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SARA_Information response
Wednesday, 26 July 2023
Our Ref: 22070
Your Ref: 2210-31715 SRA
DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE,
LOCAL GOVERNMENT AND PLANNING (SEQ-NORTH REGION)
PO BOX 1129
MAROOCHYDORE QLD 4558
ATTENTION: Danika Cowie
Dear Danika
INFORMATION RESPONSE
OTHER CHANGE TO DEVELOPMENT APPROVAL
3 & 7 SERENITY CLOSE NOOSA HEADS QLD
Further to your information request for the abovementioned development application we now
respond to all of the information requested.
In support of the response please find attached:
• Amended Proposal Plans
• Amended Preliminary Earthworks Plan
• Amended Traffic Impact Assessment
• Ecological Assessment Report
• State Code 6 – PO26-PO31 Response (Appendix A)
• Legal advice on Other Change assessment criteria (Appendix B)
START INFORMATION RESPONSE
Public Passenger Transport
1. Action:
Provide revised proposal plans and supporting traffic engineering information to demonstrate
compliance with performance outcome (PO)26 – PO31 of State code 6: Protection of State
transport networks (State code 6) of the SDAP. In particular, the following should be addressed:
a) Demonstrate how bus turnaround will be able to be achieved at all times, given on-street car
parking is allowed in the Serenity Close cul-de-sac. Advice is provided that unbroken yellow
no stopping line may need to be considered.
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b) Demonstrate that the bus setdown facility will be provided in a 'front of house' location with
respect to the resort complex reception and check-in lounge. Whilst bus/coach turnaround
will likely need to be achieved via Serenity Close with a bus zone parallel to the loading dock,
the actual bus setdown arrangement for passengers should be convenient, accessible and
legible with respect to the resort complex customer entry. An indented bus zone (parallel to
kerb) and adjacent pathway arrangement along Serenity Close could be considered, for
instance, near the retail entry. The applicant should also consider potential options for bus
setdown via Grant Street if that is capable of accommodating the maximum design vehicle
swept path.
A perpendicular bus zone is generally not recommended for passenger loading although the
constraints of bus turnaround are acknowledged. All passenger loading and unloading,
including from the front and back doors of a bus where a perpendicular arrangement is
proposed should be on the site. The applicant should consider providing a longer bus zone
on the site by altering the building layout to accommodate this if they can demonstrate that
the bus setdown facility can only be provided of the Serenity Close cul-de-sac.
The applicant may also like to potentially consider providing a designated mini-bus parking
space in the passenger loading zone on Level 03, noting that the swept path of the passenger
loading area will need to cater for a taxi catering for people with disabilities.
c) Demonstrate that the bus setdown facility will include a covered passenger waiting area with
seats and a safe boarding and alighting point.
d) Demonstrate that a safe, direct and convenient pedestrian pathway will be provided between
the bus setdown facility (boarding point and waiting area) and the resort complex lobby which
is DDA compliant. This should minimise vehicular/pedestrian conflict with service vehicle
docking arrangements and any other vehicles on the Serenity Close driveway.
Response:
Refer attached amended Proposal Plans and Traffic Impact Assessment. As discussed in section
2.2 of the Traffic Impact Assessment, the target market for the proposed hotel does not include tour
groups, as such coaches will not require access to the site or park within the site / surrounding
streets. The hotel will have a minibus service, with the Porte Cochere/ set down area designed to
cater for a 21 seater minibus. The minibus service will be used to transport guests from various
destinations, including transport hubs such as the Noosa Junction bus interchange. Included in
Appendix A is a code response to PO26 – PO31 of State code 6, demonstrating compliance with the
performance outcomes.
2. Action:
Provide revised proposal plans and supporting traffic engineering information to demonstrate
compliance with PO26 – PO31 of State code 6. In particular, the following should be addressed:
a) Provide details of the proposed private ferry service and how this would be achieved. It is
unclear as to whether the pathway from Serenity Close to the Settler's Cove ferry terminal is
public or private.
b) Provide details of how resort guests will be transferred to and from the ferry service and
whether this will be via bus/mini-bus/coach or active transport. The pathway between
Settler's Cove and Serenity Close is approximately 130m in length and there is an
approximate 80m distance between the pathway and the proposed resort complex (back of
house). It is likely passengers will need to be transported to the resort complex entry in Grant
Street.
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c) Demonstrate that adequate capacity will be provided in the bus setdown facility or passenger
loading zone to cater for any regular bus or mini-bus services for a private ferry shuttle and
that provision will be made on site for bus lay-by parking where the buses/minibuses are
owned and operated by the resort. The passenger loading zone would need to be designed
for the swept path of the maximum design vehicle likely to use it.
d) Demonstrate that active transport infrastructure including safe, direct, convenient and
inclusive pedestrian paths will be provided as part of the development and in the external
road network to cater for any pedestrian and cyclist movements associated with the private
ferry service.
Response:
The proposed ferry is an additional transport option being explored for the development and is not
intended to form part of the development approval. Details and confirmation of the proposed ferry
have not been finalised at this stage. Should more detailed investigations establish the ferry to be
viable, then it would operate as ancillary to the approved use. Compliance with PO26 – PO31 of
State code 6 is achieved, as demonstrated in the code response included in Appendix A, without the
ferry.
State code 25: Development in South East Queensland koala habitat areas (State code 25)
3. Action:
Provide a response to the latest version of State code 25 in its entirety, identifying how the
proposed development meets each PO.
Response:
Legal advice from planning law specialists Connor O’Meara has been obtained on the assessment
of a change application, which is not a minor change, and is included in Appendix B. This advice
confirms that:
(i) Pursuant to Part 10 of Schedule 10 of Planning Regulation 2017 (“the Koala Regulations”)
development is assessable development to the extent that it interferes with koala habitat in a
koala habitat area that is not a koala priority area;
(ii) The Koala Regulations do not apply to the extent that the development (i.e. the interference
with koala habitat) is consistent with the Development Approval; and
(iii) In their view, the interference with koala habitat proposed by the change application is
consistent with the Development Approval and therefore the Koala Regulations are not
engaged and do not apply.
The legal advice further confirms that even if the Koala Regulations were to apply, the assessment
according to law must be limited to the extent of the change and not upon elements of the
development approval that are not changing.
In addition refer attached Ecological Assessment Report and correspondence from Litoria
Consulting included in Appendix C. The Ecological Assessment Report demonstrates that the
proposed change application will result in a net gain in koala habitat through the additional retention
of areas containing ecological values.
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4. Action:
Provide a copy of the development approvals and development plans that exist over the site.
Response:
A copy of the development approval and development plans that exist over the site are included in
Appendix 1 of the Ecological Assessment Report.
5. Action:
To demonstrate compliance with State code 25, it is recommended a koala habitat values
assessment, carried out by a suitably qualified ecologist, be undertaken to identify koala habitat
areas, koala habitat and koala habitat values that exist on site. The results of this assessment
should be provided with the application and should be used to guide the location, siting, design
and phasing of the proposed development to demonstrate compliance with State code 25.
The koala habitat values assessment should include a tree survey plan that identifies the location
of all native trees on site along with:
• identification numbers that correspond to each tree
• GPS coordinates for each tree
• the species of each tree
• the height of each tree
• the circumference of each tree at 1.3m above the ground
• the tree protection zone of each tree
• special features that exist on each tree (e.g., hollows (including approximate size), nests,
scratches, termitaria, etc.)
• what tree species utility it has been assigned by Appendix 4 of Spatial modelling for koalas
in South East Queensland
• if a tree is a koala habitat tree, whether it is a non-juvenile koala habitat tree (NJKHT)
• whether each tree is inside or outside the mapped koala habitat area
• whether each tree is to be retained or removed (noting that trees which could be removed by
exempted development created as a natural and ordinary consequence of the development
being approved (e.g. firebreaks, fire management lines, access tracks, fences) are
considered trees to be removed)
• identifies the number of non-juvenile koala habitat trees proposed to be removed located in
mapped koala habitat areas.
Response:
Notwithstanding the proposed change is consistent with the development approval, an assessment
of Koala habitat values, including a Koala survey has been undertaken and detailed in the attached
Ecological Assessment Report.
As detailed in this report a targeted Koala survey was conducted over the entire site by OWAD
Environment on 20 April 2023 with a team of ecologists and a purpose-bred detection dog certified
by the Australian Canine Detection Certification Council for Koala and Quoll scat determination. In
addition any evidence of Koala usage (scat, sighting and Koala scratches) was also recorded during
a detailed tree survey and botanical survey, with over 100 hours spent on site between May 2022
and April 2023 by 4 qualified ecologists. This report and survey confirms that the site does not
currently form part of the home range of any individual Koala, nor has it been recently used by
Koalas. Additionally, no direct evidence of koala use (scat, sightings, Koala scratches) was observed
on site during botanical survey and tree survey.
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Results of the ecological assessment indicate that the proposed change to approval will result in a
net positive impact in terms of koala habitat retention and no significant loss of functional habitat
connectivity within the landscape.
6. Action:
Provide a report prepared by a suitably qualified ecologist that:
• identifies areas of existing mapped koala habitat on site and investigates mechanisms to
protect these areas through a legal security mechanism such as an environmental covenant.
• provides a map or shape file of the location of the covenant area. Demonstrates alternative
development options that have been considered to retain more mapped koala habitat (e.g.
all covenant locations that were considered), taking into consideration the results of koala
habitat value assessments.
• provides details of improvements to the identified covenant areas by removing weeds and
planting koala food trees endemic to the site (based on the sites regional ecosystem).
Response:
Notwithstanding the proposed change is consistent with the development approval, an assessment
of Koala habitat values, including a Koala survey has been undertaken and detailed in the attached
Ecological Assessment Report.
As detailed in this report a targeted Koala survey was conducted over the entire site by OWAD
Environment on 20 April 2023 with a team of ecologists and a purpose-bred detection dog certified
by the Australian Canine Detection Certification Council for Koala and Quoll scat determination. In
addition any evidence of Koala usage (scat, sighting and Koala scratches) was also recorded during
a detailed tree survey and botanical survey, with over 100 hours spent on site between May 2022
and April 2023 by 4 qualified ecologists. This report and survey confirms that the site does not
currently form part of the home range of any individual Koala, nor has it been recently used by
Koalas. Additionally, no direct evidence of koala use (scat, sightings Koala scratches) was observed
on site during botanical survey and tree survey.
The report further confirms that the change provides an improved development outcome, as it:
• results in a net positive impact to potential fauna habitat on site
• does not result on any significant habitat loss
• does not result in barriers to fauna movement within the site or wider area.
Given that the change is consistent with the development approval an environmental covenant is not
relevant.
7. Action:
It is advised that the applicant consider mitigation measures such as:
• retaining koala habitat area in locations that will allow koalas to use and move through the
site
• retaining koala habitat area which have been identified through an ecological survey as
being of higher use for koalas (e.g., retaining components of koala habitat areas with more
records or other signs of koala use (i.e., scats or tree scratching) or areas that contain
koala habitat trees preferred by koalas (e.g., blue gum))’
• retaining particular koala habitat trees that koalas are using which have been identified
through an ecological survey and ensuring that koalas can move safely between the koala
habitat tree and other koala habitat areas
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• improving degraded koala habitat areas that are to be retained on the site by removing
weeds and planting koala food trees endemic to the site (based on the sites regional
ecosystem(s))
• minimising impacts on retained habitat and koalas using the area by:
o providing a buffer between development and any retained koala habitat, and/or
o managing edge effects on retained koala habitat including:
changes in soil condition, such as nutrients and erosion
altered hydrological flow
the introduction or increase of weed and exotic plant species
disturbances to vegetation
a modified fire regime
the introduction of predators to koalas
increased light, noise or dust.
Response:
Refer correspondence from Litoria Consulting included in Appendix C. As indicated, the attached
Ecological Assessment Report and originally submitted Vegetation Management Plan outline
avoidance, mitigation and management measures. Impact mitigation is achieved via the
implementation of detailed fauna management measures and development design measures
outlined in section 6.3 of the Ecological Assessment Report. Additional impacts result from the
proposed change are minor and mitigated by the fact that the change will result in a net positive
impact to koala habitat on the site.
8. Action:
Provide the following information, prepared by a suitably qualified ecologist:
• any actions that will be undertaken on land retained to avoid fragmenting koala habitat
areas that will improve connectivity between koala habitat areas (e.g., removing barriers,
revegetating with koala habitat trees, the density of plantings, the distance between planted
trees, encouraging natural revegetation, incorporating principles of koala-sensitive design
(described in the Koala-sensitive design guideline)).
• provides an assessment of the connectivity values and safe koala movement opportunities
that would exist on the site post-development.
• identifies barriers to movement that will be proposed by the development (e.g. established
roads, fences, and retaining walls, introduction of residential threats such as pools and
dogs and areas without koala habitat trees that increase the time koalas would need to
spend on the ground).
• outlines measures that will be undertaken to ensure koalas can move safely within and
between highly connected patches of koala habitat area.
• provides justification for why the proposed measures are suitable for providing safe koala
movement opportunities.
Response:
Refer attached Ecological Assessment Report, originally submitted Vegetation Management Plan
and correspondence form Litoria Consulting in Appendix C.
The EAR and VMP provide detailed development design and management measures which
demonstrate how the proposed change will not adversely impact the movement of koalas through
the site (Refer to Section 6.3 of the EAR). Whilst there are additional impacts resulting from the
proposed change to accommodate driveway access, these impacts are minor and unlikely to impact
koala movement, as the impact is located adjacent to an existing road. In addition, impacts are
mitigated by the fact that the proposed change will result in a net positive impact to koala habitat on
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site through the retention of additional vegetation. Retained vegetation will maintain physical
connectivity between the site and adjacent habitat, thereby reducing barriers to Koala movement
within the subject land.
Figure 1 of the Appendix C correspondence demonstrates additional areas of mapped Koala Habitat
Areas that will be retained as a result of the proposed change, along with the improved connectivity
to adjacent habitat areas. Refer to Section 5.3 in the EAR for additional details.
9. Action:
The applicant should provide a report prepared by an appropriately qualified ecologist that:
• identifies all MSES on site and provides a likelihood of occurrence list for these MSES
based on the habitat values found on site.
• demonstrates how impacts to the identified MSES have been avoided to the greatest extent
possible.
• where all or part of a MSES cannot be avoided, demonstrates how any impacts to MSES
that cannot be avoided have been minimised and mitigated to the greatest extent possible
(e.g., through alteration of proposed development configuration (multi-story instead of
single-story buildings, smaller development footprint, planting on site, etc)).
• provides a significant residual impact assessment for any residual impact on each identified
MSES (after all avoidance, minimisation and mitigation measures have been=
demonstrated) in accordance with:
o Chapter 2A of the Queensland Environmental Offsets Policy for koala habitat
o DSDMIP Significant Residual Impact Guideline provides for all other MSES
o quantifies the maximum extent of proposed significant residual impact to each
MSES both in area (ha) and on a plan.
Response:
Refer attached Ecological Assessment Report which includes an assessment against MSES. Also
refer correspondence from Litoria Consulting included in Appendix C. As indicated, the ecological
assessment report includes a significant residual impact (SRI) assessment (Refer Section 5.4 of the
EAR). The results of the SRI assessment indicate that the proposed change does not result in a
significant residual impact to applicable MSES.
In addition, the original approval included a condition for a monetary contribution for the offset of 48
koala habitat trees in accordance with the Policy for Offsets for Net Gain of Koala Habitat in South
East Queensland, which was current at that time (Refer Condition 106 of MCU 2008/176, encl.) A
monetary contribution of $44,160 ($920 x 48 trees) has already been made to Council to offset the
removal of 48 koala habitat trees, thus precluding the imposition of an additional offset condition as
stated under section 25A of the Environmental Offsets Act 2014 (Qld). In any case, the proposed
change results in a net increase in koala habitat retention compared to the existing approval.
END INFORMATION RESPONSE
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Should you have any questions with respect to the above, please do not hesitate to contact me direct. Yours faithfully PROJECT URBAN Scott Sobey DIRECTOR Email: [email protected]
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URBAN ©) APPENDIX A State Code 6: PO26 — PO31 response
Page 10
Public passenger transport infrastructure and active transport
Performance Outcomes Acceptable Outcomes Comment
PO26 Upgraded or new public No acceptable outcome is prescribed. Complies with PO
passenger transport infrastructure and
No changes to the public transport
active transport infrastructure is
infrastructure or active transport
provided to accommodate the demand
network has been made
for public passenger transport and
active transport generated by the
development.
PO27 Development is designed to No acceptable outcome is prescribed. Complies with PO
ensure the location of public passenger
A Porte cochere will be provisioned
transport infrastructure prioritises and
which will enable access for a 21 seater
enables efficient public passenger
bus which will connect to Noosa
services.
Junction Station to provide connections
to the wider public transport network.
The Porte cochere also allows for set
down areas for taxis and other car share
services
PO28 Development enables the No acceptable outcome is prescribed. Complies with PO
provision or extension of public
A Porte cochere will be provisioned
passenger services, public passenger
which will enable access for a 21 seater
transport infrastructure and active
bus which will connect to Noosa
transport infrastructure to the
Junction Station to provide connections
development and avoids creating
to the wider public transport network.
indirect or inefficient routes for public
passenger services. The Porte cochere also allows for set
down areas for taxis and other car share
services
PO29 New or modified road networks AO29.1 Roads catering for buses are Complies with AO
are designed to enable development to arterial or sub-arterial roads, collector or
TTM has provided a functional layout for
be serviced by public passenger their equivalent.
Banksia Street/ Grant Street roundabout
services.
AND to be upgraded in accordance with
Austroads to cater for buses and service
AO29.2 Roads intended to
vehicles accessing the site.
accommodate buses are designed and
constructed in accordance with:
1. Road Planning and Design Manual,
2nd Edition, Volume 3 – Guide to Road
Design; Department of Transport and
Main Roads;
2. Supplement to Austroads Guide to
Road Design (Parts 3, 4-4C and 6),
Page 11
Department of Transport and Main
Roads;
3. Austroads Guide to Road Design (Parts
3, 4- 4C and 6);
4. Austroads Design Vehicles and Turning
Path Templates;
5. Queensland Manual of Uniform Traffic
Control Devices, Part 13: Local Area
Traffic Management and AS 1742.13-
2009 Manual of Uniform Traffic Control
Devices – Local Area Traffic
Management;
AND
AO29.3 Traffic calming devices are not
installed on roads used for buses in
accordance with section 2.3.2 Bus Route
Infrastructure, Public Transport
Infrastructure Manual, Department of
Transport and Main Roads, 2015.
PO30 Development provides safe, direct No acceptable outcome is prescribed. Complies with PO
and convenient access to existing and
A Porte cochere will be provisioned
future public passenger transport
which will enable access for a 21 seater
infrastructure and active transport
bus which will connect to Noosa
infrastructure.
Junction Station to provide connections
to the wider public transport network.
The Porte cochere also allows for set
down areas for taxis and other car share
services.
PO31 On-site vehicular circulation No acceptable outcome is prescribed. Complies with PO
ensures the safety of both public
A Porte cochere will be provisioned
passenger transport services and
which will enable access for a 21 seater
pedestrians
bus which will connect to Noosa
Junction Station to provide connections
to the wider public transport network.
The Porte cochere also allows for set
down areas for taxis and other car share
services
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URBAN ©) APPENDIX B Legal advice on Other Change assessment criteria
Page 13
CONNOR @ O’MEARA solicitors Our Ref: Michael Connor:JAB:2200194 20 July 2023 Andrew Stevens Managing Director Project Urban BY EMAIL Dear Andrew 3 - 7 Serenity Close, Noosa Heads We are asked to advise about the assessment of a change application, which is not a minor change, made to the Noosa Council on 10 October 2022' (“Change Application”). Background The land (“Land”) the subject of the Change Application is: 1. located at 3 - 7 Serenity Close, Noosa Heads; 2. described as Lots 10 and 11 on SP 195871; 3. has an area of 24,040 m?; 4. is currently included mainly in the Tourist Accommodation Zone and partly in the Environmental Management and Conservation Zone, pursuant to the Noosa Planning Scheme 2020. Also the Land is affected by the Biodiversity, Waterways and Wetlands Overlay (and identified as an area of biodiversity significance) and the Protected Vegetation Overlay; and *132008.176.05 level 4 10 eagle street gpo box 2239 brisbane 4001 e [email protected] 00612867.D0CX Ww www.connoromeara.com t 07 3221 3033 f 07 3221 6661
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5, has the benefit of a development approval given on 14 October 2011? (“Development Approval”) by the Planning and Environment Court for an accommodation building and multiple dwellings. The Development Approval, given by the Court, remains extant but has not, as yet, been acted upon. The Development Approval was last changed on 9 February 2017. The changed approval authorises a development permit for a material change of use for a “Resort Development comprising Multiple Dwelling (109 Dwelling Units) and Accommodation Building (90 Accommodation Units} and Ancillary Facilities". Changes in the legislative and statutory framework since the Development Approval was given Since the Development Approval was given, there has been a range of changes in the statutory and regulatory framework against which applications are considered, assessed and decided. Three significant changes are relevant. First, the Noosa Plan 2020 took effect on 31 July 2020, replacing the Noosa Plan 2006. Secondly, whilst the Development Approval was assessed and decided under the Sustainable Planning Act 2009, that legislation has now been repealed and replaced by the Planning Act 2076, which permits changes other than a minor change. Third, on 7 February 2020, the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 amended the Planning Regulation 2077 to regulate development which interfered with koala habitat areas. Development Approvals and Changing Them Notwithstanding that the Development Approval was originally given in 2011, it still has the force of law and can be acted upon while it is extant, notwithstanding changes in the planning scheme. Indeed, the Development Approval is taken to be an approval under the Planning Act 2076. ? P&E Appeal No. 178 of 2010, noting the assessment manager was the Sunshine Coast Regional Council. 0061 2867.D0CX
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The assessment and decision making framework for a change application, which is not a minor change, is set out in Section 82 of the Planning Act 2076. Subsection (2) of the provision states: “82 Assessing and deciding change applications for other changes (2) For administering the change application, and assessing and deciding the change application in the context of the development approval, the relevant provisions apply— a. as if- i i. the responsible entity were the assessment Manager; and the change application were __the _ original development application, with the changes included, but was made when _the change application was made; and b. with necessary changes. (4) To_remove any doubt, it is declared that the following matters apply, only to the extent the matters are relevant to assessing and deciding the change application in the context of the development approval- a. the assessment benchmarks; (underlining added)” The phrase “relevant provisions" is defined for the purposes of s 82 as: “(6) In this section- relevant provisions means- (a) section 45(6) to (8); and (b) part 2, division 2, other than section 51; and (c) part 3, other than sections 63 and 64(8)(c); and (d) the development assessment rules.” This means two important things for present purposes. First, a change application is taken by law to be the original development application, with the changes included, but made when the change application was made. Secondly, and pursuant to section 45(7) of the Planning Act 20176, the assessment to be undertaken must be carried out against the assessment 00612867.D0CX
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benchmarks in a categorising instrument for the development in effect when the change application is made. The local categorising instrument for the assessment is the Noosa Plan 2020 because that is the local categorising instrument in force when the Change Application was made. Further, we note that the assessment of the Change Application must also be against the State Development Assessment Provisions (“SDAP”), including State Code 25. Having said that, the exercise to be undertaken in carrying out the assessment is different to a normal development application given the effect of the words “in the context of the development approval" found in section 82 of the Planning Act 2016. The Court, in Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52, has said the following about the phrase “in the context of the development approval": “The purpose of this phrase is to make clear that the assessment and decision making process occurs in the context that the application is one to change an existing development approval, as distinct from a fresh development application. In practical terms, this means the assessment and decision making process for a change application under s 82 of the PA is founded upon, but not limited to: (a) an identification of the change/s proposed to the development approval; (b) an identification of the planning issues, be they positive or negative, arising for consideration as a consequence of the change/s proposed to the development approval; and (c) an assessment of the planning issues arising as a consequence of the change/s to the development approval, having regard to the requirements of “relevant provisions’, and assessment benchmarks, to the extent they are relevant.” What the above means is that the Development Approval represents a starting point. In carrying out the assessment, the assessment manager is required to filter out certain aspects of that assessment against the background of the Development Approval. By way of example, in the present circumstances, there is no proposal to increase the height of the built form of the development. In those circumstances, it is impermissible for the assessment manager to carry 00612867.DOCX
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out an assessment against provisions of the planning scheme which
regulate building height.
It is also important to note the task required when a change is proposed.
If the approved built form had a height of 3 storeys and the change
proposed to increase the height to 4 storeys, the relevant exercise in
those circumstances would be to assess the additional storey, not the 4
storeys in total.
Similarly, where there is a change in the building footprint which impacts
on koala habitat, it is only the additional impacts beyond the impacts of
the approved development which can be permissibly assessed.
Koala Legislation
On 1 September 2017, the Nature Conservation (Koala) Conservation
Plan, mapped the Land as a koala habitat area, but not a koala priority
area.
On 7 February 2020, the Nature Conservation and Other Legislation
(Koala Protection) Amendment Regulation 2020 amended the Planning
Regulation 2077 to regulate development which interfered with koala
habitat areas.
Part 10 of Schedule 10 of the Planning Regulation 2017 ("PR") applies to
development on a lot that is completely or partly in the SEQ region and
Division 3 provides for the circumstances in which development
interfering with koala habitat in a koala habitat area which is not a koala
priority area is assessable development. That is, development. is
assessable development to the extent that it will interfere with a koala
habitat in an area that is a koala habitat area but is not a koala priority
area.
However, the provisions which make that type of development assessable
do not apply to the extent that the development is consistent with a
development approval that is in effect for the premises on which the
development is carried out and was given for an application that was
properly made before 7 February 2020.°
The relevant assessment benchmarks are SDAP.* State Code 25 is the
relevant part of the SDAP which applies to development in South East
Queensland koala habitat areas.
3 PR, Sch 10, Pt 10, Div 3, s 16B(2)(e).
* PR, Sch 10, Pt 10,, Div 3, SubDiv 3, Table 1, Item 4.
00612867.DOCX
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Interpretation of “consistent” “Consistent” for the purposes of the PR is not defined and there has not been judicial consideration of “consistent” in this particular context. It follows, consistent with the established canons of statutory constructions, that the word is to take its plain and ordinary meaning.°® The ordinary meaning of the word “consistent” is: 6. agreeing or accordant; compatible; not self-opposed or self- contradictory; 7. constantly adhering to the same principles, course et.°® In addition to the above, we note that “consistent” has been judicially considered for the purposes of other Queensland and interstate planning contexts. In Lake Maroona Pty Ltd v Gladstone Regional Council,’ Bowskill DCJ considered the meaning of “consistency” for the purposes of s 388(1)(a) of the Sustainable Planning Act 2009 (Qld). In that decision, the Court considered several similar cases from New South Wales that had interpreted the meaning of “consistent” for the purposes of planning legislation. Her Honour preferred the view expressed in Gillespies v Warringah Council.® In that case, Bignold J held that “consistent” had its ordinary and natural meaning as defined in the Macquarie Dictionary. His Honour held that the Macquarie Dictionary meaning of “compatible” as “capable of existing in harmony" was applicable to the interpretation of “consistent” in the context of the Warringah Local Environment Plan 2000.° In Friends of Malua Bay Inc v Perkins'® Craig J adopted the approach taken in Gillespies holding that it was appropriate to regard “consistent” as being synonymous with “compatible”. Considered in both Gillespies and Malua Bay was the primary judgment of Clarke JA in Coffs Harbour Environment Centre Inc v Coffs Harbour City Council and Another''. \|n that case the meaning of consistent was narrowed to “development not antipathetic”. However, that approach was disavowed in both Gillespies and Malua Bay. 5Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355. ®Macquarie Dictionary (7" ed, 2017) ‘consistent’. 712017] QPEC 25 (‘Lake Maroona’). ®(2002) 124 LGERA 147 (’Gillespies'). Sel 12(3)(b). '0(2014) 203 LGERA 14 (‘Malua Bay’). (1991) 74 LGRA 185. 0061 2867.DOCX
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Continuing that long line of authority, Bowskill DCJ concluded that “the natural and ordinary meaning of the word “consistency”, ought to be adopted in construing [the relevant provisions]".'? Her Honour also held that determining the consistency of an approval with current laws and policies is to determine if the approved development is capable of existing in harmony with those laws and policies. Her Honour stated that “consistency” is a more flexible concept than whether the development conflicts with the planning scheme. Instead, development may still be compatible even if it is at variance with some aspects of the planning scheme. It follows that what emerges from the above cases is that the term “consistent”: 1. does not mean precisely the same; 2. provides for a degree of flexibility; and 3. requires an element of compatibility and harmony. Discussion Relevantly, the starting point is to consider whether the changed development is “consistent” with the Development Approval. Given that consistency between the Development Approval and the Change Application is a question of fact and degree, there are a few indicators which may be relevant in determining whether, from a perspective of koala habitat ecology, the two are consistent with one another. Firstly, in addition to the trees required to be retained by the Development Approval, the development as it is proposed to be changed provides for a net reduction in the area to be disturbed, largely as a consequence of additional vegetation to be retained, of 7,970m?. Second, we note that although the proposed development’s site cover is increasing, that increase is modest and limited. 2 (24), 0061 2867.D0CX
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Third, the legislative context for the amendment to the PR is also relevant to the assessment of consistency with the original approval. In that sense, the planning purpose of the amendments to the PR was to provide for the protection of koala habitat areas. Accordingly, where the ecological outcomes for koala habitat as a consequence of the proposed change are no worse (and indeed are likely better) than the outcomes approved by the Development Approval, that factor is another indicator of consistency between the proposed changed development and the Development Approval. In those circumstances, where the substance of the change is not touching upon the matters relevant to ecology, or put another way it is not changing those outcomes (at least in an adverse way), there is an obvious level of harmony and compatibility between the Development Approval and the change the subject of the present change application. It follows, given that harmony and compatibility, we think it is open to conclude that the change is “consistent” with the Development Approval. Putting aside the question of whether the changed development is “consistent” with the Development Approval, there are a few things to note: 1, the whole of the development is not to be reassessed by the other change process. Instead, it is a discrete analysis of the changes which arise in the context of the Development Approval. By simple reference to the site cover, we note that the site cover is increasing from 34% to 40%. It follows then, that the assessment is not to be carried out about the entire footprint covering 40%, but rather by reference to the additional 6%;"° 2. in that regard we have considered the arborist report of 7 October 2022. At page 7 of that report, we note that it is identified that “as the proposed development is for a change to an existing approval, tree survey was limited to areas currently zoned Environmental Management and Conservation, together with areas outside of the building footprint indicated by the approved plans”. |In our view, that approach is entirely appropriate and correct at law. Put another way, the report assesses: (a) the additional 6% of site cover; and (b) matters arising from changes to assessment benchmarks since the Development Approval was originally given; and '3 assuming that 34% of the 40% now proposed is coincidental with the site cover of the approved development. 0061 2867.DOCX
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3. in contrast, we note that the information request given by the State Assessment Referral Agency (“SARA”) dated 6 December 2022 appears to proceed on an incorrect footing. That is, the issues with respect to State Code 25 appear to be premised upon the Change Application representing an opportunity to reassess the whole of the development afresh. In our view that is wrong and inconsistent with the law and recent jurisprudence of the Planning and Environment Court. An example of the incorrect approach are the comments made in Issue 5 of the SARA information request which identifies, “the application material has not provided an assessment of the koala habitat area on site. An arborist report was provided for the additional area of proposed clearing, however an ecological assessment is required for the whole site” (emphasis added). That approach stands in stark contrast with the approach identified in both the explanatory notes to the Planning Act 2076 in respect of section 82 and the law as identified by the decision in Catterall & Ors v Moreton Bay Regional Council & Anor [2020] QPEC 52. On the strength of the above, it is our view that the approach identified by SARA in the information request and, in particular but not limited to Issue 5, fails to properly understand the required assessment and seeks to impermissibly assess and comment upon elements of the Development Approval which are not changing. Conclusion In our view: 1. given the changed development is “consistent” with the Development Approval, the relevant considerations arising from the change to the koala regulations in the PR are not engaged; and 2. even if we are wrong about the above, given the statutory exercise that is required by the PA, SARA ought to be invited to carry out its assessment according to law. Yours faithfully CONNOR O’MEARA KAUXLOMN - “Liability limited by a scheme approved under professional standards legislation” 0061 2867.D0CX
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URBAN ©) APPENDIX C Litoria Consulting correspondence
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litoria consulting PO Box 461 Paddington Q 4064 Level 3/22 Wandoo Street Fortitude Valley O 4006 T 07 3862.4855 [email protected] litoria.com.au Your Ref: Our Ref: 22011 12 July 2023 Paul Gleeson Principal Planning Officer State Assessment and Referral Agency via email: [email protected] Dear Paul, RE: INFORMATION REQUEST RESPONSE - 2210-31715 SRA - 3-7 SERENITY CLOSE, NOOSA HEADS (LOTS 10 & 11 ON SP195871) | refer to SARA’s information request (6 December 2022) associated with the change application located at the abovementioned address. Our response deals with items 3 to 9 of the information request. 3. The application material has not provided a response against State code 25 or any information that can be used to address State code 25. The information request given by SARA (6 December 2022) appear to be premised upon the Change Application representing an opportunity to reassess the whole of the development afresh. Where there is a change in the building footprint which impacts on koala habitat, it is only the additional impacts beyond the impacts of the approved development which can be permissibly assessed. Given the changed development is consistent with the original development approval, the relevant considerations arising from the change to the koala regulations in the Planning Regulation 2017 are not engaged. An Ecological Assessment Report (Litoria Consulting, v 1.0, July 2023) (EAR) (encl.) has been prepared which demonstrates that the proposed change to the existing development approval will result in a net gain in koala habitat through the additional retention of areas containing ecological values. 689 LLS OOL SZ Nav
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4, The application material mentions a previous development approval over the lot issued by Noosa Shire Council. The development approval and development plans were not provided with the application material. Please refer to Appendix 1 of the EAR which contains the development approval and development plans. 5. The application material has not provided an assessment of the koala habitat area on site. An arborists report was provided for the additional area of proposed clearing, however an ecological assessment report is required for the whole site. An ecological assessment was undertaken generally in accordance with the Noosa Council Planning Scheme Policy 3 - Ecological assessment guidelines. As part of the assessment, a desktop review and field investigations, including targeted koala survey with purpose-bred detection dogs, was undertaken to assess impacts to koala habitat on site. The results of the koala survey indicated no evidence of koala on the site, with no evidence of either individuals or scat present. The results of the survey are contained in Section 4.5.2 and Appendix 5 of the EAR. Results of the ecological assessment indicated that the proposed change to the approval will result in a net positive impact in terms of koala habitat retention and no significant loss of functional habitat connectivity within the landscape. 6. The application material has not discussed how the remaining mapped koala habitat on site will be protected in perpetuity. The application material should discuss legal security measures such as environmental covenants to protect the proposed eco zones. Retention of mapped koala habitat on site can be conditioned as part of a development permit. 7. The application material does not demonstrate any mitigation of impacts to koala habitat. The EAR and Vegetation Management Plan (Litoria Consulting, Issue A, 7 October 2022) (VMP) (encl.) outline proposed avoidance, mitigation and management measures. Impact mitigation is achieved via the implementation of detailed fauna management measures and development design measures outlined in Section 6.3 of the EAR. Additional impacts resulting from the proposed change are minor and mitigated by the fact that the proposed change will result in a net positive impact to koala habitat on site. 8 The application material has not demonstrated how the design of the proposed development will not adversely impact the movement of koalas through the site. The EAR and VMP provide detailed development design and management measures which demonstrate how the proposed change will not adversely impact LORS 215
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the movement of koalas through the site (Refer to Section 6.3 of the EAR). Whilst there are additional impacts resulting from the proposed change to accommodate driveway access, these impacts are minor and unlikely to impact koala movement, as the impact is located adjacent to an existing road. In addition, impacts are mitigated by the fact that the proposed change will result in a net positive impact to koala habitat on site through the retention of additional vegetation. Retained vegetation will maintain physical connectivity between the site and adjacent habitat, thereby reducing barriers to Koala movement within the subject land. Figure 1 demonstrates additional areas of mapped Koala Habitat Areas that will be retained as a result of the proposed change, along with the improved connectivity to adjacent habitat areas. Refer to Section 5.3 in the EAR for additional details. 9. The application material has not discussed matters of State environmental significance (MSES) that could occur on the site or potential impacts to MSES as a result of development of the site. An arborists report was provided for the additional area of proposed clearing, however an ecological assessment report is required for the whole developments impacts on MSES. A significant residual impact (SRI) assessment was undertaken as part of the ecological assessment (Refer Section 5.4 of the EAR). The results of the SRI assessment indicated that the proposed change does not result in a significant residual impact to applicable MSES. In addition, the original approval included a condition for a monetary contribution for the offset of 48 koala habitat trees in accordance with the Policy for Offsets for Net Gain of Koala Habitat in South East Queensland, which was current at that time (Refer Condition 106 of MCU 2008/176, encl.) A monetary contribution of $44,160 ($920 x 48 trees) has already been made to Council to offset the removal of 48 koala habitat trees, thus precluding the imposition of an additional offset condition as stated under section 25A of the Environmental Offsets Act 2014 (Qld). In any case, the proposed change results in a net increase in koala habitat retention compared to the existing approval. LORS 315
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Please note, the EAR and assessment of environmental impacts were conducted using land parcel boundaries obtained by the Department of Resources in 2022. It has come to our attention that there has been an update to the land parcel boundaries in 2023, resulting in slight variations in lot sizes and extents. However, based on these changes, it is unlikely that the assessment outcomes presented in the EAR will be significantly different. | trust that the enclosed information is satisfactory and assists SARA in approving the application; however, if there are any matters that you wish to discuss, please do not hesitate to contact Freya Jassim from our office on [email protected] or 07 3852 4855. Sincerely, Daniel Clowes BAppSc (EnvSc) DipArb MEIANZ MESA MISA Director Encl.: Arborist Report and Vegetation Management Plan (Litoria Consulting, Issue A, 7 October 2022) Ecological Assessment Report (EAR) (Litoria Consulting, v 1.0, July 2023) LORS 4s
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Legend y [os ~\ ~ § Cadastre CJ ‘Lot bouncary | Easement ‘Koala Hapliat Areas v3.0 HBB tre ose Havnaréeas Proposed charge [J Perosec enange oorpent Addtiona areas of retained Kosta Habtat Areas 1 Department of Environment and Science (2022). South East Queensland Koala Conservation Strategy 2019-2024 (GIS Dataset). State of Queensland (Department of Environment and Science). LO ORIAS 515