Introduction
Amendments to Brisbane City Plan 2014 (City Plan), which altered the Biodiversity Areas Overlay Mapping (BAOM) and associated level of assessment tables and codes, came into effect on 29 November 2019. The amendments largely reflect the proposed amendment package released by the Council in April 2017, which have been the subject of previous articles.
Policy overview
The strategic policy objective behind the amendments is to increase Brisbane’s vegetative cover from 37.5 % to 40%. The geospatial studies and methodology behind the prior and increased aerial extent of the mapping has not been made public.
There were a substantial number of public submissions which were mostly generated after the public consultation period in April/May 2017. The Council’s response to the submissions appears to include changes such as:
a) amending overlay maps to lift it from the building footprints; and
b) substitution of the strategic component of the overlay for the previous high or general biodiversity significance designations.
Comparative analysis
Comparison of the superseded and new BAOM reveals:
- a very significant increase in the land area constrained by the overlay, particularly in Brisbane’s western suburbs. A good example of this can be seen by comparing Map 26 covering the Upper Brookfield valley before and after the 2019 mapping;
- many instances of alterations to the designations of land previously mapped as having high or general ecological significance (HES and GES) to having “strategic” HES and GES; and
- in some instances, overlapping or bordering of the HES or GES areas with the strategic HES and GES designations.
A good example of the alteration of the mapping from HES or GES to the strategic subcategory can be seen in the mapping of the University of Queensland’s Anstead veterinary farm site on Map 34, which is now heavily constrained by strategic corridors.
Analysis of the BAOM reveals extensive repetition of the above examples throughout the greater Brisbane area, but especially in the outer-lying suburbs.
Removal of the right to ground-truth
Development applications in respect of land designated HES and GES have commonly involved ecological surveys to “ground-truth” the Council’s mapping for the purposes of determining:
- whether the ecological values actually exist and their spatial extent; and
- suitable locations for building location envelopes (BLEs) within mapped areas.
Such enquiries will be irrelevant in respect of development in the strategic HES and GES designations. This will potentially impact upon Brisbane’s remaining urban expansion sites, zoned Emerging Communities, that are within the Urban Footprint in the Regional Plan. The evident planning policy for those areas is that they not be used for purposes other than re-vegetation to establish new wildlife corridors. This policy is clearly articulated in the accompanying Biodiversity Overlay Planning Scheme Policy (BOPSP), section 1.3, which states:
“Much of the land included within the Biodiversity Areas Overlays Map supports intact, remnant habitat. However, some parts of the Biodiversity Areas Overlay Map are currently degraded or cleared. Also, some areas within the Biodiversity Areas Overlay Map have previously been developed for urban uses or are intended for urban uses in the future. Within areas that have already been developed, the Biodiversity Areas Overlays Map mostly captures vegetation within open spaces, including backyards.
In order to achieve the connected and consolidated network of habitats, identified in the Biodiversity Area Overlays Map, degraded areas will need to be restored and enhanced wherever possible. The restoration of land within the Biodiversity Areas Overlay Maps will provide the greatest benefit to biodiversity by reconnecting habitat areas that may previously have been fragmented.”
The BDO Code
The aforementioned planning policy is implemented through the BDO Code, which applies across all zones affected by the overlay; although other applicable codes may either reduce or increase the impact of the overlay. It will be at its most potent in the Environmental Management, Rural, Rural Residential and Emerging Community Zones.
For example, the Environmental Management Zone Code provides that development for an agricultural supplies store, animal keeping, bulk landscape supplies, emergency services, garden centre, service station or wholesale nursery:
(iv) “is not located within an area of high or general ecological significance or an area of strategic high or general ecological significance on the Biodiversity Areas Overlay Map.”
An overall outcome of the BDO Code is:
(a) “conservation, consolidation, connection and restoration of the network of lands with in situ values or areas of strategic biodiversity value within Brisbane.”
Another important overall outcome is as follows:
(g) “provision for environmental offsets that achieve an equivalent environmental outcome, where development will or is likely to have a significant residual impact on matters of local environmental significance or matters of State environmental significance.”
Importantly, for the purposes of the latter provision, “matters of local environmental significance” is defined in City Plan as denoted in the spatial extent of the mapping including the mapping of the strategic HES and GES sub-categories. In short, an area containing no significant environmental values such as a paddock containing nothing but pasture is, by definition, a matter of local environmental significance if mapped as strategic GES/HES. Consequently, while there may be no native vegetation situated within an area designated within the strategic sub-category, conditioned restoration, or offsetting, involving the planting of native vegetation would be required where development encroaches into the mapped strategic area. This will arise in practice where the strategic mapping covers all, or a significant part of, a property, such that in order to realise the use rights afforded by the zoning of the land it is necessary for development to intrude into the strategic area.
The BDO Code provides in the performance outcomes that for the development of a dwelling house, or associated filling or excavation, development must be confined within a development footprint that is sited to minimise the clearing and fragmentation of native vegetation and maximise the extent of habitat restoration in areas of strategic biodiversity value. The corresponding acceptable outcomes do not specifically address habitat restoration. It should be noted that PO9, which deals with offsets, does not apply to development of a dwelling house. However, offsetting is not equivalent to “habitat restoration”, which PO1 requires to be undertaken within both the HES/GES and strategic sub-categories. This will be implemented by way of development conditions and, possibly, covenants. Offsets may be used where in situ restoration is not achievable but apparently not for the development of dwelling houses.
Development footprint plans
The acceptable outcomes for PO1 are directed at ensuring that dwelling houses are only developed within an approved development footprint plan limited to an area no greater than 2,500m2 in the Environmental Management Zone, Conservation Zone, Emerging Community Zone, Rural Zone or Rural Residential Zone. A limitation of 1,000m2 applies in other zones.
Under City Plan, the term “dwelling house” means residential use of one dwelling for a single household (including a secondary dwelling) and any associated domestic out-buildings associated with the dwellings. The term “domestic out-building” means a shed, garage or carport that is ancillary to a residential use carried out on the premises containing the building. Rural, equestrian and other rural lifestyle structures and uses are not included. However, figure (a) which is referenced in AO1.2 refers to the development footprint plan accommodating the house, an on-site effluent treatment area, out-buildings and “tennis court etc”. Presumably this includes all other domestic recreational infrastructure such as swimming pools. It would not include rural infrastructure.
It is worth noting that figure (a) requires a minimum distance of 15-20 metres between a house and any trees. This sets a different standard from that applicable to extant dwellings under the Natural Assets Local Law, which only permits the removal of trees within six metres of a house. This inconsistency would have to be resolved in favour of figure (a) in the BDO Code for new dwelling houses approved under the code.
Bushfire considerations
AO1.3 requires that development ensures that management of vegetation undertaken to reduce risk from bushfire hazard, as demonstrated through a Bushfire Management Plan, occurs within a single bushfire management footprint plan no greater than 1,500m2 which adjoins the development footprint. AO1.3 refers to figure (c) which does not permit wastewater treatment within the bushfire management footprint and depicts a heavy canopy of vegetation up to the boundary of the bushfire management footprint.
Other development
Development for purposes other than a dwelling house, for example equestrian or livestock facilities, and commercial and industrial uses (where the BAOM applies), as well as sub-division within the Emerging Community Zone, will be covered by the other PO’s and AO’s in part C of the Code. They are conservation and restoration focussed provisions similar to those applicable to dwelling houses and are significantly restrictive of development. Subdivision within the Emerging Community Zone will be particularly problematic where a lot is constrained by the strategic component of the overlay. In those instances, it will be very difficult to overcome the clearly evident policy intent to preclude development, although substantial offsetting may be available to counter-balance the conservation and restoration objectives of the overlay.
Development applications (superseded Planning Scheme)
Landowners affected by the BAOM should interrogate the mapping carefully. Areas mapped for strategic biodiversity purposes should be closely scrutinised because those areas will not be susceptible to challenge on the basis of expert ground-truthing studies. However, there is a window of opportunity, open until 28 November 2020, for land newly mapped as either HES/GES or strategic HES/GES to request that specified development within those areas be dealt with under the superseded provisions of the Planning Scheme. If the Council accepts the request ground-truthing will be possible because the strategic sub-category will fall away if the superseded mapping designated the land as GES/HES. Where the superseded BAOM did not previously apply the BDO code will not apply to assessment of the application. If the Council refuses such a request and subsequently refuses or restricts the proposed development based upon the new mapping, a claim for compensation may then be made. Further advice should be sought about those rights and processes if you are affected.
Conclusions
The BAOM and BDO Code will significantly constrain the use of land included in the strategic HES/GES categories by making it impossible, or at least very difficult, to develop anything within those areas. If development is permitted on such land included in the overlay, it will be conditioned so as to require corridor-creating, vegetation restoration elsewhere on the land. The use of offsetting may be possible but not for development involving the establishment of dwelling houses.
Landowners affected by the changed BAOM should carefully interrogate the mapping and consider applying for development under the superseded Planning Scheme during the current window of opportunity, which will expire on 28 November 2020. Legal advice should be sought if consideration is to be given to the use of the development application (superseded Planning Scheme) provisions of the Planning Act 2016.