Buildwell: Legal Advice – Prospects of Success

Introduction

Building work planning in Queensland Australia is governed by a number of and legislations among them, the Sustainable Planning Act 2009, State Planning Instruments, Local Planning Instruments, and the Sustainable State Planning Regulation. In Brisbane, the Brisbane city plan regulation is effective. Building work therefore is  a process that moves from the proposed plan to assessment by the relevant authorities primarily the local government before implementation[1]. For proposals that are in contravention of the regulations and legislations governing building work, they can be rejected or accepted partially. In this case, the proposal was rejected in entirety. This papers therefore is an advice to Buildwell, the client, on intentions to seek redress in particular, on the planning scheme, on the significance (if any) of the South East Queensland Koala Conservation State Planning Regulatory Provisions, and any additional evidence (if any) including the potential expert evidence that may be required and the relevant areas of expertise. This will be done by review of relevant literature and the law.

Any conflict with the planning scheme;

Scheme provisions are geared towards ensuring that any development considerations are appropriately guided. The provisions are used for the assessment of all Integrated Development Assessment System (IDAS) development applications[2]. The scheme identifies the outcome the scheme will achieve and establishes criteria against which development applications will be assessed to realize the set achievements. The local government is mandated to regulate city plans through local government schemes. In Brisbane, the Brisbane City Plan is used and it provides the following major sections. A strategy plan which sets out the broad objectives, the desired environmental outcomes, and any future planning intentions; areas among which has been previously referred to as “zoning plans” and these set out the purpose, location,. And any other planning provisions for specific areas such as residential and industrial areas;  local plans which set out the purpose, location, and other planning provisions for areas such as town center; codes which set out the requirements and planning provisions and particular planning issues such as landscaping, storm water management and biodiversity; infrastructure charges which set out methods for the calculation of developer contribution for infrastructure provided by the local government for example sewerage headwork and water supply; and planning scheme policies which set out the policies for addressing particular issues such as the environmental impact assessment of particular types of development[3].

The duty of s 3 is seeking to achieve ecological sustainability and the three elements of the section are cumulative and not disjunct. The requirements of the definition of the ecological sustainability contaiuns tripartite cumulative elements and the definition states that the balance that intergrates them as defined in Chesol Pty Ltd v Logan CC (2007) QPELR 285, at (87)[4]. To avert any contravention with the scheme planning provision in Brisbane plan, it is important that Buildwell provides appropriate additional information with regard to the development of the zone. It is agreeable that the zone lies in a controversial location but with careful navigation of the various provisions, the appeal is to be a success. One of the key additional information to provide is on how the open space is being protected[5]. Currently, the space is under uncontrolled and unsustainable farming activity which is responsible for increased degradation of the piece of land. With the degree of degradation, it is no longer sustainable to practice broad acre farming and continued use of the land poses the threat of adversely impacting the ecological value of the Karawatha Forest and Scrubby Creek.

The other additional information that is appropriate for arguing the case is the need for a sports and recreational park in the area and how this will be integrated in the scheme. According to chapter 5 of the Sustainable Planning Act 2009, community infrastructure – which is setting land aside for community use e.g. education facility or recreational uses – is an important part in use of land. The chapter outlines matters that should be taken into consideration when apportioning land for community infrastructure, and they are essential public benefits, four in number. The law requires that at least one of these should be satisfied; environmental protection or ecological sustainability, efficient allocation of resources, satisfying statutory requirements or budgetary commitments of the local government, and the community’s expectations for the efficient and timely supply if infrastructure[6]. Out of these, two are sure to be meet by the Buildwell proposal; community expectation for timely supply of infrastructure, and for ecological sustainability. It is important that these are made clearly visible in the proposal. The project is sure to prevent further degradation of the land through the unsustainable farming activities and the integrated recreational park is timely for the highly needed recreational facility in the zone.

The scheme provision prohibits invasion of ecological or natural habitat zones for building work. However, in this case, the zone in question is already invaded through unsustainable farming activities which are uncontrolled. As a result, the farming activities pose a greater threat to the land. The proposed plan therefore is to provide a better alternative and greater good for the zone as it will provide a recreational park, and put to a stop the unsustainable farming activities that not only threaten the zone, but also has the potential of expanding to Karawatha Forest. This enlarged view is seen in Bruce v Caloundra City Council (2007) QPEC 46. The issue in the case was alleged conflict with official planning documents under the transitional IPA planning scheme.

The significance (if any) of the South East Queensland Koala Conservation State Planning Regulatory Provisions

The South East Queensland Koala Conservation State Planning Regulatory Provisions stipulate that, to the extent that the premises is outside the Urban Footprint and not in the urban area, under  a planning scheme, just as Buildwell project, the site doesn’t not result in the clearing of non-juvenile Koala habitant trees in the areas of the bush land habitant[7]. It is important to note that the land is already cleared through farming activities and the only non-juvenile trees for Koala habitation are around the Scrubby Creek and in the southern portion of the land adjoining the Karawatha Forest, areas which Buildwell proposed to conserve by maintaining a buffer zone of 20m building setbacks on the southern boundary to protect the Karawatha Forest and also a 30m buffer around the Scrubby Creek Waterway Corridor. Therefore, essentially, the project doesn’t destroy any old trees for Koala Habitation. An example of this compendious approach is Chuwar Recycling and Land Filling Pty v Ipswich City Council (2008) QPELR 256: (2007) 102 at (112)[8]. It was submitted that the landfill was an outstanding example of the three elements of the IPA statutory purpose for it was to meet the community need and contribute to the community social wellbeing and at the same time protect the ecological and natural systems.

To ensure a successful appeal, the proposal is to be revised to be in line with the South East Queensland Koala Conservation provision that to the extent the premises is inside the Urban Footprint, the design of the site must avoid clearing of non-juvenile Koala habitant trees in areas of bush land habitant. And any unavoidable clearing should be minimised and offset in line with the Offsets for Net Gain of Koala Habitant in South East Queensland Policy at a ratio of five new Koala Habitant trees for every one Non-Juvenile habitant tree removed or a cash equivalent contribution[9]. In line with this provision, it is advised that the proposal should be amended to avoid the clearing of non-juvenile trees for Koala Habitation. This can be achieved by aligning the building plan to the nature of the land i.e. the plan should suit the land and not fit the land to the plan, so as to minimise any clearing for non-juvenile trees for Koala habitation.

In addition, the plan should be done as to avoid any hindrance with the Koala Movement opportunities. The South East Queensland Koala Conservation requires that site design should provide for safe Koala movement opportunities to the development type and habitant connectivity values of the site determined by reference to the factors for consideration in schedule 2 of the regulation[10]. To this effect, it is essential that the building plan for Buildwell embraces non-obstructive designs to allow for safe movement of Koala, mainly between the on or near site old trees, and the Karawatha Forest. This can be done through the use of live fences round the facility, and avoidance of electric fences and built wall fence. These are then to be included in the planning instruments as the attached requirements.

Given the proposal involves clearing on native vegetation, the South East Queensland Koala Conservation Regulation stipulates that the clearing should be taken as sequential and under the guidance of a Koala spotter in places where the native vegetation is a non-juvenile Koala habitant tree[11]. As indicated in the current Buildwell proposal, clearing will be done for the native vegetation in the area, it is advised that there should an express clause indicating the involvement of a Koala spotter in the clearing process to avoid any risk of injury or death of Koala. In addition, the site landscaping acidities should provide shelter, movement, and food opportunities for Koala[12]. Blue Sky Pty Ltd v Brisbane City Council (2011) QPELR 182: (2010) QPEC 116 at (243). It was suggested that disturbance of the soil during construction would risk PN comntamination. The PEC did not belive that any scientific uncerytainity was sufficient to justify application of the principle.

Additional evidence

According to the South East Queensland Koala Conservation Regulation, there are Koala habitant types of certain land[13]. At its current state, the land in question has been degraded through farming activities and therefore, it might not be among the top best types for Koala habitation. As a result, it is advised that Buildwell should acquire the services of an assessment manager to make a determination on whether the land is of a different Koala habitant type than the koala habitant type it is known to be based on previous determination as shown on the Map of Assessable Development Area Koala Habitant Values. The assessment manager has to be a sustainably-qualified and experienced professional in respect with the location of the habitant and has to be in connection with the land to be determined. The assessment report, which expectedly would rank the habitant type lower for significance of Koala habitant, would then be used in the appeal, as habitant of lower significance are not so tightly conserved.

According to the Sustainable planning Bill 2009, the strategy outcomes focus on “the environment, social and economic outcomes which the local government considers desirable for the planning scheme area”. Expert evidence may be admissible to exmain technical terms in strategic planning and may extend the explanation on the nature of the site so that the impact and meaning of the condition can be understood, Hawkins & Izzard supra, at 416. Extrinsic evidence is also admissible for understanding the physical state of the land at the time of the approval and may include identification of things like vegetation and specific features reffered to by conditions as in Caloundra CC v Pelican Links Pty Ltd (2005) QCA 84 at (23)-(25)[14].

It is also advised that, Buildwell should seek the services of an expert to determine the ecological benefits of the plan once completed and operational, in comparison with the current status and use of the land. As per the Sustainable Planning Act 2009, the IDAS is tasked with the role of assessing the impact of a plan by integrating all the instruments of the various policies required both locally and nationally. Given the fact that several institutions in Brisbane appreciate the need for facilities such as industrial land in the area and recreational land, professional assessment on the impact of the project ecologically, economically, and socially would be valuable evidence to the case. According to the Act, this is the role of the IDAS. Assessment though the IDAS is done by the assessment manger who is usually from the local government that administers planning scheme for the planning scheme area[15]. This can also be a state government agency.

Conclusion

The main strategy to ensure the appeal succeeds is to make sure it is in line with the various laws that govern building works in Brisbane Queensland. Of particular concern is the Brisbane City Plan, the Sustainable Planning Act 2009, and the South East Queensland Koala Conservation Regulation. In addition to ensuring the project proposal is in line with these pieces of regulation, it is vital to add to the planning instruments the ecological value of having the project implemented as well as the social benefit of transforming the land from the current degrading and unsustainable farming activities. After fulfilling these recommendations, Buildwell is advised to proceed with the appeal as it will be a success.

References

1. Leslie A. Stein, Principles of Planning Law, 2008, Oxford University Press.
2. Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press
3. Queensland Government, AgForce Queensland and the Local Government Association of Queensland, 2006, Blueprint for the Bush: Rural Economic Development and Infrastructure Plan. Queensland Government, Brisbane.
4. Stedman, R. C. Is it really just a social construction? The contribution of the physical environment to sense of place, 2003. Society and natural resources, vol. 16, pp. 671-685

[1] Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press

[2] Ibid

[3] Leslie A. Stein, Principles of Planning Law, 2008, Oxford University Press.

[4] Philipa England, Sustainable Planning In Queensland, 2011

[5] Stedman, R. C. Is it really just a social construction? The contribution of the physical environment to sense of place, 2003. Society and natural resources, p. 672

[6] Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press

[7] Leslie A. Stein, Principles of Planning Law, 2008

[8] Philipa England, Sustainable Planning In Queensland, 2011

[9] Stedman, R. C. Is it really just a social construction? The contribution of the physical environment to sense of place, 2003. Society and natural resources, p. 675

[10] Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press

[11] Leslie A. Stein, Principles of Planning Law, 2008

[12] Queensland Government, AgForce Queensland and the Local Government Association of Queensland, 2006

[13] Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press

[14] Ibid

[15] Philipa England, Sustainable Planning In Queensland, 2011, The Federation Press