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Building long-term integrity in the voluntary carbon market
In recent years, an important question has arisen in relation to the voluntary carbon market (VCM) as it continues to expand: How do we elevate and maintain its integrity?
Global | Publication | October 2015
(R S Jones DCJ - 1 October 2015)
Appeal – refusal of development application for material change of use for apartment building – City Plan 2000 – City Plan 2014 – where issues of height and bulk – where intrusion into waterway corridor – whether conflict with New Farm and Teneriffe Hill Local Plan – whether conflict with Waterway Code – whether sufficient grounds to warrant approval despite conflict
Facts: This proceeding was concerned with an appeal against the Council’s refusal of a development application for a material change of use for a six to seven storey apartment building at 9 Griffith Street, New Farm.
The impact assessable development application was lodged at the time City Plan 2000 (CP 2000) was in force. After the development application was made, but before Council made its decision, City Plan 2014 (CP 2014) came into effect.
Under both CP 2000 and CP 2014, the site was located within the Medium Density Zone, New Farm and Teneriffe Hill Local Plan and Brisbane River Waterway Corridor.
The subject site ran from Griffith Street to the Brisbane River and as a consequence of the topography of the land, the proposed development would present one storey less from Griffith Street than when viewed from the river.
The eastern side of Griffith Street had been developed with a mixture of detached dwellings and some apartment buildings, predominately two storeys in height. Fronting the river there are a number of single unit dwellings. There are also a significant number of apartment buildings ranging from four to nine storeys in height. The northern boundary of the subject site adjoined a six to seven storey apartment building.
The issues in dispute were identified as:
Decision: The Court held, in dismissing the appeal:
(Horneman-Wren SC DCJ - 8 October 2015)
Development application under Sustainable Planning Act 2009 – vegetation clearing – where proposed vegetation clearing to protect both residences and fence lines – whether exempt development - whether essential management - whether development application subject of deemed approval – whether development application is subject to land that is critical habitat or an area of major interest under the Nature Conservation Act 1992 – estoppel – estoppel by judgment – issue estoppel
Facts: This was an appeal against the Respondent Council's purported refusal of a development application made by the Appellant (Traspunt) by which Traspunt had sought a development permit to carry out the clearing of native vegetation, described as being for “essential infrastructure”.
Council’s reasons for refusing the application were that the proposed development conflicted with a number of Desired Environmental Outcomes (DEOs) of the relevant planning scheme and the applicant had not provided sufficient grounds to justify the conflict in accordance with section 326(1)(b) of the Sustainable Planning Act 2009 (SPA).
In this appeal, Traspunt contended (each in the alternative) that:
At the same time as it commenced this appeal, Traspunt also commenced separate proceedings in the Planning and Environment Court by originating application in which it sought a declaration that its development application was the subject of a deemed approval by Council. That application was dismissed.
Decision: The Court held, in allowing the appeal in part:
(RS Jones DCJ - 19 October 2015)
Appeal – where respondent council approved multi-unit development at Highgate Hill – where submitters contended proposed development in conflict with town plan – where conflicts said to arise under City Plan 2000 and City Plan 2014
Facts: This was an appeal against Council’s approval of a development application which sought a development permit for multi-unit dwellings at 26 Derby Street, Highgate Hill.
The Appellants were submitters who resided either side of the subject site. The Appellants’ properties were pre-1946 structures. The existing house on the subject site was a 1960’s – 1970’s design. The proposal involved the demolition of the existing house to accommodate the proposed development.
At the time the development application was lodged, City Plan 2000 was in force, under which the site was located within the Low-medium Density Residential Area under City Plan 2000. It was also subject to the West End-Woolloongabba District Local Plan and was located within a Demolition Control Precinct.
After the development application was lodged but before Council’s decision was made, City Plan 2014 commenced. Under City Plan 2014, the subject site was located partly within the Low-medium Density Residential Zone and also within the West End-Woolloongabba District Neighbourhood Plan Area. The balance of the site approximate to the Brisbane River was located within the Environmental Management Zone.
Although no development work was proposed within the environmental area adjacent to the river, rehabilitation works were proposed as part of the development.
The issues in dispute were identified as:
Decision: The Court held, in dismissing the appeal:
(Morzone QC DCJ - 23 October 2015)
Planning and environment – application – declaratory and consequential relief pursuant to ss 456, 601 & 604 of the Sustainable Planning Act 2009 (Qld) – characterisation of rock armouring wall, pool cover and satellite dish as assessable development – whether the respondent carried out assessable development without an effective development permit for the development – expert opinion evidence inadequate – whether declaratory and enforcement orders should be made in the exercise of discretion - costs
Facts: This was an application brought by the Applicant, seeking declarations and enforcement orders regarding the lawfulness of the Respondent’s use of land or development in respect to the Respondent’s rock armouring works; a pool cover and a satellite dish.
The Respondent, owned and occupied the property located at 183-185 Monaco Street, Broadbeach Waters, since 2 July 2012. This property is adjacent to the Nerang River.
Various works and structures on or adjacent to the Respondent’s property had been subjected to compliance checks by the Applicant since July 2013. The remaining issues in dispute related to rock armouring works, pool cover and satellite dish.
The Respondent did not dispute that the rock armouring works, pool cover and satellite dish were not subject of any approval.
The Respondent did not hold a development approval for the rock armouring, pool cover and satellite dish.
The issues in dispute were identified as:
Decision: The Court held:
(Everson DCJ - 23 October 2015)
Environment and planning – environmental planning – whether changes to a development application are a minor change – whether changes to a development application result in a substantially different development
Facts: This was an application in pending proceeding in which the appellant (Jimboomba Lakes) sought orders including a declaration that changes it wished to make to a development application were a minor change as defined in s 35 of the Sustainable Planning Act 2009 (SPA).
The development application sought a development permit for a material change of use for accommodation units (relocatable home park) on land at 5376 Mount Lindesay Highway, Jimboomba.
The respondent (Council) opposed the application, arguing that the changes were not a minor change as defined in s 350 of SPA.
The development application had been made under the repealed Integrated Planning Act 1997 (IPA) but not decided until after the commencement of SPA. The repealed IPA continued to apply as if SPA had not commenced, and the appeal was to be heard and determined under the repealed IPA as per ss 802(2), 819(5), (6) of SPA.
Pursuant to s 4.1.52 of IPA the court “must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”. The meaning of a “minor change” is defined in s 350 of SPA as inter alia, a change that “does not result in a substantially different development”.
The development application was originally lodged on 26 October 2006. It was accompanied by a plan showing 533 relocatable home sites, 297 parking spaces and the only access to the proposed development was to be from the Mount Lindesay Highway to the west of the land.
The plans had been amended multiple times since the application was lodged. The changes the subject of this application involved:
Decision: The Court held, in dismissing this application:
(Everson DCJ -29 October 2015)
Environment and planning – environmental planning – where appellant seeks to add issues as disputed issues in the appeal – where there was a delay by the appellant in seeking this amendment – whether leave should be granted
Facts: This was an application seeking an order that the appellant be granted leave to add issues as disputed issues in the appeal. The appellant was a commercial competitor of the co-respondent and had appealed the decision of the respondent to approve the co-respondent’s development application for an extractive industry on land situated at Gregors Creek.
The additional issues were that the disturbance footprint shown on the approved plans did not demonstrate compliance with a stormwater runoff imposed by the Department of Environment and Heritage Protection’s referral agency response and showed haul roads which were too steep and unsafe.
The issues in dispute had been the subject of an Order made on 23 January 2015. The meetings of experts had subsequently concluded with the exception of the town planners. The further issues had been raised by the appellant’s need expert.
The issues were first raised on 7 July 2015. A meeting was then held with the appellant’s counsel before commencing the expert meeting process with his counterpart. The need joint report was not completed until 18 September 2015. The appellant’s solicitor wrote to the other parties on 15 September 2015 alerting them to the potential additional issues. On 30 September 2015 a further letter was sent detailing the issues.
The appellant’s need expert expressed the opinion that until the proposal was amended he was of the view that it firstly conflicted with Specific Outcome SO12 of the Rural Zone Code of the Esk Shire Planning Scheme, which required land stability to be managed having regard to, among other things, the location and design of roads and access driveways. Secondly it further conflicted with Specific Outcome SO2 of the Extractive Industry Code of the planning scheme which required the development to provide for the systematic rehabilitation of the site in a stable condition and landform suitable for alternative uses.
The expert alleged that the design of the proposed quarry would not allow systematic rehabilitation of the site to occur, as required by SO2 of the Extractive Industry Code. He asserted that this was because a considerably larger detention basis system would be required as the proposed quarry expanded and because in order to achieve safe and practicable gradients for proposed heavy equipment, the haul road network would have to be designed to traverse the hillside in a zig zag manner through previously quarried levels.
Decision: The Court held:
Publication
In recent years, an important question has arisen in relation to the voluntary carbon market (VCM) as it continues to expand: How do we elevate and maintain its integrity?
Publication
On 16 April 2024, the Hon Tanya Plibersek MP, the Minister for the Environment and Water (the Minister) announced progress on the package of reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
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