessment manger to consider whether there is conflict between the SPP and a particular development application.

70. The high-ranking position of the SPP within the planning instrument hierarchy will likely give rise to disputes in the future regarding matters of conflict and inconsistency. There is the potential for local government and other stakeholders to contend for a strict approach in assessing conflict with the SPP in the case of a site specific development application. For example, what would be the position if, before the amendment of a planning scheme, a development site is located within 'high value bushland habitat' under the SPP, but is not caught within the assessable development area under the SPRP? Would a decision to approve an application which contemplates some clearing of the 'high value bushland habitat' be in conflict with the SPP?

71. On one hand, the issue of conflict does not even arise, because the SPP clearly envisages that it is a tool only to be used in making or amending local planning instruments. At the other end of the spectrum is an argument that a decision to approve in the circumstances would give rise to conflict with the SPP, so that the application ought to be refused unless one of the 'departure rules', such as sufficient grounds, is available.

72. At this stage, it is unclear whether the construction of the SPP and the identification of conflict will be approached in the same way as planning schemes were approached under the Integrated Planning Act. One would hope that the construction of the SPP and the identification of conflict will be based on construing the overall SPP as a whole, and taking a practical, commonsense approach, rather than focusing on particular individual phrases in applying a test of conflict with the SPP.

73. The mapping of the land as 'high value bushland habitat' per se in our view does not give rise to conflict. In our view, what ought to be considered in an attempt to assess whether the application conflicts with the SPP is the broader outcomes sought by the SPP.

Conclusion

74. The Regulatory Provisions attempt to balance the competing interests of koala conservation and development in South East Queensland by assessing development against different levels of assessment criteria according to the particular area and activity, or by prohibiting development that is a MCU for urban activity in areas that are designated under the local planning scheme as open space, conservation, rural or rural residential in Priority

Koala Assessable Development Areas.

75. We would argue that the blanket exemption that was removed from the new Regulatory Provisions exempting development carried out under a development permit that has not lapsed for a development application that was properly made before the day the Regulatory Provisions commenced ought to be reinstated.

76. We are also of the opinion that the mechanism to challenge the mapping under Division 9 should be amended to allow landowners affected by the prohibited development provisions under Division 6 to make a request for a determination that the land is of a different koala habitat type than what is shown on the map. Further, where a determination is made that the mapping is not accurate, the Regulatory Provisions should provide for the mapping to be amended.

Annexure A

An interactive map can be found here on the Queensland Government Environment and Resource Management site: http://www.derm.qld.gov.au/wildlife-ecosystems/wildlife/koalas/koala_crisis_response_strategy/sprp-trigger.html

Annexure B

Division 4: Development for linear infrastructure and community infrastructure in the assessable development area

77. Division 4 applies to a development application for MCU, ROL or operational work for linear infrastructure or community infrastructure in a koala habitat type in the assessable development area, not mentioned in Table 4, Column 1.

78. Linear infrastructure is defined in Schedule 4 to mean infrastructure that is linear by nature, a road, rail line, electricity distribution or transmission line, or pipeline. Community infrastructure is not defined in the Regulatory Provisions.

79. Development to which Division 4 applies must comply with the assessment criteria listed in Table 4, Column 2.

Column 2 lists five assessment criteria for assessable development which can be described broadly as:

  1. Avoidance of clearing non-juvenile koala trees with any unavoidable clearance to be offset in accordance with the Offsets Policy at a ratio of five to one;
  2. Site design must provide for safe koala movement opportunities;
  3. Clearing of native vegetation must be undertaken sequentially and under the guidance of a koala spotter;
  4. During construction:
    1. measures must be taken to not increase death or injury; and
    2. native vegetation intended to be retained for safe koala movement must be progressively restored and rehabilitated; and
    3. Landscaping activities must provide food, shelter and movement opportunities.

80. Importantly, the above assessment criteria will not apply if the development application is for development mentioned in the Column 1 Exemptions as described at paragraph 24 above.

Division 5: Development for extractive industry in the assessable development area

81. Division 5 applies to a development application for development that is MCU, ROL or operational work for extractive industry in a koala habitat type within the assessable development area, not mentioned in Table 5, Column 1.

82. The definition for extractive industry in Schedule 4 refers to Section 10(1) of the State Planning Policy 2/07 Protection of Extractive Resources.

83. Section 10(1) defines extractive resources as:

"[T]he extraction and processing of extractive resources and associated activities, including their transportation to markets."

84. Section 10(1) defines extractive resources as:

"[N]atural deposits of sand, gravel, quarry rock, clay, and soil extracted from the earth's crust and processed for use in construction. The products processed from extractive resources are sometimes termed extractive materials or constructive aggregates. Extractive resources do not include minerals under the Mineral Resources Act 1989 such as ores, coal, clay for ceramic purposes, foundry sand, limestone and silicia sand mined and used for their chemical properties, and rock mined in block or slab form for building or monumental purposes."

85. Development to which Division 5 applies must comply with the assessment criteria listed in Table 5, Column 2. Column 2 sets out comprehensive criteria for extractive industry within the assessable development area.

86. The assessment criteria for development to which Division 5 applies include (in summary):

  1. Site design must restrict clearing koala habitat trees to the extent that it is necessary for dredging, extracting, screening, washing, grinding, milling, sizing or separating material, or work that is the natural and ordinary consequence of extractive work.
  2. Site design must avoid clearing non-juvenile koala habitat trees, with any unavoidable clearance to be offset in accordance with the Offsets Policy at a ratio of five to one.
  3. Site design must provide for safe koala movement opportunities.
  4. During construction:
    1. measures must be taken to not increase death or injury; and
    2. native vegetation intended to be retained for safe koala movement must be progressively restored and rehabilitated.
  5. Clearing native vegetation must be undertaken sequentially and under the guidance of a koala spotter.
  6. Native vegetation must be progressively restored and rehabilitated once extractive operations have ceased on that part of the premises.
  7. Landscaping activities must provide food, shelter and movement opportunities.
  8. Operational activities must be staged in line with operational need.

87. Importantly, the above assessment criteria will not apply if the development application is for development mentioned in the Column 1 Exemptions as described at paragraph 24 above.

Division 7: Development in a Koala Assessable Development Area (KADA)

88. Division 7 applies to a development application for development that is a MCU, ROL or operational work in any koala habitat type in any koala assessable development area, not mentioned in Table 7, Column 1.

89. If a development application for MCU, ROL or operation work is made in relation to land in a KADA, the development must comply with the assessment criteria in Table 7, Column 2:

  1. To the extent the land is outside the urban footprint and is not in an urban area under a development planning scheme, the site design must not result in clearing non-juvenile koala habitat trees in areas of bushland habitat.
  2. To the extent the land is located within the urban footprint, the site design must avoid clearing non-juvenile koala habitat trees in areas of bushland habitat, with any unavoidable clearing minimised and offset inaccordance with the Offsets for Net Gain of Koala Habitat in South East Queensland Policy at a ratio of five new koala habitat trees for every one non-juvenile koala habitat tree removed or an equivalent cash contribution.
  3. The site design must avoid clearing non-juvenile koala habitat trees in areas of high value rehabilitation habitat, and medium value rehabilitation habitat, with any unavoidable clearing minimised and offset in accordance with the Offsets for Net Gain of Koala Habitat in South East Queensland Policy at a ratio of five new koala habitat trees for every one non-juvenile koala habitat tree removed or an equivalent cash contribution.
  4. The site design must provide for safe koala movement opportunities as appropriate to the development type and habitat connectivity values (determined by reference to Schedule 2).
  5. During construction:
    1. measures must be taken in construction practices to not increase the risk of death or injury to koalas; and
    2. any native vegetation that is cleared and in an area intended to be retained for safe koala movement opportunities must be progressively restored and rehabilitated.
  6. Any clearing of native vegetation must be undertaken sequentially and under the guidance of a koala spotter where the native vegetation consists of non-juvenile koala habitat trees. A koala spotted is defined in Schedule 4 to mean a person who has demonstrated experience in locating koalas in koala habitats or conducting fauna surveys.
  7. Landscaping activities must provide food, shelter and movement opportunities for koalas consistent with the site design.

90. Importantly, the assessment criteria will not apply if the development application is for development mentioned in the Column 1 Exemptions discussed at paragraph 24 above.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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