The Brisbane City Council released a Citywide Amendment Package - Biodiversity for public consultation earlier this year and the period for submissions ended on 6 June 2017. The submissions that were made are now under consideration by the Council. The changes proposed are very significant and will markedly impact on landowners rights with respect to the use of affected properties.
The new mapping for the Biodiversity Overlay Code significantly extends the reach of the Code in two ways:
- by mapping areas as having high or general ecological significance that were not previously mapped; and
- through the inclusion of new overlay categories referred to as "High Ecological Significance Strategic" and "General Ecological Significance Strategic".
The latter areas do not presently have ecological significance but the Council deems that they should not be developed because, strategically, the Council wishes to see these areas rehabilitated to provide future wildlife corridors.
The policy intention, with respect to these areas, is that no building or operational work occurs within them, and if it is allowed to occur, offsets are provided or paid to facilitate restoration of other areas that form part of the city’s green space system.
In a nutshell, the main purpose of the amendment package is to effectively restrict development in areas that don’t have high ecological significance so that those areas can, over time, be re-vegetated to a high ecological significance level. Additionally, the amendments potentially trigger the payment or provision of offsets in affected areas which presently contain no vegetation. It is a somewhat bizarre outcome that a land owner would have to pay offsets for developing facilities in an area that contains no vegetation and has no present environmental significance.
Unusually, the development of a dwelling house on a single lot is self-assessable, or as it is now known "accepted" development. The amended code intends to achieve the strategic intent by making the development of new houses, or new premises other than houses, code assessable development. Similarly, building work for an extension to an existing dwelling house, if the extended portion is in the high or general ecological strategic sub-categories, will become a code assessable development.
Under the proposed city wide mapping, extensive areas where building work is not presently regulated will become regulated, and will require a development application to be made before a house or extension, out buildings or other facilities may be constructed. It is likely that such applications, when made, will be refused.
The purpose of the code is stated to be achieved through a number of overall outcomes including:
- "(a) …restoration of the network of lands with in-situ values or areas of strategic biodiversity value within Brisbane." (my emphasis)
The clear strategic planning intent is to create biodiversity corridors on private land which presently does not have biodiversity values.
An effect of the changes to the code will be that areas presently clear of vegetation and suitable for development of a house or other structure may not be able to be developed at all if the amendment package proceeds in its present form. Another effect will be to contain all development on rural residential land within a 2500m2 building location envelope. That envelope will have to accommodate all structures as well as the waste water treatment area.
Unfortunately, this new mapping is not about the biodiversity values of what is presently on the ground, rather, it is about forcing the undertaking of rehabilitation to return the mapped land to its pre-1788 status. This will be achieved by restricting land owners rights to reasonably use their properties. There is no ability to undertake ground truthing surveys and apply to have the mapping amended, as is the case with State vegetation mapping.
The policy intent behind the amendment package is to increase Brisbane’s habitat cover to 40% of the City's area. It will achieve this primarily at the expense of residents who live on larger allotments or on acreage in rural or rural residential areas of Brisbane.
Overall, the package will potentially complicate simple development in un-vegetated areas that become mapped for strategic restorative purposes. The establishment of a swimming pool, tennis court, stables or equestrian arenas on a clear area of land, will not be able to proceed if the area has been mapped as having strategic biodiversity value.
The public consultation around the amendment package was fairly limited and many affected landowners will have missed the submission deadline. However, it is understood that the Council remains willing to consider informal submissions.
For more information or discussion, please contact HopgoodGanim Lawyers’ Planning team.